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July 9, 2015

Major Stark Provisions in 2016 Proposed Medicare Physician Fee Schedule

On July 8, 2015, the Centers for Medicare & Medicaid Services (CMS) released a proposed rule containing major provisions relating to the Physician Self-Referral Law (i.e., the Stark Law) and its exceptions. CMS states that the purpose of the Stark proposals is: "to accommodate delivery and payment system reform, to reduce burden, and to facilitate compliance," as well as to "expand access to needed health care services." CMS also states that it realizes that "additional clarification" of Stark would help.

Below is a brief summary of the proposals affecting the Stark Law:

a) Proposes new Stark exception for recruitment assistance and retention payments from hospitals, federally-qualified health centers (FQHCs), and rural hospital clinics (RHCs to physicians to assist them in employing non-physician practitioners (NPPs) in the geographical area served by the hospital, FQHC, or RHC providing the remuneration.
• The exception would not apply to remuneration flowing to a group practice or other type of physician practice (i.e., physician organizations). But, the exception would protect physicians from being considered to be "standing in the shoes of the physician organization" when determining a direct compensation arrangement.
• The exception would only apply where the NPP is a bona fide employee of the physician (or physician's practice).
• The exception would only apply to NPP services that are primary care services (i.e., family practice, internal medicine, pediatrics, geriatrics, and OB-GYN).
• Additional proposals seek to limit or "cap" the remuneration allowed under this exception.

b) Proposes adding a definition of the geographical area served by FQHs and RHCs under 42 CFR 411.357(e).

c) Proposes to standardize the various terms (e.g., "based on" or "without regard to") used for the principle of "takes into account" referrals to clarify that there are not different volume or value of referral standards in the Stark exceptions.

d) Proposes revisions to clarify that the policy stated in the Stark Phase III regulations regarding retention payments in underserved areas (42 CFR 411.357(t)) is correct and remains CMS's policy.

e) Proposes revisions to clarify that the Stark exceptions requiring that a lease or arrangement be set out in writing do not require a single formal contract. Rather, "a collection of documents, including contemporaneous documents evidencing the course of conduct between the parties, may satisfy the writing requirement." Additionally, the proposed rule clarifies that the one-year term requirement is satisfied "as long as the arrangement clearly establishes a business relationship that will last for at least 1 year."

f) Proposes to extend the "holdover" arrangements permitted by 42 CFR 411.357(a), (b) and (d) from six months to indefinitely (or, alternatively, a longer but definite period), provided that the holdover continues on the same terms and conditions and that it meets the fair market value requirements. Additionally, CMS proposes to revise the fair market value compensation exception "to permit renewals of arrangements of any length of time, including arrangements for 1 year or greater."

g) Proposes to revise the definition of remuneration to clarify that if one of the six statutory exceptions to remuneration applies, then the term "used solely" does not mean that the exception does not apply if the item, device or supply is used for more than one of the six statutorily allowed purposes.

h) CMS clarifies that employees or independent contractors do not "stand in the shoes" of their physician organization's arrangements "unless they voluntarily stand in the shoes of the physician organization as permitted under 42 CFR 411.354(c)(1)(iii) or (c)(2)(iv)(B). Additionally, CMS proposes to remove the phrase "stands in the shoes" from the definition of "locum tenens physician."

i) Proposes to expand the exception for ownership of publicly traded securities to include protection for "trading on an electronic stock market or OTC quotation system in which quotations are published on a daily basis and trades are standardized and publicly transparent."

j) Proposes a new exception for timeshare leasing "that would protect timeshare arrangements that meet certain criteria," including, but not limited to, that "the arrangement is between a hospital or physician organization (licensor) and a physician (licensee) for the use of the licensor's premises, equipment, personnel, items, supplies, or services...used predominantly to furnish evaluation and management services." This exception would not apply to independent diagnostic testing facilities or clinical laboratories.

k) CMS provides further guidance to physician-owned hospitals on the disclosure of its ownership interests, including that social media websites are not considered to be public websites for the hospital.

l) CMS also solicits comments on the affect that the Stark Law may have on Accountable Care Organizations.

In addition to the above-noted Stark provisions, the proposed rule contains a number of other proposals, including provisions on appropriate use criteria for advanced imaging services, telehealth, self-referral disclosure protocol, and more. More information on these provisions will be coming soon.

Continue reading "Major Stark Provisions in 2016 Proposed Medicare Physician Fee Schedule" »

July 9, 2015

OCR Announces Consolidation of Kansas City and Chicago Branches

On April 20, 2015, the Department of Health and Human Services' Office of Inspector General, in partnership with the American Health Lawyers Association and the Association of Healthcare Internal Auditors, published Practical Guidance for Health Care Governing Boards on Compliance Oversight, which describes the OIG's expectations of the compliance oversight role healthcare governing boards (e.g., Board of Directors of a hospital) should play in a healthcare organization. For a summary of this guidance, please visit:

Continue reading "OCR Announces Consolidation of Kansas City and Chicago Branches" »

June 25, 2015

United States Supreme Court Rules to Uphold Federal Subsidies Created by the Affordable Care Act

June 25, 2015

On June 18, 2015, the United States Supreme Court decided the case of King, et al. v. Burwell, Secretary of Health and Human Services, et al., upholding federal subsidies for taxpayers who buy health insurance on the federal government's webpage. The potential loss of the subsidies was seen by commentators as a significant threat to the Affordable Care Act.

Chief Justice John Roberts wrote for the 6-3 majority of the Court, finding that though the text of the law was ambiguous, the Affordable Care Act was passed "to improve health insurance markets, not destroy them." Thus, the Court found that the tax credits that are available to the state health insurance exchanges should also be available to insurance purchased on the federal government's page, which is relied upon by as many as 37 states that do not have their own insurance exchanges. Chief Justice Roberts' opinion was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan. Justice Scalia dissented, and was joined by Justices Thomas and Alito.

The attorneys at The Health Law Partners have a significant amount of experience in providing guidance to healthcare stakeholders as to developments in healthcare law, regulation and policy throughout the United States. For more information regarding such matters, please call (248) 996-8510 or visit

June 18, 2015

U.S. Government Arrests 243 Individuals for Healthcare Fraud Allegations

On June 18, 2015, the U.S. Department of Health and Human Services ("HHS") arrested 243 individuals for allegedly participating in Medicare/Medicaid fraud schemes. The government claims that combined, the cases involve $712 million in supposedly false billings. As part of the sweep, the Centers for Medicare and Medicaid ("CMS") also suspended a number of providers' ability to bill Medicare using the Affordable Care Act's suspension authority. 16 individuals in the Metro Detroit area were arrested as part of the sweep. The arrests were credited to the Health Care Fraud Prevention and Enforcement Action Team ("HEAT"), a joint initiative between HHS and the Justice Department. HEAT operates in regions of concern throughout the U.S., including the Baton Rouge, Brooklyn, Chicago, Dallas, Detroit, Houston, Los Angeles, Miami-Dade and Tampa Bay areas.

The government claims that the fraud occurred in various areas of healthcare, including home health care, psychotherapy, physical and occupational therapy, durable medical equipment ("DME") and pharmacy. Court documents claim that those charged were involved in billing Medicare and Medicaid for treatment that never occurred, treatment that was not medically necessary or for the payment of kickbacks in exchange for patient referrals.

Continue reading "U.S. Government Arrests 243 Individuals for Healthcare Fraud Allegations" »

June 14, 2015

Department of Health and Human Services

At the American Bar Association's Physician Legal Issues Conference, Celeste Davis, Esq., of the Office for Civil Rights announced that, effective Monday, June 15, 2015, the Kansas City branch of the Office for Civil Rights will consolidate with the Chicago branch to form the new Department of Health and Human Services, Office for Civil Rights, Midwest Region. The new Midwest Region will still maintain offices in both Chicago and Kansas City. This will be the first consolidation in the history of the Office for Civil Rights. Ms. Davis stated that the consolidation will allow the agency to work quicker, smarter, and to be more available to covered entities to assist with compliance.

For more information about this announcement or HIPAA compliance, please contact Adrienne Dresevic, Esq., (, or Clinton Mikel, Esq., ( at (248) 996-8510.

May 22, 2015


Recently, pharmacies (specifically compounding pharmacies) across the country have begun receiving letters from the U.S. Department of Justice (DOJ) notifying them that the pharmacy is being investigated for fraud under the False Claims Act for knowingly billing for drugs that were not medically necessary. Industry insiders have reported that, just yesterday (on 5/21/2015), at least four pharmacies received these investigation notices from the DOJ. The industry insiders also reported that the letters were hand-delivered on Thursday, May 21, 2015, by U.S. Navy CIS agents, were signed by the U.S. Attorney General, and demanded that the pharmacies respond to the billing fraud allegations within twenty (20) days.

Further, pharmacies are being investigated and receiving DOJ letters specifically related to their contacts with patients, and allegations of impropriety regarding the same. These actions/letters are, of course, somewhat related to major recent developments related to Tricare's scrutiny of compounding pharmacies. For more information, please see the Enhanced Compound Ingredient Screening Notice issued by the Department of Defense's Pharmacy Operations Division on May 11, 2015, which is available here.

Letters from the DOJ alleging billing fraud, False Claims Act violations, or referencing a DOJ investigation are extremely time-sensitive. False Claims Act fines and penalties can be crippling for a pharmacy. A pharmacy that receives such a letter must act quickly to engage experienced healthcare legal counsel to defend it against these allegations and to represent them during the investigation.

The Health Law Partners, P.C. (HLP), is a full-service healthcare law firm representing pharmacies and other healthcare entities across the country. Healthcare regulatory matters are extremely complex and frequently evolving, and healthcare investigations require representation by attorneys experienced in such matters. The attorneys at HLP specialize in healthcare fraud and abuse matters, including government investigations. HLP has experience defending pharmacies in DOJ investigations and understands the defenses available to fight allegations of billing fraud and False Claims Act violations.

If you received a letter from the DOJ regarding an investigation, or for more information, please contact Adrienne Dresevic, Esq.,, or Clinton Mikel, Esq.,, at (248) 996-8510.

May 18, 2015

PHYSICIANS AND HEALTHCARE ATTORNEYS: Join HLP at the ABA's Physicians Legal Issues Conference on June 10-12th in Chicago.

We invite you to join Adrienne Dresevic, Esq., and Clinton Mikel, Esq., at the American Bar Association's Physicians Legal Issues Conference on June 10-12th in Chicago, Illinois. This annual conference is attended by both attorneys and physicians and is held in conjunction with the Chicago Medical Society and the American Association for Physician Leadership.

This year's theme is "Thriving in a Time of Change". This unique program has been designed to bring physicians and legal experts, as well as government and payer representatives, together, from around the country, to provide perspectives and ideas directly to physicians and attorneys on ways for physicians to thrive, not just "survive" in these uncertain times. Ms. Dresevic and Mr. Clinton are both presenting at the conference, covering issues such as the Stark Law, Anti-Kickback Statute, and HIPAA. Whether you are a physician or entering the field of healthcare, this conference will provide valuable insight and strategies that can improve your practice.

For program details, please visit

May 11, 2015

Proposed Legislation Would change Michigan CRNA Supervision Requirements and Increase Access to Anesthesia Care

On May 7, 2015, Michigan Senator Mike Kowall (R-White Lake) introduced legislation that would allow hospitals more flexibility in determining the best anesthesia delivery model for their patient's needs. While certified registered nurse anesthetists ("CRNAs") provide the anesthesia care during most patient procedures - staying with the patient throughout the entire procedure - Michigan law still requires physician supervision of CRNAs. However, Michigan law does not even require the supervising physician to be an anesthesiologist or surgeon.

The proposed legislation would change this model and increase access to anesthesia care for Michigan patients in medically underserved rural and urban areas, while also containing anesthesia-related costs statewide. Under S.B. 320, Michigan hospitals could choose to keep the current physician-supervision model or move to a model that allows CRNAs to practice without mandatory physician supervision. If enacted, Michigan would join 40 other states that do not require physician supervision for CRNAs to administer anesthesia. The bill is currently in the Michigan Senate awaiting testimony before the Senate Health Policy Committee. More information on S.B. 320 may be found on the Michigan Legislature's website, available here.

Continue reading "Proposed Legislation Would change Michigan CRNA Supervision Requirements and Increase Access to Anesthesia Care" »

May 6, 2015


Congratulations to Founding Shareholder, Adrienne Dresevic, nominated to once again serve on Council for the ABA Health Law Section. Nominations will be voted on by the membership at the Annual Meeting, August 2.


May 6, 2015


The AHA has taken its first steps to appeal a lower court's refusal to intervene to address the significant appeals backlog pending at the ALJ level of appeal.

On May 4, 2015, the AHA submitted its Opening Brief to the U.S. Court of Appeals for the D.C. Circuit, alleging that the District Court erred in its decision not to issue providers' and suppliers' mandamus relief. The AHA pressed the Circuit Court to overturn the District Court's ruling, which acknowledged the repercussions of the backlog but nonetheless concluded court intervention was inappropriate.

More information regarding the ALJ appeals backlog is available here:


April 27, 2015

Bill To Amend Michigan No-Fault Law Could Substantially Decrease Revenue To Healthcare Industry

On Thursday, April 24, 2015, the Michigan House of Representatives' Insurance Committee passed a bill to reform Michigan's No-Fault law and sent it to the House floor for a vote. The bill (SB 248) will have significant negative changes for No-Fault reimbursements for health care providers in Michigan.

As currently proposed, the bill will cap reimbursements for accident victims at 150% of the amount that would be paid for the same services by Medicare. Additionally, it would create a fraud authority to investigate alleged fraudulent activities relative to No-Fault claims.

Now that the bill has been passed out of the House Insurance Committee, it could be up for passage by the House of Representatives during the week of April 27. If passed, it would be sent back to the Senate relative to the amendment currently proposed by the House. The bill, as currently proposed, will have a devastating financial impact on many healthcare providers and suppliers. The HLP will provide updates as to this bill's progress and the impacts to healthcare providers and suppliers in Michigan.

Continue reading "Bill To Amend Michigan No-Fault Law Could Substantially Decrease Revenue To Healthcare Industry" »

April 3, 2015

CMS Delays Finalizing Overpayment Regulations; But, Providers Still Must Return Medicare Overpayments Despite The Lack of Regulations

Section 1128J(d) of the Social Security Act (the "Act") requires providers and suppliers who have received an overpayment from the Federal health care programs to report and return the overpayment within 60 days of identifying the overpayment or by the date any corresponding cost report is due, whichever is later. The Centers for Medicare and Medicaid Services ("CMS") published a proposed rule on this statute way back in February 2012. Over three years later, CMS has not finalized the overpayment regulations for Medicare Parts A and B.

The Act requires notice to be provided in the Federal Register if there are exceptional circumstances that cause new regulations to be finalized more than three years after publishing the proposed rule. Therefore, in February 2015, CMS published a notice extending the deadline for CMS to finalize the regulations until February 16, 2016. The "exceptional circumstances" CMS cites in the notice are "the significant policy and operational issues that need to be resolved in order to address all of the issues raised by the comments to the proposed rule and to ensure appropriate coordination with other government agencies." The extension may indicate that the Medicare Parts A and B overpayment regulations will not closely mirror the regulations already published for Medicare Advantage and Medicare Part D overpayments. Additionally, the emphasis on a need for "coordination with other government agencies" may signal that the interested agencies (CMS, the DOJ, and the OIG) disagree on significant aspects of the final regulations.

For now, the most important takeaway from the notice is that "even without a final regulation [stakeholders] are subject to the statutory requirements found in section 1128J(d) of the Act and could face potential False Claims Act liability, Civil Monetary Penalties Law liability, and exclusion from Federal health care programs for failure to report and return an overpayment." In short, we will have to wait to see how restrictive the Medicare Parts A and B overpayment regulations will be and for clarification on issues such as when an overpayment is said to be "identified." But, for now, we know that the government will not hold back on enforcing the overpayment statute already on the books.

Continue reading "CMS Delays Finalizing Overpayment Regulations; But, Providers Still Must Return Medicare Overpayments Despite The Lack of Regulations" »

March 20, 2015

Proposed Bill to Permanently Fix Annual Medicare Physician Reimbursement Crisis

House Speaker John Boehner and Minority Leader Nancy Pelosi announced yesterday that they agreed to advance a bill to permanently fix the payment system for Medicare physicians. Details of the bill have yet to be released, but multiple news agencies are reporting that Boehner and Pelosi agreed to a $210 billion deal that would replace the Medicare Sustainable Growth Rate, which is the formula used to determine payments to Medicare physicians. Each year, this formula requires Congress to pass a "doc fix" or else Medicare physicians face a significant cut in reimbursement. The latest "doc fix" expires on March 31st. If the proposed bill is not agreed upon by the end of the month (and in lieu of the bill passing, another "doc fix" is not passed), then Medicare physicians could face 20% cuts in reimbursement.

Continue reading "Proposed Bill to Permanently Fix Annual Medicare Physician Reimbursement Crisis" »

March 17, 2015

A Healthcare Provider's Guide to Bullying

In an effort to combat and draw attention to the seriousness of Bullying, OCMS partnered with Marlene Seltzer, MD, Director of the Beaumont Children's Hospital NoBLE Anti-Bullying Program and Rob Iwrey, Esq. (and staff) at The Health Law Partners, P.C., to develop informational materials that would assist physicians in recognizing the signs of bullying and the services available to victims and their families.


"Bullying" is defined as any unwanted, aggressive behavior(s) by another youth or group of youths that involves an observed or perceived power imbalance and is repeated multiple times or is highly likely to be repeated. Bullying may inflict harm or distress on the targeted youth including physical, psychological, social or educational harm.
Bullying behavior can start as early as pre-school, however it typically peaks in late elementary/early middle school and is known to continue into high school (can continue into higher education and the workplace also). It is estimated that approximately 28% of 6th-12th graders have reported being bullied, unfortunately, as children age, many do not report encounters to adults at all. It has been suggested that 160,000 students stay home from school, every day, for fear of being bullied and is also attributable for countless physical and mental injuries (including deaths) of children and young adults throughout the United States.

Types of bullying:

• Physical - causing bodily injury; also taking or destroying a person's belongings
• Verbal - making disparaging comments, taunting, threatening, or intimidating
• Social - sometimes referred to as indirect or relational: hurting someone's relationships or reputation through means such as gossip, rumors or exclusion
• Cyber - bullying via electronic communication including: emails, texts, websites, social media, embarrassing photos, rumors, and fake profiles

Symptoms of Bullying (not an exhaustive list):

• pain- headache, abdominal, musculoskeletal
• enuresis
• change in sleeping patterns
• change in eating patterns
• fatigue
• dizziness
• more frequent URI's
Youth at Higher Risk for Being Targeted:
• those who are overweight/obese

• anxiety
• depression
• loneliness
• decreased self-esteem
• substance use/abuse
• self-harm/cutting
• suicidal ideation/attempts
• those with autistic spectrum disorder or developmental disabilities
• those with disabilities (physical, learning, emotional)

What to do if a Youth has been EXPOSED?
• encourage dialogue and listen non-judgmentally
• validate their feelings and the seriousness of their situation
• evaluate for suicidal ideation
• provide a message of support and education
• both youth and parents may need support, education, and guidance
• witnesses are also at risk and need support and education
• youth may need a referral for counseling or psychiatric evaluation
• youth/parents may need information about Michigan's anti-bullying law
• treatment/evaluation of any medical problems, secondary to bullying

Recommendation(s) for Physicians:
• screen all youth for exposure to bullying, as part of medical history, screening for all roles (target, perpetrator, witness) and types
• consider screening older youth without family/friends present
• ask simple, age appropriate questions
• ask both general and specific questions (giving examples may be helpful)
• for younger children, ask questions like "what are lunch and recess like at your school?" or if they get teased at school (may yield more information than using the word "bullying")
• written questions can be used in addition to verbal questions

• bullied youth may feel ashamed, humiliated, and/or that they are at fault
• witnesses may feel decreased self-worth if they did nothing to intervene, or joined in
• youth who bully may not take responsibility for their actions, blame the victim, or have previously been a victim
• perpetrators may be well connected socially or may be isolated
• sibling bullying confers the same risks

What to do for a Patient who has been BULLIED?
If a patient has been bullied, physicians should consider referring the patient to one or more of the following:
• emergency room (for an acutely suicidal patient)
• mental health provider
• law enforcement
• school staff responsible for the implementation of bullying policy/enforcement pursuant to Matt's Safe School Law (discussed below)
• community, school and/or local health facility anti-bullying programs (e.g., Beaumont Children's Hospital anti-bullying program)

The patient and parents should be advised of Matt's Safe School Law:
"Matt's Safe School Law" was passed in 2011. Since June of 2012, the law (MCL 380.1310b) requires all public school districts in Michigan to implement policies and procedures prohibiting bullying and setting forth an appropriate response to incidents/complaints.
Added to Matt's Safe School Law in January 2015 was Senate Bill 74 which now includes cyberbullying as a prohibited type of bullying in Michigan schools. Schools will have to report any cyberbullying, assure confidentiality of people who report, and report any instances to the State Department of Education.

School bullying policies MUST include, at a minimum:
• a statement prohibiting bullying of a pupil
• a statement prohibiting retaliation or false accusation against a target of bullying, a witness, or another person with reliable information about an act of bullying
• a provision indicating that all pupils are protected under the policy and that bullying is equally prohibited, without regard to its subject matter
• a procedure for reporting an act of bullying
• a procedure for prompt investigation of a report of violation of the policy or a related complaint
• A procedure for each public school to document any prohibited incident that is reported and a procedure to report all verified incidents of bullying and the resulting consequences, including discipline and referrals

NOTE: The law also provides that parents and/or others who report bullying,
in good faith, are immune from potential liability arising out of a bullying incident.

Mandatory Reporting Requirements for Physicians:
Michigan law requires medical care providers and institutions to make police reports of all people who present suffering from violently-inflicted injury (MCL 750.411). This law applies regardless of the patient's relationship with the person who inflicted the injury (i.e., it applies to bullying, child abuse [which has additional reporting requirements not discussed here], domestic violence and violent injuries generally).

FAQ's Related to Filing a Report:

Under what circumstances must a report be made?
A report must be made immediately when any person suffering from any wound or other injury inflicted by a knife, gun, or other deadly weapon, or by other means of violence, comes or is brought to any hospital or pharmacy in Michigan, or is under the care of a physician or surgeon in Michigan. "Other means of violence" may include, but are not limited to, beating, biting, strangling, hitting, kicking, punching, and slapping.
Who must report? Any physician or surgeon who has a person under his or her care who is suffering from a wound or injury inflicted by any violent means MUST REPORT. Every person, firm, or corporation conducting any hospital or pharmacy in Michigan, or the person managing or in charge of the hospital or pharmacy, to which the person suffering from the wound or injury inflicted by any means of violence comes, or is brought MUST REPORT. All nursing personnel and staff are encouraged to notify a physician when such a situation exists. Failure to report is a criminal misdemeanor.

What about physician-patient privilege?
Michigan law states that the physician-patience privileges that exist under Michigan law do not apply to reports made pursuant to this law and are not valid reasons for a failure to comply with the reporting law. For this reason, reporting as required by the law is also exempt from HIPAA. Moreover, the physician-patient privilege is not a defense to a misdemeanor charge for failure to report injuries inflicted by violence.

Can a patient sue me?
The reporting law includes a specific grant of civil and criminal immunity for people who make good faith reports under this law. Any person who makes a report under this section is presumed to have acted in good faith. Of course, this immunity only applies to reporting and does not extend to any act of omission that amounts to professional malpractice.

To whom must the report be made?
The report must be made to the police department in the jurisdiction in which the hospital, pharmacy, physician, or surgeon is located. If there is no local police department, the report must be made to the county sheriff.

How must the report be made?
The report must be made by BOTH telephone and in writing.
What must be reported? The report must state the name and residence of the injured person, if known; the whereabouts of the injured person; the cause, character, and extent of the injuries; and may state the identification of the perpetrator, if known.

What may happen then?
Further investigation and prosecution, if any, will be handled by the police department and prosecutor where the violence causing the injury was committed. For this reason, in addition to the mandatory report, a patient may wish to report the violence directly to the police department in the jurisdiction where the violence occurred. The mandatory report does not ensure that arrest or prosecution will follow.

What must the patient be told?
Although the law does not require that the patient be informed about the mandatory reporting, it is recommended that the patient be informed for their personal safety and to get them involved in the process. If the patient requests that you do not report, you may explain that reporting is mandatory but limited to the information required by law.
What must be documented regarding the report? Document the fact that a report was made by phone and in writing, when the report was made, and to whom at what phone number and address. If an investigating officer is involved, note the name of the officer, badge number, report number, phone number, and any action taken. If a report to Adult or Child Protective Services is filed note this as well. Keep the original of this report in the file, and fax a copy to the local law enforcement agency. Retain the fax confirmation page with the original copy of the report.
A sample report is attached at the end of this pamphlet.


Action to Protect a Patient from Harm to Self (or Others):
When a patient, who is the victim of bullying, expresses intent to harm him/herself, a mental health provider has discretion
to seek hospitalization of the patient, even if the patient is not amenable to referral.

Involuntary Admission:
Under Michigan law, a patient may be involuntarily hospitalized to protect the patient or others. The law requires that the patient be determined to be a "person requiring treatment," which, in relevant part is one of the following criteria:
1. An individual who has a mental illness, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself or another individual, and who has engaged in an act or acts or made significant threats that are substantially supportive of that expectation.
2. An individual who has mental illness, whose judgment is so impaired that he or she is unable to understand his or her need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent clinical opinion, to result in significant physical harm to himself, herself, or others.
If either of these criteria are met, involuntary admission into a psychiatric hospital can be pursued. A "Petition/Application for Hospitalization" must be completed by anyone with the requisite knowledge, however, to have a patient taken into protective custody, a
Clinical Certificate must also be signed by a psychologist or psychiatrist as well. Under Michigan law, a law enforcement officer who is provided with a completed Petition/Application for Hospitalization and a signed Clinical Certificate will take a patient into custody and take the patient to the appropriate pre-admission screening unit or hospital, however, when a patient expresses intent to harm others, a mandatory duty
can also be triggered. A template of the Petition/Application for Hospitalization and Clinical Certificate can be located and printed from the Oakland County Medical Society website at government.htm:

Duty to Report:
State law requires disclosure of mental health recipient's records to a public agency to prevent harm to other individuals, including harm that could result from bullying. Required Duty to Warn/Duty to Protect Others (MCL 330.1946)


FAQ's by Mental Health Professionals on Reporting:

Who must report?
A "mental health professional," which includes psychiatrists, psychologists, certified social workers, social workers, social work technicians, licensed professional counselors, marriage and family therapists, and musical therapists treating a patient who communicates a threat of physical violence against a reasonably identifiable third person and has the apparent ability and intent to carry out the threat in the near future has a duty to take action. If a patient is being treated through a team in the hospital, the hospital shall designate a person to communicate the threat to necessary persons or agencies.

To whom must the action be directed?
One or more of the following must be done in a timely manner:
• hospitalize the patient or initiate proceedings to hospitalize the patients; and/or
• make a reasonable attempt to communicate the threat to the third person and to the local police or county sheriff's department where the third person lives or for the area where the patient lives, or the state police
• if the threatened party is a minor or otherwise declared incompetent, in addition to the steps above, the mental health professional must notify the Department of Social Services in the county where the minor lives and also notify the minor's custodial parent, non-custodial parent, or legal guardian, whoever is most appropriate.

How should the report be made?
The report should be made by telephone and in writing (letter, fax, email, etc.).

What must be reported?
The exact nature of the threat must be communicated.

February 4, 2015

Outpatient "Observation" Battle Continues

On January 22, 2015, in the case of Barrows v. Burwell, No. 3:11-cv-1703, 2015 WL 264727 (2nd Cir., January 22, 2015), the United States Court of Appeals for the Second Circuit ruled that Medicare beneficiaries be granted the opportunity to demonstrate a Constitutionally-protected property interest to challenge their patient status designations as hospital outpatients rather than inpatients.

Continue reading "Outpatient "Observation" Battle Continues" »