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Patient Inducements: Law and Limits
/in Anti-KickbackBy Kim Stanger
Although often well-intentioned, offering free or discounted items or services to patients (e.g., gifts, rewards, writing off copays, free screening exams, free supplies, etc.) may violate federal and state laws governing improper inducements, especially if the patient is a federal program beneficiary. The government is concerned that offering or rewarding such inducements to patients may result in overutilization, biased decisions concerning care, and increased costs to the Medicare, Medicaid, or other government programs. Penalties for illegal inducements may include administrative, civil, and criminal penalties; repayment to government programs; and exclusion from federal programs. Increasingly, private payors are also challenging such inducements. It is imperative that healthcare providers and their staff understand the applicable laws and limits. Read more
Avoiding EMTALA Penalties
/in EMTALAby Kim Stanger
The Emergency Medical Treatment and Active Labor Act (“EMTALA”) provides that if a patient comes to a hospital or hospital-owned urgent care center, the hospital and relevant on-call physicians must provide an appropriate screening exam and, if the patient has an emergency medical condition, provide stabilizing treatment or an appropriate transfer regardless of the patient’s ability to pay. (42 U.S.C. § 1395dd; 42 C.F.R § 489.24). Participating hospitals with specialized capabilities cannot refuse to accept the transfer of an unstabilized person. (42 C.F.R § 489.24(f)). Physicians—including on-call physicians—who violate EMTALA may be subject to a civil penalty of $129,233.1 Hospitals that violate EMTALA are subject to civil penalties of $64,618 to $129,2332 per violation, lawsuits for damages, and/or exclusion from Medicare. (42 U.S.C. § 1395dd(d); 42 C.F.R. § 1003.103(e); 45 C.F.R. § 102.3). Read more
24-Hour Mental Holds In Idaho: New Standards, New Problems
/in Idaho Healthcare LawBy Kim Stanger
Since early 2022, the Idaho legislature has modified the standards for a patient’s capacity to consent to healthcare and 24-hour protective holds. This health law update summarizes the current rules for capacity and consent; the amended standards for 24-hour mental holds; and the net effect the changes may have on patients, providers, and hospitals. For information concerning protective holds for minors under I.C. § 16-2411 or 72-hour holds for voluntary inpatients under I.C. § 66-320, see our article at https://www.hollandhart.com/mental-holds-in-idaho. Read more
To BAA or Not to BAA: Must You Have One?
/in HIPAABy Kim Stanger
HIPAA applies to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity that “creates, receives, maintains or transmits” protected health information (PHI) in the course of performing services on behalf of the covered entity, e.g., consultants; management, billing, coding, transcription or marketing companies; information technology contractors; data storage or document destruction companies; data transmission companies or vendors who routinely access PHI; third party administrators; personal health record vendors; lawyers; accountants; malpractice insurers; etc.).1 “A covered entity may be a business associate of another covered entity” when it performs such functions on behalf of another covered entity.2 Also, with very limited exceptions, a subcontractor or other entity that creates, receives, maintains or transmits PHI on behalf of a business associate is also a business associate.3 To determine if an entity is a business associate, see our Business Associate Decision Tree. Read more
No More EMTALA Exception to Idaho’s Total Abortion Ban
/in EMTALA, Idaho Healthcare LawBy Kim Stanger
The Ninth Circuit Court of Appeals has ended the EMTALA exception to Idaho’s total abortion ban, I.C. 18-622.
In 2022, the US Department of Justice (DOJ) sued the state of Idaho, claiming that EMTALA preempted the total abortion ban in emergency cases. The federal district court of Idaho entered a preliminary injunction staying Idaho’s enforcement of its total abortion ban in EMTALA cases pending final resolution of the case. (See our August 26, 2022, Health Law Update.) However, on September 28, 2023, the Ninth Circuit overruled the district court, holding that an intervening decision by the Idaho Supreme Court and Idaho’s amendment to the total abortion ban in 2023 mitigated, to a large extent, the concerns raised by the district court. Accordingly, the Ninth Circuit stayed the district court’s injunction, thereby ending the EMTALA exception to the total abortion ban pending a final decision in the district court case. A copy of the Ninth Circuit decision may be accessed here. Read more