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Delaware Health Law Blog

Medicare Overpayment Rule: Part 2 – Proactive and Reactive Compliance

This blog is the second post in a series discussing the Centers for Medicare and Medicaid Services’ Final Rule regarding the obligation to report and return Medicare overpayments. The first post discussed the basic requirement to report and return Medicare overpayments and two highlights of the rule—when an overpayment is “identified” and the 6-year lookback period. The first post can be viewed here. In this post, we discuss the impact of the rule on providers’ compliance initiatives (or lack thereof).

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CMS Issues the Final Rule on Providers’ Obligation to Report and Return Overpayments

On February 12, 2016, the Centers for Medicare and Medicaid Service (“CMS”) published a final rule regarding the Affordable Care Act’s requirement that providers report and return overpayments. It has been a long road to this point. Back in 2012, we wrote about CMS’ proposed rule, which introduced quite a bit of uncertainty in the process of investigating overpayments and ultimately reporting and returning those overpayments. After nearly four years, and after considering approximately 200 pieces of commentary from interested parties, CMS has finalized the rule, further outlining provider responsibilities under the Affordable Care Act’s requirement.

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Delaware Dental Board Proposes “Fee-Splitting” Prohibition

The Delaware Board of Dentistry and Dental Hygiene is proposing an amendment to its regulations to ban what it characterizes as “fee-splitting.” The proposed amendment provides that a dentist or dental hygienist may be disciplined for “engaging directly or indirectly in the provision or receipt of anything of value for recommending a dentist or hygienist’s services.” The proposed regulation, however, permits the offering or receipt of “office gifts” on a quarterly basis if the value of the gifts does not exceed $1,000 annually and the gifts are “unrelated to a specific referral.” As the federal and state Anti-Kickback statutes generally prohibit offering or receiving anything of value in exchange for the referral of federal or state health care program business, dentists who provide services payable by federal or state health care programs cannot rely solely on the proposed state regulation as a guideline for permissible gift-giving.

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New Stark Law Exception for Sharing Space and Equipment

Physicians often ask about sharing space or equipment with colleagues. For a number of reasons, regulatory compliance often makes the proposed arrangement impractical, if not impossible. However, a new Stark exception will, for the first time, permit space and equipment sharing without having to satisfy the sometimes onerous and impractical lease requirements.

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GAO Analyzes Connection Between Hospital-Physician Consolidation and Increased Medicare Spending for Evaluation and Management Services, Recommends Equalizing Rates for E/M Services in Office and Hospital Outpatient Settings

On December 21, 2015, the United States Government Accountability Office (GAO) issued a report entitled, “Increasing Hospital-Physician Consolidation Highlights Need for Payment Reform.” The GAO’s study was prompted by an inquiry from lawmakers about the more than 8 percent rise in Medicare expenditures for services rendered in hospital outpatient departments (HOPD) between 2007 and 2013, as compared to a 5 percent increase in total Medicare Part B spending during the same time frame.

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Federal Trade Commission Issues Guidance on How State Licensing Boards May Avoid Antitrust Scrutiny

Earlier this year DE Health Law reported on a decision by the U.S. Supreme Court, North Carolina State Board of Dental Examiners v. Federal Trade Commission, holding that a state professional licensing board could be liable under federal antitrust laws for engaging in anticompetitive behavior in the absence of “active supervision” of the board by the state.

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Five Years Post-Bradley

Five years ago, on September 1, 2010, one of the nine “Bradley” bills, House Bill 459, took effect in Delaware. Among other things, this bill clarified the obligations of hospitals to report any disciplinary action affecting a physician’s privileges, the obligations of law enforcement to report unprofessional conduct by a physician, and that a physician’s failure to report unprofessional conduct of another physician is itself unprofessional conduct. Subsequent legislation incorporated “failure to report” into the definition of “unprofessional conduct” applicable to other health care professionals as well.

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New Guidance on Mobile Device Security for Health Care Providers

At the end of July the National Institute of Standards and Technology of the U.S. Department of Commerce (“NIST”) released a draft practice guide, Securing Electronic Health Records on Mobile Devices, that demonstrates how health care IT professionals can use existing technologies, including commercially available and open source tools, to better protect electronic protected health information (“ePHI”) systems and facilitate secure sharing of ePHI through mobile devices. According to the guide, “many health care providers are using mobile devices in health care delivery before they have appropriate privacy and security protections in place.” The guide is intended to provide a technical roadmap for achieving HIPAA-compliant use of mobile devices by health care professionals.

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Governor Markell Signs Delaware Medical Orders for Scope of Treatment Act

On May 28thGovernor Markell signed House Bill No. 64, the Delaware Medical Orders for Scope of Treatment or “DMOST” Act. The legislation establishes a clinical process to facilitate communication between an adult patient with a “serious illness or frailty” and the patient’s physician (or other health care practitioner licensed to write medical orders under Title 24 of the Delaware Code) who “would not be surprised if [the patient] died within the next year” regarding what life-sustaining treatments, if any, the patient wishes to receive. Based on that consultation, the legislation allows the physician to complete a DMOST form documenting the patient’s wishes as a medical order intended to be honored by personnel attending the patient in any health care setting, including the patient’s home, a health care institution, or by emergency personnel.

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Delaware General Assembly Passes Telemedicine Bill

On May 14th the Delaware General Assembly passed HB 69 amending Title 18, the state’s Insurance Code, and Title 24, governing health care professions and occupations, to facilitate the use of “telehealth” and “telemedicine” in the delivery of health care to patients located in Delaware. The bill defines “telehealth” as “the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health-related education, public health, health administration, and other services as described in regulation.”

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