Welcome to the New York Health Care Blog, a community forum moderated by Harris Beach PLLC focused on the health care industry in New York state. Our goal is to generate an insightful discussion of current issues impacting the delivery of health care in New York. We will be offering our views as attorneys who work daily with health care providers and we encourage you to follow and to participate in the discussion.
Recently a federal District Court sitting in New York refused to dismiss certain employment law claims brought by a medical staff member against a hospital. The court instead found that whether the medical staff member was an “employee” of the hospital who could bring a discrimination claim under Title VII of the Civil Rights Act of 1964 was a fact specific question requiring a jury trial.
Abbott Laboratories Inc. (Abbott) pleaded guilty and agreed to pay $1.5 billion over allegations that it promoted the anti-seizure prescription drug Depakote for uses not approved as safe and effective by the Food and Drug Administration (FDA). Abbott unlawfully promoted Depakote for unapproved uses including psychiatric conditions in children and adolescents, schizophrenia, depression, anxiety, obsessive-compulsive disorder, attention deficient disorder and autism. Abbott also promoted Depakote in nursing homes to control agitation and aggression in elderly patients with dementia. The FDA had approved Depakote only to control epileptic seizures and bipolar mania and to prevent migraines.
Unless struck down by the Supreme Court, the Affordable Care Act[1] is scheduled to increase the number of adults eligible for Medicaid. Beginning in 2014, low-income childless adults will be guaranteed Medicaid coverage in every state and adults with children will be guaranteed coverage at a uniform income level across all states. This translates into many more people on Medicaid beginning in 2014, especially for states with less generous eligibility laws than New York.
Health care employers should take heed of the EEOC’s updated guidance on when and how to consider a prospective employee’s criminal history. The attached Legal Alert prepared by the Harris Beach PLLC Labor and Employment Practice Group reminds employers that the use of criminal histories must be job related. Read here.
The Centers for Medicare and Medicaid Services (CMS) no longer requires parties disclosing violations of the physician self-referral law (Stark) to specify total improper Medicare receipts and total improper physician remuneration for entire periods of noncompliance.
In an announcement earlier today, Governor Andrew Cuomo proposed legislation that would “establish the strongest standards and practices in the nation for protecting people with special needs and disabilities.” The proposed legislation would create a new investigative agency—the Justice Center for the Protection of People with Special Needs—tasked with overseeing the care provided to individuals with developmental disabilities. In addition to the creation of this new investigative agency, the proposed legislation would also enact the following reforms:
On May 2, 2012, the U. S. Senate’s Finance Committee issued an open letter to the health care community soliciting solutions and suggestions for preventing and combatting waste, fraud and abuse in the Medicare and Medicaid programs. The letter acknowledges that numerous efforts have been made to reduce fraud, which efforts have yielded mixed results. The letter goes on to opine that federal efforts to eliminate fraud, waste and abuse would be strengthened with input from a broad cross section of the health care community, including providers, payors, health plans, contractors, not-for-profit entities, patients and others. The full text of the letter can be found here: http://finance.senate.gov/newsroom/ranking/release/?id=d2527088-4f4c-434f-863f-5e980aaa2637.
According to a recent press release, Phoenix Cardiac Surgery, P.C., of Phoenix and Prescott, Arizona (Phoenix Cardiac) has agreed to pay the U.S. Department of Health and Human Services (HHS) a $100,000 settlement. The settlement follows an extensive investigation by the Office of Civil Rights (OCR) for potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. As part of the settlement, Phoenix Cardiac, which is a practice consisting of only five physicians, agreed to additional corrective actions and the implementation of policies and procedures to safeguard the protected health information of its patients.
On Friday, April 20, Walgreens paid $7,900,000 to settle claims that it had violated the False Claims Act. The settlement arises out of claims that Walgreens offered gift cards and other similar promotions to beneficiaries of government health care programs in exchange for transferring prescriptions to Walgreens pharmacies. In general, it is illegal for a pharmacy to provide anything of value to a federal health care beneficiary in exchange for bringing a prescription to that pharmacy. In fact, Walgreens advertisements regarding its promotional programs typically acknowledged that government health care beneficiaries were not eligible to participate in its promotion programs. Nonetheless, the Department of Justice alleged that Walgreens ignored these limitations and provided gift cards to government health care program beneficiaries.
By Terrance P. Flynn and Mitchell J. Pawluk
After each New York State Attorney General first takes office the media proclaims “There is a new sheriff in town.” With Attorney General Schneiderman’s announcement last week of a $300 million lawsuit against Sprint-Nextel, it is clear the proclamation is true. The lawsuit revealed his new Taxpayer Protection Bureau’s first use of a powerful new weapon to fight fraud. As a result, the new bureau is nothing short of a fraud S.W.A.T. team.