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Marketing Traps for Healthcare Providers
/in ProvidersBy Kim Stanger
Common marketing practices in other industries may be illegal in the healthcare sector. Healthcare providers should beware the following practices when marketing their services:
1. Offering gifts, rewards, or free or discounted items or services to patients. The federal Anti-Kickback Statute (“AKS”) and Civil Monetary Penalties Law (“CMPL”) generally prohibit offering anything of value to induce patients to order or receive services payable by federal healthcare programs unless the arrangement fits a regulatory safe harbor.1 Violations may result in criminal, civil and administrative penalties.2 Common marketing programs that may implicate the laws include but are not limited to: Read more
Police, Providers, Patients and HIPAA
/in HIPAABy Kim Stanger
Recent cases have highlighted the conflict that may occur when police seek access to patients or patient information. Here are some general guidelines for physicians and other healthcare providers when facing demands from police or other law enforcement officials.
Disclosing Patient Information. The HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers from disclosing protected health information to law enforcement officials without the patient’s written authorization unless certain conditions are met. HIPAA allows disclosures for law enforcement purposes in the following cases:
Read more
Offering Free Screening Tests to Patients
/in Fraud and AbuseBy Kim Stanger
Healthcare providers often offer free screening tests or services as a way to generate business for their facility or practice; however, doing so may violate federal and state laws unless structured properly. The federal Anti-Kickback Statute (“AKS”)1 and Civil Monetary Penalties Law (“CMPL”)2 generally prohibit offering free or discounted items or services to patients as a way to generate business payable by Medicare, Medicaid or other federal healthcare programs unless the arrangement fits within a regulatory exception.3 Violations of the AKS or CMPL may result in criminal, civil, and/or administrative penalties. Read more
Consent Forms v. Informed Consent
/in ConsentBy Kim Stanger
Except in emergencies, healthcare practitioners must generally obtain the patient’s informed consent before providing treatment.1 If the patient lacks capacity due to age or incompetence, consent must be obtained from a personal representative authorized by law to provide consent.2 Failure to obtain or properly document informed consent may subject practitioners to civil, administrative, and/or criminal liability. It is therefore important to periodically review consent processes and forms to ensure that they adequately establish and document valid informed consent. Read more
The On-Call Physician’s Liability for Failing to Respond to Emergency Room Call
/in EMTALAby Kim Stanger
On-call physicians may not realize their potential exposure if they fail or decline to respond to a call from the hospital’s emergency department. Failure to respond is a violation of the Emergency Treatment and Active Labor Act (“EMTALA”) that may expose the physician to a $50,000 fine and exclusion from Medicare or Medicaid as well as contract liability. It may also expose the hospital to a fine of $50,000 and a lawsuit by the relevant patient or a hospital that receives an improper transfer.
EMTALA generally requires hospitals to provide an emergency screening examination and stabilizing treatment to a patient who comes to the hospital seeking emergency care. See 42 USC § 1395dd; 42 CFR § 489.24. EMTALA establishes the following penalties:
(A) A participating hospital that negligently violates a requirement of this section is subject to a civil money penalty of … not more than $25,000 … for each such violation.
(B) Subject to subparagraph (C) [below], any physician who is responsible for the examination, treatment, or transfer of an individual in a participating hospital, including a physician on-call for the care of such an individual, … is subject to a civil money penalty of not more than $50,000 for each such violation and, if the violation is gross and flagrant or is repeated, to exclusion from participation in [Medicare or Medicaid]….
Id. at § 1395dd(d)(1), emphasis added; see also 42 CFR §§ 1003.500(a)-(c) and 1003.510. EMTALA expressly states that the foregoing penalties apply when an on-call physician fails to respond to a call for assistance: Read more