Presumptive Eligibility has Arrived in Louisiana

Effective January 1, 2014, Louisiana implemented a Presumptive Eligibility program, which allows qualified hospitals to be designated as entities qualified to make presumptive Medicaid eligibility determinations based on primary, self-attested information obtained from individuals seeking medical assistance. Once a hospital determines the presumptive eligibility of a patient, the hospital is guaranteed payment for services that are covered by the state Medicaid plan during a temporary period. If the patient turns out not to be eligible for Medicaid, there is no recoupment of the payments. The program is monitored and executed by the Louisiana Department of Health and Hospitals (“DHH”), which is the designated State Medicaid agency.

Written by: Danielle L. Borel

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Technology Shaping Healthcare: Telepharmacies

A new structure of pharmacies has begun to spread across the United States. The Model State Pharmacy Act written by the National Association of Boards of Pharmacy describes telepharmacies as providing “Pharmacist Care by registered Pharmacies and Pharmacists located within US jurisdictions through the use of telecommunications or other technologies to patients or their agents at distances that are located within US jurisdictions”. These small kiosk-like pharmacies are usually based in rural areas that could not otherwise sustain a fully operating pharmacy. Often, the most expensive part of a traditional pharmacy is employing the pharmacist. In contrast, telepharmacies are staffed by pharmacy technicians who communicate electronically with a pharmacist at another main pharmacy location. While pharmacy technicians do not have the training to discuss patient care—such as dosage and alternative medicines—with the patients, patients can consult with the remote pharmacist through electronic video conferencing. Both the business model and technology of telepharmacies offer a wide range of opportunities for healthcare providers.

Telepharmacies began in North Dakota in 2001 after North Dakota faced an increasing problem of closing pharmacies. Since then, over 20 states have implemented procedures allowing telepharmacies. States that allow telepharmacies have legislated on aspects such as geographical restrictions, pharmacist-to-technicians ratios, and security of the patient’s health information. Currently, Louisiana has not approved the use of telepharmacies.


Written by: Danielle L. Borel

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Medical Records Questionnaires Overstepping Boundaries

Frequently, requests for medical documents are accompanied by a set of questions to be filled out by the custodian turning over the records. The questions are designed to help the party receiving the documents establish that the records are “business records” under the rules of evidence. Surprisingly, many of these requests for information are improper. If a questionnaire accompanies a federal subpoena duces tecum, there is no obligation for a non-party to answer the questions. According to the Federal Rules of Civil Procedure, testimony from a non-witness—which includes a custodian of medical record—can only be garnered by three mechanisms: 1) consent of the non-party, 2) a subpoena for a deposition pursuant to Rule 45, or 3)a subpoena for a deposition by  written questions pursuant to Rule 31.

Written by: Danielle L. Borel

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Ebola Preparedness Resource Center

In response to the rising concerns of awareness and safety among healthcare officials in the wake of the Ebola virus in the US, Breazeale, Sachse and Wilson has created an Ebola Preparedness Resource Center. The purpose of this resource center is to provide information from trusted sources that may be useful for healthcare providers and other participants involved in the healthcare industry. The resource center can be found at

Nationwide Service of Process-Implications for Medical Records

In 2013, Federal Rule of Civil Procedure 45—which address subpoenas—was amended to give parties in federal court nationwide service of process power. Where previously jurisdictional limits shielded people from responding to federal requests for production of medical records, amendments to the federal rules have eliminated this possible safe haven. Now, there is no geographical limit on a party to a federal suit’s ability to request medical documents through a subpoena duces tecum. As a result, a subpoena duces tecum served on a person in California requesting medical records by a party in Florida is valid and binding.

Written by: Danielle L. Borel

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Can a Member of Local Bank Board Serve on the Board of a Hospital Service District?

According to the Louisiana Board of Ethics a bank board member can serve on the board of directors for a hospital service district.  See La Ethics Opinions 2002-094 and 2002-197, relying on La R.S. 39:1233.1.

In Ethics Opinion 2002-094, the Police Jury of Natchitoches Parish requested an advisory opinion as to the propriety of the Natchitoches Parish Police Jury appointing a person to the Natchitoches Parish Hospital Service District Board who was a major stockholder and who also served on the board of a bank that conducted business with the hospital. Continue reading

OIG Issues Proposed Rule to Add New Safe Harbors and CMPs on Beneficiary Inducements and Gainsharing

The Office of Inspector General (OIG) issued a Proposed Rule on October 2, 2014 that would amend the safe harbors to the Anti-Kickback Statute and the civil monetary penalty (CMP) rules to add new safe harbors to codify statutory changes in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) and the Patient Protection and Affordable Care Act, that would protect certain payment practices and business arrangements from criminal prosecution or civil sanctions under the Anti-Kickback Statute.  The OIG also proposed to codify certain revisions to the definition of “remuneration,” added by the Balanced Budget Act (BBA) of 1997 and ACA and add a gainsharing CMP provision in the OIG’s regulations. Continue reading