Archives: Physicians and Allied Health Professionals

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CMS Unexpectedly Withdraws Three Proposed Rules

The Centers for Medicare and Medicaid Services (CMS) recently announced the withdrawal of three proposed rules that, in one case, had been pending since 2014. The first proposed rule that CMS decided to scrap was proposed in December of 2014 that would have ensured same-sex spouses were recognized and afforded equal rights as opposite-sex couples in Medicare and Medicaid participating facilities. The proposed rule was initiated to ensure that the Medicare conditions of participation and conditions of coverage were consistent with the U.S. Supreme Court decision in United States v.

CMS Proposes to Cancel EPM and CR Bundled Payment Programs and to Reduce Mandatory Participation in CJR Model

The Centers for Medicare and Medicaid Services (CMS) recently published a proposed rule (Proposed Rule) to scale back its mandatory bundled payment programs. Under the Proposed Rule, CMS would cancel the episode payment models (EPMs) and cardiac rehabilitation incentive payment model (CR), and it would also reduce the mandatory participation in the comprehensive care for joint replacement model (CJR). CMS stated that it believed the proposed changes are necessary because the continued mandatory participation in bundled payment models may impede CMS’s ability to engage providers in future, voluntary initiatives. CMS …

Third Circuit Recognizes Escobar “Heightened Materiality Standard” in Dismissal of False Claims Act Case Tied to Avastin

In May 2017, the U.S. Court of Appeals for the Third Circuit relied on the “heightened materiality standard” endorsed by the U.S. Supreme Court in its 2016 Escobar decision in dismissing a False Claims Act (FCA) whistleblower suit filed against pharmaceutical giant Genentech related to its billion dollar cancer drug Avastin. In Escobar, the Supreme Court upheld the validity—“at least in some circumstances”—of the “implied false certification” theory of FCA liability, and provided that this theory can attach where at least two conditions are met: a defendant must (1) …

Senate Proposes Expanded Use of Telehealth

On May 18, 2017, the Senate Finance Committee voted to move forward a bill entitled the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017 (S870), which would increase access to telehealth services in the home.

Telehealth is the use of electronic information and telecommunications technology to support remote clinical healthcare, patient and professional health related education and other healthcare delivery functions. …

Connecticut Enacts Legislation Updating HIV Testing Laws

Connecticut Governor Dannel Malloy recently signed into law Public Act 17-6 (PA 17-6), a bill that makes certain revisions to state laws concerning human immunodeficiency virus (HIV) testing and syringe services programs pursuant to recommendations of the Department of Public Health (DPH). The substantive provisions of this legislation take effect July 1, 2017.

Currently, Conn. Gen. Stat. §19a-90 states that physicians furnishing prenatal care to pregnant women shall take (or cause to be taken) a blood sample within 30 days of the woman’s first examination, and again during the final …

Connecticut Legislature Expands Universe of Available Disciplinary Actions Against Licensed Practitioners

The Connecticut Legislature recently approved Public Act 17-10, a bill that establishes a new disciplinary action that may be taken against certain licensed practitioners in Connecticut, including physicians, physician assistants, nurses, dentists, podiatrists, physical therapists, psychologists, and EMS personnel.…

Massachusetts’ Health Policy Commission Further Limits Health Care Cost Growth

On March 29, 2017, the Massachusetts Health Policy Commission voted to decrease its annual health care cost growth benchmark from 3.6 percent to a 3.1 percent, effective in 2018. The benchmark applies to hospitals, certain physician groups and individual health insurers. The Commission also voted to finalize regulations to require those entities that fail to comply with the benchmark to file and follow performance improvement plans. Non-compliant entities will be subject to oversight by the Commission, during which they will be required to file monthly progress reports and demonstrate that …

Court Rejects Health Care System’s Efforts to Dismiss Government’s Anti-Steering Managed Care Antitrust Case

On March 30, 2017, the U.S. District Court for the Western District of North Carolina rejected a motion for judgment on the pleadings (akin to a motion to dismiss) by Carolinas HealthCare System (CHS) in a novel health care antitrust suit brought by the Department of Justice (DOJ) and State of North Carolina (collectively, the Government).

The Government filed suit against CHS, a health system consisting of 10 hospitals in and around Charlotte, North Carolina, in June 2016, alleging that contractual provisions mandated by CHS in its contracts with health …

CMS Revises Process for Reporting Stark Law Violations and Posts New SRDP Forms

On March 28, the Centers for Medicare & Medicaid Services (CMS) revised the procedures and posted new forms for its Voluntary Self-Referral Disclosure Protocol (SRDP).  The SRDP is a mechanism established pursuant to the Affordable Care Act for health care providers and suppliers to facilitate settlement of violations of the physician self-referral law (Stark Law).

Under the Stark Law, physicians (or their immediate family members) who have a financial relationship with an entity are prohibited from making referrals to that entity for certain designated health services (DHS) that are payable …

11th Circuit Invalidates Key Provisions in Florida Law Prohibiting Physician Inquiries About Patient Firearm Ownership

In Wollschlaeger v. Florida, No. 12-14009 (Feb. 16, 2017), the U.S. Court of Appeals for the Eleventh Circuit invalidated provisions of the Florida Firearms Owners’ Privacy Act that prohibited physicians from (i) asking patients if they (or their family members) own firearms or ammunition, (ii) documenting firearm ownership in patient medical records, and (iii) harassing patients about firearm ownership during examinations. The appellate court did not invalidate the Act’s antidiscrimination provision that prohibits physicians from discriminating against patients based solely on firearm ownership. Physicians who violated the Act were …

Joint Commission Bans Secure Text Messaging for Patient Care Orders

The Joint Commission recently clarified that patient care orders may not be transmitted by secure text message.  The Joint Commission initially prohibited the practice in 2011 but subsequently allowed practitioners to send orders through a secure text messaging system if certain conditions were met.   In this most recent clarification, The Joint Commission states that concerns remain even when using secure messaging platforms.

The clarification includes several recommendations developed by The Joint Commission in cooperation with the Centers for Medicare & Medicaid Services (CMS).  In addition to the ban on secure …

CMS Final Rule on Episode Payment Models and Revisions to CJR Model

In December, the Centers for Medicare & Medicaid Services (CMS) issued a final rule (Final Rule) implementing new and revised episode payment models (EPMs) developed by the CMS Innovation Center.  The Final Rule continues CMS’ transition of Medicare payment methodologies away from fee-for-service and towards value-based payments, including by incentivizing care coordination efforts and tying payments to quality improvement.

New EPMs:  The Final Rule implements three new EPMs for episodes of care surrounding (i) acute myocardial infarction (AMI); (ii) coronary artery bypass graft (CABG); and (iii) surgical hip/femur fracture treatment …

Medicare Shared Savings Program (MSSP) Track to Incentivize Assumption of Risk

On December 20, 2016, CMS announced the formation of a new participation track under the Medicare Shared Savings Program (MSSP) – the Medicare ACO Track 1+ Model – which will start in 2018. Accountable care organizations (ACOs) participating in this model will agree to accept more limited downside risk than ACOs participating in Track 2 or Track 3 of the MSSP, and will be eligible to share up to 50% of savings from care provided to a prospectively assigned beneficiary population. This model will qualify as an Advanced Alternative Payment …

CMS’ Final MACRA Rule Continues Transition Toward Value-Based Payments

On November 4, 2016, the Centers for Medicare & Medicaid Services (CMS) published a final rule with comment period (Final Rule) implementing the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). The Final Rule overhauls the methodology by which most physicians and certain other clinicians participating in Medicare will be reimbursed and marks a significant shift away from fee-for-service payments and toward value-based reimbursement. Under the Final Rule, CMS created the Quality Payment Program (QPP), which incorporates components of the Physician Quality Reporting System (PQRS), the Medicare Electronic Health …

Significant Changes to The Stark Law in the 2016 Physician Fee Schedule

In the 2016 Medicare Physician Fee Schedule (PFS), the Centers for Medicare & Medicaid Services (CMS) made several important and provider-friendly revisions and additions to the physician self-referral law (Stark Law). The PFS created two new Stark exceptions—one for the recruitment of non-physician practitioners (NPPs) and one for timeshare arrangements. The PFS also made several clarifications and additional revisions to the Stark Law regulations.

NPP Recruitment Exception

The NPP recruitment exception allows hospitals, federally qualified health centers and rural health clinics to pay physicians to help them employ NPPs (includes …

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