Ohio Proposes New Telehealth Prescribing Regulations

The Ohio State Medical Board has proposed new telehealth prescribing regulations, which are predicated upon whether the drug is a controlled or not a controlled substance.

Non-Controlled Substances

For non-controlled substances, physicians may prescribe or dispense medication to a person on whom the physician has never previously conducted a medical evaluation only if the physician completes and document a medical evaluation and collects a relevant clinical history that “conforms to minimal standards of care consistent with an evaluation that was completed in a face-to-face interaction” using real time telehealth technology.

Controlled Substances

For controlled substances, physicians may dispense or prescribe only in the following situations:

  1. On-call or cross coverage arrangements with another physician.
  2. Consulting with another physician or healthcare provider.
  3. As a medical director or hospice physician to a patient enrolled in hospice program.
  4. Persons for in-patients or residents of institutional facilities.

Pennsylvania Nursing Home That Failed To Sign Arbitration Agreement Cannot Seek to Enforce the Agreement

Danielle Dietrich, an attorney in Tucker Arensberg’s Pittsburgh office, recently prepared the below:

On January 15, 2015, the Pennsylvania Superior Court in Bair v. Manor Care of Elizabethtown, PA, LLC 2015 Pa. Super. 9 (2015) ruled that a nursing home arbitration agreement was not enforceable when the facility did not sign the agreement.

M. Sylvia Bair commenced this action for wrongful death and survival in the Court of Common Pleas of Lancaster County as Executrix of the Estate of Martha A. Edwards against Manor Care, alleging that neglect and abuse of Ms. Edwards by Manor Care lead to her death.

Manor Care filed preliminary objections seeking to have the case referred to arbitration pursuant to an arbitration agreement executed by Ms. Bair on behalf of Ms. Edwards upon her admission to Manor Care. However, no Manor Care representative completed or signed the arbitration agreement on behalf of the entity. The trial court overruled Manor Care’s preliminary objections, permitting the litigation to move forward in the state court. Manor Care appealed to the Pennsylvania Superior Court.

The “Voluntary Arbitration Agreement” at issue contained blanks on the first page for the insertion of the names of the contracting parties and the date. Those blanks were not completed. The agreement also failed to attach a brochure to which it referred and incorporated into the agreement. There were also signature lines for the Patient, the Patient’s legal representative and for the Center Representative. The Center Representative did not sign the agreement.

Manor Care argued that the mere presentation of the form constituted an offer to arbitrate. By signing the agreement, they argued, Ms. Bair accepted the offer.

Ms. Bair argued that the form does not indicate who the parties are and that the form was “facially devoid of essential terms” and was therefore unenforceable.

The Superior Court found that by failing to affix its signature, Manor Care did not consent to arbitrate, as there was no mutual assent. It found that the nursing home could not enforce the arbitration agreement.

New York Passes Telehealth Bill

New York Governor Andrew Cuomo signed a Bill late last week, which will take effect as of January 1, expanding telehealth coverage in New York. This law does three things which are on the leading edge of telehealth coverage:

  1. First, it requires commercial insurance and medical assistance to provide telehealth coverage, which provision is often referred to as “parity legislation” by telehealth providers.
  2. Second, in defining the originating site for telehealth coverage, it does not exclude a patient’s home. Rather, the new law defines the originating site as “a site at which a patient is located at the time healthcare services are provided to him or her by means of telemedicine or telehealth”. There is no exclusion for a patient’s home.
  3. Third, it defines telehealth technology as “information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means which facilitate this assessment, diagnosis, consultation, treatment, education, care management and self management” without specifying that the technology must be either synchronous or asynchronous, thereby allowing the providers and insurers to choose any technology which they believe permits appropriate delivery of care.

Important Ruling on Required FMLA Notices

Scott Leah, an attorney in Tucker Arensberg’s Pittsburgh office, recently circulated the below client alert:

Employers with more than 50 employees need to be aware of a recent ruling on FMLA notices, which employers are required to give to employees.

In Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3d. Cir. 2014), the employer mailed an FMLA notice to the employee, and later fired the employee for not returning to work after the expiration of her 12 weeks of FMLA leave. The employee claimed to have not been aware that her leave was being considered to be FMLA leave and the date that she was required to return to work.

The employee denied receiving the notice, and the employer could not prove that the employee received it. The Court ruled for the employee, noting that the employer could have sent the notice in a manner that would prove delivery (such as certified mail or FedEx), for little cost. The Court therefore ruled for the employee on her claim of interference with her FMLA rights.

While is it best to give FMLA notices personally to an employee, if they must be mailed, the wise course of action would be to do so by certified mail or FedEx.

Washington State Court Recognizes Prospective Patient Relationships as Protected Contracts

42 U.S.C. § 1981 prohibits discrimination affecting citizens rights to make contracts. In the credentialing field, § 1981 has been used to circumvent the immunities provided by the Health Care Quality Improvement Act (HCQIA) because HCQIA provides an express exception stating that it doesn’t apply to actions brought pursuant to Section 1981.

The premise is that adverse credentialing actions violate a physician’s right to make contracts. In states which recognize medical staff bylaws as contracts, that contractual opportunity is often the basis for a discrimination suit. However, in states that do not recognize medical staff bylaws as contracts, physicians must find other grounds.

In Sambasivan, Dr. Sambasivan alleged two grounds which the Washington State Appeals Court found sufficient to avoid summary judgment and allow a trial on the merits:

  • The hospital in question routinely granted physicians with clinical privileges the right to participate in call coverage arrangements pursuant to contracts that provide additional compensation; and
  • The court recognized that prospective patient relationships might also be contracts, and that denial of privileges would interfere with the physician’s opportunity to benefit from those contracts.

The Court specifically rejected the defense, asserted by the hospital, that Dr. Sambasivan could treat those patients at other hospitals, because Section 1981 protects a citizen’s right to enter into all contracts and the fact that a physician might have an alternative but comparable opportunity should not be recognized as a defense to discrimination actions.

CMS Proposes Rules to Improve Accountable Care Organizations (ACOs)

The Centers for Medicare and Medicaid Services (CMS) released a proposed rule intended to make ACOs and Medicare Shared Savings Plans more practical and attractive to potential providers. The proposed rule was released on December 1, 2014, along with a CMS Fact Sheet.

Longer Lead Time to Develop

In order to provide more development time, CMS is proposing to permit ACOs to participate in one additional agreement under track 1 (which was the shared savings without risking losses track), but at a lower sharing rate than the previous agreement to encourage progression along the performance risk continuum. The new option would be available to ACOs that had already met the quality performance standards in at least one of the first two years, and which have not generated losses that exceed the negative medical savings rate (MSR) in both of the first two years of the previous agreement.

Revised Beneficiary Assignment Protocols

Under the existing rules, beneficiaries are assigned to ACOs in two steps, after first identifying actual service by a primary care physicians, based on the plurality of primary care services furnished by either primary care physicians or by specialists physicians, nurse practitioners, physician assistants, and clinical nurse specialists. CMS is proposing to revise the second step of the assignment methodology to remove certain specialty types whose services are not likely to be indicative of primary care services. In addition, CMS is proposing to include nurse practitioners, physician assistants, and clinical nurse specialists primary care services in step one in order to recognize the primary care delivered by those professionals.

Encouraging ACOs to Take on Greater Performance Base Risk

CMS is looking for methodologies to allow ACOs to progress further along the performance risk continuum. CMS is seeking comment on a number of modifications including:

  • Proposing to implement an additional performance risk based model (track 3) for ACOs to participate in the shared savings program. Track 3 would offer a higher sharing rate than tracks 1 and 2 and would prospectively assign beneficiaries to the ACO rather than preliminarily assigning beneficiaries to ACOs and then doing a retrospective reconciliation.
  • Proposing to modify track 2 to increase it’s attractiveness by making the minimum savings and loss rates variable rather than current flat 2%.
  • Seeking comment on what other design elements would be necessary for organizations to consider taking on greater financial risk including allowing beneficiary assignment based upon beneficiary attestation and waiving certain fee for service payment and regulations relating to qualifying hospital stays for skilled nursing facility admission, telehealth, qualifications for home health services, and qualifications for post acute referrals.