Client Alerts

In what has become an annual event, during his remarks to over 3,000 healthcare compliance professionals at the HCCA Compliance Institute, on April 18, 2016, Department of Health and Human Services Inspector General Daniel Levinson announced a major regulatory development. This year, Mr. Levinson announced the issuance of revised Guidance for the imposition of permissive exclusions under the OIG’s exclusion authority. The new Guidance, which appears on the OIG’s website and replaces the 1997 version, provides new insight on what the government will look at when deciding to impose an exclusion under section (b)(7) related to civil and administrative healthcare fraud settlements. Under section (b)(7), the OIG presumes that exclusion is appropriate for some period of time for those that have defrauded Medicare or any other Federal healthcare program. The Guidance is designed to identify those circumstances that pose a lower risk to the Federal healthcare programs to rebut this presumption for exclusion, as well as those higher risk areas that support heightened sanctions, including exclusion.

On January 11, 2016, the Federal Trade commission (FTC) and the Department of Justice (DOJ) released a Joint Statement regarding legislation in South Carolina House Bill 3250 (the “Bill”) which would narrow the application and ultimately repeal South Carolina’s Certificate of Need (“CON”) laws. CON laws regulate beds allowed for hospitals and nursing homes as well as numerous other health services such as CT scans, MRIs and surgery centers.

In recent days, hospitals in the Washington/Baltimore corridor have been hit by a spate of ransomware attacks, and there is no reason to believe that these attacks will not expand to include hospitals and other healthcare providers’ systems elsewhere, including in Michigan. Indeed, US-CERT, the U.S. Government’s Computer Emergency Readiness Team, has issued an “Alert” to warn hospitals and other healthcare facilities across the country of the growing threat. While cyber criminals have been using variants of ransomware to extort money for a number of years, the emergence of large-scale targeting of hospitals is a relatively recent development that is particularly pernicious. After all, the effects of a ransomware attack -- which infects a computer network and restricts access to it until a ransom is paid to unlock it -- can be, literally, a matter of life and death because such attacks can block access to the current medical records of critically ill patients. Ransomware attacks also threaten the continuity of operations of healthcare facilities, which could lead to even more horrific results.

Over the last decade, 21 states (including New York and California) have created health claims databases and have imposed substantial and costly health care data reporting requirements upon public and private employers, health care plans, health care insurers, and third-party administrators that provide or pay for health care services. In recent years, 18 more states have moved towards creating such databases (including Michigan, Illinois, and Ohio).

Earlier this year, the Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) issued a Policy Statement earlier this year seeking to foster life-saving automated vehicle technologies: http://www.nhtsa.gov/About+NHTSA/Press+Releases/dot-initiatives-accelerating-vehicle-safety-innovations-01142016

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits against Baltimore and Pittsburgh based companies claiming those employers discriminated against employees based on sexual orientation. This marks the first time that the EEOC has sued a private employer under the theory that “sexual orientation” discrimination is a form of “sex discrimination.” This lawsuit forms a part of the EEOC’s continuing effort to seek judicial recognition for its argument that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act of 1964.

This alert is different from others that we have previously provided – it is about the future of one of the innovative aspects of health care technology. Specifically, we wanted to alert our subscribers to some of the telemedicine issues, trends and opportunities. We are co-authoring this specific alert with Susie Vestevich, Esq. an advocate for Michigan-based JEMS Telehealth, manufacturer of emergent telemedicine hardware/software solutions. *JEMS provides the available technology to obtain care for patients in emergency situations. Providing quick information to medical professionals can reduce the recovery times for strokes, heart attacks, and other conditions.

Even prior to the passage of the Affordable Care Act, the return to CMS of overpayments to providers was an important issue for healthcare providers. With the passage of ACA, specifically Section 6402(a), repayment became required under a sixty (60) day rule. On February 11, 2016, CMS issued the final rule, addressing the key issues of when the clock starts ticking on the sixty (60) day repayment period, and how far back CMS can go to impose the sixty (60) day reporting period.

Michigan property owners will be receiving their real property tax Notice of Assessment form within the next few weeks. Many property owners may find that they are being assessed using inflated taxable values if they have not appealed their property taxes over the last several years.

On February 2, 2016, the U.S. Department of Health & Human Services, Centers for Medicare and Medicaid Services (“CMS”), published the fourth 6-month extension of its moratorium freezing enrollment of new Home Health Agencies (“HHA”) and Ambulance Suppliers in federal healthcare programs, including Medicare, Medicaid, and CHIP. The initial moratorium was effective January 30, 2014 and was extended an additional 6 months in July 2014 and in January 2015 and July 2015.

A Changing Landscape: The federal government has made clear that its expectations for effective business ethics and compliance programs have changed.

Late yesterday, the U S Supreme Court rejected a national group health plan’s quest for reimbursement of $120,000 in plan-paid medical expenses from a participant’s general assets, after the participant (injured in an auto accident) spent the $500,000 in settlement monies he had received from the driver at fault. Montanile v. Board of Trustees of the National Elevator Industry Health Care Fund, Sup. Ct. No. 14-723 (1.20.2016).

An ounce of prevention is worth a pound of cure

~ Benjamin Franklin

When every dollar counts for an organization, particularly in a fragile recovering economy, modest proactive compliance expenditures can reduce the risk of substantial fines and costs. With the New Year, healthcare providers and most private and public employers face a new round of compliance efforts under a seemingly “alphabet soup” of regulations and regulators: HIPAA, ACA, ERISA, IRS (Tax Code), CMS, HHS, DOL, SEC and countless others. With an apparent never-ending to-do list, maintaining your organization’s commitment to compliance can be daunting.

Effective January 1, 2016 the minimum wage in Michigan will increase to $8.50 per hour. This is the second of the graduated increases in the minimum wage enacted in 2014 by the Michigan Legislature.

On November 2, 2015, the Department of Health & Human Services (“HHS”), Office of Inspector General (“OIG”) issued the 2016 Work Plan detailing new and ongoing OIG audits, evaluations, and certain legal and investigative initiatives related to HHS programs and operations. In its 80-page Work Plan, the OIG details sixty-eight (68) New or Revised Initiatives that it will add to its ongoing reviews. With over 180 identified initiatives, the Work Plan is a must read for anyone participating in HHS-related programs, as it provides a glance at the current focus of the OIG 2016 to assist healthcare providers and suppliers in their compliance efforts.

IRS Regulations and State Action Provide Financial Planning Opportunity for People with Disabilities and their Families

The Internal Revenue Service has recently announced whether there will be cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2016. Many of the limitations will not change for 2016 because the increase in the cost-of-living index did not meet the statutory thresholds that trigger their adjustment.

Using telephone, text messages or FAX messages to communicate with your patients just got a little less risky, but you have to do it “just right” to avoid violations of the Health Insurance Portability and Accountability Act (“HIPAA”) and the Telephone Consumer Protection Act (TCPA). This has important operational implications for HIPAA covered entities—providers, insurers, and your business associates. Here’s how.  

Every fall, many employers which sponsor welfare benefit plans start to turn their attention to renewing benefits for the upcoming year. As a result, the open enrollment season provides the perfect opportunity to ensure certain welfare benefit legal requirements are kept up to speed: plan documents and summary plan descriptions; annual notices; and nondiscrimination testing.

On August 31, 2015, EPA proposed a rule pursuant to the Resource Conservation and Recovery Act (RCRA) to create new management standards for discarded pharmaceuticals which are regulated as hazardous wastes. The rule will apply to pharmacies, hospitals, doctors’ offices and other health care facilities as well as reverse distributors and treatment, storage and disposal facilities that handle hazardous pharmaceuticals.