March 31, 2023

Physicians and Other Healthcare Providers: Beware “Eat What You Kill” Compensation Models

By Kim Stanger

Physicians and other healthcare providers often structure their group compensation formulas on an “eat what you kill” basis, i.e., a provider is paid based on the services he or she performs in addition to items or services they order, prescribe, refer, sell, etc. Such formulas must be reviewed, structured, or revised appropriately to ensure compliance with federal fraud and abuse laws, including Stark, the Anti-Kickback Statute (AKS), and the Eliminating Kickbacks in Recovery Act (EKRA). Continue reading →

March 20, 2023

Public Health Emergency Ends May 11, 2023: Check Your Readiness

By Kim Stanger

After three years, the federal public health emergency (PHE) will expire May 11, 2023.1 Most of the relaxed regulatory and payor standards will end on or within a few months after the deadline, including many relating to:

  • Federal subsidies for PHE-related services.
  • Medicare coverage and/or the amount of reimbursement for certain services, especially COVID-related care and telehealth services.
  • Medicaid coverage for COVID-related services.
  • Flexibility on standards relating to patient stays (e.g., use of skilled nursing facility (SNF) beds for patients who do not meet SNF criteria; critical access hospital (CAH) 25-bed and/or 96-hour length of stay requirements; etc.).
  • Facility safety, staffing, and operational standards.
  • Use of alternative or expansion sites to provide care (e.g., Hospitals Without Walls Programs; use of other sites to render hospital services; etc.).
  • Practitioner supervision requirements.
  • Charges and cost-sharing amounts for certain services, including COVID testing.
  • Prescribing controlled substances through telehealth services as otherwise governed by the Ryan Haight Act.
  • Use of non-HIPAA compliant modalities to conduct telehealth visits.
  • Stark, Anti-Kickback Statute, and Civil Monetary Penalties waivers concerning arrangements with physicians, patients, and other referral sources.
  • EMTALA guidelines concerning directing patients to other locations.
  • PREP Act liability protections.2

Continue reading →

January 17, 2023

Idaho Abortion Laws: Updated FAQs

By Kim Stanger

On January 5, 2023, the Idaho Supreme Court upheld Idaho’s near-total abortion ban (I.C. § 18-622), Idaho’s fetal heartbeat (“6-week”) abortion ban to the extent it is not superseded by the near-total abortion ban (I.C. § 18-8804), and Idaho’s Texas-style civil liability statute (I.C. § 18-8807).1 Anyone who performs an abortion of a clinically diagnosable pregnancy is guilty of a felony unless the abortion is necessary to save the life of the pregnant woman or in the case of rape or incest.2 The total abortion ban is currently subject to an important exception: on August 24, 2022, the United States District Court of Idaho entered a preliminary injunction blocking enforcement of the total abortion ban in cases in which the Emergency Medical Transport and Active Labor Act (EMTALA) would require hospital-affiliated providers to perform an abortion to protect the health of the mother.3 Given these developments, we have updated our answers to common questions concerning Idaho’s abortion laws. Continue reading →

January 11, 2023

Idaho Abortion Laws: Idaho Supreme Court Upholds Laws but Offers Important Clarifications

By Kim Stanger

On January 5, 2023, the Idaho Supreme Court upheld Idaho’s near Total Abortion Ban (I.C. § 18-622), its 6-Week Abortion Ban (I.C. 18-8804 to -8805), and its related Civil Liability Law (I.C. § 18-8807). Planned Parenthood v. State of Idaho, No. 49615, 49817, 49899 (Idaho 1/5/23) (“Opinion”), available here. Those laws are discussed more fully in our client alert titled Idaho Abortion Laws: New Law and EMTALA Exception Now Effective. However, in its recent opinion, the Court included several important clarifications. Continue reading →

December 15, 2022

Mandatory Disclosures for Healthcare Workers Under Idaho Law

By Kim Stanger

The HIPAA privacy rules allow healthcare providers to disclose protected health information to the extent another state or federal law or regulation requires it:

A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.1

(45 C.F.R. § 164.512(a)(1)). Importantly, HIPAA only allows such disclosures if the other law requires the disclosure, not if the other law simply allows disclosures. (78 FR 5618). In cases where another law permits but does not require disclosure, HIPAA would preempt the other law and prohibit the disclosure unless another HIPAA exception applied. Continue reading →

December 1, 2022

Gifts to Patients and Referring Providers

By Kim Stanger

At this time of year, healthcare providers may want to give gifts to patients, referring providers, or other sources of business, but such gifts may violate federal and state fraud and abuse laws and result in civil or criminal fines for both the giver and receiver. Continue reading →

November 29, 2022

Prepare for the End of the Public Health Emergency: Compliance Concerns

By Kim Stanger

For nearly three years, federal and state agencies have waived or relaxed regulatory requirements and expanded reimbursement for services due to the COVID-19 public health emergency (PHE), but the signs indicate that the party is nearly over. Many states have already ended their emergency exceptions, and the federal PHE appears to be coming to an end. The current 90-day PHE extension issued by the Health and Human Services (HHS) will expire January 11, 2023. (See here.) The Biden Administration has informally promised that it would notify stakeholders at least 60 days in advance of ending the PHE; consequently, there is a good chance that the PHE will be extended an additional 90 days into April 2023, but no formal announcement has issued yet. In the meantime, HHS has warned providers that most of the PHE waivers will end upon termination of the PHE and that providers should prepare now for a return to normal standards. (See CMS, “Creating a Roadmap for the End of the COVID-19 Public Health Emergency” (8/18/22), available here.) Continue reading →

November 28, 2022

No Surprise Billing Rules: Co-Provider Requirements Begin in 2023

By Kim Stanger

Update: On December 2, 2022, HHS issued new guidance extending the January 1, 2023 compliance deadline for co-provider requirements until further rulemaking. For more information, click here. The new guidance affects the remaining content below.

Since January 1, 2022, the No Surprise Billing Rules (NSBR) have required virtually all healthcare providers to give a good faith estimate of anticipated charges to uninsured (self-pay) patients.1 Unless the Department of Health and Human Services (HHS) changes its rules, beginning January 1, 2023, the good faith estimate provided to patients will need to include the anticipated charges from co-providers or co-facilities in addition to the convening provider’s own charges. Continue reading →

November 16, 2022

OCR Addresses Healthcare Discrimination Experienced by Deaf and Hard of Hearing Patients

By Allison (Ally) Kjellander

The U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) entered into a Voluntary Resolution Agreement (“Agreement”) with CHI St. Vincent Hot Springs (“CHI”) to ensure there are effective communication accommodations in a healthcare setting for patients who are deaf or hard of hearing. The Agreement resolves a complaint filed with OCR by an individual (“Complainant”) alleging that CHI discriminated against her based on her disabilities (deafness and Usher Syndrome) when CHI failed to provide Complainant with appropriate auxiliary aids during her September 1, 2019, Emergency Department visit. Complainant alleged that this instance violated Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Section 1557 of the Affordable Care Act of 2010 (“Section 1557”). Continue reading →