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HIT Policy Committee’s Nationwide Health Information Network Workgroup Meets December 16, 2009

December 1, 2009

The Office of the National Coordinator for Health Information Technology (ONC) HIT Policy Committee’s Nationwide Health Information Network Workgroup will hold a public meeting on December 16, 2009. The meeting is scheduled from 10 a.m. to 5 p.m./Eastern Time at the OMNI Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC. Members of the public care invited to participate live, via telephone, or Webcast. For details about options for participation, instructions to present input, and other details, see here.

For More Information

We hope that this information is useful to you. If you need assistance with these or other health care public policy, regulatory, compliance, risk management, workforce and other staffing, transactional or operational concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other reimbursement, operations, internal controls and risk management matters. You can review other recent health care and related resources and additional information about the health industry and other experience of Ms. Stamer here.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here and/or by participating in the SLP Health Care Risk Management & Operations Group on LinkedIn. To unsubscribe, e-mail here.

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Posted by Cynthia Marcotte Stamer

HIT Committee To Meet October 14 In Washington, D.C.

September 29, 2009

The next meeting of the HIT Standards Committee of the Office of the National Coordinator for Health Information Technology (ONC) will be held on October 14, 2009, from 9 a.m. to 3 p.m./Eastern Time at the Omni Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC. The hotel telephone number is 202-234-0700. Interested members of the public are invited to attend.

Created under the American Recovery and Reinvestment Act of 2009 (ARRA), the HIT Standards Committee is charged with making recommendations to the Office of National Coordinator for Health Information Technology (ONC) on standards, implementation specifications, and certification criteria for the electronic exchange and use of health information consistent with the implementation of the Federal Health IT Strategic Plan, and in accordance with policies developed by the HIT Policy Committee. Even as Congress debates further reforms, the activities of the HIT Committee and other components of the ONC are key actors in the continuing efforts of the Obama Administration to promote health care efficiency by reengineering health care technology.

During a previous meeting on August 20, 2009, the HIT Committee finalized certain recommendations concerning meaningful use of electronic medical records, clinical quality, and privacy and security of protected health information, which are available for review here.

According to the ONC announcement regarding the upcoming meeting in today’s (September 29, 2009) Federal Register available here, the Committee plans during the meeting to:

Discuss reports from its Clinical Operations, Clinical Quality, and Privacy and Security Workgroups
Take testimony from invited experts in the field of security as it relates to health information technology

Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions may be made to the contact person on or before October 6, 2009. Oral comments from the public will be scheduled between approximately 2:30 p.m. to 3 p.m. Time allotted for each presentation may be limited. If the number of speakers requesting to comment is greater than can be reasonably accommodated during the scheduled open public hearing session, ONC will take written comments after the meeting until close of business.

ONC hopes to make background material available to the public at least two (2) business days prior to the meeting. However, if ONC is unable to post the background material on its Web site before the meeting, it will make that material publicly available at the location of the advisory committee meeting, and post the background material on ONC’s web site after the meeting here.

The designated person to contact for additional information is Jonathan Ishee, Office of the National Coordinator, HHS, 200 Independence Ave, SW., Room 729-G, Washington, DC 20201, 202-205-8493, Fax: 202-690-6079, e-mail: jonathan.ishee@hhs.gov.

If you need assistance preparing or presenting comments to the HIT Standards Committee or with monitoring or responding to other health care IT, privacy and data security, regulatory, operational, public policy or other health care concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Chair and Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail at CStamer@CTTLegal.com.

Other Recent Developments

If you found this information of interest, you also may be interested in reviewing some of the following recent Solution Law Press Updates available online by clicking on the applicable article title below:

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending these or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other reimbursement, operations, internal controls and risk management matters.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here, registering to receive updates in blog form here or e-mailing this information to support@solutionslawyer.net.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here. To unsubscribe, e-mail here.

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Posted by Cynthia Marcotte Stamer

Baucus Health Care Reform Proposal Calls For Significant Tightening In Tax-Exemption Rules

September 22, 2009

Senate Finance Set To Begin Markup Sessions Today – Repeal of Rebuttable Presumption Rule In Reasonable Compensation Rules, Other Tightening of Requirements Threatened

With Senate Finance Committee meetings to mark up Chairman Max Baucus’ health care reform proposal as outlined in his 220-page “Chairman’s Mark of America’s Healthy Future Act of 2009” (the “Baucus Proposal”) scheduled to begin today (September 22, 2009), tax-exempt health care and other non-profit organizations should evaluate carefully proposed amendments that could impact their tax-exempt status or related obligations. The proposed amendments have serious implications for non-profits within and beyond the health care industry.

Markup Scheduled To Begin Tuesday

The Senate Committee on Finance began meeting today (September 22, 2009) to negotiate how to convert into proposed legislation the Baucus Proposal introduced by Committee Chairman Max Baucus on September 16, 2009, the text of which may be reviewed here.

Since no text of the proposed legislation itself has been released yet, it is impossible to fully evaluate the specific nature and implications of the Baucus Proposal. While this week’s planned Senate Finance Committee mark up will further clarify these matters, a review of the description of changes proposed by Chairman Baucus in the Baucus Proposals nevertheless provides significant insight of what health care organizations can expect to be discussed and, in all likelihood incorporated into the draft legislation ultimately proposed in some form. Accordingly, tax-exempt health care organizations should carefully evaluate and act promptly to share their input with members of the Senate Finance Committee and other members of Congress about a series of proposed amendments that would impact their tax-treatment and other responsibilities.

All Tax-Exempts Should Monitor Proposals To Shift Burden Of Proof On Compensation Reasonability & Expanded IRS Powers

Among a multitude of proposed tax amendments, tax-exempt organizations inside and outside the health care industry will want to keep a a close eye on discussions and proposals to amend the Baucus Proposal to further modify the tax-exemption requirements for tax-exempt hospitals and other tax-exempt organizations. Late last week, Ranking Member Senator Chuck Grassley submitted a proposal to amend the Baucus Proposal to further tighten tax-exemption requirements in two material respects likely to generally concern tax-exempt organizations:

For the stated purpose of avoiding wasteful legal challenges to the management and governance questions on the revised Form 990, to specifically grant statutory authority to the Internal Revenue Service to ask management and governance questions on the Form 990; and
To make it easier for the Internal Revenue Service to challenge as unreasonable compensation payments made by tax-exempt entities by shifting the burden to the taxpayer of proving the reasonability of compensation and removing the burden currently borne by the Internal Revenue Service of going forward with the evidence on comparability. This would be accomplished by overruling the rebuttable presumption of reasonableness currently set forth in Treasury Regulation § 53.4958-6 of the intermediate sanctions rules and replacing it with a requirement that public charities due diligence demonstrate that their compensation payments meet the 3 current elements of the presumption:
- Review by an authorized body made of members without a conflict of interest
- Use of appropriate data as to comparability and
- Adequate and contemporaneous documentation. This amendment is expected to raise revenue, according to the summary.

Given the potential implications of these proposed amendments, tax-exempt health care and other organizations should keep a close eye on proposed tax provisions of the Baucus Proposal and other related proposals.

Proposal To Tighten Other Tax-Exemption & Reporting Requirements For Tax-Exempt Hospitals

While the Senate Finance Committee as of yet has not released text of the proposed legislation itself, a review of the description of changes proposed by Chairman Baucus in the Baucus Proposals and other subsequently proposed amendments to the Baucus Proposal reveal other plans to materially change the tax-exemption qualification, governance and reporting requirements for tax-exempt hospitals beyond the proposal to create CO-OPs. Among other things, the Baucus Proposal calls for the Internal Revenue Code § 501(c)(3) and its related provisions to be amended to require tax-exempt hospitals:

To conduct or participate in and share with the public a community-needs analysis with input from a broad cross section of the community at least once every 3 years and thereafter to report on its implementation, including explaining where applicable why identified needs were unaddressed. These additional requirements would supplement rather than replace existing community benefit standards already generally applicable to charitable entities
To provide non-discriminatory emergency care
To have, implement and widely disseminate a written financial assistance policy defining among other things:
- The rules for determining who qualifies for financial assistance
- How the hospital determines amounts to be billed to patients in manner that provides for patient discounts to be based on Medicare rates, “best” commercial rates or other approved statutory measures rather than “chargemaster rates”
- Require hospital to notify patients of the financial assistance policy on admission, on bills and in telephone calls of its financial assistance policy before initiating various collection actions or reporting the account to a credit rating agency
To make its audited financial statements (and where applicable, the consolidated financial report of any entity of which it is a part) available widely
The Internal Revenue Service (IRS) to conduct a SEC-type review of each 501(c)(3) hospital’s community benefit activities at least once every three years based on data reported on Schedule H of the Form 990
The IRS and the Department of Health and Human Services (HHS) to report annually to Congress on community benefit activities of non-governmental tax-exempt hospitals, charity care, bad debt, and unreimbursed costs of government programs (means-tested and non-means-tested) incurred by tax-exempt, taxable, and governmental hospitals.

CO-Ops As Health Coverage Alternative

Much more widely discussed is the Chairman’s CO-OP proposal. The Baucus Proposal calls for the creation of a new vehicle to provide an alternative source of health care coverage called “CO-Ops.” As contemplated by the Baucus Proposal, CO-Ops would be associations controlled by a beneficiary board unrelated to existing organizations providing health insurance as of July 16, 2009. Subject to their meeting non-inurement and other common existing requirements for charitable status as well as other conditions, CO-Ops would be able to apply for tax-exempt status as well as federal funding.

New Taxes and Fees On Insurers & Others

The Baucus Proposal proposes to finance its health care reforms through a variety of mechanisms including, excise taxes and penalties on employers and individuals that fail to purchase the government specified health care package, taxes on premiums paid for health insurance coverage in excess of certain specified annual limits, the imposition of certain premium taxes and “sector fees” on healthcare insurers (with some exceptions possible under certain circumstances for certain 501(c)(3) and (c)(4) HMOs not providing commercial-type insurance within the meaning of Section 501(m)).

Other Baucus Proposal Highlights

In its current summary form, the 220-page Baucus Proposal includes a host of other sweeping reforms, which are certain to be further expanded and refined during this week’s scheduled Senate Finance Committee markup session. Many of these other proposed reforms were highlighted in an overview of the Baucus Proposal published here. You can join the discussion of these and other proposed health care forms and exchange updates and other resources about health care reform and related concerns by registering to participate in the Coalition For Responsible Health Care Policy Group on Linkedin.

Other Recent Developments

If you found this information of interest, you also may be interested in reviewing some of the following recent Solution Law Press Health Care Updates available online by clicking on the article title below:

For More Information

We hope that this information is useful to you. If you need assistance with health care compliance, risk management, reimbursement, staffing, credentialing, transactional, operational or public policy concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and related matters.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here, by e-mailing this information to support@cttlegal.com or by participating in the SLP Health Care Risk Management & Operations Group on LinkedIn.

Leave a Comment » | America's Healthy Futures Act, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Quality, Health Care Reform, Health Insurance Exchange, Medicaid, Medicare, Medicare Advantage, Physician, Reimbursement, Tax, Tax-Exemption | Tagged: Health Care, Health Care Policy, Health Care Provider, Health Care Reimbursement, Health Policy, Hospital, Medicare, Nonprofits, Physician, Physicians, Prescription Drugs, Public Policy, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

Baucus’ America’s Healthy Future Act of 2009 Calls For Significant Tightening of Tax Exemption Rules

September 21, 2009

Senate Finance Set To Begin Markup Session Proposal September 22 – Repeal of Rebuttable Presumption Rule In Reasonable Compensation Rules, Other Tightening of Requirements Threatened

With Senate Finance Committee meetings to mark up Chairman Max Baucus’ health care reform proposal as outlined in his 220-page “Chairman’s Mark of America’s Healthy Future Act of 2009” (the “Baucus Proposal”) scheduled to begin tomorrow (September 22, 2009), tax-exempt health care and other non-profit organizations should evaluate carefully proposed amendments that could impact their tax-exempt status or related obligations in addition to the widely-discussed proposal to create “Consumer Operated and Oriented Plans (CO-OPs).

Markup Scheduled To Begin Tuesday

The Senate Committee on Finance plans on Tuesday, September 22, 2009 to hash out how to convert into proposed legislation the health care reform proposal outlined in the “Chairman’s Mark America’s Healthy Future Act of 2009” introduced by Committee Chairman Max Baucus on September 16, 2009, the text of which may be reviewed here.

Since no text of the proposed legislation itself has been released yet, it is impossible to fully evaluate the specific nature and implications of the Baucus Proposal. While this week’s planned Senate Finance Committee mark up will further clarify these matters, a review of the description of changes proposed by Chairman Baucus in the Baucus Proposals nevertheless provides significant insight of what health care organizations can expect to be discussed and, in all likelihood incorporated into the draft legislation ultimately proposed. Accordingly, tax-exempt health care organizations should carefully evaluate and act promptly to share their input with members of the Senate Finance Committee and other members of Congress about a series of proposed amendments that would impact their tax-treatment and other responsibilities.

Proposal To Tighten Tax-Exemption & Reporting

Requirements For Tax-Exempt Hospitals

While the Senate Finance Committee as of yet has not released text of the proposed legislation itself, a review of the description of changes proposed by Chairman Baucus in the Baucus Proposals and other subsequently proposed amendments to the Baucus Proposal reveal plans to materially change the tax-exemption qualification, governance and reporting requirements for tax-exempt hospitals beyond the proposal to create CO-OPs. Among other things, the Baucus Proposal calls for the Internal Revenue Code § 50!(c)(3) and its related provisions to be amended to require:

The hospital to conduct or participate in and share with the public a community-needs analysis with input from a broad cross section of the community at least once every 3 years and thereafter to report on its implementation, including explaining where applicable why identified needs were unaddressed. These additional requirements would supplement rather than replace existing community benefit standards already generally applicable to charitable entities
The hospital to provide non-discriminatory emergency care
The hospital to have, implement and widely disseminate a written financial assistance policy defining among other things:
- The rules for determining who qualifies for financial assistance
- How the hospital determines amounts to be billed to patients in manner that provides for patient discounts to be based on Medicare rates, “best” commercial rates or other approved statutory measures rather than “chargemaster rates”
- Require hospital to notify patients of the financial assistance policy on admission, on bills and in telephone calls of its financial assistance policy before initiating various collection actions or reporting the account to a credit rating agency
The hospital make its audited financial statements (and where applicable, the consolidated financial report of any entity of which it is a part) available widely
The Internal Revenue Service (IRS) to conduct a SEC-type review of each 501(c)(3) hospital’s community benefit activities at least once every three years based on data reported on Schedule H of the Form 990
The IRS and the Department of Health and Human Services (HHS) to report annually to Congress on community benefit activities of non-governmental tax-exempt hospitals, charity care, bad debt, and unreimbursed costs of government programs (means-tested and non-means-tested) incurred by tax-exempt, taxable, and governmental hospitals.

In addition to the proposed amendments included in the Baucus Proposal as originally introduced, health care organizations also will need a close eye on discussions and proposals to amend the Baucus Proposal to further modify the tax-exemption requirements for tax-exempt hospitals and other health care organizations. For instance, late last week, Ranking Member Senator Chuck Grassley submitted a proposal to amend the Baucus Proposal to further tighten requirements for tax-exempt health care organizations:

For the stated purpose of avoiding wasteful legal challenges to the management and governance questions on the revised Form 990, to specifically grant statutory authority to the Internal Revenue Service to ask management and governance questions on the Form 990; and
To make it easier for the Internal Revenue Service to challenge as unreasonable compensation payments made by tax-exempt entities by shifting the burden to the taxpayer of proving the reasonability of compensation and removing the burden currently borne by the Internal Revenue Service of going forward with the evidence on comparability. This would be accomplished by overruling the rebuttable presumption of reasonableness currently set forth in Treasury Regulation § 53.4958-6 of the intermediate sanctions rules and replacing it with a requirement that public charities due diligence demonstrate that their compensation payments meet the 3 current elements of the presumption:
- Review by an authorized body made of members without a conflict of interest
- Use of appropriate data as to comparability and
- Adequate and contemporaneous documentation. This amendment is expected to raise revenue, according to the summary.

With these provisions already targeting their tax-exempt status, tax-exempt hospitals and other non-profits and others likely to surface as the legislative discussion proceeds, tax-exempt health care and other organizations should keep a close eye on proposed tax provisions of the Baucus Proposal and other related proposals.

CO-Ops As Health Coverage Alternative

New Taxes and Fees On Insurers & Others

Other Baucus Proposal Highlights

Other Recent Developments

For More Information

We hope that this information is useful to you. If you need assistance with these or other health care public policy, regulatory, compliance, risk management, workforce and other staffing, transactional or operational concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other reimbursement, operations, internal controls and risk management matters.

Ms. Stamer has extensive experience in these and other health industry related representation. You can review other recent health care and related resources and additional information about the health industry and other experience of Ms. Stamer here.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here, or e-mailing this information to cstamer@cttlegal.com, and/or by participating in the SLP Health Care Risk Management & Operations Group on LinkedIn.

Leave a Comment » | Corporate Compliance, Health Care, Health Care Finance, Health Care Provider, Health Care Reform, Health Insurance Exchange, Health Plan, Health Plans, Hospital, Reimbursement, Rural Health Care, Tax-Exemption | Tagged: America's Healthy Future Act, Doctor, Health Care, Health Care Policy, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, Hospital, Medicare, Nonprofits, Public Policy | Permalink
Posted by Cynthia Marcotte Stamer

Two Recent Criminal Prosecutions For HIPAA Privacy Rule Violations Signal Rising Criminal Enforcement Risks

September 8, 2009

Register here To Participate In September 9 or September 17 Briefings on New HIPAA Data Breach Rules

September 8, 2009

Two recent separate criminal actions against hospital workers for wrongfully accessed medical records in violation of the medical privacy provisions of the Health Insurance Portability & Accountability Act of 1996, as amended (HIPAA) are the latest reminders to health care providers, health plans, health care clearinghouses, their business associates and members of their workforce that the criminal provisions of the HIPAA Privacy Rules have teeth.

Palmetto General Hospital Employee And Accomplice Indicted For Stealing Patient Records As Part Of Fraud

In Miami-Dade County, federal felony charges are pending against Jacquettia L. Brown, 29, and Tear Renee Barbary, 25, prosecution on for offenses relating to the theft of patient profile records from Palmetto General Hospital to further a fraud scheme.

A seven-count Indictment announced by the Department of Justice on May 26, 2009 charges Brown and Barbary with conspiracy to commit access device fraud in violation of Title 18, United States Code, Section 1029(b)(2), and criminal violations of HIPAA. In addition, Brown is charged with aggravated identity theft, in violation of Title 18, United States Code, Section 1028A(a)(1). If convicted, the defendants face a statutory maximum of five (5) years’ imprisonment on Count 1, and a statutory maximum of ten (10) years’ imprisonment as to each of Counts 2, 3, and 7. As to Counts 4-6, Brown faces a two (2) year mandatory prison sentence per count.

According to the Indictment, Brown, a medical records employee of Palmetto General Hospital, took records containing personal profile information of Palmetto General Hospital patients. Defendant Brown and Barbary then used the stolen personal information to further a credit card fraud conspiracy. The patient profile records that Brown stole included personal identifying information, such as patients’ names, birthdates, Social Security numbers, addresses, driver’s license numbers, and next of kin contacts. Brown used the stolen identifying information to obtain patients’ credit card account numbers. She gave patient profile records and credit card account numbers to Barbary, who used the information to make unauthorized credit card purchases. When law enforcement officials disrupted the scheme, Brown was in possession of 41 patient profile records and Barbary was in possession of six patient profile records.

Curiosity Check of Medical Records Results In Arkansas Doctor, 2 Former Hospital Employees Guilty Plea To HIPAA Violation

Three Arkansas health care workers could be sentenced to up to 1 year in prison, a fine of not more than $50,000, or both after pleading guilty in July, 2009 to misdemeanor violations of the health information privacy provisions of HIPAA for accessing a patient’s record without any legitimate purpose.

United States Magistrate Judge Henry L. Jones, Jr. accepted the guilty pleas of Dr. Jay Holland, age 56, of Little Rock, Arkansas; Sarah Elizabeth Miller, age 28, of England Arkansas; and Candida Griffin, age 34 of Little Rock, Arkansas after each admitted to accessing patient records to satisfy their own curiosity.

Dr. Holland, Medical Director of Select Specialty Hospital, located on the 6 floor of the St. Vincent Infirmary Medical Center (SVIMC), admitted that after watching news reports on television, he logged on to the SVIMC patient records from his computer at home and accessed a patient’s files to determine if the news reports were accurate. He admitted he accessed the file because he was curious even though he had had HIPAA training and understood he was violating HIPAA when he accessed the file. SVIMC suspended Dr. Holland’s privileges for two weeks and required him to complete on-line HIPAA training.

Sarah Elizabeth Miller, formerly an account representative at SVIMC, Sherwood Campus, was responsible for checking patients in and out of the clinic and for processing patient billing. In order to perform her duties, she had access to the SVIMC patient records program which includes all locations, not just that of the Sherwood clinic. Miller admitted that on October 20 and 21, 2008, she accessed a patient’s files approximately 12 times out of curiosity. She admitted that she accessed the records without any legitimate purpose. Records show that Miller was trained on HIPAA privacy laws by SVIMC. SVIMC fired Miller from her position.

Candida Griffin was the emergency room unit coordinator at SVIMC. Her responsibilities were to order patient tests, perform data entry into electronic patient files for patients and perform other secretarial functions in the emergency room. Griffin admitted that on October 20, 2008, she was told by the charge nurse to set-up an alias for a particular patient admitted to the emergency room. On October 21, 2008, after the patient had been moved to ICU, Griffin admitted that she became curious about the patient’s status and accessed the medical chart to find out if the patient was still living. Although Griffin did not inform anyone about accessing the chart, hospital records show that the patient’s records were accessed three times that day by Ms. Griffin. SVIMC records show that Griffin was trained on HIPAA privacy laws. SVIMC fired Griffin from her position.

Pursuant to plea agreements with the United States, Holland, Miller and Griffin pleaded guilty to a misdemeanor a violation of the health information privacy provisions of HIPAA based on their accessing a patient’s record without any legitimate purpose. Each faces a maximum penalty of 1 year imprisonment, a fine of not more than $50,000, or both. A sentencing date has not yet been set, but is expected within the next few weeks.

Criminal Referral and Enforcement Continues

Together with the HIPAA-related criminal convictions of in 2008 of David Gibson, Ferando Ferrer, Jr. and Andrea Smith discussed here, these new Arkansas and Florida criminal actions document the willingness of Justice Department attorneys to investigate and prosecute certain criminal violations. Because they involved the theft of health information for use in furtherance of other health care fraud schemes, many have viewed as predictable and understandable the prosecution of Gibson, Ferrer, Brown and Barbary. In contrast, the willingness of Jane W. Duke, United States Attorney for the Eastern District of Arkansas, to prosecute criminally the wrongful access by the SVIMC health care workers and Andrea Smith in the absence of other health care fraud motives challenges the perception widely held among certain segments of the health care and health plan industry that the criminal provisions of HIPAA have little teeth. Since U.S. Attorney Duke pursued both the SVIMC and Smith prosecutions, it remains to be seen whether other U.S. Attorneys will be equally willing to pursue prosecution of HIPAA violations in the absence of evidence of other federal health care crimes.

Less speculative is the growing readiness of the Department of Health & Human Services Office of Civil Rights to pursue civil remedies for HIPAA violations. On February 18, 2009, for instance, OCR and the Federal Trade Commission (“FTC”) issued a joint announcement (the “Announcement”) ordering CVS Pharmacy, Inc., the nation’s largest retail pharmacy chain, to pay the U.S. government a $2.25 million settlement and to take other corrective action to ensure that it does not violate the privacy rights patients under HIPAA when disposing of patient information such as identifying information on pill bottle labels. In a coordinated action, CVS Caremark Corp., the parent company of the pharmacy chain, also signed a consent order and agreed to a settlement with the FTC to settle potential violations of the FTC Act. The investigation resulting in the settlement marks the first instance where the OCR formally coordinated on investigation and resolution of a case with the FTC.

Coming as new data breach notification requirements for HIPAA-covered entities are set to take effect on September 23, 2009, these and other stepped up oversight and enforcement activities make it critical that all health care providers, health plans, health care clearinghouses and their business associates need to update their policies and practices, tighten their compliance and data breach monitoring processes, and strengthen their internal controls, compliance in preparation for defending their actions under the newly strengthened Privacy Rules. Covered entities and their business associates more than ever must ensure their ability to demonstrate to federal regulators the effectiveness of their HIPAA compliance efforts by both adopting the written policies and procedures required by HIPAA and continuously monitoring and administering these safeguards. Covered entities should consider reviewing the adequacy of their current HIPAA Privacy and Security compliance practices taking into consideration the Corrective Action Plan, published OCR noncompliance and enforcement statistics, their own and reports of other security and privacy breaches and near misses, and other developments to determine if additional steps are necessary or advisable.

If you need assistance with auditing, updating or defending your organizations HIPAA and other privacy and data security practices, please contact Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail at CStamer@CTTLegal.com.

Register Now For Upcoming September Health Industry Update Programs

If you found this information of interest, you also may be interested in one of the following upcoming health industry programs to be presented by Ms. Stamer during September:

HITECH ACT Health Data Security & Breach Update on September 9, 2009 hosted live or via teleconference by Curran Tomko Tarski LLP
How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination — What You Should Be Doing To Be Prepared for the New, Stepped Up Enforcement Actions on September 10, 2009 hosted via teleconference by Health Resources Publishing
Health Information Security & Data Breach Under HITECH Act on September 17, 2009 hosted via teleconference by the Health Care Compliance Association

To register or for other details about these and other upcoming programs and presentations by Ms. Stamer and other Curran Tomko Tarski members, see here.

Other Recent Developments

If you found this information of interest, you also may be interested in reviewing some of the following recent Curran Tomko Tarski LLP Latest in Health Care Updates available online by clicking on the article title:

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending these or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Edwin J. Tomko at (214) 270-1405 or another Curran Tomko Tarski LLP Partner of your choice. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other internal controls and risk management matters.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to cstamer@cttlegal.com.

Leave a Comment » | Corporate Compliance, Electronic Medical Records, FACTA, Health Care, Health Care Provider, Health IT, Health Plan, Health Plans, HIPAA, OCR | Tagged: ARRA, Doctor, Federal Sentencing Guidelines, Health Care, Health Care Provider, Health Insurance, HIPAA, Hospital, Identity Theft, Physician, Physicians, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

North Texas Healthcare Compliance Professional Association September 8 Meeting Covers Provider Outreach Activities, New Data Breach Rules.

September 4, 2009

NORTH TEXAS HEALTHCARE COMPLIANCE PROFESSIONAL ASSOCIATION

September 8, 2009 Meeting Reminder

North Texas Health Care Compliance Professional Association’s September, 2009 Meeting will feature a discussion by Adele Culpepper, Health Integrity, on Provider Outreach Activities, followed by a discussion of the new HIPAA Data Breach Regulations scheduled to take effect this month.

Date: Tuesday, September 8, 2009, 2:00 – 4:00 p.m.

Location: Offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas TX 76011. Click here for a map and driving directions.

For additional information, please contact Cynthia Stamer at (214) 270-2402 or by e-mail at cstamer@solutionslawyer.net. We look forward to seeing you there!

About the NTHCPA

NTHCPA exists to champion ethical practice and compliance standards and to provide the necessary resources for ethics and compliance Professionals and others in North Texas who share these principles. The vision of NTHCPA is to be a pre-eminent compliance and ethics group promoting lasting success and integrity of organizations within North Texas.

To register or update your registration or to receive notice of future meetings, e-mail here . There is no charge to participate.

This communication may be considered a marketing communication for certain purposes. If you wish to update your e-mail for purposes of or would prefer not to receive future e-mail concerning meetings or other activities of the North Texas Healthcare Compliance Professionals Association or other marketing and promotional mailings from it, please send an email with the word “unsubscribe” in its subject heading to here.

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Posted by Cynthia Marcotte Stamer

Pfizer To Pay $2.3 Billion For Fraudulent Marketing In Largest DOJ Health Care Fraud Settlement

September 2, 2009

Announcement Highlights Growing Fraud Prosecution Risks of Health Industry Businesses

Today’s announcement that Pfizer Inc. and its subsidiary Pharmacia & Upjohn Company Inc. (collectively “Pfizer”) will pay $2.3 billion, the largest health care fraud settlement in the history of the Department of Justice, to resolve criminal and civil liability for alleged illegal promotion of certain pharmaceutical products and other stepped up oversight and enforcement activities make it critical that all health industry organizations strengthen their internal controls, compliance and audit activities as well as be prepared to defend their actions against the rising tide of federal and state oversight and enforcement.

The pharmaceutical giant Pfizer Inc. and its subsidiary Pharmacia & Upjohn Company Inc. have agreed to pay $2.3 billion, the largest health care fraud settlement in the history of the Department of Justice, to resolve criminal and civil liability arising from the alleged illegal promotion of certain pharmaceutical products, the Justice Department (DOJ) announced today (September 2, 2009).

According to DOJ, Pharmacia & Upjohn Company agreed to plead guilty to a felony violation of the Food, Drug and Cosmetic Act for misbranding Bextra with the intent to defraud or mislead. Bextra is an anti-inflammatory drug that Pfizer pulled from the market in 2005.

The Food, Drug and Cosmetic Act requires that a company specify the intended uses of a product in its new drug application to FDA. Once approved, the drug may not be marketed or promoted for so-called “off-label” uses – i.e., any use not specified in an application and approved by FDA. DOJ charged Pfizer promoted the sale of Bextra for several uses and dosages that the FDA specifically declined to approve due to safety concerns. Under the announced settlement, Pfizer will pay a criminal fine of $1.195 billion, the largest criminal fine ever imposed in the United States for any matter. Pharmacia & Upjohn will also forfeit $105 million, for a total criminal resolution of $1.3 billion.

In addition, Pfizer agreed to pay $1 billion to resolve allegations under the civil False Claims Act that the company illegally promoted four drugs – Bextra; Geodon, an anti-psychotic drug; Zyvox, an antibiotic; and Lyrica, an anti-epileptic drug – and caused false claims to be submitted to government health care programs for uses that were not medically accepted indications and therefore not covered by those programs. The civil settlement also resolves allegations that Pfizer paid kickbacks to health care providers to induce them to prescribe these, as well as other, drugs. The federal share of the civil settlement is $668,514,830 and the state Medicaid share of the civil settlement is $331,485,170. This is the largest civil fraud settlement in history against a pharmaceutical company.

As part of the settlement, Pfizer also has agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services. That agreement provides for procedures and reviews to be put in place to avoid and promptly detect conduct similar to that which gave rise to this matter.

Whistleblower lawsuits filed under the qui tam provisions of the False Claims Act that are pending in the District of Massachusetts, the Eastern District of Pennsylvania and the Eastern District of Kentucky triggered this investigation. As a part of today’s resolution, six whistleblowers will receive payments totaling more than $102 million from the federal share of the civil recovery.

Today’s announcement of this historic settlement emphasizes the continuing and growing government commitment to, coordination and sophistication in the investigation and prosecution of health care crimes by pharmaceutical industry and other health care providers. The Obama Administration has made investigation and prosecution of health care fraud laws a key element of its strategy to manage U.S. health care program costs. Recently enacted changes in the False Claims Act and other laws are making it easier for federal prosecutors to successfully prosecute these and other health care fraud cases.

The enhanced coordination among agencies central to this strategy is reflected in the collaboration among the many agencies involved in the investigation leading to these charges. The U.S. Attorney’s offices for the District of Massachusetts, the Eastern District of Pennsylvania, and the Eastern District of Kentucky, and the Civil Division of the Department of Justice handled these cases. The U.S. Attorney’s Office for the District of Massachusetts led the criminal investigation of Bextra. The investigation was conducted by the Office of Inspector General for the Department of Health and Human Services (HHS), the FBI, the Defense Criminal Investigative Service (DCIS), the Office of Criminal Investigations for the Food and Drug Administration (FDA), the Veterans’ Administration’s (VA) Office of Criminal Investigations, the Office of the Inspector General for the Office of Personnel Management (OPM), the Office of the Inspector General for the United States Postal Service (USPS), the National Association of Medicaid Fraud Control Units and the offices of various state Attorneys General.

These and other stepped up oversight and enforcement activities make it critical that all health industry organizations strengthen their internal controls, compliance and audit activities as well as be prepared to defend their actions against the rising tide of federal and state oversight and enforcement.

Register Now For Upcoming September Health Industry Update Programs

If you found this information of interest, you also may be interested in one of the following upcoming health industry programs to be presented by Ms. Stamer during September:

HITECH ACT Health Data Security & Breach Update on September 9, 2009 hosted live or via teleconference by Curran Tomko Tarski LLP
How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination — What You Should Be Doing To Be Prepared for the New, Stepped Up Enforcement Actions on September 10, 2009 hosted via teleconference by Health Resources Publishing
Health Information Security & Data Breach Under HITECH Act on September 17, 2009 hosted via teleconference by the Health Care Compliance Association

To register or for other details about these and other upcoming programs and presentations by Ms. Stamer and other Curran Tomko Tarski members, see here.

Other Recent Developments

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending health care fraud concerns or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Edwin J. Tomko at (214) 270-1405 or another Curran Tomko Tarski LLP Partner of your choice. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other internal controls and risk management matters.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to cstamer@cttlegal.com.

Leave a Comment » | Corporate Compliance, Doctor, false claims act, FDA, Federal Sentencing Guidelines, Health Care, Health Care Fraud, Health Care Provider, Hospital, Medicare, OIG, Physician, Reimbursement | Tagged: Corporate Compliance, Doctor, false claims act, FDA, Federal Sentencing Guidelines, Fraud, Health Care, Health Care Provider, Health Care Reimbursement, HHS, Hospital, Off-label marketing, Pharma, Pharmaceudical, Prescription Drugs | Permalink
Posted by Cynthia Marcotte Stamer

Health Care Providers & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 24

August 24, 2009

Register Now To Participate in September 9 “HITECH Act Health Data Security & Breach Update”

Health care providers, health clearinghouses, health plans and their business associates generally must start complying with new federal data breach notification rules on September 24, 2009.

The new “Breach Notification For Unsecured Protected Health Information” regulation (Breach Regulation) published here in today’s Federal Register requires health care providers, health plans, health care clearinghouses and their business associates (Covered Entities) covered under the personal health information privacy and security rules of the Health Insurance Portability & Accountability Act (HIPAA) to notify affected individuals following a “breach” of “unsecured” protected health information. The Breach Regulation is part of a series of guidance that HHS is issuing to implement new and stricter personal health information privacy and data security requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA).

You are invited to catch up on what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9, 2009 from Noon to 1:30 P.M. Central Time.

HITECH Act Data Breach and Unsecured PHI Rules

Scheduled for publication in the Federal Register on August 24, 2009, the new Breach Regulation implements the HITECH Act requirement that Covered Entities and their business associates notify affected individuals, the Secretary of HHS, and in some cases, the media, when a breach of “unsecured protected health information” happens and the form, manner, and timing of that notification. Covered Entities must begin complying with the new Breach Regulation on September 24, 2009.

Part of a series of new HHS rules implementing recent changes to HIPAA enacted under the HITECH Act to strengthen existing federally mandates requiring Covered Entities to safeguard protected health information, the Breach Regulation will obligate Covered Entities and business associates to provide certain notifications following a breach of “protected health information” that not secured at the time of the breach through the use of a technology or methodology meeting minimum standards issued by HHS pursuant to other provisions of the HITECH Act.

Under the HITECH Act, the breach notification obligations contained in the Breach Notification only apply to a breach of “unsecured protected health information.” The Breach Regulation exempts breaches of protected health information that qualify as “secured” under separately issued HHS and Federal Trade Commission (FTC) standards for encryption and destruction of protected health information from its breach notification requirements.

For purposes of the HITECH Act, electronic protected health information is considered “unsecured” unless the Covered Entity has satisfied certain minimum standards for the protection of that data established pursuant to the HITECH Act. Earlier this year, HHS and the FTC issued interim rules defining the minimum encryption and destruction technologies and methodologies that Covered Entities must use to render protected health information unusable, unreadable, or indecipherable to unauthorized individuals for purposes of determining when protected health information is “unsecured” for purposes of the HITECH Act. Concurrent with its publication of the Breach Regulation, HHS also released guidance updating and clarifying this previously issued guidance.

Read the Breach Regulation here. To review the HITECH Act Breach Notification Guidance and Request for Information, see here.

September 9 “HITECH Act Health Data Security & Breach Update” Briefing

Interested persons are invited to register here now to learn what these new rules mean for your organization and how it must respond by participating in the “HITECH Act Health Data Security & Breach Update” on Wednesday, September 9, 2009 from Noon to 1:30 P.M. Central Time. For a registration fee of $45.00, registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For information about registering for this program or other questions here.

Conducted by Curran Tomko and Tarski LLP Partner Cynthia Marcotte Stamer, the briefing will cover:

Who must comply
What your organization must do
How to qualify protected health information as exempt from the breach regulations as “secure” protected health information
What is considered a breach of unsecured protected health information
What steps must a covered entity take if a breach of unsecured protected information happens
What liabilities do covered entities face for non-compliance
What new contractual requirements, policies and procedures Covered Entities and Business Associates will need
How the Breach Regulation, the Privacy Regulation, impending FTC red flag rules and state data breach and privacy rules interrelate
Other recent developments
Practical tips for assessing, planning, moving to and defending compliance
Participant questions
More

About The Presenter

The program will be presented by Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer. Ms. Stamer is nationally known for her work, publications and presentations on privacy and security of health and other sensitive information in health and managed care, employment, employee benefits, financial services, education and other contexts.

Vice President of the North Texas Health Care Compliance Professionals Association and Past Chair of the ABA Health Law Section Managed Care & Insurance Section, and Former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 20 years experience advising clients about health and other privacy and security matters. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer is the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010, as well as the author of “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of other highly regarded publications. She has continuously advises employers, health care providers, health insurers and administrators, health plan sponsors, employee benefit plan fiduciaries, schools, financial services providers, governments and others about privacy and data security, health care, insurance, human resources, technology, and other legal and operational concerns. Ms. Stamer also publishes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a many other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other compliance, risk management, transaction or operation concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or another Curran Tomko Tarski LLP Partner of your choice.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Curran Tomko Tarski LLP publications available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@cttlegal.net.

Leave a Comment » | ARRA, Disease Management, Doctor, Electronic Health Records, Electronic Medical Records, Employer, FACTA, FDA, Health Care, Health IT, Health Plan, Health Plans, HIPAA, Hospital, Indian Health, Inpatient Rehabilitation Facility, Medicaid, Medical Licensure, Medical Malpractice, Medicare, Medicare Advantage, Mental Heatlh, OCR, Outcomes Data, Peer Review, Physician, Prescription Drugs, Privacy, Reimbursement, Tax | Tagged: ARRA, Corporate Compliance, Data Security, Doctor, Health Care, Health Care Provider, Health Care Reimbursement, HHS, HIPAA, Hospital, Identity Theft, Long Term Care Hospital, Medicare, Medicare Part B, Physician, Physicians, Privacy, public health, Public Policy, Red Flag Rules, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

HHS Issues Interim Final Requiring Health Care Provider, Health Plans & Other Covered Entities To Give Breach Notifications When Certain Personal Health Information Breached Beginning In September; Register to Participate In September 10th Briefing on New Rules In Person or Via Telephone

August 20, 2009

The U.S. Department of Health and Human Services (HHS) yesterday (August 19, 2009) issued “breach notification” regulations requiring health care providers, health plans and other covered entities (Covered Entities) under the personal health information privacy and security rules of the Health Insurance Portability & Accountability (HIPAA) to notify affected individuals following a “breach” of “unsecured” protected health information. Scheduled for publication in the Federal Register on August 24, 2009, the new breach notification regulations are part of a series of new rules that implement new electronic personal health information data security and data breach notification requirements for Covered Entities added to HIPAA under the Health Information Technology for Economic and Clinical Health (HITECH) Act signed into law on February 17, 2009 as part of American Recovery and Reinvestment Act of 2009 (ARRA). Covered entities must begin complying with the new rules no later than September 24, 2009.

Curran Tomko Tarski, LLP Health Practice leader Cynthia Marcotte Stamer will conduct a briefing on these new protected health information data security and data breach rules on Thursday, September 10, 2009 from Noon to 1:30 P.M. Central Time. For a registration fee of $45.00, registrants will have the option to participate via teleconference or in person at the offices of Curran Tomko Tarski LLP, 2001 Bryan Street, Suite 2050, Dallas Texas 75201. For more information, e-mail here.

HITECH Act Data Breach and Unsecured PHI Rules

The new data breach notification rules are part of a series of recent HIPAA enacted under the HITECH Act to strengthen the federal rules requiring HIPAA covered entities to safeguard electronic and certain other protected health information. Enhanced data security and data breach rules added as part of these HITECH Act amendments obligate covered entities and business associates to provide certain notifications following a breach of “unsecured” “protected health information” within the meaning of HIPAA, as amended. “Unsecured protected health information” is defined as protected health information that is not secured through the use of a technology or methodology specified by the HHS Secretary.

The new data breach regulations implement the HITECH Act requirement that Covered Entities and their business associates notify affected individuals, the Secretary of HHS, and in some cases, the media, of a breach and the form, manner, and timing of that notification. For purposes of the HITECH Act, electronic protected health information is considered “unsecured” unless the covered entity has satisfied certain minimum standards for the protection of that data established pursuant to the HITECH Act. HHS and the Federal Trade Commission previously issued certain initial guidance concerning the HITECH Act standards for determining when electronic personal health information qualifies as secure. To help further define when electronic health information is treated as “unsecured” and therefore subject to the breach notification requirements, the data breach rules also update and clarify the previously issued existing HHS guidance specifying encryption and destruction as the technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals published earlier this year by HHS to for purposes of determining when protected health information will be considered “unsecured” for purposes of the HITECH Act data breach rules. Entities subject to the HHS and FTC regulations that secure health information as specified by the guidance through encryption or destruction are relieved from having to notify in the event of a breach of such information.

The HHS interim final regulations are effective September 24, 2009, which is the date 30 days after the date they will be published on the Federal Register and include a 60-day public comment period. To review the interim final data breach regulations, see here. To review the HITECH Act Breach Notification Guidance and Request for Information, see here.

For More Information

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health care providers, payors and their business associates about HIPAA and other privacy and data security matters, as well as a diverse range of health care policy, regulatory, compliance, risk management and operational concerns.

Past chair of the American Bar Association Health Law Section Managed Care & Insurance Section, Martindale Hubble AV-rated and recognized in International Who’s Who of Professionals, Ms. Stamer continuously advises health care providers, health care payers and administrators, employers, governments and others about health care, insurance, human resources, privacy and data security, technology, and other legal and operational concerns. A popular lecturer and widely published author on privacy and data security and other related health care and health plan matters, Ms. Stamer also writes and speaks extensively on health and managed care industry privacy, data security and other technology, regulatory and operational risk management matters. She currently serves as the Editor in Chief of the forthcoming 2010 edition of the Information Security Guide to be published by the American Bar Association Information Security Committee in 2010. Examples of her other works include “Protecting & Using Patient Data In Disease Management: Opportunities, Liabilities And Prescriptions,” “Privacy Invasions of Medical Care-An Emerging Perspective,” “Cybercrime and Identity Theft: Health Information Security Beyond HIPAA,” and a host of others. Her insights on health care, health insurance, human resources and related matters appear in the Atlantic Information Service Privacy Report, The Wall Street Journal, Business Insurance, the Dallas Morning News, Managed Healthcare, Health Leaders, and a various other national and local publications. For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

We hope that this information is useful to you. If you need assistance monitoring, evaluating or responding to these or other proposed health care or other regulatory reforms or with other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner.

Other Helpful Resources & Other Information

We hope that this information is useful to you. If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Solutions Law Press Health Care Update publication available here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law Press Health Care Update here and be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

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Posted by Cynthia Marcotte Stamer

CMS Publishes Updated FY 2010 Inpatient Rehabilitation Facility Prospective Payment System Final Rule

August 7, 2009

On August 6, 2009, the Center for Medicare & Medicaid Services (CMS) published its updated final rule governing the payment rates for inpatient rehabilitation facilities (IRFs) for Federal fiscal year (FY) 2010. The provisions of the final rule generally are effective October 1, 2009 and will apply to IRF discharges occurring on or after October 1, 2009 and on or before September 30, 2010 (FY 2010). However, amendments to Sections 412.23, 412.29, and 412.622 don’t take effect until January 1, 2010.

Among other things, the final rule:

Updates the FY 2010 IRF PPS relative weights and average length of stay values using the most current and complete Medicare claims and cost report data in a budget neutral manner;
Updates the FY 2010 IRF facility level adjustments (rural, LIP, and teaching status adjustments) using the most current and complete Medicare claims and cost report data in a budget neutral manner;
Updates the FY 2010 IRF PPS payment rates by the proposed market basket;
Updates the FY 2010 IRF PPS payment rates by the wage index and labor-related share in a budget neutral manner;
Updates the outlier threshold amount for FY 2010;
Updates the cost-to-charge ratio ceiling and the national average urban and rural cost-to-charge ratios for purposes of determining the outlier payments under the IRF PPS for FY 2010;
Removes the words “or assessment” from Sections 412.23(b)(3) and 412.29(b) to indicate that CMS is no longer providing for a 3 to 10 day inpatient assessment period after admission to an IRF to assess the appropriateness of the IRF admission;
Amends paragraphs Section 412.23(b)(4) and Section 412.29(c) to require that IRFs “furnish, through the use of qualified personnel, rehabilitation nursing, physical therapy, and occupational therapy, plus, as needed, speech-language pathology, social services, psychological services (including neuropsychological services), and orthotic and prosthetic services;”
Replaces the word “multidisciplinary” with the word “interdisciplinary” in Section 412.23(b)(7) and Section 412.29(e) to make the terminology consistent with the new IRF coverage criteria in Section 412.622(a);
Requires in both Section 412.23(b)(7) and Section 412.29(e) that the interdisciplinary team meetings occur at least once per week (rather than once every two weeks) to be consistent with the new IRF coverage criteria in Section 412.622(a);
Adds new paragraphs (3), (4), and (5) to Section 412.622(a) to implement new IRF coverage requirements;
With respect to Sections 412.604, 412.606, 412.610, 412.614 and 412.618, removes from Section 412.614(a) current subparagraph (3); and
In Section 412.614(d), makes a technical correction to the paragraph formerly designated as paragraph and assigns the revised language to a new paragraph (1)(a), redesignates paragraph (2) as (1)(b), and adds a new paragraph (2).

You can review the actual text of the final rule here.

For More Information

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

Other Helpful Resources & Other Information

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Posted by Cynthia Marcotte Stamer

House Democratic Leaders Work To Resolve Differences In Committee Versions of Health Care Reform Legislation and Build Public Support During August Recess

August 5, 2009

Democratic Leaders in the House of Representatives plan to hammer out differences three versions of the America’s Affordable Health Choices Act (H.R. 3200) as separately passed by three key House Committees in July before House members return from their August recess in hopes of bringing the agreed to version of H.R. 3200 to the full house in September. Regardless of which version ultimately emerges, the enactment of H.R. 3200 would result in sweeping new regulation and federal control over health care providers, health care payers, employers, and individuals.

After negotiating a last minute pre-August recess deal with certain Blue Dog Democrat Committee members, the House Energy and Commerce Committee on July 31, 2009 passed its version of H.R. 3200, the America’s Affordable Health Choices Act (H.R. 3200). The version of H.R. 3200 passed by the House Energy and Commerce Committee incorporates a series of amendments to the language of H.R. 3200 as originally introduced. For instance, this version of H.R. 3200 provides incentives for states to adopt certain tort reforms, provides for a public plan option that would reimburse physicians based on negotiated rates rather Medicare rates, and would allow states to offer both state-based heath insurance exchanges and health insurance co-ops. To review H.R. 3200 as amended by the House Energy and Commerce Committee, see here.

The approval by the Energy and Commerce Committee of its version of H.R. 3200 follows the July 17, 2009 approval by the House Ways and Means Committee and Education and Labor Committee of their own versions of H.R. 3200. For details on the version of H.R. 3200 approved by the House Ways and Means Committee, see here. For details on the version of H.R. 3200 approved by the House Education and Labor Committee, see here.

Leading House Democrats have announced their intention to work to resolve differences between these three versions of H.R. 3200 as passed by these Committees during August recess in hopes of bringing the agreed to version of H.R. 3200 to a vote of the full House of Representatives in September.

Meanwhile, House members from both parties also generally are using the August recess as an opportunity to reconnect with local constituents on health care reform and other core issues.

For More Information

Other Helpful Resources & Other Information

Leave a Comment » | Disease Management, Electronic Health Records, Evidence Based Medicine, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Quality, Health Care Qulity, Health Care Reform, Health Insurance Exchange, Health IT, Health Plan, Health Plans, Health Policy, HIPAA, Hospital, Indian Health, Medicaid, Medical Malpractice, Medicare, Medicare Advantage, Outcomes Data, Physician, Prescription Drugs, Reimbursement, Rural Health Care, Tax, Wellness | Tagged: Affordable Health Choices Act, America's Affordable Health Choices Act, Doctor, Employer, Health Care, Health Care Policy, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, Health Plans, Health Policy, HHS, Hospital, Medicare, Medicare Part B, Nonprofits, Physician, Physicians, Prescription Drugs, public health, Public Policy, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

Reassignment of HIPAA Security Rule Enforcement Signals Growing Seriousness About Enforcing HIPAA

August 4, 2009

The Department of Health & Human Services (HHS) today (August 3, 2009) transferred authority for the administration and enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule to the Office for Civil Rights (OCR). Prior to this announcement, responsibility for interpretation and enforcement of the Security Rule rested with the Centers for Medicare & Medicaid Services (CMS). The change reflects the growing seriousness of HHS and others about enforcing federal privacy and data security mandates for health information. HHS anticipates the transfer of authority will eliminate duplication and increase efficiencies in how the department ensures that Americans’ health information privacy is protected.

HHS has the authority for administration and enforcement of the federal standards for health information privacy called for in HIPAA. The Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. OCR has been responsible for enforcement of the Privacy Rule since 2003. The Security Rule specifies a series of administrative, technical, and physical security procedures for covered entities to use to assure the confidentiality of electronic protected health information. The Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009 (ARRA), mandated improved enforcement of the Privacy Rule and the Security Rule.

Through a separate delegation, CMS continues to have authority for administration and enforcement of the HIPAA Administrative Simplification regulations, other than privacy and security of health information.

The transfer of Security Rule enforcement authority comes as guidance about new data breach rules for electronic protected health information is impending. This impending guidance relates to the implementation of new breach notification rules for covered entities and their business associates concerning their obligation to use of technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals, as required by amendments to HIPAA enacted under the Health Information Technology for Economic and Clinical Health (HITECH) Act passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA) last February. OCR officials have stated that they are working to publish the next set of regulations regarding these new breach notifications before the end of August, 2009.

In addition to adding the breach notification requirements, the HITECH Act also tightened the HIPAA mandates in several other respects. Among other things, it amended HIPAA to:

Broaden the applicability of the HIPAA’s Privacy Rules and penalties to include business associates;
Clarify that HIPAA’s criminal sanctions apply to employees or other individuals that wrongfully use or access PHI held by a covered entity;
Increase criminal and civil penalties for HIPAA Privacy Rules violators;
Allow State Attorneys General to bring civil damages actions on behalf of certain state citizens who are victims of HIPAA Privacy and Security Rule violations;
Modify certain HIPAA use and disclosure and accounting requirements and risks;
Prohibits sales of PHI without prior consent;
Tighten certain other HIPAA restrictions on uses or disclosures;
Tighten certain HIPAA accounting for disclosure requirements;
Clarify the definition of health care operations to excludes certain promotional communications; and
Expand the Business Associates Agreement Requirements.

These and other developments make it imperative HIPAA covered entities and their business associates take prompt action to immediately review and update their data security and privacy practices to guard against growing liability exposures under HIPAA and other federal and state laws. Covered entities must update policies and practices to avoid these growing liabilities. Business associates that have not already done so also must appoint privacy officers and adopt and implement privacy and data security policies and procedures fully compliant with HIPAA and other applicable federal and state rules, including amendments enacted as part of the American Recovery and Reinvestment Act of 2009 signed into law on February 17, 2009.

For more information about today’s announcement, see here. See here for the initial guidance and request for comments issued by HHS regarding these new security standards.

For More Information

We hope that this information is useful to you. If you need assistance with health care privacy and data security, technology, or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health care privacy and data security and related matters.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to cstamer@cttlegal.com.

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Posted by Cynthia Marcotte Stamer

Where To Read & Share Your Feedback About The Health Care Reform Legislation

August 1, 2009

As the health care reform policy debate continues, Americans increasingly are asking where to read the text of the health care reform legislation that members of Congress are debating and how to share their input.

While numerous alternatives presently are pending before Congress, much of recent discussion and debate has focused around one of the following bills:

H.R. 3200: America’s Affordable Health Choices Act of 2009, introduced in the House by Rep Dingell, John D. on July 14, 2009 the text of which as originally introduced may be reviewed here. It has been the focus of significant mark up negotiation through out July before the following House Energy and Commerce, House Ways & Means, and House Education & Labor Committees; and
S. __, the Affordable Health Choices Act approved by the Senate Committee on Health, Education, Labor and Pensions, the text of which as approved may be reviewed here.

When reviewing these bills, Americans should keep in mind that members of Congress are engaged in ongoing negotiations about the specific provisions and language of these bills, as well as other legislation. Official developments generally may be monitored here.

Many American businesses and individuals also are asking about how and where to share their views, how to organize others to do the same and other questions about getting the word out. Here a some quick ideas. We encourage others to share.

The Coalition For Patient Empowerment and the Coalition for Responsible Health Care Reform linkedin group are two one of many resources where individuals are sharing information about these matters.
Concerned individuals should share their views both by faxing, e-mailing or telephoning key decisionmakers in Congress, as well as joining and participating in activities of other individuals and groups that share their concerns. Contact and get involved with this and other groups that share your concerns.
Contact the offices of your Congressional representatives in the House and Senate as well as other members of Congress that support your views and ask them about other groups and ways that you can share your views. They will welcome your input and involvement.
If you are aware of or involved in a group that shares your views, we encourage you to share it on the Coalition for Responsible Health Care Reform linkedin group. If you or others are planning a town hall or other health care reform meeting, use this or other linked in groups to spread the word.
If you are interested in volunteering to plan events in your region, let us know.

When communicating, consider targeting your messages to members of Congress whose votes are likely to be impacted by your communications.

For instance, with both the House and Senate in the majority in Congress, Democrats generally have greater control over what legislation moves forward. The Democratic Leadership of the House and Sentate generally can get legislation passed by their members as long as they can maintain consensus among the members of their parties. In connection with the health care reform proposals, however, cost and other considerations have made maintaining a consensus more difficult than on other legislation. Certain fiscally moderate members of the Democratic Party have expressed concern about the expense and other aspects of their Leadership proposed health care reform proposals. These Democrats in Congress generally the members of Congress whose votes are most likely to be impacted by public input and feedback generally and from voters in their districts and contributors specifically.

In the House of Representatives, these members likely are the “Blue Dog Democrats.” Read about Blue Dog Democrats here.

The fiscal conservatism of Blue Dog Democrats makes them more likely to listen to concerns about the cost and other concerns relating to the health care reform bills touted by the Democrat Leadership in the House and Senate. In fact, many Blue Dog Democrats already are speaking out about their concerns about the cost and other aspects of the Bill.

Contact from voters and contributors in their districts and others could make a major difference in the ability that the House Democrat Leadership needs to pass their Bill. Immediately contacting these members and getting others – particularly voters and contributors in the districts that elect these members – is one of the most important steps that concerned Americans can do to position their concerns to be heard.

For most concerned voters, telephone or fax contact is the best means to convey these messages. To minimize spam, most members only accept e-mail submitted through their website links. Security concerns can delay receipt of written correspondence for weeks.

For persons interested in making their voices heard and sharing information with others who wish to do the same, the following contact information may be of interest:

The number of the Capital Switchboard is 202-224-3121.

The Blue Dog Leadership Team and there telephone and fax numbers are:

Rep. Stephanie Herseth Sandlin (SD), Blue Dog Co-Chair for Administration, Telephone: 202.225.2801 , Fax: 202.225.5823

Rep. Baron Hill (IN-09), Blue Dog Co-Chair for Policy,Telephone: 202-225-4031, Fax: (202) 226-6866

Rep. Charlie Melancon (LA-03), Blue Dog Co-Chair for Communications, Telephone: 202-225-4031, Fax: (202) 226-3944

Rep. Heath Shuler (NC-11), Blue Dog Whip, Telephone: 202-225-6401, Fax: (202) 226-6422

The Blue Dog Members and their telephone numbers are :

Altmire, Jason (PA-04),(202)225-2565
Arcuri, Mike (NY-24), (202)225-3665
Baca, Joe (CA-43),(202)225-6161
Barrow, John (GA-12), (202) 225-2823
Berry, Marion (AR-01), (202) 225-4076
Bishop, Sanford (GA-02), (202) 225-3631
Boren, Dan (OK-02), (202) 225-2701
Boswell, Leonard (IA-03), (202) 225-3806
Boyd, Allen (FL-02), (202) 225-5235
Bright, Bobby (AL-02), (202) 225-2901
Cardoza, Dennis (CA-18), (202) 225-6131
Carney, Christopher (PA-10), (202) 225-3731
Chandler, Ben (KY-06), (202) 225-4706
Childers, Travis (MS-01), (202) 225-4306
Cooper, Jim (TN 5^th), (202) 225-4311
Costa, Jim (CA 20^th), (202) 225-3341
Cuellar, Henry (TX 28^th), (202) 225-1640
Dahlkemper, Kathleen A. (PA 3^rd), (202) 225-5406
Davis, Lincoln (TN 4^th),(202) 225-6831
Donnelly, Joe (IN 2^nd), (202) 225-3915
Ellsworth, Brad (IN 8^th), (202) 225-4636
Giffords, Gabrielle (AZ 8^th), (202) 225-2542
Gordon, Bart (TN 6^th), (202) 225-4231
Griffith, Parker (AL 5^th), (202) 225-4801
Harman, Jane (CA 36^th), (202) 225-8220
Herseth Sandlin, Stephanie (SD At Large), (202) 225-2801
Hill, Baron P. (IN 9^th), (202) 225-5315
Holden, Tim (PA 17^th), (202) 225-5546
Kratovil, Frank Jr. (MD 1^st), (202) 225-5311
McIntyre, Mike (NC 7^th), (202) 225-2731
Marshall, Jim (GA 8^th), (202) 225-6531
Matheson, Jim (UT 2^nd), (202) 225-3011
Melancon, Charlie (LA 3^rd), (202) 225-4031
Michaud, Michael H. (ME 2^nd), (202) 225-6306
Minnick, Walt (ID 1^st), (202) 225-6611
Mitchell, Harry E. (AZ 5^th), (202) 225-2190
Moore, Dennis (KS 3^rd), (202) 225-2865
Murphy, Patrick J. (PA 8^th), (202) 225-4276
Nye, Glenn C. (VA 2^nd), (202) 225-4215
Peterson, Collin C. (MN 7^th), (202) 225-2165
Pomeroy, Earl (ND At Large), (202) 225-2611
Ross, Mike (AR 4^th), (202) 225-3772
Salazar, John T. (CO 3^rd), (202) 225-4761
Sanchez, Loretta (CA 47^th), (202) 225-2965
Schiff, Adam B. (CA 29^th), (202) 225-4176
Scott, David (GA 13^th), (202) 225-2939
Shuler, Heath (NC 11^th), (202) 225-6401
Space, Zachary T. (OH 18^th), (202) 225-6265
Tanner, John S. (TN 8^th), (202) 225-4714
Taylor, Gene (MS 4^th), (202) 225-5772
Thompson, Mike (CA 1^st), (202) 225-3311
Wilson, Charles (OH-06), (202) 225-5705

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns. You can get more information about her health industry experience here.

If you need assistance evaluating or formulating comments on the proposed reforms contained in the House Bill or on other health industry matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney.

Other Helpful Resources & Other Information

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Posted by Cynthia Marcotte Stamer

Blue Dog Democrats Hold Key Voice On House Democrats Proposed Health Care Reform Plan; Contact Numbers Here

July 20, 2009

Health care providers and others concerned about the “American’s Affordable Health Care Choices Act of 2009” health care reform proposal introduced by the House Democratic Leadership should target their input on the Democrats in Congress most likely to listen to those concerns. In the House of Representatives, these members likely are the “Blue Dog Democrats” in the House. Read about Blue Dog Democrats here.

For persons interested in making their voices heard and sharing information with others who wish to do the same, the following contact information may be of interest:

The number of the Capital Switchboard is 202-224-3121.

The Blue Dog Leadership Team and there telephone and fax numbers are:

Rep. Stephanie Herseth Sandlin (SD), Blue Dog Co-Chair for Administration, Telephone: 202.225.2801 , Fax: 202.225.5823

Rep. Baron Hill (IN-09), Blue Dog Co-Chair for Policy,Telephone: 202-225-4031, Fax: (202) 226-6866

Rep. Charlie Melancon (LA-03), Blue Dog Co-Chair for Communications, Telephone: 202-225-4031, Fax: (202) 226-3944

Rep. Heath Shuler (NC-11), Blue Dog Whip, Telephone: 202-225-6401, Fax: (202) 226-6422

The Blue Dog Members and their telephone numbers are :

Altmire, Jason (PA-04),(202)225-2565

Arcuri, Mike (NY-24), (202)225-3665

Baca, Joe (CA-43),(202)225-6161

Barrow, John (GA-12), (202) 225-2823

Berry, Marion (AR-01), (202) 225-4076

Bishop, Sanford (GA-02), (202) 225-3631

Boren, Dan (OK-02), (202) 225-2701

Boswell, Leonard (IA-03), (202) 225-3806

Boyd, Allen (FL-02), (202) 225-5235

Bright, Bobby (AL-02), (202) 225-2901

Cardoza, Dennis (CA-18), (202) 225-6131

Carney, Christopher (PA-10), (202) 225-3731

Chandler, Ben (KY-06), (202) 225-4706

Childers, Travis (MS-01), (202) 225-4306

Cooper, Jim (TN 5^th), (202) 225-4311

Costa, Jim (CA 20^th), (202) 225-3341

Cuellar, Henry (TX 28^th), (202) 225-1640

Dahlkemper, Kathleen A. (PA 3^rd), (202) 225-5406

Davis, Lincoln (TN 4^th),(202) 225-6831

Donnelly, Joe (IN 2^nd), (202) 225-3915

Ellsworth, Brad (IN 8^th), (202) 225-4636

Giffords, Gabrielle (AZ 8^th), (202) 225-2542

Gordon, Bart (TN 6^th), (202) 225-4231

Griffith, Parker (AL 5^th), (202) 225-4801

Harman, Jane (CA 36^th), (202) 225-8220

Herseth Sandlin, Stephanie (SD At Large), (202) 225-2801

Hill, Baron P. (IN 9^th), (202) 225-5315

Holden, Tim (PA 17^th), (202) 225-5546

Kratovil, Frank Jr. (MD 1^st), (202) 225-5311

McIntyre, Mike (NC 7^th), (202) 225-2731

Marshall, Jim (GA 8^th), (202) 225-6531

Matheson, Jim (UT 2^nd), (202) 225-3011

Melancon, Charlie (LA 3^rd), (202) 225-4031

Michaud, Michael H. (ME 2^nd), (202) 225-6306

Minnick, Walt (ID 1^st), (202) 225-6611

Mitchell, Harry E. (AZ 5^th), (202) 225-2190

Moore, Dennis (KS 3^rd), (202) 225-2865

Murphy, Patrick J. (PA 8^th), (202) 225-4276

Nye, Glenn C. (VA 2^nd), (202) 225-4215

Peterson, Collin C. (MN 7^th), (202) 225-2165

Pomeroy, Earl (ND At Large), (202) 225-2611

Ross, Mike (AR 4^th), (202) 225-3772

Salazar, John T. (CO 3^rd), (202) 225-4761
Sanchez, Loretta (CA 47^th), (202) 225-2965

Schiff, Adam B. (CA 29^th), (202) 225-4176
Scott, David (GA 13^th), (202) 225-2939

Shuler, Heath (NC 11^th), (202) 225-6401

Space, Zachary T. (OH 18^th), (202) 225-6265

Tanner, John S. (TN 8^th), (202) 225-4714

Taylor, Gene (MS 4^th), (202) 225-5772

Thompson, Mike (CA 1^st), (202) 225-3311

Wilson, Charles (OH-06), (202) 225-5705

Other Helpful Resources & Other Information

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Posted by Cynthia Marcotte Stamer

August 31 Deadline To Comment On CMS Proposed Changes To Hospital, ASC Payment Rules

July 20, 2009

August 31, 2009 at 5:00 p.m. E.S.T is the deadline to comment on the “Proposed Changes to the Hospital Outpatient Prospective Payment System and CY 2010 Payment Rates; Proposed Changes to the Ambulatory Surgical Center Payment System and CY 2010 Payment” rules published by the Centers for Medicare & Medicaid Services (CMS) in the Federal Register today (July 20, 2009).

The Proposed Rule would revise the Medicare hospital outpatient prospective payment system (OPPS) to implement applicable statutory requirements that CMS proposes to apply to services furnished on or after January 1, 2010. It also would update the revised Medicare ambulatory surgical center (ASC) payment system to implement applicable statutory requirements and changes arising from our continuing experience with this system. If also sets for the applicable relative payment weights and amounts for services furnished in ASCs, specific HCPCS codes to which these proposed changes would apply, and other pertinent rate setting information for the CY 2010 ASC payment system.

To review the proposed rule and for instructions about how to submit comments, see here.

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health care providers to evaluate and comment on health care industry reimbursement and other health industry legislation and regulations, as well as a diverse range of other health care reimbursement, and other legal and operational risk concerns. She also writes and speaks extensively on these issues. You can get more information about her health industry experience here.

If you need assistance investigating the adequacy of your current compliance efforts, with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney.

Other Helpful Resources & Other Information

Leave a Comment » | ASC, Doctor, Outpatient, Uncategorized | Tagged: ASC, Centers for Medicare & Medicaid Servicces, CMS, Doctor, Health Care, Health Care Policy, Health Care Provider, Health Care Reimbursement, HHS, Hospital, Medicare, Medicare Part B, Physician, Physicians, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

House Democrats Introduce the “American’s Affordable Health Care Choices Act of 2009”

July 15, 2009

House Democrats introduced their proposal for health care reform this afternoon (July 14, 2009), the “America’s Affordable Health Choices Act of 2009 (the “House Bill”). Introduced under the sponsorship of three key House committees — Energy and Commerce, Ways and Means, and Education and Labor — the 1018 page House Bill details the sweeping and comprehensive health care reforms touted by House Democrat Leaders.. A copy of the House Bill as introduced may be reviewed here.

The House Bill proposes sweeping reforms built around the establishment of a public plan option while technically continuing to permit private plans to operate but in a federally regulated form allowing for little meaningful plan design control to private payers, health care providers or the individuals choosing among the plan options. The Congressional Budget Office estimates that the coverage side of the bill will cost $1 trillion and cover 97 percent of the legal population within 10 years.

The following is a brief overview of certain key provisions of the House Bill drawn mostly from a series of high level summaries released by House Democrats along with the House Bill. Long on politically comforting phrasing and short on details, you can read these summaries here.

Public Plan Option. The House Bill proposes the establishment of a public health insurance option that would compete with allowable private plans, both of which would be subject to sweeping federal controls. Democrat House co-sponsors represent the House Bill:

Provides a public health insurance option that would compete with private insurers within the Health Insurance Exchange.
The public health insurance option would be made available in the new Health Insurance Exchange (Exchange) along with private health insurance plans that comply with the design dictates established in the House Bill.
The public health insurance option and private plan options meet the same benefit requirements and comply with the same insurance market reforms
The public option’s premiums would be established for the local market areas designated by the Exchange.
Individuals with affordability credits could choose among the private carriers and the public option.
Require that the public health plan and private health plan options and private options each must be financially self-sustaining
Promote primary care, encourage coordinated care and shared accountability, and improve quality.
Institute new payment structures and incentives to promote these critical reforms.
Specify health care provider participation in the plans will be voluntary; Medicare providers are presumed to be participating unless they opt out.
Provides for provider reimbursements for services from the plans initially will be established using “rates similar to those used in Medicare with greater flexibility to vary payments.
Speaker of the House Nancy Pelosi has announced plans to proceed immediately on mark up on the House Bill with the intention to of scheduling a vote on the House Bill by the end of July. Assuming that House leaders adhere to this schedule, the planned timetable leaves little opportunity for critical evaluation and input by members of Congress or the public who may have questions or concerns about the proposed legislation. Prompt and coordinated action is required for individuals with concerns about any of the proposed reforms.

Federal Mandates Health Plan Benefits. In order to achieve affordable, quality health care for all, the House Bill would impose federal standards regulating the benefits that the public health plan and private health plans would be required and permitted to offer. Under these provisions, the House Bill would:

Establish a standardized benefit package that covers essential health services.
Vest the power in the Secretary of Health & Human Services to decide the coverage that would be included in this mandated standardize benefit package.
Eliminate cost-sharing for preventive care (including well baby and well child care)
Impose caps annual out-of-pocket spending for individuals and families.
Create a new independent Benefits Advisory to recommend to the Secretary and update the core package of benefits.
Provide for the public health plan option to offer four tiers of benefit packages from which consumers can choose to best meet their health care needs. Each allowable plan would be required to provide the dictated core benefits.
- The Basic Plan would include the federally mandated core set of covered benefits and cost sharing protections;
- The Enhanced Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Basic plan;
- The Premium Plan would include the federally mandated core set of covered benefits with more generous cost sharing protections than the Enhanced plan; and
- The Premium Plus Plan would include the federally mandated core set of covered benefits, the more generous cost sharing protections of the Premium plan, and additional covered benefits (e.g., oral health coverage for adults, gym membership, etc.) that will vary per plan. In this category, insurers must disclose the separate cost of the additional benefits so consumers know what they’re paying for and can choose among plans accordingly.

The House Bill empowers the Secretary of Health & Human Services to decide the federally dictated, required core set of benefits provides coverage with input from a newly created Benefits Advisory Commission. These core benefits are intended to include inpatient hospital services, outpatient hospital services, physician services, equipment and supplies incident to physician services, preventive services, maternity services, prescription drugs, rehabilitative and habilitative services, well baby and well child visits and oral health, vision, and hearing services for children and mental health and substance abuse services. However, the particular, terms and scope of these benefits is left to HHS to define.

Health Insurance Exchange. The House Bill also calls for the establishment of a “Health Insurance Exchange” meeting federal mandates through which low income individuals initially, and certain small businesses would be offered the option to purchase health care coverage through federally mandated purchasing groups. In the first year, the House Bill provides for the Health Insurance Exchange to accept those without health insurance, those who are buying health insurance on their own, and small businesses with fewer than 10 people. In the second year, the Health Insurance Exchange could accept small businesses with fewer than 20 people. After that, “larger employers as permitted by the Commissioner.” In other words, expansion is discretionary, not mandated.

Affordability & Subsidies. The House Bill provides sliding-scale affordability credits for individuals and families with incomes above the Medicaid thresholds but below 400% of poverty and imposes a cap on total out-of-pocket spending for individuals and families covered under the plans regardless of income. In addition, the House Bill would broaden Medicaid coverage to include individuals and families with incomes below 133% of poverty.

Effective 2013, sliding scale affordability credits would be provided provided to individuals and families between 133% to 400% of poverty. That means the credits phase out completely for an individual with $43,320 in income and a family of four with $88,200 in income (2009).

The sliding scale credits limit individual family spending on premiums for the essential benefit package to no more than 1.5% of income for those with the lowest income and phasing up to no more than 11% of income for those at 400% of poverty.

The affordability credits also subsidize cost sharing on a sliding scale basis, phasing out at 400% of poverty, ensuring that covered benefits are accessible.

The Health Insurance Exchange would administer the affordability credits in relationship with other federal and state entities, such as local Social Security offices and Medicaid agencies.

The essential benefit package, and all other benefit options, limit exposure to catastrophic costs with a cap on total out of pocket spending for covered benefits. Special provisions would apply to Medicaid.

Effective 2013, individuals with family income at or below 133% of poverty ($14,400 for an individual in 2009) are eligible for Medicaid. State Medicaid programs would continue to cover those individuals with incomes above 133% of poverty, using the eligibility rules states now have in place.

Paying The Tab. House Democrats propose to finance approximately half of the estimated $1 trillion bill for their proposed reforms through projected $500 billion or so in savings from Medicare and Medicaid achieved by a variety of reimbursement and benefit cutbacks and other reforms. The rest of the financing would come from a combination of revenue expections from employer and individual mandates (an estimated $200 billion over 10 years) and a surtax on the richest 1.5 percent of Americans. The surtax is 1 percent on income between $350,000 and $500,000; 1.5 percent on income between $500,000 and $1,000,000; and 5.4 percent in income above $1,000,000. The House Bill permits the amount of this surtax to vary if the bill is less or more expensive than initially anticipated.

Other Helpful Resources & Other Information

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law Press Health Care Update in real time here, joining the LinkedIn SLP Health Care Risk Management & Operations Group, and/or subscribing to receive e-mail distributions of some of these updates by sharing your current contact information – including your preferred e-mail- by creating or updating your profile here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

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Leave a Comment » | Anti-KickBack, Centers For Disease Control, Childrens Health Insurance Program, Consumer Driven Health Care, Corporate Compliance, Disease Management, Doctor, Electronic Health Records, Electronic Medical Records, Employer, Evidence Based Medicine, false claims act, FDA, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Quality, Health Care Reform, Health IT, Health Plan, Health Plans, Health Policy, HIPAA, Hospital, Indian Health, Medicaid, Medical Malpractice, Medicare, Medicare Advantage, OCR, OIG, Outcomes Data, Patient Empowerment, Peer Review, Physician, Prescription Drugs, Public Policy, Reimbursement, Rural Health Care, Stark, Tax, Veterans Health, Veterans Health Care, Wellness | Tagged: Corporate Compliance, Doctor, Health Care Policy, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, HIPAA, Hospital, Medicare, Medicare Part B, PBMs, Physician, Physicians, Prescription Drugs, Privacy, public health, Public Policy, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

OCR Requires Health Care Providers To Improve Services for Limited English Speakers, Hearing Impaired As HHS Steps Up Enforcement of Federal Discrimination Laws

July 14, 2009

Health care providers should review the adequacy of translation and other mechanisms required to allow limited English speakers, hearing impaired, and other language limited populations effective access to services in light of recent enforcement actions taken by Department of Health and Human Services (HHS) Office of Civil Rights (OCR) against health care providers for discrimination under Title VI of the Civil Rights Act of 1964 (Title VII), the Americans With Disabilities Act (ADA) and other federal discrimination laws.

As part of a broader Obama Administration initiative to make prevention and redress prohibited national origin, disabilities and other discrimination in employment, public services, public accommodations and telecommunications a priority, HHS has announced that OCR will hold health care providers accountable for ensuring effective and adequate access by individuals seeking services having limited English language proficiency, hearing loss or other language or communication restrictions impacting on their ability to access care and services.

Medco Health Solutions, Inc. National Origination Settlement

On June 22, 2009, OCR announced that national pharmacy benefit management company Medco Health Solutions, Inc. had agreed to implement a multi-faceted plan to improve services to limited and non-English speaking members in 2009.

The commitment to take corrective action by the nation’s largest mail-order pharmacy operation arose from OCR’s investigation of a complaint filed with OCR on behalf of a Spanish-speaking member. The complaint alleged that Medco violated Title VI of the Civil Rights Act of 1964 (Title VII) by failing to provide limited English proficiency members (LEP members) with meaningful access to mail-order pharmacy services and other pharmacy benefit management services.

Under Title VI, health care providers and other recipients of federal financial assistance are required to take reasonable steps to provide meaningful access to their programs by limited English proficient individuals who are eligible to receive their services.

Under the commitment letter, Medco agreed to implement a number of measures to strengthen its provision of language assistance services to LEP members starting with those for Spanish-speaking members in 2009. The corrective actions agreed to by Medco include:

Expanding its pool of bilingual customer service representatives who speak Spanish
Revising its systems to enhance its ability to route Spanish-speaking members who need help with prescription drug questions or problems directly to bilingual staff, including pharmacists where possible and appropriate
Continuing to use a telephonic interpreter service available for more than 150 other languages to communicate with other non-English speakers.
Implementing a critical improvement in Medco’s internal computer systems that will flag language preference on an ongoing basis to aid effective communication with limited English proficient persons during member-Medco contact.
Continuing to improve its ability to identify and track individuals’ language preferences so that important written communications and outbound telephone calls are placed to members in their primary language.
Reviewing how best to notify limited English proficient members that language assistance services are available.
Developing an evaluation process with respect to interpreter competency. Staff at call centers and pharmacies expected to communicate directly with members in languages other than English will be assessed as to language proficiency, and those serving as interpreters will be assessed for interpreting competency.
Training all relevant staff on system changes intended to improve access to limited English proficient members, and will monitor the results of these efforts through periodic assessments.

Read the Medco Commitment Letter here.

Scottsdale Healthcare – Osborn (SHO) Voluntary Resolution Agreement

The Medico Commitment Letter follows OCR’s April, 2008 announcement that d a signed Resolution Agreement that requiring Scottsdale Healthcare – Osborn (“SHO”) a 337–bed full–service Arizona hospital to improve access to sign language interpreters and other services required for hearing impaired patients to effectively access services. The SHO VRA resolves a disability discrimination complaint against SHO brought by a patient with severe hearing loss, who reported that she was denied a sign language interpreter when treated in the SHO emergency room and intensive care unit.

Following OCR’s investigation of the complaint, SHO among other things agreed to: (1) affirm its compliance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; (2) issue and post revised policies to ensure that appropriate auxiliary aids, including sign language interpreters or video interpretation services, are provided to deaf or hard-of-hearing patients or companions within a two hour time period; (3) develop procedures to assess the sign language interpreter needs of patients or companions; (4) train hospital personnel and physicians on its revised policies and procedures to ensure effective communication; (5) place TTY lines throughout its facility; (6) maintain a centralized telecommunication number 24-hours per day, 7-days per week for sign language interpreter requests; and (7) provide regular compliance reports to OCR. Read SHO VRA here

Health Care Providers Should Act To Manage Risks As Obama Administration Makes Enhanced Investigation and Enforcement of Federal Discrimination Laws A Priority

Health care providers and other businesses covered by Title VII, the Americans with Disabilities Act and other federal discrimination laws should heed the Medco and SHO actions of the advisability of taking prompt action to review and if necessary, strengthen the adequacy of reasonable accommodations necessary to enable individuals with limited English proficiency, hearing or other language impairments to access services.

Beyond the adequacy of services to address language impairments, health care providers and others also generally should anticipate that the willingness by the OCR under the Obama Administration to act on the Medco and SHO complaints reflects a heightened willingness by federal agencies to investigate and enforce disabilities, national origin and charges of federal discrimination violations by health care providers and others by OCR and other federal agencies under the Obama Administration. Review Obama Administration Civil Rights Enforcement Agenda here. While OCR took a series of enforcement actions under the predecessor Bush Administration, this announced renewed emphasis on federal discrimination law enforcement coupled by the series of actions taken by OCR and other federal agencies since January, 2009 reflects that OCR and other agencies are acting on the direction of President Obama to make prevention and redress of disabilities and other discrimination in employment, public services, public accommodations and telecommunications a priority. Read about other recent OCR federal discrimination enforcement activates here. See also, e.g., recent discrimination policies and enforcement activities by Department of Justice, the Equal Employment Opportunity Commission, the Department of Housing and Urban Development.

The Medco and SHO actions, as well as a series of other recently announced enforcement actions reflect that OCR and other federal agencies are likely to continue to expand investigation and enforcement of disability and other violations by health care providers of federal disability and other discrimination laws in recent months. Health care providers and others regulated by these federal discrimination laws should consider auditing the adequacy of existing practices, reaffirming their commitment to compliance to workforce members and constituents, retraining workforce and taking other appropriate steps to help prevent illegal discrimination within their organization and to position their organization to respond and defend against potential discrimination investigations or charges.

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health care practitioners and other businesses and business leaders to establish, administer, investigate and federal and state discrimination and other compliance and internal control policies and practices to reduce risk under federal and state health care, discrimination and other laws. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Stamer’s practice emphasizes assisting health industry clients to monitor compliance and other legal and operational risks and to design, administer and defend internal controls and other risk management practices to mitigate these exposures. You can get more information about her health industry experience here.

Other Helpful Resources & Other Information

Leave a Comment » | ADA, Corporate Compliance, Disability Discrimination, Discrimination, Doctor, Employer, Health Care, Health Care Provider, Health Policy, Medicaid, Medicare, Medicare Advantage, OCR, Physician, Rehabilitation Act | Tagged: ADA, Corporate Compliance, Disability Discrimination, Doctor, English as A Second Language, Health Care, Health Care Provider, Health Care Reimbursement, Health Insurance, Health Policy, Hearing Impairment, HHS, Hospital, Limited English Proficiency, Medicare, Medicare Part B, National Origin Discrimination, Physician, Physicians, Prescription Drugs, Public Policy, Rehabilitation Act, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

“Health Care Government Relations and Legislative Update” Focus On July 14 North Texas Healthcare Compliance Professional Association Meeting

July 13, 2009

NORTH TEXAS HEALTHCARE COMPLIANCE PROFESSIONAL ASSOCIATION

July 14, 2009 Meeting Reminder

Congress and federal regulators are making health care regulation and reform their latest priority. The NTHCPA invites interested health care compliance and ethics professionals to join us on July 14, 2009 for a lively discussion about “Health Care Government Relations and Legislative Update” lead by as Sandy Pappas, from Congressman Pete Session’s Office and Cynthia Marcotte Stamer from Curran Tomko Tarski LLP.

Date: Tuesday, July 14, 2009

Time: 2:00 p.m.

Location: Texas Health Resources, 612 E. Lamar Blvd., Arlington, TX 76011

For additional information, please contact Cynthia Stamer at (214) 270-2402 or by e-mail at cstamer@solutionslawyer.net.

About the NTHCPA

The vision of NTHCPA is to be a pre-eminent compliance and ethics group promoting lasting success and integrity of organizations within North Texas.

To register or update your registration to receive notice of other upcoming events, e-mail your contact information to lfigueroa@cttlegal.com.

Leave a Comment » | Anti-KickBack, Centers For Disease Control, Childrens Health Insurance Program, Corporate Compliance, Disability Discrimination, Discrimination, Doctor, Electronic Health Records, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Reform, Health IT, Licensing, Medicaid, Medical Licensure, Medical Malpractice, Medicare, Medicare Advantage, OIG, Peer Review, Physician, Physician Licensing, Prescription Drugs, Reimbursement, Rural Health Care, Veterans Health, Veterans Health Care | Tagged: Antitrust, Doctor, Health Care, Health Care Policy, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, Health Policy, HHS, HIPAA, Hospital, Long Term Care Hospital, Medicare, Medicare Part B, Physician, Physicians, Prescription Drugs, public health, Red Flag Rules, Reimbursement, retaliation, Retalitory Discharge | Permalink
Posted by Cynthia Marcotte Stamer

53 Doctors, Health Care Executives & Beneficiaries Indicted For Involvement In A $50 Million Alleged False Billing Ring

June 24, 2009

Fifty-three people have been indicted for schemes to submit more than $50 million in false Medicare claims in the continuing operation of the Medicare Fraud Strike Force in Detroit, Attorney General Eric Holder, Department of Health and Human Services (HHS) Secretary Kathleen Sebelius, and FBI Director Robert Mueller announced today (June 24, 2009).

The charges were unsealed today against the 53 individuals who are accused of various Medicare fraud offenses, including conspiracy to defraud the Medicare program, criminal false claims and violations of the anti-kickback statutes. The indictments returned by a grand jury in Detroit resulted in arrests in Miami, New York City and Detroit.

According to the DOJ, federal agents from the FBI and the HHS Office of Inspector General (HHS-OIG) began executing arrest warrants and made arrests in Detroit, Miami and New York City earlier today as part of a concentrated effort targeting infusion therapy and physical/occupational therapy providers involved in schemes orchestrated to defraud the Medicare program.

Collectively, the indictment accuses the physicians, medical assistants, patients, company owners and executives charged in the indictments of conspiring to submit more than $50 million in false claims to the Medicare program. According to the indictments, the defendants participated in schemes to submit claims to Medicare for treatments that were in fact medically unnecessary and oftentimes, never provided. In many cases, indictments also allege that beneficiaries accepted cash kickbacks in return for allowing providers to submit forms saying they had received the unnecessary and not provided treatments. An indictment is merely an allegation, and defendants are presumed innocent until and unless proven guilty.

The investigation and enforcement action that lead to today’s indictment was conducted as part of the continuing activities of the new interagency Health Care Fraud Prevention and Enforcement Action Team (HEAT) that DOJ and HHS jointly announced last month. On May 20, 2009, DOJ and HHS jointly announced they were combining forces to find and prosecute health care fraud through the HEAT and identified Detroit and Houston as cities targeted for Medicare Fraud Strike Force attention.

Before the May 20, 2009 HEAT announcement, Medicare Fraud Strike Forces operating demonstration projects in South Florida and Los Angeles already had produced a number of indictments. The Medicare Fraud Strike Force team operating in South Florida has already convicted 146 defendants and secured $186 million in criminal fines and civil recoveries. After the success of operations in South Florida, the Medicare Fraud Strike Force expanded in May 2008 to phase two in Los Angeles, where 37 defendants have been charged with criminal health care fraud offenses. To date in the Los Angeles cases, more than $55 million has been ordered in restitution to the Medicare program. The success of these demonstration projects lies behind the founding of the HEAT initiative.

The heightened emphasis on enforcement of federal health care fraud laws reflected in the HEAT program the enactment of recent amendments to the False Claims Act, 31 U.S.C. § 3729 (FCA) under the “Fraud Enforcement and Recovery Act of 2009”(FERA). The FERA amendments increase the likelihood both that whistleblowers will turn in health care providers and other individuals and organizations that file false claims in violation of the FCA and the liability that violators may incur for that misconduct.

The FERA amendments and the HEAT Team and Strike Force activities are part of a broader emphasis in the enforcement of federal health care fraud laws by both the Administration and Congress. President Obama’s proposed Fiscal Year 2010 budget seeks to further increase funding for fraud prevention and enforcement by investing $311 million — a 50 percent increase from 2009 funding — to strengthen program integrity activities within the Medicare and Medicaid programs. The Obama Administration anticipates that all combined, the anti-fraud efforts in the President’s budget could save $2.7 billion over five years by improving oversight and stopping fraud in the Medicare and Medicaid programs, including the Medicare Advantage and Medicare prescription drug programs. Many state agencies also are stepping up their health care fraud investigations and enforcement.

In light of this new emphasis upon health care fraud detection and enforcement, health care providers now more than ever need to prepare to demonstrate the appropriateness and defensibility of their health care billing and other compliance efforts.

Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health care practitioners and other businesses and business leaders to establish, administer, investigate and defend health care fraud and other compliance and internal control policies and practices to reduce risk under federal and state health care and other laws. You can get more information about her health industry experience here.

If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney.

Other Helpful Resources & Other Information

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

Leave a Comment » | Anti-KickBack, Corporate Compliance, Doctor, false claims act, Federal Sentencing Guidelines, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Hospital, Medicaid, Medicare, Medicare Advantage, OIG, Physician, Reimbursement | Tagged: Corporate Compliance, false claims act, Federal Sentencing Guidelines, Fraud, Health Care, Health Care Provider, Health Care Reimbursement, heatlh care fraud, Hospital, Medicare, Medicare Part B, Physician, Physicians, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

Comments On Definition of Meaningful Use of EMR For Purposes of HITECH Act Provider Incentives Due June 26

June 16, 2009

Friday, June 26, 2009 at 5:00 p.m. Eastern Time is the deadline to submit comments to the Office of the National Coordinator for Health Information Technology (ONC) on the recommendations about what should be considered the term “meaningful use” of electronic health records (EHRs) presented to the Health Information Technology Policy Committee today (June 16, 2009) available for review here. Comments will be received by the Committee for consideration and further recommendations to the National Coordinator of Health Information Technology on the elements and measures of Meaningful Use of a certified EHR.

The HIT Policy Committee is a Federal Advisory Committee (FACA) to the U.S. Department of Health and Human Services (HHS). The American Recovery and Reinvestment Act of 2009 (ARRA”) provides for Medicare and Medicaid incentive payments for eligible providers, such as physicians and hospitals, in order to promote the adoption of EHRs. To receive the incentive payments, providers must demonstrate “meaningful use” of a certified EHR. Building upon the work of the HIT Policy Committee, HHS anticipates developing a proposed rule that provides greater detail on the incentive programs and “meaningful use.” HHS expects to issue the proposed rule in late 2009, which will be followed by a comment period.

How OCR decides to define meaningful use of EMR is likely to play a central role in determining how effective provider incentives to use EMR included in ARRA’s HITECH Act provisions work and ultimately influence how effectively those provisions and other OCR efforts to accelerate EMR and other health information technology use to promote health care efficiency and quality work.

For instructions on how to comment or additional information, see here.

For More Information

We hope that this information is useful to you. If you need assistance with EMR or other health care technology, privacy or other health care compliance, risk management, transaction or operation concerns, please contact Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer at (214) 270-2402, CStamer@CTTLegal.com or your other favorite Curan Tomko Tarski LLP Partner.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to CStamer@CTTLegal.com.

Leave a Comment » | ARRA Funding, Corporate Compliance, Doctor, Health Care, Health Care Finance, Health Care Provider, Health Care Reform, Health Plan, HIPAA, Hospital, Nonprofits | Tagged: ARRA, Data Security, Health Care Policy, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, Health Plans, Health Policy, HIPAA, Hospital, Medicare, Physician, Physicians, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

FTC Issues FAQ Guidance On Red Flag Rules Applicable To Health Care Providers & Others

June 12, 2009

The Federal Trade Commission (FTC) and five other federal agencies yesterday (June 11, 2009) jointly issued a set of frequently asked questions (FAQs) about federal regulations on the “Red Flags and Address Discrepancy Rules” (Red Flag Rules) implementing sections of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) now scheduled to take effect on August 1, 2009.

Health care providers and a broad range of other entities are among the organizations generally required to comply with the broadly reaching Red Flag Rules, which require “financial institutions” and “creditors” to develop and implement written Identity Theft Prevention Programs and require issuers of credit cards and debit cards to assess the validity of notifications of changes of address. The rules also provide guidance for users of consumer reports regarding reasonable policies and procedures to employ when consumer reporting agencies send them notices of address discrepancy.

The sweeping reach of the definition of “creditor: and “financial institutions” in the Red Flag Rules and other confusion about the Red Flag Rules have prompted the agencies to delay the deadline for compliance several times. The most recent delay, which extended the compliance deadline from May 1 to August 1, 2009, was announced by the FTC on April 30, 2009. The FTC promised to issue additional guidance to help promote better understanding of the rules when it announced this latest delay in the compliance deadline on April 30, 2009.

Fulfilling this promise, the FAQs discuss numerous aspects of the Red Flag Rules, including:

Types of entities and accounts covered;
Establishment and administration of an Identity Theft Prevention Program;
Address validation requirements applicable to card issuers; and
Obligations of users of consumer reports upon receiving a notice of address discrepancy.

FACTA directed financial regulatory agencies, including the FTC, to promulgate rules requiring “creditors” and “financial institutions” with covered accounts to implement programs to identify, detect, and respond to patterns, practices, or specific activities that could indicate identity theft. FACTA’s definition of “creditor” applies to any entity that regularly extends or renews credit – or arranges for others to do so – and includes all entities that regularly permit deferred payments for goods or services. Accepting credit cards as a form of payment does not, by itself, make an entity a creditor. Some examples of creditors are finance companies; automobile dealers that provide or arrange financing; mortgage brokers; utility companies; telecommunications companies; non-profit and government entities that defer payment for goods or services; and businesses that provide services and bill later, including many doctors and other health care providers and other professionals. “Financial institutions” include entities that offer accounts that enable consumers to write checks or make payments to third parties through other means, such as other negotiable instruments or telephone transfers. The FTC has made clear it perceives most health care providers as falling within the scope of these rules.

FACTA is only one of a growing list of the evolving privacy and data security mandates applicable to businesses under federal and state laws that organizations must address under applicable federal laws. In addition to FACTA, most businesses also face other specific data security and data breach requirements under a tapestry of other federal and state laws which are constantly evolving. In addition to these FACTA and other generally applicable data security and breach rules, many organizations face evolving industry specific mandates. For example, health care providers, health plans, health care and their business associates also are required to update their privacy and data security practices to comply with recent amendments to the Health Insurance Portability & Accountability Act Privacy & Security Standards signed into law February 17, 2009.

Many of these federal laws provide for both civil penalties as well as criminal penalties that bring violations of these regulations under the Federal Sentencing Guidelines. As a consequence, most organizations need to implement and administer compliance programs to manage these Federal Sentencing Guideline risks. Even where criminal sanctions are not triggered, noncompliance with these and other data security mandates can trigger substantial judgment awards, administrative penalties or both.

If you need assistance with auditing, updating, administering or defending your privacy, data security or other privacy and data security practices or addressing other health care compliance, risk management, transactions or operations concerns, please contact Cynthia Marcotte Stamer at (214) 270-2402, CStamer@CTTLegal.com.

For More Information

We hope that this information is useful to you. You can find more information about the Red Flag Rules and other privacy and identity theft matters at here. You also can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to CStamer@CTTLegal.com.

Leave a Comment » | Corporate Compliance, Doctor, FACTA, Federal Sentencing Guidelines, Health Care, Health IT, HIPAA, Privacy | Tagged: ARRA, Corporate Compliance, Data Security, Doctor, Federal Sentencing Guidelines, Health Care, Health Care Provider, Health Insurance, Health Plans, Health Policy, HIPAA, Hospital, Identity Theft, Physician, Physicians, Privacy, Red Flag Rules | Permalink
Posted by Cynthia Marcotte Stamer

Democrats Unveil Comprehensive Health Care Reform Proposal, Move To Fast Track Enactment

June 10, 2009

Coalition For Responsible Health Care Reform Founded To Help Concerned Americans Respond

Americans concerned about plans of President Obama and Congressional Democrats to enact comprehensive health care reform this year must speak up now.

Senator Edward M. Kennedy yesterday (June 9, 2009) circulated a 625 page proposal to radically reform the U.S. health care system. The latest draft of the “Affordable Health Choices Act” (the “Act”) details the comprehensive health care reforms that President Obama and Democrats in Congress propose to enact before year end. President Obama and key Congressional Democrats are moving quickly to enact their vision for “comprehensive health reform” this year.

The Act circulated yesterday by Senator Kennedy would radically change the U.S. health care system in enacted as currently proposed. Consistent with announced plans by President Obama and key Congressional Democrats to enact “comprehensive health care reform” this year, Democratic leaders in Congress are rushing to enact this legislation well before year end. In furtherance of plans to fast track enactment of the Act, the Senate Committee on Health, Education, Labor and Pensions (HELP) chaired by Senator Kennedy will hold a hearing on the Act this week in anticipation of meetings to mark up of the Act on Tuesday, June 16 at 2:30 p.m. in Russell 325.

The Act, as proposed, would make sweeping changes to the U.S. health care system and radically expand the involvement of government in the delivery and financing of health care. Among other things, the Act as proposed would:

Establish government provided “Gateway” health care coverage programs to provide coverage for Americans not insured under qualifying employer or other privately run “qualified health plan” to be financed in part through surcharges on private health plans and health insurers and other taxes and assessments and in part through premiums on enrolled individuals
Require that Americans participating in the Gateway health care coverage programs be offered the opportunity to enroll in at least one “public health insurance option”
Require Americans to chose either to enroll in a government run Gateway health program or enroll in qualifying coverage under a privately run qualified health plan
Impose sweeping new mandates on employer and union-sponsored group health plans and insurers
Impose newly created taxes on individuals that fail to maintain enrollment in health coverage under either a Gateway health program or a private qualified health plan
Tax and/or eliminate the deductibility of health coverage premiums and certain other amounts paid by certain employers and employees
Impose new federal mandates for health care providers, health plans and health insurers relating to the quality standards, the use of health care technology and other matters
Grant federal regulators sweeping authority to define what qualifies as appropriate health care and health care coverage, the health care services that qualify for health care coverage and the payment and delivery of health care services.

You can review a copy of currently proposed provisions of the 615 page Act here. Individuals concerned about these and other proposed health care reforms must act immediately to become familiar and share their input on the proposals.

Assistance Monitoring & Responding To Health Care Reform Proposals

If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

Register for this resource at the link above;
Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input;
Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile here.

You can register to receive future updates on legislative and regulatory health care reform proposals and other related information by registering for this resource or access other publications by Ms. Stamer and access other helpful resources here.

Long-time health policy advocate and advisor Cynthia Marcotte Stamer has more than 22 years of experience advising and assisting clients to evaluate and respond to health care reform proposals and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws. Former Chair of the American Bar Association’s Managed Care & Insurance Section, Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally. Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally. In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally. As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues. Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association. Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

Ms. Stamer also serves in a number of professional leadership roles including the leadership council of the ABA Joint Committee on Employee Benefits, Vice Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

Additional Resources & Information

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.

Leave a Comment » | Childrens Health Insurance Program, Corporate Compliance, Disease Management, Doctor, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Reform, Health IT, Health Plan, Health Policy, HIPAA, Hospital, Indian Health, Medicaid, Medicare Advantage, Physician, Prescription Drugs, Public Policy, Reimbursement, Tax | Tagged: Affordable Health Choices Act, employer mandates, Health Care, health care access, Health Care Finance, Health Care Provider, health care quality, Health Care Reform, Health Care Reimbursement, Health Insurance, Health Plans, Health Policy, HIPAA, Hospital, Medicare, Medicare Part B, PBMs, Physician, Physicians, Prescription Drugs, public health, Public Policy, Reimbursement, Uninsured | Permalink
Posted by Cynthia Marcotte Stamer

June 11 Deadline To Comment On Proposal For Establishing HITECH Act Regional Extension Centers

June 3, 2009

On May 28, 2009, the new Office of the National Coordinator for Health Information Technology Program (“ONC”) published a Federal Register Notice and Request for Comments (the “Notice”) that describes the program ONC proposes to use to establish “Regional Extension Centers” to assist health care providers seeking to adopt and become meaningful users of health information technology under Title XIII of Division A and Title IV of Division B (the “HITECH Act”) of the American Recovery and Reinvestment Act of 2009 (“ARRA”). The deadline for commenting on the Notice is 5 p.m. on June 11, 2009.

The HITECH Act directs the ONC to establish Health Information Technology Regional Extension Centers to provide technical assistance and disseminate best practices and other information to providers to support and accelerate efforts to adopt, implement and effectively utilize electronic health records and other health information technology to improve the quality and value of American health care. ARRA appropriates a total of $2 billion in discretionary funding, in addition to incentive payments under the Medicare and Medicaid programs for providers’ adoption and meaningful use of certified electronic health record technology.

The Notice describes how ONC plans to establish the Regional Health Program and their goals. It also includes information and addresses needed to submit comments on this draft program description for the regional centers program. To review the Notice online, click on the following link: Federal Register Notice.

More Information

We hope you found this information helpful. If you are interested in commenting on the Notice or assistance with other aspects of the HITECH Act or other health care privacy or technology related laws, or wishes to inquire about services and experience of Cynthia Marcotte Stamer, please Ms. Stamer at Cstamer@CTTLegal.com or telephone her at 214.270.2402.

If you or some that you know would like to register to receive these updates and other helpful information on HIPAA and other health care and human resources risk management matters, please be sure that we have your current contact information including your preferred e-mail by registering at and/or sign up to receive the Solutions Law Press Health Care & IT Updates at https://slphealthcareupdate.wordpress.com. To learn more about Cynthia Marcotte Stamer and/or access some of her many HIPAA and other publications, see here. For important information concerning this resource, see here.

Leave a Comment » | ARRA, Doctor, Grants, Health Care Reform, Health Policy, Hospital, Public Policy, Technology | Tagged: ARRA, Data Security, Doctor, Grants, Health Care, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, HHS, HIPAA, Hospital, Medicare, Medicare Part B, Physician, Physicians, public health, Public Policy, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

HHS, Sesame Workshop, & Ad Council National Ad Campaign Reminds Americans Of Need to Continue To Protect Against H1N1 (Swine Flu) Virus

June 3, 2009

Declining press attention on the H1N1 flu virus (swine flu) pandemic does not mean the need for precautions is over for Americans, their employers, schools and other community organizations.

The Department of Health and Human Services (HHS),the Ad Council and Sesame Workshop, the nonprofit educational organization behind Sesame Street, recently launched a national public service advertising campaign designed to encourage American families and children to take steps to protect themselves from the 2009 H1N1 flu virus (swine flu) and continue to practice healthy habits. The announcement of the campaign signals continuing concerns by government and other health experts that the swine flu pandemic may continue to circulate or even worsen unless proper precautions are taken.

The 2009 H1N1 flu virus is a new flu virus of swine origin that was first detected in April 2009. While press attention has died down in recent weeks, the virus is spreading from person-to-person, sparking a growing outbreak of illness in the U.S. and internationally. To date, over 5,700 cases have been reported in the United States and there are nine deaths associated with the novel H1N1 infection. Experts believe that the 2009 H1N1 flu spreads in the same way that seasonal influenza viruses spread — primarily through the coughs and sneezes of people who are sick with the virus.

HHS Secretary Kathleen Sebelius unveiled the campaign at the HHS/Department of Education Childcare Center in Washington, D.C. The PSAs will be distributed nationwide and will be supported in airtime donated by television stations.

The new PSA campaign focuses on the importance of providing parents, teachers and children with accurate information about how to practice healthy habits, highlighting proper hand-washing and simple everyday actions that lead to staying healthy and keeping germs away. Created by Sesame Workshop, the television PSAs encourage audiences to visit http://www.cdc.gov to get more information on how to stay healthy. The PSAs are an extension of Sesame’s Healthy Habits for Life initiative, which helps young children and their caregivers establish an early foundation of healthy habits. As part of HHS/Ad Council campaign, Sesame Workshop produced a television PSA featuring Sesame Street’s Elmo and Gordon explaining the importance of healthy habits such as washing your hands, avoid touching your eyes, nose and mouth and sneezing into the bend of your arm.

The PSAs are part of an initiative to provide practical steps recommended by HHS’ Centers for Disease Control and Prevention (CDC) to help prevent the spread of the flu virus and other infectious disease, including:

Avoid close contact with people who are sick.

Keep your distance from others if you are sick.

When possible, stay home from work, school, and errands when you are sick, and don’t send your children to childcare or school if they are sick.

Cover your mouth and nose when coughing or sneezing.

Wash your hands often with soap and water, especially after coughing and sneezing.

Avoid touching your eyes, nose and mouth.

Cynthia Marcotte Stamer and other attorneys practicing with Curran Tomko Tarski LLP are experienced advising and representing health industry clients, community organizations and others about federal and state regulatory, reimbursement, grant, enforcement and other health industry risk management and compliance concerns. If you have questions about these matters, please contact Ms. Stamer at 214.270.2402.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

1 Comment | Disease Management, Employer, Wellness | Tagged: Absentee Management, Disease Management, Doctor, Employer, Health Care, Health Care Policy, Health Care Provider, Health Care Reform, Health Insurance, Health Plans, Health Policy, Hospital, Pandemic, Swine Flu, Wellness, Workplace Safety | Permalink
Posted by Cynthia Marcotte Stamer

HHS, Sesame Workshop, and the Ad Council Launch National Campaign to Protect Families from H1N1 (Swine Flu) Virus and Stay Healthy

June 3, 2009

Avoid close contact with people who are sick.
Keep your distance from others if you are sick.
When possible, stay home from work, school, and errands when you are sick, and don’t send your children to childcare or school if they are sick.
Cover your mouth and nose when coughing or sneezing.
Wash your hands often with soap and water, especially after coughing and sneezing.
Avoid touching your eyes, nose and mouth.

Cynthia Marcotte Stamer and other attorneys practicing with Curran Tomko Tarski LLP are experienced advising and representing health industry clients, community organizations and others about pandemic planning and other disease management and health industry risk management and compliance concerns. If you have questions about these matters, please contact Ms. Stamer at 214.270.2402.

For More Information

Leave a Comment » | Doctor, Health Policy, Hospital, Pandemic, Swine Flu | Tagged: Doctor, Employer, Health Care Policy, Health Care Provider, Health Care Reform, Health Plans, Health Policy, HHS, Hospital, Pandemic, Physician, Physicians, Swine Flu | Permalink
Posted by Cynthia Marcotte Stamer

HHS Releases $30 Million to Help Medicare Beneficiaries Access Their Benefits In Vulnerable Communities

June 2, 2009

Health & Human Services (HHS) Secretary Kathleen Sebelius today (June 2, 2009) released $25 million in grants to help older people, individuals with disabilities and their caregivers apply for special assistance through Medicare, and an additional $5 million for a national resource center to support these important efforts.

Made possible by the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), these grants provide funding to state and local organizations involved in reaching and providing assistance to people likely to be eligible for the Low-Income Subsidy program (LIS), Medicare Savings Program (MSP), the Medicare Part D Prescription Drug Program and in helping beneficiaries to apply for benefits. This initiative also includes special targeting efforts to rural areas of the country and to Native American elders.

This MIPPA funding, which is jointly administered by HHS’ Administration on Aging (AoA) and the Centers for Medicare & Medicaid Services (CMS), is being awarded to State Health Insurance Assistance Programs (SHIPs), State Agencies on Aging, Area Agencies on Aging (AAAs), Aging and Disability Resource Centers (ADRCs), Native Americans Tribal Organizations and local communities to help seniors, caregivers and those with disabilities on Medicare. These organizations part of HHS’ national network of state, tribal and community-based organizations that assist seniors, caregivers and those with disabilities with health benefits information and information on other services, and enable them to remain independent and living in their communities as long as possible.

Look here for more information about these grants.

For More Information

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Posted by Cynthia Marcotte Stamer

Newly Enacted FERA Amendments To False Claims Act Signal New Risks For Health Industry Organizations & Others

May 26, 2009

Health care providers and other parties covered by the False Claims Act, 31 U.S.C. § 3729 (FCA), now face expanded whistleblower and other liability under amendments to the FCA enacted under the “Fraud Enforcement and Recovery Act of 2009”(FERA). The amendments increase the likelihood both that whistleblowers will turn in health care providers and other individuals and organizations that file false claims in violation of the FCA and the liability that violators may incur for that misconduct.

Signed into law by President Obama last Wednesday (May 20, 2009), FERA immediately upon enactment:

Amends the whistleblower protections afforded to employees, contractors and agents who suffer retaliation for taking lawful efforts to stop violations of the FCA and to make it easier for those individuals to pursue retaliation claims;
Expands liability under for making false or fraudulent claims to the federal government under the FCA;
Applies liability under the FCA for presenting a false or fraudulent claim for payment or approval (currently limited to such a claim presented to an officer or employee of the federal government); and
Requires persons who violate such Act to reimburse the federal government for the costs of a civil action to recover penalties or damages

Concurrent with President Obama’s signature of FERA into law, the U.S. Departments of Justice (DOJ) and Health & Human Services (HHS) jointly announced the expansion of federal health care fraud enforcement efforts. On May 20, 2009, HHS and DOJ announced their activation of a new interagency team to combat health care fraud highlights the increasing need for health care providers and health plans to review and tighten their practices for dealing with Medicare and other federal programs to survive scrutiny under federal health care fraud initiatives. Coupled with FERA and the already significant increase in federal health care fraud detection and enforcement activities in recent years and a proposed 50 percent increase in funding for these activities included in President Obama’s Fiscal Year 2010 budget, health care providers and payers must be prepared to defend their dealing with Medicare, Medicaid and other federal health care programs.

The expanded protections afforded under FERA to whistleblowers and others suffering retaliation for opposing or reporting illegal actions can be expected to serve as a key tool in these efforts. These new retaliation safeguards are designed further increase the likelihood that employees and other insiders will help government officials ferret out false claims and other fraud. Specifically with regard to retaliatory action claims Section 4(d) of FERA amends 31 U.S.C.§ 3730(h) to provide for the recovery of “all relief necessary to make that employee, contractor, or agent whole” where that individual is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts he does or takes on behalf of an individual in furtherance of other efforts to stop a violation of the FCA.

FERA expressly provides that relief to victims of retaliation will include “reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”

The FERA amendments to the FCA, the new TEAMS enforcement effort announced simultaneously with its signature into law mean that health care industry organizations and others covered by the FCA must implement appropriate fraud prevention, detection, redress and other procedures to help defend against possible FCA or other health care fraud claims and investigations.

The attorneys at Curran Tomko Tarski, LLC have extensive experience representing and advising health industry and other clients against FCA and other federal health care and fraud laws.

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending health care fraud concerns or other health care compliance, risk management, transactions or operations concerns, please contact Curran Tomko Tarski LLP Partners Cynthia Marcotte Stamer at (214) 270-2402, CStamer@CTTLegal.com; Michael T. Tarski at (214) 270-1420 or MTarski@CTTLegal.com; Edwin J. Tomko at (214) 270-1405 or ETomko@CTTLegal.com.

You can review other recent health care and internal controls resources and additional information about the health industry and white collar experience of the Curran Tomko Tarski LLP attorneys at http://www.CTTLegal.com. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at CTTLegal.com or e-mailing this information to CStamer@CTTLegal.com.

Leave a Comment » | Anti-KickBack, ARRA, Construction, Corporate Compliance, Doctor, Federal Sentencing Guidelines, Grants, Health Care, Health Care Fraud, Health Care Provider, Health Care Reform, Health Plan, Health Policy, Hospital, OCR, OIG, Physician, Prescription Drugs, Reimbursement, Stark | Tagged: Antitrust, ARRA, Bid Rigging, Construction, Corporate Compliance, Data Security, Doctor, Economic Aid, Employer, false claims act, Federal Sentencing Guidelines, Fraud, Health Care, Health Care Provider, Health Care Reform, Health Care Reimbursement, Health Insurance, Health Plans, Health Policy, Hospital, Identity Theft, Medicare, Medicare Part B, Nonprofits, PBMs, Physician, Physicians, Prescription Drugs, public health, Reimbursement, retaliation, Retalitory Discharge, Whistleblower | Permalink
Posted by Cynthia Marcotte Stamer

Stamer To Discuss “Making Gainsharing Work: Managing Physician Performance” At June 17, 2009 Dallas Bar Association Health Law Section Meeting

May 26, 2009

Health care organizations, health plans and regulars increasingly point to gainsharing and pay-for-performance strategies as key to securing needed key physician buy-in and performances to achieve desired health care quality and cost objectives. Using physician gainsharing to promote desired performances within the bounds of the law without undesirable side effects involves more than staying within the STARK exceptions and anti-kickback safe harbors.

Curran, Tomko Tarski, LLP attorney Cynthia Marcotte Stamer will discuss key strategies and processes for designing and administering legally defensible pay-for-performance and other gainsharing arrangements that promote desired outcomes in operation at the Dallas Bar Association Health Law Section meeting on June 17, 2009.

Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, attorney and author Cynthia Marcotte Stamer is nationally and internationally recognized for her legal work, publications and programs, and advocacy on health industry performance management and other health industry matters. Ms. Stamer works extensively with health care organizations, managed care and health insurance organizations, governments and others to manage performance and legal risks. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer combines her more than 22 years of health industry regulatory and risk management experience with an in-depth knowledge of workforce management and regulation to help clients manage performance and legal and operational risks. Her experience includes advising public and private health industry clients domestically and internationally on a wide range of matters. A widely published author and popular speaker, Ms. Stamer’s insights on health industry matters also are quoted in HealthLeaders, Managed Care Executive, the Wall Street Journal and many other national popular, business and industry publications.

Ms. Stamer is scheduled to begin her remarks at Noon on June 17, 2009 at the offices of the Dallas Bar Association located at 2101 Ross Avenue, Dallas, Texas 75201. For additional information, call the Dallas Bar Association at 214-220-7400 or see http://www.dallasbar.org.

Leave a Comment » | Anti-KickBack, Doctor, Health Care, Health Care Fraud, Health Care Provider, Health Care Reform, Health Plan, Health Policy, HIPAA, Hospital, Licensing, Medical Licensure, Medical Malpractice, Medicare Advantage, OCR, OIG, Peer Review, Physician, Physician Licensing, Public Policy, Reimbursement, Stark | Tagged: Antitrust, Corporate Compliance, Federal Sentencing Guidelines, Gainsharing, Health Care Policy, Health Care Provider, Health Care Reform, Health Insurance, Health Policy, Hospital, Managed Care, Medicare, Medicare Part B, Pay-For-Performance, PBMs, Physician, Physicians, Prescription Drugs, Public Policy, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

CMS Proposes Policy And Payment Rate Changes For Inpatient Stays In Acute Care And Long-Term Care Hospitals In Fy 2010

May 2, 2009

The Centers for Medicare & Medicaid Services (CMS) today (May 1, 2009) proposed the fiscal year (FY) 2010 policies and payment rates for inpatient services furnished to people with Medicare by both acute care hospitals and long-term care hospitals. Interested persons have until June 30 to submit comments to CMS. CMS plans to finalize the rule by August 1, 2009.

The proposed rule placed on display at the Federal Register today and available for review at www.archives.gov/federal-register/public-inspection/index.html would apply to approximately 3,500 acute care hospitals paid under the Inpatient Prospective Payment System (IPPS), and 400 long-term care hospitals paid under the Long-Term Care Hospital Prospective Payment System (LTCH PPS), beginning with discharges occurring on or after October 1, 2009. The proposed payment rates are based on the most recently available data and are subject to revision in the final rule to reflect more current data.

In today’s announcement, CMS proposes:

To update acute care hospital rates by 2.1 percent for inflation less an adjustment of 1.9 percentage points to remove the effect of increases in aggregate payments due to changes in hospital coding practices that do not reflect increases in patient’s severity of illness.
To update long-term care hospital rates by 2.4 percent for inflation less an adjustment of 1.8 percentage points to account for changes in documentation and coding practices that do not reflect increases in patient’s severity of illness.

Beginning October 1, 2008, Medicare adopted a new classification system for general acute and long term care hospitals to better recognize severity of illness and the cost of treating Medicare patients. According to the announcement, hospitals changed their documentation and coding of patient diagnoses under the new system in a manner that CMS states leads to an increase in aggregate payments without corresponding growth in actual patient severity. CMS says the proposed documentation and coding adjustments help ensure that estimated aggregate payments to these hospitals under the new classification systems would not increase solely as a result of the changes to the classification system and hospital coding practices.

The Medicare Actuary found based on analysis of 2008 data that additional coding that did not reflect actual changes in the severity of patients’ illnesses increased total payments under IPPS by 2.5 percent in FY 2008 and will further increase total payments in FY 2009. Based on current estimates, the Medicare Actuary estimates that total adjustments of approximately 8.5 percent would have to be made to the acute care hospital rates to address changes in hospitals’ coding practices, including the increase in FY 2008 payments and the estimated increase in FY 2009 payments. CMS is proposing a prospective adjustment of 1.9 percentage points for FY 2010, which means additional adjustments of approximately 6.6 percentage points, will be needed in FY 2011 and FY 2012. CMS is requesting public comment on whether to apply a different documentation and coding adjustment than the one being proposed for FY 2010.

Under current Medicare law, hospitals that successfully report the 2010 quality measures included in the Reporting Hospital Quality Data for Annual Payment Update (RHQDAPU) program will get the full update. Hospitals that do not participate in the quality reporting program will get the update less two percentage points. Ninety-seven percent of participating hospitals received the full update last year. The proposed rule adds four new measures for which hospitals must submit data under the RHQDAPU program to receive the full market basket update. Two of these measures are additions to the existing Surgical Care Improvement Project (SCIP) measure set, and CMS believes that the other two measures will promote hospital participation in nursing-sensitive care and stroke care registries.

CMS is also proposing changes to regulations affecting payment adjustments to teaching hospitals (hospitals that offer graduate medical education programs), and disproportionate share hospitals (hospitals that provide care to a disproportionate share of low income patients), and to clarify the regulations implementing the Emergency Medical Treatment and Labor Act (EMTALA). In addition, the proposed rule describes five applications for new technology add-on payments and CMS’ preliminary findings about those technologies.

For More Information

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Leave a Comment » | Doctor, Health Care, Health Care Provider, Hospital, Reimbursement | Tagged: Doctor, Health Care Provider, Hospital, Long Term Care Hospital, Medicare, Medicare Part B, Physicians, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

Texas Senate Committee Schedules May 5 Hearing On Proposed Texas Medical Board Reforms

May 2, 2009

Physicians and others concerned about physician oversight and discipline by the Texas Medical Board (“Board”) may want to share their input with key Texas legislators before or during a hearing scheduled on May 5, 2009.

This Tuesday, May 5th, the Texas Senate Health & Human Services Committee will hold a hearing on proposed medical licensing reforms in SB 2336. Advocates of SB 2336 and its companion, HB 3816, are urging supporters to attend the hearing and/or communicate their perspectives on the legislation. The hearing is scheduled to begin on Tuesday, May 5th, 2009 at 9:00am in the Senate Chambers.

Supported by a broad range of physician and other health care organizations, SB 2336 and the companion HB 3816 seek to address a series of concerns expressed by physicians and others about certain practices by the Texas Medical Board. Interested persons should review the proposed changes and express their input quickly to ensure their views have an opportunity for consideration.

Persons unable to attend the hearing in person who wish to make their views known also can consider contacting one or more members of the 2009 Senate Committee on Health and Human Services:

Chair: Senator Jane Nelson (R-12)

1E.5

(512) 463-0112

jane.nelson@senate.state.tx.us

Steve Roddy – Chief of Staff

steve.roddy@senate.state.tx.us

Nnenna Ezekoye Policy Analyst

Nnenna.ezekoye@senate.state.tx.us

Dave Nelson – Legislative Aide

Dave.nelson@senate.state.tx.us

Vice-Chair: Senator Bob Deuell (R-2)

E1.706

(512) 463-0102

bob.deuell@senate.state.tx.us

Don T. Forse, Jr. – Chief Staff

Don.forse@senate.state.tx.us

Scot Kibde – Legislative/Health Policy

Scot.kibde@senate.state.tx.us

Members:

Senator Joan Huffman (R-17)

GE.5

joan.huffman@senate.state.tx.us

(512) 463-0117

Jonathon Stinson – Legislative Director

Jonathon.stinson@senate.state.tx.us

Kyle Kamrath – Policy Director

Kyle.kamrath@senate.state.tx.us

Ryan Hutchison – Legislative Aide

ryan.hutchison@senate.state.tx.us

Senator Robert Nichols (R-3)

E1.708

Robert.nichols@senate.state.tx.us

(512) 463-0103

Steven Albright – Chief of Staff

Steven.albright@senate.state.tx.us

Adrianne Emr

Adrianne.emr@senate.state.tx.us

Angus Lupton – Policy Director

Angus.lupton@senate.state.tx.us

Senator Dan Patrick (R-7)***introduced and supports SB 2336

3S.3

(512) 463-0107

Dan.patrick@senate.state.tx.us

Logan Spence JD – Legislative Director

logan.spence@senate.state.tx.us

Kate Pigg – Legal Counsel

kate.pigg@senate.state.tx.us

John Gibbs – Legislative Aide

john.gibbs@senate.state.tx.us

Senator Eliot Shapleigh (D-29)

E1.610

eliot.shapleigh@senate.state.tx.us

(512) 463-0129

Eduardo Hagert – Chief of Staff

Eduardo.hagert@senate.state.tx.us

Sushma Jasti – Policy Director

Sushma.jasti@senate.state.tx.us

Senator Carlos Uresti (D-19)

E1.810

carlos.uresti@senate.state.tx.us

(512) 463-0119

Tomas Larralde – Chief of Staff

Tomas.larralde@senate.state.tx.us.

Rachel Johnston – Legislative/Policy Director

Rachel.johnston@senate.state.tx.us

Senator Royce West (D-23)

1E.12

royce.west@senate.state.tx.us

(512) 463-0123

LaJuana Barton – Chief of Staff

Lajuana.barton@senate.state.tx.us

Graham Keever – Policy Analyst

Graham.keever@senate.state.tx.us

Senator Judith Zaffirini (D-21)

1E.14

judith.zaffirini@senate.state.tx.us

(512) 463-0121

Warren von Eschenbach – Chief of Staff

Warren.voneschenbach@senate.state.tx.us

Jessica Ramos – Legislative Aide/Policy

Jessica.ramos@senate.state.tx.us

For More Information

Leave a Comment » | Doctor, Health Care, Hospital, Licensing, Medical Licensure, Peer Review, Physician, Physician Licensing | Tagged: Health Care, Health Care Provider, Hospital, Physicians | Permalink
Posted by Cynthia Marcotte Stamer

Latest OIG Audit Results Announcements Find Overpayments In High-Dollar Payments For Services Processed By Wisconsin Physicians Service and Interrupted Stays At Inpatient Rehabilitation Facilities

May 1, 2009

CMS Plans To Seek Recovery

As part of its continuing emphasis on audit and enforcement of federal health care program reimbursement and fraud rules, the Department of Health and Human Services Office of Inspector General (OIG) announced results of two regional audits. In both cases, OIG reported finding substantial overpayments, which it recommended should be recovered from billing providers.

In its Review of High-Dollar Payments For Services Processed By Wisconsin Physicians Service for Period January 1, 2004 Through December 31, 2006; where OIG found of the 100 sampled high-dollar payments that Wisconsin Physicians Service (WPS) made to Medicare Part B providers for services provided during calendar years (CY) 2004 through 2006, 77 were appropriate. The 23 remaining payments included net overpayments totaling $118,000, of which $96,000 for 20 payments had not been refunded at the start of our audit. Based on the sample results for our 3-year audit period, we estimated that WPS made 402 overpayments totaling $2.06 million to providers in Illinois, Michigan, Minnesota, and Wisconsin for Part B services. Based on these findings, OIG recommended that WPS (1) recover the $96,000 in identified overpayments, (2) review the 1,647 remaining high-dollar payments with potential overpayments estimated at $1.9 million ($2.06 million less $118,000 overpaid) and work with the providers that claimed these services to recover any overpayments, (3) consider reviewing high-dollar payments made for services provided after CY 2006 and recover any additional overpayments, and (4) improve internal controls related to manual claim processing. In written comments on our draft report, WPS described corrective actions that it had taken or planned to take to implement our recommendations.

In its Review of Interrupted Stays At Inpatient Rehabilitation Facilities For Calendar Years 2004 and 2005, OIG reported finding inpatient rehabilitation facilities (IRF) did not always bill correctly for interrupted stays with discharge dates during calendar years 2004 and 2005. OIG reports its nationwide computer match showed that 448 IRFs billed incorrectly for 986 interrupted stays during that period. If a Medicare inpatient is discharged from an IRF and returns to the same IRF within 3 consecutive calendar days, OIG reported the IRF should combine the interrupted stay into a single claim and receive a single discharge payment.

According to OIG, the correct value of the stays was $17.5 million, rather than the $21.7 million that the IRFs billed. As a result, OIG concluded Medicare made net overpayments of $4.2 million to the IRFs. The payment errors occurred because the IRFs did not have the necessary controls to identify or correctly bill interrupted stays. Additionally, until April 2005, the Common Working File did not have an edit designed to identify all interrupted stays billed as two or more claims. After its adoption, the new Common Working File edit effectively detected incorrectly billed interrupted stays and prevented overpayments to IRFs.

OIG recommended CMS direct its fiscal intermediaries to recover the $4.2 million in net overpayments that our review identified. In its written comments on our draft report, CMS concurred with our recommendation.

Health care providers should evaluate the implications of these and other audit findings and enforcement actions by OIG and CMS on their existing and past billing practices and take corrective acting as appropriate. For assistance with these or other health care compliance and risk management policies, practices or programs, assessing the strength of your controls in addressing these laws or other healthcare laws and regulations, or in addressing other compliance or health care concerns, please contact Cynthia Marcotte Stamer at cstamer@CTTLegal.com or (214) 270- 2402.

You can find more information about health care fraud and other health industry risk management concerns at CynthiaStamer.com.

For More Information

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog or by joining the join the SLP Health Care Risk Management & Operations Group on linkedin.com. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

Leave a Comment » | Health Care, Health Care Fraud, Health Care Provider, Physician, Reimbursement | Tagged: Health Care Provider, Hospital, Medicare, Physicians, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

Swine Flu Treatment & Pandemic Response Information Updated

April 30, 2009

With U.S. officials confirming the first swine flu attributed death in the U.S. yesterday and the number of U.S. reported cases expected to top 100 today, health care providers and organizations are initiating their pandemic response plans to help their organizations, people, patients and communities respond to the rapidly spreading epidemic.

Whether or not the swine flu outbreak reaches the level of an official pandemic, official reports reflect a legitimate need for concern. According to officials from the Centers for Disease Control and Prevention (CDC), victims of the swine influenza A (H1N1) virus infection already have been reported in 10 states, and the number of people known to be infected with the 2009 H1N1 influenza strain grew to 91 in the U.S. as of Wednesday. That number includes the first U.S. swine flu fatality: a 22-month-old child from Mexico who died of the illness Monday at a Houston, Texas hospital while visiting the United States. While swine flu victims have been reported in more than 11 countries, the majority of the incidents of the disease and deaths as of Wednesday morning had occurred in Mexico. Alarm that the outbreak will reach pandemic proportions continues to grow.

In response to the expanding crisis, the CDC yesterday released updated interim guidance on the use of antiviral agents for treatment and chemoprophylaxis of patients with confirmed, probable or suspected swine influenza virus infection and their close contacts. This guidance is only part of a host of growing resources for health care providers and other parties posted at http://www.pandemicflu.gov, the website founded by the U.S government to provide one-stop access to U.S. Government swine, avian and pandemic flu information. The website links to a growing list of special guidance provided by the CDC and other organizations for health care organizations and providers, public officials, schools, businesses, the public and others. Health care providers and other concerned parties should check this site regularly for updates about the latest guidance for responding to and treating swine flu.

Health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the guidance for health care providers and public health officials as health care providers, employers, and public entities contained in the pandemic and privacy planning workshop materials “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at http://www.cynthiastamer.com/documents/speeches/20070530%20Pan%20Flu%20Workplace%20Privacy%20Issues%20Final%20Merged.pdf.

Health care providers also should educate employees, patients and the public about the steps they should take to help minimize their risk of contracting the disease. While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting individuals to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu. Health care providers, employers, public officials and others should encourage patients, employees and their families and others to take the following steps and to coach others they know to do so as well:

Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too.
Stay home when you are sick to help prevent others from catching your illness. Cover your mouth and nose.
Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick.
Clean your hands to protect yourself from germs.
Avoid touching your eyes, nose or mouth.
Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth.
Practice other good health habits. Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

To help promote this message, health care providers, public officials and businesses may want to download and circulate some of the many free resources published by the CDC at http://www.cdc.gov/flu/protect/habits.htm.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting health care providers, public agencies, schools, businesses and others employers with these and other health care, workforce, crisis preparedness and response and related matters. If your organization needs assistance with assessing, , please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402. For additional information about the experience and services of Ms. Stamer and to access some of her publications, see www.cynthiastamer.com or www.cttlegal.com.

Leave a Comment » | Doctor, Health Plan, HIPAA, Hospital, Pandemic, Privacy, Uncategorized | Tagged: Health Care, Health Care Provider, Pandemic, Privacy, public health, Swine Flu | Permalink
Posted by Cynthia Marcotte Stamer

HIPAA Complaint Basis For Texas Whistleblower Claim

April 4, 2009

In a March 19, 2009 ruling, the U.S. District Court for the Northern District of Texas recently recognized that the Texas Whistleblower Act prohibits health care organizations run by the State of Texas from retaliating against employees for making good faith complaints of violations of the Privacy Rules of the Health Insurance Portability Act (“HIPAA”).Nevertheless, the court dismissed the wrongful discharge lawsuit brought by a former Terrell State Hospital security guard who alleged he was wrongfully fired for complaining to the U.S. Department of Health and Human Services Office of Civil Rights (”OCR”) that the Hospital violated the HIPAA Privacy Rules because the plaintiff had failed to present sufficient proof that he was terminated in retaliation for filing a HIPAA complaint.

Illustrative of a growing number of state law retaliatory discharge claims brought be employees claiming to have been retaliated against for complaining about alleged violations of HIPAA’s Privacy Rules, Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009), involved claims made by plaintiff Anthony Faulkner (”Faulkner”) that the Texas Department of State Health Services (”DSHS”); Terrell State Hospital; Texas DSHS Commissioner David L. Lakey, M.D.; Terrell State Hospital Superintendent Fred Hale; and Terrell State Hospital Risk Management Coordinator Clent Holmes, R.N. violated the Whistleblower Act and the First and Fourteenth Amendments by firing him seven days after he complained to OCR that Terrell State Hospital violated the HIPAA Privacy Rule by leaving admissions logs containing patient names and admission dates in a public area.

The Texas Whistleblower Act generally prohibits a state or local governmental entity from terminating or taking any other adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.See Tex. Gov’t Code § 554.002(a).While the Court affirmed that the Texas Whistleblower Act permits a public employee of the State of Texas discharged or otherwise retaliated against for complaining in good faith to OCR that his public employer or its employee violated the HIPAA Privacy Rules, the Court nevertheless granted summary judgment to the defendants.

According to the court, Faulkner’s failure to introduce evidence rebutting defendant’s affidavit that he was terminated for repeatedly violating rules requiring him to report suspected abuse of patients precluded him from proving his termination was in retaliation for his filing of the HIPAA complaint.Meanwhile, the court also ruled that Faulkner’s claims against the individual defendants should be dismissed as the Whistleblower Act only creates a cause of action against governmental entities and not their employees. Having found Faulkner’s constitutional claims also without merit, the District Court granted the defendant’s motion for summary judgment.

While the defendants were able to overcome Faulkner’s retaliatory discharge claim, the decision highlights the need for health care providers and other HIPAA covered entities to take appropriate precautions to defend against potential wrongful discharge, retaliation or other claims by employees or other service providers for complaining of possible HIPAA violations or for attempting to exercise other HIPAA-protected rights.HIPAA covered entities now should avoid engaging in actions that might unnecessarily fuel claims of retaliation. They also should carefully document and preserve evidence necessary to demonstrate the legitimacy of their disciplinary actions on an ongoing basis.

We hope you found this information helpful. If your organization needs assistance with understanding or managing its responsibilities or liabilities under HIPAA or other health care or employment laws or wishes to inquire about HIPAA training or other services and experience of Cynthia Marcotte Stamer, please contact Ms. Stamer via e-mail at Cstamer@Solutionslawyer.net or by telephoning Ms. Stamer at 469.767.8872.You also can review other helpful resources and register to receive other updates at CynthiaStamer.com.

Leave a Comment » | Corporate Compliance, Health Care, Health Care Provider, Health Plan, HIPAA, Hospital, Physician, Privacy | Tagged: Corporate Compliance, Data Security, Employer, Health Care Provider, HIPAA, Hospital, Privacy, retaliation, Retalitory Discharge, Whistleblower | Permalink
Posted by Cynthia Marcotte Stamer

HIT Policy Committee’s Nationwide Health Information Network Workgroup Meets December 16, 2009

HIT Committee To Meet October 14 In Washington, D.C.

Baucus Health Care Reform Proposal Calls For Significant Tightening In Tax-Exemption Rules

Baucus’ America’s Healthy Future Act of 2009 Calls For Significant Tightening of Tax Exemption Rules

Two Recent Criminal Prosecutions For HIPAA Privacy Rule Violations Signal Rising Criminal Enforcement Risks

North Texas Healthcare Compliance Professional Association September 8 Meeting Covers Provider Outreach Activities, New Data Breach Rules.

Pfizer To Pay $2.3 Billion For Fraudulent Marketing In Largest DOJ Health Care Fraud Settlement

Health Care Providers & Other HIPAA-Covered Entities & Their Business Associates Must Comply With New HHS Health Information Data Breach Rules By September 24

HHS Issues Interim Final Requiring Health Care Provider, Health Plans & Other Covered Entities To Give Breach Notifications When Certain Personal Health Information Breached Beginning In September; Register to Participate In September 10th Briefing on New Rules In Person or Via Telephone

CMS Publishes Updated FY 2010 Inpatient Rehabilitation Facility Prospective Payment System Final Rule

House Democratic Leaders Work To Resolve Differences In Committee Versions of Health Care Reform Legislation and Build Public Support During August Recess

Reassignment of HIPAA Security Rule Enforcement Signals Growing Seriousness About Enforcing HIPAA

Where To Read & Share Your Feedback About The Health Care Reform Legislation

Blue Dog Democrats Hold Key Voice On House Democrats Proposed Health Care Reform Plan; Contact Numbers Here

August 31 Deadline To Comment On CMS Proposed Changes To Hospital, ASC Payment Rules

House Democrats Introduce the “American’s Affordable Health Care Choices Act of 2009”

OCR Requires Health Care Providers To Improve Services for Limited English Speakers, Hearing Impaired As HHS Steps Up Enforcement of Federal Discrimination Laws

“Health Care Government Relations and Legislative Update” Focus On July 14 North Texas Healthcare Compliance Professional Association Meeting

53 Doctors, Health Care Executives & Beneficiaries Indicted For Involvement In A $50 Million Alleged False Billing Ring

Comments On Definition of Meaningful Use of EMR For Purposes of HITECH Act Provider Incentives Due June 26

FTC Issues FAQ Guidance On Red Flag Rules Applicable To Health Care Providers & Others

Democrats Unveil Comprehensive Health Care Reform Proposal, Move To Fast Track Enactment

June 11 Deadline To Comment On Proposal For Establishing HITECH Act Regional Extension Centers

HHS, Sesame Workshop, & Ad Council National Ad Campaign Reminds Americans Of Need to Continue To Protect Against H1N1 (Swine Flu) Virus

HHS, Sesame Workshop, and the Ad Council Launch National Campaign to Protect Families from H1N1 (Swine Flu) Virus and Stay Healthy

HHS Releases $30 Million to Help Medicare Beneficiaries Access Their Benefits In Vulnerable Communities

Newly Enacted FERA Amendments To False Claims Act Signal New Risks For Health Industry Organizations & Others

Stamer To Discuss “Making Gainsharing Work: Managing Physician Performance” At June 17, 2009 Dallas Bar Association Health Law Section Meeting

CMS Proposes Policy And Payment Rate Changes For Inpatient Stays In Acute Care And Long-Term Care Hospitals In Fy 2010

Texas Senate Committee Schedules May 5 Hearing On Proposed Texas Medical Board Reforms

Latest OIG Audit Results Announcements Find Overpayments In High-Dollar Payments For Services Processed By Wisconsin Physicians Service and Interrupted Stays At Inpatient Rehabilitation Facilities

Swine Flu Treatment & Pandemic Response Information Updated

HIPAA Complaint Basis For Texas Whistleblower Claim

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