John T. Brennan, Jr.

1

Fraud and Abuse in Health Care Reform  Will You
Know It When They See It?

• John T. Brennan, Jr.
• Crowell Moring LLP
• Robert HomchickDavis Wright Tremaine LLP
• Vicki L. Robinson
• Chief, Industry Guidance Branch
• Office of Inspector General
• U.S. Department of Health and Human Services

2
Disclaimer

• Nothing in this presentation reflects the
  position (official or unofficial) of Office of
  the Inspector General of HHS, Davis Wright
  Tremaine, or Crowell Moring
• This presentation is based on the personal
  observations and opinions of the speakers
• Typical Lawyer blah, blah, blah

3
Key Themes

• More Rigorous Gatekeeping
• Stronger Health Care Fraud Statutes and Penalties
• Enhanced Investigative Tools for Government
• Transparency and Compliance
• New Fraud and Abuse Risks (Quality,
  Public/Private Intersect, New Payment Models)

4
More Rigorous Gatekeeping

• Provider screening
• What will it take to get a provider number?
• Expanded oversight of new providers
• Providers in the cross-hairs DME, home health,
  SNFs

5
Stronger Health Care Fraud Statutes and Penalties

• Anti-kickback Statute amendments
• Stark Law amendments and self-disclosure  
• False Claims Act amendments
• What isnt a claim?
• Whats left of the public disclosure bar?
• Repayment obligations and FCA implications
• New administrative penalties (CMPs/exclusions)
• New money for enforcement and prevention 

6
Enhanced Investigative Tools for Government

• New access to information from providers
• New subpoena authorities
• Payment suspension

7
Transparency and Compliance

• Mandatory compliance plans
• Sunshine Act and related transparency/disclosure
  provisions

8
New Fraud and Abuse Risks

• Quality as a risk area (i.e., increased linkage
  of quality to payment)
• New Federally funded programs/private sector
  intersections with Federal dollars

9
New Fraud and Abuse Risks (cont)

• Implications for new payment and delivery models
  (ACOs/medical homes/bundled payments)
• New fraud risks e.g., cherry picking, lemon
  dropping, stinting
• Is there sufficient flexibility under the
  existing fraud and abuse laws?
• Waiver provisions in CMS demos
• Challenges moving forward