Disclaimer
This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.
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Stark Requirements for Physician Contracts
/in Contracts & Transactions, Fraud and Abuseby Kim C. Stanger, Holland & Hart LLP
Entities that employ or contract with physicians must ensure their agreements are structured to comply with the federal Ethics in Patient Referrals Act (“Stark”)1 if they intend to bill Medicare for services rendered or referred by the physicians. Under Stark, if a physician (or a member of the physician’s family) has a financial relationship with an entity, the physician may not refer patients to the entity for certain designated health services (“DHS”)2 payable by Medicare unless the financial relationship is structured to fit within a regulatory safe harbor.3 Entities may not bill Medicare for services improperly referred and, if they have done so, the entity must repay amounts improperly received. Failure to report and repay within 60 days may result in additional civil penalties of $15,000 per claim as well as False Claims Act liability.4 Repayments can easily run into the hundreds of thousands if not millions of dollars. Given the potential liability, it is critical that physician arrangements be structured to fit within the regulatory safe harbors.
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Physicians Should Beware Illegal Conspiracies when Dealing with Hospitals
/in Antitrustby Melissa Starry, Holland & Hart LLP
Physicians and other providers must beware illegal conspiracies when taking coordinated action to obtain payment from hospitals. On December 1, 2014, the State of Idaho Office of the Attorney General reached settlements with four physicians who were investigated for their actions during on-call pay negotiations with Madison Memorial Hospital in Rexburg, Idaho.
According to the Attorney General’s press release, the hospital’s on-call policy required physicians to provide unpaid on-call coverage for the emergency department as a condition of receiving privileges. Several doctors jointly sought to negotiate changes to the policy and notified hospital administrators that they would no longer provide on-call coverage until the hospital agreed to pay them. The Attorney General asserted that the physicians’ coordinated response violated the Idaho Competition Act.
Both federal and state laws prohibit agreements between competitors that restrain trade. At issue in Rexburg was the Idaho Competition Act which prohibits conspiracies “between two or more persons in unreasonable restraint of Idaho commerce.” See Idaho Code § 48-104. Examples of unreasonable restraint include price fixing, allocating or dividing markets, and boycotting or refusing to deal. Attorney General Lawrence Wasden said, “[a]t issue for my office in this investigation is using anticompetitive tactics to bring about change in the marketplace.” The investigation did not consider the merits of paying physicians for on-call services. According to the Attorney General’s press release, the investigation into the matter is ongoing. Read more
Valid HIPAA Authorizations: A Checklist
/in HIPAAby Kim C. Stanger, Holland & Hart LLP
The HIPAA privacy rules generally prohibit healthcare providers and their business associates from using or disclosing protected health information (“PHI”) unless (1) they have a valid written HIPAA authorization signed by the patient or the patient’s personal representative, or (2) a specific regulatory exception applies.1 Many if not most authorizations received by providers are invalid. To be valid, a HIPAA authorization must satisfy the following2: Read more
Colorado DME
/in Uncategorizedby Chris Esseltine, Holland & Hart LLP
Colorado recently enacted a bill that will significantly affect Durable Medical Equipment (DME) suppliers in the state. The bill requires a DME supplier that currently bills or plans to bill the Medicare program for services or products to have a license with the Secretary of State. The licensee must be physically located within the state or within 50 miles of the state, have sufficient inventory and staff to do business, and be accredited by an organization recognized and accepted by the centers for Medicare and Medicaid services.
According to a representative at the Secretary of State’s office, the law will go into effect January 1, 2015. However the office is still working out details about how to procure the license, enforcement and penalties for non-compliance, and a possible grace period past the January 1 deadline.
For more information on this or any other legal issues relating to DME, please contact Chris Esseltine at Holland & Hart.
This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.
HIPAA Business Associate Agreements: Deadline Approaching
/in HIPAAby Kim C. Stanger, Holland & Hart LLP
If they have not already done so, the deadline for covered entities and business associates to update their HIPAA business associate agreements to comply with Omnibus Rule requirements is September 22, 2014.
BAA Requirements. HIPAA requires that covered entities and business associates execute contracts (called “business associate agreements” or “BAAs”) which require that business associates comply with certain portions of the HIPAA Privacy, Security and Breach Notification Rules. (45 CFR 164.314(a)), 164.502(e), and 164.504(e)). The HIPAA Omnibus Rule changed BAA requirements. Under the Omnibus Rule, covered entities and business associates must modify their BAAs to require business associates to:
(45 CFR 164.314(a) and 164.502(e)). For a checklist of all required BAA terms, click here. The Office for Civil Rights (“OCR”) has also published sample BAA provisions, although the OCR sample may not include additional terms that covered entities or business associates may want to include in their BAAs. Read more