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Richard Arnholt

Richard Arnholt advises companies, large and small, on the complex rules and regulations applicable to grants and contracts from federal and state governmental entities. In an era of increased budgetary pressures for contractors, Richard focuses his practice on providing practical business and legal guidance to help clients efficiently navigate the minefield of government procurement and grant regulations.

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Billions of dollars every year are spent in the United States on “Federal health care programs,”¹ including Medicare, Medicaid and Tricare, among others.² For individuals and entities in the healthcare industry, reimbursement from these programs is a vital component of their business. However, many are unfamiliar with the authorities under which the Department of Health and Human Services (“HHS”) excludes individuals and entities from participation in Federal health care programs, nor are they familiar with the nuances of the exclusion program. Understanding the types of violations that can trigger exclusion, as well as the process for responding to a proposed exclusion, is necessary for parties receiving reimbursement from Federal health care programs to ensure their compliance program is adequate and to understand the steps that must be taken to mitigate the impact of a proposed exclusion.

Introduction

Pursuant to sections §1128 and §1156 of the Social Security Act (the “Act”), HHS, specifically the Office of the Inspector General (“OIG”), has the authority to exclude individuals and entities from Federal health care programs. Exclusion means that items and services furnished, ordered or prescribed by the excluded individual or entity are not reimbursable under Medicare, Medicaid and all other Federal health care programs. While exclusion by HHS is similar in some respects to suspension and debarment, it does not bar excluded parties from being awarded federal contracts and grants. Once a party is excluded from participation they are added to the List of Excluded Individuals/Entities (“LEIE”) maintained by HHS and the exclusion appears on the System for Award Management (“SAM”). Any healthcare entity participating in Federal health care programs that hires or contracts with an individual or entity on the LEIE may be subject to civil monetary penalties, so it is important that they establish processes and procedures to routinely (monthly is recommended) check the LEIE to ensure new hires, current employees, and potential contractors or subcontractors are not excluded.Continue Reading Exclusions by the Department of Health and Human Services – Authorities and Procedures

On March 2, 2015, new anti-human trafficking rules applicable to government contractors went into effect.  (New requirements applicable to Department of Defense (DoD) contractors, available here, went into effect on January 29, 2015.)  While government contracts have been subject to anti-human trafficking provisions for some time, these revised requirements, which implement Executive Order 13627 and parts of the National Defense Authorization Act for Fiscal Year 2013, include a new certification provision, mandatory reporting obligations, involvement of suspending and debarring officials in the review of reported violations, full cooperation with agency investigations, and publication of violations on FAPIIS, among other changes.

It is important that contractors recognize that all new contracts are subject to many of these new requirements, available here, and ID/IQ contracts will be modified to include them in future orders.  If they have not already done so, contractors should promptly determine which of the new requirements they are subject to and, if necessary, revise compliance policies and procedures accordingly.Continue Reading Contractor Alert: New Anti-Human Trafficking Rule

Following the federal government’s example, states are increasingly looking to their own false claims act (“FCA”) statutes to combat procurement and healthcare fraud. This trend is being driven by two main factors: (1) the huge recoveries by the Department of Justice (“DOJ”) under the federal FCA – $5.7 billion in Fiscal Year 2014 alone; and (2) a federal statute that provided a financial incentive for states to mirror their own FCAs on the federal FCA with regard to healthcare fraud. This state-level activity represents a new front in the battle against procurement fraud, one that government contractors must be aware of to fully analyze and mitigate risks when contracting with state entities.

Currently, 33 states and the District of Columbia have a false claims statute. Of these, 11 states have FCAs that are limited to healthcare fraud; the remaining statutes penalize a broad range of false claims. Many – but not all – of these state FCAs have provisions allowing for whistleblowers to file qui tam actions on behalf of the state government and to share in any recovery.Continue Reading A New Front in the Battle Against Fraud – the Continued Expansion of State False Claims Act Liability

A recent Government Accountability Office (GAO) decision, International Business Machines Corporation, B-410639, et al., Jan. 15, 2015, highlights the need for contractors to ensure that both they and their subcontractors are free of or can sufficiently mitigate any organizational conflicts of interest (OCIs).

On January 15, 2015, the GAO denied IBM’s bid protest over an award of an indefinite-delivery/indefinite quantity contract to upgrade a Department of Defense payroll system.  IBM protested its elimination from the competition because key personnel from its proposed subcontractor, Booz Allen Hamilton, were involved in developing the statement of work, solicitation and other key acquisition documents and strategies, resulting in a “biased ground rules” OCI.Continue Reading Beware of Your Subcontractor’s Organizational Conflicts of Interest

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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