Featured speakers: Eric Gold, Chief, Massachusetts Attorney General’s Office Healthcare Division; Jennifer Goldstein, Managing Attorney, Medicaid Fraud Division, Massachusetts Attorney General’s Office; and Steven Sharobem, Assistant US Attorney, District of Massachusetts. Moderated by David S. Schumacher, Healthcare Partner, Hooper, Lundy & Bookman.
Gold, Goldstein, and Sharobem addressed the Massachusetts Health and Hospital Association’s Healthcare Legal Compliance forum in December 2022. This recap of their remarks looks at current enforcement priorities, their view on good faith efforts, opioids, and privacy. To access the full session recording, please contact the Massachusetts Health and Hospital Association.
Focus Areas for the US Attorney’s Office in Massachusetts
Sharobem said that two types of issues his team is actively investigating now are Stark Law violations and Turbocharging.
He reminded the audience that Stark is strict liability and that intent isn’t considered.
“Did it happen or did it not happen.”- Steven Sharobem, Assistant US Attorney, District of Massachusetts
Physician compensation plans get looked at in this context. High volume and high value bonuses get extra scrutiny. He said this doesn’t mean something is actually incorrect, but they look more closely when the bonus is dependent on volume or hitting a certain operating margin.
Good faith efforts can still help an organization in strict liability cases like Stark Law violations. There is an opportunity to work with the Office of the Investigator General (OIG) to determine how to resolve the matter sensibly. This is especially true when Covid has affected diligence in administration. His office considers and evaluates the circumstances when an organization cooperates.
Sharobem says his office is seeing more turbocharging recently. Turbocharging is the practice of increasing the costs they list on your charge masters to account for inflation. The government is watching these adjustments to make sure they are appropriate for federally reimbursed services. He suggests looking at your outlier payments to be sure they are warranted, and returning the money if they are not warranted.
Finally, his office is giving more attention to 340b programs to ensure this low-income benefit is being used appropriately. They are also looking at speaker programs from drug makers to be sure there aren’t any antikickback violations.
Priorities for Massachusetts’s Medicaid Fraud Division
Goldstein and her team focus on provider fraud, waste and abuse allegations and claims of abuse and neglect in nursing facilities and home health setting. They also handle national whistleblower cases.
One significant trend she has noticed is the illegal prescribing of opioids. Her office is investigating and prosecuting physicians who are overprescribing opioids and controlled substance without a legitimate medical purpose. Her team sees diversion of drugs in exchange money. One red flag is when a physician repeatedly writes a high volume of opioids despite major red flags for addiction and overdose risk.
Goldstein’s office is also working to be sure nursing facilities are protecting residents from Covid. In one example, the team brought a civil complaint against Seaview Retreat for failing to implement basic Covid procedures. That includes failing to train staff, conduct surveillance testing, or to put residents in cohorts based on their Covid status. These failures resulted in patients contracting and in one instance dying of Covid-19.
She echoed Sharobem in saying that cooperation and good faith efforts factor into her analysis of the severity of a matter- particularly in the midst of a once-in-a-lifetime event like a pandemic.
Enforcement Priorities for Massachusetts Attorney General’s Office
Gold leads an office of 20 staff, working on enforcement, policy, consumer advocacy, and assistance. He offers voluntary mediation to consumers, providers, and payers that have concerns about their bills.
The office also provides community benefits and healthcare cost trend examinations. Their reports help hospitals and HMOs to plan for unmet needs in the community.
In terms of law enforcement, he says he is charged with enforcing consumer protection law in the healthcare arena. If a healthcare provider or other entity is suspected of unfair practices, his office handles that. He doesn’t overlap with the other agencies on the panel or in the AG’s office, but he may work with them.
For instance, he works with Massachusetts’ new Data Privacy and Security Division on healthcare data privacy cases. They investigated a home health company that was subject to repeated phishing attacks. Emails came to the employees asking them to click on links and provide information. Some employees complied, and hackers got a lot of patient information. Four thousand Massachusetts residents had their data comprised. He said the company was aware that its cybersecurity needed improvement but hadn’t taken proper steps to secure its data. It didn’t have good enough training, it didn’t use multifactor authentication, and its systems failed to meet the standard for security. The institution paid a fine and was required to fix its cybersecurity protocols.
YouCompli sponsored MHA’s 2022 Healthcare Legal Compliance Forum. Please contact the Massachusetts Health and Hospital Association to access the full session recording.
Recaps From The 2022 Massachusetts Health and Hospital Association’s Healthcare Legal Compliance Forum
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