Mid-Atlantic Health Law TOPICS

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Did You Know? - Fall 2013

HIPAA Enforcement: Did you know that the federal government recently took a $50,000 penalty from an Idaho hospice to settle alleged HIPAA violations stemming from a failure to secure patient health information? According to the government, the hospice did not have a HIPAA-mandated mobile device policy in place when the hospice lost to theft an unencrypted laptop containing health information of 441 patients. The settlement is the first case involving the loss of information of fewer than 500 patients to result in financial penalties.

HIPAA Overrides Discovery: Did you know that a federal court in Maryland recently invalidated a portion of Maryland's medical records law as inconsistent with the federal requirements of HIPAA? Maryland law compels health care providers to disclose an injured person's medical record to counsel defending a health care provider being sued by the injured person, without the injured person's authorization, when the injured person's medical history is at issue in a case. The court ruled that HIPAA barred defense counsel from communicating with the injured person's health care providers, without complying with HIPAA's requirement that any request for records be specific and follow HIPAA's notice rules.

State Board Violates Antitrust: Did you know that the federal appeals court with jurisdiction over Maryland recently ruled that North Carolina's State Board of Dental Examiners violated federal antitrust law by restricting the market for teeth-whitening services in North Carolina to dentists, despite the Board's claim of immunity as a state agency? Although the court recognized that federal antitrust laws do not stop a state itself from restricting markets, it held that the Board is essentially a private body because the Board is composed mostly of dentists, Board members are elected by other dentists, and the Board is not supervised by other officials of the state.

Ambulance Companies Exposed: Did you know that the Maryland Court of Appeals, Maryland's highest court, recently held that an ambulance company is not protected by either of two Maryland laws that confer immunity on providers of emergency medical services in negligence suits by patients? The court held that Maryland's Good Samaritan Act did not apply because the ambulance company is run for profit (and the Act only protects volunteer ambulance companies). The court also held that Maryland's Fire and Rescue Act did not apply because the ambulance company provided commercial non-emergency ambulance services, and, therefore, was not a "rescue company" protected under the law.

Per Click: Did you know that a federal trial court in the District of Columbia recently upheld a ban on certain "per use" or "per click" equipment leases by physicians to the hospitals to which those physicians refer? Under the Social Security Act's self-referral prohibition (commonly called "Stark"), if a hospital or other health care provider gives money to a physician (or physician group), then, unless an exception applies, Medicare will not pay for certain "designated health services" (such as inpatient care) referred to the provider by that physician. Numerous exceptions apply, including an exception for payments set at fair market prices pursuant to commercially reasonable equipment leases. Here, the court considered whether to invalidate a relatively recent narrowing of that exception to exclude "per click" leases where the lessee pays the physician every time the equipment is used. The court upheld the narrowing, reasoning that a "per click" lease violates the intent of the Stark law in that every time a physician refers a procedure that uses the leased equipment, the physician gets more revenue under the lease, a financial reward for increasing the volume of referrals.


September 25, 2013




Rosen, Barry F.


Health Care