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As Georgia schools and other businesses respond to open and operate safely in the face of the COVID-19 Pandemic, many are posting warning signs consistent with a new law in the state passed to protect them from liability.https://www.healthcarelaw-blog.com/files/2020/09/ewscripps.brightspotcdn.com_-300x169.jpg

Georgia-based Business and Healthcare Law Firm

This summer, Georgia joined many other states in passing a law to protect businesses including healthcare facilities and workers from liability from lawsuits brought by individuals or their survivors related to infections from or exposure to COVID-19 in visiting the premises of or obtaining healthcare services or personal protective equipment from those facilities, entities or individuals.  Senate Bill 359, signed by the Governor on August 5, 2020 provides that no healthcare facility or provider, entity or individual shall be liable for damages in an action involving a “COVID-19 liability claim” unless the claimant proves the actions of the healthcare facility, entity or individual resulted from gross negligence, willful and wanton misconduct, reckless or intentional infliction of harm.

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion relief act to provide financial support for individuals, businesses and CARES-ACT-close-scaled-e1585882477755-300x195government organizations that experienced revenue losses from COVID-19. The purpose of the Act is to offer financial relief and to establish telehealth benefits for patients needing non-COVID-19 services. Section A of the Act authorizes programs for relief and contains information about mandatory spending provisions, while section B contains provisions regarding discretionary and emergency appropriations. Over the next few weeks, this blog will discuss recent changes to the CARES Act, and the impact that those modifications are having on hospitals and physician practices. This post provides a brief overview of the CARES Act, as well as the attestation process that providers must follow upon receiving funds.

The Provider Relief Fund

The federal government partnered with United Health Group to disburse funds to providers from the Center for Medicare & Medicaid Services (CMS), through the Provider Relief Fund (the “Fund”). This $175 billion fund provides monetary relief for hospitals and healthcare providers on the front lines of the coronavirus response in the form of grants. The grants may be used for necessary expenditures due to the COVID-19 public health emergency and other expenses related to the Coronavirus that were not already part of an approved state or government budget.

About 20% of United States tax dollars are spent on heathcare.  Naturally, reducing improper payments has been a priority of CMS. Thus, all medical practice managers and healthcare providers should be aware of CMS’s process of contracting with Uniform Program Integrity Contractors (UPIC’s), private entities hired by CMS Health-Audit-300x200to audit providers suspected of fraud. UPIC contracts combine Zone Program Integrity Contractors (ZPIC’s) and Medicaid Integrity Contractors (MIC’s) to coordinate Medicare and Medicaid auditing. UPIC’s focus primarily on Medicare claims, and seek to distinguish between provider billing errors or fraud.

UPIC Audit Lawyers

Our business and healthcare law firm follows legal trends in the healthcare industry.  UPIC’s are private sector organizations that review Medicare claims in order to assist the government in recovering overpayments to healthcare providers.  UPIC audits are often generated through data analysis or by review of consumer complaints and most often target specific healthcare providers. UPIC’s conduct screening, medical reviews, and investigations, while also implementing remedies and collaborating with state and local governments to ensure compliance with payment guidelines. UPIC’s are organized regionally, with Georgia and South Carolina falling in District 4 and managed by Safeguard Services.  In recent years, home health agencies, DME companies, therapy clinics, and laboratories have been targets for fraud investigations through extensive audits.

Telemedicine has new and profound importance due to the COVID-19 crisis.  “Virtual” healthcare preserves patient protective equipment that would otherwiimage_4-e1587393250939se be used and allows physicians to manage chronic illnesses remotely, without the in-person interaction that exposes provider and patient to the risk of spread. This increased reliance on telemedicine has prompted state and federal legislative bodies to pass new rules and guidelines to promote access to telehealth services by reducing costs, increasing availability, and promoting relationships between healthcare providers and their patients.   Our Georgia-based business and healthcare law firm follows regulatory developments that impact healthcare providers.  As of the date of this post, seven states (Arizona, Florida, Kansas, Maine, New Jersey, Oregon, and Utah) have waived restrictions on telehealth. More relaxation of telehealth rules may be expected.

 New Regulations: an Overview

Virtual medicine is expected to aid in slowing the spread of coronavirus by limiting contact between individuals.  New telemedicine regulations encourage video and audio conversations between providers and their patients.  Telemedicine platforms can serve a variety of functions, some assist with managing patient triage, while others provide alerts to providers and patients in regard to medication management.  Other platforms allow for effective monitoring of chronic illnesses for patients, even with the strict social distancing guidelines that are currently in place. Thus, as part of an effort to allow healthcare providers to better support each other and their patients, the federal government has reduced the regulatory hoops that have previously limited access to Telehealth services. The CMS Fact Sheet discusses in depth the changes that have been made to provide virtual services.

Hamil-Little-Business-Interruption-Insurance
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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