Hurricane Harvey. On August 26, 2017, the Secretary of Health and Human Services (HHS) issued a waiver of certain compliance requirements, retroactive to August 25, 2017, for providers in areas of Texas affected by Hurricane Harvey.  A similar waiver was issued August 28, 2017, for providers in Louisiana, retroactive to August 27, 2017.  Along with these waivers, the Secretary of HHS issued disaster declarations for the states of Texas and Louisiana pursuant to section 319 of the Public Health Service Act, and the President issued disaster declarations for the states of Texas and Louisiana pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

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 May 27, 2017 the Texas Governor signed SB 1107 into law, making certain telehealth arrangements possible after the Texas Medical Board imposed limitations on telehealth services in June 2015.  Specifically, SB 1107 adds new §§111.005-7 to the Texas Occupations Code allowing a physician to prescribe drugs as part of a telehealth encounter involving only telephonic or text-based communication between the physician and patient if:  (i) the physician has access to patient medical records and uses either clinically relevant photographic or video images or the patient’s relevant medical records; and (ii) the physician provides the patient with guidance on appropriate follow-up care and, if the patient consents and has a primary care physician, provides to the patient’s primary care physician within 72 hours after the encounter a medical record or other report containing an explanation of the treatment provided by the physician, including the physician’s evaluation, analysis, or diagnosis.

On June 12, 2017, the Department of Health and Human Services Office of Inspector General (OIG) published a report with the objective of determining whether the Centers for Medicare & Medicaid Services (CMS) made proper incentive payments to providers for “meaningful use” of a certified electronic health record (EHR).  The report, entitled “Medicare Paid Hundreds of Millions in Electronic Health Record Incentive Payments That Did not Comply with Federal Requirements,” estimates that CMS improperly paid $729 million in EHR incentive payments to providers who did not actually comply with the requirements of meaningful use.

The Department of Justice (DOJ) recently announced a $155 million settlement agreement with an electronic health records (EHR) vendor, eClinicalWorks (ECW), to settle False Claims Act allegations against the company initially brought by a whistleblower/qui tam relator.  The whistleblower was a software technician for the City of New York City who was implementing ECW software in a prison healthcare system.  The DOJ subsequently intervened and filed suit.  The May 31, 2017 announcement is the first of its kind, holding an EHR vendor accountable for claims made about their certifications.

Provider clients of ECW relied on the assertions made by ECW that their EHR software met the criteria of the Office of the National Coordinator of Health Information Technology (ONC) certification program.  Based on ECW’s software and the assertion of EHR certification, providers believed they had achieved “meaningful use” and received incentive payments under the Medicare and Medicaid EHR Incentive Programs. 

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.

On May 23, 2017, Texas Governor Greg Abbott signed Senate Bill (SB) 507, expanding the current law dealing with “balance billing.”

Balance billing occurs when an insured patient receives care from a physician, hospital or other healthcare provider, who is not part of a patient’s health plan provider network. The out-of-network provider then bills the…

Beginning on June 1, 2017, health care providers of services and suppliers must submit all information necessary for the Centers for Medicare and Medicaid Services (“CMS”) to analyze actual or potential violations of the federal physician self-referral law (the “Stark Law”) using approved forms designed to streamline the CMS Voluntary Self-Referral Disclosure Protocol (the “SRDP”).  If you are currently working on a self-disclosure filing for CMS, you must convert that disclosure to this new format or risk CMS rejecting the disclosure in its entirety. The new forms, contained within Form CMS-10328 available here, must be used for all voluntary Stark Law self-disclosures submitted on or after June 1, 2017, except disclosures by physician-owned hospitals and rural providers regarding a failure to disclose physician ownership on the provider’s website or in any public advertisement.[1]

The United States Supreme Court has long upheld the validity and enforceability of arbitration agreements. Thus, it was no surprise when the Court reversed a decision from the Kentucky Supreme Court that declined to recognize arbitration agreements executed by individuals pursuant to powers of attorney. In Kindred Nursing Centers LP. v. Clark, the Court…

According to an article published by USA Today, nearly $1 trillion in federal cuts to the Medicaid program approved by House Republicans threaten getting low income and special needs children covered by insurance. Concerns are magnified by the Sept. 30 deadline for CHIP reauthorization, which some worry will be used as a bargaining tool to…