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In This Issue

Final CMS Rule on the Reporting and Returning of Medicare Overpayments Is a Wake-Up Call for Physicians: Effective March 14, 2016, a final rule published in February 2016 by the Centers for Medicare and Medicaid Services (CMS) implements the 60-day rule included in the Affordable Care Act (ACA) (31 U.S.C. 1320a-7k(d)). ACA requires providers and suppliers who receive Medicare funds to report and return overpayments by the later of either (1) 60 days after the date on which the overpayment was identified, or (2) the date any corresponding cost report is due, if applicable. Hospitals must also notify in writing the Secretary of DHHS, the state, an intermediary carrier, or contractor to whom the overpayment is returned of the reason for the overpayment.Coming Soon to Your Inbox! Phase 2 of OCR’s Audit Program for HIPAA Compliance: On March 21, 2016, the Office of Civil Rights (OCR) in the Department of Health and Human Services (HHS) announced that it was ready to begin Phase 2 of its audit program for HIPAA compliance, which will include auditing business associates, besides covered entities, as mandated by the HITECH Act. Phase 2 follows the first phase of OCR’s audits and will continue to focus on assessing the compliance efforts of covered entities and business associates, identifying undiscovered risks and vulnerabilities, and pinpointing best practices adopted in the industry. The Phase 2 audits will initially comprise desk audits, which are projected to be complete by the end of 2016, and will be followed by on-site audits.

Draft Carefully: North Carolina Supreme Court Affirms Strict Blue Pencil Doctrine Still Applies to Non-Competes: North Carolina courts traditionally recognized their limited power in amending terms of unenforceable non-compete agreements. The “blue pencil” rule permits a court to enforce restrictions that are reasonable, while striking those deemed to be unreasonable. This striking power has always been limited to just that, striking. The courts will not write in any language to make an unenforceable agreement enforceable, and the language of the document must make sense on its own after any deletions. However, a decision by the North Carolina Court of Appeals called into question this doctrine when it ruled a court could rewrite contract terms where the parties expressly gave the court permission to do so in the agreement. Recently, the North Carolina Supreme Court overruled the Court of Appeals, reinstating the traditional rule.

Don’t Be a Target – Retirement Plan Fees and Expenses: A number of challenges are being initiated by the plaintiffs’ bar and U.S. Department of Labor investigators in the area of retirement plan asset charges and retirement plan expenses. Some hospitals and other employers have had to pay many millions of dollars to settle these cases. Retirement plan sponsors and other plan fiduciaries (e.g., investment or administrative committees) should take heed of this trend.

Statistical Sampling in FCA Case Under Review by 4th Circuit Court of Appeals: The issue of using statistical sampling in federal False Claims Act (FCA) cases has come to the fore in the 4th Circuit Court of Appeals, following a U.S. District Court decision denying its use in a case brought in South Carolina against a network of 24 nursing home providers (collectively, “Agape”).

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