There has been a fair amount of excitement, and fear, about several bills currently before Congress. However, you may want to temper your enthusiasm (or lower your anxiety), because the odds that any of them will become law are rather remote.
At the beginning of August, the so-called Fairness in Healthcare Claims, Guidance and Investigations Act, HR 2931, was proposed. This bill would create a number of necessary conditions before a False Claims Act case can proceed. For example, the U.S. Attorney General would need to certify that he or she had reviewed all of the regulations and instructions issued by the relevant government agency, as well as any communications between the healthcare entity submitting the claim(s) and the government and its contractors. A False Claims Act case thereafter could proceed only if the government certified that all of that communication was “unambiguous,” thus rendering the claims false. The bill also would require the government to establish, via regulation, a materiality threshold; this threshold would be the percentage of the total dollars received by the healthcare organization from the government that are in issue in any given case. Unless the size of the dispute exceeds the threshold, the False Claims Act would not apply. The bill offers no sense of what that specific threshold might be.
The bill also would increase the burden of proof the government has under the False Claims Act. Right now, the government prevails if the “preponderance of evidence” supports its position. The bill would change that definition to indicate merely the presence of “clear and convincing evidence.” To put this in practical terms, if you think of a scale, a “preponderance of the evidence” means that one side is just slightly above the other. “Clear and convincing evidence” requires one side of the scale to be much higher than the other. (The other common standard in U.S. law is “beyond a reasonable doubt,” which is ostensibly higher still than “clear and convincing.”)
While this bill certainly would be welcomed by the healthcare community, don’t pop the champagne just yet. Even before the current gridlock in Congress took hold, it was rare for many types of bills to become law, but in the current climate, only the very lucky proposal will become law. The website www.govtrack.us allows you to review the text of proposed bills and receive email alerts of the bills’ statuses. The site also uses an algorithm to predict the odds that a bill will pass. Like any prediction, the algorithm should be taken with a grain of salt; the model bases its predictions off of things like each bill’s number of sponsors, whether the sponsors are in the majority or minority party, and whether the sponsors are on the committee hearing the bill – there isn’t any consideration of the actual substance of the bill’s language. Bills with sponsorship similar to the Fairness in Health Care Claims Act make it out of committee about 18 percent of the time, but only 3 percent of such proposed bills become law. In short, the proposal faces long odds.
A second bill, HR 2914, the Promoting Integrity in Medicare Act of 2013, would eliminate the in-office ancillary exception to Stark for diagnostic imaging, laboratory analysis, radiation oncology, and physical therapy. Because its sponsor is a member of the minority party and the bill has few co-sponsors, the aforementioned website gives it a 1 percent chance of making it out of committee and a close-to-zero percent chance of becoming law.
The final bill, the Medicare Audit Improvement Act, HR 1250, aims to place limits on RAC audits. That bill, introduced this spring, is given an 11 percent chance of making it out of committee and a 3 percent chance of enactment. It is worth noting that one of the reasons the website gives the bill a low probability of passing is that it is bipartisan. Govtrack asserts that a bipartisan bill is more likely to make it out of committee, but less likely to pass on the House floor. I am not familiar enough with the inner workings of Washington, D.C. to comment on Govtrack’s methodology, but it certainly seems counterintuitive that a bipartisan bill is less likely to become law.
While the odds of any of these bills becoming law are low, however, occasionally, a long shot makes it. The fact that most bills fail doesn’t mean that any of these bills will fail. If you feel strongly about any of the bills, you may want to reach out to your elected representatives, and also to trade groups, and let them know about your position.
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About the Author
David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations and reimbursement disputes.
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