Corporate Counsel

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  • January 10, 2017

    By Pamela Wolf, J.D.

    The year 2016 will undoubtedly be remembered as an unpredictable roller coaster for the labor and employment scene, with controversial regulations both issued by federal agencies and rolled back by the courts. And the unpredictability was seen in the courts, too, prompted by the unforeseen death of Supreme Court Justice Antonin Scalia in February and the vacancy left on the High Court for the rest of the year. The national election year also sparked heated battles over issues underscoring deep national divides, such as antidiscrimination protections for lesbian, gay, bisexual, transgender, and queer individuals, and fixing our complex immigration problem.

  • January 9, 2017

    By Carol Potaczek, J.D.

    The EBSA has issued Frequently Asked Questions (FAQs) addressing special enrollment for group health plans, coverage of preventive services, and health reimbursement arrangements (HRAs), as impacted by the implementation of the ACA, HIPAA, and the recently-enacted 21st Century Cures Act (Cures Act; P.L. 114-255). The FAQs were prepared jointly by the Labor, Treasury, and Health and Human Services departments.

  • January 6, 2017

    By Kayla R. Bryant, J.D.

    CMS’ updated guidance to surveyors on facility treatment of justice involved individuals removes the previous disallowance of specialized units and the third example scenario (inmate Edward) that appeared in the previous guidance. The American Hospital Association (AHA) lauded this change, having previously taken the position that security units benefit staff, visitors, and all patients, including prisoners and jail inmates ( Revised CMS Letter, S&C: 16-21-ALL, December 23, 2016).

  • January 6, 2017

    By Jessica Y. Washington, J.D.

    A Muslim medical assistant’s claim of religious discrimination failed where the health center that employed her could prove that her termination resulted from her violation of the health center’s clearly communicated Health Insurance Portability and Accountability Act (HIPAA) ( P.L. 104-191) policies, and not her religious beliefs or practices, a New York court ruled in a slip opinion. The medical assistant failed to establish a prima facie case of religious discrimination and the health center successfully demonstrated that it had a legitimate, non-discriminatory basis for terminating the medical assistant based on her inappropriate access of patient medical records. The health center clearly stated in its compliance program manual (a copy of which had been provided to the medical assistant upon her hiring) that any such violations would result in immediate dismissal. ( Hababi v. Lutheran Medical Center, December 16, 2016, Martin, L.).

  • January 6, 2017

    By Jeffrey H. Brochin, J.D.

    A recent case review of inpatient rehabilitation hospitals conducted by the HHS Office of Inspector General (OIG) found that a number of patients who were not suited for intensive post-acute rehab therapy nevertheless remained in inpatient rehab hospitals for extended periods of time. Some of the patients were in very poor condition suffering from pre-existing physical limitations, altered mental status, or unresolved health problems, or were lacking in the endurance necessary to benefit from the intensive rehab regimen prescribed. The report called upon CMS to provide additional technical assistance to ensure that Medicare patients are placed in the most appropriate setting for post-acute care ( OIG Report, No. OEI-06-16-00360, December 23, 2016).

  • January 6, 2017

    By Kayla R. Bryant, J.D.

    Aetna Life Insurance Company (Aetna) is able to recoup up to $41 million from Humble Surgical Hospital, LLC (Humble) after Humble used money received from Aetna to pay kickbacks to referring physicians. The U.S. District Court for the Southern District of Texas noted that there are three different methods for calculating the amount that Aetna may take from Humble, and gave Aetna the freedom to elect a method after Humble committed what the court deemed "guerrilla warfare against this court, Aetna, the patients, and common decency" during a case with a "tortured existence" ( Aetna Life Insurance Co. v. Humble Surgical Hospital, LLC, December 31, 2016, Hughes, L.).

  • January 6, 2017

    By Bryant Storm, J.D.

    The Provider Reimbursement Review Board (Board) determined that it has jurisdiction to decide a number of provider appeals related to the validity of the 0.2 percent decrease in the inpatient prospective payment system (IPPS) rate for fiscal year (FY) 2014, the calculation of disproportionate share hospital (DSH) Medicaid eligible days, and a Medicaid ratio issue related to Medicare rehab low-income patient payments. The Board also found jurisdictional impediments in several similar appeals due to insufficient documentation, a lack of timeliness, and other procedural errors ( PRRB October 2016 Jurisdictional Determinations ; PRRB November 2016 Jurisdictional Determinations).

  • January 6, 2017

    By Kayla R. Bryant, J.D.

    Off-campus provider-based hospital outpatient departments (HOPDs) that qualify for the mid-build exception must submit the required materials to their Medicare Administrative Contractor by February 13, 2017, to qualify for the exception for services provided in 2018. The hospital must (1) attest that department requirements are met; (2) include the department on the provider’s enrollment form; and (3) and submit a written certification that the department met the mid-build requirement that is signed by the CEO or COO of the main provider. All attestations must be audited by HHS for accuracy.

  • January 5, 2017

    By Pamela Wolf, J.D.

    House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has introduced the “Regulatory Accountability Act of 2017,” which combines a series of regulatory reform initiatives reported out of the House Judiciary Committee and passed by the House of Representatives during the 114th Congress. The bill, H.R. 5, is aimed at eliminating “overly-burdensome red tape and regulations in order to lift unnecessary burdens on hardworking Americans and to promote jobs, innovation, and economic growth,” according to its sponsor. Goodlatte undoubtedly sees an easier route to passage in the now Republican-controlled Congress and Republican President-elect Donald Trump.

  • January 4, 2017

    By Joy P. Waltemath, J.D.

    EEOC regulations under the ADA and GINA that say the use of a penalty or incentive of up to 30 percent of the cost of self-only coverage does not render “involuntary” a wellness program (either a participatory or health-contingent program) that seeks the disclosure of ADA- or GINA-protected information survived a challenge by the AARP, the federal district court in the District of Columbia ruled in late December. It found that AARP had associational standing—bringing suit on behalf of its members—to challenge the regs, but AARP did not establish irreparable injury. Specifically, the potential disclosure of health information required by the regs is not public disclosure, and employers are statutorily forbidden from using it to discriminate against employees. Further, paying higher premiums is economic harm, which is not irreparable. The court also found the EEOC entitled to some deference given that “voluntary” is not defined in either the ADA or GINA, and that on this limited record (resulting from AARP’s delay in challenging the regs), the EEOC had offered an apparently reasonable explanation for its change of course to allow the use of penalties or incentives.

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