Quiz 3

Front 1

Anti-Kickback Statute Wording

Back 1

It is a crime to knowingly and willfully solicit, receive, offer, or pay remuneration of any kind, directly or indirectly:
-For the referral of an individual to another for the purpose of supplying items or services that are covered by a Federal health care program; or
-For purchasing, leasing, ordering, or arranging for any good, facility, service, or item that is covered by a Federal health care program.
There are “safe harbors” which provide

Front 2

Anti-Kickback Statute Safe Harbours

Back 2

Space rental;
Equipment rental;
Sale of practice;
Referral services;
Warranties;
Discounts;

Front 3

Anti-Kickback Statute Penalty

Back 3

May include the imposition of a fine of up to $25,000, imprisonment of up to 5 years, or both

Front 4

Stark Law Wording

Back 4

A physician may not make a referral to an entity for designated health services for which payment may be made by Medicare or Medicaid if the physician or an immediate family member has a “financial relationship” with the entity providing the designated health service, unless one of the exceptions applies.

Front 5

Stark Law "Not's"

Back 5

Stark Law is not concerned with:
1) medical necessity.
2) quality of care.
3) price charged to payers for the services.

Stark Law is not a Civil Law.

Front 6

Stark Law Penalties

Back 6

- Denial of payment.

- Recoupment of amounts previously paid.

- Civil fines up to $15,000 / claim for improper bills

- Exclusion from Medicare and Medicaid.

- $100,000 civil fine for participation in scheme

- Basis for False Claims Act violation.

Front 7

Prerequisites for Stark Law Issues

Back 7

1) Financial Relationship
2) Physician Referral
3) Designated Health Service

Front 8

Designated Health Services

Back 8

- Lab
- PT
- OT
- Radiology
- Home Health

Front 9

False Claims Act Penalties

Back 9

- A civil penalty of [$5,500-$11,000], plus 3 times the amount of damages which the Government sustains.

-Exclusion from Medicare

Front 10

Qui Tam for Civil False Claims Act

Back 10

- “relators” bring suit on the government’s behalf
the penalties for violations are the same
- relators earn financial awards of 15-30% of the government’s recovery, plus costs
- huge incentives to bring suits

Front 11

NFIB v. Sibelius

Back 11

The suit:
- Challenged the constitutionality of ACA

Ps:
- Attorneys General and/or governors of 26 states
- National Federation of Independent Business ("NFIB“)

Ds:
- HHS, Treasury, DoL, and their Secretaries

Front 12

Federal powers implicated in NFIB v. Sibelius ruling

Back 12

1) Tax and Spend Clause
2) Interstate Commerce Clause
3) Necessary and Proper Clause
4) Direct Tax Clause

Front 13

Only three taxes are definitely known to be direct:

Back 13

(1) a capitation [tax ]
(2) a tax upon real property, and
(3) a tax upon personal property.

Front 14

Anti-Injunction Act

Back 14

AIA bars suits "for the purpose of restraining the assessment or collection of any tax."

Front 15

"Standing" Definition

Back 15

Legally protectable interest that individual has in dispute, entitling him to bring controversy before the court for relief

Front 16

To demonstrate standing, P must show that:

Back 16

(1) he has suffered, or imminently will suffer, an injury-in-fact;
(2) the injury is fairly traceable to [the statute]; and
(3) a favorable judgment is likely to redress the injury.

Front 17

How Does the Court Resolve: AIA?

Back 17

AIA says, nobody can sue to challenge the collection of a tax before the tax is actually collected; instead, you have to pay the tax, and then sue for a refund. This policy protects the government’s ability to secure revenues

Congress described the "[s]hared responsibility payment“ as a "penalty," not a "tax.“

Front 18

Mandate: Governmental Arguments

Back 18

Congress authorized under Commerce Clause.

Mandate is an exercise of Congress's taxing power.

Mandate is an exercise of Congress's taxing power

Front 19

What is insurance?

Back 19

Contract whereby 1 party undertakes to indemnify or guarantee another against loss by a specified contingency or peril

Front 20

What does “guaranteed issue” mean?

Back 20

Health plans must permit enrollment regardless of health status, age, sex, or other factors that might predict use of health services

Except in some states, guaranteed issue doesn't limit how much companies can charge

ACA: Premiums must be offered at an averaged rate that does not necessarily reflect actuarial risk

Front 21

What does “community rating” mean?

Back 21

- Within a given territory, health insurers must offer policies at same price to all, regardless of health status, and w/o medical underwriting
- Pure community rating: prohibits insurance rate variations based on demographic characteristics such as age or sex
- Adjusted (modified) community rating: allows rate variations based on such characteristics
- Risk rated insurance market: insurer calculates premium payable by potential policy holder on basis of various factors particular to him, such as risk a claim may arise, and value of any such claims during the term

Front 22

Constitutionality of ACA (Commerce Clause)

Back 22

- Mandate forces individuals into commerce precisely because they elected to refrain from commercial activity

- Under Commerce Clause, ACA is an unconstitutional attempt to expand Federal power

Front 23

Constitutionality of ACA (Necessary and Proper Clause)

Back 23

- "Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power"

- Necessary and Proper Clause does not save ACA

Front 24

Constitutionality of ACA (Power to Tax Clause)

Back 24

The Federal Government does not have the power to order people to buy health insurance.

The Federal Government does have the power to impose a tax on those without health insurance.

Front 25

The AIA does not bar the challenge to the individual mandate because the mandate is not a “tax” within the meaning of the AIA. But if the individual mandate is only constitutional as an exercise of Congress’s taxing power, then how can that be?

Back 25

Courts apply a different test to determine whether a law constitutes a tax for constitutional purposes (i.e., the taxing power) than they do to determine whether the same law constitutes a tax for statutory jurisdiction purposes (i.e., the AIA).

Front 26

“[T]he shared responsibility payment may for constitutional purposes be considered a tax, not a penalty" Why here and not Drexel Furniture?

Back 26

Drexel Furniture = ‘prohibitory’ financial punishment

Child Labor Tax Law is a regulation on businesses instead of a tax (penalty not a tax on employment of children)

Opposite true for individual mandate b/c.... Amount due << price of insurance. Mandate contains no scienter requirement.

Front 27

Stienter Definition

Back 27

Guilty knowledge sufficient to charge a person with the consequences of her acts

Front 28

Spending Clause

Back 28

Congress can condition awards of $ upon state regulation c/w national goals, but state must have a legitimate choice

Front 29

Why Medicaid Unconstitutional?

Back 29

Under Spending Clause.

“Instead of simply refusing to grant the new funds to States that will not accept the new conditions, Congress has also threatened to withhold those States' existing Medicaid funds…This threat serves no purpose other than to force unwilling States to sign up for the dramatic expansion in health care coverage effected by the Act.”

Front 30

Rational Basis Test

Back 30

- Challenged law must be rationally related to a legitimate government interest

- Most lenient form of judicial review

Front 31

Functions of Health Information

Back 31

Clinical care
Timeliness
Coding, billing
Documenting medical necessity

Front 32

MSV’s Form Letter for Retiring Doc

Back 32

The contents of your medical chart are confidential and can be TRANSFERRED to another doctor ONLY W YOUR PERMISSION. If you plan to see a physician, please sign the attached AUTHORIZATION form and return it to my office as soon as possible. Your RECORDS WILL CONTINUE TO BE ON FILE in my former office.

Front 33

Medicare Requirements for Health Record System

Back 33

1) author identification
2) record maintenance

Front 34

Records Retention (HIPPA)

Back 34

No medical record retention requirements

Front 35

Records Retention (CMS)

Back 35

Records of providers submitting cost reports... period of ≥ 5 YEARS

Medicare managed care program providers... 10 YEARS

Front 36

Records Retention (False Claims Act)

Back 36

Up to 7 YEARS post-incident

Front 37

Statute of Limitations: When does it begin?

Back 37

- Virginia: date of last visit for problem sued on
- In discovery rule states, retention period harder to gauge... when reasonable person discovers injury.

Front 38

A minor should be deemed an adult for the purposes of consenting to...

Back 38

1. Medical or health services needed to determine the presence of or to treat venereal disease or any infectious or contagious disease that the State Board of Health requires to be reported;
2. Medical or health services required in case of birth control, pregnancy or family planning except for the purposes of sexual sterilization;
3. Medical or health services needed in the case of outpatient care, treatment or rehabilitation for substance abuse as defined in §37.2-100; or
4. Medical or health services needed in the case of outpatient care, treatment or rehabilitation for mental illness or emotional disturbance.

Front 39

Discarding Old Records

Back 39

- Opportunity for patient to claim records
- Incarceration or shredding

Front 40

EMR Issues

Back 40

- Confidentiality
- Durability
- Authentication
- Compliance

Front 41

Rules for Incident Reports

Back 41

- Write as if we know the plaintiff will see
- Use check boxes
- Make no reference in chart.

Instruct staff:
- Avoid finger-pointing
- A chart is not a brief
- No ectopic charting

Front 42

Red Flag Rule (Med ID Theft)

Back 42

Creditors need written ID theft prevention program

Front 43

Right of Privacy

Back 43

1) Appropriation: Pirating P’s identity
2) Intrusion: Prying, eavesdropping, etc.
3) Public disclosure of private facts: Movie disclosing history, identity of reformed prostitute and former murder defendant, e.g.
4) False light: unauthorized use of name on a petition, e.g.