Healthcare Law Blog

Coronavirus: Section 1135 Waivers Bring Relief to Healthcare Providers

Invoking powers under the National Emergency Act and the Stafford Act on March 13, 2020, the President declared a national emergency, which, in turn, authorized the Secretary of Health and Human Services to waive conditions of participation requirements for payment for healthcare providers through waivers provided under Section 1135 of the Social Security Act.  The 1135 waivers do not replace 1115 waivers that require states to individually submit requests for waiver of selected Medicaid requirements, but the 1135 waivers are designed to temporarily give healthcare providers more flexibility in providing services during the pandemic crisis. The 1135 waiver is very helpful but does not address all situations or answer all questions, and it creates ambiguity in certain circumstances.   More >

Kentucky Hospitals - Need Additional Acute Care Beds? It Can be Done

Given the recent predictions for an increase in the need for access to additional acute care beds, Kentucky hospitals have the option to seek emergency approval from the Kentucky Office of Inspector General's Division of Certificate of Need for operating these beds. The process is relatively simple, but requires affidavits that meet regulatory specifications. More >

Healthcare Entities: HIPAA's Privacy Rule Exceptions in Light of COVID-19

While the HIPAA Privacy Rule protects the privacy of patients’ health information (PHI), it is balanced to ensure that appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes. More >

Tough Issues: Privacy and COVID-19

Now more than ever, healthcare providers face important issues about HIPAA and patient privacy requirements for patients being evaluated for COVID-19, for those being treated for it, and for those exposed to it.  Patient privacy issues are complicated and if not handled correctly create risks for healthcare providers and healthcare employees, including financial penalties. Even in times of emergency, the protections of the Privacy Rule are not set aside. With the public wanting to know who has been exposed, who has been tested, and who has COVID-19, as well as all the details about individual patients and their families, healthcare providers need to know what can be disclosed in a manner consistent with HIPAA’s Privacy Rule.  Healthcare workers must also know that they are not authorized to disclose information on individuals even when they think that it is in the best interest of the public. HIPAA privacy standards still apply even when disclosures are permitted.  Thus, now more than ever, healthcare providers must have strong policies and procedures in place that their employees know and follow. From clinicians to maintenance staff, healthcare providers should make sure that individual staff members understand their obligations and HIPAA’s privacy protections.   

Lisa English Hinkle is a Member of McBrayer law. Ms. Hinkle chairs the healthcare law practice and is located in the firm’s Lexington office. Contact Ms. Hinkle at lhinkle@mcbrayerfirm.com or (859) 231-8780, ext. 1256, or reach out to any of the attorneys at McBrayer. 

Services may be performed by others.

This article does not constitute legal advice.

New Telehealth Expansion May Benefit Healthcare Entities

Telehealth may be the answer to sustaining rural health care, hospital outpatient services, and primary care during the COVID-19 health crisis. With the CMS announcement on March 17th of how it will pay for telehealth, delineation of the codes, and major changes for patient location requirement, all rural health clinics, physician practices that provide MAT, primary care practices, federally qualified health care centers, and hospital outpatient departments should immediately review the expansion of telehealth coverage and determine how practices and clinics can benefit from the relaxed requirements and how these services can be quickly implemented.

Also, on March 19, the Cabinet for Health and Family Services expanded Medicaid services to include “any appropriate health service related to or rationally related to the declared emergency” and telehealth services which may include the use of a telephone. This new regulation temporarily suspends certain income and institutionalization restrictions. The regulation also expands its reach to services provided under WIC. These changes will have a corresponding effect on Medicaid coverage and payments.

Implementation of a telehealth program requires careful consideration of the requirements and new policies and procedures.  Also, all services regardless of ambiguous government guidance must be well documented.

Telehealth may be the way to provide services and protect health care providers.  Let us know if McBrayer can be of assistance.  The CMS fact sheet related to the telehealth expansion can be found here. 

Lisa English Hinkle is a Member of McBrayer law. Ms. Hinkle chairs the healthcare law practice and is located in the firm’s Lexington office. Contact Ms. Hinkle at lhinkle@mcbrayerfirm.com or (859) 231-8780, ext. 1256, or reach out to any of the attorneys at McBrayer. 

Services may be performed by others.

This article does not constitute legal advice.

The Hard Truth: Treating the Opioid Epidemic Webinar Recap

Click here to watch the video replay of the webinar.

In January of 2019, the National Safety Council released a study with an alarming result: Since 2017, the odds of dying by accidental opioid overdose have exceeded the odds of dying in a car accident. With the opioid crisis raging, the first line of defense may now be healthcare providers, especially rural ones, who treat patients on a daily basis. More >

#MeToo in Healthcare: The Time to Act is Now

This article appeared in the November edition of Medical News, available at https://www.medicalnews.md/metoo-in-healthcare-the-time-to-act-is-now/.

The #MeToo movement has sparked a momentous conversation in American life, but the pressure on the healthcare industry to address workplace harassment has been in place for some time now. For example, in 2012, a California Physician assistant was awarded $168 million by a jury (later settled for an undisclosed amount) after filing numerous complaints alleging sexual harassment and patient safety issues, actions which a jury believed led to her firing from a hospital and later, retaliation.[i] This is one of a number of examples of verdicts and out-of-court settlements in the millions of dollars, all due to sexual harassment in a healthcare workplace. These are not outliers. More >

Compliance: Include Prescribing Practices!

Since the implementation of House Bill 1 in 2012, the restrictions on prescribing controlled substances have become more and more stringent, which is a response to the opioid epidemic sweeping Kentucky and the nation. The Cabinet for Health and Family Services, the Kentucky Board of Medical Licensure, the Kentucky Board of Nursing, and the Kentucky Board of Pharmacy are vigilant in policing prescribing practices and have tools through KASPER to closely monitor the prescribing practices of physicians and other practitioners. With the addition of new medications like Gabapentin to the controlled substances hit list, practitioners must be particularly careful to ensure that their prescribing is consistent with regulatory requirements, particularly when patients have been on this medication previously.   Physicians and practitioners must continually monitor compliance as even a minor violation can give rise to investigations, complaints and regulatory penalties.  Assessment of regulatory penalties, even when characterized as “Agreed Orders,” can have devastating consequences for physicians and practitioners’ practices and ability to maintain provider contracts, including Medicare and Medicaid. More >

2017 Legislation Muddies the Water for Kentucky Physicians and Providers

Kentucky’s 2017 legislative session has been described as the most productive regular session in modern history by Majority Floor Leader Damon Thayer. Over a hundred bills during the session addressed healthcare-related issues reflecting the priorities of Republican Leadership and its initiative to repeal the Affordable Care Act (Obamacare). While many bills failed to gain traction, several important new laws were enacted that not only require Kentucky physicians and providers to change their practices, but also offer possible protection from lawsuits. The following is a review of some of the most important new legislation resulting from the 2017 session. More >

"Incident to" Billing - Easy to Get Wrong

Billing for medical services is never easy. Despite attempts by the Centers for Medicare & Medicaid Services (“CMS”) to simplify the rule regarding “incident to” billing for Medicare services, it remains misunderstood by a large swath of providers. This proves problematic, as incorrect billing practices may lead to overpayments and False Claims Act violations. Billing for “incident to” services is an important mechanism to reflect the actual value of mid-level services provided under the specific plan of a physician. When properly followed, the “incident to” rules allow physicians to bill for services provided by non-physician practitioners as if they were performed by the physician at physician reimbursement rates. Additionally, the non-physician provider can be an employee, an independent contractor or even a leased employee, provided that they are supervised by a physician and the requirements are met. Because of the confusing nature of allowing a physician to bill for services he or she did not directly provide to the patient, serious landmines exist that can create problems if the rules are not scrupulously followed and documented. More >