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...

By Rossanna Howard and Beth Anne Jackson, Brown & Fortunato, P.C. In July, it was revealed that four healthcare workers filed a class-action lawsuit, Terpening v. Amazon.com Inc., alleging that Amazon’s voice-activated virtual assistant technology, “Alexa,” recorded private conversations without the individual users’ intent.  Those conversations may have included protected health information (PHI), which is protected by HIPAA.  Generally, the suit seeks to hold Amazon liable for the Alexa functionality in certain devices, arguing that...

BY Allison Shelton and Colleen Byrom, Brown & Fortunato, P.C. On May 31, 2021, the regular session of the 87th Texas Legislature concluded after beginning on January 12, 2021. After months of committee meetings, deliberations, and votes the Legislature passed a total of 1,073 bills. A significant number of these bills will have a direct impact on physicians, hospitals, and other providers within the health care industry. For example, HB 3459 introduced a “gold card”...

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C. . Recent pronouncements from the Centers for Medicare and Medicaid Services (CMS) produced considerable uncertainty regarding Medicare coverage of shared and split evaluation and management (E/M) visits in the hospital setting. Effective May 9, 2021, CMS removed manual provisions setting forth a billing and payment policy that has been in place for nearly twenty years. Subsequently, on May 26, 2021, CMS issued a notice...

By Rossanna Howard and Allison Shelton, Brown & Fortunato, P.C. In 2018, the Centers for Medicare & Medicaid Services introduced new CPT Codes for remote physiologic monitoring (RPM).  The purpose of the RPM codes, generally, is to allow providers to bill for time spent monitoring and managing patients using medical devices that are capable of storing and transmitting physiologic data.  Such data may include the patient’s blood pressure, weight, pulse oximetry, and respiratory rate flow....