Health Law Pointers - Volume II, No. 1

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HHS Issues Proposed Federal Privacy Rules

On November 3, 1999, the U.S. Department of Health and Human Services ("HHS") issued a proposed rule designed to protect the privacy of health information disseminated electronically. Only those health care organizations permitted by the proposed rule and who have authorization from the patient will be able to access a patient’s health information electronically. The proposed rule will allow patients to access, amend, correct and receive an electronic report of disclosure of their personal health records. It is estimated that it will cost the health care industry $3.8 billion over a five-year period to comply with the proposed rule.

In December, HHS extended the comment period after receiving several industry and consumer group requests. The deadline for comment is now February 17, 2000. Originally, HHS was to have promulgated a final rule by February 21, 2000. It is anticipated that the rule will not be finalized before March 15, 2000. Please watch future editions of Health Law Pointers for follow-up on HHS’ final privacy rules.

Judge Dismisses Local Gastroenterologist’s Anti-Trust Claim against OLV

Barbara E. Salamon, a local board-certified gastroenterologist, sued Our Lady of Victory Hospital ("OLV") and several of its medical staff personnel for anti-trust violations alleging that the hospital and several of its medical staff members conspired to force her out of the gastroenterology field in the Buffalo market because she complained of sexual harassment. The defendants' conduct, she claimed, "increases the cost to the public of obtaining gastroenterological services and denies the public access to the only female gastroenterologist in the area." Judge John T. Elfvin dismissed Salamon's complaint for lack of standing after concluding that she failed to support a claim of "market-wide injury". The court noted that the evidence does not support that Salamon’s allegations that "the public is being denied access to gastroenterological services at OLV or elsewhere in the [market] area" (Salamon v. Our Lady of Victory Hospital, W.D.N.Y., No. 99-CV-0048E(H), 10/5/99), but only that the public is being denied access to her services.

Florida Introduces Internet Credentialing!

Florida is setting the standard for bringing uniform credentialing standards into the twenty-first century. On January 3, 2000, the State’s Department of Health introduced its Internet-based "CoreSTAT" system through its Division of Medical Quality Assurance. Florida Lawmakers have authorized the Department to serve as an information clearing house, providing health care organizations with both verified and unverified data. The information expected to be available on Florida’s credentialed physicians will include:

  1. Physician education, training, and licensure;

  2. Specialty board affiliations;

  3. Educational Commission for Foreign Medical Graduates certification;

  4. Hospitals and other institution affiliations;

  5. Evidence of malpractice insurance coverage;

  6. History of claims;

  7. Lawsuits, judgments or settlements;

  8. Final disciplinary actions; and

  9. Medicare and Medicaid sanctions.

To view a video of how CoreSTAT works, click on http://www.corestat.net, the Department’s world-side web site.

The Office of the Inspector General Issues New Safe Harbors and Clarifies Original Safe Harbor Provisions

On November 19, 1999, the Office of the Inspector General issued its final rule clarifying the existing Department of Health and Human Services, Office of the Inspector General’s ("OIG") Safe Harbor Provisions under the Anti-Kickback Statute, and adding New Safe Harbors (Fed. Reg. November 19, 1999, (Vol. 64, No. 223)). The OIG’s new Safe Harbors provide increased protection for

  1. Investment entities in underserved areas,

  2. Ambulatory surgical centers,

  3. Investment interests in group practices,

  4. Physician recruitment,

  5. Obstetrical malpractice subsidies,

  6. Referral agreements for special services, and

  7. Cooperative hospital service organizations.

The Anti-Kickback Statute provides for criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit or receive remuneration in order to induce business reimbursable under the Federal or State Health Care Programs (Medicare and Medicaid). The OIG also developed "safe harbors" for the protection of those business structures that may be technically covered under the statute but that should not be subject to criminal prosecution.

If you are interested in further information regarding the OIG’s final rules, please call one of our health care law professionals.

NLRB Says Interns and Residents Are Employees

In a recent 3-2 decision, the National Labor Relations Board ("NLRB") overturned twenty year old precedent holding that interns and residents at a private hospital in Boston, Massachusetts are employees Boston Medical Center Corp. and House Officers’ Ass’n. Comm. Of Interns and Residents, 330 NLRB No. 30, 11/29/99. (330-30, click here to view the entire decision as reported). As a result of this ruling, some 90,000 interns and residents across the country are free to organize under the National Labor Relations Act. While union officials believe the interns and residents will be flocking the union halls seeking representation, many private hospitals do not feel the decision will have a big impact on the industry or its relationship with the interns and residents.

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