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McBrayer Blogs
Showing 6 posts from April 2013.
Doe v. Guthrie Clinic, Ltd.: A New Privacy Battleground?
Most health care providers are aware of the significant liability implications of a breach of protected health information, including, in some cases, the cost of issuing a breach notification to affected individuals. Providers have not, however, faced significant liability from patient lawsuits filed directly against a hospital or medical practice for damages arising from a breach of confidentiality. The reason is that patients face an uphill battle when suing a hospital or medical practice directly because most laws that protect patient information, including HIPAA, do not provide a private right of action for patients to sue the provider. More >
Get Ready to Negotiate: OIG Authorizes Hospitals to Pay Physicians for Call Coverage
Since the enactment of EMTALA in 1986, hospitals have struggled with providing sufficient call coverage to meet federal requirements as physicians have been increasingly hesitant to take on the added responsibility, cost, and risk of responding to emergency department requests for consultation. With patients often presenting in increasingly acute conditions with no health insurance coverage, physicians understandably find themselves between a rock and a hard place as utilization of hospital emergency departments has skyrocketed, particularly in Eastern Kentucky. And, it is becoming increasingly difficult to see these patients in the hospital emergency departments without also seeing the patients for follow-up in private physician offices often without payment. Thus, the movement for hospitals to pay for physician call services started amid a tangled web of intricate financial relationships, power struggles between hospitals and medical staff, and a statutory and regulatory maze of the Stark Law and Anti-kickback Statutes. Finally, good news is on the horizon as a result of a series of recent Department of Health and Human Services Office of Inspector General’s Advisory Opinions, which essentially give the okay for a hospital to pay a per diem fee to specialists providing unrestricted on-call coverage for hospital emergency departments within certain parameters. For physicians, these OIG Opinions give clear guidance and should be a tool to negotiate payment for call within the parameters of fair market value. More >
The Doctor Is Out, But The PA Will See You Now
On March 25, 2013, Governor Steve Beshear signed House Bill 104, a bill that will change how Physician Assistants (“PAs”) practice in the Commonwealth. Under former law, a PA had to be directly supervised in by a doctor in the first eighteen months of their medical practice. Kentucky had the longest supervision requirement of any state in the U.S. More >
Final Rule for Physician Payments Sunshine Act Recently Released
The long-awaited final regulations for the Physician Payments Sunshine Act (“Sunshine Act” or “Act”) were finally released on February 1, 2013. I previously discussed the Sunshine Act (see Here Comes the Sun, Are you Prepared?,10/18/2012), but with the final rule now implemented, providers should take a second look at it and reconsider its implications. More >
OIG 2013 WORK PLAN GIVES DIRECTION FOR PHYSICIANS
The government’s health care fraud prevention and enforcement efforts recovered a record $4.2 billion in taxpayer dollars in Fiscal Year (FY) 2012, up from nearly $4.1 billion in FY 2011. Over the last four years, the administration’s enforcement efforts have recovered $14.9 billion, up from $6.7 billion over the prior four-year period. During 2012, the Department of Justice (“DOJ”) opened 885 new civil health fraud investigations with 1,023 civil fraud matters pending at the end of the year. The DOJ also reported a record 647 whistleblower lawsuits and recovered $3.3 billion from lawsuits filed by whistleblowers. On the criminal side, the DOJ opened 1,121 new criminal healthcare fraud investigations with 2,032 healthcare fraud criminal investigations pending at the end of FY 2012. The DOJ filed criminal charges in 452 cases involving 892 defendants during that time. On the civil side, The Office of Inspector General for the U.S. Department of Health and Human Services (“OIG”) excluded 3,131 individuals and entities from participation in the Medicare and Medicaid programs during FY 2012. As the pursuit of health fraud becomes increasingly profitable reportedly returning $7.90 for every $1 spent, providers should expect to see a continued focus and devotion of resources by the federal government to combat healthcare fraud and abuse. Likewise, the floodgates appear to be opening for healthcare false claims cases as whistleblower suits are predicted to gain popularity as their success breeds volume increases. More >
House Bill 1 Revisited: Kentucky General Assembly Amends the Pill Mill Bill
In a 2012 Special Session, the Kentucky General Assembly passed House Bill 1, also known as the “pill mill bill,” to reign in the overprescribing of prescription drugs and the diversion of prescription drugs. Following the enactment of House Bill 1 and it being signed into law by Governor Beshear, the Cabinet and various licensure boards issued regulations implementing House Bill 1’s requirements. After emergency regulations were promulgated, Governor Beshear’s office held a series of stakeholder meetings to address the concerns of health care providers and other stakeholders to address some of the compliance and logistical issues that were being raised by stakeholders. Both Governor Beshear’s office, as well as various licensure boards, recognized that House Bill 1 and the implementing regulations would require amendment and refinement to address concerns raised by the provider community and other stakeholders. During the 2013 Regular Session of the General Assembly, some of these concerns were addressed in House Bill 217 which amended portions of House Bill 1 to address some of the compliance and other issues raised by health care providers and other stakeholders. More >
