Recognizing the need to empower healthcare providers to reach those most at risk during the COVID-19 pandemic, the Department of Health and Human Services’ Office for Civil Rights recently issued a notification announcing that it will not impose penalties for noncompliance with HIPAA Rules against those healthcare entities who utilize video and voice applications to provide telehealth services.
During this national emergency, covered healthcare providers can use any non-public facing application to communicate with patients, such as Apple FaceTime, Facebook Messenger ...
For more than 15 years, the process of selecting a hearing officer for a medical staff peer review proceeding has been strongly influenced by the decision in Yaqub v. Salinas Valley Memorial Healthcare System 122 Cal. App. 4th 474 (2004). That decision held that a hearing officer in a peer review proceeding was disqualified for a financial bias based upon the hearing officer's “long–standing and continuous relationship" with the hospital, which created a “possible temptation" to favor the hospital ...
As of January 1, 2020, when a patient (or their representative) submits a written allegation of sexual abuse or sexual misconduct to a health care entity, that entity must report the allegation to the appropriate state licensing agency (e.g., the Medical Board of California) within 15 days of receipt. (SB 425, codified at Cal. Bus. & Prof. Code Section 805.8) After making its way through the state legislature with little to no opposition from state lawmakers, California Governor Gavin Newsom signed this bill into law on October 12. The purpose of the bill was to not only accelerate the process in which state licensing boards receive notification about these serious allegations, but also to expand the types of entities that must report these events ...
On July 22, 2019, the California Supreme Court issued its long-awaited opinion in Wilson v. CNN.1 The primary question before the court concerned the application of the anti-SLAPP statute, Civil Procedure Code Section 425.16, to employment, discrimination, and retaliation claims. The factual scenario before the court involved a journalist who alleged that his employer, CNN, denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons.2 The employer responded by contending that the journalist was ...
On May 7, 2019, the California Supreme Court heard oral arguments in Wilson v. Cable News Network, Inc., et al., where plaintiff was a producer at CNN who sued the media giant for employment discrimination, retaliation, wrongful termination, and defamation after he was terminated for alleged plagiarism. Wilson is of particular importance to the healthcare community, including hospitals, medical staffs, peer review committees, and practitioners, because it will impact the application of anti-SLAPP Special Motions to Strike under Civil Procedure Code Section 425.16 in suits ...
It is well-documented that California is facing a shortage of primary care providers. The Californians most affected by these shortfalls are largely low-income, Latino, African American, and Native American and located in rural areas as well as in California’s largest and fastest-growing regions—the Inland Empire, Los Angeles, and the San Joaquin Valley. Newly-proposed legislation aims to address this problem by permitting California’s nurse practitioners to practice under certain conditions without physician supervision.
Assembly Bill 890 was introduced by ...
In a decision affecting California hospitals, medical groups, medical staffs, and physicians, the California First District Court of Appeal has concluded that a physician’s notice and hearing rights apply to situations where a hospital directs a medical group of a closed department to remove a physician from the hospital schedule.
In Economy v. Sutter East Bay Hospitals, Sutter Hospital operated a closed anesthesia department pursuant to a contract with East Bay Anesthesiology Medical Group (East Bay Group). The exclusive contract required all physicians providing ...
In a decision that facilitates flexible staffing practices for healthcare employers, the California Supreme Court recently held that healthcare workers can legally waive a second meal period when they work shifts longer than 12 hours. Gerard v. Orange Coast Mem'l Med. Ctr., 430 P.3d 1226 (Cal. 2018). The high court’s decision finally and conclusively resolves a contentious and technical dispute over labor enactments that had been the subject of several prior appellate rulings. See our prior discussion re Gerard II here.
Plaintiff healthcare workers alleged that their hospital employer had violated California Labor Code section 512(a) by allowing waivers of second meal periods when they worked shifts longer than 12 hours.
Defendant employer argued that such waivers were expressly allowed by Section 11(D) of Industrial Welfare Commission Wage Order No. 5, which creates an exception allowing healthcare employees to voluntarily waive the second meal period on shifts over 12 hours. (Nothing in the Gerard case addressed the first meal period requirement, also set forth in section 512(a), which mandates a meal period of at least 30 minutes for an employee who works more than five hours per day.)
In Gerard, the high court resolved this conflict by affirming the validity of Wage Order No. 5 and holding that it did not violate the Labor Code. To reach that decision, the Court’s opinion wades through a morass of legislative and administrative provisions, as well as the prior appellate decision and an intervening statutory amendment. To reiterate, the core dispute was between, on the one hand, Labor Code section 512(a) which expressly allows voluntary waivers of second meal periods for employees who works shifts of 8 but no more than 12 hours and, on the other hand, Section 11(D) of Wage Order No. 5 which creates an express exception for healthcare employees that allows such waivers, even if the employee works more than 12 hours.
On September 19, 2018, Governor Jerry Brown signed into law the Patient’s Right to Know Act of 2018 (SB 1448), which will require practitioners to notify their patients when they are placed on probation on or after July 1, 2019 for the following offenses:
- The commission of any act of sexual abuse, misconduct, or relations with a patient or client;
- Drug or alcohol abuse directly resulting in harm to patients or to the extent that such use impairs the ability of the practitioner to practice safely;
- Criminal conviction directly involving harm to patient health; or
- Inappropriate ...
There is a host of new, ever changing, and conflicting guidelines from a multitude of regulators and academic societies. This evolving and uncertain landscape is making the life of a practicing pain physician in the midst of today’s nationwide opiate epidemic…painful.
Here are 10 tips to help you avoid Medical Board discipline when prescribing opiates:1
1. Don’t Prescribe Opiates Unless…
- The patient has exhausted all reasonable alternatives
- There is medical indication
- Recently documented objective evidence of/consistent with patient’s pain complaints
- You have ...
Starting October 2, 2018, health care practitioners authorized to prescribe, order, administer, or furnish a controlled substance must query, or consult, the Controlled Substance Utilization Review and Evaluation System (CURES) database and run a Patient Activity Report (PAR) on each patient the first time the patient is prescribed, ordered, or administered a Schedule II-IV controlled substance. First time is defined as the initial occurrence in which a health care practitioner intends to prescribe, order, administer, or furnish a controlled substance to a patient and has ...
On January, 1, 2018, The Joint Commission’s (TJC) new and revised pain assessment and management standards go into effect for TJC accredited hospitals. The changes to the standards stem from a review commenced by The Joint Commission in 2016 to bring the preceding accreditation standards into alignment with leading practices in pain assessment and management, and the safe use of opioids. In light of these standards, hospitals and their medical staffs should review their current policies, protocols, and procedures to ensure their practices comply with the new TJC requirements.
When Covered Entities or Business Associates or their counsel analyze whether a particular disclosure of Protected Health Information (or PHI, as defined in HIPAA) is permissible, they should be sure also to analyze whether the disclosure complies with HIPAA’s Minimum Necessary Rule (MNR), which is oft forgot. This issue arises when disclosing PHI in response to subpoenas, which HIPAA permits as long as the disclosing party receives satisfactory assurances that the requesting party has made reasonable efforts to obtain a protective order or to notify the individual(s) who ...
A new California law (AB 72) limits the amount that out-of-network surgeons and other health care professionals may bill patients for covered non-emergency services provided at a contracted facility, such as an ambulatory surgery center. California’s surprise medical bill law went into effect on July 1, 2017. It is intended to prevent a consumer from receiving an unexpected medical bill from a non-contracted provider as follows:
- A patient who is enrolled (Enrollee);
- In a health care service plan or health insurance policy (Plan);
- Receives health care services covered by the Plan;
- From an individual health professional (Professional);
- Who does not have a contract with the Plan; and
- Services are performed at (or as a result of) a contracted health facility (Facility).
In such circumstances, the Enrollee may be billed no more than the same cost-sharing amount that the Enrollee would pay a contracted Professional for the same service (in-network cost sharing amount). At the time of payment, the Plan must inform the Enrollee and the non-contracted Professional of the in-network cost-sharing amount owed by the Enrollee.
On May 10, 2017, the U.S. Health and Human Services Department Office for Civil Rights (OCR) announced an agreement whereby Memorial Hermann Health System (MHHS) will pay a $2.4 million penalty for releasing a patient’s name in a press release. According to the resolution agreement, in September 2015, a patient at an MHHS clinic presented an allegedly fraudulent identification card to office staff. The staff notified law enforcement and the patient was arrested. Although notification to law enforcement did not violate the HIPAA rules, it wa a violation to include the patient’s ...
In a rare move, the California Court of Appeal reversed itself and validated a California hospital’s policy of allowing healthcare workers to waive an otherwise mandatory second meal period on shifts longer than 12 hours. In reversing itself, the California Court of Appeal in Gerard v. Orange Coast Memorial Medical Center (Gerard II) held that its previous decision in Gerard v. Orange Coast Memorial Medical Center (Gerard I) [see our prior discussion re Gerard I here], partially invalidating healthcare meal waivers, was incorrect.
California Labor Code section 512(a) requires that two meal periods be provided for any employee working shifts longer than 12 hours. However, Industrial Welfare Commission (IWC) Wage Order No. 5 carves out an exception to this requirement for employees in the healthcare industry. The Wage Order permits healthcare employees to waive one of their two meal periods on shifts longer than 8 hours even when their shift exceeds twelve hours.
In Gerard I, the Court found that IWC Wage Order No. 5 was partially invalid to the extent it authorized second meal break waivers by healthcare workers on shifts longer than 12 hours. Thus, Gerard I invalidated these meal period waivers. In response to the uncertainty created by Gerard I, Governor Brown signed SB 327 as an emergency measure on October 5, 2015, effective immediately. Although SB 327 confirmed that employees in the healthcare industry who worked shifts longer than eight hours could voluntarily waive their right to one of their two meal periods, even where shifts lasted longer than 12 hours, it only affected meal period waivers entered into on or after October 5, 2015. Now, as a result of Gerard II, healthcare employers in California will not face retroactive liability if they used such waivers prior to October 5, 2015.
A proposed rule intended to stabilize the individual and small group insurance markets was issued on February 17, 2017, only a week after the Senate confirmed Tom Price as the Secretary of the U.S. Health and Human Services Department (HHS). Although the proposed rule is intended to stabilize these markets, it may make it more difficult for individuals to obtain and maintain health insurance coverage, thereby reducing the number of people who are insured.
This is a turbulent time for American healthcare. Within weeks after the publication of the proposed rule, the American Health Care Act (AHCA) was introduced in the U.S. House of Representatives to repeal and replace key provisions of the Affordable Care Act (ACA) and make significant changes to federal funding for Medicaid. On Friday, March 24, House Speaker Paul Ryan pulled the bill before a vote. In the aftermath of the bill’s withdrawal, President Trump predicted that if it were left in place, ObamaCare would explode. As recently as Sunday, April 2, however, the President tweeted that talks of repeal and replace of the ACA were ongoing and would continue until a deal was struck. On Tuesday, April 4, House Speaker Paul Ryan said Republican lawmakers are having productive talks on a new healthcare reform bill.
This on again, off again, action to attack the ACA leaves a great deal of uncertainty for healthcare providers. That uncertainty is compounded by regulatory action that will affect the ACA in ways less visible to the public. Apparently, Secretary Price is well aware of HHS' options to make regulatory changes. According to the Chicago Tribune, he remarked during the House Appropriations Committee hearing on his agency’s proposed budget that "[f]ourteen hundred and forty-two times the ACA said 'the secretary shall' or 'the secretary may.'
The Anti-Kickback Statute
Those in the business of providing healthcare services to Medicare and Medicaid beneficiaries are all too familiar with the federal Anti-kickback Statute (AKS). Among other dreadful sanctions, it imposes criminal penalties on those individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration in order to induce or reward the referral of business reimbursable under federal healthcare programs. A violation of the AKS is a felony punishable by fines of up to $25,000 and imprisonment for up to five years. An offense may also result in the imposition of civil monetary penalties, government program exclusion, and liability under the federal False Claims Act. The U.S. Department of Health and Human Services (HHS) has the authority, however, to protect certain provider arrangements and payment practices under the AKS. To that end, HHS has established safe harbors in various areas. While compliance with a safe harbor is not mandatory, healthcare providers and others may voluntarily seek to comply with safe harbors so that they may have substantial assurance that their business practices do not violate the AKS.
A New Safe Harbor
On January 20, 2017, a new safe harbor became available for local transportation services furnished by healthcare providers to Medicare and Medicaid beneficiaries.  The safe harbor protects an offer of free or discounted local transportation services when paid for by an eligible entity. An eligible entity may be a direct provider of healthcare services or one that arranges for the provision of healthcare services to patients, such as a health plan or clinically integrated network. The definition of an eligible entity excludes organizations that primarily supply healthcare items rather than services, such as a durable medical equipment suppliers or pharmacies. However, entities that primarily provide services, but also provide items, such as a hospital, may provide patients with transportation to the hospital for items or services provided by the hospital (such as for obtaining items at the hospital’s on-site pharmacy).
The safe harbor is available for two types of transportation. First, the safe harbor protects an offer to provide transportation of an established patient to or from an eligible entity for medically necessary items or services. An established patient is a person who has contacted the eligible entity to schedule an appointment or had a previous appointment with the eligible entity furnishing the transportation.
Second, the safe harbor protects certain types of shuttle services that are generally available to the public, as well as patients on a non-discriminatory basis.
There may be no noticeable difference between a hospital patient occupying a bed as an inpatient or one in observation status. Yet, state and federal legislators have been concerned that the difference can have important consequences for the patient. Observation care is considered by Medicare to be an outpatient service. Patients classified as outpatients in the hospital may fail to achieve a three-day inpatient stay to qualify for subsequent Medicare coverage for skilled nursing facility care. Patients in observation status may also have higher co-payments and charges for doctors’ fees and hospital services, as well as drugs.
Federal Law. The Medicare Outpatient Observation Notice (MOON) was developed to inform all Medicare beneficiaries when they are receiving observation services and are not an inpatient of the hospital. The MOON is mandated by the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act), enacted in 2015. All hospitals and critical access hospitals (CAHs) are required to provide the MOON beginning no later than March 8, 2017.
As the clock struck midnight on New Year’s Eve, a number of new California laws took effect. Here are three that California hospital executives need to know:
- Notice of Observation Status (SB 1076)
When a patient is being cared for in an inpatient unit of a hospital (or in an observation unit) the hospital must provide the patient with a written notice when the patient is in observation status. The notice must inform the patient that the observation care is being provided on an outpatient basis and that this may affect the patient’s health care coverage reimbursement. There are also ...
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