In a recently published proposed rule, CMS and HHS propose to substantially increase financial rewards available to individuals who report information regarding individuals or entities engaging in acts or conduct that are subject to Medicare sanctions.  The existing reward incentive program offers 10% of the amount of overpayment recovered or $1000 whichever is less.  Under the proposed rule, the reward could take a substantial jump up to 15% of $66,000,000, equaling $9,900,000.


CMS explains that under the existing reward incentive program which has been in effect since July 1998, only 18 rewards have been paid in a total amount of less than $16,000 and less than $3.5 million in overpayments have been collected.  It notes that after the IRS increased the rewards available under its rewards program in 2006, it has collected almost $1.6 billion and paid approximately $193 million in rewards.  CMS also tips its hat to the success of the whistle blower provisions of the False Claims Act, noting that rewards under this Act range from 15% to 30% of amounts recovered.


CMS estimates that with the proposed rule in place annual recoveries will increase by $24.5 million.  There will, however, be no whistle blower double dipping.  While conduct may entitle a whistle blower to recover under both the False Claims Act and the Reward Incentive Program, whistle blowers are going to have to pick only one whistle.  Regardless of which whistle is chosen, the bottom line is that with this new rule more individuals are going to be looking much harder at the conduct of providers and entities that seek payment for services and supplies from Medicare.


As part of its on-going quarterly lunch time webinar series, the Ogden Murphy Wallace Healthcare Practice Group will provide a presentation on self-disclosure options and avoidance of state and federal false claims act liability in its June 4, 2013 webinar.  If you have questions regarding these updated protocols or self-disclosure and overpayments in general please contact Greg Montgomery.


EHR Incentive Program Timeline Tool

CMS has recently launched a new tool which enables eligible professionals to determine which year they should meet each stage of meaningful use and the amount of incentive dollars available for the eligible professional.  This tool is useful in light of the changes to the EHR Incentive Program timeline made in the Stage 2 Final Rules.  The tool is applicable for eligible professionals applying for either the Medicare or Medicaid EHR Incentive Program.  To access the tool click here.

If you have questions regarding the EHR Incentive Program please contact Elana Zana.

Supervision Levels for Certain Hospital Outpatient Therapeutic Services

On September 24, 2012, CMS published its preliminary decisions regarding recommendations of the Hospital Outpatient Payment Panel (“Panel”) on supervision levels for certain hospital outpatient therapeutic services.  CMS’s review of the Panel’s recommendations stems from a process CMS created in the final Hospital Outpatient Prospective Payment System Rules for Calendar Year 2012 (“CY2012 OPPS Rule”) in which CMS charged the Panel with recommending to CMS the appropriate level of supervision (i.e., general, direct, or personal supervision) for individual hospital outpatient therapeutic services.  CMS directed the Panel to recommend supervision levels for particular services that will “ensure an appropriate level of quality and safety for delivery of a given services.”

In its first efforts since this process was put in place, the Panel recommended that CMS change the supervision level currently required for 28 hospital outpatient therapeutic services.  Of those, CMS accepted the Panel’s recommendation to change the requirements for 15 services from direct supervision to general supervision because those services do not typically require the immediate availability of the supervising physician (or other permitted non-physician practitioners).  CMS declined to accept the Panel’s recommendation to change the supervision level for the other 13 services, choosing to maintain their current requirement of direct supervision because the service either involves assessment by a physician, or there is a significant potential for patient complications or reactions which would require the supervising physician/non-physician practitioner to be immediately available.  CMS’s preliminary decisions and the specific services considered can be found here.

Pursuant to the process CMS established in the CY2012 Final Rule, CMS’s preliminary decisions are subject to a 30-day public review and comment period.  The deadline for submitting comments on these services is October 24, 2012.  After considering any additional comments, CMS will post its final decisions on the services which will be effective on January 1, 2013.  To ensure compliance with the supervision levels required for reimbursement, hospitals should review CMS’s preliminary decisions on the Panel’s recommendation, and then take note of CMS’ final decisions when those are published.