radar Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry
The Centers for Medicare & Medicaid Services (CMS) published its Final Rule today to implement a minimum staffing “floor” for nursing homes in the United States, as first announced on April 22. The Final Rule, which as proposed garnered significant attention and opposition, with over 46,000 public comments submitted, reflects the Biden administration’s efforts to implement staffing mandates to ensure quality of care for long-term care (LTC) nursing home residents.
The Boston Bar Association hosted its fifth annual White Collar Crime Conference on May 2, 2024, featuring prosecutors from the US Attorney’s Office for the District of Massachusetts (the Office) and the Office of the Massachusetts Attorney General (the AG’s Office) as well as lawyers from the defense bar.
As noted in our recent LawFlash, the US Department of Justice’s (DOJ’s) COVID-19 Fraud Enforcement Task Force (CFETF) recently released its annual compilation report of its efforts to combat fraud related to pandemic relief programs since 2020. Accompanying the report, Deputy Attorney General Lisa Monaco and the Biden administration announced strong support for creating and securing funding for future data analytics tools like those used by the Pandemic Response Accountability Committee’s (PRAC) Pandemic Analytics Center of Excellence (PACE).
Hospice Update
The old adage—March comes in like a lion and goes out like a lamb—didn’t quite hold true for the hospice sector, which experienced a late-month flurry of activity. The government gave the hospice sector a lot to consider, from MedPAC’s suggested freeze on hospice rates to CMS’s 2025 Proposed Hospice Rule (public comments due May 28, 2024) that, if finalized as is, would include a 2.6% payment bump. CMS’s Proposed Hospice Rule lays the groundwork for the long-anticipated Hospice Outcomes and Patient Evaluation (HOPE) quality measures data collection instrument, which will be used to collect data at various points during the hospice stay, not just at admission and discharge.
Washington’s My Health My Data Act (MHMDA), signed into law last year, is here and goes into effect on March 31, 2024, with small businesses having until June 30, 2024 to comply. As previously reported, the new data privacy law is broad and will have significant impact for both Washington residents and persons whose business or data flows through the state. In brief, the legislation is intended to protect consumer health data not otherwise protected by state and federal healthcare privacy regulations, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
The US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Substance Abuse and Mental Health Services Administration (SAMHSA) issued long awaited updates to the regulations at 42 CFR Part 2 (Part 2) on February 16, 2024. Part 2 is a critical set of rules protecting the privacy of patients receiving substance use disorder (SUD) treatment services and their associated clinical records.
The Medicare program is broken down into four parts. Part A covers the cost of healthcare items and services provided during inpatient hospital stays as well as skilled nursing facility, hospice, and some home health care. Part B covers certain physician services, outpatient care, medical supplies, and preventive services. Together, Parts A and B are commonly referred to as traditional Medicare or fee-for-service (FFS) because claims for each item or service are submitted to the Centers for Medicare & Medicaid Services (CMS) for reimbursement through its Medicare Administrative Contractors.
If you have had a loved one suffer from dementia, you know the emotional, physical, and financial toll of this terrible disease. With advancements in dementia treatment, however, there is renewed hope on addressing this disease and increasing emphasis on fostering innovative care models.
The US Department of Justice (DOJ) Civil Division released its annual fraud statistics on February 22, highlighted by False Claims Act (FCA) settlements and judgments exceeding $2.68 billion in fiscal year 2023. DOJ released these annual fraud statistics, detailing its wins in the prior fiscal year, in conjunction with remarks delivered by DOJ Principal Deputy Assistant Attorney General Brian Boynton at the Federal Bar Association Qui Tam Section Conference. In his remarks, Mr. Boynton outlined DOJ’s enforcement priorities for fiscal year 2024 and beyond, including priorities for the health care industry.
The Health Care Fraud and Abuse Control Program (HCFAC), an annual report jointly issued by the US Department of Justice (DOJ) and Department of Health and Human Services (HHS), can be helpful in predicting DOJ and HHS priorities for the coming year. In the FY 2022 HCFAC, DOJ and HHS not only highlighted a series of fraud and abuse enforcement wins, but also indicated increased activity by and with the US Food and Drug Administration (FDA) and the DOJ Consumer Protection Branch (CPB). This increase in activity from these regulatory agencies should be of interest to stakeholders in the pharmaceutical and medical device sectors.