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.
Privacy Policy
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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
HIPAA: Responding to Subpoenas, Orders, and Administrative Demands
/in HIPAAby Kim Stanger, Holland & Hart LLP
The HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers (“Providers”) from disclosing protected health information pursuant to subpoenas and other government demands unless certain conditions are satisfied. This outline summarizes HIPAA rules for responding to such demands. To the extent there is a more restrictive state or federal law that applies in a particular case, the more restrictive law will usually control.
SUBPOENA, COURT ORDER, WARRANT, OR ADMINISTRATIVE DEMAND. If a Provider receives a subpoena, court order, or warrant that requires the disclosure of protected health information, the Provider should do the following: Read more
Home Health Care Workers to Receive Minimum Wage and Overtime Protections
/in Employee Benefits, EmploymentBy Mark Wiletsky
If your organization is in the home health field, be aware that the rules for how to pay home care workers is going to significantly change. Under a recently issued Final Rule, the U.S. Department of Labor (DOL) will extend FLSA pay protections to an estimated 1.9 million home care workers in the U.S. who currently are treated as exempt under the companionship exemption. As a result, workers who provide in-home care to ill, elderly, or disabled individuals through a third party employer will be covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) beginning January 1, 2015.
Companionship Services Exemption Narrowed
The so-called “companionship exemption,” implemented in 1975, allowed organizations employing workers who provide home care assistance to elderly, ill, injured or disabled persons to treat these workers as exempt from the federal minimum wage and overtime pay provisions. The new Final Rule narrows the exemption for companionship services in two key ways. Read more