On July 26, 2022, Judge Jeremy Kernodle of the Eastern District of Texas affirmed that certain parts of the Interim Final Rule Part II implementing the No Surprises Act (the Act) were invalid. This ruling is nearly identical to Judge Kernodle’s February decision in Texas Medical Association & Corley v. US Dept. of Health and Human Services. This decision vacated a portion of the Interim Final Rule that required arbitrators to give more weight to the out-of-network rate, including what is called the Qualified Payment Amount (QPA), over other permissible factors. The rule’s requirement ultimately contradicted the Act’s direction that arbitrators consider various factors, and not weight any one more heavily than another. Continue Reading Eastern District of Texas Invalidates Parts of Implementing the No Surprises Act

Workplace violence has become a hot topic in today’s discourse; however, workplace violence is not just headline fodder for media outlets. The trend is well-documented and especially felt by the healthcare industry which continues to experience the brunt after the onslaught of COVID-19. In 2018, 73% of all nonfatal workplace violence incidents involved healthcare workers. A late 2020 survey reported that 20% of nurses reported they were facing an increase in workplace violence after the COVID-19 pandemic began. Another study reported a 14.6% increase in workplace violence at New Jersey hospitals over the prior three years. Continue Reading Code Blue! — Violence in the Workplace

Each July, the Medicare Administrative Contractors issue notices of a 2% Medicare payment reduction to those providers who did not meet quality data reporting requirements. Those notices have been sent. In this episode, Husch Blackwell’s Meg Pekarske and Jacob Harris talk about the issues providers faced in 2021 and how to pursue an appeal of the 2% payment reduction. Listen to the full episode here: https://www.huschblackwell.com/newsandinsights/hospice-audit-series-its-that-time-of-year-again-quality-data-reporting-determinations-raise-new-and-recurring-issues

Background  

In direct response to the significant challenges experienced by long term care (LTC) facilities throughout the COVID-19 pandemic, the Biden-Harris Administration announced its commitment to improving safety and quality of care. During the March 1, 2022 State of the Union address, President Biden reaffirmed the Biden-Harris Administration’s commitment to protecting residents and staff of nursing homes. The Biden-Harris Administration has since taken steps to establish new minimum staffing ratios within nursing or skilled nursing facilities (SNFs), increase scrutiny of poorly performing nursing homes, and improve quality care transparency for customers seeking a SNF. Continue Reading Employment Considerations for Long Term Care Facilities under the Biden-Harris Administration

As many hospices continue to diversify into new business lines, staying abreast of enforcement trends outside of hospice is more important than ever. Home health in particular, is receiving significant government scrutiny. In this episode, Husch Blackwell’s Meg Pekarske talks with Bryan Nowicki and Erin Burns about a new round of home health audits being conducted by the Office of Inspector General for the Department of Health and Human Services. Tune in here: https://www.huschblackwell.com/newsandinsights/beyond-hospice-the-oig-renews-its-scrutiny-of-home-health-agencies

On June 27, 2022, the United States Supreme Court, by a vote of 9-0, overturned the lower circuit courts’ rulings affirming the convictions of two physicians of the unlawful distribution of controlled substances. In Ruan v. United States (Case No. 20-1410), consolidated with Kahn v. United States (Case No. 21-5261), the Supreme Court was asked to determine whether a physician may be convicted of unlawful distribution of controlled substances under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, the physician “reasonably believed” or “subjectively intended” that his or her prescriptions fall within that course of professional practice. The Controlled Substances Act makes it unlawful for “any person knowingly or intentionally … to manufacture, distribute, or dispense” a controlled substance, “except as authorized.” A prescription is authorized when it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a). The “vague and highly general regulatory language” left open the question of what conduct would fall under the statute’s exception and thus be considered legal. Continue Reading Supreme Court Reaffirms Mens Rea Requirement in Controlled Substance Health Care Fraud Cases and Government Burden to Prove Subjective Bad Faith

As the health care industry shifts from fee-for-service to value-based arrangements, providers are facing a lot of challenges. A provider’s relationship with payers is often strained by the new business model, and a provider’s ability to collaborate with payers has never been more important.

On this episode of Value-Based Care Insights, host Daniel J. Marino and I discuss how providers can successfully navigate value-based contracting with payers in a mutually beneficial way. Tune into the full episode here: https://www.luminahp.com/podcast/decoding-legalese-value-based-contracts.

When confronted with a complaint, allegation or event that implicates a potential Medicare overpayment, hospices have an affirmative duty under the federal 60-day repayment rule to conduct an investigation and refund any overpayment. In this episode, Husch Blackwell’s Meg Pekarske and Andrew Brenton share tips and tools for conducting internal investigations and determining when an issue implicates payment. Tune in here: https://www.huschblackwell.com/newsandinsights/nuts-and-bolts-of-a-repayment-investigation-keys-to-conducting-investigations-under-the-60-day-repayment-rule

Hospice Audit Series

Audits are a fact of life for hospices—it’s not a matter of “if” a hospice will be audited, but “when.” The alphabet soup of audits has expanded, from UPICs to SMRCs, CPIs, TPEs and more. With the hospice carve-in to Medicare Advantage, MAO audits will join the list. The recent pause in audits as a result of the COVID pandemic hints at increased activity as the pandemic wanes. In this series, Meg Pekarske and Bryan Nowicki of Husch Blackwell’s Hospice Audit team deconstruct the most recent developments in hospice audits, providing insight and guidance on the why, when and how of audits and—most importantly—what hospices can do about it. Continue Reading Hospice Audit Series | Painting the Picture: How to Advocate for Clinical Hospice Eligibility in the Audit Appeal Process

We are pleased to share that the 2022 Chambers USA guide published and the Healthcare team achieved outstanding results. We earned Band 1 recognition in Missouri and Texas, and Band 2 Nationwide! Our healthcare lawyers ranked across practice areas include: Continue Reading Husch Blackwell Grows Rankings in 2022 Edition of Chambers USA