Fraud & Abuse
The ACA expanded the scope of health care fraud and abuse laws. Key changes included:
- Codification of a broad intent standard under the Anti-Kickback Statute.
- Addition of new bases for civil monetary penalties, permissive exclusions of providers and suppliers from federal health care programs and suspension of payments to providers and suppliers.
- Creation of new bases for mandatory provider termination and exclusion from Medicaid.
- Clarification that federal health care program overpayments are subject to the 60-day repayment provisions of the False Claims Act.
- Conferral of new subpoena and investigative powers to the HHS OIG, mandatory enhanced penalties for persons convicted of federal health care program offenses and expansion of crimes constituting such offenses.
- Expansion of the RAC program to Medicare Parts C and D and Medicaid.
- Repeal, prospectively, of the Stark Law’s “whole hospital” exception and limitation on existing physician-owned hospitals.
- Introduction of requirement that all federal health care program providers and suppliers maintain a compliance program.
- The ACA also directed an additional $350 million, cumulatively, for fiscal year 2011 through fiscal year 2020 to fund anti-fraud efforts.
- Establishment of a new process where states may request reconsideration from HHS for Medicaid disallowance, and clarification on rules for repayment of interest accrued on disallowed Medicaid claims.
Much of the focus in the next few years will be in the investigatory and judicial arena as federal agencies enforce and courts interpret revised fraud and abuse laws. In the meantime, HHS is well underway in implementing certain fraud and abuse provisions of the ACA. To date, HHS has issued final rules on the following:
- New provider and supplier screening requirements, CMS’s authority to impose temporary provider and supplier enrollment moratoria and discretionary or mandatory suspensions of Medicare and Medicaid payments pending investigations of credible allegations of fraud.
- Requirement for states to implement a Medicaid Recovery Audit Contractor program.
- Requirements for physician-owned hospitals “grandfathered” under the repealed “whole hospital” exception.