Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.
Since the beginning of the COVID pandemic many healthcare businesses are exploring various ways to increase their referrals, and although exchanging fees and gifts in return for referrals may sound like an easy way to obtain additional business, there are state and federal laws that strictly prohibit such activities that are discussed in greater detail below.
Two of the most important laws that all physical therapists should be aware of are the Anti-Kickback Statute and the Stark Law which are used to ensure that medical decisions are not made based on financial incentives. However, each of the laws do have distinctions that you need to be aware of. read more
COVID-19 has affected all aspects of everyday life and healthcare rules and regulations are no exception. All areas of healthcare have been impacted, including the patient’s financial responsibility for healthcare services in the form of co-insurance, copays and deductibles. The waiver of a patient’s financial responsibility for healthcare services is regulated by federal and state law. The waiver of co-pays, co-insurance and deductibles has been deemed a violation of the federal Anti-Kickback statue. A provider who routinely waives the patient’s financial obligation may be violating the participating provider agreement with commercial carriers, state law and federal law with respect to Medicare beneficiaries. Waiving patient fees is seen as an inducement to the patient to prefer one provider over another for financial reasons. However, The Centers for Medicare and Medicaid Services (CMS) and commercial carriers have been authorized by the federal government to waive patient financial responsibility during the pandemic in order to encourage the public to get treated for COVID-19 and non-COVID medical conditions without fear of a hefty bill.
What options do doctors have in determining if a patient has the flu or COVID-19?
The days of assuming a sniffle and low fever during the Fall are just signs of the common flu are long gone. The challenge doctors now face is determining whether a cough, temperature and sore throat is the flu or COVID-19. If the symptoms are essentially the same for both illnesses, what’s a doctor to do? In the old days before Fall of 2019, a doctor would order a lab test to see if the patient tested positive for the flu. Today, a doctor who is faced (in person or virtually) with a patient with fever, chills, cough, runny nose, headaches and fatigue now must know if it is the seasonal flu or COVID-19. Ordering a COVID-19 test may seem like the obvious choice, but a more efficient alternative exists. Instead of a standalone COVID-19 test, ordering a comprehensive respiratory pathogen panel is a better decision. read more
On August 19, an amendment to the Public Readiness and Emergency Preparedness Act was announced by HHS which allows pharmacists in every state to now administer childhood vaccinations to children ages 3 and older, subject to several requirements,
The vaccine must be approved or licensed by the Food and Drug Administration (FDA).
The vaccination must be ordered and administered according to the CDC’s Advisory Committee on Immunization Practices (ACIP) immunization schedules.
The licensed pharmacist must complete a practical training program of at least 20 hours that is approved by the Accreditation Council for Pharmacy Education (ACPE). This training program must include hands-on injection technique, clinical evaluation of indications and contraindications of vaccines, and the recognition and treatment of emergency reactions to vaccines.
CMS has announced that it will resume Medicare Fee-For-Service (FFS) medical reviews August 3, 2020 regardless of the status of the COVID-19 public health emergency. These audits have been suspended since March 30 as a result of the crisis and applied to prepayment reviews and post-payment reviews conducted by Medicare Administrative Contractors (MAC). read more
When COVID-19 passes and the world begins to return to normal, you can be guaranteed that many of your old “friends” will come to visit you. To minimize future liability, pain and time, you should be preparing today for tomorrow’s visitors:
The Lawyers. Lawyers come in many flavors, and can bring good or bad news. Depending on your initial reaction to the pandemic, and your subsequent actions as the panic started to die down you may see three types of lawyers: (1) Those that represent past or present employees who have lost their job or contracted COVID-19; (2) Those that represent patients who claim malpractice based on the care that you did or did not deliver, and also those patients who assert that they contracted COVID-19 at your office; and finally (3) Those that represent creditors or debtors of your practice. The actions you should take today are many and varied and beyond the scope of this overview, however, you should be asking the following questions of yourself: (i) did you file a claim for business interruption despite the fact that your insurance broker said you were wasting your time? (ii) does your malpractice carrier cover you for liability outside of the normal scope of providing care? (iii) are your documenting your actions throughout the pandemic to demonstrate that you were acting reasonably at a time when you did not have all the facts? (iv) did you look at your business insurance policies for coverage for employee claims, or workers comp claims, or OSHA claims? (v) did you research what other similarly situated companies are doing, as you will most likely be held to the same standards? (vi) did you follow guidance from State and Federal entities? and (vii) did you provide notice during the pandemic to debtors or other parties who have breached their obligations? read more
State Surgeon General, Scott A. Rivkees, M.D., issued Emergency Order (“EO”) 20-009, which extends EO 20-002 and continues to allow out-of-state MDs, DOs, APRNs and PAs, to provide telehealth services to persons in Florida. EO 20-009 is set to expire June 30, 2020, unless otherwise extended.
Further, EO 20-009 continues to allow Florida licensed controlled substance prescribers (MDs, DOs, APRNs, PAs) to issue renewal prescriptions of controlled substances for non-malignant pain for existing patients. Additionally, EO 20-009 extends until June 30, 2020, a qualified physician’s ability to recertify an existing qualified and certified patient’s continued use of medical marijuana by using telehealth services. read more
In my last post, I promised to keep you updated as to any new orders from the State Surgeon General that would further extend a practitioner’s ability to prescribe refills of non-malignant pain controlled substances using telehealth communications, or a qualified physician’s ability to recertify an existing qualified patient’s use of medical marijuana. The Surgeon General has extended the ability to continue assisting patients with these specific needs (as well as other needs) until May 31, 2020, through the issuance of Emergency Order 20-007 on May 9, 2020.
Keep in mind, that to prescribe a refill of a controlled substance for chronic non-malignant pain, the practitioner must be an MD, DO, APRN, or PA licensed in Florida and designated as a controlled substance prescribing practitioner. Further, to prescribe such controlled substances using telehealth communications during this public health emergency, the patient must be an existing patient of the prescribing practitioner. read more
COVID-19 has devastated the US economy, including many parts of our Healthcare sector. The Federal Government, along with most States, have begun to respond with various financial incentives, ranging from straight out grants to loans, and everything in between. The following is an overview of some of the assistance that is currently available for the Healthcare community, along with some tips that may assist your company in applying, and what you need to do if you are lucky enough to receive some money:
The CARES Act
Paycheck Protection Program (the “PPP”). Essentially a grant from the Federal Government for payroll, employee benefits, rent/mortgage, utilities for 8 weeks. This program is available for all small businesses, and is managed through banks and private financial institutions.
Apply with multiple financial institutions, and whoever comes through first take the loan/grant;
If you receive the money keep excellent records;
You can only use the money for W-2 employees, not 1099 contractors;
There are strict rules with respect to the number of employees, and their maximum salary. The NUMBER of employees before and after the loan is critical, not the actual employee, so if you laid off someone, you don’t have to hire back that particular person, you can use the money for a new employee who fills the same position; and
If you don’t use all the money for payroll etc, don’t worry, you can either pay it back in a lump sum, or pay it back over time at 1% interest.
Access to telehealth for Medicare beneficiaries was further increased by the Trump Administration April 30, 2020. These new changes allows all health care professionals eligible to bill Medicare for services to provide services via telehealth communications and to bill the Medicare program for such services. Additionally, certain services may now be provided using audio technology only.
For a list of services eligible for reimbursement by the Medicare Program, including services requiring audio technology only, download here. There are approximately 180 different codes reimbursable by Medicare if provided via telehealth communications.