Articles Posted in Health Law

Established in 1986, the National Practitioner Data Bank (“NPDB”) is a “repository of reports that contain information on medical malpractice payments and certain adverse actions related to health care practitioners, providers, and suppliers.” NPDB website. Under the NPDB, hospitals and other entities with peer review committees, health plans, and numerous others are required to report certain adverse actions to the centralized database. Reporting to the NPDB (or failing to report) has serious consequences to both mandatory report entities and practitioners that are reported. Entities that report improperly (or properly), may face lawsuits from reported practitioners. Conversely, reported practitioners who appear on the NPDB (properly or improperly) may have lasting career and reputational effects.

The NPDB Guidebook provides interpretation of NPDB requirements for mandatory report entities. On October 26, 2018, the Guidebook was updated for the first time since April 2015. While many of the October 2018 updates to the NPDB are editorial changes, there were also modifications made regarding what is considered a reportable surrender of privileges, as well as other reporting descriptions. These changes will likely lead to more reporting events.

These changes occurred predominately in Chapter E: Reports, Reporting Adverse Clinical Privileges Actions, with the addition of a new section entitled “Length of Restriction”. This section clarifies that, regardless of how a restriction order is written, if a professional review action affects the privileges of a practitioner in a negative way for longer than 30 days, it is reportable. This update appears to be a response to a 2017 federal court ruling that found that a proctoring restriction was not reportable because it was not clear that the restriction would take more than 30 days.

The results of the 2018 primary election have officially been tabulated and the impact that will be made on healthcare law is slowly becoming clear. The most notable healthcare development is in regards to the Affordable Care Act (ACA) that was enacted in March of 2010 under President Obama, the primary goal of which was to make reasonably priced health insurance available to more Americans than ever before. In recent months, Republicans have been working to repeal and replace the ACA but have thus far been unsuccessful. This most recent election has put that progress back even further. Now, 37 states including the District of Columbia have implemented or are working to implement the ACA’s Medicaid expansion which will increase the coverage of low-income adults who otherwise would not have access to healthcare. This recent growth in the number of states who have adopted the expansion plan may subsequently generate extra pressure for states who have not yet approved the plan.

Incoming Michigan Governor Gretchen Whitmer, who won over her Republican counterpart Bill Schuette, has made it known in the past that she supports the ACA. Whitmer has also recognized that premiums may be considered too high by many and understands something needs to be done to address the cost. In addition, the Michigan Health & Hospital Association (MHA) has plans to work closely with the Whitmer association transition team, ensuring that Michigan’s healthcare needs are fully addressed and that the results are in the public’s best interests. According to the MHA, issues that will be discussed include Healthy Michigan Plan work requirements and rural and behavioral health access, among other topics.

In New York, the departure of former long-time Chair of the Senate Health Committee turned key New York senator Kemp Hannon is causing speculations on whether New York’s political future will include more progressive attention to healthcare law. New York Governor Andrew Cuomo has already made it clear that passing both the Reproductive Health Act as well as the Comprehensive Contraception Coverage Act are going to be some of his first priorities. In addition, Senator Andrea Stewart-Cousins and Senator Gustavo Rivera have both made statements supporting a single-payer healthcare system under the New York Health Act.

In the FY 2015 IPPS/LTCH proposed rule (79 FR 28169) and final rule (79 FR 50146), CMS discussed and then implemented Section 2718(e) of the Public Health Service Act, which was enacted as part of the Affordable Care Act. The rule aimed to improve the transparency of hospital charges by requiring hospitals to either post standard charges online or to comply with patient requests for such information.

In April 2018, in response to consumer concern and surprise over out-of-network physician services at in-network hospitals, as well as the price of emergency department services, CMS further requested comment on a proposed rule that would require more transparency in hospital pricing. The new rule was officially finalized on August 2, 2018 and requires hospitals to make public a list of their standard charges via the Internet in a machine-readable format, which hospitals must update at least annually. CMS received positive feedback in April from providers and hospitals, and CMS commented in the final rule that this change aligns with American Hospital Association State Transparency Survey data indicating that 35 States already require hospitals to release pricing information for certain charges and that 7 States rely on voluntary disclosure of standard pricing data.

This final rule is a result of a push by the Trump Administration hoping to lower medical costs by encouraging price transparency among medical providers and improve public accessibility to information.  According to CMS Administrator Seema Verma, the Trump administration’s work in this area is just beginning. CMS and the Trump Administration is further encouraging individual states to tackle price transparency via legislation which would allow prospective patients to shop around for the best pricing for future medical services.

Medicare officials are investigating pharmacies that sell compounding made-to-order gels, lotions, and creams for possible fraud and patient safety risks.  In general, made to order creams used in pain treatments can dramatically improve a patient’s quality of life, but HHS regulators are concerned for patient safety if these drugs are not properly monitored. For example, in 2012, a Massachusetts pharmacy failed to maintain sterile conditions and sold tainted made-to-order injections that killed 64 Americans.  Although State Boards usually regulate these compounded drugs, they are not considered FDA approved.

Medicare officials have identified several target pharmacies allegedly charging extremely high prices, selling large percentages of identical drugs, and that have substantially increased billing for these products.   Price hikes on compounded gels and creams, combined with an increase in dispensed prescriptions, has led to a rise in Medicare spending on pain creams from $13.2 million in 2010 to $323.5 million in 2016.  Regulators are beginning to take measures against pharmacies with suspicious billing patterns, especially in the cities of Detroit, Houston, Los Angeles and New York, all of which have high concentrations of red-flagged pharmacies.

The Health Law Partners frequently counsels compounding pharmacies at a national level on proactive and reactive strategies against fraud and abuse allegations.  For more information on this topic, please contact Adrienne Dresevic, Esq. or Clinton Mikel, Esq. at (248) 996 –8510 or by email at adresevic@thehlp.com or cmikel@thehlp.com.