Mid-Atlantic Health Law TOPICS

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Did You Know? Winter 2004

Medicaid Mental Health Services. Did you know that the Maryland General Assembly passed legislation in 2004 that prohibits the Secretary of the Department of Health and Mental Hygiene (DHMH) from ending the exclusion of specialty mental health services from the Maryland Medicaid HealthChoice managed care program, without legislative approval? Additionally, DHMH may not contract with a behavioral managed care organization to provide specialty mental health services.

Court Blocks HHS Approved Gain Sharing Plan: Did you know that a federal court blocked a pilot program endorsed by the Secretary of Health and Human Services that allowed hospitals to pay physicians for keeping hospital costs down? Such payments are generally believed to be illegal under the federal Stark law, unless the plan is specifically endorsed by the Secretary. However, in Robert Wood Johnson University Hospital v. Thompson, the United States District Court for the District of New Jersey ruled that, while the Secretary has the power to waive a violation of Stark, the Secretary does not have the power to waive a violation of the federal Civil Monetary Penalty statute. Curiously, the suit to enjoin the program was brought by hospitals which were excluded from the pilot.

Informal Discovery under HIPAA: Did you know that when a patient sues a doctor, HIPAA prevents the doctor's lawyer from informally discussing the patient's condition with the patient's new doctor? Nevertheless, in Law v. Zuckerman, the federal appellate court with jurisdiction over Maryland refused to issue sanctions, finding that everyone believed in good faith that their actions were authorized by HIPAA.

HIPAA and Guardianship: Did you know that the Attorney General of Maryland recently issued an opinion that the disclosure of protected health information in guardianship proceedings is not generally a HIPAA violation?

Web Posting of Disciplinary Charges: Did you know that a New York court, in the case of Anonymous v. Bureau of Professional Medical Conduct, recently ruled that charges brought against a physician that were later dismissed could not be posted on a government website?

EEOC Sues on Behalf of Female Doctor: Did you know that the EEOC recently filed suit against a medical practice in Illinois, alleging that the practice had discriminated against one of its female doctors? According to the suit, Dr. Margaret Lynch was hired by Midwest Emergency Associates with the understanding that she would eventually be offered an ownership interest in the practice. After Dr. Lynch took maternity leave three times over four years, she was offered a smaller partnership interest than was typically offered. After Dr. Lynch complained, the partnership offer was revoked entirely. The EEOC has filed suit on behalf of Dr. Lynch, claiming that she was unfairly treated on the basis of her gender and her use of pregnancy leave. As of this writing, no decision has been reached in the case.

California Nurse-to-Patient Ratios: Did you know that a court interpreted California's mandatory nurse-to-patient ratio regulations to mean that hospitals must provide substitute nurses when a nurse is on break? The Sacramento Superior Court, in California Healthcare Association v. California Department of Health Services, reached that conclusion because the staffing ratios must be maintained "at all times." Subsequently, the California Department of Health Services issued new regulations. The new regulations allow a nurse to be counted toward the required ratio while the nurse is taking a restroom break or making a phone call, but not when the nurse is on a meal break or other employer-mandated break. Additionally, the new regulations state that nurse administrators may cover for nurses when nurses are on break. Also, the medical/surgical nurse-to-patient ratio was scheduled to change from 1:6 to 1:5 on January 1, 2005. The new regulations postpone the implementation of this tougher standard until January 1, 2008.


December 22, 2004




Rosen, Barry F.


Health Care