Wyoming physicians are sometimes confronted with the awkward and difficult choice of whether to bring a colleague’s potentially unprofessional, unethical, or harmful conduct to light by making a report to a hospital’s peer review committee, or even the Wyoming Board of Medicine in some circumstances. However, physicians are often unsure whether such a report is justified, and whether it is ethically or legally required. Whether a report is justified or ethically required in any particular situation is beyond the scope of this article–however, we can shed light on whether it is required by Wyoming law.

The Rise of Ketamine Clinics and Ketamine-Assisted Therapy

Ketamine clinics have been on the rise in the U.S. in recent years. As a byproduct of the common practice of prescribing drugs “off-label,” these clinics are not necessarily new in their operating model. Off-label use is the utilization of pharmaceutical drugs for, among other factors, unapproved indications. An approved indication occurs when the Food and Drug Administration (FDA) formally approves a given drug for a named medical condition.

Provider Relief Fund Update

In the ever-evolving landscape of COVID-19 regulations, Texas has taken a unique stance with Senate Bill 7, which was signed into law by Texas Governor Greg Abbott on November 10, 2023. This legislation specifically addresses COVID-19 vaccination mandates in the private sector, introducing a series of measures aimed at protecting employees’ rights while balancing public health concerns.

When the same health plan administrator both administers a benefit plan and pays the benefits due under the plan, it is considered by courts to have a structural conflict of interest.  That conflict of interest is not problematic on its own – it is perfectly legal, and it is not a breach of fiduciary duty.  However, when a plan member files a lawsuit challenging the administrator’s denial of the member’s benefits, a court can consider the conflict of interest as a factor in whether the administrator’s denial was arbitrary and capricious.

Over the last several years, courts have provided administrators and their attorneys with guidance on how to limit the impact of this common structural conflict of interest.  When defending against denial of benefits claims under ERISA, 29 U.S.C. § 1132(a)(1)(B), defendant plan administrators should be aware of whether the conflict of interest exists and address it proactively to avoid negative inferences.

On November 6, 2023, the Office of Inspector General (“OIG”) issued its long-awaited General Compliance Program Guidance (“Guidance”) “to help advance the industry’s voluntary compliance efforts in preventing fraud, waste, and abuse in the health care system.” Although the Guidance is nonbinding, it reflects the OIG’s expectation that compliance programs become increasingly sophisticated in their approach to identifying and managing compliance risks as healthcare delivery and payment models continue to evolve.

In July of this year, the California Office of Health Care Affordability (“OHCA”) released draft regulations requiring the advance reporting of certain healthcare transactions that could affect the cost of healthcare or adversely impact the healthcare market in California. These reporting requirements implement provisions of amendments to the California Health and Safety Code enacted in 2022, which authorized OHCA to review proposed transactions and, if appropriate, undertake a detailed cost and market impact review (“CMIR”) to determine the potential impact on the health care economy of California.

Many long-term care residents live in Missouri nursing homes for years. But occasionally circumstances may change such that it is no longer appropriate for the resident to continue to reside at the facility. In certain cases, nursing homes may discharge or transfer a resident even if the resident does not consent to the discharge or transfer – this is known as an “involuntary discharge” or an “involuntary transfer.” In this case, the resident has the right to appeal the involuntary discharge or transfer.

Evaluation and management (E/M) services have been called “the core” of healthcare billing.[1] E/M is a catch-all claim, allowing medical professionals to bill for diagnosing or treating nearly any illness or injury. E/M is also divided into fairly subjective levels depending on complexity, and the differences between levels is often merely a difference of opinion. While the DOJ has brought cases based on disputes over E/M services before, those cases are typically civil and part of a more complex upcoding or unbundling scheme.[2] This is because nearly everything involving some effort expended by a physician could arguably justify that physician believing the E/M service was proper, and therefore criminal cases requiring scienter evidence that proves the case beyond a reasonable doubt are incredibly rare.

Yet one of those rare cases went to trial this month.

Distances in rural health care can be hard to fathom. A 2018 study found it took rural Americans, on average, 17 minutes to get to a hospital, but only 10 minutes in an urban center.[i] The distance between rural hospitals can be vastly further – in 2019, a National Institutes of Health study noted that hospitals in one rural state were generally at least 50 miles apart.[ii] These areas have been described (without meaning to be pejorative) as “health deserts.”[iii] Small populations, and a growing shortage of physicians in rural areas,[iv] often lead to hospitals in these areas having only one or two physicians in a particular specialty. Advanced health practitioners (AHP’s) with specialty training, such as psychiatric nurse practitioners or certified nurse midwives, can be an excellent way to preserve access to specialty care, particularly when lack of physician coverage would otherwise mean the hospital must divert or transfer emergency patients.

Large managed care plans have been squarely in DOJ’s crosshairs for years, but a late July 2023 Justice Department settlement agreement with one regional healthcare provider’s Medicare Advantage Plan offers a glimpse into an issue health systems and providers with their own managed care plans need to track.

This post examines the recent DOJ settlement, analyzes the trend towards enforcement of provider-owned managed care plans, and offers a prediction on what might be coming on the enforcement side.