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Business interruption insurance is especially important for small businesses and companies that rely on physical locations to carry out day-to-day activities associated with their organizations.  Our business and healthcare law firm represents medical practices and other businesses with regard to insurance coverage disputes.  Filing a business interruption claim can be the best way to recover income loss and damages that occur as a result of a reduction or cessation of business operations. As the COVID-19 pandemic, continues to create disruption and financial uncertainty for business owners, insurance companies’ reluctance to cover interruption claims has initiated state responses to protect businesses from losses stemming from closures, seizure of ordinary business operations, and supply chain interruption.

Georgia-based Insurance Coverage and Business Litigation Attorneys

A March 6 article in the Wall Street Journal reported that U.S. insurance companies already have rejected claims submitted for coverage of business interruption related to the Coronavirus.

pills-2-300x225Today, the United States Department of Justice announced by press release its formation of Operation Synthetic Opioid Surge (S.O.S.).  An objective of SOS is the reduction of dangerous opioids in particular areas of focus, to identify wholesale distribution networks, and to locate suppliers.

The Opioid Crisis

Opioids are medications that affect the nervous system and/or specific receptors in the brain, for the purpose of reducing pain.  In the late 1990s, based on assurances from the pharmaceutical industry that patients were not likely to become addicted to pain relievers, physicians began to prescribe opioids at a higher level than in prior years.  Increased prescriptions led ultimately to widespread misuse of opioids.  Later, it became clearer to the medical community that opioids can be highly addictive.

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small-bottle-and-dropper-1473970-300x226House Bill 1, Haleigh’s Hope Act, went into effect on April 16, 2015. HB 1 makes it lawful to possess up to 20 fluid ounces of low-THC oil, commonly known as “medical marijuana.” On May 8, 2018, Governor Deal signed House Bill 65, which expanded the conditions medical marijuana could be used to treat. As a consequence of HB 65’s expansion, it is likely that more employees will be allowed to possess and use medical marijuana.

Does this mean that you must permit your employees to possess and use medical marijuana while at work, and if you terminate their employment, you are committing disability discrimination?

Not exactly.

gavel-952313-mOur Georgia and South Carolina healthcare law firm has learned that the United States Department of Justice issued a press release announcing a resolution by settlement of fraud and abuse allegations levied against a Detroit physician, Gerald Daneshvar M.D.  Due to our focus on healthcare law, our law firm follows legal developments in the healthcare industry.

Dr. Daneshvar was criminally charged and, following a two-week jury trial, convicted of one count of conspiracy to commit health care fraud.  His alleged co-conspirators and co-defendants were Stephen Mason, M.D. and Leonard Van Gelder, M.D.  Mason and Gelder plead guilty to conspiracy to commit health care fraud.  These doctors were alleged to have worked for Lake MI Mobile Doctors, which provided physician home visits to homebound patients who were Medicare beneficiaries.  However, according to the Government’s evidence at trial, Dr. Daneshvar billed Medicare for patient visits where the patient was not really sick or homebound and, along with his codefendants, conspired to bill Medicare at the highest rates even though the patient visits were short or unnecessary.  For doing so, these physicians received greater compensation from Mobile Doctors.

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data-storage-1-1155466-mIf you are like most of the healthcare industry, the answer is “yes” according to a recent study by the United States Department of Health and Human Services.  The department’s Health Care Industry Cybersecurity Task Force report, a result of the work of 21 cybersecurity experts, was issued in late spring and found that this most private of information is at significant risk of being compromised by malware or cyber hacking.  “HHS task force says healthcare cybersecurity in ‘critical condition’,” according to Jessica Davis from Healthcare IT News.

The task force reported that the health care industry was breached by cyberattacks more often than any other industry in 2015.  Combined with the increase in ransomware attacks the following year, the report found that sensitive patient information is at high risk of attack.  The report listed several contributing factors.  These include the idea among smaller entities that they are relatively safe from these attacks, because attackers target larger health care providers.  This has proven false.  Because the health care industry is so interconnected and interdependent, the industry’s cyber safety is only as “secure as the weakest link.”  Id.  Basically, if the would-be attacker can gain access to anyone within the system, it can probably access all who do business within that system.  Furthermore, the report found that due to staffing shortages, three-fourths of hospitals do not have anyone dedicated to these security issues.

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gavel-952313-mThe Eleventh Circuit Court of Appeals denied an appeal and upheld the convictions of a physician assistant and a patient recruiter in Florida for their actions in allegedly defrauding the Medicare program of $200 million in false claims. Both the physician assistant, Roger Bergman, and the patient recruiter, Rodolfo Santaya, worked for American Therapeutic Corporation based out of Miami.  ATC provides psychiatric care for patients with mental illness.

Medicare Fraud

Bergman was alleged to have submitted false claims to the Medicare program by falsifying patient documents to make it appear that the patients were eligible for the programs offered at ATC, but in fact they were not. In addition, Bergman submitted false patient documentation that stated Medicare-eligible care was given to patients when no such services were ever provided. Claims for payment from the Medicare program for false or ineligible services were billed by ATC and paid out to the company. Santaya’s alleged role in the fraud scheme was to go to low-income neighborhoods, apartment complexes, and retirement homes to recruit disabled or elderly patients to ATC, receiving up to a $45 kickback for each patient obtained. The patients brought in by Santaya would be ineligible for the outpatient psychiatric care provided by ATC or did not even have medical needs necessitating psychiatric care at all. Santaya was alleged to have focused only on Medicare beneficiaries in his recruitment efforts and instructed the patients to lie about their symptoms in order to administer billable services to them. The subject convictions and sentences affirmed by the Eleventh Circuit are 15 years for Bergman and 12 years for Santaya.

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Image result for hospital signAs discussed in part 1 of this post, closing a medical practice can be burdensome and complicated. In the first segment, notification to the licensure board, patients, employees, and DEA was discussed. Some other smaller steps a physician should consider taking to ensure a clean closure include:

  • notifying the practice’s accountant;
  • notifying the office/property insurer;

united-states-capital-516992-m.jpgThe U.S. House voted recently to delay the so-called “individual mandate” of the Affordable Care Act (ACA). On July 17, 2013, the House passed the Fairness for American Families Act, H.R. 2668, sponsored by Rep. Todd Young (R-IN). Passage of H.R. 2668 sets the stage for a political show down about whether to implement some, all or none of the ACA. Swords are drawn. The ACA survived the political fight for its passage. It survived the legal fight about its constitutionality. But can it survive the fight about whether, or to what extent, to actually implement it?

The H.R. 2668 Digest expresses concern that implementation of the ACA will “have significant consequences on patients, our nation’s healthcare system, taxpayers, job holders, job creators, individuals, families, and the economy.” According to the Digest, “the 190 million hours per year that American families will be forced to spend complying with [ACA] requirements; the likelihood that seven million people will lose their employer based insurance, the increase in health insurance premiums by as much as 400 percent for individuals and 100 percent for the small group market; the $716 billion cuts to Medicare; the $628 billion expansion of Medicaid to mostly childless adults, the 159 new government boars, including IPAB, and the 800,000 job losses that the CBO anticipated.

According the supporters of H.R. 2668, the following are key points and dates on healthcare:

Higher Costs and Taxes

• Limitation on flexible savings account contributions to $2,500 per year (indexed to CPI)
• Imposition of a 0.9 percent Medicare Part A wage tax and a 3.8 percent tax on unearned, non-active business income for those earning over $200,000 or $250,000 for families (not indexed to inflation)
• Imposition of a 2.3 percent excise tax on medical devices • Increase in the income threshold for claiming tax deductions for medical expenses from 7.5 percent to 10 percent • Elimination of the existing deduction for employers who maintain prescription drug plans • Cuts to Medicare payments to hospitals for treating low-income seniors • Increase in Medicaid payment rates to primary care physicians for primary care services to 100 percent of the Medicare payment rate for 2013 and 2014 • Start of open enrollment in Health Insurance Marketplace – October 1, 2013
More Government, Higher Costs

• Implementation of Health Insurance Marketplace (Exchanges) – 17 states plus DC will implement their own exchanges, 7 in partnership with federal government, remaining 26 states will be run by the federal government – January 1, 2014 • Prohibition on annual limits or coverage restrictions on pre-existing conditions (guaranteed issue/renewability)
• Extension of prohibition on excessive waiting periods to existing health plans • Imposition of modified community ratings: family versus individual; geography; 3:1 ratio for age and 1.5:1 for smoking • Imposition of government-defined “essential benefits” and coverage levels on insurance plans • Limitation on out-of-pocket cost sharing (tied to limits in HSAs). Limits are $6,250 for individuals and $12,700 for families (indexed for COLA)
• Implementation of premium subsidies for insurance purchased in the Health Insurance Marketplace — amounts of subsidies are dependent on income and available up to 400 percent of the federal poverty line • Requirement that federal government offer at least two multi-state plans in every state
Higher Taxes

• Imposition of new health insurance industry tax (increase will be $8 billion in 2014, $11.3 billion in 2015 and 2016, $13.9 billion in 2017, and $14.3 billion in 2018 and indexed to medical cost growth afterwards • Imposition of individual mandate. Individuals who fail to obtain acceptable insurance will incur a penalty tax of the greater: $695 or 2.5 percent of income. For families without approved coverage, penalties are capped at $2,250 until 2016 and then indexed for inflation
Higher Costs/Lost Coverage/Lost Jobs/Employer Mandates
• Imposition of the Employer mandate. Employers with 50 full time employees or more who fail to offer “affordable” coverage must pay a $3,000 penalty for every low-income employee that receives a subsidy through the Exchange, even if coverage is already provided • Imposition of $2,000 tax penalty on employers who employ more than 50 full time employees and don’t provide insurance coverage. Penalty assessed for every full time employee. Up to 30 full time employees are exempt when calculating penalty • Require employers with more than 200 employees to auto-enroll employees in health coverage, with opt-out options Decrease Access/Weakened Safety Net • Continued cuts to Medicare home health reimbursement • Implementation of IPAB recommendations • Cuts to Medicare payments to Disproportionate Share Hospitals • Cuts to federal Medicaid payments for Disproportionate Share Hospitals from $18.1 billion to $14.1 billion • Expansion of Medicaid coverage to 22 million childless adults up to 138 percent of the federal poverty line – diminishing resources for vulnerable populations. States will receive 100 percent of the FMAP 2014-2016, 95 percent in 2017, 94 percent in 2018, and 90 percent after
See H.R. 2668 Digest.
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1066466_dice[1].jpgOur health care system’s slow-but-sure conversion from paper to electronic health records (EHR) continues throughout the United States. The push toward EHR is strong, both as an inevitable industry trend toward efficiency and because of the mandate of federal law. EHR is obviously an integral part of health care reform changes. See January 31, 2013 post. Unintended adverse consequences of going paperless have appeared, however, including an apparent trend by doctors and other health care providers to haphazardly copy and paste identical notes from one patient visit to another.

This phenomenon — dubbed “sloppy and paste,” “sloppy pasting,” “copy-forward” and “cloning” — is a new problem in the industry and appears to be a strong trend. Although EHRs facilitate quick moves through patient records, the tempting ease of copy/pasting lends itself to mistakes. While many such mistakes may be innocuous, as an expansive trend copy/pasting EHR seems to have some meaningful unintended consequences, ranging from serious embarrassment, the appearance of billing fraud, or patient harm.

For example, since by definition coordinated patient care (another integral part of health care reform for which there is strong impetus) involves multiple health care professionals communicating with each other via the patient’s chart, the ability of each provider to rely upon the accuracy of information conveyed in the chart is critical. Proper management of all patient care in an integrated way requires an effective, accurate and timely exchange of information. The reliance of each provider upon inaccurate or misleading information copy/pasted into chart as a short cut can lead to confusion and mistakes and actually prevent “coordinated” care. In one reported example, a physician visited a patient in a coma who had postoperative complications. After reviewing the patient’s chart, the doctor visited with the patient’s very concerned family and commented to them that the patient was only in the third day of recovery, unaware that that the patient had been in recovery for over five weeks. For more than five weeks, the note “post-op day No. 2” was copied and brought forward each day. The highly embarrassed doctor’s credibility with the family was gone.
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