What Physicians Need to Know About the New California End of Life Option Act

On October 5, 2015, the California legislature passed the “End of Life Option Act” (the “Act”), which permits physicians to prescribe an aid-in-dying medication to terminally-ill patients.  The Act is set to take effect on June 9, 2016.  While health care providers will be obliged to give terminally-ill patients information about their end of life options, including their right to request aid-in-dying medication, provider participation in the Act is completely voluntary.  Furthermore, healthcare organizations have a limited ability to actively prohibit their employees and independent contractors from participating in certain end of life activities authorized by the Act.

This blog post will provide physicians with a brief overview of their rights and obligations under the Act. The information herein will be of particular import to medical groups as they navigate service agreements with healthcare partners that wish to opt-out of the Act.

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New Amendments Grant Failing ACA Co-Op Program Access to Private Capital and Limit Special Enrollment Eligibility

Earlier this month, the Centers for Medicare and Medicaid Services (CMS) passed an interim final rule that amends regulations governing Consumer Operated and Oriented Plans (Co-ops) and tightens restrictions on special enrollment period (SEP) eligibility in the Health Insurance Marketplace. Of the 23 co-op plans established through the Affordable Care Act (ACA), only 11 are still in operation. The new provisions intend to support the financial viability of the remaining co-ops by allowing access to private sector investments.

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FTC Suffers Setback in Campaign to Slow the Rising Tide of Healthcare Consolidations

The FTC just suffered a major setback in its concerted efforts to challenge the ever growing number of consolidations in the healthcare industry, failing to secure a preliminary injunction to block a hospital merger in central Pennsylvania.  In a decisive and strongly-worded opinion, the Honorable John Jones III of the Middle District of Pennsylvania concluded that (1) the FTC had fatally alleged an unrealistically narrow geographic market; and (2) the merger was likely to benefit (not harm) consumers, in part by allowing the merged entity to remain competitive in the new healthcare environment which “virtually compels” consolidations.  Federal Trade Commission et al. v. Penn State Hershey Med. Ctr. et al., Case No. 1:15-cv-02362 (May 9, 2016, M.D. Penn).

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IRS Denial of Section 501(c)(3) Status for a Commercial ACO

The IRS recently released a ruling, Private Letter Ruling (“PLR”) 201615022, denying Section 501(c)(3) tax-exempt status to a “commercial” accountable care organization (“ACO”).  This is the IRS’ first published guidance regarding a commercial ACO, and the most recent guidance from the IRS regarding the tax-exempt status of ACOs since 2011 when the IRS established that an ACO participating in the Medicare Shared Savings Program (“MSSP”) can qualify for Section 501(c)(3) status.

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Did the FCA’s “Implied Certification” Theory Dodge a Bullet?

Yesterday’s argument before the Supreme Court in Universal Health Services, Inc. v. U.S. ex rel. Escobar had the potential to put false claims based on an “implied certification” in the crosshairs. Instead, based on the weight of questioning by a plurality of justices, it appears that some form of implied certification theory may survive. (We previously reported on this case, here.) Continue Reading

Be Alert: Ransomware Attacks on the Rise

Big name companies, government agencies and individuals are all falling victim to “ransomware” attacks in record and still-rising numbers. Recently, Hollywood Presbyterian Hospital’s communications capabilities were disabled for 10 days before the hospital paid a ransom of 40 bitcoins – about $17,000 – and regained access to its system. And this week Medstar Health, a system of ten major hospitals in the Washington, DC area, reportedly suffered a similar attack. All this activity has led experts to label 2016 as “the year of ransomware.”  And this new form of cyberattack requires a different approach to cybersecurity and incident recovery than your data breach prevention plan. Continue Reading

CMS Grants Extension to Apply for 2015 Meaningful Use Hardship Exemption

The Centers for Medicare and Medicaid Services (“CMS”) continues to work to ensure it is responsive to providers who tried to meet meaningful use standards in 2015 but faced hardships in their efforts. Eligible professionals, eligible hospitals & critical access hospitals (“CAH”) now have until July 1, 2016 to apply to CMS for the Medicare EHR Incentive Program hardship exception under the new, streamlined process under the Patient Access and Medicare Protection Act (“PAMPA”), signed by the President in December 2015. CMS indicates on its website that the extension is to ensure “providers have sufficient time to submit their applications to avoid the 2017 payment adjustment.”  Eligible providers who did not meet meaningful use standards for 2015 receive an adjustment to their 2017 payment unless CMS grants a hardship exception. Continue Reading

CMS Clarifies 60 Day Overpayment Rule

The Department of Health and Human Services’ (HHS) Center for Medicare and Medicaid Services (CMS), is set to publish a final rule that will provide some much needed relief to healthcare providers from the burdens of the so-called 60-Day Overpayment Rule.  The final rule clarifies (1) the 60 day period for refunding overpayments is not triggered until both the fact and amount of an overpayment are known; (2) the standard for knowledge is not “actual knowledge,” but when the provider would have identified the overpayment had it exercised reasonable diligence; and (3) the manner in which the refund must be made. Continue Reading

Initiative to Improve Quality After Discharge: New Caregivers’ Laws

This month Indiana,[i] Illinois,[ii]  California,[iii] Oregon,[iv] and New Hampshire[v] join  11 other states with newly effective Care Advise Record Enable (CARE) laws[vi] requiring hospitals to give patients the opportunity to designate caregivers to assist them after leaving the hospital.  These laws are in  response to an initiative from the American Association of Retired Persons (AARP) to enable patients to have coordinated assistance with care after discharge.  Continue Reading

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