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

As issued in June 2010, 45 CFR Part 170 - The Health Information Technology: Initial Set of Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology establishes certification programs for purposes of testing and certifying health information technology. This Rule specifically establishes:

• A temporary certification program to assure the availability of Certified EHR Technology prior to the date on which health care providers seeking the incentive payments would begin to report demonstrable meaningful use of Certified EHR Technology. 
   
• A permanent certification program to replace the temporary certification program.

The Temporary Certification Program will end when the Permanent Certification Program final rule is released in the future.

The Temporary Certification final rule may be accessed here: <http://edocket.access.gpo.gov/2010/2010-14999.htm>.

The Temporary Certification fact sheet may be accessed here: <http://healthit.hhs.gov/portal/server.pt?open=512&mode=2&objID=2887&PageID=19630>.

The Temporary Certification frequently asked questions may be accessed here: <http://healthit.hhs.gov/portal/server.pt?open=512&mode=2&objID=2886&PageID=19629>.

More information about the Standards & Certification Interim Final Rule may be found here:

<http://healthit.hhs.gov/portal/server.pt?open=512&objID=1195&parentname=CommunityPage&parentid=97&mode=2&in_hi_userid=11673&cached=true>.

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The Department of Labor has recently clarified its interpretation of when one stands "in loco parentis" for the purposes of taking FMLA leave.

The Family and Medical Leave Act (FMLA) entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave:

• for the birth of a son or daughter;
• for placement of a son or daughter with the employee for adoption or foster care; or
• to care for a son or daughter with a serious health condition. 

These are commonly referred to as the "birth, bonding or caring" leaves.

The FMLA defines "son or daughter" as being a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis...". While the FMLA regulations define "in loco parentis" as including those employees with day-to-day responsibilities to care for and financially support a child, the DOL is now interpreting that regulation to not require both day-to-day care and financial support, but only one of them, in order to stand in loco parentis. Therefore, an employee who provides day-to-day care to that child, despite no biological relationship or legal obligation, but who does not provide financial support, would qualify for FMLA leave. 

For example, a child whose biological parents are no longer together may have four people eligible to take FMLA leave; the father and his significant other and the mother and her significant other. The significant others have no biological or legal responsibility to the child, and may provide no financial support, but they may well provide day-to-day care while the child resides with them. 

This interpretation will also cover a grandparent who has significant responsibilities in raising a child, or who does not help raise the child but provides significant financial support to the child, making them eligible for FMLA leave under the DOL's interpretation of "in loco parentis." Similarly, a same sex partner, who has no legal relationship with the child of their partner may be entitled to such leave. By way of contrast, an employee who temporarily is caring for a child while the child's parents are on vacation would not meet either test and therefore would not be entitled to in loco parentis FMLA leave.

The take-away for employers is that they must be sensitive to employees requesting FMLA leave for "birth, bonding or caring" for a child, and determine, where there is no biological or legal relationship, whether the employee stands in loco parentis. For assistance in doing so, employers may contact any of the Labor and Employment Law attorneys at Tucker Arensberg, P.C.

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

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The President Signs the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 --  2.2 Percent Medicare Physician Fee Schedule Update for June 1, 2010, Through November 30, 2010

On June 25, 2010, President Obama signed into law the “Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010.”  This law establishes a 2.2 percent update to the Medicare Physician Fee Schedule (MPFS) payment rates retroactive from June 1 through November 30, 2010.  The Centers for Medicare & Medicaid Services (CMS) has directed Medicare claims administration contractors to discontinue processing claims at the negative update rates and to temporarily hold all claims for services rendered June 1, 2010, and later, until the new 2.2 percent update rates are tested and loaded into the Medicare contractors’ claims processing systems.  Effective testing of the new 2.2 percent update will ensure that claims are correctly paid at the new rates.  We expect to begin processing claims at the new rates no later than July 1, 2010.  Claims for services rendered prior to June 1, 2010, will continue to be processed and paid as usual.

Claims containing June 2010 dates of service which have been paid at the negative update rates will be reprocessed as soon as possible.  Under current law, Medicare payments to physicians and other providers paid under the MPFS are based upon the lesser of the submitted charge on the claim or the MPFS amount.  Claims containing June dates of service that were submitted with charges greater than or equal to the new 2.2 percent update rates will be automatically reprocessed.  Affected physicians/providers who submitted claims containing June dates of service with charges less than the 2.2 percent update amount will need to contact their local Medicare contractor to request an adjustment.  Submitted charges on claims cannot be altered without a request from the physician/provider.  Physicians/providers should not resubmit claims already submitted to their Medicare contractor.

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INTRODUCTION

Few discussions of health care reform, i.e. the Patient Protection and Affordable Care Act (PPACA) occur without mentioning the fact that the legislation exceeded 2,000 pages, therefore, a summary of the provisions that directly affect your reimbursement and your practice structure and health care coverage obligations might be helpful. 

I.          MEDICARE REIMBURSEMENT

1.         Physician Fee Schedule

(a)        The 21.3% SGR reduction has been delayed only until May 31, 2010.

(b)        Medicaid primary care physician fees must be 100% of Medicare in 2013 and 2014; no provision made thereafter.

 2.         Physician “Whole Hospital” Ownership Stark Exception

Physician owned hospitals are protected by grandfather provisions of PPACA if physician ownership established prior to December 31, 2010 and not changed after March 23, 2010, and provided no change in the number of licensed beds after March 23, 2010.

3.         Medicare Self-Referral Disclosure Protocol

PPACA § 6409 requires HHS to develop a Medicare self-referral disclosure protocol on or before September 23, 2010.

4.         Special Requirements for DME and Home Health Services

(a)        Effective July 1, 2010, ordering physicians must be enrolled in Medicare.

(b)        Physicians providing Home Health and DME services must maintain records of referring physicians.

(c)        Effective January 1, 2010, physicians certifying the medical necessity of Home Health and DME must have concluded face-to-face patient encounters, or some approved alternative.

5.         Registration of Billing Agents, Clearinghouses and Alternate Payees

PPACA § 6503 requires all billing agents, clearinghouses and alternate payees to be registered with CMS by December 31, 2010, in accordance with procedures to be announced. A comparison provision, § 6505, prohibits Medicaid payments to institutions or entities located outside of the U.S.

6.         Physician Quality Reporting Initiative (PQRI)

(a)        PQRI extended through 2014 and incentive payment increased by .5% for 2011 through 2014. Penalty provision of 1.50% reduction for non-participation kicks in in 2015.

(b)        CMS to develop Physician Compare Website by January 1, 2011.

7.         PPACA Reduces Medicare FFS Claim Filing Period to One Year.

PPACA § 6404 amends the timely filing requirements to reduce the maximum time period for submission of all Medicare FFS claims to one calendar year after the date of service. Under the new law, claims for services furnished on or after January 1, 2010, must be filed within one calendar year after the date of service. In addition, § 6404 mandates that claims for services furnished before January 1, 2010 must be filed no later than December 31, 2010. The following rules apply to claims with dates of service prior to January 1, 2010. Claims with dates of service before October 1, 2009, must follow the pre-PPACA timely filing rules. Claims with dates of service October 1, 2009 through December 31, 2009 must be submitted by December 31, 2010. For more details on this, see: http:www.cms.gov/mlnmattersarticles/downloads/mm6960.pdf.

II.        EMPLOYER AND FAMILY HEALTHCARE REFORM IMPACT ISSUES

1.         Employers with 50 or more employees who do not offer coverage must pay $750 per FTE penalty. Individuals must obtain minimum essential coverage starting in 2014. The penalties for individuals will be:

            (a)        2014 – $95

            (b)        2015 – $325

            (c)        2016+ – $695

2.         Employers with 50 or more employees who do not provide coverage, but apply waiting periods will pay penalty starting 2014:

(a)        30-60 days -- $400 per FTE

(b)       60-90 days -- $600 per FTE

3.         Flexible Spending Account contributions are capped at $2,500 starting 2013.

4.         The “Cadillac health plan” tax would be imposed starting 2018, with the thresholds of $8,900 for individual plans and $24,000 for family plans.

5.         Dependent coverage for all children until age 26 (regardless of statement or dependent status) and exclusions of children with pre-existing conditions prohibited effective for plan years beginning on or after September 23, 2010.

6.         Mandatory minimum benefit package will be developed to be effective January 1, 2014.

7.         Discrimination in benefit packages based on wages prohibited effective September 23, 2010.

8.         Small business tax credits for providing health care coverage begin in 2010. For these calculations, you should consult your accountants.

9.         Beginning in 2010, employers must report the value of health care benefits on employees’ W-2s.

III.       FUTURE REFORM INITIATIVES

1.         Center for Medicare and Medicaid Innovation to be established by January 1, 2011.

2.         HHS directed to develop Medicare Shared Savings Program and Accountable Care Organizations by January 1, 2012.

3.         HHS to develop national voluntary bundled payment plot pilot programs by January 1, 2013.

4.         There is no provision for tort reform.

CONCLUSION

It is ironic that the two most pressing questions regarding health care have vastly different timeframes. Relief from the Medicare Sustainable Growth Rate 21.3% fee schedule reduction extends only until May 31, 2010, at least at the time of the printing of this article. Congress neutralized the SGR reduction every year for the last five years and three times in the last five months. Obviously, a permanent fix of this issue is absolutely essential, and no one is guaranteeing that the permanent fix will mean maintenance of the status quo. Conversely, Medicare reform in the form of accountable care organizations, medical homes, and pay for performance are all pie in the sky at this point. The only thing PPACA does is create commissions to study the issue.

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On June 17, 2010, the federal government published the final interim regulations on the “grandfathering” of healthcare plans that existed when the health care reform legislation became law on March 23, 2010. These rules will help employers and plan sponsors determine if their health care plans comply with the health care reform law. Under the new rules, employers can make routine and modest adjustments to co-payments, deductibles and employer contributions to their employees’ premiums without forfeiting grandfather status. These routine changes include:

·   cost adjustments to keep pace with medical inflation;

·   adding new benefits;

·   making modest adjustments to existing benefits;

·   voluntarily adopting new consumer protection under the new law; and,

·   making changes to comply with state and federal law.

Plans will lose their “grandfather” status if they choose to significantly cut benefits or increase out-of-pocket spending for their plan participants -- and plan participants in health care plans that make such changes will gain new consumer protections such as:

·   coverage of recommended prevention services with no cost sharing;

·   patient protections such as guaranteed access to OB-GYNs and pediatricians. 

Changes that will cause plans that were in effect on March 23, 2010 to lose their “grandfathered” status are:

·   Significantly Cutting or Reducing Benefits: For instance, if a plan decides to no longer cover care for people with diabetes, cystic fibrosis or HIV/AIDS.

·   Raising Co-Payment Charges: Generally, plans require patients to pay a fixed-dollar amount for doctor’s office visits and other services. Compared with the co-payments in effect on March 23, 2010, grandfathered plans can increase those co-pays by no more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15 percentage points. For example, if a plan raises its co-payment from $30 to $50 over the next 2 years, it will lose its grandfathered status.

·   Significantly Raising Deductibles: Many plans require patients to pay the first bills they receive each year (for example, the first $500, $1,000 or $1,500 a year). Compared with the deductible required as of March 23, 2010, grandfathered plans can only increase these deductibles by a percentage equal to medical inflation plus 15 percentage points. In recent years, medical costs have increased an average of 4 to 5% so this formula would allow deductibles to go up, for example, by 19-20% between 2010 and 2011, or by 23-25% between 2010 and 2012. For a family with a $1,000 annual deductible, this would mean if they had a hike of $190 or $200 from 2010 to 2011, their plan could then increase the deductible again by another $50 the following year. 

·   Significantly Lowering Employer Contributions: Many employers pay a portion of their employees’ premium for insurance and the remainder is usually deducted from their paychecks. Grandfathered plans cannot decrease the percent of premiums the employer pays by more than 5 percentage points (for example, decrease their own share and increase the employees’ share of premium from 15% to 25%). 

·   Adding or Tightening an Annual Limit on What the Insurer Pays: Some insures cap the amount that they pay for covered services each year. If they want to retain their status as grandfathered plans, plans cannot tighten any annual dollar limit in place as of March 23, 2010. Moreover, plans that do not have an annual dollar limit cannot add a new one unless they are replacing a lifetime dollar limit with an annual dollar limit that is at least as high as the lifetime limit (which is more protective of high-cost enrollees). 

·   Changing Insurance Companies: If an employer decides to buy insurance for its employees from a different insurance company, this new insurer will not be considered a grandfathered plan. This does not apply when employers provide their own insurance to their employees switch plan administrators or to collective bargaining agreements. 

To protect against any potential abuse of grandfathered health plan status, the regulations require a grandfathered plan to disclose to consumers every time it distributes materials whether the plan believes that it is a grandfathered plan and therefore is not subject to some of the additional consumer protections of the Affordable Care Act. This enables consumers to understand the benefits of staying in a grandfathered plan or switching to a new plan. The plan must also provide contact information for enrollees to have their questions and complaints addressed. 

Additionally, a grandfathered plan’s status will be revoked if it forces consumers to switch to another grandfathered plan that, compared to the current plan, has less benefits or higher cost sharing as a means of avoiding new consumer protection. Grandfathered plan status will also be revoked if it forces consumers to switch to another plan simply to avoid complying with the law. 

Realizing that group health plans may have made some changes after March 23, 2010, the preamble to the interim final rules state that changes made in good faith compliance with the health care reform grandfathering requirements prior to the date of the interim final rules release may be disregarded by regulators for enforcement purposes if the changes only modestly exceed the permitted changes described above. 

Employers should review their benefit plan offers to determine whether the benefits of maintaining grandfathered health plan coverage outweigh the restrictions on plan design and cost-sharing changes imposed by the interim final rules. Employers who decide to retain the grandfathered status of their group health plan should carefully document the plan or policy terms in effect on the grandfather date and include the model grandfather statement in plan materials distributed to participants and beneficiaries. 

If you have any questions regarding this information, please contact Homer L. Walton at 412.594.5657 or Albert S. Lee at 412.594.5611, or hwalton@tuckerlaw.com or alee@tuckerlaw.com.

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Last Thursday, June 17th, the Supreme Court of the United States held that the National Labor Relations Board lacked authority to act in nearly 600 decisions issued from the end of 2007 to March of this year. In New Process Steel v. National Labor Relations Board that the Board was not authorized to issue decisions when three of its five seats were vacant. (No. 08-1457), the Court ruled (by a 5 to 4 decision)

The events leading up to this case are as follows: The Taft-Hartley Act expanded the Board from three to five members and 1) permitted the Board to delegate any or all of its powers to “any group of three or more members”; 2) provided that a “vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board”; and 3) provided that three members of the Board shall, at all times, constitute a quorum of the Board…” At the end of 2007, the four members of the Board delegated all of its authority to a three-member group. Three days later, the appointment of one of those three members expired, leaving the remaining two members as the only members of the Board. For twenty seven months, the two-member board (consisting of one Republican and one Democrat) issued over 600 decisions pertaining to union-employer labor disputes under the National Labor Relations Act. 

New Process Steel challenged two such NLRB decisions, arguing that the two-member Board lacked the authority to issue the orders. The Supreme Court held that a quorum of three members was necessary for the Board to have authority to issue any decision. While the Supreme Court was deciding this case, President Obama temporarily appointed two board members, bringing the current count to four and provided established authority to issue future decisions.   

The repercussions of this closely watched decision are not yet entirely clear. The most pressing question seems to be this: How does it affect the nearly 600 decisions issued by the two-member board? In New Process Steel, the Supreme Court simply reversed the decision of the court of appeals and remanded for further consideration, which in all likelihood means that the current four-member Board will have to re-hear the matter. The same result is likely in other cases that are cases still being challenged in the courts of appeals.

The Board has issued a press release which intimates that the NLRB believes it will re-hear these cases: “Five more cases [presenting the same issue] are pending before the Supreme Court, and sixty nine are pending before the Courts of Appeals. It is expected that those cases will be remanded to the Board, and the now-four member Board will decide the appropriate means for further considering and resolving them.”   Nevertheless, parties may decide that it is not worth the expense to challenge the two-member board decision after evaluating the likelihood of success in receiving a different decision the second time around.

For now, employers should be aware that prior NLRB decisions of the two-member board may be invalid and should review any current or prior litigation before the NLRB in order to determine if the Supreme Court’s decision affects them.

We will further update you when new decisions are issued.

If you have any questions about the National Labor Relations Act, the National Labor Relations Board or labor relations, please contact Albert S. Lee at 412.594.5611, Katherine E. Koop at 412.594.5508 or alee@tuckerlaw.com; kkoop@tuckerlaw.com.

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Senate passes six-month SGR fix

The U.S. Senate passed an amended version of H.R. 3962, now called the “Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010,” by unanimous consent this afternoon. This legislation provides a 2.2 percent Medicare physician payment update for six months, from June 1 through Nov. 30, in lieu of the 21 percent cut scheduled for 2010.

Unfortunately, the U.S. House of Representatives is not scheduled to hold any floor votes until the evening of June 22. As a result, the Centers for Medicare and Medicaid Services (CMS) is instructing its carriers to lift the hold on processing claims for services provided on or after June 1, and to begin processing them under the law’s negative update requirement. In other words, claims will begin to be paid today at the 21 percent lower rate on a first-in/first-out flow basis.

Once H.R. 3962 is passed by the House and signed by President Obama, CMS will retroactively adjust any June claims that have been paid.

View an AMA news release about the Medicare physician payment crisis.

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The Office of the National Coordinator for Health Information Technology (ONC) today issued a final rule to establish a temporary certification program for electronic health record (EHR) technology.  http://www.hhs.gov/news/press/2010pres/06/20100618d.html

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CMS will process claims tomorrow, June 18,
with 21 percent cut

As the clock continues to tick toward the June 18 final deadline for implementation of the 21.3 percent cut in Medicare physician payments produced by the sustainable growth rate (SGR) formula, U.S. Senate debate continued June 17 over H.R. 4213, the American Jobs and Closing Tax Loopholes Act. In addition to providing another short-term reprieve from the impending Medicare cut, the legislation would increase federal Medicaid funding and extend various expiring programs, such as disaster relief and long-term unemployment insurance benefits.

If legislation is not signed into law before the weekend, the Centers for Medicare and Medicaid Services (CMS) will have no option but to instruct its contractors to begin processing Medicare claims for physician services provided in June at rates that reflect the 21.3 percent cut.

Once the House and Senate act to avert the cut, claims will be processed as follows:

• If the submitted charge is higher than the new rate, the contractor will automatically reprocess the claim.
• If the submitted charge is lower than the new rate, the physician should call the contractor.

CMS says almost all physicians submit claims for more than the Medicare rates. No one is going to be reviewing the limiting charge for the period that the cut was in place because CMS assumes Congress will ultimately make the fix retroactive.

The Office of Inspector General and CMS are close to releasing a document to waive patient co-pay requirements for situations such as the retroactive increases that were made to the geographic practice cost index increases. CMS will share that document once it is available.

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In KD v. United States, a decision by the United States District Court for the District of Delaware, both granting and denying a motion for a protective order in parts, indicates that PSQIA of 2005 has changed its opinion regarding the protection of peer review documents under federal common law privilege. 

The opinion notes that the federal common law provides that all evidence is discoverable unless privileged, and analyzes the relevant Maryland statute and federal law regarding whether certain records generated through peer review at the National Heart, Lung and Blood Institute (NHLBI) within the National Institutes of Health (NIH) should be protected. The United States was asserting that the documents were privileged under the applicable Maryland medical peer review statute and federal common law. The plaintiff, seeking discovery of the medical records, obviously asserted that the information was discoverable. 

The interesting aspect of this case is the reference to PSQIA of 2005, which was not directly involved in the action. The court’s opinion discussed the history of federal common law privilege and medical peer review information, and acknowledged the significant impact of the Health Care Quality Improvement Act of 1986 (HCQIA); which statute expressly provided that information reported to the National Practitioner’s Data Bank was privileged, but was silent on the issue of confidentiality of records outside of the National Practitioner’s Data Bank. The court stated, “…hence, the prevailing analysis of the HCQIA is that Congress spoke loudly with its silence and not enacting a broad privilege against discovery of peer review materials.”

The Delaware District Court then goes on to state that, while not disputing the prior analysis of HCQIA, that:

“That legislation no longer represents Congress’s final word on the issue of medical peer review. The PSQIA of 2005, which postdates those cases turning on the HCQIA, announces a more general approval of the medical peer review process and more sweeping evidentiary protections from materials used therein… The text of the PSQIA corroborates this shift in congressional policy…The PSQIA was thus designed to encourage this culture of safety by providing for broad confidentiality and legal protections of information collected and reported voluntarily for the purposes of improving the quality of medical care and patient safety.”

The court relied upon this shift in federal policy to conclude that Federal Rule of Evidence 501 did not compel the disclosure of the NHLBI/NIH records. 

 

Category: Peer Review

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The 2010 Medicare Physician Fee Schedule

The Continuing Extension Act of 2010, enacted on April 15, 2010, extended the zero percent (0%) update to the 2010 Medicare Physician Fee Schedule (MPFS) through May 31, 2010.  At this time, Congress is debating the elimination of the negative update that took effect June 1, 2010.  The Centers for Medicare & Medicaid Services (CMS) is hopeful that Congressional action will be taken within the next several days to avert the negative update.

To avoid disruption in the delivery of health care services to beneficiaries and payment of claims for physicians, non-physician practitioners, and other providers paid under the MPFS, CMS had instructed its contractors on May 27^th to hold claims for services paid under the MPFS for the first 10 business days of June (i.e., through June 14, 2010).  This hold only affects MPFS claims with dates of service of June 1, 2010, and later.

Given the possibility of Congressional action in the very near future, CMS is now directing its contractors to continue holding June 1 and later claims through Thursday, June 17, lifting the hold on Friday, June 18. 

This action will facilitate accurate claims processing at the outset and minimize the need for claims reprocessing if Congressional action changes the negative update.  It also should minimize the provider and beneficiary burdens and costs associated with reprocessing claims.

We understand that the delayed processing of Medicare claims may present cash flow problems for some Medicare providers.  However, we expect that the delay, if any, beyond the normal processing period will be only a few days.  Be on the alert for more information regarding the 2010 Medicare Physician Fee Schedule Update.

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In Ramamurthy v. JFK Medical Center and Solaris Health System the Appellate Division of the Superior Court of New Jersey affirmed a summary judgment dismissing Dr. Ramamurthy’s Petition for Injunctive Relief, which sought a court order prohibiting a suspension imposed by the hospital. Dr. Ramamurthy had argued at the trial court level that the hospital had violated its bylaws, thereby providing grounds to invalidate the 90 day suspension.

Dr. Ramamurthy was suspended for 90 days by the hospital for improper conduct, as described in the opinion. At the time the issue arose, the president of the medical staff appointed a first ad hoc committee, to investigate Dr. Ramamurthy’s conduct. The president of the medical staff actually rejected the first committee’s findings for failure to conduct a proper investigation. The president of the medical staff appointed a second ad hoc committee. During the second committee’s investigation, only two of the five committee members interviewed Dr. Ramamurthy, but the committee report reflected consensus among the five members, recommending suspension. 

The medical executive committee received the second ad hoc committee’s report and invited Dr. Ramamurthy to a meeting to explain his position. Dr. Ramamurthy chose not to attend the first MEC meeting. At a second MEC meeting, the MEC issued a 90 day suspension.

Dr. Ramamurthy requested a fair hearing, as provided in the medical staff bylaws, to contest the recommendation for the 90 day suspension. A fair hearing was conducted and Dr. Ramamurthy was represented by counsel. The committee affirmed the recommendation of the MEC. Dr. Ramamurthy appealed the hearing panel’s decision to the hospital board pursuant to the appellate review procedures of the medical staff bylaws. The review panel affirmed the recommendation for suspension.

Dr. Ramamurthy then sought injunctive relief on the basis of the hospital’s violation of its bylaws, alleging four violations:

1.         The ad hoc committee was appointed by the president of the medical staff, rather than the chairman of the department;

2.         Only two members of the five person second ad hoc investigative committee interviewed Dr. Ramamurthy;

3.         No record was made of the first investigative committee’s interview; and

4.         Dr. Ramamurthy was not invited to attend the second MEC meeting.

The trial court concluded that none of these facts constituted violations of the medical staff bylaws, and granted the hospital’s Motion for Summary Judgment to dismiss the complaint. The appellate court essentially confirmed the decision of the New Jersey trial court. 

It is interesting to note that the appellate opinion neither mentions the issue of whether the medical staff bylaws constitute a contract in New Jersey, nor is there any discussion of Section § 11112(b) of the Health Care Quality Improvement Act (HCQIA), which provides that the due process procedures mandated by HCQIA are not specific requirements, but simply recommendations, and that immunity is available pursuant to HCQIA as long as the proceeds were fair under the circumstances. Perhaps the omission of the HCQIA argument is simply because it is now well recognized that HCQIA does not grant immunity from injunctive relief.

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Michael Cassidy's MedLawBlog was recently recognized by OnlineClasses.org as one of the 'Top 100 Twitterers in the Legal World'.  This list recognized feeds that had legal news and updates. 

Please click here to view the full list. 

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The Connecticut Supreme Court issued an interesting decision in the case of Harris v. Bradley Memorial Hospital & Health Center Inc. in May of 2010, which was precipitated by the summary suspension of Dr. Harris. Not only did it overturn the trial court’s grant of judgment notwithstanding the verdict in favor of the hospital, after a jury found that Dr. Harris was entitled to damages on his breach of contract claim, the Court also impliedly separated the peer review investigation into two parts, and granted immunity for damages under the Health Care Quality Improvement Act (HCQIA) for the pre-summary suspension activities but denied immunity for the post-summary suspension activities.  

Dr. Harris was summarily suspended in February 2001from the medical staff by the medical executive committee, sought and lost a medical staff hearing in which the recommendation supported the continuation of the suspension, and lost the appeal to the hospital board as well. Following the completion of the medical staff peer review process, Dr. Harris filed a complaint seeking damages, an injunction returning him to practice at the hospital, and damages for tortious interference with his contractual relationships and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). 

The hospital filed two summary judgments prior to trial, and the trial court found that the physician had presented no evidence challenging the hospital’s compliance with the statutory criteria of CUTPA in connection with all of the proceedings subsequent to the summary suspension on February 13, 2001, and therefore granted the defendant’s motion for summary judgment as to claims for damages, recognizing that HCQIA does not immunize against injunctive relief.

However, the court denied the motion with respect to damages sought in connection with events leading up to the summary suspension and denied the motion with respect to injunctive relief. Separating the investigation into two stages is unusual. Many physicians have utilized the strategy seeking to create a series of separate peer review actions and test all of those actions against the immunity conditions of HCQIA, and courts typically hold that the entire process is one aggregate peer review decision. 

Consideration of the “favorable termination doctrine” presents an unusual aspect in this case. The hospital argued that since the board previously held that the suspension was justifiable, the jury could not award damages for breach of contract, i.e. there was a prior favorable termination of the issue. The decision analyzes the origin and public policy of the favorable termination doctrine, which is to prevent litigants from obtaining judgments for justifiable actions, even if technical violations existed in the process. The court concluded this should not apply to health care because the more important public policy was supporting the role of a hospital board in insuring quality, rather than being concerned about potential liability for its actions. Therefore, the court overturned the judgment not withstanding the verdict, almost 9 years after the actual suspension. 

An additional interesting aspect in this case is the analysis of the HCQIA violations. The court concluded that an investigation lead by an economic competitor, an independent review of medical records in which the selected medical records were only the problem cases selected by the economic competitor, and the decision to impose summary suspension after months of investigation would have allowed the jury to conclude that the bylaws procedures had been violated and did not qualify for HCQIA immunity.

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 The Centers for Medicare & Medicaid Services has instructed its contractors to hold claims containing services paid under the Medicare physician fee schedule for the first 10 business days of June.

Congressional leaders are trying to avert a 21 percent payment cut scheduled to take effect June 1 under the current fee schedule.

The 10-day hold applies to claims with dates of service of June 1 and later. According to CMS officials, the hold should have little impact on provider cash flow because electronic claims are not paid until at least 14 calendar days after receipt.

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