In 2019, the Legislature enacted several bills affecting healthcare practitioners in New Mexico. Although some bills have a general applicability to health care providers, others address more specific medical practices. Following is a summary of several bills impacting health facilities and providers. Continue reading
June 24, 2019
Mental Holds in Idaho
By Kim Stanger
In Idaho, a competent patient generally has the right to consent to or refuse their own healthcare. By statute,
Any person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated health care is competent to consent thereto on his or her own behalf. Any healthcare provider may provide such health care and services in reliance upon such consent if the consenting person appears to possess such requisite comprehension at the time of giving the consent. Continue reading
June 10, 2019
Licensing Board Stipulations: Beware Unanticipated Consequences
by Kim Stanger
Physicians, dentists, and other healthcare providers who run into problems with their state medical board or other licensing agency are often offered a stipulated resolution to avoid formal proceedings, additional costs, and potentially more severe sanctions. Although such stipulations may be an appropriate and efficient way to resolve concerns, providers should beware of the unanticipated consequences of such stipulations, including the following:
1. NPDB Reports. Licensing boards are generally required to report such stipulations involving physicians or dentists to the National Practitioners Data Bank (“NPDB”). (See 45 CFR § 60.8). Hospitals and other entities are required or permitted to check the NPDB during the physician credentialing process. An NPDB report will become a black mark on the physician’s record for the rest of his or her career unless removed, and may lead to the further actions described below.
Continue readingJune 6, 2019
2019 Utah Legislative Update: What All Healthcare Providers Should Know
by Kristy Kimball
In the last Utah legislative session, several bills were passed that affect the obligations of healthcare facilities and providers. Following is a summary of three important bills that went into effect on May 14, 2019, of which all health facilities and providers should be aware.
Mandatory Reporting of Drug Diversion to Law Enforcement
House Bill 251 requires mandatory reporting to law enforcement when one has knowledge of drug diversion. Specifically, Utah law now holds that an individual is guilty of a class B misdemeanor if they: (i) know that a Practitioner is diverting 500 or more morphine milligram equivalents to another person for an unlawful purpose; and (ii) fail to report to law enforcement. The bill defines “Practitioner” as an individual who is either (i) allowed to “administer, dispense, distribute, or prescribe a drug in the course of professional practice;” or (ii) who is employed by such an individual. The law broadly applies to those involved in providing medications to patients in any manner (e.g., nurses, physicians, nurse practitioners, physician assistants, and pharmacists) as well as those working for such individuals. Utah Code Ann. § 76-10-2204.
Continue readingMay 29, 2019
Liability of Business Associates for HIPAA Penalties
The HITECH Act extended certain HIPAA obligations to business associates, including those entities that create, receive, maintain or transmit protected health information (“PHI”) on behalf of covered entities. Business associates who fail to comply with their HIPAA obligations may be directly liable for HIPAA penalties ranging from $114 to $57,0511 per violation.
Continue readingMay 28, 2019
CMS Issues DRAFT Guidance for Hospital Co-location with Other Hospitals or Healthcare Facilities
By Cory Talbot
Earlier this month, the Centers for Medicare & Medicaid Services (“CMS”) issued draft “Guidance for Hospital Co-location with Other Hospitals or Healthcare Facilities” (the “Draft Guidance”) intended to change earlier CMS guidance, which prohibited hospital co-location with other hospitals or healthcare facilities. The Draft Guidance plainly states that “[h]ospitals can be co-located with other hospitals or other healthcare entities”1 and is designed to clarify how CMS and surveyors “will evaluate a hospital’s space sharing or contracted staff arrangements with another hospital or health care entity when assessing the hospital’s compliance with”2 the Medicare Conditions of Participation (the “CoPs”) for shared space, contracted services, and emergency services.3 Continue reading
May 9, 2019
Despite Increased Awareness and Employee Training, Ransomware Is Still the Healthcare Industry’s No. 1 Threat
Ransomware accounted for more than 1 in 10 healthcare data breaches reported to the government during the last three years, according to analysis by Bloomberg Law. Cybercriminals capitalize on lack of employee training by sending emails with malicious attachments to gain access to healthcare providers’ and business partners’ networks. With this access, the ransomware typically encrypts all of the data within the organization’s network that cannot be recovered until the ransom is paid for the decryption key. Continue reading
May 2, 2019
HHS Reduces the Annual Cap for Most HIPAA Penalties
by Kim Stanger
HIPAA penalties vary depending on the type of conduct involved. (45 CFR § 160.404). Under HHS’s prior interpretation, the types of violations were all subject to an annual maximum penalty of $1,500,000 for identical types of violations. (Id.).
Continue readingMarch 26, 2019
Key Terms for Provider Contracts
By Kim Stanger
A good contract with an employed or contracted physician or other practitioner may help you avoid regulatory violations and future disputes. Here is a brief summary of some terms or issues that you should consider in your provider agreements.
Regulatory Compliance. If the practitioner will be performing or referring items or services payable by government healthcare programs, you should generally structure the contract to satisfy applicable safe harbors under the federal Anti-Kickback Statute (“AKS”), 42 CFR 1001.952(d) or (i). If the contract involves a physician, the contract must be structured to satisfy the Ethics in Patient Referrals Act (“Stark”), 42 CFR 411.355 or 411.357(c), (d) or (l). For information concerning these regulatory requirements, see our Client Alert, Stark Requirement for Physician Contracts. In addition, the federal Civil Monetary Penalties Law generally prohibits hospitals from offering inducements to physicians to limit medically necessary services payable by government programs. (42 USC 1320a-7a(b)(1)). If the employer is a tax-exempt entity, you will also want to ensure the compensation reflects fair market value to avoid 501(c)(3) tax issues. If your state recognizes the corporate practice of medicine doctrine, you may need to structure your arrangement to fulfill any unique requirements applicable to your state.
Continue readingMarch 19, 2019
What Healthcare Providers Need to Know About EKRA
By Eric Maxfield
In October 2018, the President signed the SUPPORT for Patients and Communities Act, a portion of which is known as the “Eliminating Kickbacks in Recovery Act of 2018” or “EKRA.” EKRA, aimed at the ongoing opioid crisis, is meant to prevent patient brokering, referrals, and kickbacks related to drug recovery and substance abuse treatment centers. EKRA’s language, however, is very broad and goes well beyond the opioid crisis to deal with “patient brokering,” which is when a substance abuse facility or provider pays a third party for referring or directing potential patients. EKRA violations carry significant penalties, including fines upwards of $200,000 per “occurrence,” as well as significant prison time.
While EKRA’s purpose is to address kickbacks related to the broader issues surrounding opioids, it is not limited exclusively to treatment centers per se. Instead, EKRA precludes the solicitation or receipt of value for referrals to recovery homes, clinical treatment centers, or laboratories. EKRA applies to public and – importantly – private commercial health benefit programs. This is effectively an expansion of the Federal Anti-Kickback Statute’s prohibition on kickbacks involving individuals covered by federal programs like Medicare, Medicaid, or TRICARE.
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