CMS Briefing on DRA Section 6032 Compliance Answers Some Questions, Raises Others

16 January 2007 Publication
Authors: Robert D. Sevell Lawrence W. Vernaglia Judith A. Waltz J. Mark Waxman

Legal News Alert: Health Care

CMS held an audio conference briefing on January 11, 2007 on the implementation of Section 6032 of the Deficit Reduction Act of 2005. That provision requires that entities (such as health care providers and certain Medicaid plans) make changes to their compliance policies and employee handbooks to inform their employees, contractors and agents about the state and Federal false claims acts and whistleblower protections.  CMS representatives responded to questions from some of the more than 800 callers on compliance with the statute and guidance from CMS in the form of a letter to State Medicaid Directors dated December 13, 2006. The responses are informal advice, and although an indication of CMS’ current thoughts on the subject, are not binding on the agency.

CMS clearly stated its position on several issues:

  • Although no approved State Medicaid Plans implementing Section 6032 are currently in place, the CMS position is that all entities were required to comply by January 1, 2007.
  • There is no training per se required by Section 6032 or the CMS guidance.

CMS also acknowledged that questions remained on a number of issues, including:

  • The scope of the potential duty of contractors to “adopt” policies. It was acknowledged that confusion could result from multiple contractor relationships.
  • The scope of the contractor definition, although CMS did take the position that providers of non-healthcare services or goods such as the lawn care contractor were not included.
  • The applicability of Section 6032 to health care providers in multi-institutional settings where only some of the providers meet the $5 million threshold, and other questions of aggregation.

CMS did indicate its intention to provide further guidance in the form of questions and answers on its website, or in another forum. CMS is also accepting comments by e-mail at medicaid_integrity_program@cms.hhs.gov, although it does not plan to provide individual responses. In the meantime, however, providers will continue to be faced with a number of open questions as they attempt to comply with the statute.

For further information, see the previous e-Alerts, Deadline For DRA Compliance Is January 1, 2007: Are You Ready? and DRA Compliance: CMS Issues December 13, 2006 Guidance.

If you have any questions about this topic or would like additional information, please contact any of the attorneys listed below or the lawyer in the firm who generally handles your legal matters:

Janice A. Anderson
janderson@foley.com
312.832.4530

Robert D. Sevell
rsevell@foley.com
310.975.7784

Judith A. Waltz
jwaltz@foley.com
415.438.6412

Richard L. Prebil
rprebil@foley.com
312.832.4362

Lawrence W. Vernaglia
lvernaglia@foley.com
617.342.4079

J. Mark Waxman
mwaxman@foley.com
617.342.4055

R. Michael Scarano
mscarano@foley.com
858.847.6712

Cheryl L. Wagonhurst
cwagonhurst@foley.com
310.975.7839

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