Med Law Blog : Pennsylvania Health Care Lawyers & Attorneys : Tucker Arensberg Law Firm : Employee Benefits, HIPAA & HIT in Pittsburgh, PA

By: Joni L. Landy, Esq.

New proposed cafeteria plan regulations were released on August 6, 2007 that replace prior proposed and temporary regulations, which are withdrawn, and consolidate law changes and guidance issued by the IRS over the past twenty years. The regulations preserve much of the existing guidance but clarify some outstanding issues and include a few new rules. Existing cafeteria plan regulations governing mid-year election changes and FMLA operations remain the same. This alert highlights some of the more notable new or clarifying provisions of the proposed regulations.

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CMS Issues Final Stark Phase III Regulations

Stark Phase III Regulations

On August 27, 2007, the Centers for Medicare and Medicaid Services (CMS) placed on display at the Office of the Federal Register a final rule on physician "self-referral" of Medicare beneficiaries for certain types of Medicare-covered services. The rule is commonly known as "Stark Phase III," named after the original sponsor of the legislation that became Section 1877 of the Social Security Act (42 U.S.C. § 1395nn) and being CMS' third final rule on the topic. With certain exceptions, "self-referral" is the practice of referring a patient to an entity in which a referring physician has an actual or deemed financial interest, either through an ownership or compensation arrangement.

Generally, the rule describes CMS' interpretation of the prohibitions and exceptions to the prohibitions laid out in Section 1877.

Among other changes, the rule:

·        Modifies physician recruitment restrictions;

·        Provides more flexibility in complying with non-monetary compensation limits;

·        Reduces the administrative burden of complying with some exceptions to the Stark limitations; and

·        "Clarifies" CMS' "interpretation of existing regulations."

The rule is scheduled to be published in the September 5, 2007, edition of the Federal Register.

Thanks to The RAP Practice Group of AHLA for posting this information.

Read the press release :

http://www.cms.hhs.gov/apps/media/press/release.asp?Counter=2417

or download the display version of the rule:

http://www.cms.hhs.gov/PhysicianSelfReferral/Downloads/CMS-1810-F.pdf

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By: Lee Kim, Esq.

Who owns the intellectual property rights (e.g., copyrightable material, invention, etc.) if one's employment contract is silent on the issue and is in the absence of an intellectual property ("IP") policy?

The following are situations in which the employer owns the IP:

-           Intellectual property has been created by an employee within the scope of employment.

-           Intellectual property has been created during working hours with the use of employer's facilities.

-           Intellectual property has been specially commissioned by the employer pursuant to a written agreement.

-           Intellectual property has been funded by federal funds, state funds, or third party sponsorship.

The following are examples in which the employee owns the IP:

-           Intellectual property created is unrelated to employee's job responsibilities and the employee made no more than incidental use of the employer's resources.

-           Employer has released the intellectual property to the inventor.

-           Employee has created a scholarly work, unless the employer specially commissioned such work (e.g., specifically hired the employee to create such a work or otherwise required the employee to create such a work).

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ASC PAYMENT REGS RELEASED

The Medicare Ambulatory Surgical Center (ASC) payment system final rule was published in the Federal Register by HHS on August 2, 2007. The link below is to the text of the regulations. The new payment rates will be effective for Medicare 2008, although the first impact will not be fully phased in until 2011, as follows:

                                    2008   -   25%

                                    2009   -   50%

                                    2010   -   75%

                                    2011   - 100%

The new system will increase the number of covered procedures from 2,571 5o 3,300. ASC groups expect payment reduction to a schedule that pays about 65% of hospital outpatient department payment rates.

Modern Healthcare reports in its July 23, 2007 issue that "ACS's Can't Drive at 65". The final rule established only policies and formulas for CMS to use in calculating payment rates, and the 65% is an estimate.

http://www.cms.hhs.gov/snfpps/downloads/CMS-1545-F-display.pdf

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