Florida Federal District Court Judge Roger Vinson serving in Pensacola, Florida, ruled that key components of the health reform law are unconstitutional and declared the entire law void.
In his decision, Judge Vinson writes:
“… I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”
The ruling by Judge Vinson may be appealed to the Federal Court of Appeals in Atlanta. Separately, an appeals court in Richmond, Virginia, is scheduled in May to hear challenges to two conflicting lower-court rulings, one upholding the legislation, the other invalidating part of it.
As we have noted in other posts, it is likely that the constitutionality (or not) of the health reform law will not be certain until a final ruling by the United States Supreme Court.
On Friday, January 28, 2011, the U.S. Department of Labor withdrew a proposed regulation that would have required corporations to closely track and monitor the aches, strains and sprains of employees. This withdrawal is part of a new effort to seem less hostile to business and is important as the draft rule had been viewed as a precursor step to setting up OSHA ergonomic regulations. Now it appears such regulations are highly unlikely to be proposed.
Today the U.S. Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Associate Attorney General Thomas J. Perrelli issued a report showing that the government’s health care fraud prevention and enforcement efforts recovered more than $4 billion in taxpayer dollars in Fiscal Year (FY) 2010. This is the highest annual amount ever recovered from people who attempted to defraud seniors and taxpayers. The complete news release is available here.
The annual Health Care Fraud and Abuse Control Program Report for Fiscal Year 2010 referred to in the HHS/DOJ news release is now available at http://go.usa.gov/Y1f.
For the first half of 2010, The Joint Commission lists medical record documentation as one of the top ten standards in noncompliance. Citing RC.01.01.01 (complete and accurate medical records) as the standard with the highest noncompliance, TJC suggests conducting concurrent chart audits to ensure compliance. Additionally, providers should check compliance with verbal order standard RC.01.03.07 and assessment/reassessment standard PC.01.02.03. Contact our Medical Staff team members for questions regarding these standards.
Last month, the U.S. District Court for the Western District of Pennsylvania ruled that a handwritten nurse’s note was not protected by the peer review privilege. The court specifically denied peer review protection because the note was not part of the proceedings or record of a peer review committee, nor was it derived from a peer review committee’s evaluation or incident review. Instead, the court compared the note to an unprotected incident report or recording log. See Ellison v. Women & Children’s Hosp., W.D. Pa., No. 08-313 (12/10/10) at http://op.bna.com/hl.nsf/r?Open=mapi-8c5lj. Although this case was not decided under Wisconsin state law, the applicable peer review law is similar – reminding providers to take caution with documentation as it relates to peer review issues. If you have any questions regarding Wisconsin peer review law, please contact our Medical Staff team members.
Just yesterday the United States Supreme Court handed down a decision subjecting wages earned by medical residents working 40+ hours a week to FICA taxes. The Court decidedly applied Chevron’s two-part framework for evaluating the Treasury Department regulations and concluded that the full-time employee rule was not inconsistent with the student FICA exception, as provided under IRC § 3121. Although the Internal Revenue Service conceded in March 2010 that wages earned by medical residents before the effective date of the full time employee rule are not subject to FICA taxes, this decision now subjects wages earned by medical residents since April 1, 2005 to FICA taxes. Click here for the full-text opinion: http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=10.
CMS recently issued a reminder to Fee-For-Service physicians, providers and suppliers of its change to Medicare timely filing requirement. The Patient Protection and Affordable Care Act (PPCA) changed this requirement so that all claims for services furnished on or after Jan 1, 2010 must be filed no later than 12 months from the date of service. Note that the start date for determining the 1-year timely filing period is the date of service or “From” date on the claim. For claims that include span dates of service (i.e., a “From” and “Through” date on the claim), the “Through” date on the claim is used for determining the date of service for claims filing timeliness. For claims submitted by physicians and other suppliers that include span dates of service, the line item “From” date is used for determining the date of service for claims filing timeliness.
For more on this change, review the following MLN Matters articles:
§ MM6960 – “Systems Changes Necessary to Implement the Patient Protection and Affordable Care Act (PPACA) Section 6404 – Maximum Period for Submission of Medicare Claims Reduced to Not More Than 12 Months” – http://www.cms.gov/MLNMattersArticles/downloads/MM6960.pdf on the CMS website.
§ MM7080 – “Timely Claims Filing: Additional Instructions” – http://www.cms.gov/MLNMattersArticles/downloads/MM7080.pdf on the CMS website.
You can also listen to a podcast on this subject by visiting http://www.cms.gov/CMSFeeds/02_listofpodcasts.asp on the CMS website.
The Department of Health Services has received approval to reorganize the Department of Quality Assurance and create the Office of Plan Review and Inspection. For more information on this reorganization, see DQA Memo 11-002/Office of Plan Review and Inspection at http://www.dhs.wisconsin.gov/rl_dsl/Publications/11-002.htm.
In the last week, the Department of Justice (DOJ) announced a number of settlements relating to health care, totaling in the millions of dollars. The settlements included allegations under the False Claims Act, among other laws, and are described below.
Detroit Medical Center
The DOJ announced last week that Detroit Medical Center agreed to pay $30 million to settle allegations that it violated the False Claims Act, the Anti-kickback Statute and the federal self-referral law (Stark). The allegations involved improper relationships between Detroit Medical Center and referring physicians, including office lease agreements and independent contractor relationships that were inconsistent with fair market value or not in writing. The relationships were self-disclosed by Detroit Medical Center after it discovered the relationships while preparing for a sale of its facilities.
Kyphoplasty
The DOJ announced today that seven additional hospitals have agreed to pay a total of more than $6.3 million to settle allegations relating to the False Claims Act and kyphoplasty. The settlements relate to allegations that the hospitals overcharged Medicare when performing kyphoplasty (a procedure used to treat certain spinal fractures). The government alleged that the hospitals inappropriately classified the procedures as inpatient, rather than outpatient. According to the DOJ, the procedure can often be performed safely as a less-expensive outpatient procedure.
The seven hospitals are located in Florida, Mississippi, Texas, South Carolina, North Carolina and Alabama. The government had already reached settlements with 18 other hospitals and with Medtronic Spine LLC (a corporate successor to Kyphon Inc.) relating to kyphoplasty. Two employees of Kyphon named the settling hospitals as defendants in a qui tam suit under the False Claims Act.
