Criminal Cyberattacks Against Health Care Providers Are On the Rise

Posted on May 8, 2015 by Breazeale Sachse

A recent study by Ponemon Institute, the Fifth Annual Benchmark Study on Privacy and Security of Healthcare Data, concluded that the majority of data breaches are not accidental, but intentional. These cyberattacks against health care providers cost the U.S. health care system $6 billion a year. According to the report, the average cost of a data breach for healthcare organizations is more than $2.1 million, and the average cost of a data breach for business associates is more than $1 million. Continue reading →

$1,000,000 Fine Imposed for Incorrect In-network Information

Posted on April 16, 2015 by Breazeale Sachse

In a letter from the Centers for Medicare & Medicaid Services (“CMS”) Medicare Parts C and D Oversight and Enforcement Group issued on April 2, 2015, CMS imposed a civil money penalty of $1,000,000 on health insurer, Aetna, Inc. The $1,000,000 fine was based on Aetna’s “failure to disseminate clear and accurate information regarding the number, mix, and distribution (addresses) of network pharmacies from which enrollees may obtain covered Part D drugs,” which CMS found violated obligations imposed by 42 C.F.R. § 423.128(a)(2) and 42 C.F.R. § 423.509(a)(2). Continue reading →

Can Healthcare Provider Employers Pay Employees Bonuses Under the AKS?

Posted on April 9, 2015 by Breazeale Sachse

A $20M lawsuit filed in Florida against the AIDS Healthcare Foundation raises questions about whether healthcare employers can bonus their employees for generating business (marketing) under the anti-kickback statute. Several whistleblower employees claim that the company inappropriately incentivized/bonused employees for patient referrals. Employees were allegedly paid $100 for referring patients who tested positive to the company’s clinics and pharmacies. The company asserts that not only has it done nothing wrong, but that its pro-active approach is critical to stopping HIV in this country. The government has not intervened in the suit. See the Associated Press article available HERE for more details.

Link: http://hosted.ap.org/dynamic/stories/U/US_HIV_MEDICARE_SCAM?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2015-04-09-01-42-46

Written by: Emily Grey

Does a Hospital Have a Brady Obligation to Turn Over Exculpatory Evidence?

Posted on April 2, 2015 by Breazeale Sachse

A recent decision by the United States Court of Appeals for the Tenth Circuit answered whether hospitals under state contract have Brady obligations. Established by the Supreme Court decision of Brady v. Maryland, a Brady obligation imposes on government agents the duty to turn over exculpatory evidence to a requesting criminal defendant. 373 U.S. 83, 83 S. Ct. 1194 (1963). In Tiscareno v. Frasier, the Tenth Circuit held that a hospital did not have an actionable Brady obligation because there was no clearly established constitutional obligation of the hospital to locate and disclose the exculpatory evidence to the criminal defendant. No. 13-4156, 2015 WL 735668, at *1 (10th Cir. Feb. 23, 2015). Continue reading →

A Broader Definition of “Referral” for Anti-Kickback Violations

Posted on March 20, 2015 by Breazeale Sachse

In U.S. v. Patel, whether a violation of the Anti-Kickback Statute was present depended on the United States Court of Appeals for the Seventh Circuit’s interpretation of the term “referring,” a term not specifically defined in the statute. 2015 WL 527549 (7th Cir. 2/10/15). The Seventh Circuit considered whether Dr. Kamal Patel had “referred” patients to a home health care provider in violation of the Anti-Kickback statute when Dr. Patel signed Form 485 certifications and recertifications for his patients, though did not recommend a specific home health care provider, in exchange for cash. Continue reading →