Health Care Law Review

Interested in learning about trending issues in health care law from the country's top legal minds?

Don't miss our Health Care Law Review, where we talk to attorneys nationwide about the latest developments in health care and what they mean for regulatory law.

What private equity's focus on health care means for you
June 2019

Health care providers are no stranger to regulatory compliance. Health care is one of the most heavily regulated industries, and adhering to state Corporate Practice of Medicine (CPOM) laws and ensuring compliance with fraud and abuse statutes are evergreen issues. However, the emergence of private equity (PE) firms as health care strategic partners in recent years has pushed providers to view these issues through a new lens.

To learn more about the legal and strategic implications of PE investment in health care provider organizations, we spoke with Jennifer Malinovsky, a partner at Nelson Mullins Riley & Scarborough, L.L.P.

Reconsidering participation in MSSP? Don't overlook antitrust compliance.
February 2019

Change is afoot in the world of ACOs. At the end of 2018, CMS proposed an overhaul of the current Medicare Shared Savings Program (MSSP), which underscores their intention to accelerate ACOs' transition towards downside risk. Now, current MSSP participants are evaluating whether they are ready to take on more financial accountability for cost and quality outcomes or whether they're better off exiting the program. And those that are ready may even double down on the model by expanding into more commercial markets.

While anyone would agree that providers' decision to stay or leave MSSP should be based on a multitude of factors (e.g., existing management infrastructure, system margin performance), it's important to not overlook the legal implications of that decision, particularly with regard to clinical integration and antitrust compliance. To learn more about what that might entail, we connected with John Steren of Epstein Becker Green who provided his take on the decision that providers face and offered some key points to keep in mind moving forward.

The legal hurdles standing in the way of telehealth (and how they might be overcome)
July 2018

The next few years may not be smooth sailing for telehealth. While many providers see telehealth offerings as a way to attract consumers, expand geographic reach, and reduce the cost of care, they face significant financial, operational, legal, and regulatory challenges to adopting telehealth services.

We sat down with Julian Rivera, a Partner at Husch Blackwell, to understand current telehealth regulations, how they've shifted in recent years, and what legal challenges providers may still face.

In the #MeToo era, how can hospitals prevent harassment and discrimination?
May 2018

Over the last few months, as more allegations of workplace sexual harassment have come to the fore, providers have asked Advisory Board for best practices regarding implementation and enforcement of anti-discrimination, and in particular anti-sexual harassment, policies.

To learn more about the challenges health care employers face in this space and how they can overcome them, we sat down with Dan Levy, a Partner at Epstein Becker Green.

Think before you tweet: The potential legal pitfalls of hospitals' social media use
October 2017

As more providers come to view social media as a critical aspect of their marketing and strategy toolkits, it's important to understand how hospitals and health systems can appropriately engage with social media while ensuring compliance with privacy laws, notably the Health Information Portability and Accountability Act (HIPAA).

Recently, we spoke with Mark Hedberg and Matthew Jenkins, partners at Hunton & Williams LLP, about the legal challenges providers face with regard to social media use and how they might overcome those challenges.

EMTALA: The ED law that could cost you and how to avoid it
May 2017

Fines against hospitals and physicians for violating the Emergency Medical Treatment and Labor Act (EMTALA) totaled over $6 million between 2002 and 2015. Despite the fact that only 3% of investigations trigger a civil monetary penalty, the risk of a potential $50,000 fine per violation coupled with negative publicity and reputational harm make focusing on preventing any EMTALA violation a worthwhile investment.

We spoke with Douglas Swill, the chair of Drinker, Biddle, & Reath LLP's National Health Care Practice, about the main challenges facing providers related to EMTALA today, the boundaries of when the law applies, how to prevent a violation, and what to do if under review.

What providers should know about the medical marijuana legal landscape
February 2017

With three states voting this past November to legalize medical marijuana, more than half of the states plus the District of Columbia now permit marijuana use for medicinal purposes.

We spoke with Winn Halverhout, Steve Levine, and Fred Miles of Husch Blackwell LLP about the main challenges facing providers related to medical marijuana, how the new administration might change the legal landscape, and more.

What you need to know about the ACA's nondiscrimination provision
October 2016

In June, CMS announced the final rules related to Section 1557 of the Affordable Care Act (ACA), implementing the nondiscrimination provision of the ACA.

We spoke with Barnes & Thornburg's Anne Compton-Brown to find out just what this provision means and what changes it may bring for providers.

How to fight medical errors and optimize treatment plans with Medication Therapy Management programs
June 2016

The pharmaceutical industry has grown increasingly complex as the field works to meet the needs of an aging and ailing U.S. population. While the movement toward accountable care aims to break down those siloes, coordinating multiple medication regimens remains a struggle for hundreds of thousands of Americans. Medication Therapy Management (MTM) aims to address that need.

We spoke with Mr. Paul DeMuro and Dr. Stephanie Gernant of Broad & Cassel to discuss the challenges facing MTM in addition to the role it can play in improving health care.

Who's at the telehealth table? Challenges facing providers, vendors, and government.
April 2016

Telehealth services will likely play an integral part in improving access to and efficiency of care. However, the reimbursement and regulatory landscape surrounding telehealth services remains murky at best and restrictive at worst.

We spoke with Julie Allen, Jen Breuer, and Fatema Zanzi of Drinker, Biddle & Reath to discuss the rapid evolution of telehealth and how the government must respond to changing health care demands.

Why providers must address the practice losses argument during fraud and abuse legal proceedings
December 2015

Several recently settled qui tam cases filed by "relators" (i.e., whistleblowers) under the False Claims Act reflect a growing trend that threatens to eviscerate the Stark Law's exceptions protecting the employment of physicians by hospitals or integrated delivery networks.

We spoke with Matthew Jenkins and Mark Hedberg of Hunton & Williams, LLP to discuss some of these cases and explore why practice losses are not evidence of commercially unreasonable compensation practices by providers employing physicians.

How providers can balance FMLA and ADA obligations
November 2015

When an employee qualifies for leave under the Family Medical Leave Act, the employer might also have obligations to the employee under the Americans with Disabilities Act (ADA).

We spoke with Geoffrey Trotier of von Briesen & Roper, s.c. to discuss how employers, such as health care providers, can ensure compliance with FMLA and ADA.

How providers should address post-implementation ICD-10 challenges
November 2015

Similar to the uneventful response observed following the arrival of "Y2K", ICD-10 has come and the nation's health care system remains intact. However, questions remain regarding the transition's effect on revenue, as well as the scope of potential government enforcement.

It's clear that the full effects of ICD-10 have yet to be felt. We spoke with George Breen, Bethany Hills, and Jackie Selby of Epstein Becker & Green, P.C. about what providers ought to consider as they address and prepare for post-transition challenges.

What providers must know about the 2016 Physician Fee Schedule Proposed Rule
September 2015

In July 2015, CMS published the 2016 Physician Fee Schedule (PFS) Proposed Rule, which included several significant clarifications and proposed modifications to Stark Law regulations.

We spoke with Laura Seng at Barnes & Thornburg LLP to discuss the 2016 PFS Proposed Rule and how these proposed changes could impact providers.

How providers can adjust to the new interpretation of CMS's 60-day rule
August 2015

In August 2015, the Southern District of New York issued the first judicial opinion in a False Claims Act (FCA) case brought under CMS’s “60-day rule." The verdict was widely seen as a victory for the government, which took a hard-line position based on the 60-day rule that the the involved hospital's retention of overpayments for up to two years violated the FCA.

We spoke with Colin McCarthy of Hancock, Daniel, Johnson & Nagle, P.C. to discuss how the decision impacts providers—especially those who fail to investigate and correct payment mistakes in a timely manner.

What providers must know about the King v. Burwell decision
July 2015

The June 25, 2015 decision of the U.S. Supreme Court was a victory for the President’s administration, but it didn't mark the end to the national debate over the Affordable Care Act.

We spoke with Charles Harris and Matthew Jenkins of Hunton & Williams, LLP to discuss the King v. Burwell decision and its impact on providers now and in the future.

How a recent Supreme Court ruling on antitrust laws could impact providers
May 2015

The Supreme Court's 2015 decision in N.C. Board of Dental Examiners v. FTC could have a major effect on providers by forcing states to review their professional licensing boards while also potentially exposing both regulators and regulated entities to antitrust claims.

We spoke with Bruce Hoffman and Brian Hauser at Hunton & Williams, LLP to discuss the antitrust implications of the ruling on providers.

How providers can avoid antitrust pitfalls during a physician practice acquisition
March 2015

Providers are pursuing physician practice acquisitions to expand their competitive footprints and enhance patient access. With any merger or acquisition strategy, providers must be mindful of federal antitrust laws that aim to keep the quality of care high, market competition robust, and prices fair.

We spoke with Lisa Gingerich at von Briesen & Roper, s.c. to discuss why an Idaho health system was forced to unwind a 2012 transaction by the courts and how providers can avoid antitrust pitfalls when acquiring physician practices.

Next, Check Out

General Counsel Agenda, Fourth Quarter, 2015