Husch Blackwell attorney Joe Geraci was recently quoted in an AIS Health Reform Week article titled HHS’s Statements on Exchange QHPs Stir Confusion, Complicate Copay Assistance.  The article reports that the Obama administration is sending mixed messages on whether Qualified Health Plans (QHPs) on the insurance exchanges will be considered federal health programs.  A…

On November 13 and November 18, the federal district court handed down separate rulings on summary judgment motions in a Florida Stark Law case that many consider the new Tuomey–U.S. ex rel. Baklid-Kunz v. Halifax Medical Center. In the first decision, the Court granted the U.S. partial summary judgment on the Stark violation with respect to compensation paid to certain medical oncologists employed by the hospital. In the second decision, the Court denied the hospital’s motion for summary judgment with respect to certain neurosurgeons employed by the hospital. Both decisions tee up important hospital/physician employment issues for trial.

The case stems from a qui tam False Claims Act lawsuit filed in 2009 in which Elin Baklid-Kunz, the former compliance officer, made allegations regarding Halifax Hospital Medical Center (“Halifax Hospital”) and Halifax Staffing, Inc. (“Halifax Staffing”) (collectively, “Halifax”). The compliance officer alleged that Halifax:

  1. Had financial relationships with physicians that did not meet a Stark exception, and as a result the physicians inappropriately referred Medicare services to Halifax; and
  2. Inappropriately billed other services to Medicare.

The Department of Justice chose to intervene in the lawsuit in 2011 with respect to the Stark Law issues. Halifax filed a Motion for Summary Judgment and the U.S. filed a Motion for Partial Summary Judgment with respect to the Stark Law issues.

Ruling on the Government’s Motion for Partial Summary Judgment

Two different compensation arrangements were the subject of these decisions. In the first decision, the Court considered the Government’s motion for partial summary judgment with respect to compensation paid to the medical oncologist employed by Halifax and the resulting designated health service referrals from those physicians. The alleged Stark violations were the result of employment agreements entered into with six medical oncologists in 2005 that provided for an incentive bonus pool equal to 15% of the “operating margin for the Medial Oncology program” of the Hospital. Even though the physicians were permitted to divide that pool among themselves as they determined, which they did based on individual production, the Hospital admitted that the pool included revenue from services that were not personally performed by the medical oncologists, such as fees related to the administration of chemotherapy.

Employers should be aware of important year-end action items relating to qualified retirement plans and health and welfare plans.  Husch Blackwell attorney Uche A. Enemchukwu detailed a number of these obligations in an e-alert and noted that some require immediate attention to satisfy the December 2, 2013 deadline.  Other items must be addressed before the…

New research shows that hospitals with higher nursing levels have fewer readmissions and lower penalties for excessive readmission rates.  A new study, which appeared in the October issue of Health Affairs, found that hospitals with higher staffing levels had a 25 percent lower chance of being penalized for readmission rates when compared to hospitals with lower staffing levels.…

When was the last time you thought about your compliance program? As we know, an effective compliance program is important for healthcare companies. It’s also important to review your compliance program periodically and update it according to the latest guidance. OIG guidance and recent Corporate Integrity Agreements (CIAs) are informative about what the OIG is…

Husch Blackwell attorney Joe Geraci weighed in on recent guidance provided by HHS related to whether the federal anti-kickback statute applies to patients who purchase subsidized health insurance products on the new state or federal healthcare exchanges.  Specifically, the anti-kickback regulations apply to “federal healthcare programs” that are defined to include the following:

Any plan

…

Last week, U.S. Senators warned hospitals that higher rates of back surgery may indicate a kickback if the purchase of spinal devices has increased as a result of physician ownership of device distributors.  Senators Orrin Hatch (R-Utah), Max Baucus (D-Mont.) and Chuck Grassley (R-Iowa) issued the bipartisan statement based on an HHS report that showed a direct correlation between…

CMS continues to emphasize readmissions as a marker of quality.  CMS research shows that approximately 45% of hospital admissions among those receiving either Medicare skilled nursing services or Medicaid skilled nursing services could have been avoided.  Husch Blackwell attorneys Mark Chouteau and Michael Crowe recently authored an article in the October issue of AHLA Connections…

In late February of this year, an employee at an independent living facility in Bakersfield, California was asked by a 911 dispatcher to begin CPR on an 87-year-old resident.  Despite the 911 dispatcher’s pleas, the employee refused.  The employee was allegedly following a facility policy that, in the event of a health emergency, the staff is to immediately call EMS for assistance and wait with the resident. The residents are informed of and agree to this policy on admission. The resident ultimately passed away.  Although the resident’s family expressed satisfaction with the manner in which the facility handled the situation, the situation generated a great deal of negative publicity. This situation also caused many assisted living facilities (“ALFs”) to question whether they are required to provide CPR. Unlike skilled nursing facilities, ALFs provide a lower level of care to their residents and often do not have nursing personnel on staff 24-hours per day.

The answer to the question of whether an ALF can have a policy like the one at issue in the California situation depends largely on state law.  At least 18 states have explicit laws requiring CPR-trained staff members in ALFs.  Oregon recommends CPR training, but does not require it.  Montana law provides that CPR-trained staff need only be on duty if the facility offers CPR, impliedly authorizing a “no-CPR” policy.  Kentucky is similar but more explicit:  ALFs must train staff on CPR “unless the policies of the [ALF] state that this procedure is not initiated by its staff….” 

As the government shutdown drags on, some CMS activities are grinding to a halt. CMS recently released a memo to State Survey Agency Directors regarding which CMS survey and certification activities will continue and which ones have been put on hold for providers of all types. According to the memo, complaints that are triaged as…