By Beth Anne Jackson, Brown & Fortunato   In its Advisory Opinion No. 22-09 issued April 25, 2022 (Opinion), the Office of Inspector General (OIG) concluded that a proposed arrangement (Arrangement) involving per-patient fees for specimen collection, processing, and handling paid by a clinical laboratory (Lab) to contracted hospitals (Hospitals) would generate “prohibited remuneration under the Federal anti-kickback statute, if the requisite intent were present,” constituting grounds for the imposition of sanctions, even if the...

BY Colleen T. Byrom and Beth Anne Jackson, Brown & Fortunato On April 22, 2022, the Supreme Court of Texas ended a long-standing court battle between a cardiovascular surgeon and a Houston-area hospital system. The Court’s unanimous decision in Memorial Herman Health System v. Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A., overturned a more than $6.3 million jury award made in favor of the surgeon’s defamation and business disparagement claims against...

By Rossanna Howard, Partner, and Allison Shelton, Partner, Brown & Fortunato Gender-affirming medical care has been the subject of several recent initiatives and proceedings in Texas, including an opinion from the Texas Attorney General and a letter from Governor Greg Abbott to the Texas Department of Family and Protective Services (DFPS).  Most recently, on March 21, 2022, the Third Court of Appeals in Austin enjoined DFPS from acting on the Governor’s written directive that “gender-transitioning...

By Phuong D. Nguyen and Beth Anne Jackson, Brown & Fortunato, P.C. Hot on the heels of approving new CPT codes for remote physiologic monitoring (RPM), the Centers for Medicare & Medicaid Services (CMS) approved new CPT Codes for remote therapeutic monitoring (RTM), effective January 1, 2022. The new RTM codes are related to monitoring respiratory system status, musculoskeletal system status, therapy adherence, therapy response (CPT codes 98976 and 98977). Similar to RPM codes, RTM...

By Beth Anne Jackson and Allison Shelton, Brown & Fortunato, P.C. In its annual report on False Claims Act (FCA) recoveries released February 1, 2022, the Department of Justice confirmed that health care fraud was “once again the leading source” of its FCA settlements and judgments, totaling more than $5 billion in the fiscal year 2021. This compares to $1.8 billion in FY2020. Before reviewing the details of the report, it is worthwhile to examine...

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato On December 3, 2021, the D.C. Circuit Court of Appeals issued a decision in Long v. HHS, No. 19-5358, upholding the dismissal of a physician’s claim that the Department of Health and Human Services (HHS) failed to appropriately review his dispute concerning a report filed in the National Practitioner Data Bank (NPDB).  Despite a somewhat bizarre series of facts, the case provides insight into HHS’s...

By Rossana Howard and Beth Anne Jackson, Brown & Fortunato, P.C. The COVID-19 vaccine mandate requirements, guidance, and next steps have gone through a number of changes since they were initially announced by the Biden Administration at the beginning of November. On November 4, 2021, the White House published an announcement describing two COVID-19 vaccine rules that would purportedly cover two-thirds of all U.S. workers. The first rule was published by the Department of Labor,...

By Allison Shelton and Colleen Byrom, Brown and Fortunato On September 1, 2021, the highly debated Texas Heartbeat Act (“Heartbeat Act”) went into effect. In short, Texas’s new law prohibits a physician from knowingly performing or inducing an abortion if the physician has “detected a fetal heartbeat for the unborn child . . . or failed to perform a test to detect a fetal heartbeat,” and the abortion is not necessitated by a “medical emergency.”...

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato The U.S. Attorney’s Office for the Northern District of Texas recently announced a $3.3 million settlement with Tarrant County Hospital District d/b/a John Peter Smith Hospital (JPS) in Fort Worth, Texas. The settlement resulted from a whistleblower complaint filed by JPS’s former Director of Compliance, Erma Lee, under the qui tam provisions of the False Claims Act (FCA). Lee alleged that for several years JPS...

BY Beth Anne Jackson And Allison Shelton, Brown & Fortunato   An August opinion by the U.S. Fifth Circuit Court of Appeals (Fifth Circuit), Francois v. Our Lady of the Lake Hospital, Inc., affirmed the dismissal of a claim of discrimination by plaintiff Damian Francois, a patient who was deaf and communicated mainly in American Sign Language (ASL). Our Lady of the Lake Hospital in Louisiana did not provide him with an on-site interpreter until...