Conflicts of Interest Issues Can Poison Your NonProfit

Charity jar

Charity jar

By: Shobha Lizaso

You have a cause that you are passionate about. You have the drive and motivation to put your time and effort behind that cause. You have the dedication to use all of the aforementioned to create a 501(c)3 nonprofit organization.  However, once you create the organization, you must also be diligent in protecting your organization’s tax-exempt status.

Like most people who start a non-profit organization, your focus and energy is probably directed towards serving the community rather than performing internal compliance checkups. However, you cannot serve your target community well if your nonprofit is not run in a manner that is compliant with the law.

What happens when the IRS revokes your organization’s nonprofit status? Here are some examples: Continue reading

The EMTALA Primer

EMTALABy: Dave Davidson

In 1986 President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (EMTALA) into law.  Since then, the application of the law has been expanded and refined.  It was one of the first laws giving the government the authority to dictate certain operations of a hospital.  While other laws and regulations such as the Anti-Kickback Statute and the Stark Law have become more of a focus for health care providers, EMTALA remains an area of active enforcement.  All providers with hospital privileges should therefore be aware of its application.

The policy behind the law is fairly straightforward.  Hospitals with emergency departments should not be able to turn away patients needing care because of their inability to pay (no more “wallet biopsies” as part of triage).  Likewise, hospitals should not be able to “dump” patients on other facilities for reasons other than for advanced care.

The requirements of the law are also very basic.  If a patient comes to an emergency department and requests an examination or treatment for a medical condition, the hospital must provide an appropriate medical screening exam, within its capability, to determine whether or not the patient has an emergency medical condition.  The screening provided goes beyond simple triage, and must be performed by a clinical provider such as a physician, nurse practitioner, or physician’s assistant. Continue reading

Marketing in Healthcare: It Ain’t What It Used to Be

By: Jeff Cohen

Healthcare professionals and businesses are routinely barraged with people who claim to be able to generate business for them.  The business of healthcare is like none other in its abhorrence of anything that even smells like payment for patient referrals, so professionals and businesses alike have to be extremely cautious and well advised in crafting marketing and related business-enhancing relationships.

The key here is to realize that, while the laws haven’t changed, what regulators are doing with them has!  The environment of healthcare marketing has never been more treacherous than it is today.  So what’s changed?  How about:

  1. Commission based marketing and sales involving federal or state payers, even those that arguably comply with the personal services arrangement and management contract safe harbor, are detested by federal regulators;
  2. The regulators will look to pierce any enterprise, including those consisting of multiple tax ID entities, in hopes of making the case that commercial based marketing payments were in exchange for even one drop of federal/state payer money;
  3. Both health insurers and large providers (e.g. labs, pharmacies) work hand in hand with federal regulators to pursue suspicious activity, the result of which is to support the large provider; and
  4. Targets of enforcement activity who have obtained good legal advice often pay just to put an end to the enforcement because there’s a risk of losing and “winning” can feel like losing when one considers the enormous defense costs.

Continue reading

Docs, You’ve Been Hacked. What’s Next?

HIPAABy: Jacqueline Bain

Healthcare providers have heard the HIPAA disaster stories: a laptop containing patient information is left on the counter at the coffee shop; a thumb drive with patient files goes missing; a rogue employee accesses patient information she has no business accessing; hackers get into a practice’s server and hold the patient information for ransom.

HIPAA is a federal law designed for safe disclosure of patient’s protected health information.  The news headlines showcase giant penalties for violations.  However, Florida health care providers should also know that Florida has its own consumer protection statute, called the Florida Information Protection Act.  So while you’re busy worrying about your HIPAA exposure in any of these situations, remember that there is potential State exposure as well.

So what should a healthcare provider do if it believes there has been a hack or some other unauthorized disclosure?  Responses vary based on the situation presented, but below is a good jumping off point: Continue reading

The United States Supreme Court adopted an “Implied Certification Theory” in “some circumstances”

bcbs lawsuitBy: Karina Gonzalez

The Supreme Court of the United States in the case of Universal Health Services v. United States ex rel. Escobar (decided 6/16/2016) extended the reach of the False Claims Act (FCA) to cover implied false certifications made “in certain circumstances” by healthcare providers in requesting payment for goods and services.

At issue was a theory of liability known as the “implied false certification theory” and whether this theory was valid under the FCA.  The implied false certification theory treats a payment request as an implied certification of compliance with relevant statutes, regulations or contract requirements that are a material condition of payment and treats a failure to disclose a violation as a misrepresentation that renders the claim false or fraudulent.  Continue reading

The Move to Self-Reporting Continues: Self-Referral Disclosure Protocol

health law complianceBy: James Saling

The Center for Medicare and Medicaid Services (CMS) issued proposed Self-Referral Disclosure Protocol (SRDP) forms and revisions to the regulations on May 6, 2016. This was an additional step in the move for providers to self-report violations of the Stark Law.  Part of the revisions to the regulations came as a result of the final overpayment rule issued earlier this year on February 11, 2016 (60 Day Rule). CMS expects that the SRDP forms will facilitate faster review of a self-disclosure and make it easier for providers to report violations.

The SRDP was established as a result of the Affordable Care Act and is a tool for resolving Stark Law compliance issues. One of the problems with the SRDP is the time that self-disclosures worked their way through the system.  Some self-disclosures have yet to be resolved and were initially made years ago. Continue reading

Addiction Treatment Attack by Payers Grows

money viseBy: Jeff Cohen

Addiction treatment providers continue to react to an assault by payers to run them “out of town.”  The first round of attacks (in the Fall of 2014) focused on the practice of copay and deductible write offs.  The phrase cooked up by lawyers for Cigna, “fee forgiveness,” wound its way into the courts system in Texas in a case (Cigna v. Humble Surgical Hospital, Civ. Action No. 4:13-CV-3291, U.S. Dist. Ct., S.D. Tex., Houston Division) against a surgery center, where Cigna argued that the practice of a physician owned hospital in waiving “patient responsibility” relieved the insurer from paying ANYTHING for services needed by patients and provided to them.  Though the case did not involve addiction treatment providers, it gave addiction treatment lawyers a look into what was going to come.  The same argument made in the Texas case was the initial attack by Cigna in a broad attack of the addiction treatment industry, especially in Florida.

As addiction treatment providers fielded Cigna’s “fee forgiveness” attack in the context of “audits,” providers held firm to the belief that justice would prevail and that they would soon restore a growing need for cash flow.  “If we just show them that we’re doing the right thing,” providers thought, “surely they will loosen up the purse strings.”  After all, this was a patient population in terrific need of help, with certain [untested] protection by federal law (the Mental Health Parity Act). Continue reading