Firm News & Legal Alerts

Friday, June 1, 2012


Section 6002 of the Patient Protection and Affordable Care Act (PPACA), pursuant to a provision referred to as the “Sunshine Law”, requires certain manufacturers (“applicable manufacturers”) of drugs, devices, biologicals, or medical devices 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 (referred to in the statute as “covered recipients”) during the course of the preceding calendar year. Applicable manufacturers must report the required payment and other transfer of value information to the Center for Medicare and Medicaid Services (CMS) to an electronic format by March 31, 2013, and on the 90th day of each calendar year thereafter. Applicable Manufacturers are subject to civil monetary penalties for failing to comply with the reporting requirements. CMS is required by the statute to publish the reported data on a public website. The data must be downloadable, searchable and easily aggregated.
Read more . . .

Friday, June 1, 2012


The U.S. Supreme Court, in reviewing appeals as to the constitutionality of the Affordable Care Act (ACA), with a 5 to 4 Decision and Chief Justice Roberts breaking with dissenters, has left the ACA intact, for now.  The foundational requirement that most citizens buy health insurance or pay a fine was held to be a tax permitted by the Constitution, and not decided under the Commerce Clause.  As all provisions hinging upon the mandate remain intact, the focus should now shift to – what will the ACA mean to physicians? 

Some key surviving insurance provisions:

  • 1Insurers cannot deny coverage based on pre-existing condition,  
  • 2Annual or lifetime coverage limits are barred,  
  • 3Dependent coverage is now mandated to age 26, 
  • 4Preventive services must be provided without cost-sharing.
    Read more . . .

Tuesday, May 1, 2012


From an admittedly pro-physician, overly “doctor-protective” and openly biased perspective, there has never been a greater need for all physicians throughout the United States to immediately increase their healthy paranoia, eliminate any residual trust they may have had in their state and federal governments, and become completely and relentlessly self-protective. Let me say it directly - No investigator from any office of the federal or state government visits a physician to “help” them, “educate” them or simply “chat” with them. No request for medical records is benign, academic or routine. What is even more disturbing than the use of these deceptions, however, is that physicians continue to fail to recognize them as deceptions and, to make matters worse, blindly cooperate in (and many times, enable) their own destruction.

So, while there are certainly more, here are the three things every physician can, should and must stop doing right now:

Read more . . .

Sunday, April 1, 2012


The United States is currently experiencing an epidemic of diversion of lawful prescription drugs.  It is now recognized that prescription drugs are the most often abused drugs in the United States. Diversion takes place when otherwise lawful prescription drugs are “diverted” to persons for whom the drugs were not intended.  Diversion also takes place when a patient uses medications beyond the medical necessity for which they were prescribed; that is, the patient obtains and uses the drugs to satiate dependency or addiction. In addition, a provider who prescribes or otherwise obtains controlled substances for his/her own use is another unfortunate example of diversion.
Read more . . .

Wednesday, March 21, 2012

Kamhi v. Emblem Health Inc.

March 21, 2012.  In Kamhi v. Emblem Health Inc., et al., the Supreme Court, Kings County, partially denied a managed care organization’s motion to dismiss a complaint by a plaintiff physician for damages resulting from the non-renewal of the physician’s participation in certain managed care networks in violation of Public Health Law (“PHL”) §4406-d.
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Wednesday, March 21, 2012

Koch v. Sheehan

On March 23, 2012, the New York Supreme Court, Appellate Division, Fourth Department, in the case of Koch v. Sheehan, held that an exclusion from Medicaid by the New York State Office of the Medicaid Inspection General ("OMIG"), based solely on a physician’s execution of an OPMC Consent Order, without any independent investigation by the OMIG, is arbitrary and capricious conduct and thereby not permitted.  This is the first Appellate Court to rule on an ongoing conflict between the New York State Office of Professional Medical Conduct ("OPMC") and OMIG, which prior to Koch has resulted in conflicting decisions in the Supreme Courts throughout the state on whether OMIG can exclude a physician’s participation in Medicaid, solely based on the entry of an OPMC Consent Order.  This is an issue that our clients routinely face when negotiating and entering into an OPMC Consent Order. The execution of an OPMC consent order typically results in collateral issues for the physician, such as disciplinary actions by hospitals, board and professional societies, professional liability insurance carriers, and private and public payors, including New York State Medicaid.  The Koch decision is a significant victory for physicians faced with the decision of entering into an OPMC Consent Order, as OMIG must now perform its own investigation in order to take disciplinary action against the affected physician, rather than relying solely on the entry of an OPMC Consent Order.  For a copy of the Koch decision, please click here.

Thursday, March 15, 2012

Decision Issued in Maimonides Medical Center v. First United American Life Insurance Company

Brooklyn Supreme Court Justice Carolyn Demarest has issued a decision in Maimonides Medical Center v. First United American Life Insurance Company, finding a private right of action by a healthcare provider against a Managed Care Organization under New York’s Prompt Pay Law.  Insurance Law 3224-a, provides that where an insurer is clearly liable to pay a health care claim, the health care provider or patient must be paid within 30 days of receipt of an electronically transmitted claim, or within 45 days of receipt of a claim transmitted by any other means (Insurance Law § 3224-a [a]). Where liability for the claim is not reasonably clear, the insurer must pay any undisputed portion and, within 30 days of receipt of the claim, provide either written notification specifying the reasons why it is not liable or a written request for any additional information necessary to determine its liability (Insurance Law § 3224-a [b]). An insurer that fails to abide by these standards “shall be obligated to pay to the health care provider or person submitting the claim” the full amount of the claim plus interest at the statutorily authorized rate (Insurance Law §3224-a [c] [1]). The Prompt Pay Law authorizes the Superintendent Financial Services to investigate violations and assess civil penalties, both on his own accord and upon complaint from an individual health care provider or policyholder (Insurance Law § 3224-a [c] [2]).  Justice Demarest has decided that an individual patient or provider has a right to bring suit to recover the funds alleged to be due, together with the statutorily imposed interest.  We expect this decision to be appealed to the Appellate Division.

Wednesday, March 7, 2012

New York Department of Financial Services Report

On Wednesday, March 7, 2012, the New York Department of Financial Services released a report entitled "An Unwelcome Surprise: How New Yorkers Are Getting Stuck with Unexpected Medical Bills from Out-of-Network Providers."  The report found an overwhelming need for increased transparency from insurers and healthcare providers, as well as improved consumer protection measures to ensure New Yorkers stop receiving unexpected medical bills from out-of-network providers.  The report proposes a number of reforms, such as: (i) increased disclosure by insurers of their methodology for determining out-of-network reimbursements; (ii) increased disclosures from insurers and medical providers regarding anticipated out-of-network costs associated with the provision of non-emergency care; (iii) a prohibition on excessive fees charged in emergency care situations; (iv) improving network adequacy protections for PPO and EPO subscribers (such as those enjoyed by HMO subscribers); and (v) minimum standards for out-of-network coverage.

Thursday, February 16, 2012

ICD-10 Diagnostic and Procedural Coding System Delay

On February 16, 2012, Health and Human Services (“HHS”) Secretary Kathleen G. Sebelius announced that the federal government will delay for an unspecified time the implementation date for the ICD-10 diagnostic and procedural coding system.  ICD-10, which has been widely used in many other countries for years, was scheduled to replace ICD-9 in the United States in October 2011.  During the 2008 public comment period, providers received a delay until Oct. 1, 2013.  According to the press release, federal officials are acting on providers' concerns "about the administrative burdens they face in the years ahead.”  HHS said it will "announce a new compliance date moving forward."

Thursday, February 9, 2012

NYS Comptroller to Audit a Non-Participating Provider of Medical Services

February 9, 2012.  Late last year, a decision was rendered by the Appellate Division, Third Department, which reversed a lower court, and upheld the authority of the NYS Comptroller to audit a non-participating provider of medical services to beneficiaries of the Empire Plan.  Under the Empire Plan, the New York State Insurance Program contracts with United Health Care Insurance Company of New York, a commercial insurer, to provide health insurance coverage to State employees and retirees. 
Read more . . .

Wednesday, February 1, 2012

Are You Ready for the New ICD-10 and Electronic Version 5010? Changes Start Taking Effect in Early 2012...

The International Classification of Diseases (10th edition) (ICD-10) codes will take effect on October 1, 2013. While this may seem far off, according to the Centers for Medicare and Medicaid Services (CMS), physicians should begin preparing for the changes immediately. In addition, the CMS will require use of the new Version 5010 for the electronic submission of claims beginning in early 2012. Although the Version 5010 represents less of a structural transformation than ICD-10, its impact will come in just a few months. Failure to prepare for either change can (and most likely will) result in unpaid claims.
Read more . . .

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