July 1, 2024

Supreme Court Restores the EMTALA Exception to Idaho’s Abortion Ban for Now

By Kim Stanger and Cameron McCue

On June 27, 2024, the United States Supreme Court temporarily restored the Emergency Medical Treatment and Labor Act (EMTALA) exception to Idaho’s abortion ban. As a result, Idaho hospitals may perform abortions in EMTALA cases when necessary to preserve the health of the pregnant woman.

How We Got Here. In 2022, the United State Department of Justice (DOJ) brought a lawsuit challenging Idaho’s abortion statute in cases in which EMTALA applies. In August 2022, the federal District Court of Idaho entered a preliminary injunction that prohibited Idaho from enforcing its broad abortion ban in EMTALA cases pending resolution of the DOJ’s lawsuit. (See Order, available here: https://f.datasrvr.com/fr1/822/74681/Winmill-abortion-injunction-decision_(003).pdf). Idaho appealed to the 9th Circuit, which first lifted then restored the preliminary injunction. Idaho then sought immediate relief from the United States Supreme Court, which agreed to take the case and stayed the District Court’s injunction. However, last week, the Supreme Court changed its mind and, in a per curiam decision, concluded that it had improvidently agreed to take the case and sent the matter back to the lower courts for further proceedings. In so doing, the Supreme Court vacated its order staying the District Court injunction, thereby restoring the injunction, which effectively, if temporarily, allows Idaho hospitals to perform abortions in EMTALA cases. A copy of the Supreme Court’s decision is available here: https://www.supremecourt.gov/opinions/23pdf/23-726_6jgm.pdf. Continue reading →

June 26, 2024

Court Vacates HIPAA Online Tracking Guidance

By Kim Stanger

On June 20, 2024, a Texas federal court vacated the Office for Civil Rights’ (OCR’s) controversial guidance concerning Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates, available here. While providers will welcome the decision, the decision does not allow providers, business associates, or vendors carte blanche license to use or disclose protected health information (PHI) for purposes not permitted by HIPAA.

Continue reading →

May 29, 2024

Avoiding HIPAA Penalties: A Checklist for Covered Entities

by Kim C. Stanger

The HIPAA Privacy, Security, and Breach Notification Rules1 apply to healthcare providers who engage in certain electronic transactions, healthcare clearinghouses, and health plans, including employee group health plans with 50 or more participants or that are administered by a third party.2  Covered entities must comply with HIPAA for the following reasons:

1. Civil Penalties.  The Office for Civil Rights (OCR) may—and in some cases must—impose civil penalties against covered entities and their business associates who violate HIPAA. The following chart summarizes the tiered penalty structure currently in effect; the penalties are subject to annual cost of living increases.3 Continue reading →

May 24, 2024

Idaho Medical Lien Statute: Important Changes

By Kim Stanger

Since 2020, healthcare providers have struggled to reconcile Idaho’s medical lien law with the Idaho Patient Act (IPACT). The lien statute allows healthcare providers who render treatment to a person injured by the acts of a third party to file a lien against the liable third party to recover their fees; to be effective, the lien had to be filed within 90 days of the last date of services.1 But filing a medical lien constituted an “extraordinary collection action” under IPACT, and IPACT generally prohibited taking such actions until after the 90-day period for filing the medical lien expired.2 Net result: providers had to choose between the lien or potential IPACT penalties.

Effective March 28, 2024, the Idaho legislature resolved the dilemma by permitting compliant medical liens so long as they are filed under new time limits in the lien statute. Continue reading →

May 21, 2024

New ACA 1557 Non-Discrimination Rules: Checklist For Healthcare Providers

By Kim Stanger

On May 6, 2024, the Department of Health and Human Services (HHS) published its final rule revamping the non-discrimination regulations issued under § 1557 of the Affordable Care Act.1  The revised rules apply to all healthcare providers that receive, directly or indirectly, federal financial assistance, including but not limited to participation in Medicare or Medicaid.2  The revised rules continue to prohibit discrimination based on race, color, national origin, sex, age, and disability and reaffirm providers’ current obligations to provide meaningful access to persons with limited English proficiency or disabilities, but they add a few new twists.  The revised rules become effective July 5, 2024, but HHS will delay enforcement of certain provisions as described below.  Under the final rules, virtually all healthcare providers3 will need to do the following in addition to complying with other state or federal non-discrimination laws: Continue reading →

April 26, 2024

New Limits on Minor Consents in Idaho

By Kim Stanger

Note: This health law update originally was published on April 9, 2024. It was updated April 26, 2024, to reflect additional information.

Effective July 1, 2024, Idaho healthcare providers must obtain parental consent to treat unemancipated minors or face civil liability except in emergency cases. In addition, parents will have a right to access the medical records of their minor children subject to very limited exceptions. This is a significant change in the current law and will require healthcare providers to adjust their current policies and practices. The statute must be read and applied in conjunction with Idaho’s general consent statutes, I.C. § 39-4501 et seq. Continue reading →

February 27, 2024

Patient Inducements: Law and Limits

By Kim Stanger

Although often well-intentioned, offering free or discounted items or services to patients (e.g., gifts, rewards, writing off copays, free screening exams, free supplies, etc.) may violate federal and state laws governing improper inducements, especially if the patient is a federal program beneficiary. The government is concerned that offering or rewarding such inducements to patients may result in overutilization, biased decisions concerning care, and increased costs to the Medicare, Medicaid, or other government programs. Penalties for illegal inducements may include administrative, civil, and criminal penalties; repayment to government programs; and exclusion from federal programs. Increasingly, private payors are also challenging such inducements. It is imperative that healthcare providers and their staff understand the applicable laws and limits. Continue reading →

February 13, 2024

Avoiding EMTALA Penalties

by Kim Stanger

The Emergency Medical Treatment and Active Labor Act (“EMTALA”) provides that if a patient comes to a hospital or hospital-owned urgent care center, the hospital and relevant on-call physicians must provide an appropriate screening exam and, if the patient has an emergency medical condition, provide stabilizing treatment or an appropriate transfer regardless of the patient’s ability to pay.  (42 U.S.C. § 1395dd; 42 C.F.R § 489.24). Participating hospitals with specialized capabilities cannot refuse to accept the transfer of an unstabilized person. (42 C.F.R § 489.24(f)). Physicians—including on-call physicians—who violate EMTALA may be subject to a civil penalty of $129,233.1 Hospitals that violate EMTALA are subject to civil penalties of $64,618 to $129,2332 per violation, lawsuits for damages, and/or exclusion from Medicare.  (42 U.S.C. § 1395dd(d); 42 C.F.R. § 1003.103(e); 45 C.F.R. § 102.3). Continue reading →

February 6, 2024

24-Hour Mental Holds In Idaho: New Standards, New Problems

By Kim Stanger

Since early 2022, the Idaho legislature has modified the standards for a patient’s capacity to consent to healthcare and 24-hour protective holds. This health law update summarizes the current rules for capacity and consent; the amended standards for 24-hour mental holds; and the net effect the changes may have on patients, providers, and hospitals. For information concerning protective holds for minors under I.C. § 16-2411 or 72-hour holds for voluntary inpatients under I.C. § 66-320, see our article at https://www.hollandhart.com/mental-holds-in-idaho. Continue reading →