Category Archives: Health Law

Hospital Physician Qui Tam Case

Qui tam law was created during the Lincoln administration to protect the government purse from theft by private citizens.   As an incentive, a percent of the money refunded the government is paid to the whistle-blower if they win the case.

Here is a short summary of a 2014 qui tam case in Florida (United States ex rel. Baklid-Kunz v. Halifax Hospital Med. Ctr. et al.) where the government alleged that “prohibited” referrals from oncologists to a hospital resulted in the submission of 74,838 (false) claims.

The government alleged the claims were prohibited because the doctors signed agreements with the hospital to receive incentive payments to deliver oncology services, paid for by Medicare. A share of a bonus pool, drawn from profits received by the hospital, was part of the doctors compensation.

Here, the hospital was accused of violating Stark (commonly known as the “Stark Statute”). Stark prohibits a hospital from submitting Medicare claims for referrals from physicians who have a financial relationship with the hospital. Halifax’s arrangements with medical oncologists and neurosurgeons working at the hospital violated Stark, and Medicare claims submitted by Halifax based upon referrals from these physicians violated the federal False Claims Act.

The hospital’s director of physician services reported this problem to the hospital and when the hospital did not correct the problem (their legal counsel approved the agreements) the director then went to a private attorney, who joined with the government in a qui tam action.

Accused of over-charging Medicare $105,366,000, the Florida hospital settled with the federal government for $84 million.

Important points about this case are:

  • a violation of the Stark Law can lead to False Claims Act liability for claims covered by Medicare and Medicaid
  • damages can be proved through healthcare providers’ own claim forms

Litigation tip:

Planning to file a qui tam claim? Remember to write any legally collected notes as a memorandum to your attorney so that they will be protected by the attorney-client privilege.  This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

 

 

Marijuana Law in New Mexico

Lynn and Erin Compassionate Use Act

Although federal law currently prohibits any use of cannabis, the Lynn and Erin Compassionate Use Act delegated authority to The New Mexico Department of Health, Public Health Division to ensure the safe production, distribution and dispensing of cannabis for the sole purpose of medical use in New Mexico.

It is important to note, the purpose of the Act is solely to alleviate symptoms caused by debilitating medical conditions and their medical treatments.  In order to legally use medical marijuana in New Mexico, physicians wanting to certify use must closely follow the regulations issued by the Department.

Certify Use

Here are a few guidelines on how to certify medical marijuana use in New Mexico.

Certification requires a written statement (in a patient’s medical records or a statement signed by a patient’s practitioner) that, in the practitioner’s professional opinion, the patient has a debilitating medical condition and the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.

A physician (or physician’s assistant’s) written certification is not valid for more than one year from the date of issuance.  Any written certification should include the following:

  • history and complete examination of the patient;
  • development of a treatment plan with objectives;
  • provision of informed consent including discussion of side effects;
  • periodic review of the treatment’s efficacy;
  • consultation as necessary; and
  • proper record keeping that supports the decision to recommend the use of medical cannabis.

A practitioner who wishes to issue a written certification can register with the New Mexico Board of Pharmacy to become a regular participant in the prescription monitoring report issued by the board. The link to the website is here:  www.nmpmp.org

Before issuing a written certification, the physician should obtain a patient report for the preceding 12 months.

This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

New Mexico Rules for Medical Records

New Mexico’s rules for medical records are detailed in N.M. Reg. 16.27.18.17

Confidentiality and Data Privacy

All mental health counselors, therapists, and alcohol and drug counselors may not disclose confidential information pertaining to a client. A licensee must inform the client of limitations on confidentiality. The licensee should continue to treat information as confidential even after the relationship with the client has ended.

Disclosure With Consent

A client may give informed written consent to disclosure of their treatment information. A parent or guardian must consent to disclosure of information on behalf of a client who is under the age of consent.

Disclosure Without Consent

Substance abuse treatment information may be disclosed if “necessary to protect against a clear and substantial risk of imminent serious harm being inflicted by the client on the client or another person(s).” If the counselor is a defendant in a civil, criminal, or disciplinary action arising from the treatment, confidential information from the client may be disclosed in that action. Confidential information may be disclosed for purpose of reporting the abuse of children and vulnerable adults. Information may be disclosed for purposes of supervision, teaching, research or other published reports, provided that patient identifying information is disguised.

The regulation does not address disclosure pursuant to a court order.

N.M. Code R. § 16.10.17.8

Release of medical records

A patient or the patient’s legally designated representative may request a complete copy of the patient’s medical records. Physicians must provide copies to a patient or to another physician as requested in a timely manner, except that psychotherapy notes, which must be maintained separately from the rest of the patient’s medical record, may be withheld from the patient. Psychotherapy notes may be released to other health care providers upon the express authorization from the patient. If the medical records are the property of a separate and independent organization, the physician should act as the patient’s advocate and work to facilitate the patient’s request for records.

A physician may charge a reasonable cost-based copying fee of up to $30 for the first 15 pages, and $0.25 per page thereafter, and the actual cost of reproducing electronic records and record formats other than paper, such as x-rays.  A physician may also charge a reasonable, cost-based fee for mailing the records, as applicable.

A physician may not withhold medical records because an account is overdue or a bill for treatment, medical records, or other services is owed.

N.M. Code R. § 7.7.2.19

Policies

These requirements apply to all licensed public and private hospital facilities in New Mexico.

Every hospital must have written policies on patient rights and responsibilities that must provide the following:

  • Patients may not be denied appropriate hospital care because of the patient’s race creed, color, national origin, religion, sex, sexual orientation, marital status, age, disability or source of payment;
  • Patients must be treated with consideration, respect, and recognition of their individuality, including the need for privacy in treatment;
  • The individual patient’s medical records, including all computerized medical information, must be kept confidential in accordance with applicable federal, state and local laws;
  • The patient or any authorized person must have access to the patient’s medical record, except that access to psychiatric records may be limited by treating professionals when hospital policies specify requirements for limiting access;
  • Every patient shall be entitled to know who has overall responsibility for the patient’s care;
  • Every patient or any authorized person must receive information about the patient’s illness, course of treatment and prognosis for recovery in terms the patient can understand from the appropriate person within the facility;
  • Every patient, or his designated representative where appropriate, must have the opportunity to participate to the fullest extent possible in planning for the patient’s care and treatment;
  • Every patient, or his designated representative, must be given a copy of the patient’s rights and responsibilities at the time of admission;
  • Except in emergencies, the consent of the patient, or his or her authorized representative, must be obtained before treatment is administered;
  • Any patient may refuse treatment to the extent permitted by law and must be informed of the medical consequences of the refusal;
  • The patient, his or her authorized representative, or other person granted the power to authorize medical treatment, must be fully informed and give consent for the patient’s participation in any form of research or experimentation;
  • Except in emergencies, the patient may be transferred to another facility only with a full explanation of the reason for the transfer, provision for continuing care; and acceptance by the receiving institution;
  • Every patient must be informed in writing about the hospital’s policies and procedures for initiation, review and resolution of patient complaints, including the address where complaints may be filed with the department; and
  • Every patient must have freedom from physical or verbal abuse, harassment and inappropriate physical and chemical restraints.

Every hospital must report to the tumor registry all malignant neoplasms that are diagnosed by the hospital and all malignant neoplasm’s diagnosed elsewhere if the individual is subsequently admitted to the hospital. The report must be submitted to the University of New Mexico tumor registry within six months after the diagnosis is made or within six months after the individual’s first admission to the hospital if the neoplasm is diagnosed elsewhere, as appropriate.

A policy for compliance with all applicable state and federal reporting requirements must be adopted and updated as necessary; such federal requirements include but are not limited to the New Mexico health policy commission, the national practitioner data bank and the healthcare integrity and protection data bank.

N.M. Stat. § 14-6-3

Access to medical records by applicants for disability benefits; violations

These requirements apply to any person who is licensed, certified or otherwise authorized by law to provide or render health care, as well as to any facility that employs or contracts with such person.

A patient or former patient who is applying for benefits based on social security disability or appealing a denial of such benefits, or an authorized representative of such patient, may request a copy of the patient’s medical records. Within thirty days of receiving such request, the health care provider must provide the copy, and may charge the requestor for copying and/or obtaining the record.

The request submitted to the provider must include a statement or document from the agency that administers the benefits confirming the application or appeal.

Call for a consultation (505) 506-9434.

HIPAA

What is HIPAA?

HIPAA is the acronym for the Health Insurance Portability and Accountability Act that was passed by Congress in 1996. The HIPAA Privacy regulations require health care providers and organizations, as well as their business associates, develop and follow procedures that ensure the confidentiality and security of protected health information (PHI) when it is transferred, received, handled, or shared. This applies to all forms of PHI, including paper, oral, and electronic, etc. Furthermore, only the minimum health information necessary to conduct business is to be used or shared.

Do you have a question about HIPAA or data security?

Please complete the contact form below.

Sharing Medical Information in New Mexico

Here is the rule in New Mexico for obtaining and transferring medical records.

In New Mexico, a patient or the patient’s legally designated representative may request a complete copy of the patient’s medical records. Physicians must provide copies to a patient or to another physician as requested in a timely manner, except that psychotherapy notes, which must be maintained separately from the rest of the patient’s medical record, may be withheld from the patient…If the medical records are the property of a separate and independent organization, the physician should act as the patient’s advocate and work to facilitate the patient’s request for records.  Source: N.M. Code R. § 16.10.17.8

According to the American Medical Association, termination of an employment or contractual relationship between a physician and an entity employing that physician does not necessarily end the patient-physician relationship between the employed physician and persons under his/her care. When a physician’s employment status is unilaterally terminated by an employer, the physician and his or her employer should notify the physician’s patients that the physician will no longer be working with the employer and should provide them with the physician’s new contact information.

Patients should be given the choice to continue to be seen by the physician in his or her new practice setting or to be treated by another physician still working with the employer. Records for the physician’s patients should be retained for as long as they are necessary for the care of the patients or for addressing legal issues faced by the physician; records should not be destroyed without notice to the former employee. Where physician possession of all medical records of his or her patients is not already required by state law, the employment agreement should specify that the physician is entitled to copies of patient charts and records upon a specific request in writing from any patient, or when such records are necessary for the physician’s defense in malpractice actions, administrative investigations, or other proceedings against the physician.

Attorney Dena Wurman has over 15 years experience working in the health care industry and welcomes your questions on medical-legal matters. Call 505 506 9434 to leave a voicemail message about your case or fill out the contact form below to initiate a confidential consultation.

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