By Allison Shelton and Elizabeth Jepson, Brown & Fortunato, P.C.   Health care providers typically have some discretion in determining whether an incident is reportable under the Health Insurance Portability and Accountability Act (HIPAA). However, providers should take care in exercising such discretion. As evidenced by a recent settlement between a hospital system and the Office for Civil Rights (OCR), a provider’s decision to not report an incident, may result in significant costs. Subject to certain exceptions,...

By Beth Anne Jackson and Elizabeth H. Jepson, Brown & Fortunato, P.C.   On November 15, 2019, the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) issued two rules to increase pricing transparency and competition among hospitals, group health plans, and health insurance issuers.  The first rule was issued in final form (the 2020 Pricing Transparency Requirements), and the second was released as a proposed rule...

By Beth Anne Jackson and Allison D. Shelton, Brown & Fortunato, P.C.   On October 17, 2019, two agencies within the U.S. Department of Health and Human Services (HHS) finally proposed rules (Proposed Rules) intended to reduce the regulatory risk of value-based arrangements (VBAs) in health care. Specifically, the Centers for Medicare and Medicaid Services (CMS) proposed new exceptions to the physician self-referral law (Stark Law). Meanwhile, the Office of Inspector General (OIG) proposed changes...

By Elizabeth Jepson and Beth Anne Jackson On June 14, 2019, Texas Governor Greg Abbott signed into law House Bill 4390 (HB 4390), which is bipartisan legislation amending the Texas state breach notification law. HB 4390 places a strict deadline on the breach notification requirements set forth in the Texas Identity Theft Enforcement and Protection Act (TITEPA), requires notification of the Texas Attorney General of a breach affecting more than 250 Texas residents, and creates...

BY Elizabeth Jepson and Allison Shelton   On May 3, 2019, the Centers for Medicare and Medicaid Services (CMS) released draft guidance for hospitals and other healthcare providers addressing co-location.  This guidance is CMS’ first formal policy on co-location and provides insight into how CMS will evaluate co-locating providers’ compliance with Medicare’s conditions of participation (“CoPs”).   Co-location refers to the sharing of space, staff, and services between separate entities, such as two hospitals or...

By Allison D. Shelton and Beth Anne Jackson, Brown & Fortunato, P.C.   On May 27, 2019, the Texas 86th Legislature ended its regular session that began on January 8, 2019. After five months of committee proceedings, debates, and votes, the 86th Legislature passed 484 bills.  Several of the bills that were signed by Governor Greg Abbott will impact the health care industry.   Two bills, Senate Bill (SB) 749 and SB 1264, refine processes...

BY Beth Anne Jackson and Allison D. Shelton, Brown & Fortunato, P.C.   Recently, a 7th Circuit Court of Appeals case, Levitin v. Northwest Community Hospital (Levitin), concluded that a physician whose medical staff privileges were terminated could not sue the hospital for discrimination under Title VII because the hospital was  not the physician’s employer.   The physician had claimed that the hospital’s use of the peer review process exerted  sufficient control to grant it “employer”...

By Beth Anne Jackson and Elizabeth Jepson, Brown & Fortunato, P.C. With the passage of the Agriculture Improvement Act of 2018 (Farm Bill) in December 2018, Congress established a new category of cannabis: hemp, which is defined as cannabis with 0.3 percent or less concentration of compound delta-9-tetrahydrocannabinol (THC).  Further, the Farm Bill specified that the definition of the term “marihuana” under the Controlled Substance Act does not include “hemp.”   Many assumed that the...

By Allison Shelton and Beth Anne Jackson, Brown & Fortunato, P.C. On March 5, 2019, the Centers for Medicare and Medicaid Services (CMS) issued new guidance relating to “Immediate Jeopardy” (IJ) determinations. The instructions for such determinations that had been in place since 2004 in Appendix Q of the State Operations Manual were overhauled by CMS. Appendix Q guides surveyors in the determination of IJ situations, which is the most serious citation that may be...

By Elizabeth Jepson and Allison Shelton, Brown & Fortunato, P.C. The U.S. Department of Health and Human Services Office for Civil Rights (OCR) ended 2018 with a bang by announcing a total $28.7 million collected in enforcement actions and settlements with healthcare providers under the Health Insurance Portability and Accountability Act (HIPAA). The most recent settlement announced at the beginning of February (but negotiated in December 2018) was with Cottage Health, which operates four hospitals...