Med Law Blog : November 2009

Cap Count Estimates 3,500 H-1B Visas Remaining for Fiscal Year 2010

Posted on November 18, 2009 by Michael Cassidy

Contributed by: Piyush Seth, Esquire

As of November 6, 2009, approximately 54,700 H-1B cap-subject petitions had been filed. As per American Immigration Lawyers Association, see AILA InfoNet Doc. No. 09042065 (posted Nov. 17, 2009). USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Please click here for more information.

Tags: Immigration

Federal Judge Sentences Physician And Other Employees For HIPAA Violations

Posted on November 17, 2009 by Michael Cassidy

Contributed by Paul Welk, Esq.

pwelk@tuckerlaw.com, 412.594.5536

A federal judge in Arkansas sentenced a physician to one year of probation, a $5,000 fine and 50 hours of community service educating professionals on HIPAA; an account representative to one year of probation and a $2,500 fine; and an emergency unit coordinator to one year of probation and a $1,500 fine, all in connection with HIPAA violations related to viewing electronic medical records of a high profile patient at St. Vincent Infirmary Medical Center without a legitimate reason. Additionally, the physician was suspended for two weeks and ordered to complete additional HIPAA training while both the account representative and emergency unit coordinator were terminated from employment. The case was investigated by the Little Rock, Arkansas Division of the FBI and prosecuted by the US Attorney's Office.

Tags: HIPAA and HIT

More Changes to the Family and Medical Leave Act

Posted on November 17, 2009 by Michael Cassidy

The Family and Medical Leave Act provides for job protected unpaid leave for the birth, adoption, or foster care placement of a child, an employee's serious health condition, or to care for a parent, spouse or child with a serious health condition. The FMLA generally applies to employers with 50 or more employees, and to employees who have been employed by that employer for 12 months, whoworked 1,250 hours in the 12 months prior to the requested leave, and who work at a facility with 50 or more employees within a 75 mile radius.

In January 2008 (regulations were published in support in January 2009), the FMLA was amended to allow for up to 12 weeks of unpaid leave for a qualifying exigency arising out of the deployment to active duty of an employee's parent, child or spouse (exigency leave). It also added up to 26 weeks of leave to care for a family member who is injured while serving on active military duty (military caregiver leave).

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010(NDAA), which included a further expansion of the FMLA for military-related situations. Under the new law, military caregiver leave has been expanded, both as to who and what qualifies for the leave:

● Employees can take military caregiver leave (up to 26 weeks) to care for a family member who is a member of the Armed Forces (including the National Guard or Reserves) and who is undergoing treatment, recuperation, or therapy for a serious injury or illness, or for a family member who is a veteran of the Armed Forces for such an injury or illness for up to five years after their separation from the military. Prior to this, thecaregiver leave was only for family members still in the military, there was no caregiver leave for veterans.Veterans are now covered for five years after they leave the military.

● Military caregiver leave is also now extended to care for a family member (active duty or veteran as noted above) with a qualifying injury or illness that was incurred in the line of duty on active duty or which existed prior to the beginning of the member's active duty andwas aggravated by service in the line of duty on active duty in the Armed Forces, whether such injury or illness manifested itself before or after the member became a veteran.Prior to this, the caregiver leave was only for injuries or illnesses suffered on active militaryduty. There was no coverage for an injury or illness that existed prior to service even where it was aggravated by that service.

Military exigency leave has also been modified:

● Exigency leave can be taken (up to 12 weeks) when an employee's parent, child or spouse is deployed to a foreign country. Prior to this, itallowed suchleave only when the family member was called to active duty, not when deployed overseas.

● Exigency leave (up to 12 weeks) can also be taken when a family member is a member of the National Guard or Reserves and is called to active duty in a foreign country. Prior to this, such leave was provided where the family member was called to active duty "in support of a contingency operation." The new language "in a foreigncountry" clarifies and replaces the "in support of a contingency operation"language.

Employers must do several things based on these changes.

1.It is effective immediately, so employers must grant leave based on these changes going forward.

2.Employers must amend their FMLA policies to accurately reflect these changes.

3.A new FMLA poster is not yet available. When it is, the new poster should be downloaded or posted. Until then, I suggest you print this email, cut out the bullet points above, and post the above changes on your bulletin board.

4.Because of the Notice requirements, and the fact that any previous notice you provided to your employees is no longer accurate, I suggest that you provide a list of the above changes to all employees so that they have the most up-to-date revisions to the FMLA.

If you have any questions about the Family and Medical Leave Act, please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com.

Tags: Legal News

CMS Finalizes Supervision Requirements For Hospital Outpatient Services

Posted on November 13, 2009 by Michael Cassidy

CMS Finalizes Supervision Requirements For Hospital Outpatient Services

By Joan L. Lowes, Lori A. Wink, and Regan E. Tankersley, Hall Render Killian Heath & Lyman

The waiting is over for hospitals that have been anticipating further word from the Centers for Medicare and Medicaid Services (CMS) on the direct supervision requirements applicable to outpatient hospital services. Late last week, CMS issued the final calendar year 2010 hospital outpatient prospective payment system (OPPS) rule with additional comment period. The rule is effective January 1, 2010. Comments will be accepted until December 29. In this latest publication, CMS essentially adopted the proposals it made in July with several key changes and clarifications noted below.

Hospitals should carefully review all of the supervision provisions in the rule to ensure that the requirements will be met in all on- and off-campus locations. Compliance with the supervision requirements is a condition of coverage. Therefore, noncompliance with the supervision requirements could jeopardize a hospital's Medicare payments. Notably, CMS has indicated it places particular emphasis on ensuring the quality and safety of services provided off-campus and will be looking closely at situations involving noncompliance with the requirements in those locations.

For outpatient therapeutic services furnished by hospitals (including critical access hospitals) "incident to" the services of a physician:

Clinical psychologists, physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse midwives may directly supervise most hospital outpatient services they may perform themselves within their state scope of practice and hospital-granted privileges, and provided they meet collaboration and supervision requirements. One change of note: licensed clinical social workers were added to this list.
These mid-level practitioners may not supervise the provision of pulmonary rehabilitation, cardiac rehabilitation, and intensive cardiac rehabilitation. Only physicians (MD or DO) may supervise these services.
The supervising physician or nonphysician practitioner must be prepared to step in and perform the service, not just respond to an emergency. CMS explained that the supervisor must be "clinically appropriate" to supervise the service or procedure, i.e. he or she has the knowledge, skills, licensure, or hospital-granted privileges to do so.
For therapeutic services furnished in the hospital or in on-campus provider-based departments, direct supervision means that the physician or nonphysician practitioner must be present anywhere on the same campus and immediately available to furnish assistance and direction throughout the performance of the procedure. Significantly, CMS will allow the physician or nonphysician practitioner to be in a physician's office, on-campus SNF, RHC, or other nonhospital space (provided he or she is immediately available).
While CMS has not defined immediately available, it stated that it intends that the physician or nonphysician practitioner be close enough that he or she could intervene "right away."
For services provided off-campus, the direct supervision requirement means that the physician or nonphysician practitioner must be physically present in the off-campus provider based department and immediately available to furnish assistance and direction throughout the performance of the procedure. CMS appears to be giving hospitals no latitude to contract for the provision of supervision by physicians who are located within the same building as the hospital department, even if those physicians are immediately available.
CMS acknowledged that the supervision requirements for on-campus services required clarification prior to 2008. As a result, the agency stated it planned to use its discretion and decline to enforce where noncompliance was found in 2008 or earlier. However, the agency disagreed with commenters who requested the same tolerance for services furnished off-campus, stating its belief that the requirements were "clearly and consistently stated" in 2000.

CMS noted that the above requirements for therapeutic services are not applicable to rehabilitation services (physical therapy, occupational therapy, and speech therapy) because these services are not furnished by hospitals "incident to" the services of a physician.

For outpatient diagnostic services:

All hospital outpatient diagnostic services furnished directly or under arrangement, whether provided in the hospital, in a provider-based department, or at a nonhospital location, such as an independent diagnostic testing facility (IDTF), will be required to follow the Medicare Physician Fee Schedule physician supervision requirements for individual tests (general, direct, personal).
Only physicians may supervise the provision of diagnostic tests (with a limited exception for psychological and neuropsychological testing, which may be supervised by clinical psychologist). No other diagnostic tests may be supervised by nonphysician practitioner.

Tags: Medicare & Reimbursement

Physician Wins Case for Payment of Claims Made Tail Insurance

Posted on November 9, 2009 by Michael Cassidy

In Wojnicki v. Warren Geriatric Village, Inc. a malpractice action against Dr. Manisha Gupta and Anchor Senior Medical Services, LLC., a Michigan state court ruled that the nursing facility must indemnify Dr. Gupta for failing to provide the tail portion of a claims made malpractice policy.

The issue in this case was which party is responsible for the tail, or reporting endorsement, when the contract does not specifically address the problem. The contract in this case simply required the facility to provide malpractice coverage during the period of employment. The court concluded as follows:

“We conclude that this contract provision is not ambiguous. The plain language of the employment contract affords only one interpretation: Grand River agreed to provide professional liability insurance to Gupta that would cover the period of her employment. The alleged malpractice that gave rise to the underlying suit occurred during the period of Gupta’s employment with Grand River. Therefore, Grand River was contractually obligated to provide insurance that would cover this malpractice.”

Tags: Malpractice - Asset Protection

CBO Projects Minimal Impact of Tort Reform

Posted on November 9, 2009 by Michael Cassidy

One component of the ongoing health care reform debate is the cry for tort reform. While tort reform would certainly be welcome in the health care industry, the need for tort reform is more an issue of justice than controlling health care costs. The Congressional Budget Office (CBO) and the Congressional Research Service provided a report (Medical Malpractice Insurance and Health Reform: e-mail me your fax number if you want a copy) and a CBO opinion letter concluding as follows:

“In terms of direct costs, medical malpractice insurance adds relatively little to the cost of health care.”

The report concludes that currently, the medical liability insurance market is not exhibiting crisis systems and that problems with affordability and availability of malpractice insurance persists, but are less acute compared with previous time periods. It is estimated that tort reform might decrease malpractice premiums by approximately 10% in states which have not already embarked upon tort reforms, and this could reduce total health care costs by .2%, which is an extremely small percentage, but still a lot of money when total health care expenditures are expected to approach $3,000,000,000,000.

With respect to savings through unnecessary utilization, or defensive medicine, CBO predicts a potential .3% decrease in utilization, although probably less in markets which have aggressive managed care organizations which have presumably already reduced unnecessary utilization.

Experience would indicate that the malpractice insurance crisis was more adversely impacted by misguided state intervention in the insurance market, then by unnecessary utilization. Pennsylvania is a case in point. During the late 1980s and 1990s, Pennsylvania elected to attempt to stabilize the malpractice insurance market by establishing a two tiered malpractice insurance structure, in which physicians were required to buy personal insurance for the first level of coverage and the state provided insurance through the Catastrophic Loss Fund (Cat Fund) for a second level of insurance. Unfortunately, the Cat Fund was not managed on a sound actuarial basis. It basically operated on a cash basis, rather than establishing proven actuarial reserves. During the first several years of operation, when there were few claims and even fewer payouts, the state premiums were low. However, when claims and payments started to mount up, the lack of prudent reserves required the state to assess significant and surprising Cat Fund premium surcharges. The significant cost and uncertainty stimulated significant activity in captive insurance programs, so that now all of Pennsylvania’s large integrated delivery systems (e.g. UPMC, WPAHS, Geisinger, etc.) and many of Pennsylvania’s other smaller hospital systems and individual hospitals have captive insurance programs covering all of the physicians who are employed by these systems and many other physicians who participate in those hospital programs. This has relegated the private insurance market to a relatively small percentage of the physicians in the state, reducing competition and choices.

Pennsylvania as much as admitted the mistake when it scraped the Cat Fund and established its successor, the MCare Fund. However, more prudent management and the reduced scope of operations and risk do to the captive insurance market will presumably allow the MCare Fund to avoid the problems encountered by the Cat Fund.

Tags: Malpractice - Asset Protection

Department of Health and Human Services Publishes Interim Final Rule on HIPAA Enforcement

Posted on November 5, 2009 by Michael Cassidy

On October 30, 2009, the Department of Health and Human Services published an Interim Final Rule addressing HIPAA Enforcement. The Interim Final Rule, effective November 30, 2009, defines the terms "reasonable cause", "reasonable diligence", and "willful neglect" and relates those definitions to the applicable civil money penalties in the event of a violation. The Interim Final Rule also provides for affirmative defenses for covered entities with respect to such violations. Finally, Interim Final Rule provides the ability for the Secretary to waive civil money penalties in certain circumstances.

Posted by Paul J. Welk, Esquire

pwelk@tuckerlaw.com

Tags: Legal News

Reporting Purchased Services

Posted on November 5, 2009 by Michael Cassidy

CMS has issued MAC instructions for processing purchased services. Denials are keyed to the answer to question 20 on CMS-1500 (or ANSI X12 837P – line level PS1), which is the question regarding “Outside Lab.”

Tags: Medicare & Reimbursement

Enforcement Date for FTC Red Flag Rules Extended Until June 1, 2010

Posted on November 2, 2009 by Michael Cassidy

The FTC has again extended the enforcement deadline for the Red Flag Rules, this time until June 1, 2010. Additional details are available in the FTC's Press Release.

Posted by:

Paul Welk, Esquire

pwelk@tuckerlaw.com

Tags: Legal News