Health Care Law

Healthcare Client Alert - August 2015

August 20, 2015, 3:28 PM

As doctors, you are heroes. You are noble protectors who always work for the good of your patients. You protect our health, but also our privacy. In fact, one of the most significant facets of the physician/patient relationship is trust, which is largely based on confidentiality. Naturally, then, one of the most difficult tasks you might confront in your profession is to have to tell a patient that there has been a breach of her private health information. That undertaking becomes even more daunting when you are made to consider the legal ramifications of the breach. Not only must you consider the notification requirements and possible repercussions of the federal HIPAA law, but state law imposes potential liability as well.

Health Care Client Alert - Federal Government Issues Fraud Alert on Medical Directorships

August 20, 2015, 2:11 PM

On June 9, 2015, the Office of Inspector General ("OIG"), within the United States Department of Health and Human Services, released a Fraud Alert regarding physician compensation arrangements, with a specific focus on payments made to physicians under medical directorship agreements. The fraud alert warns physicians of how a compensation arrangement may violate the federal anti-kickback statute ("AKS") even if only one purpose of the arrangement is to compensate a physician for his or her past or future referrals of Federal health care business.

Compliance Deadline with New HIPAA Rule: September 23, 2013

July 15, 2013, 1:57 PM

In January 2013, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) released its long-anticipated rule (the Omnibus Rule) amending the HIPAA Privacy, Security, Breach Notification and Enforcement Rules. The Omnibus Rule became effective on March 26, 2013 and covered entities must comply with most of the rules requirements no later than September 23, 2013.

CMS Publishes Proposed Rule on Physician Payment Sunshine Law

February 3, 2012, 11:19 AM

On December 14, 2011, the Center for Medicare and Medicaid Services (CMS) released a notice of proposed rulemaking implementing the Physician Payment Sunshine provisions of Section 6002 of the Affordable Care Act. The Sunshine provisions seek to make publicly available information about payments or other transfers of value to physicians made by manufacturers of drugs and medical devices and supplies covered by Medicare and Medicaid. Under the proposed rule, manufacturers must annually report all payments, gifts, consulting fees, research activities, speaking fees, meals, and travel reimbursements paid to physicians and teaching hospitals to the Secretary of Health and Human Services. The definition of manufacturer would extend to include entities under common ownership with a manufacturer that are involved in manufacturing, marketing, selling or distributing covered products. The proposed rule would also make available to the public information about physician ownership or investment interests in manufacturers or group purchasing organizations. CMS is accepting public comments on the proposed rule through February 17, 2012. A copy of the proposed rule is available here. --Meagan J. Thomasson

U.S. Supreme Court to Hear Health Care Law Case

December 15, 2011, 11:00 AM

The U.S. Supreme Court has agreed to hear five and a half hours of oral arguments in the Florida v. Department of Health and Human Services case challenging the constitutionality of the controversial Patient Protection and Affordable Care Act (PPACA). The case arises out of an appeal by 26 states of a decision by The United States Court of Appeals for the Eleventh Circuit. The scope of what the Court has agreed to consider is limited to the issues of whether (1) it is within Congress power to require states to choose between complying with the provision of the PPACA or losing federal Medicaid funding, and (2) whether the individual mandate provision of the PPACA is constitutional and, if not, the extent to which it may be severed from the remainder of the Act. Arguments will be heard in March of 2012 and a decision is expected before the Court recesses in late June. A copy of the petition for certiorari submitted by Florida et al. is available here. --Meagan J. Thomasson

CMS Releases Final Rule on Accountable Care Organizations

November 18, 2011, 3:19 PM

On November 2, 2011, the Center for Medicare & Medicaid Services (CMS) final rule governing Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program appeared in the Federal Register. ACOs are legal entities that are designed to encourage collaboration between health care providers by allowing members of the ACO to share in any savings it generates with respect to Medicare beneficiary expenditures. The final rule presents several substantial changes from the proposed rule, many of which may make the formation of an ACO a more attractive option to healthcare providers. The most significant of the new developments are discussed below.

Supreme Court Hears Case on Medicaid Rate Cuts

October 14, 2011, 2:12 PM

On Monday, October 3rd, the United States Supreme Court began a new term by hearing oral arguments on whether Medicaid recipients and healthcare providers can bring a lawsuit against a state for failing to pay the rates required under the federal Medicaid law. The case, Douglas v. Independent Living Centers of Southern California, arises out of the Ninth Circuit and stems from a decision made by the California legislature to cut the rates paid to healthcare providers due to budget concerns.

4th Circuit Dismisses Two Challenges to Obamacare

September 16, 2011, 11:32 AM

On September 8, 2011, the U.S. Court of Appeals for the Fourth Circuit dismissed two lawsuits challenging the constitutionality of the individual mandate provision contained in President Obamas healthcare reform overhaul (Obamacare).

Physician Group Practice Demonstration Results

August 30, 2011, 8:48 AM

Earlier this month, the Centers for Medicare & Medicaid Services (CMS) announced the fifth year results of the Physician Group Practice (PGP) Demonstration, which was a precursor to and assisted in shaping and forming the Accountable Care Organization (ACO) model that was developed and rolled out to the public for consumption in the Patient Protection and Affordable Care Act (PPACA). Under the PGP Demonstration, the participating physician group practices were afforded an opportunity to earn incentive payments based on meeting certain criteria for the quality of care delivered to the recipients of their professional services in addition to savings generated for the Medicare program.

Senate Finance Committee Report Inquires into Physician-Owned Distributors

August 22, 2011, 10:45 AM

Senator Orrin Hatch recently released a report by the Senate Finance Committee offering an overview of key issues and potential areas for Congressional oversight concerning Physician-Owned Distributors (PODs). After the issuance of this report, the Chairman and Ranking Members of the Senate Finance Committee sent letters to the Centers for Medicare & Medicaid Services (CMS) and the United States Department of Health and Human Services (HHS) requesting they address the concerns voiced in this report.

Update on Challenges to Obamacare

August 12, 2011, 3:45 PM

On August 12, 2011, the Eleventh U.S. Circuit Court of Appeals issued a ruling holding the individual mandate provision of the Patient Protection and Affordable Care Act, passed in 2010 (Obamacare), to be unconstitutional. The divided three-judge panel struck down the requirement that Americans must carry health insurance or face penalties. The ruling did not go so far as to invalidate Obamacare entirely.

CMS Proposes Payment Policy and Rate Changes Under the Medicare Physician Fee Schedule for 2012

August 12, 2011, 9:04 AM

Centers for Medicare & Medicaid Services (CMS) proposed its update to the Medicare Physician Fee Schedule (MPFS) for the calendar year of 2012. Under this plan, more than one million providers of vital health services receive compensation for the care they provide Medicares beneficiaries. It proposes several things, but most importantly calls for a 29.5% percent reduction in payment rates to physicians and nonphysicians under this plan according to the statutory sustainable growth rate formula (SGR). CMS has voiced its displeasure with such a cut in reimbursement to such providers and asserts that it is not a correct valuation of their services. Its hands are tied however, because this formula can only be changed through legislation. Congress has confronted this problem every year since 2003, and has each year enacted legislation to chip away at these large reductions, saving providers from a large reduction in reimbursement for services provided to Medicare beneficiaries. Fortunately for Medicare beneficiaries and the providers treating such beneficiaries, Congress is again expected to implement legislation as a temporary fix to decrease this severe cut in reimbursement.

CMS Provides Guidance on Stark Physician Recruitment Exception

July 26, 2011, 7:47 AM

The physician recruitment exception to the Stark Law allows a hospital to provide certain financial incentives to a physician group practice to induce a physician to relocate his practice to a location within the hospitals service area. In order to comply with the physician recruitment exception, the financial arrangement must comply with a number of criteria. Among these criteria, the exception requires that the physician group practice to which the physician is recruited may not impose practice restrictions that unreasonably restrict the physicians ability to practice medicine in the geographic area served by the hospital. Until recently, the Centers for Medicare & Medicaid Services (CMS) has declined to provide any guidance regarding what types of practice restrictions CMS would consider to be unreasonable.

HHS Enables Patients with Pre-existing Conditions to Obtain Health Insurance

July 19, 2011, 8:56 AM

The United States Department of Health and Human Services (HHS) announced new steps last week to significantly lower premiums for the Pre-Existing Condition Insurance Plan (PCIP) in most states. Under the proposed steps, eligibility standards for patients with pre-existing conditions will ease in 23 states and the District of Columbia. PCIP premiums will drop by as much as 40 percent in 18 states. In Virginia, PCIP rates will decrease by 40.3 percent. The rate decreases will bring PCIP premiums closer in line with states individual insurance markets.

CMS Proposal Requires Medicare/Medicaid Providers to Offer All Patients Flu Shot

July 11, 2011, 9:47 AM

The Centers for Medicare & Medicaid Services (CMS) published a proposal that requires Medicare and Medicaid providers and suppliers to offer all patients an annual influenza vaccination. Although medical facilities would encourage vaccine administration, the patient, the patients surrogate, or the patients doctor could still decline the vaccination. The proposed rule also requires Medicare and Medicaid providers and suppliers to develop procedures for vaccine distribution and administration in preparation for future pandemics that may break out.

HHS announces proposed changes to HIPAA Privacy Rule

July 5, 2011, 3:17 PM

A Notice of Proposed Rulemaking concerning the accounting of disclosures requirement under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, is currently available for public comment. The proposed rule would give individuals the right to get a report on who has electronically accessed their protected health information (PHI).

HHS Announces New Affordable Care Act Demonstration Project

June 27, 2011, 2:17 PM

The Department of Health and Human Services announced a new demonstration project on June 6, 2011 that will test the effectiveness of doctors and other health professionals working in teams to improve care for up to 195,000 Medicare beneficiaries. The Federally Qualified Health Center (FQHC) Advanced Primary Care Practice demonstration project will pay an estimated $42 million over three years to up to 500 FQHCs to coordinate care for Medicare patients. According to Administrator Dr. Mary Wakefield, by improving coordination between providers the FQHCs in this project can increase access to important primary care services and thus reduce the need for costly hospitalizations or emergency department visits.

90% Funding Match Available to States for Improved Medicaid Eligibility Systems

June 17, 2011, 1:22 PM

The Centers for Medicare & Medicaid Services (CMS) enacted a rule, effective April 19, 2011, that increases federal funding for states for certain Medicaid activities. Under the rule, states may receive 90% federal matching for the design and development of claims and information retrieval systems that improve the compatibility of state plans with federal Medicaid administration. The rule also provides that states may receive 75%, instead of previously 50%, federal matching for operating expenditures related to running the new systems. According to CMS, overall commentator feedback supports the increased federal funding match as an incentive for states to modernize Medicaid eligibility systems. Some commentators believe that such increased federal funding at the outset of integration efforts will lower overall state and federal costs in the long term.

Hospitals Fail to Adequately Protect Electronic Patient Data

June 9, 2011, 11:01 AM

The Office of Inspector General (OIG) stated that Centers for Medicare & Medicaid Services (CMS) oversight and enforcement actions for Health Insurance Portability and Accountability Act (HIPAA) Covered Entities are not sufficient to ensure compliance with the HIPAA Security Rule. One purpose of the Security Rule is to ensure that electronic patient health information sent between entities is secure from attack or compromise. The OIG audited seven hospitals throughout the nation and found 151 vulnerabilities in systems and controls, 124 of which were identified as high impact. Such vulnerabilities could allow outsiders or hospital employees to access patient information without the hospitals knowledge. Although each of the seven hospitals had implemented some security measures, none had complied with the administrative, technical, and physical safeguards of the Security Rule.