04-14-2021 Council Packet - Laserfiche WebLink

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15 government program is not a source of payment. Section 144.6521 of the Minnesota Statutes requires any health care provider with a financial or economic interest in, or an employment or contractual arrangement that limits referral options with, a hospital, outpatient surgical center, or diagnostic imaging facility, or an affiliate, from referring patients to that entity without a written disclosure of such economic interest. While the Corporation does not believe that it is involved in any activities that pose a risk of sanctions under the Provider Conflict of Interest Law, there can be no assurance that such challenge or investigation will not occur in the future. Federal Anti-Kickback Laws. The Federal Medicare/Medicaid Anti-Fraud and Abuse Amendments to the Social Security Act (the “Anti-Kickback Law”) make it a criminal felony offense (subject to certain exceptions) to knowingly or willfully offer, pay, solicit or receive, remuneration in order to induce business (among other prohibitions) for which reimbursement may be provided under a Federal health care programs. The arrangements prohibited under the Anti-Kickback Law can involve hospitals, physicians and other health care providers such as nursing facilities. Prohibited arrangements may include joint ventures between providers, space and equipment rentals, purchases of physician practices, physician recruiting programs and management and personal services contracts. In addition to criminal penalties, violations of the Anti-Kickback Law can lead to FCA liability (as defined below) and exclusion from the Federal health care programs for not less than five years. Exclusion of the Project from Federal health care programs would have a material adverse impact on the operations and financial condition of the Project. As of January 2021, the DHHS Office of Inspector General finalized a new rule regarding the Anti-Kickback Law. The new final rule includes three new safe harbors related to value-based healthcare arrangements. As a result of this final rule, the Office of Inspector General will not impose Anti-Kickback Law-related penalties on entities engaged in compliant care coordination arrangements, value-based arrangements with substantial downside financial risk or value-based arrangements with full financial risk borne by providers. New safe harbors also address new patient engagement models, advanced technology and ACO beneficiary incentives. Finally, the final rule revised the applicability of existing Anti-Kickback Law safe harbors. The final rule constitutes a substantial overhaul to existing Anti-Kickback Law safe harbor regulations. It is not yet known the extent to which the final rule, and resultant implementation, will impact reimbursement arrangements applicable to the Project. False Claims Act. The federal False Claims Act (“FCA”) prohibits (1) knowingly submitting a false or fraudulent claim for payment to the United States; (2) knowingly making, using or causing to be made or used a false record or statement to obtain payment from the United States; or (3) engaging in a conspiracy to defraud the federal government by getting a false or fraudulent claim allowed or paid. This statute is violated if a person acts with actual knowledge, or in deliberate ignorance or reckless disregard of the falsity of the claim. Penalties under the FCA include fines per violation, plus treble damages, potentially resulting in penalties aggregating millions of dollars for ongoing claims submission errors. Anyone who knowingly makes a false statement or representation in any claim to the Medicare or Medicaid programs may be subject to criminal penalties, including fines and imprisonment. The FCA includes “whistleblower” provisions under which a person who believes that someone is violating the FCA can file a sealed complaint against the alleged violator in the name of the United States government. The nature of the allegations is not revealed to the target during the time the United States Justice Department investigates the complaint and determines whether to join in the suit. If the Justice Department decides not to join in the suit, the original whistleblower nonetheless can proceed. If the case is successful, the whistleblower is entitled to between 15% and 30% of the proceeds of any fines or damages paid. Although the FCA has been in effect for many years, in recent years there has been a significant increase in the number of whistleblower allegations filed under the FCA, a large number of which involve the health care industry. In 2009, former President Obama signed into law the Fraud Enforcement Recovery Act which authorized increased funding for fraud investigation and prosecution, and expanded the scope of the FCA to impose liability for false claims with more remote connections to the federal government. Billing and Reimbursement Practices. Health care providers, including nursing facilities, also are subject to criminal, civil and exclusionary penalties for violating billing and reimbursement standards under state and federal law. In recent years, state and federal enforcement authorities, in addition to whistleblowers, have investigated and prosecuted providers for submitting false claims to Medicare or Medicaid for services not rendered or for misrepresenting the level or necessity of services actually rendered in order to obtain a higher level of reimbursement. Violations of billing and reimbursement standards can lead to, but is not limited to, FCA liability and a risk of large Medicare/Medicaid repayment obligations.