Hospitals & Health Systems

Under Texas law, physicians that will be called upon to complete and sign a death certificate in Texas are required to register to file the certificate electronically with the Texas Department of State Health Services. The Texas Medical Board is authorized to take action against providers who do not register for electronic filing of death certificates under Tex. Health and Safety Code §193.005. Until recently, registration and filing of death certificates was made through the Texas Electronic Registrar (“TER”).

On January 1, 2019, the Texas Department of State Health Services replaced TER with a new platform, the Texas Electronic Vital Events Registrar (“TxEver”). TxEver supports all vital events operations, including reporting, registration, and amendments of birth and death records, and represents one of the first fully integrated vital records systems nationwide. TxEver will additionally support the Texas remote birth issuance system, which allows users to obtain copies of birth certificates without having to visit the vital records offices in their county of birth.

Hospitals are not happy with CMS’ recent changes to hospital outpatient payments.  Two hospital associations and three hospitals claim in a federal lawsuit filed December 4, 2018, that CMS had no authority to change the payment scheme for off-campus provider-based departments (PBDs).  The change took effect January 1, 2019, and is estimated to reduce payments to hospitals by $380 million in the first year of a two-year phase-in period.

The plaintiffs, including the American Hospital Association and the Association of American Medical Colleges, are seeking judgment that the payment change is unenforceable as well as preliminary and permanent injunctive relief.  The complaint against US Department of Health and Human Services Secretary Alex Azar was filed in the U.S. District Court for the District of Columbia.

The plaintiffs’ assert that the reduced payments threaten patient access to care and harm the providers’ ability to meet the health care needs of their patients, including some of the most vulnerable populations. 

The National Labor Relations Board (the “Board”) recently held that a California hospital illegally maintained a dress code policy that effectively prohibited employees from wearing pins and badge reels with union insignia.  The hospital’s policy at issue required that “[o]nly [employer] approved pins, badges, and professional certifications may be worn.” In addition, employees were only permitted to wear identification badge reels with “approved logos or text.”

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.

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,…

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.

On November 2, 2017, the House Ways and Means Committee released draft text of H.R. 1, the Tax Cuts and Jobs Act, proposing significant changes to the Internal Revenue Code. Of particular concern to private hospitals, healthcare systems and educational institutions operating as 501(c)(3) entities is the bill’s proposed termination of the tax exemption available…

On July 13, the Centers for Medicare & Medicaid Services (“CMS”) put out its 2018 Medicare Hospital Outpatient Prospective Payment System Proposed Rule. The Rule proposes, among other things, to dramatically reduce Medicare Part B reimbursement of drugs procured by hospitals at 340B prices—from the current rate of Average Sales Price (“ASP”) plus 6 percent to ASP minus 22.5 percent.  By CMS’s estimate, this could result in savings to the Part B program of $900 million and a corresponding cut to the 340B hospitals which currently receive those payments (and ostensibly use them in furtherance of the 340B program’s goal of assisting safety net providers in stretching their scarce resources).  

On June 5, 2017, the U.S. Supreme Court held that the employee benefit plans of church-affiliated hospitals and healthcare facilities may be exempt from the federal Employee Retirement Income Security Act of 1974 (ERISA), in Advocate Health Care Network et al. v. Stapleton et al. More background information can be found in our December legal alert on this case.