Legal News

OIG Approves Hospital Payment for Physician On-Call Services
6.03.09

On May 21, the U.S. Department of Health and Human Services Office of Inspector General (OIG) issued an advisory opinion in which it concluded it will not impose sanctions or civil monetary penalties against a hospital for an arrangement under which the hospital will pay physicians for on-call services provided to the hospital’s uninsured patients.  Because of the unwillingness of its physicians to provide on-call coverage, the hospital requesting the OIG’s opinion desired to amend its medical staff bylaws to allow participating physicians to submit claims to the hospital for payment for services rendered to certain indigent and uninsured patients presenting to the hospital’s emergency department.  The OIG concluded that adequate safeguards existed under the proposed arrangement so as to present a low risk of fraud and abuse.  View OHA’s summary of the OIG’s opinion.  Read the OIG opinion in its entirety.  (Sean McGlone)

Medicare Secondary Payer Reporting Broader than Most Realize
5.13.09
 

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 added new mandatory reporting requirements for group health plan arrangements and for liability insurance (including self-insurance), no-fault insurance, and workers' compensation.  (See 42 U.S.C. 1395y(b)(7) & (8)).  While many hospital and professional liability self-insurance trusts and self-insured workers’ compensation programs are preparing for the new reporting requirements, hospitals also may need to report due to deductibles on liability insurance coverages or other programs.  CMS continues to get pressure from the employer and business communities and another delay in implementation date is expected.  Click here for a valuable outline on the MSP reporting rules by Christine Poth of Bricker & Eckler.  CMS updates can be found at http://www.cms.hhs.gov/MandatoryInsRep/01_Overview.asp#TopOfPage.

FTC Postpones Red Flags Rule
05.01.09

The Federal Trade Commission (FTC) voted to delay implementation of the Red Flags Rule concerning identity theft prevention programs until August 1, 2009.  The previous compliance deadline was May 1, 2009.  For more information, see the FTC's press release at www.ftc.gov/opa/2009/04/redflagsrule.stm.

EEOC Reports Discrimination Charges Hit Record High
04.28.09

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that national workplace discrimination charge filings soared to the unprecedented level of 95,402 during fiscal year 2008.  This represents a 15% increase from the previous fiscal year.   EEOC Acting Chairman, Stuart J. Ishimaru observed, “the EEOC has not seen an increase of this magnitude in charges filed for many years.  While we do not know if it signifies a trend, it is clear that employment discrimination remains a persistent problem.”  According to the FY 2008 data, all major categories of charge filings increased with charges based on age and retaliation having the largest annual increases.   Allegations based on race, sex and retaliation remained the most frequently filed charges.

The FY 2008 data also indicates that the EEOC file 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private sector charges.  As a result, the EEOC recovered approximately $376 million in monetary relief for thousands of individuals, in addition to obtaining significant remedial relief from employers.  The FY 2008 enforcement and litigation statistics are available at http://www.eeoc.gov/stats/enforcemnt.htm. 

This apparent increase in discrimination claims, combined with Congress’s recent changes to the Americans with Disabilities Act and the Family and Medical Leave Act, should motivate hospitals to reexamine their employment policies and handbooks to confirm that they comply with current law.

Court Issues Decision Regarding FICA Taxes for Medical Residents
03.17.2009

In September 2007, the Ohio Hospital Association, along with hospital associations from Michigan, Kentucky and Tennessee, filed an amicus (friend of the court) brief with the Sixth Circuit Court of Appeals in an action concerning whether the Detroit Medical Center is entitled to a refund for FICA taxes it paid on medical residents’ stipends in the years 1999, 2000, and 2001.  In its claim for a refund, the DMC argued first, that the “student exception” to FICA taxes applied to the medical residents and second, that the residents’ stipends were exempt from FICA as scholarships or fellowships. 

OHA’s amicus brief supported the DMC’s effort by arguing that the question whether medical residents’ stipends qualify for the “student exception” to FICA taxes raises genuine issues of material fact and that the district court failed to apply a “facts and circumstances” analysis.

The Sixth Circuit Court heard oral arguments in April 2008.  On February 26, 2009, the Court issued its decision in which it rejected DMC’s argument that medical residents’ stipends were exempt from FICA as scholarships or fellowships, but agreed that medical residents could qualify under the “student exception” and that district courts must apply a “facts and circumstances” analysis.  Accordingly, the Court of Appeals sent the case back to the district court with unusually specific instructions for the court to take evidence regarding details of DMC’s medical resident program.

In 2004, the IRS amended its regulations so that a medical resident working 40 hours or more per week does not qualify for the student exception from FICA taxation.  Although these new regulations have been challenged in courts, they have not been revoked.  Hospitals should consult their tax advisors before changing the way they classify resident stipends.

President Obama designates Liebman as Chairman of the National Labor Relations Board
2.11.09

On January 20, 2009, President Obama designated Wilma B. Liebman to be the Chairman of the National labor Relations Board.  Liebman has served on the Board as a member since first appointed by President Clinton in 1997.   Prior to joining the NLRB, Liebman served as the Deputy Director of the Federal Mediation and Conciliation Service (FMCS), Special Assistant to the Director of FMCS, Labor Counsel for the Bricklayers and Allied Craftsmen, and  Legal Counsel to the International Brotherhood of Teamsters.

Typically, the Board includes five members.  Currently, however, the Board consists only of Chairman Liebman and Member Schaumber.  Accordingly, President Obama has three vacancies on the Board to fill.

New HIPAA Frequently Asked Questions for Family Medical History
1.21.09

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has published new HIPAA Privacy Rule frequently asked questions (FAQs) related to family medical history.  These FAQs support the roll out of the Surgeon General’s family health history portal, “My Family Health Portrait,” a new version of the web-based tool that enables individuals to electronically record, save and email family medical information in formats that are compatible with electronic health records (EHRs).  Individuals using this portal to assemble, download and transmit family history information may have questions about privacy and how family history can be used or shared by health care providers.  The new FAQs provide answers to these questions.

These new HIPAA FAQs are available on the OCR Privacy Rule Web Site at http://www.hhs.gov/ocr/hipaa.

2009 OHA Hospital Law Handbook is now available. A compendium of Ohio statutes and regulations applicable to hospitals, physicians, nurses and other health care workers. 2009 Handbook updates will be available through June 2010. Cost: $75 OSHRM & SOHA members, $100 OHA members; $150 nonmembers. Contact Rhonda Major-Mack to order. 2008 Handbook updates will be available through June 2009  online

Links
View useful legal links

RESOURCES
►OHA Model Medical Staff Bylaws (NEW)

►2009 Hospital Reporting Obligations (NEW)

►Compliance Manual - Research compliance standards in a searchable online manual developed by OHA and Bricker & Eckler for OHA members

STATUTES
►HB 529 – adopts Revised Uniform Anatomical Gift Act effective April 7, 2009:

►SB 304 – extends time in which a newborn may be abandoned at a hospital, effective March 23, 2009:

REGULATIONS
►ODI issues 2007 closed medical malpractice claims: 

►Nurse licensure regulations revised effective February 1, 2009:

►EMS trauma triage revisions took effective December 28, 2008:  

LEGAL PROCEEDINGS
►Ohio Supreme Court clarifies medical affidavit civil procedure rule 10(D)(2):
►OHA files amicus curiae in negligent credentialing appeal: 
►OSHRM monthly listing of health care-related Ohio appellate rulings:
►Ohio Supreme Court issues ruling on patient consent in medical records release case.