Home Health & Hospice Week

Final district court decision yet to come.

A preliminary court decision favorable to a home health agency accused of kickback violations may be too little, too late.

Magistrate Judge James D. Kirk sides with Monroe, LA-based Aging Care Home Health Inc. in an Oct. 30 recommendation to the district judge in the government's case against the home health agency.

Background: In a November 2004 complaint filed in U.S. District Court for the Western District of Louisiana, the government spelled out its charges against the agency, CEO and owner Janice Davis and CFO Otis Davis from 1999 to 2002. Aging Care violated the Anti-Kickback Statute and Stark law by entering into "sham" compensation arrangements with 11 referring physicians, the complaint accused (see Eli's HCW, Vol. XIV, No. 6).

As part of its argument, Aging Care claimed it didn't have to comply with certain Stark provisions because the regulations implementing them weren't final until after the period the lawsuit covers. The government countered that the agency should have complied with the law, regardless of whether final regulations were promulgated.

"The extent of government overreaching in this case is astounding and frightening," Kirk says in the decision. "The evidence at this point in the case shows that [Aging Care and the Davises] may well have complied with the only substantive regulations then in place and thus with the Stark Act."

What's next: Both sides still have a chance to file objections to the magistrate judge's opinion; then the district judge must review it before offering his final decision, notes Liz Pearson, Aging Care's attorney.

"Aging Care was forced out of business by the Medicare program's suspension of payments," fumes Pearson, with Covington, KY-based Pearson & Ber-nard. "We may file action against the government to recoup some of the damage that has been done to them."

"They have lost everything," Pearson tells Eli. "In particular they want their good name back." • Durable medical equipment suppliers should take note of a new requirement to notify the National Supplier Clearinghouse of any change to the information they provided on the CMS 855S. New requirement: Suppliers must notify the NSC within 30 days.

The requirement is especially important for suppliers who will be involved in the competitive bidding program, notes Waterloo, IA-based VGM Group on their Web site. These suppliers must ensure the information listed on their supplier files is accurate to enable participation in this program.

CMS recently announced the award of the DMEPOS Competitive Bidding Implementation Con-tract to Palmetto GBA. The program will phase in beginning in 2007.

Information and instruction on how to submit a change of information is on the NSC Web site at www. palmettogba.com/nsc. Once at the site, click on these links: Supplier Enrollment/Change of Information/ Change of Information Guide. [...]