Proposed Rule for Overpayment Refunds -- 10 year look-back and more

Posted by Emily Root on April 06, 2012

On February 16, CMS published a proposed rule regarding providers' obligation to return any overpayments within 60 days of identifying such overpayment.  The proposed rule expounds on 60-day repayment obligation, which became effective in 2010 with the passage of PPACA, in ways that may give providers comfort in some areas but that will likely lead to increased litigation if adopted without change.  The proposed rule would (1) impose a duty to refund any overpayments in the last 10 years, (2) give some guidance (though not exact) about when the 60-day clock starts running and what investigation obligations exist, (2) lists the information the provider needs to report with a refund.

Click "Continue Reading" below for more in-depth discussion of these issues.  Also reporting on the proposed rule are Nathaniel Lacktman, Lawrence Vernaglia, and Judith Waltz, and Edward Kornreich, Elizabeth Mills, Richard Zall and Ryan Blaney, and Rachel Sladja.

Comments to the proposed rule are due April 16.  Numerous comments are likely.

Continue Reading

PPACA - Day 3

Posted by Emily Root on March 28, 2012

A long day today at the U.S. Supreme Court for PPACA attorneys.  This morning, argument was all about whether any unconstitutional parts of PPACA can be severed from the entire Act or if the whole Act must be stricken.  As before, oral arguments are available in audio and transcript on the Court's website.

The afternoon session focused on the less well publicized aspect of PPACA -- the requirements that states expand Medicaid coverage if they want to continue receiving any federal Medicaid funding.  Although these provisions have received less press coverage, they are key issues for state governments.  The audio and transcript for the afternoon session are also available from the Court.

Notably, press coverage of the third day of arguments is markedly less, though CNN and the
Washington Post have pieces on the final day's issues. 

The Justices will preliminarily vote on the case at the end of the week, which will be followed by a period for the Justices and their clerks to write and circulate opinions until the decision is finalized.  ETA on the ruling is sometime in June, when this term ends.

PPACA - Day 2

Posted by Emily Root on March 27, 2012

Definitely more drama today, as the Supreme Court heard 2 hours of arguments on the constitutionality of PPACA.  The general opinion following arguments is that the Justices' questions indicate they may not view the government's position favorably.  The audio and transcript from today have been posted by the Court, and analysis from Court watchers abounds, including today's postings on the SCOTUS blog and articles in the Wall Street Journal and the Associated Press.

Tomorrow's arguments focus on two questions: (1) whether, if the individual mandate is unconstitutional, just that portion can be severed and stricken or whether it is so entwined with the rest of PPACA that the whole Act would have to go; and (2) whether Congress can require states to expand Medicaid coverage by threatening to withhold federal Medicaid funds if they don't.

PPACA - Day 1

Posted by Emily Root on March 26, 2012

Today's arguments at the Supreme Court were 90 minutes on the issue of whether the Court has jurisdiction to decide the constitutional questions now, or if the challengers must wait until the individual mandate and its associated penalities begin in 2014.  The audio and transcript of today's arguments are now available from the Court. 

Not a great deal of action today, particularly since both the government and the PPACA challengers want the Court to decide the case now.  Due to this unusual alignment, the Court had to appoint an attorney, Robert A. Long, to argue that the case should not be heard until after 2014.  Given the Court's questions, many consider that the Court is inclined to decide the constitutional question now, which will provide some much-needed predictability, as noted in these articles from the Washington Post, New York Times, and NPR.

Tomorrow's topic -- constitutionality of the individual mandate -- will be the main event.  Stay tuned.

Coming Monday -- Supreme Court Arguments on PPACA

Posted by Emily Root on March 23, 2012

Next week, the drama begins -- the Supreme Court will hold what promises to be the biggest (an impressive 6 hours) and most important series of oral arguments of the decade, if not the century -- to decide the future of Obama's health care reform, PPACA.  The government will be primarily represented by Solicitor General Don Verilli; arguing most of the issues opposing PPACA will be Paul Clement, former Solicitor General under George W. Bush.  Up for discussion are four key issues surrounding the constitutionality of PPACA, to be argued over the course of 3 days:

(1) Whether the PPACA lawsuits are premature, due to the Anti-Injunction Act (90 minutes);

(2) Whether PPACA's individual mandate is constitutional (2 hours);

(3) Whether any unconstitutional portions of PPACA can be severed from the remainder of the Act or whether the entire Act must be stricken if one part is unconstitutional (90 minutes); and

(4) Whether PPACA's Medicaid expansion (states must expand Medicaid coverage to continue receiving federal Medicaid funds) is constitutional (1 hour).

As the excitement builds, so does the pre-argument coverage.  Among recent articles are pieces about Solicitor General Don Verilli (NPR), former Solicitor General Paul Clement (Washington Post), what will happen if PPACA is unconstitutional (Washington Post), and how specific Justices might vote (New York Times).

Notably, there will be no television coverage of the arguments or real-time audio available.  In a recent announcement, the Court has promised that audio recordings and rough transcripts will be made available later the same day.  We will be updating here daily to stay on top of the action. You can read about the issue of press coverage in the LA Times op ed piece by noted constitutional scholars Erwin Chemerinsky and Eric J. Segall.  

Firm Attorneys Author Article: "Rx for Fraud: The Feds Get Personal"

Posted by David Kopans on January 25, 2012

Squire Sanders lawyers Thomas E. Zeno (Washington DC) and Kimberly J. Donovan (Miami) co-authored the article “Rx for Fraud: The Feds Get Personal,” just published in the Winter 2012 edition of Criminal Justice, a magazine of the American Bar Association. In the ten-page article, Tom and Kimberly discuss the federal government’s expanded tactics for combating healthcare fraud and forcing corporations to take compliance more seriously. They identify steps corporations can take to protect their executive and corporate clients from exclusion and emphasize the important role compliance programs play in addressing healthcare fraud problems. They also outline components of an effective and robust compliance program.

Another Appeallate Court Rules PPACA Individual Mandate is Constitutional

Posted by Emily Root on November 09, 2011

As described in further detail in SSD’s Sixth Circuit Appellate Blog here and on the ACA Litigation Blog here, the U.S. Court of Appeals for the District of Columbia issued a decision(pdf) yesterday in Seven-Sky v. Holder that the individual insurance mandate is constitutional.  This brings the total to 2 appellate courts for the law (the D.C. Circuit in this case and the 6th Circuit in the Thomas More v. Obama case), 1 against (the 11th Circuit in Florida v DHHS), and 1 deciding that the issue can’t be decided until the law goes into effect (the 4th Circuit in Liberty Univ. v. Geithner). 

The Seven-Sky case will likely be the subject of a prompt petition to the U.S. Supreme Court for review.  The other cases are currently pending for consideration by the Supreme Court of whether (or which) of the cases it will take up on appeal. 

WEBINAR TO EXPLAIN IMPLICATIONS OF NEW ACO REGULATIONS ANNOUNCED FOR NOVEMBER 3; HOSTED BY SQUIRE SANDERS & DEMPSEY AND STRATEGIC HEALTH CARE

Posted by David Kopans on October 27, 2011

On Thursday, November 3rd, please join Squire, Sanders & Dempsey and Strategic Health Care for a complimentary webinar overview of the final rule recently released by the Centers for Medicare & Medicaid Services (CMS) and the opportunities it presents for Accountable Care Organizations (ACOs). As reported by the Accountable Care Forum, CMS made significant changes in the final rule to entice providers to participate in the Medicare Shared Savings Program. Topics to be addressed include:

  • ACO organization and governance
  • New opportunities for rural and small community providers to create or join ACOs
  • Advanced funding of ACO start-up costs
  • Antitrust requirements
  • CMS and Office of the Inspector General waivers
  • Financial/risk sharing: insurance law implications
  • Improvements to the shared savings rate
  • Lower barriers to entry on quality and electronic health record (EHR) metrics

Speakers will include our own John Kirsner and Peter Pavarini as well as Strategic Health Care’s Paul Lee, Marian Lowe and Sharon Bee Cheng.

If you have a question you would like addressed by one of our panelists, please email PaulLee@shcare.net. We look forward to your input and participation.

Unexpected issue in the PPACA litigation may effect timing of a decision

Posted by Emily Root on October 06, 2011

The recent decision(pdf) by the 4th Circuit Court of Appeals in the Liberty University case may change the path the PPACA cases take in the United States Supreme Court and could even mean that a definitive decision on the individual insurance mandate wouldn't come until 2016 or later. 

Until now, most commentators have assumed that we would get a decision from the Supreme Court about whether Congress can constitutionally require individual participation in insurance -- the only real question was whether the Court would rule before the 2012 elections or postpone the case until next term (yielding a decision in 2013).

Since the Liberty University decision, though, a previously-ignored theory under the Anti-Injunction Act has gotten more traction.  The argument goes that the that the Supreme Court should ultimately dismiss any case it takes right now for the technical reason that the lawsuit premature.  Under the Liberty University court's reading of the Anti-Injunction Act, the federal court can’t get involved in pre-enforcement litigation because the penalty for not having insurance by 2014 is an “exaction” (often thought of as a “tax"). 

Under this theory, challengers of the law would have to wait until someone is assessed the penalty (after the law goes into effect in 2014), pays the penalty, and then sues the government for a refund.  Including time for filing a lawsuit and litigating it through the courts of appeals into the Supreme Court (again), this process could easily extend a final decision on the individual mandate into 2016 or later. 

The issue has been raised in both the government's request (pdf) for Supreme Court review of the Florida v. HHS case and during oral arguments in the Seven-Sky v. Holder case in the D.C. Circuit.  Detailed discussion of these issues can be found at this story by BNA and recent postson the ACA Litigation Blog.  There isn't much law on this subject, so it may be the type of thing the Supreme Court would be interested in resolving -- which way the decision might go is anyone's guess.

PPACA lawsuits quickly moving to the U.S. Supreme Court

Posted by Emily Root on September 29, 2011

Well, this was a big week for the PPACA lawsuits, with multiple filings in the Supreme Court.  These quick moves seem designed to get the case heard this term, which means a decision would come out by June 2012 and be fodder for the November 2012 presidential elections.  It remains to be seen whether that decision upholds PPACA, strikes the individual insurance mandate, or determines the constitutional issus can't be litigated until 2014 or later.

In the 11th Circuit case, Florida v. DHHS, the government filed (much earlier than expected) a petition (pdf) for the U.S. Supreme Court to hear the case.  The government wants the Court to overrule what is currently the only appeals court ruling (pdf) that the individual mandate is unconstitutional.  Interestingly, the government also invited the Supreme Court to decide the question of whether the constitutional dispute can be heard at all before the law goes into effect in 2014.  This issue is based on arguments adopted in the Liberty University v. Geithner (pdf) case recently decided by the 4th Circuit but not at the Supreme Court yet.  More on this issue later.

Two other petitions for Supreme Court review of Florida v. DHHS also hit the Supreme Court yesterday, one by the plaintiff states (pdf) and one by the plaintiff trade organization (pdf).  In these, the plaintiffs argued that the 11th Circuit was correct that the individual mandate exceeded Congress' power but that the entire law should have been struck down as a result, which was the trial court;s ruling.  The 11th Circuit had severed the mandate from the rest of PPACA and allowed the remainder of the law to go into effect.

In a separate filing (pdf) in the Thomas More v. Obama case, the government submitted its response to the plaintiff's request to have that case heard by the U.S. Supreme Court.  The government urged the Court not to take the Thomas More case (where the court of appeals ruled (pdf) in the government's favor), but instead to decide the constitutional issues, if at all, through the Florida v. DHHS case.   

For more on these filings, check out the aca litigation blog, SSD's Sixth Circuit blog, and Lyle Denniston's postson the SCOTUS blog.  News coverage is everywhere, including Adam Liptak's article in the New York Times and Brent Kendall's article in the Wall Street Journal.