By Kim Stanger
It’s that time of year when many healthcare providers offer free or discounted sports or student physicals as a community service or marketing ploy. If you participate in such programs, make sure you consider the legal issues, including the following: Continue reading
By Bradley Cave
The Families First Coronavirus Response Act created a bizarre contradiction for healthcare employers. While hospitals, clinics and other patient care providers worked under great strain to care for patients, with COVID-19 and other maladies, the Act would have permitted employees of healthcare providers to be absent from work, sometimes with pay, in some situations for up to 12 weeks. Saturday afternoon, the DOL issued new guidance to greatly expand the scope of employees that healthcare providers can exclude from the leave rights under FFCRA, sparing providers from crippling staff shortages during this pandemic.
FFCRA permitted employers to elect to exclude healthcare providers and emergency responders from the leave rights created by the act. However, the act did not define emergency responder, and borrowed the FMLA’s narrow definition of healthcare provider. As the act was written, healthcare employers could exclude only doctors, nurse practitioners and physicians’ assistants, along with a handful of other licensed professionals, from the leave rights under the act. Notably, RNs, LPNs and CNAs were not on the list of employees that could be excluded, nor were pharmacists, pharmacy techs, any type of therapists, or any of the support staff necessary to operate a hospital, nursing home or medical practice. Continue reading
Medical providers are sometimes faced with the difficult scenario of a minor (under 18 years of age) requesting medical or mental health treatment without a parent’s or legal guardian’s consent. This situation often arises in the context of sexually active minors who wish to obtain contraceptives available only through a medical provider (e.g., prescription birth control, IUD, etc.). When facing such scenarios, Utah providers need to be aware of relevant laws and carefully consider other implications. Continue reading
By Little V. West and Kaitlyn Luck
Surprise billing protections are part of both state and national policy agendas this year in an effort to provide health-care transparency and consumer transparency. New Mexico’s new law now protects consumers by specifically prohibiting health care providers from balance billing, and President Trump also signed an Executive Order with the same goals. New Mexico health care providers need to be aware of federal and state level developments regarding surprise billing because of the significant changes that could result in civil penalties for noncompliance if the proposed federal regulations are adopted.
On the state level, effective January 1, 2020, New Mexico’s Surprise Billing Protection Act (SB 337) (the Act) will generally prohibit providers from submitting a surprise bill to an insured person, or a collection agency, and provides for rights for insureds to appeal a health insurance carrier’s decision regarding a surprise bill. Among other things, the Act aims to prevent insured’s receipt of “surprise bills” by: (1) requiring a health insurance carrier to pay nonparticipating providers for emergency care necessary to evaluate and stabilize a covered person if a prudent layperson would believe such treatment is necessary, without requiring a prior authorization for such services; (2) requiring health insurance carriers to pay, and relieving an insured from liability for payment for, non-emergency care by an out-of-network provider when (a) the insured received care at an in-network facility, but did not have the ability or opportunity to choose an in-network provider who is available to provide covered services, or (b) medically necessary care is unavailable within the health benefit plan’s network; and (3) in nonemergency circumstances, requiring an out-of-network provider, with advance knowledge that the out-of-network provider is out of network, to inform the insured of that fact and to advise the insured person to contact their health insurance carrier to discuss the insured’s options. Balance billing is permitted by out-of-network providers to an individual who knowingly choses to receive services from the out-of-network provider. By July 1, 2020, the Act will require licensed health care facilities to post information about consumers’ rights.
Continue readingBy Eric Maxfield
In October 2018, the President signed the SUPPORT for Patients and Communities Act, a portion of which is known as the “Eliminating Kickbacks in Recovery Act of 2018” or “EKRA.” EKRA, aimed at the ongoing opioid crisis, is meant to prevent patient brokering, referrals, and kickbacks related to drug recovery and substance abuse treatment centers. EKRA’s language, however, is very broad and goes well beyond the opioid crisis to deal with “patient brokering,” which is when a substance abuse facility or provider pays a third party for referring or directing potential patients. EKRA violations carry significant penalties, including fines upwards of $200,000 per “occurrence,” as well as significant prison time.
While EKRA’s purpose is to address kickbacks related to the broader issues surrounding opioids, it is not limited exclusively to treatment centers per se. Instead, EKRA precludes the solicitation or receipt of value for referrals to recovery homes, clinical treatment centers, or laboratories. EKRA applies to public and – importantly – private commercial health benefit programs. This is effectively an expansion of the Federal Anti-Kickback Statute’s prohibition on kickbacks involving individuals covered by federal programs like Medicare, Medicaid, or TRICARE.
Continue readingby Kim Stanger
There is a common misunderstanding that healthcare providers may not or should not produce medical records that were created by another healthcare provider.
Under HIPAA, patients have a right to access all records that a provider maintains in a designated record set, i.e., documents the provider uses to make decisions about a patient’s healthcare or payment for healthcare. (45 CFR 164.524). This would generally include records the provider obtains or receives from other providers relating to the patient’s care. Thus, providers generally must produce such records in response to the patient’s request; failure to do so would violate HIPAA. The OCR published the following FAQ relevant to this issue:
A provider might have a patient’s medical record that contains older portions of a medical record that were created by another previous provider. Will the HIPAA Privacy Rule permit a provider who is a covered entity to disclose a complete medical record even though portions of the record were created by other providers?
Answer: Yes, the Privacy Rule permits a provider who is a covered entity to disclose a complete medical record including portions that were created by another provider, assuming that the disclosure is for a purpose permitted by the Privacy Rule, such as treatment. Continue reading
By Kim Stanger
Most Idaho healthcare providers are—or should be—aware of federal fraud and abuse laws, including the False Claims Act, Anti-Kickback Statute, Ethics in Patient Referrals Act (“Stark”), and the Civil Monetary Penalties Law, but they may not realize that Idaho has its own fraud and abuse laws that also apply. Violations may result in criminal, civil, and administrative penalties in addition to the obligation to repay amounts received in violation of the rules and provider agreement.
1. Idaho Anti-Kickback Statute. It is illegal for a health care provider to engage in the following misconduct:
(1)(a) Knowing that the payment is for the referral of a claimant to a service provider, either to accept payment from a [healthcare] provider or, being a [healthcare] provider, to pay another; or
(b) To provide or claim or represent to have provided services to a claimant, knowing the claimant was referred in violation of paragraph (a); [or]
(2) [E]ngage in a regular practice of waiving, rebating, giving, paying, or offering to waive, rebate, give or pay all or part of a claimant’s deductible or claim for casualty, disability insurance, worker’s compensation insurance, health insurance or property insurance.
(Idaho Code § 41-348). The statute applies to referrals for “health care services”, which are defined as “a service provided to a claimant for treatment of physical or mental illness or injury arising in whole or substantial part from trauma.” (Id. at § 41-348(2)). Violations may result in civil monetary penalties of up to $5,000. (Id. at §§ 41-348(4) and 41-347(1)). Significantly, the Idaho statute is broader than its federal counterpart: it applies to services payable by private payers as well as government programs. Continue reading
By Kim Stanger
As discussed in our recent client alert, the Civil Monetary Penalties Law generally prohibits providers from offering gifts to Medicare and Medicaid patients or other program beneficiaries if such gifts would induce the patient to receive care from a particular provider; however, the OIG allows gifts of “nominal value.” The OIG just issued a policy statement increasing the limit from $10 to $15 per item, and from $50 to $75 in the aggregate per patient on an annual basis. The items may not be cash or cash equivalents. Providers may want to modify their policies accordingly. Happy holidays from the OIG!
For questions regarding this update, please contact:
Kim C. Stanger
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email: kcstanger@hollandhart.com, phone: 208-383-3913
This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.