Health Care

PBI’s 19th Annual Health Law Institute


Kevin E. Raphael will present, “Confidentiality and Behavioral Health: Current Limitations on the Mental Health Procedures Act Confidentiality Provisions and the Patient Psychotherapist Privilege – What to Know to Avoid Potential Liability,” at PBI’s 19th Annual Health Law Institute at the Philadelphia Convention Center in Philadelphia, PA on March 12-13, 2013. Related Information: Program Information Read More

Collateral Consequences Of Healthcare Prosecutions

February 1, 2013

This article was originally published in the February 2013 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission. Related Information: Collateral Consequences of Healthcare Prosecutions Read More

HHS Announces First HIPAA Breach Settlement Involving Less Than 500 Patients

January 18, 2013

On January 2, 2013, the U.S. Department of Health and Human Services (“HHS”) announced the first settlement involving potential violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Security Rule involving less than 500 patients.  The $50,000 settlement resulted from a breach of unprotected electronic protected health information (“ePHI”) on a stolen laptop. The HIPAA Security Rule specifies that covered entities adopt a series of administrative, technical, and physical security procedures to ensure the confidentiality of ePHI.  The Health Information Technology for Economic and Clinical Health (“HITECH”) Act includes a mandate to improve the enforcement of the HIPAA Security Rule.  To that end, the HITECH Breach Notification Rule requires covered entities to report an impermissible use or disclosure of protected health information or a breach of 500 individuals or more to the Secretary of HHS and the media within 60 days after the discovery of the breach.  Smaller breaches affecting less than 500 individuals must be reported to the Secretary on an annual basis, within 60 days of the end of the calendar year in which the breaches occurred.  Notifications of all breaches that occurred in calendar year 2012 must be submitted by March 1, 2013. The HITECH Breach Notification Rule also requires covered entities to:  (1) have in place written policies and procedures regarding breach notification; (2) train employees on breach notification policies and procedures; and (3) develop and apply appropriate sanctions against workforce members who do not comply with the breach notification policies and procedures. After an extensive investigation by the HHS Office for Civil Rights (“OCR”), the Hospice of North Idaho (“HONI”) agreed to pay HHS $50,000 for a breach involving less than 500 patients.  The breach occurred after a HONI unencrypted laptop computer containing the ePHI of 441 patients was stolen in June 2010.  Read More

OIG Cautions Home And Community Based Service Programs: Non-Compliance Will Not Be Tolerated

August 13, 2012

As part of its ongoing effort to improve the quality of health care and eliminate Medicaid waste, fraud and abuse, the Office of the Inspector General (OIG) for the U.S. Department of Health and Human Resources issued its June 2012 report concerning its oversight of quality of care in home and community-based services (HCBS) waiver programs.[1]  While not specifically naming the state of Pennsylvania in its report, the OIG subsequently identified Pennsylvania as one of the three states with the most persistent problems relative to its compliance in home and community-based waiver programs.[2] States participating in HCBS waiver programs must demonstrate that they have systems in place to show that: (1) each beneficiary must have a written service plan based on an assessment of the individual’s needs; (2) each beneficiary must be served by qualified providers; and (3) each State must have necessary safeguards to protect the health and welfare of beneficiaries.[3][4] According to the report, the OIG found that some States have no monitoring systems for service plans, qualified professionals and health and welfare assurances, while others had inadequate strategies to correct problems in these areas.  Centers for Medicare and Medicaid Services (CMS) officials explained that, although CMS has the authority to terminate programs when States do not meet assurances, it generally does not do so because these programs serve vulnerable beneficiaries who might be left without critical services.  Therefore, expect CMS to develop a broader array of approaches to ensure compliance with each of the assurances. Given the OIG report, we can reasonably anticipate that the PA Department of Welfare, under Governor Corbett’s administration, will consider or improve upon the following practices: (1)  Reviewing service plans, perhaps multiple times throughout the year and assigning different experts to assess various aspects of the plans; (2)  Selecting a sample of service plans to review to ensure that the services in the plan matched the Medicaid claims submitted for the beneficiaries; (3)  Reviewing provider qualifications and conducting onsite visits with each provider before allowing the provider to enroll in the HCBS program; (4)  Scheduling visits with beneficiaries and/or mailing surveys to them to assess their satisfaction with providers; (5)  Tracking license expirations electronically; (6)  Automatically decertifying providers who did not renew their licenses; (7)  Systematically tracking and correcting incidents of alleged abuse, neglect and suspicious death; and (8)  Coordinating with other State agencies, when necessary, to review and resolve cases in which beneficiaries’ health and welfare were at risk. Read More

Patient Protection And Affordable Care Act Upheld

August 1, 2012

On June 28, 2012, a sharply divided United States Supreme Court decided that The Patient Protection and Affordable Care Act (“PPACA”) is constitutional. National Federation of Independent Business, et. al. v. Sebelius, et al., 567 U.S. __ (2012) (cites here to Slip Opinion). Three separate Opinions – by Chief Justice Roberts (writing for the Court), Justice Ginsberg (a concurring opinion), and Justice Scalia (a dissent) – offer three contrasting, and occasionally acerbic, views of how the Constitution should be interpreted.  This article will briefly summarize the reasoning behind all three Opinions.  More important to healthcare providers, this article will briefly detail the strong Fraud Abuse and Waste provisions in the PPACA.  Increased communication between, and use of, government databases, ever more sophisticated data mining, and stronger False Claims Act and Anti-Fraud Abuse and Waste provisions, will have direct impacts on all health care providers. The Supreme Court Opinion The Supreme Court’s Opinion reviewed two integral components of the PPACA:  1) the requirement that individual states expand the medical benefits to a larger group of people, including all adults with incomes up to 133% of the federal poverty level, or risk losing the entire federal government’s contribution to the state’s Medicaid budget; and 2) the “individual mandate,” that requires those who do not have health insurance to pay a “penalty.” The Expansion of Medicaid The first issue was handled with little rancor.  The Court, by a 7 – 2 vote, held that Congress could not strip a state of all federal dollars provided to that state for its entire Medicaid program, solely because that state refused to expand its Medicaid program as required by the PPACA.  The Court recognized that the concept of federalism does not permit Congress to compel the individual states to implement federal policy: Permitting the federal government to force the states to implement a federal program would threaten the political accountability key to our federal system.  Read More

West Virginia Supreme Court Overrules Its Prior Finding In Brown V. Genesis Ii

July 9, 2012

In Brown v. Genesis II, the West Virginia Supreme Court, on remand from the United States Supreme Court, again considered the enforceability of an arbitration agreement in a nursing home negligence case.  In Brown I, the West Virginia Supreme Court found that Congress did not intend for nursing home arbitration agreements to be governed by the Federal Arbitration Act.   The West Virginia Supreme Court, in accordance with the United States Supreme Court’s mandate, overruled its prior finding. The Court went on to consider the doctrine of unconscionability as it related to the arbitration agreements at issue.  In considering whether a contract is unconscionable a court must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and the existence of unfair terms in the contract.  In considering procedural unconscionability, the court noted that issues that would be considered to determine whether there was a meeting of the minds between the parties were:  age, literacy, lack of sophistication of a party, hidden or unduly complex contract terms, the adhesive nature of the contract, and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract.  The Court then warned that while not entirely dispositive of the issue, procedural unconscionability often begins with a contract of adhesion. The salient consideration for substantive unconscionability is whether the contract itself or a particular term is a one-sided agreement, “requiring arbitration only for the claims of the weaker party but a choice of forums for the claims of the stronger party.”   Thus, an enforceable arbitration agreement must have a “modicum of bilaterality.”   The Court also noted that the analysis should include whether the arbitration agreement imposes or may impose high costs which would act as a deterrent to a claimant in vindicating his or her rights in the arbitral forum.  Read More

The 22nd Annual National Institute on Health Care Fraud


Marc S. Raspanti will participate on the panel, “Mediation of False Claims Act Cases” on May 9-11, 2012 in Las Vegas, NV. This program is perfect for health care attorneys, compliance professionals, regulators, prosecutors, criminal defense attorneys and qui tam relators’ counsel. Discuss current legal and ethical issues that arise in the health care fraud practice Learn about current government enforcement actions and priorities Gain practical knowledge from over 60 preeminent speakers including prosecutors, regulators and more Related Information: Program Description Read More

Physicians May Now Have An Implied Duty To Care For A Patient’s Emotional Well-Being

January 24, 2012

On December 22, 2011, an equally divided Pennsylvania Supreme Court dramatically extended liability for negligent infliction of emotional distress (“NIED”) to “special relationship” breach of contract or breach of fiduciary duty cases, in Toney v. Chester County Hospital, —A.3d— (Pa. 2011), 2011 WL 6413948. The decision exposes health care providers to liability where there is a breach of an implied duty to care for the emotional well-being of their patients. In Toney, the pregnant plaintiff underwent a pelvic ultrasound at defendant hospital on March 3, 2003.  Plaintiff’s providers, including the radiologist, interpreted and reported the ultrasound results as normal. Four months later, however, plaintiff gave birth to her son who had profound physical abnormalities. Plaintiff, conscious for her child’s delivery and birth, alleged that the defendants’ negligent ultrasound misinterpretation prevented her from preparing herself for the shock of witnessing her child’s birth with such significant physical deformities. Plaintiff claimed that she suffered emotional distress due to shock which manifested itself in nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated hysterical attacks, stress and anxiety. The Supreme Court held that the long-standing physical impact requirement is a “flawed tool to distinguish between true emotional distress deserving recovery and the trivial or fraudulent emotional distress claims that should not result in liability” and that NIED claims do not require a physical impact as an element of the tort. Instead, it extended NIED liability to cases, such as this one, involving pre-existing relationships, where the duties obviously and objectively hold the potential for deep emotional harm in the event of a breach. Such “special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being” and the “potential emotional harm must not be the type that a reasonable person is expected to bear.” The court, for instance, found that relationships involving life and death fall within this category. Read More

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