Strasburger Health Industry Online News

WARNING: YOUR ASSIGNMENT OF BENEFITS FORM MAY LEAVE YOU EMPTY-HANDED

Wed, 18 Jan 2012 12:00:00 CST

WARNING: YOUR ASSIGNMENT OF BENEFITS FORM MAY LEAVE YOU EMPTY-HANDED by Debra W. Biehle
Many health care providers give little thought to their assignment of benefits form. It is one of many documents which the patient must sign upon intake or admission. However, the precise language within the assignment of benefits form becomes critical when a non-participating provider files suit against the insurance company in a reimbursement dispute. Once litigation is underway, insurance companies typically challenge the non-participating provider’s right to maintain the lawsuit based on alleged lack of standing. In the legal context “standing” means the right to “stand in the shoes” of the patient and assert any claims he/she could have asserted against the insurance company. For the non-participating provider, standing is most often obtained via the assignment of benefits form. This is the document in which the patient assigns his or her rights under the health insurance plan to the provider. In certain cases, even a “bare bones” assignment may be sufficient to confer standing on the provider. However, the issue is greatly complicated by the fact that in the vast majority of cases, the health benefits plan at issue is governed under the terms of the Employee Retirement Income Security Act of 1974 (“ERISA”). ERISA strictly limits the persons who may bring suit to recover benefits under an ERISA-governed plan. For the unwary provider, an insufficient assignment of benefits can destroy its chances of recovery...

Manufacturers Must Soon Track and Report Payments to Health Care Professionals: Are You Prepared?

Tue, 01 Nov 2011 07:00:00 CST

Manufacturers Must Soon Track and Report Payments to Health Care Professionals: Are You Prepared? by Cassia M. Ysaguirre
The Patient Protection and Affordable Care Act of 2009 (“Health Reform Law”) contains many provisions aimed at reducing health care fraud and abuse in the United States. One provision aims to ensure transparency in the relationships between manufacturers and distributors of pharmaceuticals, biologics, medical devices, and medical supplies (“Manufacturers”) and physicians and teaching hospitals (“Covered Recipients”). Specifically, the Health Reform Law requires Manufacturers to report payments or other transfers of value in the 2012 calendar year to Covered Recipients in electronic format by March 31, 2013, and on the 90th day following each calendar year thereafter. As a result, Manufacturers must begin tracking payments and other transfers of value on January 1, 2012. The types of payments and transfers of value that must be reported include...

Don’t Mess with the New Texas Healthcare Privacy Laws

Wed, 07 Sep 2011 07:00:00 CST

Don’t Mess with the New Texas Healthcare Privacy Laws by Craig H. Myers
A new law that sailed through both houses unopposed and was signed by Texas Governor Rick Perry modifies Chapter 181 of the Texas Health & Safety Code, provisions that deal with the privacy of electronic medical records. These new laws, which go into effect on September 1, 2012, are considerably broader than the analogous laws at the federal level, the Health Insurance Portability and Accountability Act “HIPAA” and its associated regulations...

Driving Between the Lines: The Catholic Healthcare West Settlement and the Importance of Balancing I-9 Compliance With Nondiscriminatory I-9 Practices

Tue, 02 Aug 2011 09:00:00 CST

Driving Between the Lines: The Catholic Healthcare West Settlement and the Importance of Balancing I-9 Compliance With Nondiscriminatory I-9 Practices by Brian Graham
Late last year Catholic Healthcare West, the nation’s eighth largest healthcare provider, agreed to pay the Justice Department $275,000 in civil penalties to resolve claims of unfair immigration-related discrimination arising from the hiring process. This was the largest such penalty ever levied under 8 U.S.C. § 1324b, which prohibits discrimination in connection with completion of the Form I-9, Employment Eligibility Verification Form. Immigration-related discrimination typically arises where employers overreach in trying to ensure I-9 compliance, either by asking employees for more documents than necessary, or by demanding specific documents from workers based on their citizenship status...

Federal Preemption of Failure to Warn Claims against Generic Drug Manufacturers

Tue, 28 Jun 2011 07:00:00 CST

Federal Preemption of Failure to Warn Claims against Generic Drug Manufacturers by Michael A. Walsh
On June 23, 2011 in Mensing v Pliva and Demahy v Actavis the United States Supreme Court held that because under federal law a generic manufacturer can not change its label, a generic manufacturer may not be sued for failing to meet the requirements of state law. Under the current federal law and regulations, generic manufacturers must copy, verbatim, the branded drug label and may not change their label unless the branded label is first changed. Lawsuits claiming failure to warn against innovators/branded drug manufacturers, are not preempted because the Court held that those manufacturers can change the label to meet the requirements of state law before getting FDA approval...

Mandatory Compliance Programs Are Coming – Are You Ready?

Wed, 08 Jun 2011 07:00:00 CST

Mandatory Compliance Programs Are Coming – Are You Ready? by Debra W. Biehle
The Office of Inspector General (“OIG”) of the Department of Health and Human Services (“HHS”) has long encouraged members of the healthcare industry to voluntarily adopt compliance plans to prevent and detect fraud and abuse. However, with the enactment of The Patient Protection and Affordable Care Act (the “Act”), such compliance plans will, for the first time, be mandatory for all suppliers and healthcare providers enrolled in federal healthcare programs. The Act states that “a provider of medical or other items or services or supplier within a particular industry sector or category shall, as a condition of enrollment in the program under this title . . . establish a compliance program…” HHS, in consultation with the OIG, is tasked with the duty of establishing the core elements of the compliance programs and the timeline for implementation of same. Failure to comply can result in exclusion from federal healthcare programs and monetary penalties....

AN OUNCE OF TRADEMARK PROTECTION IS WORTH A POUND OF CURE

Tue, 03 May 2011 08:00:00 CST

AN OUNCE OF TRADEMARK PROTECTION IS WORTH A POUND OF CURE by John A. Tang
How are aspirin, Kleenex tissues, and Nexium, The Purple Pill related? Well, for most who suffer from allergies, work long strenuous hours and eat at their local Chinese buffet restaurant, these items may be found in their office. From an intellectual property point of view, all began as strong trademarks. Today, Aspirin has flatlined, the Kleenex® brand is on life support and Nexium®, The Purple Pill®, is going strong. This article discusses ways to protect your trademark and keep the generic bug away.....

Penalties for Failure to Report and Return Overpayments: A Price You Don’t Want to Pay

Wed, 16 Mar 2011 08:00:00 CST

Penalties for Failure to Report and Return Overpayments: A Price You Don’t Want to Pay by Michael Smith
As we approach the one-year mark since the enactment of Patient Protection and Affordable Care Act (the “Affordable Care Act”), providers should revisit their policies and procedures to ensure compliance with certain duties established under the historic legislation. One such duty relates to timeframe for returning overpayments to government payors. Effective on March 23, 2010, the date the act was signed into law, health care providers are required to report and return overpayments, along with an explanation for the overpayment, within 60 days of the date such overpayments are identified. While the duty to return overpayments is not new, under the Affordable Care Act, a health care provider that fails to report and return overpayments by the deadline is subject to liability under the federal False Claims Act (the “FCA”). Failure to report and return in a timely manner may also lead to additional civil money penalties, criminal penalties, and exclusion from Medicare and Medicaid programs....

The Fight for Reimbursement - How Can Healthcare Providers Receive the Third Party Reimbursement They Deserve?

Tue, 15 Feb 2011 08:00:00 CST

The Fight for Reimbursement - How Can Healthcare Providers Receive the Third Party Reimbursement They Deserve? by Debra W. Biehle
Healthcare providers devote long hours providing quality healthcare to their patients. Unfortunately, these same providers often face an uphill battle to obtain the reimbursement they rightfully deserve for their efforts from third party insurers. Providers spend countless hours battling with insurance companies – time that would be better spent caring for patients. At times, it can seem as though a healthcare provider is in the collection business and not the profession of caring for the sick. The following information is intended to guide providers through the process to ensure they receive the full reimbursement to which they are entitled...

Guzman v. Memorial Hermann Hospital System

Thu, 06 Jan 2011 08:00:00 CST

Guzman v. Memorial Hermann Hospital System: The Scope of EMTALA in the Fifth Circuit by Maggie Murray
On October 5, 2010, the United States Fifth Circuit Court of Appeals heard oral arguments in Guzman v. Memorial Hermann Hospital System. The case involves several important questions regarding the application of EMTALA, the federal statute enacted to prevent hospitals from transferring or refusing to treat uninsured patients, who “present” themselves at the hospital emergency room. EMTALA requires, among other things, “an appropriate medical screening examination” to detect emergent medical conditions. However, “appropriate” was left undefined by Congress, and the discrepancy over what constitutes an appropriate medical screening examination has left the federal courts, including federal district courts in Texas, divided in their interpretation and application of the statute...

Physician Practice Options in the New Health Reform Paradigm

Wed, 08 Dec 2010 08:00:00 CST

Physician Practice Options in the New Health Reform Paradigm by Stuart F. Miller and Kathryn M. Darling
Last Wednesday, Strasburger & Price published an article written by Stuart Miller in the Health Industry Online titled “Selling Your Private Practice to a Hospital.” Since that time, we have received numerous questions and comments from friends and clients about whether we were advocating that physicians sell their practices to hospitals. Our response: “Absolutely not.” ...

Selling Your Private Practice to a Hospital

Wed, 01 Dec 2010 07:00:00 CST

Selling Your Private Practice to a Hospital by Stuart F. Miller
The sale of physician practices to hospitals is a growing trend in the health care market in Texas and throughout the United States. The NY Times noted earlier this year that in 2005, more than two-thirds of medical practices were physician owned, while now it is less than fifty percent. The shift toward hospital based physician practices is increasing every year. There are a number of reasons for this change in the ownership of medical practices.....

What is an Accountable Care Organization?

Thu, 02 Sep 2010 07:00:00 CST

What is an Accountable Care Organization? by Bill Darling
The health reform act authorizes the creation an entity known as an Accountable Care Organization (ACO). There is substantial confusion surrounding the role of ACOs and how they will function. ACOs were authorized under Title III of the Patient Protection and Accountable Care Act (PPACA). PPACA directs the Secretary of Health & Human Services (Secretary) to establish a shared savings program under both Parts A and B of Medicare to improve quality and efficiency of the health care delivery system no later than January 1, 2012......

HHS Issues Security Guidance on Risk Analysis

Mon, 12 Jul 2010 07:00:00 CST

HHS Issues Security Guidance on Risk Analysis by Michael Smith
As discussed in a prior edition of Health Industry Online, the enactment of the American Recovery and Reinvestment Act of 2009 (ARRA), and more specifically, Title XIII of the ARRA, known as the Health Information Technology for Economic and Clinical Health Act (HITECH Act) has caused many health care providers and business associates to revisit their existing policies and procedures relating to compliance with HIPAA and its privacy and security regulations.....

Physicians Implement Now!: In-Office Ancillary Services New Disclosure Requirements

Wed, 02 Jun 2010 09:00:00 CST

Physicians Implement Now!: In-Office Ancillary Services New Disclosure Requirements by Michael Smith
On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (“PPACA”) into law. As discussed in our previous edition of Health Industry Online, the provisions of PPACA are far reaching and will significantly impact the delivery and regulation of health care in the United States for the foreseeable future. One such regulatory change is the addition of certain disclosure requirements to the in-office ancillary services (“IOAS”) exception to the federal physician self-referral law, commonly known as the Stark Law.......

Health Care Reform - The Translation

Wed, 19 May 2010 09:00:00 CST

Health Care Reform - The Translation by Kathryn Midboe Darling
Enactment of the Patient Protection and Affordable Care Act (“PPACA” or the “Act”), as amended by the reconciliation act, has consultants, lawyers and policy think tanks scrambling to educate the public, the health industry and payors about the most far reaching piece of legislation in the nation’s history. The size and breadth of the law is overwhelming. The number of pages is intimidating enough. However, the provisions of this Act are so far reaching that they touch almost every person, hospital, physician, healthcare provider, payor, employer, government-sponsored health program, supplier, pharmacy, and taxpayer......

Law Enforcement Requests for PHI - What is Permissible?

Thu, 06 May 2010 09:00:00 CST

Law Enforcement Requests for PHI - What is Permissible? by Laura Reilly O’Hara
Most law abiding citizens and healthcare providers tend to have a knee-jerk reaction when asked for something from a law enforcement agency - they just say yes. However, as a recent Ohio federal court case reminds us, that reaction may get you into trouble. In Turk vs. Oiler, N.D. Ohio, No. 09-cv-381, 2/1/10, the U.S. District Court for the Northern District of Ohio refused to dismiss claims of invasion of privacy and civil rights violations against the Cleveland Clinic based on it’s compliance with a grand jury subpoena seeking the medical records of a patient during investigation of criminal weapon related charges. The Court held that the HIPAA Law Enforcement Purpose permitted disclosure exception did not provide a defense to disclosure of the PHI in this case because Ohio state law does not make an exception to the physician/patient privilege for grand jury subpoenas. The lesson here is that HIPAA compliance alone is insufficient if the applicable state law is more stringent.....

National Practitioner Databank: Due Process Requirements

Mon, 08 Mar 2010 09:00:00 CST

National Practitioner Databank: Due Process Requirements by Mary Elizondo Frazier
On January 28, 2010, the Department of Health and Human Services released a final rule governing the National Practitioner Data Bank. 75 Fed. Reg. 4656 (January 28, 2010) (to be codified at 45 C.F.R. Part 60). The final rule includes new sections requiring peer review organizations and private accreditation entities to have due process procedures in place in order to qualify as reporting agencies. These new changes became effective on March 1, 2010......

Are You Ready for an Employment Tax Audit?

Tue, 16 Feb 2010 09:00:00 GMT

Starting this month, the Internal Revenue Service (“IRS”) is commencing a National Research Project to collect information on employment tax compliance issues. But, don’t let the name fool you. The IRS plans to audit 6,000 employers over a 3-year period. Each year, 2,000 employers will be chosen for examination. The employers will be randomly selected from every geographic region of the country and business category, including tax-exempt entities. This is in addition to the IRS’s routine employment tax audits, totaling 60,000 annually.....

Enforcement Deadline for the HITECH Act Approaches - Is Your Organization Ready?

Wed, 06 Jan 2010 09:00:00 GMT

U.S. Supreme Court Clarifies Subcontractor Liability under False Claims Act by Kevin M. Wood
Enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its privacy and security regulations (the “Privacy Rule” and “Security Rule,” respectively) reflected the initial attempts to move the healthcare industry into the electronic age. As noted in a prior issue of this newsletter, few changes were made to the HIPAA requirements after adoption of the Privacy Rule and Security Rule in 2001 and 2002. That all changed in February of this year with the enactment of the American Recovery and Reinvestment Act of 2009 (ARRA), and more specifically, Title XIII of the ARRA, which was named the Health Information Technology for Economic and Clinical Health Act (the HITECH Act).....

Preventing Use of Your Trademark as a User Name on Facebook

Thu, 20 Aug 2009 13:00:00 CST

by Richard D. Fladung
Facebook.com, a social networking site used by over 200 million users across the world, is no longer used exclusively by high school and college aged adolescents; it is now being used as a marketing tool by various entities, including companies, nonprofit organizations and the government...

Ouch! CMS Proposes 21.5 Percent Physician Pay Cut

Thu, 23 Jul 2009 12:00:00 CST

by Stuart F. Miller
On July 1, 2009, the Centers for Medicare and Medicaid Services (CMS) proposed changes to policies and payment rates for services to be provided in calendar year 2010 by practitioners who are paid under the Medicare Physician Fee Schedule (MPFS). The MPFS sets payment rates for thousands of physicians' services in medical offices, hospitals and other health care settings.....

Amendments to False Claims Act Pack a Punch for Health Care Providers

Thu, 09 Jul 2009 12:00:00 CST

by Earsa Jackson
On May 20, 2009, President Obama signed the Fraud Enforcement and Recovery Act of 2009 (FERA) into law. The bill, in addition to enhancing the government’s ability to prosecute financial fraud, also amended the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733 (2009). Many of the changes were in direct response to existing case law that Congress concluded did not reflect the original intent of the law. Over the past 20 years, courts have gradually cut back on the scope of the FCA. However, with the increase in government funding for various programs and bailout money, Congress saw fit to reverse the effect of those decisions. According to §4 of the FERA, “[t]he effectiveness of the False Claims Act has recently been undermined by court decisions which limit the scope of the law and, in some cases, allow subcontractors paid with Government money to escape responsibility of proven frauds.”....

RAC: The Time is Now

Wed, 24 Jun 2009 09:00:00 CST

RAC: The Time is Now by Joseph A. Turano
The Recovery Audit Contractor (“RAC”) Program under the Centers for Medicare & Medicaid Services (“CMS”) has been made permanent and has officially arrived in Texas. Under this program, CMS is using private contractors (called “Recovery Audit Contractors,” or “RACs”) to review claims of providers that receive Medicare fee-for-service payments and to make determinations regarding alleged improper payments....

HIT and Health Care Reform

Tue, 02 Jun 2009 09:00:00 CST

HIT and Health Care Reform by William Duane Darling
The Engelberg Center for Health Care Reform at Brookings Institution conducted a meeting entitled "Health IT and Health Reform: Linking Incentives to Drive Accountability and Value" on May 20, 2009. The meeting was presented in cooperation with the Markle Foundation. The meeting was moderated by the Director of the Center, Mark McClellan, M.D. Dr. McClellan is the former Administrator of CMS and a Commissioner of the FDA.....

What is a Healthcare Insurance Exchange and How Does it Fit in U.S. Healthcare Reform?

Fri, 29 May 2009 09:00:00 CST

What is a Healthcare Insurance Exchange and How Does it Fit in U.S. Healthcare Reform? by Kathryn M. Darling
Kathleen Sebelius, the new Secretary of Health and Human Services, told the House Ways and Means Committee in testimony presented on May 6, 2009, that a health insurance exchange ("Exchange"), if constructed correctly, could provide the basic format for providing health care to all Americans. So what is an Exchange, how does it work, and could it really transform health care in America?.....

The HITECH Act - The Privacy and Security of Health Information Still Matters

Thu, 07 May 2009 09:00:00 GMT

The HITECH Act - The Privacy and Security of Health Information Still Matters by Kevin M. Wood
The privacy and security of health information remains a top priority for regulators. The primary federal law governing the privacy and security of health information is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Since the issuance of HIPAA’s final privacy and security regulations (the Privacy Rule and Security Rule, respectively) in 2001 and 2002, few changes have been made to the HIPAA requirements.....

From Medicare Billing Changes to Red Flags – Compliance Requires Health Care Entities to Stay on Their Toes

Wed, 29 Apr 2009 09:00:00 GMT

From Medicare Billing Changes to Red Flags – Compliance Requires Health Care Entities to Stay on Their Toes by Michael Smith
Historically, physicians, non-physician practitioners (“NPPs”), and their organizations were permitted to bill retroactively for Medicare services provided up to 27 months prior to being enrolled in the Medicare program. CMS, however, has now implemented new provider enrollment rules in response to concerns that practitioners or organizations may submit bills, and receive payment, for services provided prior to meeting the Medicare program enrollment requirements....

You Can't Heed What You Don't Read - U.S. Supreme Court - Wyeth v. Levine

Thu, 19 Mar 2009 09:00:00 GMT

You Can't Heed What You Don't Read - U.S. Supreme Court - Wyeth v. Levine by Michael A. Walsh
This much-anticipated opinion has put to rest a hotly contested issue of whether the FDA or a jury decides if a product label sufficiently warns physicians of a product's risk. By this case, the U.S. Supreme Court has placed the decision of how much warning a product label should contain in the hands of lay juries. Levine concerned Phenergan, an injectable medication used to treat nausea. At issue was the sufficiency of a warning that an “IV-push” method of administration - where the drug is injected into the patient's vein - presented a risk that the drug will enter the patient's artery and cause irreversible gangrene...