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McBrayer Blogs
New Resident Legal Issues
Leaving medical school and entering residency is a daunting transition in the career of a new physician, presenting a new set of legal rules and requirements, including employment contracts and malpractice liabilities. We recommend familiarizing yourself with your program’s relevant manuals and policies and seeking legal advice when necessary. More >
Recent Supreme Court Decisions and the Impact on Reproductive Rights
Recent United States Supreme Court decisions have delivered small temporary wins for reproductive rights. A unanimous Supreme Court rejected a challenge to the FDA’s rule for prescribing and dispensing abortion pills. On June 13, 2024, a unanimous court decided in Food and Drug Administration v Alliance for Hippocratic Medicine that the anti-abortion doctors and medical groups that challenged the expansion of access to mifepristone, one of the two drugs used in medical abortions, lacked standing. Justice Brett Kavanaugh, writing for the court, acknowledged the challengers’ “sincere legal, moral, ideological, and policy objections” to elective abortion and to the FDA’s changes to the conditions on the use of mifepristone. However, the challengers to the FDA regulation failed to show how they had been harmed, as they do not themselves prescribe the medication. The court further found that merely objecting to abortion and to the FDA’s policies are not enough to establish standing and bring a case to federal court. The challengers contended that having to treat patients who suffered complications from using the drug is a harm to them and similarly convicted providers in other respects, such as diverting resources, increasing the likelihood of lawsuits, and increasing insurance costs. Justice Kavanaugh continued to describe the speculative nature of the challengers’ attempt to establish standing. If the challengers could sue with this theory, it could open a dangerous door to challenge “almost any policy affecting public health.” More >
DEA Proposes New Tele-Prescribing Rules for End of COVID-19 State of Emergency
At the end of January, the Biden Administration announced that May 11, 2023, would mark the end of the federal public health emergency (PHE) declarations that have been in place for the last three years. For healthcare providers, this means change is on the horizon, especially where telemedicine is concerned. In response to the impending end of emergency telehealth provisions, the Drug Enforcement Agency (DEA) has proposed a permanent rule regarding the prescription of controlled medications via telemedicine in order to extend COVID-era accommodations. The public will be able to comment for 30 days on the proposed rules. A summary of the rules can be found here: Proposed Telemedicine Rules Summary. More >
Governor Signs HB 200 to Address Healthcare Worker Shortage
The COVID-19 public health emergency has impacted the healthcare field in numerous ways. Like the rest of the country, Kentucky has been facing a dire shortage of healthcare workers that was only worsened by the pandemic. The Kentucky Hospital Association’s Workforce Survey Report showed across the commonwealth, at the end of the calendar year (2021), Kentucky hospitals reported 13,423 full-time equivalent (FTE) vacancies across thirteen (13) professional groups, with a statewide hospital workforce vacancy rate of 17.1 percent. Registered nurses (RNs) and licensed practical nurses (LPNs) are the largest profession of direct-care providers and hospitals reported 5,060 RN and 331 LPN vacancies, for a combined vacancy rate of 22.1 percent. More >
OIG, in a Departure, Approves Hospital Provision of Nurse Practitioner Services
Traditionally, the Office of the Inspector General for the U.S. Department of Health and Human Services (“OIG”) would take a hard stance on any arrangements that might involve some form of remuneration from a hospital to a referring physician, but the winds of change may be blowing. In Advisory Opinion 22-20, published in December of 2022, the OIG has given a green light, albeit in a limited context, to an arrangement in which a hospital may have its employee nurse practitioners perform some services traditionally performed by the patients’ primary care physicians. This is a small step in the direction of a more flexible OIG stance on the federal Anti-Kickback Statute (“AKS”), but it doesn’t completely sidestep risks. More >
Fine Lines in Medical Spa Regulations
Medical spas (also known as ‘medspas,’ ‘medispas,’ or ‘esthetic salons’) combine advanced medical esthetic services that would have previously only been found at plastic surgery clinics or dermatologists’ offices (such as Botox injections, laser hair removal, chemical peels, injectable fillers, and acne treatments) with those found in a traditional day spa. Often, these procedures require the supervision of a licensed physician or nurse practitioner, creating a unique regulatory issue. As medspas have generated billions in revenue annually across the country and involve several types of healthcare and cosmetology professionals, it is critical for healthcare professionals offering services at a medspa to understand their specific obligations to maintain compliance with the law and prioritize patient safety. More >
OIG and CMS Audits Present New Round of Compliance Concerns for Healthcare Providers
Since the beginning of the Public Health Emergency, Centers for Medicare and Medicaid Services (“CMS”) and the Centers for Disease Control and Prevention (“CDC”) data reflect over 44 million COVID-19 cases, 3 million COVID-19 related hospitalizations, and 720,000 COVID-19 deaths. COVID-19 has placed enormous stress on our healthcare system. Federal and state responses to COVID-19 have woven a complex and complicated safety net by easing regulatory requirements through waivers and funneling billions of dollars to providers among many other actions. Just as the pandemic may finally be easing, federal focus on use of COVID-19 resources promises to increase healthcare providers’ stress. More >
WEBINAR - RHCs and FQHCs: What You Need to Know NOW about New CMS Regulations on Vaccine Mandates
SCOTUS Blocks OSHA ETS; Healthcare Mandate Moves Forward
Thursday afternoon, the United States Supreme Court ruled to block the Emergency Temporary Standard (ETS) issued by the U.S. Occupational Safety and Health Administration (OSHA) that would require private employers of 100 or more workers to mandate employee vaccination against COVID-19, or weekly testing for the virus. The Court upheld, however, a similar rule for healthcare employers contracted with the Centers for Medicare and Medicaid Services (“CMS”) as further outlined below. More >
Not All Surprises Are Presents: Preventing Surprise Medical Bills under the No Surprises Act
To address surprise medical costs for consumers, Congress recently passed an extremely complicated bill: No Surprises Act (“The Act”). No Surprises Act aims to prevent surprise medical bills or balance billing in the American health care system. Specifically, The Act prevents surprise medical bills when patients receive emergency care or are treated by an out-of-network provider at an in-network hospital or ambulatory surgical center. More >
