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The United States Department of Justice (“DOJ”) has intervened in a False Claims Act (“FCA”) case against a Florida compounding pharmacy, Diabetic Care Rx, LLC d/b/a Patient Care America (“PCA”), and, in an unexpected move, named PCA’s private equity sponsor and controlling shareholder, Riordan, Lewis & Haden, Inc. (“RLH”), as a co-defendant. The DOJ complaint accuses PCA, RLH and two PCA officers/directors (who were also RLH partners) of overseeing a kickback scheme which DOJ alleges induced referrals that resulted in TRICARE paying over $68 million for medically unnecessary compound drug prescriptions. DOJ alleges the illegal scheme was designed by RLH.

Continue Reading DOJ Adds Private Equity Firm to False Claims Act Complaint

Earlier this month, Uber released its new program, Uber Health. In a nutshell, Uber Health is a program that facilitates patient transportation to and from appointments with healthcare providers. This post expands on a previous post regarding patient ridesharing programs.  Continue Reading Need a Lift? Uber Enters the Healthcare Arena

In the last two months, the healthcare industry has seen both federal and state efforts to further regulate healthcare worker safety. Stakeholders and other jurisdictions are keeping an eye on these developments, which could spread to other states, as well.

While the federal legislation is focused on reducing workplace violence at healthcare facilities, an initiative in California will decide what additional regulations should be imposed to remove surgical plume and limit the exposure of healthcare professionals to surgical smoke in the state’s operating rooms. Continue Reading In healthcare worker safety, California leads the way

The debate over providing transportation to patients is nothing new. Hospitals, doctors and other providers have long struggled with whether they can provide free or discounted taxis, shuttles, metro cards or other transportation means to patients to come to appointments and receive care. On one hand, there is evidence that without reliable transportation options, patients are more likely to miss preventative, primary care appointments, increasing the risk of more costly and unnecessary medical services down the road. On the other hand, certain federal laws like the Anti-Kickback Statute (AKS) and Civil Monetary Penalty (CMP) law have given providers serious concerns that such transportation services might be considered an illegal “kickback” to gain patients, or an illegal inducement to receive care. Continue Reading What Health Care Providers Need to Know About Patient Rideshare

The Austin City Council is scheduled to vote Thursday, February 15 on a proposed city ordinance which would require all private businesses in the city to offer employees at least 8 paid sick days (or 64 sick leave hours) annually.

Under the proposed ordinance, employees would accrue 1 hour of paid sick leave for every 30 hours worked, with the ability to start using the sick leave as soon as it is earned.  If passed, eligible workers would be able to use sick time if they are hurt or ill, need to care for a family member who is injured or sick, require medical attention or have a doctor’s appointment for preventative care, among other things.  If an employee does not utilize all earned sick leave during the applicable year, any accrued, unused leave may be “rolled over” to the next year. Continue Reading Austin City Council to Consider Mandatory Paid Sick Leave

On January 10, 2018, citing costs associated with record increases in the number of qui tam actions filed under the False Claims Act, the Department of Justice issued a memorandum[1] to certain DOJ attorneys, strongly signaling the Department’s intent to liberalize its use of section 3730(c)(2)(A) to seek dismissal of qui tam actions.

In the recently leaked memo, Michael Granston, Director of the Fraud Section of DOJ’s Commercial Litigation Branch, outlines “a general framework for evaluating when to seek dismissal” by identifying seven factors that have supported DOJ’s previous successful dismissal requests and emphasizes that the Department views its dismissal authority as one subject only to “highly deferential” review by the courts. The memo suggests DOJ will seek dismissal of these actions more often, making use of its authority to seek dismissal as “an important tool to advance the government’s interests, preserve limited resources, and avoid adverse precedent.” As further indication that the Department intends to pursue aggressively any available means of dismissal of these cases, the Director also recommends asserting in the alternative other independently available grounds for dismissal or requesting partial dismissal where appropriate, and the memo reminds attorneys that dismissal may occur at any stage of the proceedings, depending on the circumstances. The Director also stresses the importance of communication between the DOJ, the affected agency, and relators as a means of encouraging voluntary dismissal. Continue Reading DOJ Signals More Liberal Exercise of Power to Dismiss Qui Tam Actions under the FCA

With the New Year underway, the deadline is quickly approaching for HIPAA covered entities to file their annual breach reports with the U.S. Department of Health & Human Services Office for Civil Rights (“OCR”).

While breaches involving 500 or more individuals must be reported no later than 60 calendar days from the date of discovery, breaches involving less than 500 individuals can be documented throughout the course of the year and submitted 60 days after the end of the calendar year.[1] This means that covered entities have until February 28, 2018 to complete their annual breach reporting obligations.

If you need assistance completing or filing your breach reports, please contact Julie Sullivan at 303.749.7255 or your usual Husch Blackwell attorney.

[1] 45 C.F.R. §§ 164.408(b),(c), available at https://www.law.cornell.edu/cfr/text/45/164.408.

As is par for the course with the start of a new presidential administration, many changes to employment laws are anticipated, with several already underway. The most recent of which is the test used to determine whether interns must be classified as employees for purposes of the Federal Labor Standards Act. The question of when a person stops being an intern and starts being an actual employee has long been a gray area. On January 5, 2018, the U.S. Department of Labor (DOL) announced in a press release it was rescinding its previous six-part test used to determine whether interns at for-profit companies are employees and thus subject to federal minimum wage and overtime laws. Instead, the DOL will now use the so-called “primary beneficiary” test favored by several appeals courts. Continue Reading Department of Labor Announces Stricter “Primary Beneficiary” Test for Interns

The National Labor Relations Board (“NLRB”) recently adopted a new and employer welcomed standard for determining whether facially neutral workplace rules unlawfully interfere with the exercise of employee rights that may be protected by the National Labor Relations Act (“NLRA”).

Going forward, the NLRB will consider the following factors:

  • the nature and extent of the potential impact on NLRA rights, and
  • legitimate justifications associated with the rule.

Continue Reading NLRB Establishes New Test for Determining Whether Workplace Rules Violate the NLRA

The Inspector General took an unprecedented step Tuesday, rescinding a favorable Advisory Opinion first issued in 2006 that had provided assurances to the patient assistance charity, Caring Voice Coalition, that its drug subsidy program would not expose the organization to liability under the Anti-Kickback Statute. Continue Reading OIG Rescinds Favorable Advisory Opinion for Patient Assistance Charity, Caring Voice Coalition