By Allison L. Davis and Brittany K. Hinton, Brown & Fortunato, P.C. On December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) published new guidance concerning mandatory vaccinations in an updated version of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. In the article, the EEOC analyzes potential disability discrimination implications of employers requiring their employees to receive SARS-CoV-2 (“COVID-19”) vaccinations as a condition of...

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C. On December 29, 2020, the D.C. Circuit Court of Appeals issued a decision that effectively upholds the Hospital Price Transparency Rule.  Meanwhile, the Centers for Medicare and Medicaid Services (CMS) signaled its intent to actively enforce the rule. Accordingly, as of January 1, 2021, hospitals are expected to have a public website that displays pricing information for inpatient and outpatient items and services furnished...

By Beth Anne Jackson and Allison Shelton, Brown & Fortunato, P.C. In the December 2, 2020 issue of the Federal Register, the Centers for Medicare and Medicaid Services (CMS) and the Office of Inspector General (OIG) published significant changes to the Physician Self-Referral Law (Stark) and Anti-Kickback Statute (AKS) rules. These changes added protections for value-based care arrangements and altered some fundamental tenets of the rules. The revised rules will affect a wide variety of...

By Beth Anne Jackson and Allison Shelton, Brown & Fortunato, P.C.   Since the Office for Civil Rights (OCR) announced its first enforcement action under the Right of Access Initiative in September 2019, nine providers have settled allegations that they failed to provide patients with copies of their medical records in a timely manner. Seven of those settlements have been announced since September 2020, indicating that the COVID pandemic will not stop OCR’s enforcement efforts....

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C. On September 2, 2020, the Texas Court of Appeals for the Fourth District in San Antonio issued an order protecting a surgeon’s email from disclosure in a civil suit against a hospital. The appellate court determined that the email was protected by the peer review privilege and was, therefore, not subject to discovery. The peer-review privilege is designed to allow for candid and frank...

By  Beth Anne Jackson and Monique Pena, Brown & Fortunato, P.C. The Public Health and Social Services Emergency Fund for provider relief (the Provider Relief Fund) of the CARES Act is currently concluding its second phase of General Distribution funding. The deadline to apply had been extended to September 13, 2020. As most providers are aware, after each payment from the Provider Relief Fund, providers must attest to compliance with the terms and conditions of...

By Allison Shelton and Colleen Byrom, Brown & Fortunato, P.C. On July 23, 2020, the Department of Justice announced a $49 million settlement with Progenity, Inc. The settlement addressed claims that Progenity engaged in fraudulent billing practices and provided illegal kickbacks to physicians and their staff. Progenity is a biotechnology company based out of San Diego, California, that provides molecular and diagnostic testing services, such as prenatal testing, for genetic and chromosomal abnormalities. Claims against...

By Allison Shelton and Monique Pena, Brown & Fortunato, P.C. In a final rule published on June 19, 2020 (2020 Final Rule), the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) significantly reduced requirements placed on health care entities and narrowed OCR’s interpretations on prohibited discrimination. The 2020 Final Rule was adopted under Section 1557 of the Affordable Care Act which prohibits discrimination in health care on the basis of race,...

By Kelly T. Custer and Beth Anne Jackson, Brown & Fortunato, P.C.   Congress and CMS have issued round after round of sweeping regulatory waivers and rule changes to provide flexibility to the health care system as America grapples with COVID-19. These changes include provisions that make it remarkably easier for Medicare and Medicaid beneficiaries to access telehealth services. This article summarizes some of the changes and our thoughts on what telehealth will look like...

By Beth Anne Jackson and Kelly T. Custer, Brown & Fortunato, P.C.   Congress allocated $100 billion to the Public Health and Social Services Emergency Fund for provider relief (the Provider Relief Fund) in the CARES Act.  The Provider Relief Fund includes $50 billion dollars for general distribution and an additional $50 billion in special allocations.  The initial general distribution beginning April 10, 2020 of $30 billion resulted in payments proportionate to providers’ share of...