Medicare Shared Savings Program (MSSP) Track to Incentivize Assumption of Risk

On December 20, 2016, CMS announced the formation of a new participation track under the Medicare Shared Savings Program (MSSP) – the Medicare ACO Track 1+ Model – which will start in 2018. Accountable care organizations (ACOs) participating in this model will agree to accept more limited downside risk than ACOs participating in Track 2 or Track 3 of the MSSP, and will be eligible to share up to 50% of savings from care provided to a prospectively assigned beneficiary population. View Full Post
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Fourth Circuit Declines to Rule On the Appropriateness of Statistical Sampling in FCA Cases

As expected after oral arguments, the Fourth Circuit Court of Appeals declined to decide whether parties may use statistical sampling to prove False Claims Act liability in United States ex rel. Michaels v. Agape Senior Community, Inc., Nos. 15-2145 and 15-2147, by finding that the issue was fact-driven and thus not appropriate for interlocutory review.  View Full Post
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CMS’s Draft 2018 Call Letter: Minor Updates, but Largely a Continuation of Current Policies

By | Health Law & Policy Matters | February 15, 2017
Earlier this month, the Centers for Medicare & Medicaid Services (CMS) released its 2018 Medicare Advantage and Part D Advance Notice and Draft Call Letter (“Draft Call Letter”).  For the majority of the letter’s provisions, CMS is proposing to continue its current course of action and is refraining from introducing new policies.   View Full Post
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“Implied Certification” Theory Allowed Under the False Claims Act

By | New York Health Law | February 14, 2017
The Supreme Court recently allowed liability through the implied certification theory of the False Claims Act (FCA), which was raised and upheld in Universal Health Services, Inc. v. United States ex rel. Escobar. The decision provided for a new applicable standard and resolved the split among circuit courts on whether to recognize the theory. View Full Post
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Will Verdict Encourage Counsel to Become Healthcare Relators?

By | Triage | February 14, 2017
Last week a jury awarded millions of dollars to a former General Counsel who brought a whistleblower retaliation lawsuit against a life sciences company. (Verdict form here.) Does that verdict warn the health care industry to brace for a wave of False Claims Act (FCA) litigation brought by in house counsel who have turned relators?  View Full Post
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Another Court Agrees That a Difference of Opinion On Medical Necessity is Insufficient to Show Falsity Under the False Claims Act

Last month, the U.S. District Court for the District of Utah joined the AseraCare court and others in finding that a relator cannot successfully allege violations of the False Claims Act (“FCA”) based on a purported lack of medical necessity unless there is an objective standard articulated by Medicare.  View Full Post
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New Jersey Finds Jury Waiver Too Ambiguous to Encompass Whistleblower Claims

By | Health Employment And Labor | February 14, 2017
New Jersey Finds Jury Waiver Too Ambiguous to Encompass Whistleblower Claims Denise DadikaNew Jersey’s Appellate Division recently held that a jury waiver provision was unenforceable as to a former employee’s statutory employment claims. In Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3, __ N.J. Super. __ (Feb. 6, 2017), plaintiff signed an employment agreement with his then-employer that provided: HPS and RM [employee] irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement. View Full Post
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One Equity Partners Closes Sixth Private Equity Fund at $1.65 Billion

By | The Healthcare Investor | February 13, 2017
One Equity Partners Closes Sixth Private Equity Fund at $1.65 Billion One Equity Partners has announced it completed fundraising for its sixth PE fund, One Equity Partners VI. The fund has total capital commitments of $1.65 billion, which the firm says surpassed its target. One Equity Partners, with U.S. offices in New York and Chicago, is a middle-market PE firm focused on making investments in the industrial, healthcare and technology sectors in North America and Europe. View Full Post
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New Local Transportation Safe Harbor to the Anti-Kickback Statute and Beneficiary Inducement Statute

By | Healthcare Law Insights | February 13, 2017
New Local Transportation Safe Harbor to the Anti-Kickback Statute and Beneficiary Inducement Statute Childrens_Hopsital_Shuttle_1xThe Department of Health and Human Services Office of Inspector General (OIG) recently implemented a new safe harbor to the federal Anti-Kickback Statute and beneficiary inducement statute, which went into effect on January 6, 2017.1 The new safe harbor, which was published by the OIG in a final rule dated December 7, 2016,2 protects the provision of free or discounted local transportation by eligible entities to Medicare or Medicaid beneficiaries, provided that certain conditions are met. View Full Post
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