On April 7, 2020, the U.S. District Court for the Western District of Arkansas granted summary judgment in favor of the U.S. Department of Health and Human Services (“DHHS”) in the closely-watched Northport case. In this case, certain nursing facility industry plaintiffs challenged the enforceability of the most recent iteration of the Centers for Medicare & Medicaid Services’ (“CMS”) rule governing the use of pre-dispute arbitration agreements with residents in long-term care (“LTC”) facilities that participate in the Medicare or Medicaid programs. In finding for the government, the Northport court held that the rule was a valid exercise of CMS’s authority under the Administrative Procedures Act (“APA”), was adopted in accordance with federal procedural rules, and does not conflict with the Federal Arbitration Act (“FAA”).
Continue Reading Federal District Court Upholds CMS Pre-Dispute Arbitration Rule
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Assessing and Allocating the Risks of Demolition by Implosion
Clearing a building site inside a crowded city can often be efficiently done by “imploding” existing structures utilizing high explosives. While the science of demolition by implosion is mature and can be implemented safely, neighboring property owners have legitimate concerns about damage from flying debris, dust, ground vibration and air blast overpressure. At the same…
Social Media and Health Care: “The Good, the Bad and the Ugly”
There can be no debate that social media has successfully invaded every aspect of our culture and our lives. I am sticking with a fairly mainstream definition: Social media includes the various online technology tools that enable people to communicate easily via the internet to share information and resources.
To the extent you find that…
Implementation of the Physician Payments Sunshine Act Delayed
On May 3, 2012, the Centers for Medicare and Medicaid Services (CMS) Blog posted a delay to the implementation of the Physician Payments Sunshine Act. CMS stated that, in order to provide time for organizations to prepare for data submission and to sufficiently address the important input CMS received during the rulemaking process, CMS will…
Should Your Lease Include an Arbitration Clause?
Arbitration clauses in lease agreements have become commonplace and are often included as a matter of course. In theory, arbitration is supposed to be less expensive, provide faster results, and generally be more efficient than traditional litigation. In reality, many have found arbitration to be just as expensive as litigation, if not more so, and…
$44 Million Judgment Against Tuomey Hospital for Stark Violations Overturned
On March 30, 2012, the Fourth Circuit reversed a $44 million judgment against Tuomey Hospital (Tuomey) for contracts that Tuomey had with physicians that allegedly violated the federal Stark law. Stark law prohibits physicians from referring patients to health care entities for designated health services that will be paid for by Medicare if the physician,…
Texas Legislature Enacts New Laws Specifying Requirements for Lien Waivers and Releases
The Texas Legislature has enacted new laws specifying requirements for lien waivers and releases. These new laws protect laborers and materialmen by preserving their lien rights until they get paid. The old, common practice of forcing subcontractors to sign otherwise enforceable “blanket lien waivers,” in exchange for the privilege of working on a project, is…
The Texas Medicare Administrator Contractor Changes
The Texas Medicare Administrator Contractor changes from TrailBlazer to Novitas (formerly Highmark Medicare Services)
For many years, TrailBlazer Health Enterprises, LLC (TrailBlazer) was both the fiscal intermediary (Part A) and carrier (Part B) for providers located in Texas. TrailBlazer was responsible for the fee-for-service Medicare payments, local coverage decisions and physician enrollment into the Medicare…
New Day for Groundwater Rights in Texas (Part 2)
Here are some of the likely effects on landowners of the new Edwards Aquifer Authority v. Day decision by the Texas Supreme Court:
(1) Landowners within the jurisdiction of the Edwards Aquifer Authority, who prior to this thought that they had no hope of pumping more groundwater than allowed by permits based on their historic…
OSHA Update: Needlesticks and Sharps Injuries, Workplace Violence, and Workplace Injuries
Needlesticks and Sharps Injuries
Congress passed the Needlestick Safety and Prevention Act (the NSPA) in 2001. The NSPA directed OSHA to revise its Bloodborne Pathogens Standard to require employers to provide safety-engineered devices to workers who are at risk for exposure to bloodborne pathogens, to review the control plans describing employee protection measures at least…