Suspense for AHLA
Despite late news, reform law a popular subject
The biggest news at the American Health Lawyers Association annual meeting took place almost exactly 24 hours after the Chicago conference concluded on June 27, as the U.S. Supreme Court on June 28 upheld the most controversial aspects of the much-maligned healthcare reform law.
The lack of major national breaking news on the hottest topic going in healthcare— reform—during the conference left the 1,400 people who attended the national conference to speculate about what might take place and expound on what should happen.
Many observers, such as former CMS Administrator Dr. Donald Berwick, noted that healthcare providers were likely to move ahead with essential delivery system reforms regardless of what happened at the Supreme Court.
“What the Supreme Court does isn’t entirely irrelevant. It will affect the 30 million people who would get coverage. But it’s not the whole game here,” Berwick told association members during a June 25 keynote address. “America can have healthcare that works, if it gets disciplined about what has to happen.”
But in addition to several events specifically scheduled for deep analysis of the decision that didn’t happen in time, references to the law cropped up in many of the presentations throughout the week.
Healthcare lawyer Robert Homchick of Davis Wright Tremaine noted in a session on the ethics of advising clients on avoiding fraud and abuse that he would consider it a “silver lining” if the court’s ruling had the effect of eliminating the 60-day repayment rule that many healthcare providers have dreaded.
The CMS is working to implement a rule that would apply False Claims Act penalties to
providers that withhold Medicare overpayments for 60 days after they should have figured out the excess payments were received. More than 120 medical societies and interest groups representing virtually all community hospitals in America have lobbied to change the regulation.
George Breen, a healthcare attorney with Epstein Becker & Green, noted in a session on individual executive accountability that the reform law called on the U.S. Sentencing Commission to increase the severity of healthcare fraud penalties by stipulating that the aggregate dollar amount of false claims to government health programs is now considered evidence of the intended loss to the government by the offender.
The reform law also added several new offenses that can get providers and executives excluded from Medicare, including false applications and false statements to the program, as well as violations of the 60-day repayment rule, Breen noted.
Richard Feinstein, director of the Competition Bureau for the Federal Trade Commission, noted that the high court did hand down a significant piece of healthcare news during the conference, by granting a petition for oral arguments in the FTC’s ongoing efforts to force Phoebe Putney Health System to unwind its $198 million acquisition of Palmyra Medical Center in Albany, Ga.
Feinstein said the Phoebe Putney case was one potential example of the bureau’s plans to not just stay busy in healthcare, but to “nudge the needle” in existing case law to make it more favorable for enforcement actions.