Brown McCarroll Attorneys at Law

On March 30, 2012, the Fourth Circuit reversed a $44 million judgment against Tuomey Hospital (Tuomey) for contracts that Tuomey had with physicians that allegedly violated the federal Stark law.

The Texas Medicare Administrator Contractor changes from TrailBlazer to Novitas (formerly Highmark Medicare Services)

Congress passed the Needlestick Safety and Prevention Act (the NSPA) in 2001.  The NSPA directed OSHA to revise its Bloodborne Pathogens Standard to require employers to provide safety-engineered devices to workers who are at risk for exposure to bloodborne pathogens, to review the control plans describing employee protection measures at least annually, and to maintain a sharps injury log.

The Office of the Inspector General (OIG) issued a press release alerting doctors and other providers to expect increased scrutiny from the OIG when reassigning their Medicare benefits to other entities.

CMS has, in the past, expressed concern regarding the use of concierge medicine by physicians treating Medicare patients.  CMS has prosecuted some concierge care practices for charging concierge fees for “non-covered services” under Medicare.  Despite this opposition, patients and physicians have increasingly implemented concierge-like relationships, including amenities that provide unlimited access to physicians via email, phone, or internet portals, house calls, and provide annual physicals for a periodic flat fee.

On February 24, 2012 the Centers for Medicare & Medicaid Services (“CMS”) released a Notice of Proposed Rulemaking setting forth the “Stage 2” Meaningful Use requirements.  The proposed rule specifies the Stage 2 criteria that eligible providers must meet in order to qualify for Medicare and/or Medicaid EHR incentive payments.

The three-day payment window policy which formally only applied to hospital payments, will now also apply to hospital-affiliated entities including physician practices, ambulatory surgery centers, or clinical lab facilities which provide Medicare Part B services.  Specifically, the Centers for Medicare and Medicaid Services (“CMS”) has expanded the three-day payment window to cover any hospital-associated entity that provides Medicare Part B billed services.  As of July 1, 2012, these entities will be required to be paid at the facility rate for the controlling hospital, instead of their current rates, if the services provided were both related to the reason for admission …

Outpatient Surgery Magazine recently published an article describing a case in New Jersey in which an ASC successfully defended an action brought by three physicians who were forced to sell their ownership interests in the ASC due to the physicians' failure to meet the "one-third procedures test" under the applicable federal anti-kickback statute safe harbor.

The National Law Review recently posted a good article on HIPAA Audits.

Today the Centers for Medicare and Medicaid Services (CMS) posted a pre-publication version of a proposed rule regarding the reporting and returning of overpayments. 

In the 2011 regular legislative session, Senate Bill 1661 was passed, and as of January 1 of 2012, is law.  The law requires that Non-Profit Health Organizations (“NPHO”) (formerly known as 5.01(a)’s), ensure through policies, that their employed physicians’ professional judgments are not interfered with, controlled, or otherwise directed by the NPHO. 

Senate Bill 192 Protects Texas Nurses from Retaliation For Engaging in Patient Advocacy Activities

Effective September 1, 2011, SB 192 expands Section 301.52 of the Texas Occupations Code to protect nurses who engage in patient advocacy activities from retaliation by any person.  Acts of retaliation include discipline, discrimination, or enforcing criminal liability.  Protected patient advocacy activities include making good faith reports of another health care provider’s wrong doing to:  (i) the applicable licensing board; (ii) a supervisor or manager; or (iii) hospital/facility officials.  SB 192 also protects nurses who advise other nurses about SB 192’s protections.

As flu season approaches, health care employers who have not done so should assess whether they want to implement a mandatory flu vaccine policy.  The answer requires consideration of several factors, including the success rate of voluntary vaccination programs, legal implications, patient and employee safety, liability risks, workplace efficiency, employee rights, and employee morale.  

Recent stories highlight the need for providers to be diligent in preventing unintended release of protected health information (PHI).  Tragic losses of PHI occur through theft, accident or malfunctioning equipment.  To protect the privacy of PHI,  providers must be alert to behaviors of their employees, patients, and even individuals who have no relationship to the facility.

Effective March 25, 2011, all Medicare providers must report a change in ownership, practice location, or an adverse legal action within 30 days. 

Over the last two months the health care lawyers of implant and medical device manufacturers, traditional distribution companies, and physician-owned distributors have been arguing over the legality of “physician-owned distributorships” or “PODs” as they are commonly called.  That argument has become very public lately, with articles in the Wall Street Journal and industry publications.  Most recently several United StatesSenators have inserted themselves into the debate.

The Patient Protection and Affordable Care Act (PPACA) established a voluntary insurance program that is not funded with tax dollars, known as the Community Living Assistance Service and Supports Act (CLASS).  CLASS provides contributing individuals a method to remain in their community by providing funding for community living services and supports.  The services and supports eligible for CLASS benefits include home health care, adult day care, assistive technology, home modifications, personal assistance and transportation.  CLASS is not designed to fully cover all costs associated with long-term care or replace basic health insurance, rather CLASS acts as a supplement to offset …

On June 22, 2010, the United States Attorney’s Office for the Southern District of Texas announced by a press release that it had obtained an indictment against Gary Morgan Swartz, DDS, a prominent oral surgeon in McAllen, Texas, for Medicaid fraud.  It announced a 22 count indictment, which included two of his employees, and it further indicted two unaffiliated dentists asserting an illegal kickback arrangement between them and Dr. Swartz.  The Texas Attorney General’s Office assisted in the investigation leading to the indictments.

Last month, the Centers for Medicare & Medicaid Services (CMS) issued the long-awaited proposed rule relating to Accountable Care Organizations (ACOs).  The Proposed Rule would implement the portion of the ACA that requires a Medicare Shared Savings Program (the “MSSP”) to be implemented no later than January 1, 2012.  Basically, the MSSP allows providers that receive traditional Medicare fee-for-service payments to be eligible for additional payment based on meeting certain quality performance and reporting requirements.  The proposed rule sets forth general eligibility and governance requirements, which include the requirement that the ACO and its ACO providers/suppliers commit to a three-year agreement with CMS.  Medicare …

Welcome to the first installment of our new blog - The Health Care Record.  The goal of our team of bloggers is to provide you with up-to-date information on new developments in health care law and help you with the changes spurred by health care reform.