Health Care Counsel

Arent Fox's health care law blog offers news, analysis, and insights for the health care industry.

Health Care Counsel
HIPAA / Health Privacy & Security, Litigation & Alternative Dispute Resolution
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New York-Presbyterian and Columbia Hospitals to Pay Record HIPAA Settlement

On May 7, 2014, the US Department of Health and Human Services Office of Civil Rights (OCR) announced settlements with two New York-based hospitals totaling $4.8 million for violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. The settlements related to the hospitals’ failure to secure the electronic protected health information (ePHI) of thousands of patients held on their networks and are the latest example of OCR’s increased enforcement action.

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Government Investigations & Litigation, Transactions & Regulatory Due Diligence
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The Federation of State Medical Boards Adopts Guidelines to Govern the Safety of Telemedicine

On April 26, 2014, the Federation of State Medical Boards approved updated model guidelines addressing the use of telemedicine technology. In its related press release, the Federation, which represents the 70 medical and osteopathic boards throughout the United States, noted that its Model Policy on the Appropriate Use of Telemedicine Technologies in the Practice of Medicine is intended to provide guidance to assist state boards in meeting their obligations to protect patients in the rapidly changing telemedicine environment.

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Government Investigations & Litigation, HIPAA / Health Privacy & Security
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Tales from the Unencrypted: DHHS Steps Up Enforcement of Unsecured Electronic Devices

On April 22, 2014, the US Department of Health and Human Services Office of Civil Rights (OCR) announced settlements of close to $2 million with two health care entities for violations of the Privacy and Security Rules promulgated under the Heath Insurance Portability and Accountability Act (collectively HIPAA) related to the theft of unencrypted laptops.

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Payer Disputes & Reimbursement
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Not So Fast! Federal Court Holds ERISA Plans Can’t Recoup Overpayments without Following Procedural Steps

In an important victory for health care providers, a federal district court in Illinois recently held that health plans may not simply unilaterally recover overpaid funds from health care providers, but rather must provide the appeal and other procedural protections required under the federal Employee Retirement Income Security Act (ERISA) and its implementing regulations. While it has long been the rule that ERISA’s appeal and other procedural rights must be allowed when ERISA plans issue “adverse benefit determinations” on claims submitted for reimbursement, it has not always been clear that these same procedures are required with respect to recoupment decisions. In Pennsylvania Chiropractic Association v. Blue Cross Blue Shield Association, No. 09 C 5619, 2014 WL 1276585 (N.D. Ill. Mar.

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Government Investigations & Litigation, Litigation & Alternative Dispute Resolution
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Medicare Appeals at a Standstill: Providers Convene, Press CMS to Intervene

A December 31 memo from Nancy Griswold, Chief Administrative Law Judge (ALJ) of the Office of Medicare Hearings and Appeals (OMHA), delivered bad news to health care providers and suppliers awaiting resolution of long-standing health care appeals. The news confirmed what many who have waited years to have their cases heard had suspected — that OMHA is buckling under the backlog of 357,000 appeals awaiting adjudication by 64 ALJs across its four regional offices.

Nearly 350 providers, suppliers, consultants, and beneficiary representatives convened at a February 12 OMHA forum, while over 600 listened in on audio and web feeds to hear Judge Griswold and others talk about the problems confounding the current system and voice frustration over the lack of confidence in the Centers for Medicare and Medicaid Services (CMS) and contractor led-lower level appeals.

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Litigation & Alternative Dispute Resolution, Medical Staff Credentialing & Peer Review Law
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Michalski v. Scripps Mercy Hospital: A Win for Both Peer Reviewers and Hospital Boards

Earlier this month, Arent Fox Health Care partner Lowell C. Brown  published an article in California Healthcare News that provides insight into a key peer review case involving legal principles and individual behaviors that provide critical lessons for hospitals.

In the article, Mr. Brown reports that “Michalski was about sexual harassment, an errant hearing committee decision, and a governing body’s ultimate authority to decide what physician behavior is acceptable in the hospital. In its decision the California Court of Appeal confirmed that a hospital’s governing body may, where permitted by the hospital’s medical staff bylaws, broadly exercise its independent judgment and overturn a Judicial Review Committee (JRC) decision following a peer review hearing.”

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Payer Disputes & Reimbursement
RAC Audits are Becoming Increasingly Frequent and Costly to Hospitals but Appeals can Succeed

The latest report published by the American Hospital Association (AHA) detailing the results of its RAC Trac survey1 reveals that RAC activity in hospitals has significantly increased in 2013. Not surprisingly, the financial impact of this increased RAC activity has grown substantially as well, both in terms of claims denials and the costs associated with responding to the RACs. Nevertheless, hospitals that have challenged denials of claims by RACs, either through the appeal process or through utilization of the discussion period, have had significant success in overturning denials.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.