Category: Health Law Highlights

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Health Law Highlights

AI and Healthcare: Decoding the Latest 1557 Non-Discrimination Regulations

Summary of article from Bricker Graydon LLP, by N. Bradford Wells:

The 2024 Final Rule under Section 1557 of the Affordable Care Act reinstates and expands anti-discrimination provisions for healthcare providers and health plans receiving federal reimbursement. Notably, it extends these provisions to entities participating exclusively in Medicare Part B and introduces regulations for the use of Patient Care Decision Support Tools (PCDST), including AI and clinical algorithms. Covered Entities must now ensure these tools do not perpetuate discrimination based on protected characteristics such as race, sex, and disability. This involves understanding the training data and methodologies used in AI tools, conducting regular audits, and implementing compliance programs. The rule emphasizes the need for AI data literacy among providers to prevent biased treatment decisions. Additionally, the rule has broadened the definition of sex discrimination, although enforcement of this expansion is currently under a nationwide injunction. Compliance with these regulations will require significant vigilance and proactive risk management by healthcare entities.

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Health Law Highlights

Stakeholder Perspectives on Ethical and Trustworthy Voice AI in Health Care

Summary of article from Sage Journals, by Jean-Christophe Bélisle-Pipon, Maria Powell, Renee English, Marie-Françoise Malo, Vardit Ravitsky, Bridge2AI–Voice Consortium, Yael Bensoussan:

Voice as a health biomarker using artificial intelligence (AI) is gaining momentum in research. The noninvasiveness of voice data collection through accessible technology (such as smartphones, telehealth, and ambient recordings) or within clinical contexts means voice AI may help address health disparities and promote the inclusion of marginalized communities. However, the development of AI-ready voice datasets free from bias and discrimination is a complex task. The objective of this study is to better understand the perspectives of engaged and interested stakeholders regarding ethical and trustworthy voice AI, to inform both further ethical inquiry and technology innovation.

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Health Law Highlights

OIG Updates Fraud and Abuse Authorities FAQs

Summary of article from King & Spalding, by Doug Comin:

On July 8, 2024, the Office of Inspector General (OIG) updated its Frequently Asked Questions regarding fraud and abuse authorities, adding four new questions and answers. The updates address the legality and conditions under which hospitals may waive cost-sharing charges for patients under financial assistance or charity care policies without violating the federal anti-kickback statute (AKS) or the Civil Monetary Penalty Law (CMP Law). OIG clarifies that waivers for uninsured or commercially insured patients generally do not violate these laws, but waivers for Federal health care program enrollees could be problematic unless they fall under specific safe harbors or exceptions. Hospitals can inform patients about financial assistance policies, provided such information is not advertised or solicited in a manner that could be construed as inducement. Additionally, offering free care to uninsured or commercially insured patients and advertising this care does not violate AKS or CMP Law. Finally, hospitals may disseminate information about financial assistance policies through various channels, ensuring the communication is compliant and low-risk under the relevant statutes. The full FAQs can be accessed on the OIG website.

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Health Law Highlights

“Incident To” Billing Promotes Productivity, But Presents Many Potential Pitfalls

Summary of article from Burr & Forman, by Catherine Kirkland:

“Incident to” billing allows physician practices to bill Medicare for non-physician practitioners (NPPs) under a supervising physician’s provider number at the full physician rate, enhancing productivity and reducing appointment wait times. However, this arrangement carries significant compliance risks, requiring specific conditions such as the physician initiating treatment, ongoing management, and direct supervision. Violations can result in substantial financial penalties, as seen in recent cases where practices paid hefty settlements for non-compliance. Intentional breaches may even lead to federal criminal charges, highlighting the need for strict adherence to regulations. Practices must also recognize that “incident to” billing requirements differ among payors, necessitating tailored billing policies for each. Legal guidance should be sought if inadvertent violations occur, with self-reporting to the Office of Inspector General (OIG) as appropriate. Understanding and complying with both Medicare and individual payor guidelines is crucial for lawful “incident to” billing.

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Health Law Highlights

HHS Aligns AI, Tech Strategy Under its Policy Agency

Summary of article from GovCIO, by Silvia Oakland:

The Department of Health and Human Services (HHS) has restructured its technology and data strategy responsibilities, consolidating them under its policy office. This reorganization primarily affects the Office of National Coordinator for Health IT (ONC), now renamed the Assistant Secretary for Technology Policy and ONC (ASTP/ONC). A new Office of the Chief Technology Officer will be established, encompassing the Office of the Chief AI Officer, Office of the Chief Data Officer, and a new Office of Digital Services. This digital services team will oversee HHS-wide digital strategy and ethics in technology initiatives. The 405(d) cybersecurity program will transition to the Administration for Strategic Preparedness and Response (ASPR) to enhance healthcare cybersecurity. HHS Secretary Xavier Becerra emphasized the growing importance of cybersecurity, data, and AI in healthcare. Additionally, ONC has updated the Trusted Exchange Framework and Common Agreement (TEFCA) to improve the nationwide exchange of electronic health information.

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Health Law Highlights

A Lifecycle Management Approach Toward Delivering Safe, Effective AI-Enabled Health Care

Summary of blog post from FDA, by Troy Tazbaz:

AI’s continuous learning and adaptability pose risks, such as exacerbating biases, which can harm patients and underrepresented populations. Lifecycle Management (LCM), integral to reliable software since the 1960s, can address these challenges through structured frameworks. The AI Lifecycle (AILC) concept maps traditional Software Development Lifecycles to AI-specific phases, emphasizing systematic methods for data and model evaluation. This AILC model serves as a guide for assessing standards, tools, metrics, and best practices, promoting quality, interoperability, and ethical practices. The health care community is encouraged to engage with and refine these concepts to ensure AI’s safe and effective integration into health care. Feedback and involvement are welcomed to support the development of high-quality AI models.

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Health Law Highlights

Medicaid Overpayment Audits: What Medical Providers Need to Know

Summary of article from Nelson Mullins, by Gabriel Imperato, Hannah Kays, Melissa Scott:

Medicaid overpayment audits ensure program integrity but can be challenging for medical providers. Auditors review medical records and billing documents, typically involving notification, document submission, preliminary findings, appeals, and final determination. Common audit triggers include high claim volumes, unusual billing patterns, frequent adjustments, specific service types, and high rates of new patient claims. Providers can mitigate risks by maintaining accurate documentation, conducting regular internal audits, training staff, implementing compliance programs, and staying updated on regulations. Legal strategies include timely responses, thorough documentation reviews, expert consultations, and utilizing the appeal process to address discrepancies. Engaging knowledgeable healthcare attorneys can help protect practices and efficiently resolve disputes. Understanding the audit process and adhering to best practices can aid providers in managing Medicaid audits effectively.

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Health Law Highlights

Microsoft, Mass General Developing AI Models for Radiology

Summary of article from Fierce Healthcare, by Heather Landi:

Microsoft is collaborating with Mass General Brigham and the University of Wisconsin-Madison to enhance AI in medical imaging. The partnership aims to develop, test, and validate AI algorithms to improve the accuracy and consistency of medical image analysis. These AI models will be integrated into clinical workflows via Microsoft’s Azure AI platform and Nuance’s PowerScribe radiology reporting platform. The collaboration seeks to assist radiologists and clinicians in interpreting medical images, generating reports, classifying diseases, and analyzing structured data. This initiative addresses the healthcare industry’s challenges of physician burnout and staffing shortages by leveraging generative AI to enhance workflow efficiencies. Key leaders from the partner organizations emphasize the potential of generative AI to transform clinical care and improve patient outcomes. Additionally, Microsoft is working with Nvidia to advance generative AI and cloud computing in healthcare and life sciences.

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Health Law Highlights

Healthcare Organizations at Risk of Data Breach Due to Insecure File Sharing Practices

Summary of article from HIT Consultant, by Fred Pennic:

A resent report highlights significant vulnerabilities in healthcare organizations’ data security practices, particularly concerning insecure file sharing. Key findings reveal that 25% of publicly shared files and 68% of externally shared private files contain Personally Identifiable Information (PII), while 77% of internally shared private files also include PII. Additionally, many organizations fail to update or remove access permissions, increasing security risks. The consequences of these practices include rising data breaches, substantial financial impacts from ransomware attacks, and potential compliance violations with HIPAA and GDPR regulations. The report also notes the risk to financial data, such as credit card information, stored in insecure files. To mitigate these risks, healthcare organizations must adopt robust data loss prevention (DLP) solutions and data security tools to ensure proper handling and sharing of sensitive information. Metomic emphasizes the need for these tools to prevent data leaks and protect both patient information and organizational integrity.

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Health Law Highlights

Pharmacy Association and 40 Providers Sue Change Healthcare Over Cyberattack

Summary of article from The HIPAA Journal, by Steve Adler:

The National Community Pharmacists Association (NCPA) and over 40 healthcare providers from 22 states are suing Change Healthcare, Optum, and UnitedHealth Group following a February 2024 ransomware attack. This Blackcat ransomware incident resulted in significant disruptions, as Change Healthcare’s critical systems were taken offline, affecting claims processing and revenue management for numerous providers nationwide. The plaintiffs argue that the defendants failed to implement adequate security measures and did not provide timely guidance or support, exacerbating financial hardships for healthcare providers. The lawsuit, which spans 140 pages, includes claims of negligence, breach of contract, and violations of various state consumer protection laws. It seeks permanent injunctive relief, enhanced security measures, and various forms of damages.