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    • Medicare Fraud Strike Force Expands Operations into Baton Rouge, Tampa, and Brooklyn By Clay J. Countryman Assistant Attorney General Lanny A. Breuer of the Criminal Division of the Department of Justice (DOJ) and U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius announced on December 15, 2009 the expansion of Medicare Fraud Strike Force teams to Baton Rouge, Brooklyn, Tampa in the fifth, sixth and seventh phases of a targeted criminal, civil and administrative effort against individuals and health care companies that fraudulently bill the Medicare program.The joint DOJ-HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of Medicare data analysis techniques and an increased focus on community policing. After expanding to Baton Rouge, Tampa and Brooklyn, Strike Force teams will be operating in seven cities in the United States: Miami, Los Angeles, Detroit, Houston, Brooklyn, Tampa and Baton Rouge. Since the inception of Strike Force operations in ....
    • Changing Medical Records Responsive to a Jury Subpoena Ruled an Obstruction of Justice In Health Care Fraud Case By Linda G. Rodrigue In May, 2009, the United States Court of Appeals for the Eleventh Circuit ruled that, among other things, a Florida dermatologist’s failure to produce photographs, which were part of her medical records, in response to a grand jury subpoena constituted obstruction of justice.  The dermatologist had been convicted of health care fraud, filing false claims and obstruction of justice in the trial court.The Florida physician’s Medicare billing for a tissue rearrangement procedure came under scrutiny by the Medicare Part B carrier because of an alleged “aberrant” utilization rate. In response to a 1999 focused review by the carrier, the physician submitted copies of medical records, including photographs. In response to a follow-up request in 2000 for more information by the carrier, the physician produced records without photographs. A close review of records apparently revealed what appeared to be identical operative reports for all ....
    • Federal Court of Appeals Holds That Someone Other Than the Patient May Sue Under EMTALA By Linda G. Rodrigue In April, 2009, the United States Court of Appeals for the Sixth Circuit decided in reviewing a Michigan case that the representative of a deceased woman could sue a hospital under EMTALA for allegedly releasing her husband after admission to the hospital, when he was then hallucinating, disoriented, and behaving in a threatening manner toward her when he was brought to the emergency department.  Five days after admission, it was decided that the husband should be transferred to a facility for the acutely mentally ill.  However, the transfer did not occur and he was, instead, released seven days after admission.  Ten days later, he murdered his wife.In the trial court, the hospital filed a motion for summary judgment, arguing that only the individual patient seeking treatment may sue under EMTALA and that the hospital has no further EMTALA obligation once it admits the patient as an inpatient.  This second reason is presently the subject of ....
    • CCHIT Approves First Electronic Health Records Under Proposed 'Meaningful Use' Rules By Clay J. Countryman On December 1, 2009, the Certification Commission for Health IT (CCHIT) announced that it has certified the first group of Electronic Health Record (EHR) products that meet preliminary federal recommendations for "meaningful use."  The importance of this to health care providers is they are eligible for incentive payments from the Medicare program beginning in 2011 under the stimulus package passed by Congress last spring for providers that become “meaningful users” of certified EHR technology.  However, health care providers are expected to have adopted and actively utilizing a certified EHR in compliance with the “meaningful use” definition or they will be subject to financial penalties under the Medicare program.On Oct. 7, CCHIT launched two new programs designed to certify health IT systems that are likely to meet the stimulus law's meaningful use requirements - CCHIT Certified® 2011 Comprehensive and Preliminary ....
    • Louisiana Department of Health and Hospitals Plans to Audit All In-Home Direct Care Providers to Fight Medicaid Fraud By Jennifer J. Thomas In the wake of the Fraud Enforcement and Recovery Act of 2009 (FERA), which was enacted by Congress on May 20, 2009 and expands the federal False Claims Act, the Louisiana Department of Health and Hospitals (“DHH”) announced on October 29, 2009, a new fraud initiative against agencies who deliver in-home direct care to Medicaid beneficiaries.  DHH is partnering with the Louisiana Attorney General’s office to audit of all Medicaid in-home direct care providers. DHH will engage the services of six (6) audit firms to perform the audits.  Any potential fraud or abuse identified by the auditors will be reported to the Attorney General for prosecution. Funding for these audits will be provided by a $3,000,000.00 fund created with dollars previously recovered from fraudulent providers.What prompted the initiative was a sample audit of in-home direct care providers conducted by DHH in the spring of 2009 for services provided form 2007 to 2008, ....
    • Louisiana Supreme Court Upholds Special Prescriptive Periods for Medical Malpractice Cases By Jennifer J. Thomas The Louisiana Supreme Court has issued two decisions in the past year, Borel v. Young and Warren v. LAMMICO, which are favorable to Louisiana health care providers. In the Warren case, a potential plaintiff waited almost four years from the date of her father’s death to file a wrongful death and survival claim against the health care providers.  The plaintiff had not participated in the Medical Review Panel or filed a lawsuit within either the one and three year prescriptive periods (a.k.a. statute of limitations) required by La. R.S. 9:5628.  The plaintiff’s mother and sister had already filed a timely complaint with the Louisiana Patients’ Compensation Fund, proceeded with a Medical Review Panel, and subsequently filed a lawsuit.  The issue before the Court was whether the new plaintiff could file her own wrongful death and survival claim that would “relate back” to the original, timely claims of her mother and ....
    • Office for Civil Rights Issues "Interim Final" Regulations Requiring Individuals To Be Notified of Breaches of Their Health Information By Clay J. Countryman The Office for Civil Rights of the U.S. Department of Health and Human Services issued new federal regulations on August 19, 2009 that requires health care providers, health plans, and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) to notify individuals when their “unsecured” health information is breached.These regulations, referred to as the “Breach Notification” regulations, implement provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of American Recovery and Reinvestment Act of 2009 (ARRA, and commonly referred to as the Stimulus Act). The Breach Notification regulations require health care providers and other entities subject to HIPAA to promptly notify affected individuals of a breach, as well as the Department of Health and Human Services (HHS) and the media in cases where a breach affects more than 500 individuals. The regulations ....
    • Federal Trade Commission Extends Enforcement Deadline of Red Flag Rules to November 1, 2009 by Clay J. Countryman The Federal Trade Commission (“FTC”) announced on July 29th that the date on which the FTC will begin enforcement of the Red Flag Rules has been further extended to November 1, 2009. The Red Flag Rules, which are contained in regulations promulgated by the FTC under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq., require “financial institutions” and “creditors” to adopt written identity theft prevention programs designed to prevent, detect and mitigate the effects of identity theft. The Red Flag Rules are applicable to any entity that meets the definition of a creditor and maintains covered accounts. Under the Red Flag Rules, a “creditor” is defined as any entity that “regularly extends, renews, or continues credit, or any entity who regularly arranges for the extension, renewal, or continuation of credit.” For example, hospitals, physicians and other health care providers would be ....
    • Louisiana Legislature directs DHH, the Department of Insurance, and the Louisiana State Licensing Board for Contractors to Study the Effects of "defective Chinese Drywall" By G. Trippe Hawthorne The Louisiana Legislature has adopted House Concurrent Resolution No. 185, authored by Representative Tim Burns.  The resolution urges and requests that the Department of Health and Hospitals and the Deptartment of Insurance, in consultation with the Louisiana State Licensing Board for Contractors, investigate the health risks associated with living in homes that contain drywall imported from China, study the potential homeowners insurance coverage issues, including triggers, endorsements, and exclusions to policies that are related to drywall imported from China, and determine whether such material should be identified as a substandard, unsafe building material.  The resolution goes on to request a report of the findings and recommendations of this study to the legislature prior to the convening of the 2010 regular session. A copy of the enrolled version of the resolution can be seen here: Download file ....
    • Patients and Electronic Communication: Permissible? Acceptable? Recommended? By Vance A. Gibbs In this day and age, everyone communicates by e-mail, on a laptop, desktop, Blackberry or other electronic device. But what about communication between a physician and a patient?   Is this permissible? Acceptable under existing law and practice? Recommended?Permissible? Obviously, any form of communication between a physician and a patient is allowed. So, if you wish to discuss with a patient their history, your impressions, diagnosis, prognosis or other issues relating to evaluation and treatment, you may. However, this form of communication carries with it certain special rules and requirements. Which leads us to our second question. Acceptable? Any communication by a physician with a patient should be documented. In the olden days, this may have involved a small spiral notebook with entries made from phone calls received at home and later placed in the patient’s office chart. Now, in the era of electronic communication, the initial consideration is ....
    • American Recovery and Reinvestment Act of 2009: New COBRA Rights and Obligations By A. Edward Hardin, Jr. On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (the “ARRA”), the comprehensive economic stimulus package. Among its other provisions, the ARRA includes an extension of the right to elect COBRA coverage, a reduction in COBRA premiums for eligible participants, and new notice obligations for employers.Extension of COBRA Election: Under the ARRA, employees who were involuntarily terminated between September 1, 2008 through February 16, 2009, and who do not have COBRA coverage because they either did not initially elect COBRA or elected COBRA, but are no longer covered, will have a second opportunity to elect COBRA coverage or to re-establish COBRA coverage. The new election period began on February 17 (the day the President signed ARRA into law) and ends 60 days after the required notice of the special election period is given. The second election period does not extend COBRA coverage beyond the ....
    • Federal Appeals Court Finds the Provision of Free Office Space, Supplies and Equipment to Anesthesia Group Does Not Meet an Exception to the Stark Law by Clay J. Countryman A federal appeals court recently ruled that a lower district court erred in granting summary judgment to a hospital in a whistleblower action under the federal False Claims Act that was based on allegations that the hospital’s arrangement with an anesthesia physician group violated the Stark Law and the Federal Anti-kickback Act. In United States ex rel. Kosenske v. Carlisle HMA, Inc., No. 07-4616 (3rd Cir. Jan. 21, 2009), the 3rd Circuit Court of Appeals found that a hospital failed to meet the personal services exception to the Stark Law because an earlier anesthesia services agreement between the parties did not cover pain management services provided by the anesthesiology practice as a hospital outpatient clinic. The court also found that the agreement did not reflect fair market value for compensation by the hospital to the anesthesiologists that included free office space, supplies, and support personnel.  This case had originally been brought by ....
    • OIG Issues Advisory Opinion on Part-Time Physician Employment Agreements by Clay J. Countryman The Office of Inspector General ("OIG") issued Advisory Opinion No. 08-22 on December 8, 2008 regarding a proposed arrangement by a non-profit organization to hire two physicians on a part-time basis to perform endoscopies. The part-time physicians would perform the endoscopies at the offices of the non-profit organization, which was formed to employ physicians. Each of the physicians also have a separate medical practice, at another location, through which each physician will continue to provide and bill for professional medical services furnished to patients outside of the proposed part-time employment relationship. The non-profit organization certified that the physician part-time employees will be its bona fide 3employees within the meaning of 26 U.S.C. § 3121(d)(2) and that it would pay the physicians a salary based on the fair market value of the professional services that would be personally provided by each physician while employed by the ....
    • OIG Releases Work Plan for 2009 by Clay J. Countryman On October 1, 2008, the Department of Health and Human Services, Office of Inspector General (OIG) released its 2009 Work Plan. The OIG’s Work Plan describes the initiatives and priorities of the OIG for the 2009 fiscal year. The OIG will address these initiatives through audits, investigations, inspections, and health care industry guidance documents, as well as enforcement action under federal, civil and criminal statutes. The following are some of the important 2009 OIG initiatives for hospitals, physicians, and other health care providers:2009 Hospital Initiatives: • Provider-Based Status for Inpatient and Outpatient Facilities: The OIG will determine the potential impact on both the Medicare program and its beneficiaries of hospitals improperly claiming provider-based status for inpatient and outpatient facilities. • Hospital Ownership of Physician Practices: The OIG will determine whether hospitals have met the Federal requirements to obtain ....
    • Federal Court of Appeals Absolves Louisiana Hospital of Liability in Failure to Report Physician Impairment While on the Medical Staff by Linda G. Rodrigue In May of this year, the United States Court of Appeals for the Fifth Circuit absolved Lakeview Regional Medical Center (“Lakeview”) of any liability, and reversed a damage award against it, in a lawsuit that had been brought against Lakeview and a physician group practice by Kadlec Medical Center, a hospital located in the state of Washington. Kadlec sued Lakeview and a physician practice for over $8 million in damages, on the grounds that Kadlec was forced to settle a malpractice lawsuit due to the negligence of an anesthesiologist who was impaired at the time of the malpractice. Kadlec’s claim was that Lakeview and the physician group practice knew of the physician’s impairment when he was on the medical staff of Lakeview, were asked about his performance before he was credentialed at Kadlec, and did not disclose the prior impairment and disciplinary action that had resulted.The Fifth Circuit affirmed a lower court decision that the ....
    • GAO Issues Report on HHS Privacy Plan for Electronic Health Information by Clay J. Countryman In a report issued September 17, 2008, the GAO commented that the Department of Health and Human Services (HHS) has made substantial strides in devising a national plan for protecting the privacy of patients’ electronic personal health information, but that HHS still needs to do more to ensure key privacy principles are fully addressed. The GAO’s remarks were contained in a report issued to the U.S. Senate Committee on Homeland Security and Governmental Affairs of a follow-up study by the GAO regarding the Office of the National Coordinator of Health IT’s efforts to insure the privacy of electronic personal health information exchange within a nationwide health information network.According to the report, the objective of the GAO was to provide an update on the department’s efforts to define and implement an overall privacy approach. In January 2007, the GAO had reported on the activities of HHS and the National Coordinator for HIT to ....
    • Fifth Circuit Reverses $33 Million Judgment Against Physicians and Hospital Arising From Peer Review Actions by Deborah A. Juneau In a recent case, the Fifth Circuit emphasized the legislative purpose in the Health Care Quality Improvement Act (HCQIA) to improve the quality of health care by protecting physicians who participate in peer review actions, finding they were entitled to immunity from monetary damages. In Poliner v. Texas Health Systems, -- F.3d -- (5th Cir. 2008), 2008 WL 2815533, an interventional cardiologist sued Presbyterian Hospital and several physicians for damages related to a restriction of his privileges during a peer review investigation. At trial, the jury found in favor of Dr. Poliner on various claims and awarded nearly $90 million in defamation damages and $110 million in punitive damages. The district court reduced the damages to $33 million, including prejudgment interest.  The defendants appealed the judgment, arguing they were entitled to immunity from monetary damages under HCQIA. The Fifth Circuit found Dr. Poliner failed to rebut the presumption that the ....
    • Amended Rules Governing Dispensation of Medications by Lyn S. Savoie In the September 20, 2008 issue of the Louisiana Register, the Louisiana State Board of Medical Examiners amending the rules governing dispensation of medications. The amended rules now forbid dispensing physicians from dispensing any controlled substance or drug of concern, unless the physician practices at a governmental facility or a licensed abuse or addiction treatment facility, or is engaged in a regulated clinical research project or investigational study.The amended rule does permit a dispensing physician to dispense up to a single 48-hour supply of a single controlled substance or drug of concern to a patient. Also, a physician is permitted to submit a written application to depart from the prohibition for an individually identified patient. The board will review such written waiver applications on an individual case basis. The Louisiana Register publication of the Rule is here . ....
    • OIG Issues Advisory Opinion on Proposed Block Lease of Free-Standing Cancer Treatment Center by Clay J. Countryman The Office of Inspector General issued Advisory Opinion No. 08-10 on August 19, 2008 regarding a proposal for a physician group practice to lease a facility owned by the practice on a part-time basis to other physician groups for the groups to provide certain radiation therapy treatments to their patients. The physician group practice that owns the facility had requested this advisory opinion from the OIG on whether the OIG considers the proposed part-time (i.e., block) leases of the facility to other physician groups would generate prohibited remuneration under the Federal anti-kickback statute.   Under the proposed block lease arrangements, the physician group that owns the facility would enter into a series of lease agreements with urologist groups under which the urologist groups would lease, on a part-time basis, the space, equipment and personnel services necessary to perform intensity-modulated radiation therapy (“IMRT”) for their ....
    • Louisiana Chosen to Participate in Electronic Health Records Medicare Demonstration Project by Valerie A. Judice On June 10, 2008, Michael O. Leavitt, Secretary of the Department of Health and Human Services (DHHS) announced that Louisiana was one of twelve (12) communities chosen to participate in an Electronic Health Records Medicare Demonstration Project. The project will last five (5) years and will provide physicians with financial incentives to use certified electronic health records (EHRs). Incentive payments for the entire 5-year period may reach $58,000 per physician and $290,000 per practice.   The goal of the project is to improve the quality of care provided to Medicare beneficiaries. Secretary Leavitt stated that the use of EHRs will assist physicians in providing “better, more efficient care for their patients, in part by reducing medical errors.” The idea is to promote the use of EHR technology at the individual physician and small practice level, where health care providers have been the slowest to adopt it. The ....