Letter from the Editor
Hello, Welcome to the inaugural issue of Shorts on Long Term Care, a
monthly newsletter for the North Carolina LTC community. I’m Ken Burgess
and, after an almost 20-year absence from Poyner & Spruill’s Health Care
Practice Group where I began my career in 1985, have returned to North
Carolina and to Poyner & Spruill. I am a long term care attorney who
advises clients on a wide variety of legal issues arising in the skilled
nursing facility setting, assisted living setting, and other spheres of
long term care. I was formerly the Senior Director of Legal Services for
the American Health Care Association and General Counsel for the
Assisted Living Federation of America, both in Washington, D.C., and was
most recently with a national California-based healthcare boutique firm.
I am also a Past President and current Board Member of the North
Carolina Society of Health Care Attorneys. If you have any questions or
topics you would like to see covered in a future issue, I would love to
hear from you. I can be reached at 919.783.2917 or
kburgess@poynerspruill.com.
Ken Burgess, Editor
Update: Medicaid and
Medicare Fraud Initiatives Feds Ratchet Up Medicaid Anti-Fraud Enforcement
Efforts The Centers
for Medicare and Medicaid (“CMS”) recently announced details of the new
Medicaid Integrity Program (“MIP”) that was mandated by the Deficit
Reduction Act of 2005 (“DRA”), signed into law earlier this year by the
President. The DRA allocates substantial new funding for Medicaid fraud
enforcement initiatives, rising from $5 million in 2007 to $75 million
in 2009. The Department of Health and Human Services’ Office of
Inspector General, which typically coordinates the federal government’s
Medicare and Medicaid fraud efforts, will receive $25 million per year
for the next five years to investigate Medicaid fraud. Under the MIP,
CMS will dedicate 100 full-time staff to investigating and prosecuting
Medicaid fraud and will hire CMS contractors to conduct provider reviews
and identify overpayments. The program also directs CMS to support
criminal investigations of providers while it pursues administrative
sanctions, such as civil money penalties. The MIP signals a shift away
from the OIG’s traditional practice of focusing primarily on Medicare
fraud by also focusing on fraudulent practices under the Medicaid
program.
Feds Offer States
Financial Incentive to Target Medicaid Fraud
In addition to providing more funding for
federal enforcement officials to fight Medicaid fraud, the Deficit
Reduction Act of 2005 also encourages states to focus on fraudulent
activities occurring in state Medicaid programs and payments. Typically,
when states obtain settlements or judgments under their state False
Claims Acts based on Medicaid fraud, the state must return a portion of
those funds to the federal government as repayment of the federal
matching share of Medicaid. Under the DRA, states that obtain Medicaid
fraud settlements or judgments are allowed to keep 10% of the share they
would normally send back to the Feds as repayment of the federal
matching share of Medicaid. However, those funds are only available to
states with False Claims Acts that include whistleblower provisions like
those in the federal FCA, which authorize private persons to bring fraud
actions on behalf of the government and then share in the proceeds from
a settlement or judgment. With state Medicaid budgets burgeoning, the
offer of additional funds from this portion of the DRA may be too
attractive for states to pass up and many states are expected to amend
their existing FCAs to add whistleblower provisions. North Carolina
already has a FCA, but it does not contain whistleblower provisions and
so, under existing law, N.C. would not benefit from the DRA’s financial
windfall. However, in the 2006 legislative short session, a bill was
introduced to add whistleblower provisions to North Carolina’s FCA.
While the bill did not become law during the short session, bets are
that it will get serious consideration when the General Assembly
reconvenes next year.
All providers who receive
Medicaid funds, including nursing facilities and assisted living
communities, are potential targets of Medicaid fraud prosecutions and
whistleblower suits.
Chris Brewer joins Poyner
& Spruill from the North Carolina Attorney General’s Office where he
served as director of North Carolina’s Medicaid Fraud Control Unit for
17 years. He is regarded as one of the nation’s most experienced
litigators and advisors on governmental enforcement and medical
reimbursement issues. He is resident in the Raleigh office and may be
reached at 919.783.2891 or
cbrewer@poynerspruill.com.
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