In response to the public health emergency and after consulting with public health officials, HHS Secretary Alex Azar, officially signed a renewal of determination extending the COVID-19 public health emergency designation up to 90 days, effective July 25th. This was the second time for the determination renewal, the first being in April.
The Secretary exercising his authority under section 1135 of the SSA (1135 waiver), may temporarily waive or modify certain Medicare, Medicaid, CHIP, and HIPAA requirements in an emergency area during an emergency period.
Examples of requirements that may be temporarily waived or modified include:
• Sanctions and penalties arising from noncompliance with HIPAA privacy regulations
• Deadlines and timetables for performance of required activities
• Sanctions under section 1877(g) (Stark) relating to limitations on physician referral under such conditions and in such circumstances as the Centers for Medicare & Medicaid Services (CMS) determines appropriate.
• Requirements that physicians and other healthcare professionals hold licenses in the state in which they provide services if they have an active and valid license from another state
• Certain conditions of participation, certification requirements, program participation, or similar requirements for individual healthcare providers or types of healthcare providers, and pre-approval requirements.
With the COVID-19 addition of waivers, modifications and relaxed rules and regulations, it opens a pandora’s box for people attempting to commit fraud! The five Federal fraud laws that pertain to physicians participating in Medicaid and/or Medicaid programs are:
1) False Claims Act or FCA, both Civil and Criminal penalties, protects the government from being overcharged or sold inferior goods or services.
2) Anti-Kickback Statute or AKS, Criminal law that prohibits the knowing and payment of remuneration (anything of value) to induce or reward patient referrals or the generation of business
3) Physician Self-Referral Law or The Stark Law, prohibits physicians from referring patients for designated health services from entities the physician or an immediate family member has a financial relationship with, unless an exception applies
4) Exclusion Authorities, exclude from participation in all Federal health care programs individuals and entities convicted of the specific types of criminal offenses
5) Civil Monetary Penalties Law or CMPL, applies civil monetary penalties and sometimes exclusion for various violations
Let’s take a look at these five laws and how they may relate to the current Public Health Emergency or PHE that is COVID-19.
False Claims Act (FCA)
• Providers billing for higher reimbursed covid-lab tests than what was actually rendered
• Submission of tests that never occurred
• Submitting telemedicine claims with a higher-level code than what was actually rendered
• Billing home services at the physician’s rate but services were performed by a visiting nurse.
Anti-Kickback Statute (AKS)
• Provider is receiving a percentage of the profit every time they refer a patient for a covid test at XXXX laboratory
• Drug Rep offers a provider an all-expense paid trip to XXXX for only prescribing their label to their patient population
• DME supplier approaches a provider and offers a gift card for steering patients their direction for PPE
• Respiratory Specialist approaches a General Practitioner (GP) and offers a monetary reward for every patient they refer to their specialty practice
Physician Self-Referral Law or The Stark Law
• A physician sees a patient that is having difficulty breathing possibly related to COVID-19, the physician sends the patient for a chest x ray at XXXX Imaging, that they share ownership of
• A Physician refers his patients for COVID-19 tests only to XXXX laboratory which is owned by his daughter
• A physician who is a GP only refers their patients to their spouse’s rehabilitation facility
Exclusion Statute
• A physician illegally prescribes drugs to his/her friends and family
• Provider submitted multiple telemedicine claims for patients without actually providing the services
• Provider negligently dismissed a patient’s complaint of shortness of breath after contact with a suspected COVID-19 person
• Physician continuously billing COVID-19 tests for patients he/she has never seen
Civil Monetary Penalties Law (CMP)
• A provider wanting to cash in on the increasing number of COVID-19 patients, made false statements on his application to participate in Federal Healthcare Programs
• A Psychiatrist misrepresented that he provided therapy sessions requiring 30 or 60 minutes of face-to-face time with the patient, when he had provided only medication checks for 15 minutes or less.
• A lab billed only high-throughput molecular diagnostic tests due to the higher reimbursement
Healthcare Fraud Shield has rules in place that recognize and alert our clients when suspicious activity is detected.
References:
Healthcare Fraud Shield 