Issue link: https://viewer.e-digitaledition.com/i/778134
THE 1996 Health Insurance Portability and Accountability Act ("HIPAA") estab- lished the national Healthcare Fraud and Abuse Control Program. This program requires annual reports of the govern- ment's ežorts with regard to enforcement actions and the amount collected each year as a result. In 2015 that amount was $1.9 billion in healthcare fraud judgments and settlements which derived from 800 criminal actions against individuals or entities and 667 civil actions related to Medicare, Medicaid, false claims and civil monetary payments. Additionally, 4,112 individuals and entities were banned from Medicare participation. Suµce it to say that healthcare fraud and abuse enforcement has become a large revenue enhancer for the federa l government. Furthermore, while final numbers will not be reported until February of this year, 2016 kept the trend of large enforcement recoveries alive and well. Hea lthca re fraud a nd abuse ca ses a re enforced a nd prosecuted by t he Depa r t ment of Hea lt h a nd Hu m a n Services Oµce of the Inspector General and the Department of Justice. Many fraud and abuse cases are intentional in nature and involve some kind of elaborate, or blatant, scheme to bilk the federal gov- ernment out of Medicare and Medicaid dollars. Other cases, while not necessarily intentional, violate the Anti-Kickback Statute, the Physicia n Self-Referra l Prohibition (the "Stark Regulations") or the False Claims Act. These laws are complicated and, if not navigated correctly, can lead to unwanted circumstances for physicians, hospitals and other providers. In addition to healthcare fraud and abuse enforcement, we have recently seen an uptick in HIPA A enforcement from the Department of Health and Human Services Oµce of Civil Rights ("OCR"). According to the hhs.gov website, as of October 31, 2016, the OCR has resolved nearly 25,000 cases, including settling 40 of those cases resulting in collections of over $48 million. From HIPAA's inception and until the past few years, the OCR has had a reputation of working with covered entities without major consequences. That trend has been reversed as OCR has taken a more aggressive enforcement stance, particularly in the area of compliance with HIPAA security rules. The major cases of 2016 fell into sev- eral categories. There was a fair share of blatant cases based on intentiona l illegal fraud schemes, such as a hospice scheme in which the government col- lected $6.8 million from two California physicians who were falsely certifying the patients were dying and were therefore entitled to hospice services. Other key cases last year include violations of the False Claims Act based on billings for medically unnecessary services or for services performed by providers without the appropriate license or certifications required to bill the Medicare system. Several Anti-Kickback cases were pros- ecuted last year including a $513 million settlement with Tenet Health. Last year's cases also included Stark Law violations based on inability of hospital to pay fair market value to physicians for various services or to meet the technical require- ments of the Stark Law. The OCR has a lso been busy with the enforcement of HIPAA Privacy and Security Regulation breaches. Dove-tailing ož of a $34.7 million billing fraud settle- ment against 21st Century Oncology, a Florida-based international practice, the OCR is in the process of investigating HIPAA Security Rule violations that may have impacted the protected healthcare information of 2.2 million current and former patients. A l s o i n 2 016 , t he D OJ b e ga n t o implement the "Yates Memo," thereby stressing individual accountability. As an example, the former Toumey Healthcare Systems CEO was forced to personally pay $1 million in order to settle fraud case allegations. We can expect to see more administrators, boa rd members a nd physicians held personally accountable in the future. Not only is healthcare fraud and abuse alive and well, the OCR promises to fund necessary expenditures for its ongoing enforcement activities, and we can expect the trend to continue, if not grow. In light of this continued enforcement, it is a good time to revisit your practice's compliance program to ensure you are in the best position to prevent and/or respond to any issues you may encounter. Daniel Glessner is Chair, Health Care practice group, at Brouse McDowell in Akron, OH. ■ Alive and Well BY DANIEL K. GLESSNER Healthcare Regulatory Enforcement 2 6