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On April 4, 2018, the Centers for Medicare & Medicaid Services (“CMS”) finalized guidance and policies for the Medicare Advantage program that will expand the supplemental benefits afforded to beneficiaries to include items and services that address certain “social determinants of health” (“SDOH”). SDOH refers to a wide range of factors and conditions that are known to have an impact on healthcare, ranging from socioeconomic status, education and employment, to one’s physical environment and access to healthcare. Previously, CMS did not allow an item or service to be eligible as a supplemental benefit if the primary purpose was for daily maintenance. CMS’ reinterpretation of the statute to expand the scope of the primarily health-related supplemental benefit standard is an important step in encouraging value-based care.
Continue Reading Medicare Advantage to Address Social Determinants of Health: An Important Step for Value-Based Care

“New York Settles EmblemHealth Breach for $575,000,” is a reprint of an article first posted on the Sheppard Mullin Eye on Privacy blog on March 15, 2018. EmblemHealth is one of the United States’ largest nonprofit health plans. It is headquartered in New York City, New York.

New York Settles EmblemHealth Breach for $575,000

The recent $575,000 settlement with EmblemHealth signals a push from AG Schneiderman “for stronger security laws and hold[ing] businesses accountable for protecting their customers’ personal data.” Noting New York’s “weak and outdated” security laws, AG Scheiderman used the settlement to urge for the swift passage of the Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) introduced by his office in November 2017, which would make New York one of the most protective states in terms of data privacy and security.
Continue Reading New York Settles EmblemHealth Breach for $575,000

Will the repeal of the net neutrality rules negatively impact the provision of TELEHEALTH SERVICES, which require robust and reliable internet connectivity?

Net neutrality is the principle that Internet Service Providers (ISPs) must treat all internet data equally and not discriminate or charge differently based on content, user, website, platform, application, or method of communication. Following this principle, the Obama-era Federal Communications Commission (FCC) adopted net neutrality rules in 2015, classifying high-speed broadband service as a public utility under Title II of the Telecommunications Act and prohibiting ISPs from intentionally speeding up, slowing down, or blocking any content, applications, or websites.[1] On December 14, 2017, however, the FCC voted 3-2 to repeal the net neutrality rules, creating considerable uncertainty about how this policy change will affect the healthcare industry, particularly with respect to telemedicine.[2]   
Continue Reading Life in the Slow Lane? What the Net Neutrality Repeal May Mean for Telehealth Services

This article previously appeared in Law360 on December 20, 2017.

As the U.S. shifts from a fee-for-service (FFS) system to a value-based system, healthcare IT will become an increasingly important component in fostering patient engagement, coordinating care, increasing access to services, and decreasing overall costs. Telemedicine, in particular, is viewed by many as the solution for achieving access to care and cost-efficiency. Concluding 2017, this article looks back on some of the legal and regulatory changes that occurred with respect to telemedicine as well as areas of interest to watch in 2018.


Continue Reading Telehealth In 2017: What Changed And What’s Ahead

The Texas Medical Board’s (the “Board”) adoption of new telehealth licensing regulations may finally put to bed long-running challenges to the state’s historically rigid position with respect to healthcare services delivered remotely via telemedicine.  As we previously reported, the Board had been embroiled in a legal dispute with Teladoc, a large, nationwide telehealth company, involving antitrust challenges and an injunction against the Board’s enforcement of its in-person examination requirement, discussed below.  The ongoing battle prompted action by the Texas legislature to enact statutory changes (Senate Bill 1107 passed last May) to eliminate the requirement that Texas physicians must conduct an in-person visit prior to issuing a prescription.  These new regulations were issued in response to the statutory change.
Continue Reading Texas Telemedicine Saga Finally Over? The Texas Medical Board Substantially Revises Telemedicine Regulations

In a move sure to cause murmurs in the large and growing mobile health application industry, the Office of New York Attorney General Eric Schneiderman (OAG) has used state trade laws to extract concessions and monetary penalties from mHealth app developers, including the developer of a supposed fetal heart monitoring smartphone app.
Continue Reading New York AG Takes Enforcement Action Against Heart Monitoring Apps: Murmurs of Concern are Heard in mHealth App World

The use of telemedicine has expanded access to care to patients in rural areas and provided a convenient alternative to battling congested physician offices and emergency department waiting rooms. In repeated studies the delivery of medicine through electronic means has reduced the cost of care, improved efficiencies, and provided a realistic solution to increasing shortages of physicians. Despite promising studies, however, multiple barriers continue to present obstacles to widespread adoption and implementation of telemedicine.  One of the greatest barriers to adoption continues to be variances and inconsistencies in state laws governing the practice of medicine.
Continue Reading Recent Relaxation of State-level Challenges to the Expansion of Telemedicine but Barriers Remain

On July 6, 2016, CMS released the 2017 Outpatient Prospective Payment System (OPPS) Proposed Rule which, among other things, implements Section 603 of the Bipartisan Budget Act of 2015.  Despite extensive lobbying efforts by the hospital industry, CMS’ proposed rule would effectively preclude the relocation or the expansion of service lines of existing off-campus provider-based departments.  In reaching this position, CMS noted its belief that Section 603 was intended to “curb the practice of hospital acquisition of physician practices that then result in receiving additional Medicare payment for similar services.”
Continue Reading CMS Proposes to Limit Site Neutral Payment Exceptions Applicable to Certain Off-Campus Hospital Departments Following Relocation, Service Expansion, or Certain Ownership Changes