Last week, the 11th Circuit Court of Appeals ruled that the state based claims against United Healthcare (UHC) were not precluded by the previous dismissal of the national class-action RICO lawsuit. This is a significant victory for the state medical societies, including MSNJ, who are parties in the underlying national class-action lawsuit.
By way of background, the underlying class-action lawsuit alleged that UHC’s business practices, including bundling, down-coding, and proprietary edits, were unfair business practices, and that UHC had participated in a conspiracy with other defendants to deprive physicians of monies due, and that the defendants violated the Racketeer Influenced & Corrupt Organization Act (RICO). Many state based causes of action were filed and consolidated with the pending national class-action suit. The lower federal court dismissed the RICO claims and that decision was upheld on appeal. A lower federal court also dismissed the state-based cases, but this decision was also appealed. Now, the federal appellate court has ruled that those state-based claims may go forward.
MSNJ believes that these actions may address the continuing unfair business practices that continue. It should be noted that Aetna, CIGNA, Healthet, and the Blue Cross Blue Shield companies all agreed to settlement terms that have resulted in more fair business practice for physicians. UHC did not settle and at least some of the claims will go forward. MSNJ will keep members apprised of developments in this case.
Physicians are beginning to feel the effects of the healthcare reform law enacted in March of this year. For example, the PECOS registration requirement is driven by a CMS Interim Final Rule necessitated by the new law. (See the article below in Medicare.) At the same time, the law spawns a number of new requirements and rulemaking initiatives.
The intent of these laws was to prevent activities that undermine the financial integrity of Medicare, Medicaid, and state CHIP programs. Some new requirements follow:
- Physicians relying on the in-office ancillary services exception to the prohibition on physician self-referral must inform patients in writing that they may obtain services elsewhere under certain circumstances.
- Physicians must file Medicare claims within one calendar year of the date of service.
- Physicians certifying eligibility for home health services and writing orders for durable medical equipment must comply with new requirements.
- Physicians who believe that they may have received an overpayment from Medicare or Medicaid must report and return the payment within 60 days.
- The anti-kickback statute not longer requires proof of intent and also makes a violation a fraudulent claim under the False Claims Act.
- Similarly, the mail fraud statute no longer requires proof of actual knowledge of the healthcare fraud statute or specific intent to violate.
Physicians are urged to read the summary of these provision prepared by the American Medical Association. Practices should take steps to comply and to consult with legal counsel as necessary to avoid potential civil and criminal liability.
MSNJ is concerned about the interpretation of many of these new requirements and will work with the AMA to obtain clarification on how the Government intends to implement many of the provisions.