Commercial Litigation Update

With DOJ and state Medicaid Fraud Control Unit (“MFCU”) enforcement increasing in the ABA space, proactive compliance programs are more important than ever. State Medicaid billing rules, scope-of-practice requirements, the CMS Toolkit, and recent OIG audit findings provide an important framework for identifying and monitoring compliance risk.

Recent enforcement actions involving a small number of ABA providers have brought increased regulatory attention to the industry. The most prominent example is the recent Minnesota prosecution involving allegations of billing for services that never occurred, falsified documentation, kickbacks, and concealed ownership interests. While the allegations are extreme and not representative of most ABA providers, cases like these have raised alarm among federal and state regulators.

Applied behavior analysis (ABA) therapy for autism has become one of the fastest-growing service categories in Medicaid. Rapid growth, significant workforce demands, extensive use of paraprofessional staff, and complex documentation and supervision requirements have also created heightened compliance and payment-integrity risks. In response to increasing expenditures, varying clinical practices, and reported fraud schemes, the Centers for Medicare & Medicaid Services (CMS) recently released its Applied Behavior Analysis Toolkit (linked here) to support state Medicaid and Children’s Health Insurance Program (CHIP) oversight. Providers and investors should understand both the legitimate forces driving demand for ABA and the compliance issues receiving increased regulatory attention.

In this three-part series, we examine the factors driving increased regulatory attention to ABA, how routine compliance concerns can escalate into enforcement matters, and the steps providers and investors can take to reduce risk and strengthen compliance.

Hospitals and health systems are familiar with traditional medical malpractice cases, but as healthcare is increasingly seen as a business, healthcare providers need to understand the potential for, and limitations of claims brought under the guise of consumer protection laws. 

Consumer protection laws can be tempting causes of action for individuals who believe they have been wronged by the healthcare system. Unlike medical malpractice claims, which require expert testimony and may include damages caps, consumer protection statutes often include treble damages, punitive damages, and attorneys’ fees. Consumer protection laws may also offer injunctive relief as a remedy, do not require a plaintiff to prove causation or damages, and have the potential for class action lawsuits. To prevent plaintiffs from reframing a negligence case to sidestep the limitations of medical malpractice cases, some courts and states have drawn boundaries between consumer protection and medical malpractice cases.