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Beware Laws Affecting Healthcare Transactions
/in Anti-Kickback, Fraud and Abuse, HIPAA, StarkBy Kim Stanger
Republished with permission, this article originally appeared in the online edition of Idaho State Bar’s The Advocate on March 11, 2020.
Attorneys risk substantial fines, malpractice claims, and even jail time for violating any of several laws implicated in even simple healthcare transactions. Federal and state healthcare laws potentially affect any financial transaction involving healthcare providers, including employment or service contracts, group compensation structures, investment interests and joint ventures, leases for space or equipment, marketing programs, and patient billing practices. Failure to comply may result in significant fines and penalties for clients as well as malpractice claims—or worse—against their lawyers. This article describes several statutes and regulations that can be traps for the unwary in healthcare transactions. Read more
Update on Corporate Practice of Medicine Under Idaho Law
/in Idaho Healthcare LawBy Gabriel (Gabe) Hamilton
Republished with permission, this article originally appeared in the online edition of Idaho State Bar’s The Advocate on March 11, 2020.
In 2016, the Idaho Board of Medicine abandoned its position that Idaho law prohibits physicians from being employed by non-physicians. The Board’s new position removes obstacles to non-physician investments in medical practices and other transactions that previously were prohibited by the Board’s enforcement of an antiquated rule known as the corporate practice of medicine doctrine (“COPM”). Read more
Minors’ Ability to Consent to Medical Treatment Under Utah Law
/in Consent, Healthcare LawBy Kristy M. Kimball
Medical providers are sometimes faced with the difficult scenario of a minor (under 18 years of age) requesting medical or mental health treatment without a parent’s or legal guardian’s consent. This situation often arises in the context of sexually active minors who wish to obtain contraceptives available only through a medical provider (e.g., prescription birth control, IUD, etc.). When facing such scenarios, Utah providers need to be aware of relevant laws and carefully consider other implications. Read more
Use of PHI for Non-Patient Purposes
/in Data Privacy, HIPAABy Kim Stanger
In an era of decreasing reimbursement and rapidly expanding opportunities associated with “big data”, healthcare entities may be looking for ways to monetize protected health information (“PHI”)1 for their own, non-patient purposes. With limited exceptions, however, HIPAA restricts the use of PHI for non-treatment purposes without the patient’s consent. Failure to comply may subject HIPAA covered entities, business associates, and third parties to significant civil, administrative, and criminal penalties. (See, e.g., 42 U.S.C. § 1320d-6; 45 C.F.R. § 160.404).
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Modified HIPAA Rules for Sending Records to Third Parties
/in Data Privacy, HIPAABy Kim Stanger
Thanks to a federal judge, the Office for Civil Rights has modified its rules for sending records to third parties. Covered entities are no longer required by HIPAA to send non-electronic protected health information (“PHI”) to a third party at the patient’s request. In addition, covered entities are no longer limited to charging a reasonable cost-based fee when sending records to a third party.
The Third-Party Directive. In 2009, the Health Information Technology for Economic and Clinical Health (“HITECH”) Act modified HIPAA to simplify the process for producing ePHI:
In the case that a covered entity uses or maintains an electronic health record with respect to protected health information of an individual … the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an or person designated by the individual, provided that any such choice is clear, conspicuous, and specific.
(42 U.S.C. §17935(e)(1)).
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