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

On July 12, 2010 CMS published the proposed rules to implement the 50% Civil Money Penalty (CMP) reductions for nursing homes that self-report compliance violations. The potential for the 50% reductions was enacted by Section 6111 of the Patient Protection and Affordable Care Act (PPACA), and is available under the following conditions:

1.         The nursing home must self-report the compliance violation before CMS or the state discovers the violation;

2.         The compliance violation must be self-corrected within 10 days of being identified by the nursing home;

3.         The nursing home must waive the right to an administrative hearing; and

4.         The violation must not involve issues that jeopardize patient health, are part of a pattern of long-term harm, or have resulted in a patient death.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Fox v. Good Samaritan presents two interesting variations on issues commonly raised in peer review cases. The case originated 10 years ago and arises out of the suspension of Dr. Fox after he refused to designate a coverage physician with clinical privileges equal to his own. When Good Samaritan Hospital suspended his clinical privileges, following medical staff proceedings, Dr. Fox sued the defendants in federal court alleging various causes of action and that the hospital’s real reasons for suspending his privileges were retaliatory based on his criticism of hospital patient care. After years of litigation and on the eve of trial, the defendants filed a motion for summary judgment seeking immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The defendant’s motion for summary judgment was granted and the hospital then sought costs and attorney’s fees. The two interesting issues are the motion for costs and attorney’s fees and the due process standard of HCQIA.

As most peer review practitioners know, HCQIA provides immunity to hospitals that provide due process during peer review proceedings, but only recommends the standards for due process. There is a provision in Section 11112(b) stating that the failure to comply with the recommendations “shall not, in itself, constitute failure to meet the standards of subsection (a)” as long as “such other proceeds as are fair to the physician under the circumstances” are applied. The medical staff proceedings in the current case did not meet all of those standards, including the issue of whether Dr. Fox could call witnesses, but the court reasoned that the issue was simply whether Dr. Fox had provided alternate coverage and there was no factual or legal dispute regarding that issue. Therefore, the court concluded that the failure to meet the Safe Harbor standards of HCQIA was nevertheless fair to Dr. Fox under the circumstances. 

The other issue was the motion for costs and attorney’s fees, because Section 11113 provides that the court shall award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim and reasonable attorney’s fees, if the claim or the claimant’s conducts during the litigation was frivolous, unreasonable, without foundation or in bad faith. 

The court concluded that this standard was not met in the current case primarily because the defendants did not move for summary judgment for approximately six years. The court stressed that its decision was based on the unique facts and circumstances of the case and concluded that the significant attorney’s fees and costs were at least partially the responsibility of the defendants and that they could have presumably avoided them by moving for summary judgment at a much earlier date.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Tucker Arensberg is pleased to announce the launch of our new web site: www.tuckerlaw.com.  The site has been redesigned to serve as an information center to more effectively assist our clients and visitors.  We hope that you will visit www.tuckerlaw.com. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Health and Human Services ("HHS") has approved a request by the State of Florida to get access to Medicaid data so they can use data mining techniques to identify suspicious patterns in claims according to a speech given by Secretary Sebelius as part of the Regional Health Care Fraud Summit in Miami, Florida.

She has explained that  the Affordable Care Act adds new funding for the crack down on fraud, strengthens screenings for health care providers who want to participate in Medicaid or Medicare, makes it easier for law enforcement to see health care claims data from different government agencies in one place, and increases the penalties for fraud.

Additional information on Secretary Sebelius' speech is available at http://www.hhs.gov/secretary/about/speeches/sp20100716a.html.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

CMS published the payment policies under the 2011 Medicare Physician Fee Schedule on Tuesday, January 13, 2011. The Med Law Blog will be posting comments on significant provisions over the next several weeks. Please let us know if there is a particular issue you would like addressed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

http://www.ofr.gov/OFRUpload/OFRData/2010-16043_PI.pdf

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Physician Self-Referral

CMS proposes to implement changes enacted in ACA to the "whole hospital" and "rural provider" exceptions in the physician self-referral law that will prohibit their use by new physician-owned hospitals and limit the ability of existing physician-owned hospitals to expand their capacity. The deadline for physician investment and having a provider agreement in place is December 31, 2010. Some commentators had stated that the general eighteen month transition period for requirements may apply, but CMS states that it does not. The cut-off date for allowable physician investment for existing hospitals is March 23, 2010. Existing hospitals cannot add physician owners between March 23, 2010, and December 31, 2010. Regarding expansion of operating rooms, procedure rooms, and beds, the date for determining the baseline numbers is how many are licensed as of March 23, 2010, except for facilities that do not have a provider agreement in place at that time. For those facilities, the baseline numbers are set as of the provider agreement date. CMS states that the number of operating rooms, procedure rooms, and beds is capped as of the governing date, even if a state does not "license" these rooms per se.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

HHS: Meaningful Use, Standards, Certification Final Rule

CMS and ONC hosted a press briefing (on Tuesday, July 13, 2010 at 10:00 a.m. EDT) to announce the final rules on Meaningful Use and Standards and Certification under the HITECH Act’s Electronic Health Records (EHR) incentive program.

The final rule on meaningful use may be found at http://www.ofr.gov/OFRUpload/OFRData/2010-17207_PI.pdf.

The final rule on standards, implementation specifications, and certification criteria for EHR technology may be found at http://www.ofr.gov/OFRUpload/OFRData/2010-17210_PI.pdf.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Contributed by Paul J. Welk

412.594.5536, pwelk@tuckerlaw.com

Connecticut Attorney General Richard Blumenthal announced a settlement -- the first of its kind in the nation -- on July 6, 2010 with Health Net and its affiliates for failing to secure private patient medical records and financial information on nearly a half million Connecticut enrollees and promptly notify consumers endangered by the breach.

The settlement marks the first action by a state attorney general for violations of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) since the Health Information Technology for Economic and Clinical Health Act (HITECH) authorized state attorneys general to enforce HIPAA.

The Attorney General sued after Health Net allegedly lost a computer disk drive in May 2009 containing protected health and other private information on more than 500,000 Connecticut citizens` and 1.5 million consumers nationwide. The missing disk drive contained names, addresses, social security numbers, protected health information and financial information.  To read more about the settlement, click here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Health and Human Services ("HHS") Secretary Kathleen Sebelius announced yesterday important new proposed rules and resources to strengthen the privacy of health information and to help all Americans understand their rights and the resources available to safeguard their personal health data. 

The official release date of the new proposed rules is July 14, 2010.  These are modifications to the HIPAA Privacy, Security, and Enforcement Rules under the Health Information Technology for Economic and Clinical Health Act ("HIPAA").  The proposed rule is available in advance here: http://www.ofr.gov/OFRUpload/OFRData/2010-16718_PI.pdf.  (234 pages)

A summary is forthcoming and will be posted on Med Law Blog.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Contributed by Piyush Seth, Esquire

pseth@tuckerlaw.com or 412.594.5640

July 6, 2010, the Department of Justice, the Department of Homeland Security, and the Department of State, which share responsibilities in administering federal immigration law filed suit against Arizona’s recently passed immigration law, S.B. 1070, in Federal court citing conflict with Federal law. 

Attorney General Holder stated in his announcement that “Arizonans are understandably frustrated with illegal immigration, and the federal government has a responsibility to comprehensively address those concerns, but diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety. Setting immigration policy and enforcing immigration laws is a national responsibility. Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.”

The Department has stated that in its brief that Arizona’s immigration policy exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives. S.B. 1070 does not simply seek to provide legitimate support to the federal government’s immigration policy, but instead creates an unprecedented independent immigration scheme that exceeds constitutional boundaries,” the Department said in its brief.

Please click for a copy of the complaint and motion for preliminary injunction.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This might come as a surpise to some, but the "medical profession" get's no special leeway on sexual harassment and off-color remarks because of the nature of their work. Read the following article posted on Maria Danaher's eployment law blog:

http://www.employmentlawmatters.net/

• Email This
• Print
• Comments
• Trackbacks
• Share Link