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Updated Tools for Your HIPAA Toolkit: Medical Record Fees

A Missouri federal court granted a motion to dismiss this week in a case against a provider and medical record processing company.  In the case, a patient alleged that a “search and retrieval” fee imposed in response to a patients request for access to medical records violated the Missouri Merchandizing Practices Act.  In dismissing the claim, the court only addressed Missouri law as the allegations did not involve alleged violations of HIPAA.  The outcome in this Missouri case is similar to the outcome in an unrelated  Tennessee case against the same medical records company that was dismissed earlier this summer.  The Tennessee case alleged multiple violations of Tennessee law relating to the fees imposed for access to medical records, using HIPAA as the standard for medical records fees.  In dismissing the case, the Tennessee court found that neither HIPAA nor Tennessee law provide a private cause of action for excessive medical record fees.  The Tennessee case is pending appeal.

Updated Tools for Your HIPAA Toolkit: Security Risk Assessment

In the wake of the record setting $16 Million dollar settlement and resolution agreement with Anthem, Inc, the Office for Civil Rights (OCR) and Office of the National Coordinator for Health Information Technology (ONC) released a new version of their Security Risk Assessment tool.  The new tool and recent settlement agreement renew the emphasis of OCR on the performance of HIPAA Security Risk Assessments by covered entities and their business associates.  

Ramifications for Missouri Physicians of Enhanced Mo HealthNet OPI Program

Effective March 1, 2018, the Missouri Department of Social Services (“MDSS”) – Mo HealthNet Division (“Mo HealthNet”) began working collaboratively with the Missouri Department of Mental Health and the Missouri Department of Health and Senior Services to enhance the Mo HealthNet Opioid Prescription Intervention (“OPI”) Program. 

Pass Through Deduction in New Tax Bill Unlikely to Slow Trend Toward Industry Consolidation

The Tax Cuts and Jobs Act of 2017 signed into law on December 22, 2017 by President Trump added a new deduction for noncorporate taxpayers (i.e. S corporations, partnerships, sole proprietorships, and trusts) who have qualified business income.  This deduction, found in section 199A of the Internal Revenue Code, is also referred to as the “business pass-through income deduction.” 

No Good Deed…: Allowing Part-Time Employees to Make Health FSA Contributions May Trigger ACA Penalties

When it comes to health coverage, many employers draw a distinction between full-time and part-time employees. To be eligible to enroll in the employer’s health plan, an employee must work a minimum number of hours per pay period. But many of those same employers then allow even part-time employees to contribute to a health flexible spending account (“health FSA”). After all, doing so costs the employer nothing (and even saves a modest amount in employment taxes), and why not at least give those employees an opportunity to pay some of their medical expenses on a pre-tax basis? Unfortunately, this paternalistic approach may now subject an employer to substantial daily penalties under the Affordable Care Act (“ACA”).

House Energy and Commerce Health Subcommittee Approves Repeal of SGR Formula

The Congressional Budget Office estimates the costs of maintaining physician Medicare reimbursement at current levels and preventing cuts to the sustainable growth rate (SGR) formula at $139 billion over the next 10 years.  Today, in an attempt to address that issue, the House Energy and Commerce Health Subcommittee approved legislation aimed at repealing the Medicare physician payment system that is presently in place.

Jury Finds Tuomey Health System False Claims Act – Facing up to $357 Million in Potential Liabilities

As previously posted in this Blog, the retrial in the case against Tuomey Healthcare System Inc. (Tuomey) alleging it violated the Stark Law and the False Claims Act (FCA) by illegally paying referring physicians started last month.  After a month long retrial, the jury found that Tuomey’s compensation arrangements with referring physicians violated the Stark Law. The result, nearly 22,000 false claims and more than $39 million in overpayments.  In total, with fines and penalties Toumey is facing $357 million in potential liabilities.  Tuomey officials have indicated that such a large penalty may cause the closure of its business.

OIG Publishes Updated Special Advisory Bulletin on the Effect of Exclusion from Federal Healthcare Programs

Last week, The U.S. Department of Health & Human Services, Office of Inspector General (OIG) published an “Updated Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs” (2013 Special Advisory Bulletin). As an update to the Bulletin also addressing the effect of exclusion issued in 1999, the 2013 Special Advisory Bulletin addresses frequently asked questions regarding the scope of exclusions and the Affordable Care Act’s (ACA) expansion of the OIG’s exclusion authority.

Corporate Compliance: A High Yield Investment Opportunity

The prevailing sentiment is that developing and maintaining a corporate compliance program in a health care organization is a costly burden.  Many health care organizations have compliance policies only because they are required and may lessen the penalties associated with regulatory enforcement.  In fact, the financial strain of maintaining regulatory compliance is a common issue raised by providers and those in health care administration.  In countless discussions, articles, and presentations, the cost of maintaining compliance with the current mountain and the seemingly always forthcoming tsunami of regulations is often listed as a key driver of the current physician employment boom.  However, these views are wrong, a corporate compliance program is an investment opportunity that when properly developed and executed provides opportunity for a significant return on investment.

Second Tuomey Trial Starts Today

Opening arguments begin today in the second trial in a lawsuit filed by a whistleblower-physician against Tuomey Healthcare System, Inc. (Tuomey). The United States intervened in the matter which alleges that Tuomey entered into part-time employment agreements with 19 physicians that violated the Stark law resulting in False Claims Act (FCA) liability for Tuomey because as the government alleges, that Tuomey took into takes into account the revenue it expected to receive from physicians’ referrals to value the physicians’ base compensation.

Proposed Rules Would Extend and Modify EHR Donation Stark Exception and Anti-kickback Safe Harbor

The Stark exception and the Anti-kickback safe harbor that protect electronic health record (EHR) donation to physicians are both set to expire on December 31, 2013. This week, in response to this looming deadline, the Centers for Medicare & Medicaid Services (CMS) introduced a rule that would extend the Stark exception to December 31, 2016. Also this week, the Department of Health and Human Services Office of Inspector General (OIG) introduced a proposed rule extending the Anti-kickback safe harbor to December 31, 2016.

Federal Antitrust Policy and Accountable Care Organizations

Federal Antitrust policy and Accountable Care Organizations” appeared in the American Health Lawyers Association member briefing on Accountable Care Organizations.

Health Care Information Alliance Formed

McKesson Corp., Allscripts, athenahealth Inc., Greenway Medical Technologies Inc., RelayHealth, and Cerner announced at the 2013 Healthcare Information and Management Systems Society annual meeting in New Orleans that they have banded together to form an independent trade association.

Long-Awaited HIPAA Final Rule Released: Prepare for Compliance Now

On January 17, 2013, the Department of Health and Human Services (HHS) released the long-awaited final rule modifying the Health Insurance Portability and Accountability Act (HIPAA) regulations. The 563-page final rule modifies many aspects of HIPAA. Covered entities and business associates must comply with the new regulations by September 23, 2013.

Long-Awaited HIPAA Rule Finally Arrives

On January 17, 2013, the Department of Health and Human Services released the long-awaited final rule modifying the Health Insurance Portability and Accountability Act (HIPAA) regulations. The final rule, at 563 pages, is sure to cause a spike in sales of printer toner.

Court Grants Summary Judgment to Hospital on Patient’s Emergency Medical Treatment and Active Labor Act (“EMTALA”) Claims

William Romine went to the emergency room at St. Joseph-Mount Sterling hospital in Mount Sterling, Kentucky, after cutting his hand with a pair of scissors while trying to unclog a bottle of Gorilla Glue. . Romine was not immediately seen at St. Joseph-Mount Sterling because no beds were available. Unsatisfied with having to wait, he left to go to another hospital in Winchester, Kentucky. During the trip to the second hospital, Romine decided to return back to St. Joseph-Mount Sterling, where he was again told there were no available beds. A short while later Romine received treatment to temporarily stop the bleeding. St. Joseph-Mount Sterling determined that it was unable to treat the injury and Romine was airlifted to another hospital where his bleeding was stopped by the placement of sutures.

Medical Staff Bylaws Are Not Contracts in Missouri

Imagine being handed a set of rules to a carnival game and being told that you had to agree to abide by those rules to participate in the game. This carnival game, of course, has prizes that you can win if you follow the rules and, for example, knock down all the bottles. With the prospect of a prize, you pay $5 to throw three balls, knocking down all the bottles. Jumping up and down eagerly awaiting your prize, the carney says you stepped over the line and are disqualified. He sends you packing without an oversized zoo animal to tote on your shoulders. Feeling like you were cheated, you appeal the carney’s decision, arguing that he owes you the giant teddy bear. A panel of your peers (the people in line behind you) rules in your favor with a 2-1 vote, but the carney’s boss disagrees and rejects your appeal. So you sue the carney and his boss for breach of contract. If you could prove that you followed the rules in knocking down the bottles, you would win and be entitled to an overstuffed dust collector because you had a contract. If you are playing the game of hospital medical staff privileges, however, you would lose.

OCR De-Identificiation Guidance

The Department of Health and Human Services Office for Civil Rights (“OCR”) recently released guidance on de-identification of protected health information pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule. The guidance discusses in detail the two methods that satisfy the de-identification standard of the Privacy Rule—the Expert Determination and Safe Harbor methods. While these methods are not new, the guidance provides a clearer picture of OCR’s expectations.

OIG Releases Fiscal Year 2013 Work Plan – Immediate Impact

The United States Department of Health and Human Services, Office of Inspector General (“OIG”), has published its Fiscal Year 2013 Work Plan. The Work Plan details the OIG’s compliance and enforcement goals for the coming year.

This Client Alert highlights key target areas for compliance enforcement in 2013 in order to help you focus your compliance efforts for the coming year. This Alert intentionally does not describe every project contained in the OIG’s 128 page Work Plan. Click here for the complete Work Plan. A second Alert will address data gathering and analysis activities that may shape future policies.

Pharmaceutical Waste Disposal Practices Under Increased Scrutiny from EPA and State Environmental Agencies

Citing “widespread noncompliance in the health care industry,” the U.S. Environmental Protection Agency’s Office of Inspector General recently issued a report criticizing the agency for its failure to properly regulate discarded pharmaceutical waste as hazardous waste.   While for many years EPA has banned the improper disposal of a variety of pharmaceutical wastes from hospitals, pharmacies, physicians’ and dentists’ offices, outpatient care centers, residential care facilities and the like, the report concludes that many health care facilities are unaware of the hazardous waste regulations covering pharmaceutical wastes. 

Health Care Reform: What’s Gone Away? and What’s Coming in 2012?

The tide of regulations interpreting the 2010 Patient Protection and Affordable Care Act (“PPACA”) began to ebb in 2011, and portions of the law have even been repealed or put on hold. Nonetheless, health plan sponsors will still face new compliance burdens in 2012. This article briefly addresses these aspects of the PPACA.

Health Plan Assessed Double Damages for MSP Violation

In this recent decision, a federal appeals court has raised the stakes for employer health plans that fail to comply with the Medicare Secondary Payer rules.

Health Care Reform Update

Actions in the courts, in Congress, and by the Obama Administration have shed further light on the contours of health care reform.

Health Care Reform: The Near Term

This newsletter is devoted entirely to articles concerning the recently enacted Patient Protection and Affordable Care Act. Check back often for updates on the status of health care reform.