OIG Issues Modified Position on Stark Self Disclosure Protocol

Wednesday, 25 March 2009
Yesterday the Office of the Inspector General (OIG) issued an Open Letter to Health Care Providers making several changes to the Self-Dislcosure Protocol relating to the physician self referral law or Stark Law.

The OIG indicates in the letter that they are no longer going to accept under the self disclosure protocol pure Stark related liability issues. Instead the disclosure must have some type of colorable anti-kickback violation associated with the disclosure. Also, the OIG has established a new floor of $50,000 for settlement of kickback related submissions.

The letter indicates that the OIG is realigning its resources to go after larger violators of the Stark and anti-kickback laws. Inferences can be drawn from the letter that the OIG is not concerned with pure Stark related violations - but the OIG adds caution by stating that providers are not to draw any inferences about the Government's approach to enforcement of the physician self-referral law."

For more information check out the OIG's fraud prevention and detection resources.

Below is a complete copy of the text of the March 24, 2009 Open Letter to Health Care Providers:

An Open Letter to Health Care Providers
March 24, 2009


This Open Letter refines the OIG’s Self-Disclosure Protocol (SDP) to build upon the initiative announced in my April 24, 2006, Open Letter. The 2006 Open Letter promoted the use of the SDP to resolve matters giving rise to civil monetary penalty (CMP) liability under both the anti-kickback statute and the physician self-referral (“Stark”) law. As part of our ongoing efforts to evaluate and prioritize our work, these refinements aim to focus our resources on kickbacks intended to induce or reward a physician’s referrals. Kickbacks pose a serious risk to the integrity of the health care system, and deterring kickbacks remains a high priority for OIG.


To more effectively fulfill our mission and allocate our resources, we are narrowing the SDP’s scope regarding the physician self-referral law. OIG will no longer accept disclosure of a matter that involves only liability under the physician self-referral law in the absence of a colorable anti-kickback statute violation. We will continue to accept providers into the SDP when the disclosed conduct involves colorable violations of the anti-kickback statute, whether or not it also involves colorable violations of the physician self-referral law. Although we are narrowing the scope of the SDP for resources purposes, we urge providers not to draw any inferences about the Government’s approach to enforcement of the physician self-referral law.
To better allocate provider and OIG resources in addressing kickback issues through the SDP, we are also establishing a minimum settlement amount. For kickback-related submissions accepted into the SDP following the date of this letter, we will require a minimum $50,000 settlement amount to resolve the matter. This minimum settlement amount is consistent with OIG’s statutory authority to impose a penalty of up to $50,000 for each kickback and an assessment of up to three times the total remuneration. See 42 U.S.C. § 1320a-7a(a)(7). We will continue to analyze the facts and circumstances of each disclosure to determine the appropriate settlement amount consistent with our practice, stated in the 2006 Open Letter, of generally resolving the matter near the lower end of the damages continuum, i.e., a multiplier of the value of the financial benefit conferred.

These refinements to OIG’s SDP are part of our ongoing efforts to develop the SDP as an efficient and fair mechanism for providers to work with OIG collaboratively. Further information about our SDP can be found at: http://oig.hhs.gov/fraud/selfdisclosure.asp. I look forward to continuing our joint efforts to promote compliance and protect the Federal health care programs and their beneficiaries.


Sincerely,
/Daniel R. Levinson/
Daniel R. Levinson Inspector General

David Blumenthal, MD Named New National Coordinator for Health Information Technology

Friday, 20 March 2009
Various news sources report today that David Blumenthal, MD, former Harvard Medical School professor, has been selected by the Obama administration to lead the Office of the National Coordinator for Health Information Technology (ONC). HHS press release provides additional detail on Dr. Blumenthal.

Thanks to John Halamka for the tip who writes about Dr. Blumenthal in his post, "Hail to the IT Chief."

Best Lawyers' 2009 West Virginia Personal Injury Litigator of the Year

Thursday, 19 March 2009
Congratulations to my partner, Tom Flaherty, who was selected as Best Lawyers' 2009 West Virginia Litigator of the Year. A well deserved honor.

Tom is a straightforward and hardworking defense litigator who does an incredible job representing the best interests of his clients.

This past year he was involved in various high profile and important cases, including successfully leading a team of FSB lawyers to secure a settlement in the case against former West Virginia University football coach, Rich Rodriguez.



In all, seven Flaherty, Sensabaugh & Bonasso, PLLC lawyers were selected by their peers as 2009 Best Lawyers in America. See the complete list of those honored in my prior post, FSB: Best Lawyers in America 2009.

Following is Best Lawyers' press release honoring Tom:
Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Thomas V. Flaherty as the “West Virginia Best Lawyers Personal Injury Litigator of the Year” for 2009.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities.

These specialties are Banking Law, Bet-the-Company Litigation, Corporate Law, Family Law, Personal Injury Litigation, and Real Estate Law and only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 15th edition of
The Best Lawyers in America (2009), is based on more than 2.5 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Steven Naifeh, Managing Editor of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Thomas V. Flaherty on being selected as the ‘West Virginia
Best Lawyers Personal Injury Litigator of the Year’ for 2009.”

ARRA Timelines

Monday, 16 March 2009
John Halamka at Life as a Healthcare CIO provides a good overview of the timeline and deadlines for the health information technology portions under the American Recovery and Reinvestment Act of 2009 (ARRA).

UPDATE (3/17/09): John Halamka has also added a summary of Timeline for ARRA Privacy Provisions which was based on work by Markle Foundation and the Center for Democracy and Technology.

Hospitals: The State of Social Media Use

Ed Bennett at Found In Cache does a wonderful job of giving us a statistical glimpse of the increasing (skyrocketing) use of social media tools (YouTube, Facebook and Twitter) by hospitals across the country.

His post, "Hospital Socia Media Stats," gives some interesting statistics into the adoption and growth of social media. To the right is a chart that he includes in the post. Check out the link for more interesting information.

For those of you who might not already know - a few months ago Ed started a tracking chart showing the adoption of social media by hospitals.

Health Affairs: Take Two Aspirin and Tweet Me . . .

Sunday, 15 March 2009
The March/April 2009 Issue of Health Affairs concentrates on the topic of Stimulating Health Information Technology. Although I am not a subscriber to Health Affairs the issue looks to have some great articles on health information technology and the current changes in the field.

Included in the issues is a report from the field article by Carleen Hawn titled, Take Two Aspirin And Tweet Me In The Morning: How Twitter, Facebook, And Other Social Media Are Reshaping Health Care (pdf version). I had the opportunity to talk with Carleen about some of the interesting legal issues that are starting to appear as a result of the intersection of social media and health care. I was pleasantly surprised to see that she used some of our discussion in the article.

The article focuses on a number of health professionals who are on the cutting edge of integrating social media and health 2.0 type concepts into their health care practice and thinking about how social media can have a positive impact on traditional health care industry models.

Like others, I found it ironic when Health Affairs first issued the article online that they only made it available behind the firewall (subscription based). An article on social media, openness, transparency, etc. and yet hid it in an old world way. Well, it appears that the editor of Health Affairs does listen to the wisdom of the health crowd because a note is now listed below the article stating "EDITOR'S CHOICE - FREE ACCESS." Thanks to the Health Affairs staff for recognizing the value of providing free access to the article.

If you are interested in the article you might find interesting what others are saying about the article -- including e-Patient Dave, Jay Parkinson, MD, Ted Eytan, MD and others.

EvriChart: A West Virginia based health information technology company

Today's Charleston Gazette features an article by Eric Eyre on a health information technology company located in White Sulphur Springs, West Virginia. EvriChart relocated to West Virginia four years ago and focuses its business on managing health information for hospitals, physicians and other health care providers. John King, COO of the company is a native West Virginia who grew up in Greenbrier County.

As a health lawyers who focuses on issues around health information technology I was surprised to read the article and learn about this West Virginia based company. I had not heard of them before. I plan to reach out to them and see how we might get them involved in the West Virginia Health Information Network and other West Virginia based health technology efforts. 

This company is another great example of creative West Virginians coming home to West Virginia to create a new economy in our state.

According to EvriChart's website, the company offers a variety of services to health care HIM departments. They have a solution called EvriChart Clear that create a documented, customized medical records plan for the retention and destruction of your patient files, including:
  • Identifies all records eligible for destruction
  • Provides full documentation of all records eligible for destruction
  • Verifies which records should be retained
  • Provides a searchable file level index for retained records
  • Prevents costly errors with stored records
  • Provides ongoing management for future destruction
  • Provides web-based request and retrieval of retained records
  • Provides a complete management plan
  • Populates your EHR on-demand

The company also provide web-based access to the health information through its product called EvriChart Client Portal.