Chris Keough’s practice focuses on Medicare and Medicaid reimbursement and compliance.
Practice & Background
Mr. Keough regularly represents hospitals in reimbursement litigation involving payments for disproportionate share hospitals (DSH), the calculation of prospective payment system rates, payments for graduate medical education (GME) costs and other reimbursement issues. He has served as lead counsel in several of the largest reimbursement disputes in the history of the Medicare program, often prevailing on issues of first impression.
Mr. Keough also represents clients in administrative, civil and criminal actions involving alleged false claims or fraud and abuse in federal health programs. The remainder of his practice consists of counseling with regard to federal health regulatory matters.
He has been recognized among the nation’s leading health lawyers in Chambers USA, The Best Lawyers in America and Nightingale’s Healthcare News.
Mr. Keough is a member of Law360’s 2013 health editorial advisory board and a former member of the advisory board of the Bureau of National Affairs Medicare Reporter. He is active in a number of health care and legal organizations, including the American Health Lawyers Association, Healthcare Financial Management Association (VA/DC Chapter) and American Bar Association.
Examples of Mr. Keough’s engagements include:
Medicare Reimbursement Litigation
- representing nearly 700 hospitals, including the hospitals involved in the national lead case that successfully overturned rural floor budget neutrality adjustment to the base payment rate under the Medicare prospective payment system for inpatient hospital services. Cape Cod Hospital v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011)
- obtaining the first-ever decision from a federal court requiring the Department of Health and Human Services (HHS) to correct several systemic errors and omissions in the data and processes used to calculate the Medicare/SSI fraction that determines the Medicare DSH payments to hospitals that serve a disproportionate share of low-income patients. Baystate Medical Center v. Leavitt, 545 F. Supp. 2d 20, amended, 587 F. Supp. 2d 37 (D.D.C. 2008)
- securing a key win in the lead case on the core issue involved in more than 270 consolidated federal court suits involving more than 600 hospitals seeking additional DSH payment for eligible-but-unpaid Medicaid patient days; obtaining district court order granting summary judgment for the hospitals in the lead case; successfully defending the district court’s judgment appeal before the U.S. Court of Appeals for the District of Columbia Circuit; and successfully opposing the solicitor general’s petition for review by the Supreme Court, notwithstanding the government’s assertion of a circuit split on a nationally important issue and $2.8 billion of potential liability for the government. Mr. Keough played a central role in negotiating a global settlement, following the successful litigation of the lead case, involving payment of more than $660 million to the hospitals in the consolidated litigation. In Re Medicare Reimbursement Litigation, Baystate Health System et al. v. Thompson, 309 F. Supp. 2d 89 (D.D.C. 2004), aff’d, 414 F.3d 7 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1672 (2006)
- successfully representing approximately 50 hospitals in a federal court suit setting aside the application of a Medicare program manual, first adopted in the early 1980s, requiring the disallowance of Medicare cost reimbursement for premiums paid to an offshore captive insurer that invests more than a prescribed maximum percentage of assets in equity securities. The court of appeal’s decision invalidating the manual provision is the first and only court decision addressing the validity of that provision. Catholic Health Initiatives v. Sebelius, 617 F.3d 490 (D.C. Cir. 2010)
- representing a Massachusetts hospital in an action challenging several aspects of the Medicare DSH payment calculation. The district court ruled in favor of the hospital with respect to three of the four Medicare DSH payment issues presented (Medicare+Choice days, labor and delivery room days and the calculation of the Medicare/SSI fraction). Northeast Hospital Corporation v. Sebelius, 699 F. Supp. 2d 81 (D.D.C. 2010). The government’s appeal from the district court decision in favor of the hospital on Medicare+Choice days is now pending before the U.S. Court of Appeals for the District of Columbia Circuit
- representing one of the nation’s leading cancer centers in appeals contesting the denial of adjustments to the rate of increase ceiling on Medicare payment for operating costs of inpatient hospital services and the calculation of the Medicare hold-harmless payment for hospital outpatient services. University of Texas M.D. Anderson Cancer Center v. Sebelius, 706 F. Supp. 2d 97 (D.D.C. 2010). The case is now pending before the U.S. Court of Appeals for the District of Columbia Circuit
- representing a California hospital in an appeal seeking Medicare reimbursement for direct GME costs and indirect medical education costs of services furnished to patients enrolled in Medicare+Choice plans. Cottage Health System v. Sebelius, 631 F. Supp. 2d 80 (D.D.C. 2009)
- successfully representing a Minnesota hospital in a federal court suit challenging the determination of its hospital-specific payment rate for the four-year transition period to the prospective payment system for inpatient hospital services. Abbott-Northwestern Hospital v. Leavitt, 377 F. Supp. 2d 119 (D.D.C. 2005)
- successfully representing a hospital in a federal court action for additional Medicare DSH payment pursuant to the hold-harmless provision established in Program Memorandum A-99-62. St. Joseph’s Hospital v. Leavitt, 425 F. Supp. 2d 94 (D.D.C. 2006)
- successfully representing hospitals in several appeals to the Provider Reimbursement Review Board (PRRB) and in federal court on several aspects of the Medicare payment calculations for GME (full-time equivalent interns and residents counts, approved programs, payment for costs of residents’ training in unapproved programs, the calculation of hospital’s base year average per resident amounts and bed counts). See, e.g., Inova Health System Foundation v. Thompson, Civ. Action No. 00-1862 (D.D.C. Aug. 15, 2002) (ruling in favor of the hospital in an appeal contesting the calculation of its base year average per resident amount for direct GME costs)
- successfully resolving several appeals by groups of sole community and Medicare-dependent hospitals challenging the application of budget-neutrality update factors in the calculation of the hospital-specific payment rates
- successfully representing more than 100 skilled nursing facilities in several group appeals to the PRRB and in federal court, overturning Medicare disallowances of allegedly excessive costs incurred for therapy services furnished under arrangements with outside contractors. Reported court decisions: GranCare, Inc. v. Shalala, 93 F. Supp. 2d 24 (D.D.C. 2000); Eagle Healthcare, Inc. v. Shalala, 52 F. Supp. 2d 1 (D.D.C. 1999)
- successfully representingd a rehabilitation agency in a federal court suit seeking Medicare cost reimbursement for a lower-of-cost-or-charges carryover following a change of ownership
- successfully representing several home health agencies in appeals from Medicare disallowances of management fees paid to a franchiser. Interim Healthcare of New Haven v. Blue Cross Blue Shield Ass’n/Associated Hosp. Srvs. of Maine, PRRB Hearing Dec. No. 2000-D1, Medicare & Medicaid Guide (CCH) 80, 341 (Oct. 14, 1999) (Adm’r review declined); Interim Healthcare of Kansas City v. Blue Cross Blue Shield Ass’n/Cahaba Government Benefits Administrators, PRRB Hearing Dec. No. 2001-D18, Medicare & Medicaid Guide (CCH) 80,655 (Apr. 17, 2001) (Adm’r review declined)
- successfully defending an appeal to the U.S. Court of Appeals for the District of Columbia Circuit from a district court order requiring the District of Columbia to make additional Medicaid DSH payments to a group of D.C. hospitals. District of Columbia Hospital Association, et al. v. District of Columbia, 224 F.3d 776 (D.C. Cir. 2000)
- representing a state university-affiliated teaching hospital in connection with determination of uncompensated care cost limit on its federal matching payment for Medicaid DSH payments
Compliance/Fraud and Abuse
- assisting in the defense of a major accounting firm in a civil action brought under the False Claims Act for hospital laboratory claims
- assisting as regulatory counsel in the successful defense of a criminal action alleging health care fraud with respect to Medicare cost report claims submitted by a home health agency
- successfully representing a home health agency in connection with an investigation by the HHS Office of the Inspector General concerning Medicare cost reports and billing
Counseling on Regulatory Matters
- advising major national trade associations with respect to comments on proposed rules regarding substantially excessive charges, the Medicare DSH payment and the application of the “anti-redistribution” principle in the determining the count of full-time equivalent residents for GME.
Awards & Accolades
Mr. Keough’s work has received a number of awards and other recognition including:
- Recognized by The National Law Journal in its 2014 Litigation Trailblazers & Pioneers as one of 50 “people who have made a difference in the fight for justice” for his outstanding work in representing hospitals in Medicare reimbursement disputes
- Named to Expert Guides’ “Best of the Best USA 2014 in health care
- Recognized by Washingtonian magazine as a top lawyer in the category of health care (2013)
- Chambers USA: America’s Leading Lawyers for Business in health care, 2008 to present (current Band 1 listing for health care litigation, both nationwide and in Washington, D.C.)
- The Best Lawyers in America in health care law, 2001 to 2018
- Who’s Who in American Law, 2007 to present
- Washington, D.C. “Super Lawyer,” 2007 to present
- Outstanding Healthcare Litigators, Nightingale’s Healthcare News, 2004 and 2007
- Best Article Award for outstanding contributions to the professional literature, Healthcare Financial Management Association, 2004-2005
- Follmer Bronze Merit Award for Outstanding Service to the Healthcare Financial Management Association, 2007.
- Advanced Medicare DSH Update, American Health Lawyers Association Institute on Medicare and Medicaid Payment Issues (2005-2015).