Firm News & Legal Alerts

Saturday, March 1, 2014

FSA’s, HSA’s and Over-the-Counter Reimbursement: New Rules and New Requirements

As part of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, patients can now seek reimbursement for the cost of certain over‐ the‐counter (OTC) medicines and drugs. The rule affects reimbursements under employer‐ sponsored health plans, health flexible spending arrangements (health FSAs), and health reimbursement arrangements (HRAs), as well as health savings accounts (HSAs) and Archer medical savings accounts (Archer MSAs).

Presently, the cost of OTC medicines and drugs are deemed “medical expenses” that are eligible for reimbursement from group health plans (and are “qualified medical expenses” eligible for distribution from HSAs and Archer MSAs). However, these new changes amend the definition of what is considered a “medical expense” and restrict the reimbursement of funds used to purchase OTC medicine and drugs going forward after December 31, 2010.

As of January 1, 2011, reimbursement for medicines and drugs as permissible medical expenses can only be obtained if the medicine or drug requires a prescription; is available without a prescription (i.
Read more . . .

Tuesday, January 21, 2014

Principles For Physician Advertising and Social Media

Social media has become a popular and prevalent form of marketing among various professionals, including physicians.  Whether a website, Facebook page or LinkedIn profile, there are, however, a series of federal and state legal requirements and prohibitions that must be taken into account. While each type of social media use must be assessed on a particularized basis, some broad stroke concepts are as follows:

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Tuesday, January 14, 2014

DOH Takes Action to Tighten Regulations of Urgent Care Centers and Other Ambulatory Care Facilities

The New York State Department of Health’s Public Health and Health Planning Council (“PHHPC”) has issued new recommendations addressing legal and regulatory changes for a variety of ambulatory care facilities, including urgent care centers, office-based surgery providers, freestanding emergency departments, and a new category of facility to be known as a limited services clinic. While these proposals are not yet law, healthcare providers should be mindful of the potential changes to existing ambulatory care models.

While ambulatory care is not a new concept, there has been an increase in the past decade in the scope of ambulatory care services being provided, as well as a more recent evolution in how ambulatory care services are provided to patients, especially in New York State.  The PHHPC is now taking steps to further regulate the growing number of ambulatory care facilities in New York and their operations.  In addition to heightened reporting and accreditation requirements, the proposals, according to the PHHPC, are aimed at encouraging primary care, while also restricting the universe of services that may be offered by ambulatory care providers.  Below is a brief summary of some of the new proposals.

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Tuesday, October 22, 2013

Koch v. Sheehan

On October 22, 2013, the New York State Court of Appeals decided the case, Koch v. Sheehan, 2013 NY Slip Op 06804 (N.Y. Oct. 22, 2013).   In Koch, the Court of Appeals held that the Office of the Medicaid Inspector General (OMIG) was legally permitted to automatically exclude a physician from the Medicaid program, based solely upon a Consent Order entered into between the physician and the New York state medical licensing board (OPMC), regardless of whether or not the Consent Order provided that the physician’s license be suspended or revoked.
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Monday, October 7, 2013

Certificate of Public Advantage (COPA) Regulations

As integration and collaboration among healthcare providers, payors and other healthcare entities increase due to state and federal healthcare reform initiatives, so too have significant concerns arisen among market participants relating to antitrust liability.   Examples of such collaborations could include: (1) the sharing, allocation or referral of patients, personnel, instructional programs, resources, facilities and equipment; (2) the implementation of clinical integration programs and payment mechanisms; (3) asset or stock acquisitions, mergers and joint ventures; and (4) joint negotiation efforts by providers against payors.  Depending on the facts, circumstances and relationship among the parties to such agreements, the participants may be susceptible to claims of anticompetitive conduct and/or violations of federal antitrust laws.

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Thursday, August 1, 2013


Physician practices are frequently advised to know the requirements for obtaining reimbursement from a payor for services rendered and to have necessary documentation in place to withstand an audit. But do you know the same holds true to withstand a HIPAA audit of your practice conducted by the U.S. Office for Civil Rights? In other words, every physician practice should know the minimum requirements of the HIPAA Privacy, Security and Data Breach Notification rules and be prepared to prove compliance should OCR come calling. OCR’s audit protocol is extremely comprehensive but, as a starting point, you should make sure you have forms, policies and procedures in place to implement the following:


Privacy Rule requirements:

Notice of Privacy Practices

Revised Notice required as of September 23, 2013

Patient rights to request restrictions on disclosure of PHI

Certain restriction requests must be granted

Patient rights to access their PHI

Special rules apply for EHR

Uses and disclosures of PHI

Special authorizations apply for certain disclosures

Accounting of disclosures

Accountings differ when an EHR is involved

Amendment of PHI

Protocol required for responding to patient requests to amend

Business Associate Agreements

Revised agreements to reflect new definitions and subcontractors

Training of personnel, including physicians

Documented training must occur upon hire and at least annually


Security Rule requirements:

Administrative safeguards

Mandatory security risk assessment

Workforce security and training

Contingency plan

Security awareness and training

Physical safeguards

Facility access control

Workstation use and security

Device and media controls

Technical safeguards

Access control

Transmission security

Encryption analysis

Secure patient portals


Breach Notification Rule requirements:

Protocol for responding to a security incident

Data Breach Notification Policy and Procedures required

State laws must be addressed

Risk assessment to determine whether a breach has occurred

New factors must be applied

Steps to take when a breach has occurred

Documentation of the investigation must be maintained

Notification of affected individuals, HHS and the media

Timeframes must be met


If you are missing any of the above in your HIPAA Compliance Program, your practice will be at risk come September 23, 2013.
Read more . . .

Saturday, June 1, 2013


Perhaps the biggest federal tool used in the battle against health care fraud is a federal civil statute entitled the False Claims Act (FCA). It has been described as the single most important tool taxpayers have to combat fraud committed against the federal government. To give you an idea regarding its effectiveness, in fiscal year 2010 the U.S. Justice Department secured $3 billion in civil settlements and judgments in cases involving fraud against the government.
Read more . . .

Saturday, June 1, 2013


A recent decision from the New York Appellate Division, Fourth Department, Sciara v. Surgical Associates of Western NY, et al. may well have opened the door to the potential abuse of pre-trial depositions by allowing parties to circumvent the ability of non-parties (including physicians) to avail themselves of their right to legal counsel.1 

In the matter of Thompson v. Mather, a decision was reached by the Appellate Division which rigidly prohibited counsel for non-party witnesses from participating in a pre-trial deposition under CPLR 3113.
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Wednesday, May 22, 2013

Recent Changes: Scope of Practice for NPs and PAs

With the ongoing shortage of primary care providers, many states are expanding the ability of physician extenders to practice independently. These providers consist of nurse practitioners (NP) and physician assistants (PA).  This recent trend has come to New York as well, evidenced by the recently passed New York State 2013-2014 budget.

In the recent budget process, the Legislature expressed a strong interest in providing further independence regarding NP’s scope of practice.  The proposed legislation was not included in the final budget, but nevertheless appears to be an issue that the Legislature will take up again in the near future. The 2013-2014 budget did, however, make changes to the scope of practice of PAs; amending New York State Education § 6542(3 and 5), to increase the number of PAs that a physician can supervise in their private practice, from two to four. 

Read more . . .

Wednesday, May 1, 2013


On February 8, 2013, the Center for Medicare and Medicaid Services issued the Final Rule1 to implement Section 6002 of the Patient Protection and Affordable Care Act (PPACA) referred to as the “Sunshine Law.”2 The Sunshine Law requires applicable manufacturers of drugs, devices, biological or medical supplies (“applicable manufacturers”) covered under Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”) to report annually certain payments or other transfers of value to physicians and teaching hospitals to the Secretary of Health and Human Services (“HHS”). Applicable manufacturers and applicable group purchasing organizations (“GPOs”) must report certain information regarding the ownership or investment interests held by physicians or their immediate family members in such entities. HHS is required by statute to publish the reported data on a public website.  

According to HHS, payments from manufacturers to physicians and teaching hospitals can cause conflicts of interest that may influence research, education and clinical decision-making in ways that compromise clinical integrity, and may lead to health care costs.
Read more . . .

Thursday, February 14, 2013

AMA Issues Principles for Physician Employment By Hospitals

The AMA House of Delegates recently adopted, at its 2012 Interim Meeting, the AMA Principles for Physician Employment, which are designed to “help physicians, those who employ physicians, and their respective advisors identify and address some of the unique challenges to professionalism and the practice of medicine arising in the face of physician employment.” (

While the Principles are not binding for disciplinary purposes, in the same manner as the AMA Code of Medical Ethics, the House of Delegates intended to “provide broad guidance for employed physicians and their employers as they collaborate to provide safe, high-quality, and cost-effective patient care.”

Read more . . .

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