radar Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry
The US Department of Health and Human Services Office of Inspector General (OIG) posted on October 25, 2023 Advisory Opinion No. 23-08, in which OIG rejected a proposed arrangement from a cochlear implant device manufacturer (the requestor) that would provide a free hearing aid to certain qualified patients who received a cochlear implant.
The US Department of Health and Human Services Office of Inspector General (OIG) released its new General Compliance Program Guidance (GCPG) on November 6, 2023. The GCPG is designed to serve as a reference guide for the healthcare compliance community and other healthcare stakeholders.
The US Drug Enforcement Administration (DEA) issued a temporary rule on October 6, 2023 extending COVID-19–era flexibilities through December 31, 2024. With this extension, the DEA will continue to waive provisions under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 that prohibit practitioners from prescribing controlled substances to patients without first conducting an in-person encounter.
If your organization has faced a Medicare audit in the last decade, you may have experienced a significant delay in the Medicare appeals process due to a monumental backlog of claims pending in front of administrative law judges (ALJs). As a result, the Office of Medicare Hearings and Appeals (OMHA) has initiated several pilot programs and received a significant boost in funding following a federal court decision requiring OMHA to develop a plan to reduce this backlog.
The Biden administration recently announced its much-anticipated proposed rule for implementing a minimum staffing “floor” for nursing homes in the United States and further launched a nursing home accountability initiative. These efforts are seismic for the long-term care nursing home community and will bring new challenges and scrutiny to a health industry sector battered with healthcare personnel shortages, pandemic recovery obstacles, changing reimbursement models, and regulatory scrutiny.
The US Department of Health and Human Services, Office for Civil Rights (OCR), announced a settlement agreement on June 15, 2023 with not-for-profit community hospital Yakima Valley Memorial Hospital (Yakima) related to Yakima employees’ snooping in medical records that resulted in the breach of protected health information (PHI).
The Seventh Circuit recently rejected a series of class action claims against Google and the University of Chicago Medical Center alleging that the medical center improperly sold patient health information to the tech giant, which, in conjunction with Google’s other data, could be used to reveal patient identities and other sensitive information. The court’s July 11, 2023 decision is a major win for privacy compliance officers, whose jobs have become increasingly arduous with the proliferation of new privacy laws and the potential for significant consequences for violations.
In the second blog post of our series on healthcare chief compliance officers and lawyers accused of “going bad,” we discuss Texas attorney Peter J. Bennett (licensed since 2007) who was charged in the Eastern District of Texas in February 2022 (and in a December 2022 superseding indictment) with conspiracy to commit money laundering, conspiracy to operate an unlicensed money transmitting business, and two counts of perjury in relation to an illegal kickback-for-referral scheme. Bennett was convicted of all counts after a five-day jury trial on July 14, 2023 and is now awaiting sentencing.
For over a year, the hospice industry, legislators, and state and federal regulators have expressed concerns about the fast growth and potentially unscrupulous activities of new hospices in several states in particular. Those concerns were covered in the press and congressional hearings, with the California legislature leading the way to clamp down on abusive hospice practices with a hospice license moratorium enacted in 2022. Hospice industry leaders had called for the Centers for Medicare and Medicaid Services (CMS) to take additional action to target abusive new hospice practices in certain states and on July 12, 2023, CMS announced targeted oversight of new hospices in Arizona, California, Nevada, and Texas in a “MLN fact sheet.”
Lawyers from the defense and plaintiff’s bar and current and former prosecutors from the US Attorney’s Office for the District of Massachusetts (Office) and the Office of the Massachusetts Attorney General gathered in May at the Boston Bar Association’s White Collar Crime Conference. The conference ran the gamut of thought leadership in the white collar crime space, but the highlight was the panel on healthcare fraud.