Health Law Monitor

Federal Agency Proposes New Disclosure and Enforcement Rules for Substance Use Disorder Records

February 21, 2023

SAMSHA’S Recent Proposed Changes to 42 C.F.R Part 2

The U.S. Health and Human Services Department (HHS), through the Substance Abuse and Mental Health Services Administration (SAMHSA) on November 28, 2022, announced significant proposed changes to the Confidentiality of Substance Use Disorder (SUD) Patient Records Rule under 42 C.F.R. Part 2  (“Part 2”).[1]

Background on Part 2

Part 2 is a federal…

With an Extension Likely, Telehealth Seems Here to Stay

October 6, 2022

Telehealth is a growing trend in medicine.  From 2019 to 2020, telehealth use increased an eye-popping 3000%, not including Medicaid and Medicare claims.  Although the claims have decreased slightly as of 2021, telehealth is clearly here to stay and with it comes new challenges.

What is Telehealth?

For the purposes of Medicare, “telehealth services” are “professional consultations, office visits,…

SCOTUS Says a Medicare Patient is Included in the DSH Medicare Fraction Even if Medicare Does Not Pay

August 25, 2022

Earlier this summer, the Supreme Court issued an opinion in Becerra v. Empire Health Foundation, a case where a hospital challenged the Department of Health and Human Services (“HHS”) interpretation of a 2004 regulation affecting the way Medicare’s disproportionate share hospital (“DSH”) adjustments are calculated. The Supreme Court upheld HHS’s interpretation, much to the disappointment of the…

IMPACT OF LICENSING BOARD COMPLAINTS ON MALPRACTICE CLAIMS

August 3, 2022

Licensing boards provide consumer protection in the form of regulation, but do not provide compensation.  Patients who claim harm from malpractice use the civil court system to seek compensation.  Board complaints are sometimes used by claimants to further a malpractice claim.  The potential of civil liability is an important consideration when handling a board action, highlighting the need for…

WV Supreme Court Reinforces Mandatory Pre-Suit Requirements in Medical Professional Liability Actions

July 12, 2022

West Virginia’s Medical Professional Liability Act (MPLA), W. Va. Code 55-7B-6(b), provides that at least thirty days before filing suit, a claimant must serve two pre-suit documents - a Notice of Claim and a Certificate of Merit - on each health care provider they intend to sue.  Timely compliance with the statute can “toll” or extend the applicable statute of limitations.  In Adkins v. Clark, No.…

HIPAA Rules Now Permit Audio-Only Telehealth

June 16, 2022

On June 13, 2022, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced new guidelines clarifying how audio-only telemedicine can comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules (HIPAA Rules).[1] These guidelines were announced in response to Executive Order 14058, issued on…

Creating Cultural Responsiveness in the Colorado Healthcare Network

May 6, 2022

Beginning January 1, 2023, the Colorado Option Plan will go into effect. Under the Colorado Option Plan, private insurers will be required to offer a standardized insurance plan that offers certain health care services and dictates the services that insureds could receive without paying towards the deductible to the counties in which insurers already sell plans to the individual and small group…

West Virginia Board of Medicine Investigators May Now Be Carrying Concealed Firearms

April 27, 2022

In its most recent legislative session, the West Virginia Legislature passed a law, which was subsequently signed by Governor Justice, that will allow investigators with the West Virginia Board of Medicine to carry a concealed firearm.[1]  This is a new law that will create a new statutory section in the West Virginia Medical Practice Act, which is codified at W. Va. Code 30-3-1, et seq.  According…

The Consolidated Appropriations Act, 2022 (March 15, 2022) Provides Five-Month Reprieve for Telehealth Flexibility Upon the Expiration of the COVID-19 Public Health Emergency under 42 U.S.C 1395m(g)(1)(B)

March 18, 2022

Since January 31, 2020, the federal government has been operating with robust authority to combat the COVID-19 pandemic based on the U.S. Secretary of Health and Human Service’s ongoing declaration of a “public health emergency” (PHE) under 42 U.S.C 1395m(g)(1)(B). Telehealth services have been ubiquitous throughout the pandemic, and the expanded grant of legislative authority under the PHE have…

Potential Showdown Between State Exemptions to COVID-19 Vaccination and Federal Vaccine Mandates in West Virginia.

February 18, 2022

Last month, the Supreme Court lifted the stay regarding the Centers for Medicare & Medicaid Services (“CMS”) vaccine mandate for providers participating in the Medicare and Medicaid programs to require their employees to be vaccinated against Covid-19.[1] However, several states, including West Virginia, have recently adopted statutes that interfere with  employers’ ability to implement mandatory…

Colorado HB 22-1163: State Income Tax Deduction for Medical Expenses

February 10, 2022

On Friday, February 4, 2022, Colorado House Bill 22-1163 was introduced in response to growing out-of-pocket medical expenses in the state.  These expenses are expected to increase by nearly ten percent per year over the next five years.  Up to five hundred thousand Coloradans may lose their coverage under Medicaid in the near future, resulting in substantially more out-of-pocket medical expenses.…

"Play Ball" - The No Surprises Act Update: Fourth Installment

January 19, 2022

Congress enacted the No Surprises Act (the “Act”) to protect patients against “surprise bills,” while at the same time respecting a provider’s ability to receive remuneration for services rendered. To accomplish this, the Act creates an independent dispute resolution process (“IDR”), whereby the provider and insurance plan negotiate charges for an item or service in a manner similar to major…