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"Implied False Certification" Theory Under False Claims Act 
Upheld by Supreme Court 
On June 16, 2016, in Universal Health Services, Inc. v. United States ex rel. Escobar (Escobar), the Supreme Court of the United States (SCOTUS) held unanimously that the "implied false certification" theory, in certain circumstances, may serve as a basis for liability under the False Claims Act (FCA). Under the implied false certification theory, a defendant implicitly certifies compliance with all conditions of payment upon submission of a claim to the government. In the opinion authored by Associate Justice Clarence Thomas, SCOTUS held that the implied false certification theory is applicable when two conditions are satisfied:  (1) "the claim does not merely request payment, but also makes specific representations about the goods or services provided"; and,  (2) "the defendant's failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths." Notably, SCOTUS held that the misrepresentation "must be material to the Government's payment decision in order to be actionable," leaving many legal observers unsure as to the definition of "material" under this decision. This Health Capital Topics article will discuss the rationale of the Court in Escobar, as well as, the implications of the implied false certification theory and judicial decisions in future FCA actions.

On June 16, 2016, in Universal Health Services, Inc. v. United States ex rel. Escobar (Escobar), the Supreme Court of the United States (SCOTUS) held unanimously that the "implied false certification" theory, in certain circumstances, may serve as a basis for liability under the False Claims Act (FCA). Under the implied false certification theory, a defendant implicitly certifies compliance with all conditions of payment upon submission of a claim to the government. In the opinion authored by Associate Justice Clarence Thomas, SCOTUS held that the implied false certification theory is applicable when two conditions are satisfied:  (1) "the claim does not merely request payment, but also makes specific representations about the goods or services provided"; and,  (2) "the defendant's failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths." Notably, SCOTUS held that the misrepresentation "must be material to the Government's payment decision in order to be actionable," leaving many legal observers unsure as to the definition of "material" under this decision. This Health Capital Topics article will discuss the rationale of the Court in Escobar, as well as, the implications of the implied false certification theory and judicial decisions in future FCA actions.  (Read more...) 
In conducting a valuation analysis, a valuation analyst may employ a variety of different statistical methods. This six-part Health Capital Topics series conducts a brief overview of the principles and applications of six (6) statistical methodological approaches commonly utilized in valuation reports: (1) descriptive statistics; (2) coefficient of variation; (3) data sets and samples; (4) regression analysis; and, (5) Monte Carlo methods. Each installment of this series will provide the reader with a basic background on these statistical methods, with a focus on: (1) a description of the specific methodology; (2) how valuation analysts use the technique; and, (3) potential pitfalls in utilizing the methodology. This first installment of the series will familiarize the reader with these approaches. A strong understanding of commonly used statistical methods is useful for valuation professionals creating, defending, or critiquing valuation reports. Further, the improper use of statistical methods by valuation professionals may lead to erroneous inferences which may significantly impact the derived value indication. This series aims to serve as a reference guide for the valuation professional, and to serve as a resource when developing, defending, or critiquing valuation reports.  (Read more...) 
The Consumer Operated and Oriented Plans (CO-OPs) created under the Patient Protection and Affordable Care Act (ACA), which were designed to lower costs for consumers and increase competition within health insurance markets,  have been fraught with issues. Currently, more than two-thirds of the 23 CO-OP health insurance providers created since 2010 are no longer operational, with only seven remaining to date. Healthcare experts believed that certain features of CO-OPs, such as requirements for reinvesting profits into their plans to further decrease premiums, would allow CO-OPs the opportunity to increase competition within healthcare markets by offering consumers an alternative to commercial insurers. However, numerous factors, both legislative and market-based, have prevented satisfaction of this goal, including: insufficient premium revenues; competition from larger, more established health insurers; and, the risk corridor shortfall. Many of these factors stemmed from extensive changes to the framework of the CO-OP program after the ratification of the ACA, casting doubt on arguments by various commentators that such failures are directly attributable to the ACA. The first installment of this two-part Health Capital Topics series on the CO-OP program will describe the CO-OP model and discuss the numerous factors that have contributed to many of these plans suffering financial losses and/or ceasing operations.  (Read more...)
Recent confusion surrounding a patient's ability to obtain their personal medical files, and the possibility that fees are limiting such access, has led to the issuance of revised federal guidance that may change organizational practices regarding the release of an individual's medical information. In various updates throughout 2016, the U.S. Department of Health and Human Services' (HHS) Office for Civil Rights (OCR) has released guidance regarding how healthcare providers may lawfully present access to an individual's protected health information (PHI), i.e., individually identifiable health information transmitted or maintained in a patient's medical record,  under the Health Insurance Portability and Accountability Act (HIPAA), including the appropriate method for determining patient fees to acquire such information.  After confusion from industry commentators arose due to beliefs that a fee maximum was implemented,  the OCR opined that "...individuals can be charged only a reasonable, cost-based fee for the labor and supplies associated with making the copy, whether on paper or in electronic form." The OCR guidance notes that organizations are permitted to charge individuals based on one of three methods: actual costs, average costs, or a flat fee.  This Health Capital Topics article will briefly discuss an individual's right of access to PHI under HIPAA, and detail the three methods that may be utilized in determining the charges that organizations may levy on patients to access their PHI.  (Read more...)

HCC CEO Bob Cimasi Recognized as a "Pioneer of the Profession" under NACVA's "Industry Titans" Awards
 HCC CEO Robert James Cimasi, MHA, ASA, FRICS, MCBA, CVA, CM&AA, has been named a "Pioneer of the Profession," by the National Association of Certified Valuators and Analysts (NACVA) and Consultants Training Institute (CTI) as part of their Silver Anniversary recognition luncheon of valuation "Industry Titans," held on June 10, 2016, during their 25th Annual Conference in San Diego.  Mr. Cimasi joins valuation profession luminaries, including: Dr. Shannon P. Pratt, Chris Mercer, James R. Hitchner, Roger J. Grabowski, Richard Wise, Jay E. Fishman, Nancy Fannon, Honorable Judge David Laro, Howard Lewis, and Mel H. Abraham, along with fourteen others, in receiving this honor. Congratulations to Bob Cimasi and his fellow "Pioneer of the Profession" honorees from the HCC Team and Topics Staff!