By Emma Cecil, JD
On February 9, 2018, Congress passed and the President signed into law the Bipartisan Budget Act of 2018 (BBA), a comprehensive piece of legislation that provides for a two-year budget agreement and funds the federal government through March 23, 2018. The BBA’s sweeping measures address federal spending for the military, domestic programs, and disaster relief, and contain several provisions impacting federal healthcare programs.
Among other things, the BBA:
• Permanently repeals the Medicare payment cap for therapy services;
• Expands certain telehealth services;
• Eliminates the Independent Payment Advisory Board (IPAB) under the Affordable Care Act;
• Postpones cuts to Medicaid Disproportionate Share Hospital (DSH) payments for another two years;
• Removes the requirement that drug reimbursements be included when calculating MIPS payment adjustments;
• Extends the Children’s Health Insurance Program (CHIP) for an additional four years beyond the previous Continuing Resolution’s six-year extension;
• Removes from the Social Security Act language mandating that HHS require more stringent measures of meaningful use, thus reducing the volume of future EHR-related significant hardship requests; and
• Includes a $6 billion increase in funding for opioid abuse and mental health treatment.
Of particular significance, the BBA dramatically increases civil money penalties (CMP) and criminal fines, as well as prison sentences, for violations of federal fraud and abuse laws. For example, the BBA doubles CMPs for, inter alia, contracting with or employing excluded individuals, submitting false claims, and retaining overpayments; quadruples criminal fines for making false statements and soliciting or receiving illegal kickbacks from $25,000 to $100,000; and doubles sentences for felonies involving false statements and Anti-Kickback Statute violations from a maximum of five years to a maximum of 10 years.
Finally, the BBA eases some of the burden of Stark Law compliance by codifying revisions to CMS’s Stark regulations that became effective in 2016. Pursuant to these changes, the writing requirement for compensation arrangements may now be satisfied by a collection of documents, including contemporaneous documents evidencing the course of conduct between the parties involved, and the signature requirement for written documents may be satisfied so long as the parties obtain the required signatures within 90 days of the date on which the compensation arrangement became noncompliant. Additionally, the Stark Law revisions allow indefinite holdovers on space and equipment leases and personal services contracts following expiration of the contract term so long as the original arrangements satisfied a statutory exception and the holdover arrangements are on the same terms and conditions.
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