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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Check Your Physician Contracts
/in Fraud and Abuseby Kim Stanger
Contracts and other financial arrangements with physicians and certain other healthcare providers must be structured to comply with the federal Stark,1 Anti-Kickback,2 and Civil Monetary Penalties Laws3 if the physician will refer patients for items or services payable by Medicare, Medicaid or other healthcare programs. Failure to comply may result in overpayments; failure to report and repay such overpayments within 60 days may violate the False Claims Act, subjecting the parties to additional penalties, including treble damages, fines of $5,500 to $11,000 per claim, and exclusion from Medicare and Medicaid.4 Given the severe penalties for noncompliance, hospitals and other healthcare providers should ensure that their physician contracts comply.
TOP COMPLIANCE CONCERNS FOR PHYSICIAN CONTRACTS. The following are top compliance issues for services contracts with referring physicians or their family members. Many of these same rules apply to contracts with other healthcare providers who may refer patients for services covered by Medicare or Medicaid.5 Read more
Idaho Medical Indigency Act and Patients Filing Bankruptcy
/in Uncategorizedby Kirk S. Cheney
Idaho’s Medical Indigency Act (the “Act”)1 offers significant benefits to medical providers. Idaho’s legislature enacted it in 1974 with the express intent “to allow hospitals to obtain compensation for services rendered to indigents.”2 The Act requires counties to reimburse medical providers for services provided to indigent patients, provided certain conditions are met. By carefully complying with the Act, a medical provider can effectively shift collection risk to the indigent patient’s county of residence.
Not surprisingly, there is significant overlap between patients who are medically indigent and those who seek protection under the Bankruptcy Code. Accordingly, it is important for medical providers to understand how a patient’s bankruptcy may affect the provider’s rights under the Act. This article sets forth two simple rules medical providers should follow to preserve the protections of the Act in their favor, notwithstanding a patient’s subsequent bankruptcy filing. Read more
Avoiding Business Associate Agreements
/in HIPAAby Kim Stanger, Holland & Hart LLP
The HIPAA privacy rules now apply to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity who “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.) (See 45 CFR 160.103). “A covered entity may be a business associate of another covered entity.” (Id.). 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. (Id.; 78 FR 5572). To determine if an entity is a business associate, see the attached Business Associate Decision Tree. Read more
Gifts to Referral Sources and Patients
/in Fraud and Abuseby Kim Stanger, Holland & Hart LLP
At this time of year, many healthcare professionals want to give gifts to patients, physicians, or other referral sources to show their appreciation, but doing so may violate federal and state fraud and abuse laws. Here are some guidelines to ensure your gift giving does not get you in trouble with the government.
1. Gifts To Referral Sources. The federal Anti-Kickback Statute (“AKS”) prohibits soliciting, offering, giving, or receiving remuneration in exchange for referrals for items or services covered by federal healthcare programs (e.g., Medicare and Medicaid) unless the arrangement fits within a regulatory exception. (42 USC 1320a-7b(b)). AKS violations are felonies, and may result in criminal and civil penalties, False Claims Act liability, and exclusion from Medicare and Medicaid programs. The AKS is violated if one purpose of the remuneration is to induce federal program referrals, including gifts to referring practitioners or program beneficiaries to encourage or reward their business. (OIG Adv. Op. 12-14). Moreover, the AKS applies to both the giver and recipient. The OIG has suggested that “nominal” gifts would not create much AKS risk, but offers no guidance as to what is “nominal”. (65 FR 59441). The AKS does not expressly apply to referrals for private pay business, but the OIG has warned that offering remuneration to obtain private pay referrals may also induce federal program business and thereby violate the AKS. (OIG Adv. Op. 12-06). In addition, offering gifts to induce or reward private pay business may violate state laws, including state laws prohibiting kickbacks, rebates, or fee splitting. In short, you should not give or accept gifts to or from referral sources (especially those referring federal program business) unless the gift is truly nominal, is clearly and completely unrelated to past or future referrals, or is very unlikely to influence referrals. Read more
HIPAA Disclosures to Law Enforcement
/in HIPAAby Kim Stanger, Holland & Hart LLP
As with others, the HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers (“Providers”) from disclosing protected health information to police or other law enforcement officials without the patient’s written authorization unless certain conditions are met. HIPAA allows disclosures to law enforcement in the following cases: Read more