Alicia Gallegos

The Meaningful Use (MU) program as doctors know it may soon be ending, but audits of past attestations are slated to continue for at least the next 6 years.

Experts offer the following guidance on how to successfully manage audits and subsequent appeals.

1. Expect an audit.

Assume that at some point, you will be audited, said Joshua J. Freemire, a health law attorney based in Baltimore who specializes in regulatory compliance matters.

“Have good procedures in place to ensure the audit is brought to the attention of management and responded to promptly,” Mr. Freemire said in an interview. “Similarly, it is important that practices understand, in advance, how information created by their EHR is stored and managed.”

Audits are not limited to the current or most recent year, he noted. Being able to promptly access the appropriate information is an important part of drafting appropriate responses.

2. Save records

Keep all relevant records electronically for at least 6 years after attestation, advised Carmiña Nitzki, a senior consultant with GE Healthcare Camden Group.

Some documentation, such as your security risk analysis, should be maintained in paper form, she added. It is also helpful to take screen shots of certain measures that address the functionality of your system.

Records should follow when a physician moves a practice or changes employment. Ms. Nitzki recently assisted a case in which an early adopter physician dissolved his practice, became employed, and moved offices. His 2011 attestation was later audited, and he did not have all of the requested information. The doctor came to Ms. Nitzki after failing an audit and being assessed an $18,000 recoupment payment. Together, they were able to recreate and locate much of the necessary records through old emails and past documentation.

“We won the appeal,” said Ms. Nitzki, who spoke about meaningful use audits at a recent American Bar Association meeting. “The takeaway is if you’re going to respond to an audit, make sure you understand everything that they’re asking for and that you’re confident that you’re responding with all of the appropriate documentation,” she said.

3. Meet deadlines

Promptly responding to audits and quickly addressing failed audits are critical, Mr. Freemire said.

“The [MU] program is very strict with regard to deadlines, and an appeal cannot be filed once the applicable deadline has passed,” he said.

Mr. Freemire said that he routinely encounters health providers who have missed deadlines or let too much time lapse after being contacted by the government. Failure to meet deadlines can result from various reasons, including that notices are not promptly brought to the physician’s attention, delays investigating the availability of requested materials, or a false assumption that the requested information is readily at hand, he said.

Ensure that all audit deadlines are recorded and work with staff and leadership to file responses on time. Factor in additional time if there could be difficulty in locating records, experts stressed.

“I see difficulty in effectively responding to audits where records are simply not maintained,” he said. “Again, this can happen for many reasons, including personnel turnover, but it can be difficult or impossible to effectively respond to audit requests” in this situation.

4. Appeal effectively

Swiftly and thoroughly appeal a failed audit.

When a doctor fails an audit, it’s usually because of incomplete responses or missing information, Ms. Nitzki said. Only those measures that were rejected or that failed to meet standards need to be addressed during an appeal. Sending a cover letter to CMS with the appeal, explaining why the doctor may have failed initially can strengthen the case, she said.

“The appeals process is done directly with CMS, so they’re a little more reasonable,” she said. “They tend to look at things on broader scale.”

Don’t wait to appeal, Mr. Freemire said. Practices have 30 days from the date of an adverse audit determination letter to submit an appeal. If time runs out, physicians must pay back any money requested by auditors, and CMS expects the recoupment in full.

“Following a negative decision, the most important step is prompt attention,” he said. “The sooner that process begins, the sooner it can be completed. The time line for audit appeals is not generous and providers need to ensure they react promptly to a negative finding.”

5. Get help

Ms. Nitzki recommends that physicians obtain professional assistance when responding to an audit.

Practices can hire a consulting company or find audit resources from their specialty society or state medical association. The American Academy of Family Physicians provides a tip sheet on responding to audits. Some state organizations, such as the Texas Medical Association, offer a helpline for doctors to call and ask questions related to meaningful use.

“Unless they have a very savvy person in their office who has taken care all of their meaningful use attestations and documentation, we recommend they get help because it’s in the details where they could fail,” she said.

Seeking help after a failed audit is also essential, notes Mr. Freemire. Experts who are familiar with the program and its requirements and procedures can be of great assistance when it comes organizing the facts into a persuasive argument, he said.

“A cost/benefit is necessary – as it is with all service providers,” he said. “But a provider’s chances for a successful appeal are increased when that appeal is prepared by someone who understands the history and intention behind program requirements, who can best identify and present the necessary evidence of compliance, and who can make a compelling argument as to the provider’s satisfaction of program requirements.”

[email protected]

On Twitter @legal_med

The Meaningful Use (MU) program as doctors know it may soon be ending, but audits of past attestations are slated to continue for at least the next 6 years.

Experts offer the following guidance on how to successfully manage audits and subsequent appeals.

1. Expect an audit.

Assume that at some point, you will be audited, said Joshua J. Freemire, a health law attorney based in Baltimore who specializes in regulatory compliance matters.

“Have good procedures in place to ensure the audit is brought to the attention of management and responded to promptly,” Mr. Freemire said in an interview. “Similarly, it is important that practices understand, in advance, how information created by their EHR is stored and managed.”

Audits are not limited to the current or most recent year, he noted. Being able to promptly access the appropriate information is an important part of drafting appropriate responses.

2. Save records

Keep all relevant records electronically for at least 6 years after attestation, advised Carmiña Nitzki, a senior consultant with GE Healthcare Camden Group.

Some documentation, such as your security risk analysis, should be maintained in paper form, she added. It is also helpful to take screen shots of certain measures that address the functionality of your system.

Records should follow when a physician moves a practice or changes employment. Ms. Nitzki recently assisted a case in which an early adopter physician dissolved his practice, became employed, and moved offices. His 2011 attestation was later audited, and he did not have all of the requested information. The doctor came to Ms. Nitzki after failing an audit and being assessed an $18,000 recoupment payment. Together, they were able to recreate and locate much of the necessary records through old emails and past documentation.

“We won the appeal,” said Ms. Nitzki, who spoke about meaningful use audits at a recent American Bar Association meeting. “The takeaway is if you’re going to respond to an audit, make sure you understand everything that they’re asking for and that you’re confident that you’re responding with all of the appropriate documentation,” she said.

3. Meet deadlines

Promptly responding to audits and quickly addressing failed audits are critical, Mr. Freemire said.

“The [MU] program is very strict with regard to deadlines, and an appeal cannot be filed once the applicable deadline has passed,” he said.

Mr. Freemire said that he routinely encounters health providers who have missed deadlines or let too much time lapse after being contacted by the government. Failure to meet deadlines can result from various reasons, including that notices are not promptly brought to the physician’s attention, delays investigating the availability of requested materials, or a false assumption that the requested information is readily at hand, he said.

Ensure that all audit deadlines are recorded and work with staff and leadership to file responses on time. Factor in additional time if there could be difficulty in locating records, experts stressed.

“I see difficulty in effectively responding to audits where records are simply not maintained,” he said. “Again, this can happen for many reasons, including personnel turnover, but it can be difficult or impossible to effectively respond to audit requests” in this situation.

4. Appeal effectively

Swiftly and thoroughly appeal a failed audit.

When a doctor fails an audit, it’s usually because of incomplete responses or missing information, Ms. Nitzki said. Only those measures that were rejected or that failed to meet standards need to be addressed during an appeal. Sending a cover letter to CMS with the appeal, explaining why the doctor may have failed initially can strengthen the case, she said.

“The appeals process is done directly with CMS, so they’re a little more reasonable,” she said. “They tend to look at things on broader scale.”

Don’t wait to appeal, Mr. Freemire said. Practices have 30 days from the date of an adverse audit determination letter to submit an appeal. If time runs out, physicians must pay back any money requested by auditors, and CMS expects the recoupment in full.

“Following a negative decision, the most important step is prompt attention,” he said. “The sooner that process begins, the sooner it can be completed. The time line for audit appeals is not generous and providers need to ensure they react promptly to a negative finding.”

5. Get help

Ms. Nitzki recommends that physicians obtain professional assistance when responding to an audit.

Practices can hire a consulting company or find audit resources from their specialty society or state medical association. The American Academy of Family Physicians provides a tip sheet on responding to audits. Some state organizations, such as the Texas Medical Association, offer a helpline for doctors to call and ask questions related to meaningful use.

“Unless they have a very savvy person in their office who has taken care all of their meaningful use attestations and documentation, we recommend they get help because it’s in the details where they could fail,” she said.

Seeking help after a failed audit is also essential, notes Mr. Freemire. Experts who are familiar with the program and its requirements and procedures can be of great assistance when it comes organizing the facts into a persuasive argument, he said.

“A cost/benefit is necessary – as it is with all service providers,” he said. “But a provider’s chances for a successful appeal are increased when that appeal is prepared by someone who understands the history and intention behind program requirements, who can best identify and present the necessary evidence of compliance, and who can make a compelling argument as to the provider’s satisfaction of program requirements.”

[email protected]

On Twitter @legal_med

The Meaningful Use (MU) program as doctors know it may soon be ending, but audits of past attestations are slated to continue for at least the next 6 years.

Experts offer the following guidance on how to successfully manage audits and subsequent appeals.

1. Expect an audit.

Assume that at some point, you will be audited, said Joshua J. Freemire, a health law attorney based in Baltimore who specializes in regulatory compliance matters.

“Have good procedures in place to ensure the audit is brought to the attention of management and responded to promptly,” Mr. Freemire said in an interview. “Similarly, it is important that practices understand, in advance, how information created by their EHR is stored and managed.”

Audits are not limited to the current or most recent year, he noted. Being able to promptly access the appropriate information is an important part of drafting appropriate responses.

2. Save records

Keep all relevant records electronically for at least 6 years after attestation, advised Carmiña Nitzki, a senior consultant with GE Healthcare Camden Group.

Some documentation, such as your security risk analysis, should be maintained in paper form, she added. It is also helpful to take screen shots of certain measures that address the functionality of your system.

Records should follow when a physician moves a practice or changes employment. Ms. Nitzki recently assisted a case in which an early adopter physician dissolved his practice, became employed, and moved offices. His 2011 attestation was later audited, and he did not have all of the requested information. The doctor came to Ms. Nitzki after failing an audit and being assessed an $18,000 recoupment payment. Together, they were able to recreate and locate much of the necessary records through old emails and past documentation.

“We won the appeal,” said Ms. Nitzki, who spoke about meaningful use audits at a recent American Bar Association meeting. “The takeaway is if you’re going to respond to an audit, make sure you understand everything that they’re asking for and that you’re confident that you’re responding with all of the appropriate documentation,” she said.

3. Meet deadlines

Promptly responding to audits and quickly addressing failed audits are critical, Mr. Freemire said.

“The [MU] program is very strict with regard to deadlines, and an appeal cannot be filed once the applicable deadline has passed,” he said.

Mr. Freemire said that he routinely encounters health providers who have missed deadlines or let too much time lapse after being contacted by the government. Failure to meet deadlines can result from various reasons, including that notices are not promptly brought to the physician’s attention, delays investigating the availability of requested materials, or a false assumption that the requested information is readily at hand, he said.

Ensure that all audit deadlines are recorded and work with staff and leadership to file responses on time. Factor in additional time if there could be difficulty in locating records, experts stressed.

“I see difficulty in effectively responding to audits where records are simply not maintained,” he said. “Again, this can happen for many reasons, including personnel turnover, but it can be difficult or impossible to effectively respond to audit requests” in this situation.

4. Appeal effectively

Swiftly and thoroughly appeal a failed audit.

When a doctor fails an audit, it’s usually because of incomplete responses or missing information, Ms. Nitzki said. Only those measures that were rejected or that failed to meet standards need to be addressed during an appeal. Sending a cover letter to CMS with the appeal, explaining why the doctor may have failed initially can strengthen the case, she said.

“The appeals process is done directly with CMS, so they’re a little more reasonable,” she said. “They tend to look at things on broader scale.”

Don’t wait to appeal, Mr. Freemire said. Practices have 30 days from the date of an adverse audit determination letter to submit an appeal. If time runs out, physicians must pay back any money requested by auditors, and CMS expects the recoupment in full.

“Following a negative decision, the most important step is prompt attention,” he said. “The sooner that process begins, the sooner it can be completed. The time line for audit appeals is not generous and providers need to ensure they react promptly to a negative finding.”

5. Get help

Ms. Nitzki recommends that physicians obtain professional assistance when responding to an audit.

Practices can hire a consulting company or find audit resources from their specialty society or state medical association. The American Academy of Family Physicians provides a tip sheet on responding to audits. Some state organizations, such as the Texas Medical Association, offer a helpline for doctors to call and ask questions related to meaningful use.

“Unless they have a very savvy person in their office who has taken care all of their meaningful use attestations and documentation, we recommend they get help because it’s in the details where they could fail,” she said.

Seeking help after a failed audit is also essential, notes Mr. Freemire. Experts who are familiar with the program and its requirements and procedures can be of great assistance when it comes organizing the facts into a persuasive argument, he said.

“A cost/benefit is necessary – as it is with all service providers,” he said. “But a provider’s chances for a successful appeal are increased when that appeal is prepared by someone who understands the history and intention behind program requirements, who can best identify and present the necessary evidence of compliance, and who can make a compelling argument as to the provider’s satisfaction of program requirements.”

[email protected]

On Twitter @legal_med

Use of Integrating the Healthcare Enterprise (IHE) standards and profiles generates the necessary technical framework to exchange health care data, while maintaining the syntactic and semantic components needed to accommodate a diverse range of health information consumers, according to a new policy statement by the American College of Cardiology.

Systems developed in accordance with IHE better communicate, are easier to implement, and enable health care providers to use information more effectively, wrote lead author John R. Windle, MD, of the University of Nebraska, Omaha. The policy statement was joined by the American Society of Echocardiography, the American Society of Nuclear Cardiology, the Heart Rhythm Society, and the Society for Cardiovascular Angiography and Interventions, among other medical societies (J Am Coll Cardiol. 2016 Aug 15 doi: 10.1016/j.jacc.2016.04.017).

©Sebastian Duda/Thinkstock

“The ACC believes that meaningful interoperability of data, agnostic of proprietary vendor formatting, is crucial for optimal patient care as well as the many associated activities necessary to support a robust and transparent health care delivery system,” the ACC policy states. “IHE serves a unique role and fills a critical gap in pursuit of this goal.”

IHE is a nonprofit international organization established in 1998 that develops standards-based frameworks for sharing information within care sites and across networks. The organization leverages existing data standards to facilitate communication of information among health care information systems and joins users of health care information technology (HIT) in a recurring four-step process, according to the IHE website. The process includes defining critical-use cases for information sharing, creating detailed specifications for communication among systems to address the critical-use cases, implementing these specifications throughout the industry, and selecting and optimizing established standards. Industry experts then implement these specifications, called “IHE profiles,” into “HIT systems,” and IHE tests the systems at planned and supervised events called “connectathons.”

IHE is divided into 12 clinical domains, each of which includes integration profiles. The profiles identify actors, transactions, and information content necessary to address use cases within certain practice areas. The work is compiled into IHE technical frameworks – detailed documents that serve as implementation guides. All documents and artifacts are freely available on the IHE website. Within the cardiology domain, 14 profiles have completed the development cycle and have been tested and validated at a connectathon testing event.

Through its policy statement, the ACC is promoting adoption of IHE by several means, including:

• Engaging support from health care system executives by encouraging specification of support for IHE integration profiles in all requests for proposals.

• Encouraging end users to request support for IHE integration profiles.

• Lobbying the Department of Health and Human Services Office of the National Coordinator for Health Information Technology to support the IHE technical frameworks in the EHR Incentive Program and beyond.

• Collaborating with other organizations such as the American Heart Association and the Joint Commission.

The ACC policy notes that health providers should not underestimate the complexity of true interoperability, but stresses that IHE is key to a stronger platform for data exchange.

“Developing meaningful interoperability across the diverse and complex field of health care will require leadership from medical societies as well as federal and state organizations in the form of policies and financial incentives that will steer industry to develop and implement the infrastructure and systems that consumers require,” Dr. Windle and his colleagues wrote. “Although we cannot overemphasize the enormity of this process, IHE will allow the rapid dissemination of best practices through efforts in standardization.”

[email protected]

On Twitter @legal_med

Use of Integrating the Healthcare Enterprise (IHE) standards and profiles generates the necessary technical framework to exchange health care data, while maintaining the syntactic and semantic components needed to accommodate a diverse range of health information consumers, according to a new policy statement by the American College of Cardiology.

Systems developed in accordance with IHE better communicate, are easier to implement, and enable health care providers to use information more effectively, wrote lead author John R. Windle, MD, of the University of Nebraska, Omaha. The policy statement was joined by the American Society of Echocardiography, the American Society of Nuclear Cardiology, the Heart Rhythm Society, and the Society for Cardiovascular Angiography and Interventions, among other medical societies (J Am Coll Cardiol. 2016 Aug 15 doi: 10.1016/j.jacc.2016.04.017).

©Sebastian Duda/Thinkstock

“The ACC believes that meaningful interoperability of data, agnostic of proprietary vendor formatting, is crucial for optimal patient care as well as the many associated activities necessary to support a robust and transparent health care delivery system,” the ACC policy states. “IHE serves a unique role and fills a critical gap in pursuit of this goal.”

IHE is a nonprofit international organization established in 1998 that develops standards-based frameworks for sharing information within care sites and across networks. The organization leverages existing data standards to facilitate communication of information among health care information systems and joins users of health care information technology (HIT) in a recurring four-step process, according to the IHE website. The process includes defining critical-use cases for information sharing, creating detailed specifications for communication among systems to address the critical-use cases, implementing these specifications throughout the industry, and selecting and optimizing established standards. Industry experts then implement these specifications, called “IHE profiles,” into “HIT systems,” and IHE tests the systems at planned and supervised events called “connectathons.”

IHE is divided into 12 clinical domains, each of which includes integration profiles. The profiles identify actors, transactions, and information content necessary to address use cases within certain practice areas. The work is compiled into IHE technical frameworks – detailed documents that serve as implementation guides. All documents and artifacts are freely available on the IHE website. Within the cardiology domain, 14 profiles have completed the development cycle and have been tested and validated at a connectathon testing event.

Through its policy statement, the ACC is promoting adoption of IHE by several means, including:

• Engaging support from health care system executives by encouraging specification of support for IHE integration profiles in all requests for proposals.

• Encouraging end users to request support for IHE integration profiles.

• Lobbying the Department of Health and Human Services Office of the National Coordinator for Health Information Technology to support the IHE technical frameworks in the EHR Incentive Program and beyond.

• Collaborating with other organizations such as the American Heart Association and the Joint Commission.

The ACC policy notes that health providers should not underestimate the complexity of true interoperability, but stresses that IHE is key to a stronger platform for data exchange.

“Developing meaningful interoperability across the diverse and complex field of health care will require leadership from medical societies as well as federal and state organizations in the form of policies and financial incentives that will steer industry to develop and implement the infrastructure and systems that consumers require,” Dr. Windle and his colleagues wrote. “Although we cannot overemphasize the enormity of this process, IHE will allow the rapid dissemination of best practices through efforts in standardization.”

[email protected]

On Twitter @legal_med

Use of Integrating the Healthcare Enterprise (IHE) standards and profiles generates the necessary technical framework to exchange health care data, while maintaining the syntactic and semantic components needed to accommodate a diverse range of health information consumers, according to a new policy statement by the American College of Cardiology.

Systems developed in accordance with IHE better communicate, are easier to implement, and enable health care providers to use information more effectively, wrote lead author John R. Windle, MD, of the University of Nebraska, Omaha. The policy statement was joined by the American Society of Echocardiography, the American Society of Nuclear Cardiology, the Heart Rhythm Society, and the Society for Cardiovascular Angiography and Interventions, among other medical societies (J Am Coll Cardiol. 2016 Aug 15 doi: 10.1016/j.jacc.2016.04.017).

©Sebastian Duda/Thinkstock

“The ACC believes that meaningful interoperability of data, agnostic of proprietary vendor formatting, is crucial for optimal patient care as well as the many associated activities necessary to support a robust and transparent health care delivery system,” the ACC policy states. “IHE serves a unique role and fills a critical gap in pursuit of this goal.”

IHE is a nonprofit international organization established in 1998 that develops standards-based frameworks for sharing information within care sites and across networks. The organization leverages existing data standards to facilitate communication of information among health care information systems and joins users of health care information technology (HIT) in a recurring four-step process, according to the IHE website. The process includes defining critical-use cases for information sharing, creating detailed specifications for communication among systems to address the critical-use cases, implementing these specifications throughout the industry, and selecting and optimizing established standards. Industry experts then implement these specifications, called “IHE profiles,” into “HIT systems,” and IHE tests the systems at planned and supervised events called “connectathons.”

IHE is divided into 12 clinical domains, each of which includes integration profiles. The profiles identify actors, transactions, and information content necessary to address use cases within certain practice areas. The work is compiled into IHE technical frameworks – detailed documents that serve as implementation guides. All documents and artifacts are freely available on the IHE website. Within the cardiology domain, 14 profiles have completed the development cycle and have been tested and validated at a connectathon testing event.

Through its policy statement, the ACC is promoting adoption of IHE by several means, including:

• Engaging support from health care system executives by encouraging specification of support for IHE integration profiles in all requests for proposals.

• Encouraging end users to request support for IHE integration profiles.

• Lobbying the Department of Health and Human Services Office of the National Coordinator for Health Information Technology to support the IHE technical frameworks in the EHR Incentive Program and beyond.

• Collaborating with other organizations such as the American Heart Association and the Joint Commission.

The ACC policy notes that health providers should not underestimate the complexity of true interoperability, but stresses that IHE is key to a stronger platform for data exchange.

“Developing meaningful interoperability across the diverse and complex field of health care will require leadership from medical societies as well as federal and state organizations in the form of policies and financial incentives that will steer industry to develop and implement the infrastructure and systems that consumers require,” Dr. Windle and his colleagues wrote. “Although we cannot overemphasize the enormity of this process, IHE will allow the rapid dissemination of best practices through efforts in standardization.”

[email protected]

On Twitter @legal_med

The FBI is raising concerns that language in the Interstate Medical Licensure Compact violates federal regulations over criminal background checks. The government pushback could mean implementation delays of telemedicine legislation that 17 states have enacted.

In a letter to the Minnesota Bureau of Criminal Apprehension, an FBI attorney wrote that the state’s compact law does not meet federal rules that allow the sharing of information with states for purposes of criminal background checks. In addition, no federal statutory authority exists for the FBI to share criminal files with a “private” entity such as the interstate commission, wrote Christopher B. Chaney, an attorney in the FBI Office of the General Counsel in Clarksburg, W.Va. The FBI sent a letter expressing the same concerns to the Montana Department of Justice regarding Montana’s compact law.

The Minnesota Board of Medical Practice has requested that the FBI reverse its findings, writing in an Aug. 3 letter that the agency does not appear to fully understand how the compact works. The board is scheduled to begin issuing licenses via the compact in January 2017, said Ruth Martinez, the board’s executive director.

“We believe it’s an erroneous conclusion that they’ve drawn,” Ms. Martinez said in an interview. “We are very actively engaged in rule-writing and in preparing technology and so forth to be ready to issue licenses, and we feel very confident that this determination will be overturned.”

The Montana Board of Medical Examiners meanwhile is aware of the FBI’s letter and is closely monitoring the situation in Minnesota before taking action, said Ian Marquand, executive officer for the Montana Board of Medical Examiners.

“We are still digesting this and are anxious to see what happens with the Minnesota situation,” Mr. Marquand said in an interview. “That may provide the road map.”

The Interstate Medical Licensure Compact is aimed at making it easier for telemedicine physicians to gain licenses in multiple states. Under the model legislation, developed by the Federation of State Medical Boards (FSMB), physicians designate a member state as the state of principal licensure and select the other states in which they wish to be licensed. The state of principal licensure then verifies the physician’s eligibility and provides credential information to the interstate commission, which collects applicable fees and transmits the doctor’s information to the other states. Upon receipt in the additional states, the physician would be granted a license.

In July 2015, the U.S. Health Resources and Services Administration awarded the FSMB a grant to support establishment of the commission and aid with the compact’s infrastructure.

There is nothing unique about Minnesota’s compact law, Ms. Martinez said. The statute is based on the same model legislation that passed in 16 other states. She believes that Minnesota’s law is merely one of the first to be reviewed by the FBI. Both Minnesota and Montana officials had requested that their respective state departments of justice determine if the compact laws met public law standards pertaining to criminal history records.

Ms. Martinez said that she hopes that the board’s letter to the FBI will help explain how the compact process works and prevent further federal rejections in other jurisdictions. She notes for example that the FBI incorrectly characterizes the interstate commission as a “private” entity in its letter, when the commission is a corporate body and a joint agency of the member states. The FBI also misunderstands how the commission interacts with the individual state licensing boards and the process of licensure, according to the board’s reply letter. It is not the commission that will be using FBI data, but the member states that will be utilizing the information in the course of verification, writes Rick Masters, special counsel to the National Center for Interstate Compacts.

The Federation of State Medical Boards is closely watching the matter and supports the Minnesota Board of Medical Practice, said Lisa A. Robin FSMB’s chief advocacy officer.

“The FSMB, along with the Council of State Governments (CSG), agrees with and supports the Minnesota board’s position in this matter,” Ms. Robin said in an emailed statement. “The compact’s statutory language does not alter state-based responsibility for the administration of criminal background checks, nor does it seek to extend this responsibility beyond individual state medical boards.”

At press time, the FBI’s Mr. Chaney had not responded to a message seeking comment.

[email protected]

On Twitter @legal_med

The FBI is raising concerns that language in the Interstate Medical Licensure Compact violates federal regulations over criminal background checks. The government pushback could mean implementation delays of telemedicine legislation that 17 states have enacted.

In a letter to the Minnesota Bureau of Criminal Apprehension, an FBI attorney wrote that the state’s compact law does not meet federal rules that allow the sharing of information with states for purposes of criminal background checks. In addition, no federal statutory authority exists for the FBI to share criminal files with a “private” entity such as the interstate commission, wrote Christopher B. Chaney, an attorney in the FBI Office of the General Counsel in Clarksburg, W.Va. The FBI sent a letter expressing the same concerns to the Montana Department of Justice regarding Montana’s compact law.

The Minnesota Board of Medical Practice has requested that the FBI reverse its findings, writing in an Aug. 3 letter that the agency does not appear to fully understand how the compact works. The board is scheduled to begin issuing licenses via the compact in January 2017, said Ruth Martinez, the board’s executive director.

“We believe it’s an erroneous conclusion that they’ve drawn,” Ms. Martinez said in an interview. “We are very actively engaged in rule-writing and in preparing technology and so forth to be ready to issue licenses, and we feel very confident that this determination will be overturned.”

The Montana Board of Medical Examiners meanwhile is aware of the FBI’s letter and is closely monitoring the situation in Minnesota before taking action, said Ian Marquand, executive officer for the Montana Board of Medical Examiners.

“We are still digesting this and are anxious to see what happens with the Minnesota situation,” Mr. Marquand said in an interview. “That may provide the road map.”

The Interstate Medical Licensure Compact is aimed at making it easier for telemedicine physicians to gain licenses in multiple states. Under the model legislation, developed by the Federation of State Medical Boards (FSMB), physicians designate a member state as the state of principal licensure and select the other states in which they wish to be licensed. The state of principal licensure then verifies the physician’s eligibility and provides credential information to the interstate commission, which collects applicable fees and transmits the doctor’s information to the other states. Upon receipt in the additional states, the physician would be granted a license.

In July 2015, the U.S. Health Resources and Services Administration awarded the FSMB a grant to support establishment of the commission and aid with the compact’s infrastructure.

There is nothing unique about Minnesota’s compact law, Ms. Martinez said. The statute is based on the same model legislation that passed in 16 other states. She believes that Minnesota’s law is merely one of the first to be reviewed by the FBI. Both Minnesota and Montana officials had requested that their respective state departments of justice determine if the compact laws met public law standards pertaining to criminal history records.

Ms. Martinez said that she hopes that the board’s letter to the FBI will help explain how the compact process works and prevent further federal rejections in other jurisdictions. She notes for example that the FBI incorrectly characterizes the interstate commission as a “private” entity in its letter, when the commission is a corporate body and a joint agency of the member states. The FBI also misunderstands how the commission interacts with the individual state licensing boards and the process of licensure, according to the board’s reply letter. It is not the commission that will be using FBI data, but the member states that will be utilizing the information in the course of verification, writes Rick Masters, special counsel to the National Center for Interstate Compacts.

The Federation of State Medical Boards is closely watching the matter and supports the Minnesota Board of Medical Practice, said Lisa A. Robin FSMB’s chief advocacy officer.

“The FSMB, along with the Council of State Governments (CSG), agrees with and supports the Minnesota board’s position in this matter,” Ms. Robin said in an emailed statement. “The compact’s statutory language does not alter state-based responsibility for the administration of criminal background checks, nor does it seek to extend this responsibility beyond individual state medical boards.”

At press time, the FBI’s Mr. Chaney had not responded to a message seeking comment.

[email protected]

On Twitter @legal_med

The FBI is raising concerns that language in the Interstate Medical Licensure Compact violates federal regulations over criminal background checks. The government pushback could mean implementation delays of telemedicine legislation that 17 states have enacted.

In a letter to the Minnesota Bureau of Criminal Apprehension, an FBI attorney wrote that the state’s compact law does not meet federal rules that allow the sharing of information with states for purposes of criminal background checks. In addition, no federal statutory authority exists for the FBI to share criminal files with a “private” entity such as the interstate commission, wrote Christopher B. Chaney, an attorney in the FBI Office of the General Counsel in Clarksburg, W.Va. The FBI sent a letter expressing the same concerns to the Montana Department of Justice regarding Montana’s compact law.

The Minnesota Board of Medical Practice has requested that the FBI reverse its findings, writing in an Aug. 3 letter that the agency does not appear to fully understand how the compact works. The board is scheduled to begin issuing licenses via the compact in January 2017, said Ruth Martinez, the board’s executive director.

“We believe it’s an erroneous conclusion that they’ve drawn,” Ms. Martinez said in an interview. “We are very actively engaged in rule-writing and in preparing technology and so forth to be ready to issue licenses, and we feel very confident that this determination will be overturned.”

The Montana Board of Medical Examiners meanwhile is aware of the FBI’s letter and is closely monitoring the situation in Minnesota before taking action, said Ian Marquand, executive officer for the Montana Board of Medical Examiners.

“We are still digesting this and are anxious to see what happens with the Minnesota situation,” Mr. Marquand said in an interview. “That may provide the road map.”

The Interstate Medical Licensure Compact is aimed at making it easier for telemedicine physicians to gain licenses in multiple states. Under the model legislation, developed by the Federation of State Medical Boards (FSMB), physicians designate a member state as the state of principal licensure and select the other states in which they wish to be licensed. The state of principal licensure then verifies the physician’s eligibility and provides credential information to the interstate commission, which collects applicable fees and transmits the doctor’s information to the other states. Upon receipt in the additional states, the physician would be granted a license.

In July 2015, the U.S. Health Resources and Services Administration awarded the FSMB a grant to support establishment of the commission and aid with the compact’s infrastructure.

There is nothing unique about Minnesota’s compact law, Ms. Martinez said. The statute is based on the same model legislation that passed in 16 other states. She believes that Minnesota’s law is merely one of the first to be reviewed by the FBI. Both Minnesota and Montana officials had requested that their respective state departments of justice determine if the compact laws met public law standards pertaining to criminal history records.

Ms. Martinez said that she hopes that the board’s letter to the FBI will help explain how the compact process works and prevent further federal rejections in other jurisdictions. She notes for example that the FBI incorrectly characterizes the interstate commission as a “private” entity in its letter, when the commission is a corporate body and a joint agency of the member states. The FBI also misunderstands how the commission interacts with the individual state licensing boards and the process of licensure, according to the board’s reply letter. It is not the commission that will be using FBI data, but the member states that will be utilizing the information in the course of verification, writes Rick Masters, special counsel to the National Center for Interstate Compacts.

The Federation of State Medical Boards is closely watching the matter and supports the Minnesota Board of Medical Practice, said Lisa A. Robin FSMB’s chief advocacy officer.

“The FSMB, along with the Council of State Governments (CSG), agrees with and supports the Minnesota board’s position in this matter,” Ms. Robin said in an emailed statement. “The compact’s statutory language does not alter state-based responsibility for the administration of criminal background checks, nor does it seek to extend this responsibility beyond individual state medical boards.”

At press time, the FBI’s Mr. Chaney had not responded to a message seeking comment.

[email protected]

On Twitter @legal_med

The majority of physician practices are uncertain about joining or starting an accountable care organization (ACO), according to a survey.

Of nearly 400 hospital-owned and freestanding outpatient practices, 65% were unsure how to approach accountable care, a survey by Healthcare Information and Management Systems Society (HIMSS) Analytics found. About 13% of health providers said they expected to join an established ACO, while 14% planned to form an ACO, and 8% planned to create an ACO with a neighboring provider.

HIMSS Analytics director of research Brendan FitzGeraldand his team surveyed 436 health providers during June 23–July 12, 2016, regarding electronic health record (EHR) adoption, accountable care, and health information exchanges, among other subjects. The respondents included physicians, practice managers/administrators, physician assistants, nurse practitioners, and practice IT directors. Investigators also analyzed the HIMSS Analytics LOGIC database, which includes 47,084 hospital-owned practices and 57,909 freestanding practices.

Respondents also reported a high level of uncertainty around plans to join a health information exchange (HIE): 48% of health providers were unsure about whether to join an HIE, compared with 46% who were uncertain in 2015. Of respondents who plan to join an HIE, 10% plan to enter a hospital or health system HIE, 7% plan to enter a regional HIE, and 17% plan to join a state health information exchange.

As far as EHR adoption, nearly 78% of respondents representing a free standing outpatient facility (228 practices) reported having an EHR, a 30% increase since 2010. Data from the LOGIC database found 92% of hospital-owned outpatient facilities had a live and operational EHR. Of all survey respondents, 66% did not have plans to replace or upgrade their current outpatient solution, or purchase a new solution. Of health providers that planned to purchase a new EHR, 18% said they would be upgrading, 9% would be purchasing a new solution, and 7% would be replacing a their current EHR.

The survey shows that most doctors appear to be content with the EHR solutions they have adopted with no plans to change systems, said Mr. FitzGerald.

“The level of universal adoption is great, and it seems that physicians for the most part, are satisfied with the work they’ve done to implement and utilize these solutions the first time around,” he said in an interview. “While there may be some getting used to the process of using these particular solutions or even some functionality shortcomings, it seems likes physicians are moving forward with the solutions they have on hand.”

[email protected]

On Twitter @legal_med

The majority of physician practices are uncertain about joining or starting an accountable care organization (ACO), according to a survey.

Of nearly 400 hospital-owned and freestanding outpatient practices, 65% were unsure how to approach accountable care, a survey by Healthcare Information and Management Systems Society (HIMSS) Analytics found. About 13% of health providers said they expected to join an established ACO, while 14% planned to form an ACO, and 8% planned to create an ACO with a neighboring provider.

HIMSS Analytics director of research Brendan FitzGeraldand his team surveyed 436 health providers during June 23–July 12, 2016, regarding electronic health record (EHR) adoption, accountable care, and health information exchanges, among other subjects. The respondents included physicians, practice managers/administrators, physician assistants, nurse practitioners, and practice IT directors. Investigators also analyzed the HIMSS Analytics LOGIC database, which includes 47,084 hospital-owned practices and 57,909 freestanding practices.

Respondents also reported a high level of uncertainty around plans to join a health information exchange (HIE): 48% of health providers were unsure about whether to join an HIE, compared with 46% who were uncertain in 2015. Of respondents who plan to join an HIE, 10% plan to enter a hospital or health system HIE, 7% plan to enter a regional HIE, and 17% plan to join a state health information exchange.

As far as EHR adoption, nearly 78% of respondents representing a free standing outpatient facility (228 practices) reported having an EHR, a 30% increase since 2010. Data from the LOGIC database found 92% of hospital-owned outpatient facilities had a live and operational EHR. Of all survey respondents, 66% did not have plans to replace or upgrade their current outpatient solution, or purchase a new solution. Of health providers that planned to purchase a new EHR, 18% said they would be upgrading, 9% would be purchasing a new solution, and 7% would be replacing a their current EHR.

The survey shows that most doctors appear to be content with the EHR solutions they have adopted with no plans to change systems, said Mr. FitzGerald.

“The level of universal adoption is great, and it seems that physicians for the most part, are satisfied with the work they’ve done to implement and utilize these solutions the first time around,” he said in an interview. “While there may be some getting used to the process of using these particular solutions or even some functionality shortcomings, it seems likes physicians are moving forward with the solutions they have on hand.”

[email protected]

On Twitter @legal_med

The majority of physician practices are uncertain about joining or starting an accountable care organization (ACO), according to a survey.

Of nearly 400 hospital-owned and freestanding outpatient practices, 65% were unsure how to approach accountable care, a survey by Healthcare Information and Management Systems Society (HIMSS) Analytics found. About 13% of health providers said they expected to join an established ACO, while 14% planned to form an ACO, and 8% planned to create an ACO with a neighboring provider.

HIMSS Analytics director of research Brendan FitzGeraldand his team surveyed 436 health providers during June 23–July 12, 2016, regarding electronic health record (EHR) adoption, accountable care, and health information exchanges, among other subjects. The respondents included physicians, practice managers/administrators, physician assistants, nurse practitioners, and practice IT directors. Investigators also analyzed the HIMSS Analytics LOGIC database, which includes 47,084 hospital-owned practices and 57,909 freestanding practices.

Respondents also reported a high level of uncertainty around plans to join a health information exchange (HIE): 48% of health providers were unsure about whether to join an HIE, compared with 46% who were uncertain in 2015. Of respondents who plan to join an HIE, 10% plan to enter a hospital or health system HIE, 7% plan to enter a regional HIE, and 17% plan to join a state health information exchange.

As far as EHR adoption, nearly 78% of respondents representing a free standing outpatient facility (228 practices) reported having an EHR, a 30% increase since 2010. Data from the LOGIC database found 92% of hospital-owned outpatient facilities had a live and operational EHR. Of all survey respondents, 66% did not have plans to replace or upgrade their current outpatient solution, or purchase a new solution. Of health providers that planned to purchase a new EHR, 18% said they would be upgrading, 9% would be purchasing a new solution, and 7% would be replacing a their current EHR.

The survey shows that most doctors appear to be content with the EHR solutions they have adopted with no plans to change systems, said Mr. FitzGerald.

“The level of universal adoption is great, and it seems that physicians for the most part, are satisfied with the work they’ve done to implement and utilize these solutions the first time around,” he said in an interview. “While there may be some getting used to the process of using these particular solutions or even some functionality shortcomings, it seems likes physicians are moving forward with the solutions they have on hand.”

[email protected]

On Twitter @legal_med

MINNEAPOLIS – The use of telecardiology can vastly improve outcomes, reduce hospitalizations, and lower health care costs, explained Michael Shen, MD, a cardiologist and chief medical officer at Duxlink Health in Sunrise, Fla.

Dr. Shen recently spoke at the American Telemedicine Association annual meeting about the impact of telecardiology on the practice of cardiology.

“This is at the very beginning of the technology, and it will be very good for cardiologists to be early adopters – to be the early users – so they can engage the technology as leaders, rather than followers,” explained Dr. Shen.

In a video interview at the meeting, he discussed how telecardiology has advanced over the years and how the technology can improve chronic care management. Dr. Shen also shared details about a telecardiology program implemented in his practice, and he discussed how the program has affected patient care and hospital readmissions.

Dr. Shen had no disclosures.

[email protected]

On Twitter @legal_med

MINNEAPOLIS – The use of telecardiology can vastly improve outcomes, reduce hospitalizations, and lower health care costs, explained Michael Shen, MD, a cardiologist and chief medical officer at Duxlink Health in Sunrise, Fla.

Dr. Shen recently spoke at the American Telemedicine Association annual meeting about the impact of telecardiology on the practice of cardiology.

“This is at the very beginning of the technology, and it will be very good for cardiologists to be early adopters – to be the early users – so they can engage the technology as leaders, rather than followers,” explained Dr. Shen.

In a video interview at the meeting, he discussed how telecardiology has advanced over the years and how the technology can improve chronic care management. Dr. Shen also shared details about a telecardiology program implemented in his practice, and he discussed how the program has affected patient care and hospital readmissions.

Dr. Shen had no disclosures.

[email protected]

On Twitter @legal_med

MINNEAPOLIS – The use of telecardiology can vastly improve outcomes, reduce hospitalizations, and lower health care costs, explained Michael Shen, MD, a cardiologist and chief medical officer at Duxlink Health in Sunrise, Fla.

Dr. Shen recently spoke at the American Telemedicine Association annual meeting about the impact of telecardiology on the practice of cardiology.

“This is at the very beginning of the technology, and it will be very good for cardiologists to be early adopters – to be the early users – so they can engage the technology as leaders, rather than followers,” explained Dr. Shen.

In a video interview at the meeting, he discussed how telecardiology has advanced over the years and how the technology can improve chronic care management. Dr. Shen also shared details about a telecardiology program implemented in his practice, and he discussed how the program has affected patient care and hospital readmissions.

Dr. Shen had no disclosures.

[email protected]

On Twitter @legal_med

Like most physicians, Dr. Susan Hardwick-Smith was used to receiving the occasional negative online review about her practice. But a biting post from several years ago was so wrenching that it nearly drove the Houston ob.gyn. out of medicine for good.

The patient blasted Dr. Hardwick-Smith on a popular review site about her care during a delivery and accused the doctor of attempting to force an unnecessary C-section. The account was inaccurate, but privacy laws prevented Dr. Hardwick-Smith from defending herself online or sharing details of the actual encounter, she said.

“She wrote this very detailed account of what a terrible doctor I was, and in my version of reality, I had saved her baby’s life,” said Dr. Hardwick-Smith. “I felt extremely powerless. I lost a lot of sleep over it, and I was considering giving up delivering babies. It was a real turning point for me.”

Rather than hanging up her white coat, Dr. Hardwick-Smith began working with an online reputation company – eMerit – that works to dilute negative reviews by soliciting a greater number of reviews from patients. The offensive post is now buried under hundreds of other reviews that are primarily positive, she said.

Hiring a reputation management company is one strategy for coping with negative online reviews. But cyberlaw experts stress that removing negative posts altogether is no easy feat. The best move to take often depends on the post, the patient, and the circumstance.

By now, it’s no secret that negative online reviews can significantly impact a medical practice, from influencing patient recruitment to affecting practice revenue to ruining a reputation. A 2015 survey of 2,354 consumers by search marketing firm BrightLocal found that 92% of consumers read online reviews – up from 67% in 2010 – and 40% of consumers had formed an opinion by reading just one to three reviews. Of 2,137 patients who viewed online reviews, 35% selected a physician based on positive reviews, while 37% avoided doctors with negative reviews, according to a 2014 study in JAMA (doi:10.1001/jama.2013.283194).

Reviews have become a strong force in the health care industry, said Peter Yelkovac, an online defamation attorney in Northern Indiana.

“Online reviews have really replaced the common ‘word of mouth’ that used to be the primary source for doctors referrals,” Mr. Yelkovac said in an interview. “Now, [patients] go online. Anyone can type anything they want, whether it’s truthful, untruthful, positive, indifferent, or negative.”

Doctor vs. website

In some cases, contacting a website administrator and requesting a review be removed can end the dilemma, said Michael J. Sacopulos, a medical malpractice defense attorney based in Terre Haute, Ind.

Rating sites generally have “terms of use,” and posts that violate the terms usually will be taken down by site administrators with some nudging, Mr. Sacopulos said in an interview. Other sites have “strike policies,” where a reviewee can request that one or two negative reviews be removed.

Still other sites are not as accommodating. Amazon, for instance, has immunity against content posted on the site, Mr. Sacopulos said. Under the Communications Decency Act, interactive computer services, such as a consumer review website, cannot be liable for content independently created or developed by third-party users. Such sites are hardly motivated to remove negative comments when racy posts can drive traffic to the site, he said.

Eric M. Joseph, MD, a facial plastic surgeon in West Orange, N.J., learned this lesson firsthand when he attempted to have a video removed from YouTube. A poster had uploaded copyright-protected before and after photos from Dr. Joseph’s practice onto YouTube and made disparaging comments about the patients in a video that went viral. Dr. Joseph and the patient both flagged the video for removal, but to no avail.

“It was impossible to [talk to] a human being at Google,” Dr, Joseph said. “It almost didn’t come down, and we were in conversations about suing Google. It took months and a cyberattorney who specializes in copyright infringement.”

The video finally was removed, but not before Dr. Joseph spent $6,000 in legal fees and experienced significant distress from the incident. Although most reviews about his practice are positive, he said, it’s difficult not to be affected by negative posts.

“From a psychological standpoint, it stings,” he said. “The burn of a negative review outweighs the sweetness of a positive review 100 times.”

Reputation companies to the rescue?

Like Dr. Hardwick-Smith, Dr. Joseph has utilized the online reputation management company eMerit to improve his online presence. The company gathers reviews from patients at the point of service and posts them to dominate review sites.

The solution to pollution is dilution, which means counterbalancing negative reviews with more representative reviews,” said Jeffrey Segal, MD, a neurosurgeon and attorney, and the founder of eMerit. “The next step is to deescalate conflict if you know who the patient is – to see if the patient problem can be resolved. Typically a patient is pleasantly surprised that you took the effort to call. Because the bar is so low, it’s very easy to exceed it.”

Physicians subscribe to eMerit on a month-to-month basis, paying $100-$600 a month, depending on the practice’s needs, Dr. Segal said. He touted a greater than 90% renewal rate, and said eMerit has captured and uploaded more than 150,000 patient reviews since its inception.

For the online reputation management company Reputation.com, health care providers have become one of the its most frequent clients, said Michael Fertik, company founder. Reputation.com solicits reviews from patients after appointments and ensures their visibility on top review sites. The platform also integrates reviews from general and health care review sites to help providers address patient feedback and receive alerts when negative reviews are posted. Rates start at $50 a month.

Mr. Fertik noted that more reviews not only overtake negative posts, but they make physicians easier to find by patients.

“If you have more than 10-15 reviews, you have a higher chance of getting a new patient because the search engine is going to favor doctors that have more reviews,” he said. “Doctors that have a small number of reviews don’t exist as far as search engines are concerned.”

However, all online reputation management firms are not equal, Mr. Sacopulos warned. Some are unfamiliar with the health care space, while others are unclear on health care privacy regulations. Mr. Sacopulos learned of a company that was sending patients texts to request reviews, which was likely a privacy violation and a violation of the Telecommunications Act, he said.

““Some [companies] are much more credible, and they understand health care law more than others,” he said. “Some have the technological capabilities to do things, but don’t understand the legal environment, so you need to be very careful [about whom] you pick.”

Time to sue?

Litigation is generally the last resort to fighting unfavorable online reviews. If a doctor believes a review is unfair or defamatory, and all other efforts have been exhausted, a lawyer may be able to help, Mr. Yelkovac said.

“When someone says, ‘I want to sue,’ that’s a possibility, but that’s typically far down the road,” he said. “Lawsuits are expensive. Lawsuits have an unknown outcome, and I would say, many times when you do sue for defamation, [the poster] may or may not have a lot of money, so you may end up spending a lot of money and you don’t recover anything from the patient.”

The majority of the lawsuits Mr. Yelkovac handles related to online reviews seek to unmask the poster with the aid of subpoenas and at times computer forensics, he said. From there, doctors can decide which action to take, such as contacting the poster and asking to have the comment removed.

“Sometimes it’s a surprise,” he said. “Sometimes it’s an ex-employee. Sometimes it’s a family member, or it could potentially be a competitor. Many times it’s not even a patient, and sometimes it’s a patient [who] the doctor never thought would post a review.”

Reviews and malpractice risk

Remember that not all unfavorable reviews are necessarily negative for physicians, said Brant Avondet, founder of Searchlight Enterprises, a malpractice risk prediction and online physician ratings research company.

A pattern of reviews that express the same concerns or frustrations by patients can be used to address and change internal policies and problems, such as multiple complaints about long wait times or a crowded parking lot, he said. Perhaps the front desk staff is repeatedly unfriendly to patients. Taking steps to correct these concerns could help in the long run, Mr. Avondet said.

Searchlight Enterprises recently presented study findings about a suggested link between online ratings and legal risk for physicians at a national medical insurance conference. Mr. Avondet and his colleagues evaluated claims data for 4,000 Florida physicians from the Florida Healthcare Practitioner Data Portal from 2000 to 2016 and studied online physician reviews from top rating sites. Doctors were grouped into three categories: surgical, ob.gyn., and “other” specialties. Findings showed the bottom 10% of surgeons studied (those with the worst online reviews) had 150% as many claims as the average for all surgeons. Surgeons in the top 20% (doctors with the best online reviews) had roughly half of the risk of a claim, compared with the average surgeon. Similar results were found for ob.gyns. and other specialties.

“Low and behold, there’s a huge correlation,” Mr. Avondet said. “There’s no shadow of a doubt that there’s something there that predicts your malpractice risk based on how nice or mean you are in the eyes of the patient.”

Mr. Avondet said he encourages physicians to use online reviews to make improvements, thus lowering their liability.

“Look at these reviews as a lens into your practice and things you might need to correct,” he said. “Use it as [insight] for how you can improve your practice and decrease the risk of getting sued.”

[email protected]

On Twitter @legal_med

Like most physicians, Dr. Susan Hardwick-Smith was used to receiving the occasional negative online review about her practice. But a biting post from several years ago was so wrenching that it nearly drove the Houston ob.gyn. out of medicine for good.

The patient blasted Dr. Hardwick-Smith on a popular review site about her care during a delivery and accused the doctor of attempting to force an unnecessary C-section. The account was inaccurate, but privacy laws prevented Dr. Hardwick-Smith from defending herself online or sharing details of the actual encounter, she said.

“She wrote this very detailed account of what a terrible doctor I was, and in my version of reality, I had saved her baby’s life,” said Dr. Hardwick-Smith. “I felt extremely powerless. I lost a lot of sleep over it, and I was considering giving up delivering babies. It was a real turning point for me.”

Rather than hanging up her white coat, Dr. Hardwick-Smith began working with an online reputation company – eMerit – that works to dilute negative reviews by soliciting a greater number of reviews from patients. The offensive post is now buried under hundreds of other reviews that are primarily positive, she said.

Hiring a reputation management company is one strategy for coping with negative online reviews. But cyberlaw experts stress that removing negative posts altogether is no easy feat. The best move to take often depends on the post, the patient, and the circumstance.

By now, it’s no secret that negative online reviews can significantly impact a medical practice, from influencing patient recruitment to affecting practice revenue to ruining a reputation. A 2015 survey of 2,354 consumers by search marketing firm BrightLocal found that 92% of consumers read online reviews – up from 67% in 2010 – and 40% of consumers had formed an opinion by reading just one to three reviews. Of 2,137 patients who viewed online reviews, 35% selected a physician based on positive reviews, while 37% avoided doctors with negative reviews, according to a 2014 study in JAMA (doi:10.1001/jama.2013.283194).

Reviews have become a strong force in the health care industry, said Peter Yelkovac, an online defamation attorney in Northern Indiana.

“Online reviews have really replaced the common ‘word of mouth’ that used to be the primary source for doctors referrals,” Mr. Yelkovac said in an interview. “Now, [patients] go online. Anyone can type anything they want, whether it’s truthful, untruthful, positive, indifferent, or negative.”

Doctor vs. website

In some cases, contacting a website administrator and requesting a review be removed can end the dilemma, said Michael J. Sacopulos, a medical malpractice defense attorney based in Terre Haute, Ind.

Rating sites generally have “terms of use,” and posts that violate the terms usually will be taken down by site administrators with some nudging, Mr. Sacopulos said in an interview. Other sites have “strike policies,” where a reviewee can request that one or two negative reviews be removed.

Still other sites are not as accommodating. Amazon, for instance, has immunity against content posted on the site, Mr. Sacopulos said. Under the Communications Decency Act, interactive computer services, such as a consumer review website, cannot be liable for content independently created or developed by third-party users. Such sites are hardly motivated to remove negative comments when racy posts can drive traffic to the site, he said.

Eric M. Joseph, MD, a facial plastic surgeon in West Orange, N.J., learned this lesson firsthand when he attempted to have a video removed from YouTube. A poster had uploaded copyright-protected before and after photos from Dr. Joseph’s practice onto YouTube and made disparaging comments about the patients in a video that went viral. Dr. Joseph and the patient both flagged the video for removal, but to no avail.

“It was impossible to [talk to] a human being at Google,” Dr, Joseph said. “It almost didn’t come down, and we were in conversations about suing Google. It took months and a cyberattorney who specializes in copyright infringement.”

The video finally was removed, but not before Dr. Joseph spent $6,000 in legal fees and experienced significant distress from the incident. Although most reviews about his practice are positive, he said, it’s difficult not to be affected by negative posts.

“From a psychological standpoint, it stings,” he said. “The burn of a negative review outweighs the sweetness of a positive review 100 times.”

Reputation companies to the rescue?

Like Dr. Hardwick-Smith, Dr. Joseph has utilized the online reputation management company eMerit to improve his online presence. The company gathers reviews from patients at the point of service and posts them to dominate review sites.

The solution to pollution is dilution, which means counterbalancing negative reviews with more representative reviews,” said Jeffrey Segal, MD, a neurosurgeon and attorney, and the founder of eMerit. “The next step is to deescalate conflict if you know who the patient is – to see if the patient problem can be resolved. Typically a patient is pleasantly surprised that you took the effort to call. Because the bar is so low, it’s very easy to exceed it.”

Physicians subscribe to eMerit on a month-to-month basis, paying $100-$600 a month, depending on the practice’s needs, Dr. Segal said. He touted a greater than 90% renewal rate, and said eMerit has captured and uploaded more than 150,000 patient reviews since its inception.

For the online reputation management company Reputation.com, health care providers have become one of the its most frequent clients, said Michael Fertik, company founder. Reputation.com solicits reviews from patients after appointments and ensures their visibility on top review sites. The platform also integrates reviews from general and health care review sites to help providers address patient feedback and receive alerts when negative reviews are posted. Rates start at $50 a month.

Mr. Fertik noted that more reviews not only overtake negative posts, but they make physicians easier to find by patients.

“If you have more than 10-15 reviews, you have a higher chance of getting a new patient because the search engine is going to favor doctors that have more reviews,” he said. “Doctors that have a small number of reviews don’t exist as far as search engines are concerned.”

However, all online reputation management firms are not equal, Mr. Sacopulos warned. Some are unfamiliar with the health care space, while others are unclear on health care privacy regulations. Mr. Sacopulos learned of a company that was sending patients texts to request reviews, which was likely a privacy violation and a violation of the Telecommunications Act, he said.

““Some [companies] are much more credible, and they understand health care law more than others,” he said. “Some have the technological capabilities to do things, but don’t understand the legal environment, so you need to be very careful [about whom] you pick.”

Time to sue?

Litigation is generally the last resort to fighting unfavorable online reviews. If a doctor believes a review is unfair or defamatory, and all other efforts have been exhausted, a lawyer may be able to help, Mr. Yelkovac said.

“When someone says, ‘I want to sue,’ that’s a possibility, but that’s typically far down the road,” he said. “Lawsuits are expensive. Lawsuits have an unknown outcome, and I would say, many times when you do sue for defamation, [the poster] may or may not have a lot of money, so you may end up spending a lot of money and you don’t recover anything from the patient.”

The majority of the lawsuits Mr. Yelkovac handles related to online reviews seek to unmask the poster with the aid of subpoenas and at times computer forensics, he said. From there, doctors can decide which action to take, such as contacting the poster and asking to have the comment removed.

“Sometimes it’s a surprise,” he said. “Sometimes it’s an ex-employee. Sometimes it’s a family member, or it could potentially be a competitor. Many times it’s not even a patient, and sometimes it’s a patient [who] the doctor never thought would post a review.”

Reviews and malpractice risk

Remember that not all unfavorable reviews are necessarily negative for physicians, said Brant Avondet, founder of Searchlight Enterprises, a malpractice risk prediction and online physician ratings research company.

A pattern of reviews that express the same concerns or frustrations by patients can be used to address and change internal policies and problems, such as multiple complaints about long wait times or a crowded parking lot, he said. Perhaps the front desk staff is repeatedly unfriendly to patients. Taking steps to correct these concerns could help in the long run, Mr. Avondet said.

Searchlight Enterprises recently presented study findings about a suggested link between online ratings and legal risk for physicians at a national medical insurance conference. Mr. Avondet and his colleagues evaluated claims data for 4,000 Florida physicians from the Florida Healthcare Practitioner Data Portal from 2000 to 2016 and studied online physician reviews from top rating sites. Doctors were grouped into three categories: surgical, ob.gyn., and “other” specialties. Findings showed the bottom 10% of surgeons studied (those with the worst online reviews) had 150% as many claims as the average for all surgeons. Surgeons in the top 20% (doctors with the best online reviews) had roughly half of the risk of a claim, compared with the average surgeon. Similar results were found for ob.gyns. and other specialties.

“Low and behold, there’s a huge correlation,” Mr. Avondet said. “There’s no shadow of a doubt that there’s something there that predicts your malpractice risk based on how nice or mean you are in the eyes of the patient.”

Mr. Avondet said he encourages physicians to use online reviews to make improvements, thus lowering their liability.

“Look at these reviews as a lens into your practice and things you might need to correct,” he said. “Use it as [insight] for how you can improve your practice and decrease the risk of getting sued.”

[email protected]

On Twitter @legal_med

Like most physicians, Dr. Susan Hardwick-Smith was used to receiving the occasional negative online review about her practice. But a biting post from several years ago was so wrenching that it nearly drove the Houston ob.gyn. out of medicine for good.

The patient blasted Dr. Hardwick-Smith on a popular review site about her care during a delivery and accused the doctor of attempting to force an unnecessary C-section. The account was inaccurate, but privacy laws prevented Dr. Hardwick-Smith from defending herself online or sharing details of the actual encounter, she said.

“She wrote this very detailed account of what a terrible doctor I was, and in my version of reality, I had saved her baby’s life,” said Dr. Hardwick-Smith. “I felt extremely powerless. I lost a lot of sleep over it, and I was considering giving up delivering babies. It was a real turning point for me.”

Rather than hanging up her white coat, Dr. Hardwick-Smith began working with an online reputation company – eMerit – that works to dilute negative reviews by soliciting a greater number of reviews from patients. The offensive post is now buried under hundreds of other reviews that are primarily positive, she said.

Hiring a reputation management company is one strategy for coping with negative online reviews. But cyberlaw experts stress that removing negative posts altogether is no easy feat. The best move to take often depends on the post, the patient, and the circumstance.

By now, it’s no secret that negative online reviews can significantly impact a medical practice, from influencing patient recruitment to affecting practice revenue to ruining a reputation. A 2015 survey of 2,354 consumers by search marketing firm BrightLocal found that 92% of consumers read online reviews – up from 67% in 2010 – and 40% of consumers had formed an opinion by reading just one to three reviews. Of 2,137 patients who viewed online reviews, 35% selected a physician based on positive reviews, while 37% avoided doctors with negative reviews, according to a 2014 study in JAMA (doi:10.1001/jama.2013.283194).

Reviews have become a strong force in the health care industry, said Peter Yelkovac, an online defamation attorney in Northern Indiana.

“Online reviews have really replaced the common ‘word of mouth’ that used to be the primary source for doctors referrals,” Mr. Yelkovac said in an interview. “Now, [patients] go online. Anyone can type anything they want, whether it’s truthful, untruthful, positive, indifferent, or negative.”

Doctor vs. website

In some cases, contacting a website administrator and requesting a review be removed can end the dilemma, said Michael J. Sacopulos, a medical malpractice defense attorney based in Terre Haute, Ind.

Rating sites generally have “terms of use,” and posts that violate the terms usually will be taken down by site administrators with some nudging, Mr. Sacopulos said in an interview. Other sites have “strike policies,” where a reviewee can request that one or two negative reviews be removed.

Still other sites are not as accommodating. Amazon, for instance, has immunity against content posted on the site, Mr. Sacopulos said. Under the Communications Decency Act, interactive computer services, such as a consumer review website, cannot be liable for content independently created or developed by third-party users. Such sites are hardly motivated to remove negative comments when racy posts can drive traffic to the site, he said.

Eric M. Joseph, MD, a facial plastic surgeon in West Orange, N.J., learned this lesson firsthand when he attempted to have a video removed from YouTube. A poster had uploaded copyright-protected before and after photos from Dr. Joseph’s practice onto YouTube and made disparaging comments about the patients in a video that went viral. Dr. Joseph and the patient both flagged the video for removal, but to no avail.

“It was impossible to [talk to] a human being at Google,” Dr, Joseph said. “It almost didn’t come down, and we were in conversations about suing Google. It took months and a cyberattorney who specializes in copyright infringement.”

The video finally was removed, but not before Dr. Joseph spent $6,000 in legal fees and experienced significant distress from the incident. Although most reviews about his practice are positive, he said, it’s difficult not to be affected by negative posts.

“From a psychological standpoint, it stings,” he said. “The burn of a negative review outweighs the sweetness of a positive review 100 times.”

Reputation companies to the rescue?

Like Dr. Hardwick-Smith, Dr. Joseph has utilized the online reputation management company eMerit to improve his online presence. The company gathers reviews from patients at the point of service and posts them to dominate review sites.

The solution to pollution is dilution, which means counterbalancing negative reviews with more representative reviews,” said Jeffrey Segal, MD, a neurosurgeon and attorney, and the founder of eMerit. “The next step is to deescalate conflict if you know who the patient is – to see if the patient problem can be resolved. Typically a patient is pleasantly surprised that you took the effort to call. Because the bar is so low, it’s very easy to exceed it.”

Physicians subscribe to eMerit on a month-to-month basis, paying $100-$600 a month, depending on the practice’s needs, Dr. Segal said. He touted a greater than 90% renewal rate, and said eMerit has captured and uploaded more than 150,000 patient reviews since its inception.

For the online reputation management company Reputation.com, health care providers have become one of the its most frequent clients, said Michael Fertik, company founder. Reputation.com solicits reviews from patients after appointments and ensures their visibility on top review sites. The platform also integrates reviews from general and health care review sites to help providers address patient feedback and receive alerts when negative reviews are posted. Rates start at $50 a month.

Mr. Fertik noted that more reviews not only overtake negative posts, but they make physicians easier to find by patients.

“If you have more than 10-15 reviews, you have a higher chance of getting a new patient because the search engine is going to favor doctors that have more reviews,” he said. “Doctors that have a small number of reviews don’t exist as far as search engines are concerned.”

However, all online reputation management firms are not equal, Mr. Sacopulos warned. Some are unfamiliar with the health care space, while others are unclear on health care privacy regulations. Mr. Sacopulos learned of a company that was sending patients texts to request reviews, which was likely a privacy violation and a violation of the Telecommunications Act, he said.

““Some [companies] are much more credible, and they understand health care law more than others,” he said. “Some have the technological capabilities to do things, but don’t understand the legal environment, so you need to be very careful [about whom] you pick.”

Time to sue?

Litigation is generally the last resort to fighting unfavorable online reviews. If a doctor believes a review is unfair or defamatory, and all other efforts have been exhausted, a lawyer may be able to help, Mr. Yelkovac said.

“When someone says, ‘I want to sue,’ that’s a possibility, but that’s typically far down the road,” he said. “Lawsuits are expensive. Lawsuits have an unknown outcome, and I would say, many times when you do sue for defamation, [the poster] may or may not have a lot of money, so you may end up spending a lot of money and you don’t recover anything from the patient.”

The majority of the lawsuits Mr. Yelkovac handles related to online reviews seek to unmask the poster with the aid of subpoenas and at times computer forensics, he said. From there, doctors can decide which action to take, such as contacting the poster and asking to have the comment removed.

“Sometimes it’s a surprise,” he said. “Sometimes it’s an ex-employee. Sometimes it’s a family member, or it could potentially be a competitor. Many times it’s not even a patient, and sometimes it’s a patient [who] the doctor never thought would post a review.”

Reviews and malpractice risk

Remember that not all unfavorable reviews are necessarily negative for physicians, said Brant Avondet, founder of Searchlight Enterprises, a malpractice risk prediction and online physician ratings research company.

A pattern of reviews that express the same concerns or frustrations by patients can be used to address and change internal policies and problems, such as multiple complaints about long wait times or a crowded parking lot, he said. Perhaps the front desk staff is repeatedly unfriendly to patients. Taking steps to correct these concerns could help in the long run, Mr. Avondet said.

Searchlight Enterprises recently presented study findings about a suggested link between online ratings and legal risk for physicians at a national medical insurance conference. Mr. Avondet and his colleagues evaluated claims data for 4,000 Florida physicians from the Florida Healthcare Practitioner Data Portal from 2000 to 2016 and studied online physician reviews from top rating sites. Doctors were grouped into three categories: surgical, ob.gyn., and “other” specialties. Findings showed the bottom 10% of surgeons studied (those with the worst online reviews) had 150% as many claims as the average for all surgeons. Surgeons in the top 20% (doctors with the best online reviews) had roughly half of the risk of a claim, compared with the average surgeon. Similar results were found for ob.gyns. and other specialties.

“Low and behold, there’s a huge correlation,” Mr. Avondet said. “There’s no shadow of a doubt that there’s something there that predicts your malpractice risk based on how nice or mean you are in the eyes of the patient.”

Mr. Avondet said he encourages physicians to use online reviews to make improvements, thus lowering their liability.

“Look at these reviews as a lens into your practice and things you might need to correct,” he said. “Use it as [insight] for how you can improve your practice and decrease the risk of getting sued.”

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On Twitter @legal_med

The U.S. Department of Justice (DOJ) is suing to block two mega-mergers between four of the largest health insurers in the nation, claiming the alignments will harm competition and reduce patient choice.

The DOJ and a number of state attorneys general filed legal challenges July 21 in the U.S. District Court for the District of Columbia seeking to ban Anthem’s proposed acquisition of Cigna and Aetna’s proposed acquisition of Humana. The lawsuits allege the two mergers – valued at $54 billion and $37 billion respectively – would negatively affect doctors, patients, and employers, by limiting price competition, reducing benefits, decreasing incentives to provide innovative wellness programs, and lowering quality of care.

Courtesy U.S. Department of Justice

“These mergers would restrict competition for health insurance products sold in markets across the country and would give tremendous power over the nation’s health insurance industry to just three large companies,” U.S. Attorney General Loretta E. Lynch said in a statement. “Our actions seek to preserve competition that keeps premiums down and drives insurers to collaborate with doctors and hospitals to provide better health care for all Americans.”

Anthem called the lawsuit “an unfortunate and misguided step backward for access to affordable health care.

“The DOJ’s action is based on a flawed analysis and misunderstanding of the dynamic, competitive, and highly regulated health care landscape and is inconsistent with the way that the DOJ has reviewed past health care transactions,” Anthem officials said in a statement. “Anthem has an unwavering commitment to enhancing access to affordable health care, and the benefits and efficiencies from its merger with Cigna is one way that Anthem will continue its mission of improving consumer choice, quality, and affordability.”

In a statement, Cigna officials said that company is evaluating its options given the nature of the concerns raised by the DOJ. Aetna and Humana meanwhile, vowed to vigorously defend their pending merger.

“A combined company will result in a broader choice of products, access to higher quality, and more affordable care, and a better overall experience for consumers,” according to a joint statement. “Aetna and Humana look forward to making this clear in court, where a judge will review the transaction based on its merits.”

Anthem’s proposed acquisition of Cigna would be the largest merger in the history of the health insurance industry, according to the DOJ. The companies began talks of a possible merger in early 2014 and Anthem agreed to acquire Cigna for $54 billion in 2015, according to court documents.

Meanwhile, Aetna began inquiring about a deal with Humana in March 2015, entering into a definitive agreement to acquire Humana for $37 billion later that year. The two proposed mergers have been closely watched by the DOJ and other regulatory agencies from the start.

The DOJ’s suit against Anthem and Cigna alleges the merger would substantially reduce competition for millions of patients who receive commercial health insurance coverage, from large-group employers in at least 35 metropolitan areas and from public exchanges created by the Affordable Care Act. The elimination of Cigna also threatens competition among commercial insurers for the purchase of health care services from hospitals, physicians, and other providers, the suit alleges. Eleven states and the District of Columbia joined the department’s challenge of the Cigna acquisition.

The government’s challenge against Aetna and Humana alleges the merger would greatly reduce Medicare Advantage competition in more than 350 counties in 21 states, affecting more than 1.5 million Medicare Advantage patients. The lawsuit also claims that Aetna’s purchase of Humana would substantially reduce competition to sell commercial health insurance to individuals and families on the public exchanges in 17 counties in Florida, Georgia, and Missouri. Eight states and the District of Columbia joined the department’s challenge of the Humana acquisition.

The American Medical Association voiced support for the lawsuit, condemning the proposed transactions as moves that will lessen competition and choice. In 2015, AMA issued special analyses showing that the combined impact of the proposed Anthem/Cigna and Aetna/Humana mergers and urged the federal government to block the transactions.

“The prospect of reducing five national health insurance carriers to just three is unacceptable,” AMA President Andrew W. Gurman, MD, said in a statement. “[The] action by the DOJ acknowledges the AMA’s concern that patients’ interests can be harmed when big insurers acquire rivals and develop strangleholds on local markets. Allowing commercial health insurers to become too big and exert control over the delivery of health care would be bad for patients and vitality of the nation’s health care system.”

[email protected]

On Twitter @legal_med

The U.S. Department of Justice (DOJ) is suing to block two mega-mergers between four of the largest health insurers in the nation, claiming the alignments will harm competition and reduce patient choice.

The DOJ and a number of state attorneys general filed legal challenges July 21 in the U.S. District Court for the District of Columbia seeking to ban Anthem’s proposed acquisition of Cigna and Aetna’s proposed acquisition of Humana. The lawsuits allege the two mergers – valued at $54 billion and $37 billion respectively – would negatively affect doctors, patients, and employers, by limiting price competition, reducing benefits, decreasing incentives to provide innovative wellness programs, and lowering quality of care.

Courtesy U.S. Department of Justice

“These mergers would restrict competition for health insurance products sold in markets across the country and would give tremendous power over the nation’s health insurance industry to just three large companies,” U.S. Attorney General Loretta E. Lynch said in a statement. “Our actions seek to preserve competition that keeps premiums down and drives insurers to collaborate with doctors and hospitals to provide better health care for all Americans.”

Anthem called the lawsuit “an unfortunate and misguided step backward for access to affordable health care.

“The DOJ’s action is based on a flawed analysis and misunderstanding of the dynamic, competitive, and highly regulated health care landscape and is inconsistent with the way that the DOJ has reviewed past health care transactions,” Anthem officials said in a statement. “Anthem has an unwavering commitment to enhancing access to affordable health care, and the benefits and efficiencies from its merger with Cigna is one way that Anthem will continue its mission of improving consumer choice, quality, and affordability.”

In a statement, Cigna officials said that company is evaluating its options given the nature of the concerns raised by the DOJ. Aetna and Humana meanwhile, vowed to vigorously defend their pending merger.

“A combined company will result in a broader choice of products, access to higher quality, and more affordable care, and a better overall experience for consumers,” according to a joint statement. “Aetna and Humana look forward to making this clear in court, where a judge will review the transaction based on its merits.”

Anthem’s proposed acquisition of Cigna would be the largest merger in the history of the health insurance industry, according to the DOJ. The companies began talks of a possible merger in early 2014 and Anthem agreed to acquire Cigna for $54 billion in 2015, according to court documents.

Meanwhile, Aetna began inquiring about a deal with Humana in March 2015, entering into a definitive agreement to acquire Humana for $37 billion later that year. The two proposed mergers have been closely watched by the DOJ and other regulatory agencies from the start.

The DOJ’s suit against Anthem and Cigna alleges the merger would substantially reduce competition for millions of patients who receive commercial health insurance coverage, from large-group employers in at least 35 metropolitan areas and from public exchanges created by the Affordable Care Act. The elimination of Cigna also threatens competition among commercial insurers for the purchase of health care services from hospitals, physicians, and other providers, the suit alleges. Eleven states and the District of Columbia joined the department’s challenge of the Cigna acquisition.

The government’s challenge against Aetna and Humana alleges the merger would greatly reduce Medicare Advantage competition in more than 350 counties in 21 states, affecting more than 1.5 million Medicare Advantage patients. The lawsuit also claims that Aetna’s purchase of Humana would substantially reduce competition to sell commercial health insurance to individuals and families on the public exchanges in 17 counties in Florida, Georgia, and Missouri. Eight states and the District of Columbia joined the department’s challenge of the Humana acquisition.

The American Medical Association voiced support for the lawsuit, condemning the proposed transactions as moves that will lessen competition and choice. In 2015, AMA issued special analyses showing that the combined impact of the proposed Anthem/Cigna and Aetna/Humana mergers and urged the federal government to block the transactions.

“The prospect of reducing five national health insurance carriers to just three is unacceptable,” AMA President Andrew W. Gurman, MD, said in a statement. “[The] action by the DOJ acknowledges the AMA’s concern that patients’ interests can be harmed when big insurers acquire rivals and develop strangleholds on local markets. Allowing commercial health insurers to become too big and exert control over the delivery of health care would be bad for patients and vitality of the nation’s health care system.”

[email protected]

On Twitter @legal_med

The U.S. Department of Justice (DOJ) is suing to block two mega-mergers between four of the largest health insurers in the nation, claiming the alignments will harm competition and reduce patient choice.

The DOJ and a number of state attorneys general filed legal challenges July 21 in the U.S. District Court for the District of Columbia seeking to ban Anthem’s proposed acquisition of Cigna and Aetna’s proposed acquisition of Humana. The lawsuits allege the two mergers – valued at $54 billion and $37 billion respectively – would negatively affect doctors, patients, and employers, by limiting price competition, reducing benefits, decreasing incentives to provide innovative wellness programs, and lowering quality of care.

Courtesy U.S. Department of Justice

“These mergers would restrict competition for health insurance products sold in markets across the country and would give tremendous power over the nation’s health insurance industry to just three large companies,” U.S. Attorney General Loretta E. Lynch said in a statement. “Our actions seek to preserve competition that keeps premiums down and drives insurers to collaborate with doctors and hospitals to provide better health care for all Americans.”

Anthem called the lawsuit “an unfortunate and misguided step backward for access to affordable health care.

“The DOJ’s action is based on a flawed analysis and misunderstanding of the dynamic, competitive, and highly regulated health care landscape and is inconsistent with the way that the DOJ has reviewed past health care transactions,” Anthem officials said in a statement. “Anthem has an unwavering commitment to enhancing access to affordable health care, and the benefits and efficiencies from its merger with Cigna is one way that Anthem will continue its mission of improving consumer choice, quality, and affordability.”

In a statement, Cigna officials said that company is evaluating its options given the nature of the concerns raised by the DOJ. Aetna and Humana meanwhile, vowed to vigorously defend their pending merger.

“A combined company will result in a broader choice of products, access to higher quality, and more affordable care, and a better overall experience for consumers,” according to a joint statement. “Aetna and Humana look forward to making this clear in court, where a judge will review the transaction based on its merits.”

Anthem’s proposed acquisition of Cigna would be the largest merger in the history of the health insurance industry, according to the DOJ. The companies began talks of a possible merger in early 2014 and Anthem agreed to acquire Cigna for $54 billion in 2015, according to court documents.

Meanwhile, Aetna began inquiring about a deal with Humana in March 2015, entering into a definitive agreement to acquire Humana for $37 billion later that year. The two proposed mergers have been closely watched by the DOJ and other regulatory agencies from the start.

The DOJ’s suit against Anthem and Cigna alleges the merger would substantially reduce competition for millions of patients who receive commercial health insurance coverage, from large-group employers in at least 35 metropolitan areas and from public exchanges created by the Affordable Care Act. The elimination of Cigna also threatens competition among commercial insurers for the purchase of health care services from hospitals, physicians, and other providers, the suit alleges. Eleven states and the District of Columbia joined the department’s challenge of the Cigna acquisition.

The government’s challenge against Aetna and Humana alleges the merger would greatly reduce Medicare Advantage competition in more than 350 counties in 21 states, affecting more than 1.5 million Medicare Advantage patients. The lawsuit also claims that Aetna’s purchase of Humana would substantially reduce competition to sell commercial health insurance to individuals and families on the public exchanges in 17 counties in Florida, Georgia, and Missouri. Eight states and the District of Columbia joined the department’s challenge of the Humana acquisition.

The American Medical Association voiced support for the lawsuit, condemning the proposed transactions as moves that will lessen competition and choice. In 2015, AMA issued special analyses showing that the combined impact of the proposed Anthem/Cigna and Aetna/Humana mergers and urged the federal government to block the transactions.

“The prospect of reducing five national health insurance carriers to just three is unacceptable,” AMA President Andrew W. Gurman, MD, said in a statement. “[The] action by the DOJ acknowledges the AMA’s concern that patients’ interests can be harmed when big insurers acquire rivals and develop strangleholds on local markets. Allowing commercial health insurers to become too big and exert control over the delivery of health care would be bad for patients and vitality of the nation’s health care system.”

[email protected]

On Twitter @legal_med

Penalties for health providers under the federal False Claims Act (FCA) are set to double under a proposed rule by the U.S. Department of Justice.

The interim final rule would increase minimum per-claim FCA fines from $5,500 to $10,781 and maximum per-claim penalties would rise from $11,000 to $21,563.

The adjusted civil penalty amounts would apply to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015. Violations on or before Nov. 2, 2015, and assessments made prior to Aug. 1, 2016, would continue to be subject to the lower penalties. The rise stems from the federal Civil Monetary Penalties Inflation Adjustment Act, which provides for the regular evaluation and adjustment for inflation of civil monetary penalties to ensure they maintain a deterrent effect, according to a summary of the rule.

The FCA penalizes any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or who knowingly makes a false record or statement to get a false claim paid by the government. In 2015, the DOJ recovered more than $3.5 billion in FCA settlements and judgments.

Health law experts say the higher penalties may encourage more whistleblowers to file FCA claims against doctors since the potential recoveries would be higher.

“The new maximums may make things still more enticing for relators with visions of increasingly large relators’ shares on the table,” said William W. Horton, a Birmingham, Ala.-based health law attorney and chair of the American Bar Association Health Law Section.

However, Mr. Horton does not believe the rates will have much practical effect in terms of strategy or settlement rates. Right now, the hypothetical penalties in such cases are so enormous they are almost not meaningful, he said in an interview.

“In reality, cases settle based on the amount of actual damages – overpayments, etc. – and not on the penalties, because the penalties are so high,” he said. “I don’t think making them higher is going to change that, because it doesn’t increase the amount of money available for defendants to settle with.”

The ultimate question is whether the higher penalties will help deter health fraud, adds Houston health law attorney Michael E. Clark.

“I don’t see it making a difference,” he said in an interview. “The FCA penalties are particularly ruinous in the health care field since so many claims get made and courts have accepted broad theories of liability.”

The DOJ is accepting comments on the interim final rule until Aug. 29.

[email protected]

On Twitter @legal_med

Penalties for health providers under the federal False Claims Act (FCA) are set to double under a proposed rule by the U.S. Department of Justice.

The interim final rule would increase minimum per-claim FCA fines from $5,500 to $10,781 and maximum per-claim penalties would rise from $11,000 to $21,563.

The adjusted civil penalty amounts would apply to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015. Violations on or before Nov. 2, 2015, and assessments made prior to Aug. 1, 2016, would continue to be subject to the lower penalties. The rise stems from the federal Civil Monetary Penalties Inflation Adjustment Act, which provides for the regular evaluation and adjustment for inflation of civil monetary penalties to ensure they maintain a deterrent effect, according to a summary of the rule.

The FCA penalizes any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or who knowingly makes a false record or statement to get a false claim paid by the government. In 2015, the DOJ recovered more than $3.5 billion in FCA settlements and judgments.

Health law experts say the higher penalties may encourage more whistleblowers to file FCA claims against doctors since the potential recoveries would be higher.

“The new maximums may make things still more enticing for relators with visions of increasingly large relators’ shares on the table,” said William W. Horton, a Birmingham, Ala.-based health law attorney and chair of the American Bar Association Health Law Section.

However, Mr. Horton does not believe the rates will have much practical effect in terms of strategy or settlement rates. Right now, the hypothetical penalties in such cases are so enormous they are almost not meaningful, he said in an interview.

“In reality, cases settle based on the amount of actual damages – overpayments, etc. – and not on the penalties, because the penalties are so high,” he said. “I don’t think making them higher is going to change that, because it doesn’t increase the amount of money available for defendants to settle with.”

The ultimate question is whether the higher penalties will help deter health fraud, adds Houston health law attorney Michael E. Clark.

“I don’t see it making a difference,” he said in an interview. “The FCA penalties are particularly ruinous in the health care field since so many claims get made and courts have accepted broad theories of liability.”

The DOJ is accepting comments on the interim final rule until Aug. 29.

[email protected]

On Twitter @legal_med

Penalties for health providers under the federal False Claims Act (FCA) are set to double under a proposed rule by the U.S. Department of Justice.

The interim final rule would increase minimum per-claim FCA fines from $5,500 to $10,781 and maximum per-claim penalties would rise from $11,000 to $21,563.

The adjusted civil penalty amounts would apply to civil penalties assessed after Aug. 1, 2016, whose associated violations occurred after Nov. 2, 2015. Violations on or before Nov. 2, 2015, and assessments made prior to Aug. 1, 2016, would continue to be subject to the lower penalties. The rise stems from the federal Civil Monetary Penalties Inflation Adjustment Act, which provides for the regular evaluation and adjustment for inflation of civil monetary penalties to ensure they maintain a deterrent effect, according to a summary of the rule.

The FCA penalizes any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or who knowingly makes a false record or statement to get a false claim paid by the government. In 2015, the DOJ recovered more than $3.5 billion in FCA settlements and judgments.

Health law experts say the higher penalties may encourage more whistleblowers to file FCA claims against doctors since the potential recoveries would be higher.

“The new maximums may make things still more enticing for relators with visions of increasingly large relators’ shares on the table,” said William W. Horton, a Birmingham, Ala.-based health law attorney and chair of the American Bar Association Health Law Section.

However, Mr. Horton does not believe the rates will have much practical effect in terms of strategy or settlement rates. Right now, the hypothetical penalties in such cases are so enormous they are almost not meaningful, he said in an interview.

“In reality, cases settle based on the amount of actual damages – overpayments, etc. – and not on the penalties, because the penalties are so high,” he said. “I don’t think making them higher is going to change that, because it doesn’t increase the amount of money available for defendants to settle with.”

The ultimate question is whether the higher penalties will help deter health fraud, adds Houston health law attorney Michael E. Clark.

“I don’t see it making a difference,” he said in an interview. “The FCA penalties are particularly ruinous in the health care field since so many claims get made and courts have accepted broad theories of liability.”

The DOJ is accepting comments on the interim final rule until Aug. 29.

[email protected]

On Twitter @legal_med

A U.S. Supreme Court ruling that expands liability under the federal False Claims Act (FCA) could have both positive and negative implications for physicians accused of submitting false claims to the government.

Justices ruled June 16 that health care providers can be held liable under the FCA if they bill for a service, but fail to comply with underlying regulations, even if the violation is not explicit in the claim. The decision upholds use of the “implied false certification theory” in FCA cases, which provides that any submission for government payment include an implicit certification of compliance with all applicable contract requirements, laws, and regulations.

The ruling allows a lawsuit by a patient’s family to continue against Universal Health Services, a national hospital management company. The plaintiff, Julio Escobar, claims that Universal presented false claims to Medicaid by seeking payments for services provided by unlicensed, unsupervised health care providers. Although the reimbursement claims submitted to the government accurately described the services provided and cited the correct charges, the plaintiffs alleged that because the clinic’s operations violated state requirements to participate in Medicaid, Universal had also violated the FCA. Universal argued the FCA suit was invalid because a reimbursement claim cannot be false unless its details are untrue or inaccurate.

The Supreme Court ruled in favor of the plaintiffs. By using National Provider Identification numbers that corresponded to specific job titles without disclosing many violations of staff and licensing requirements, Universal’s claims constituted misrepresentations, the justices said.

The opinion includes language that is both helpful and harmful to physicians, according to health law attorneys. On the one hand, the justices supported the implied certification theory, thus expanding the scope of potential liability under the FCA in certain circumstances, said George B. Breen, a Washington-based health law attorney.

“The court’s decision is significant for health care providers and suppliers that submit claims to federally funded health care programs, including Medicare and Medicaid, because the FCA remains one of the federal government’s primary enforcement tools,” Mr. Breen said in an interview. “In the court’s view, half-truths in a claim for reimbursement from a government program … [are] just as actionable as an outright lie if the failure to disclose noncompliance with a statute, regulation, or contract term makes those representations misleading half-truths.”

However, the Supreme Court rejected the government’s notion that every omission, regulatory violation, or contract breach can result in fines and damages under the FCA. The compliance violation must be material to the government’s payment decision, the justices said. This means an alleged regulatory or contractual violation must have mattered to the agency’s payment decision to be actionable under the FCA, said David L. Douglass, a Washington-based health law attorney.

In their written opinion, the justices offered this example: If the government adds a requirement that health providers who participate in Medicaid must buy American-made staplers, and a health provider submits a claim but fails to disclose the use of foreign staplers, that provider should not be held liable under the FCA.

“An undisclosed fact is material if, for instance, no one can say with reason that the plaintiff would have signed this contract if informed of the likelihood of the undisclosed fact,” the justices wrote. “A misrepresentation cannot be deemed material merely because the government designates compliance with a particular requirement as a condition of payment. … The False Claims Act does not adopt such an extraordinarily expansive view of liability.”

This aspect of the ruling is good news for defendants and potential FCA targets, Mr. Douglass said in an interview.

“The court has restored the role of the materiality element,” he said. “The materiality element is a stringent protection against the risk that technical instances of noncompliance can become the basis for punitive liability.”

The high court also noted that if the underlying violation is known to widely occur and, nonetheless, Medicare regularly pays such claims, the violation is likely not material to payment, added William W. Horton, a Birmingham, Ala.–based health law attorney and chair of the American Bar Association Health Law Section.

“What I think this does, from the standpoint of defense of these claims, is open up new possibilities for arguing about whether a technical violation of a legal requirement, in fact, satisfies this test,” Mr. Horton said in an interview. “Whether, if CMS had known the violation occurred, would that have been material to CMS’s decision to pay the claim or not?”

But attorneys for plaintiffs and whistle-blowers are also hailing the Supreme Court opinion as positive for their clients.

Stephen M. Kohn, executive director of the National Whistleblower Center, said the Supreme Court correctly ruled on the issue.

“The legal position taken by the Chamber of Commerce and health care industry in this case was dumbfounding,” Mr. Kohn said in a statement. “Had the court agreed with the chamber and its allies – that you can bill the taxpayers for the services of a so-called doctor who was in fact unlicensed, and whose degree came from an unaccredited Internet college – then the floodgates would be opened for fraud in government contracting.”

Houston-based plaintiffs’ attorney Joel Androphy, who represents whistle-blowers, called the opinion “very favorable” for implied certification claims.

“Eliminating barriers such as the mandated condition of payment language in statutes or regulations was a proper change in direction for evaluating pleadings,” Mr. Androphy said in an interview. “If the defendant cheats, there should not be a free pass because Congress did not include magic wording in statute or regulation to support a false claims case. Materiality may be a lingering area of dispute; however the court made clear that a commonsense approach should be applied.”

[email protected]

On Twitter @legal_med

A U.S. Supreme Court ruling that expands liability under the federal False Claims Act (FCA) could have both positive and negative implications for physicians accused of submitting false claims to the government.

Justices ruled June 16 that health care providers can be held liable under the FCA if they bill for a service, but fail to comply with underlying regulations, even if the violation is not explicit in the claim. The decision upholds use of the “implied false certification theory” in FCA cases, which provides that any submission for government payment include an implicit certification of compliance with all applicable contract requirements, laws, and regulations.

The ruling allows a lawsuit by a patient’s family to continue against Universal Health Services, a national hospital management company. The plaintiff, Julio Escobar, claims that Universal presented false claims to Medicaid by seeking payments for services provided by unlicensed, unsupervised health care providers. Although the reimbursement claims submitted to the government accurately described the services provided and cited the correct charges, the plaintiffs alleged that because the clinic’s operations violated state requirements to participate in Medicaid, Universal had also violated the FCA. Universal argued the FCA suit was invalid because a reimbursement claim cannot be false unless its details are untrue or inaccurate.

The Supreme Court ruled in favor of the plaintiffs. By using National Provider Identification numbers that corresponded to specific job titles without disclosing many violations of staff and licensing requirements, Universal’s claims constituted misrepresentations, the justices said.

The opinion includes language that is both helpful and harmful to physicians, according to health law attorneys. On the one hand, the justices supported the implied certification theory, thus expanding the scope of potential liability under the FCA in certain circumstances, said George B. Breen, a Washington-based health law attorney.

“The court’s decision is significant for health care providers and suppliers that submit claims to federally funded health care programs, including Medicare and Medicaid, because the FCA remains one of the federal government’s primary enforcement tools,” Mr. Breen said in an interview. “In the court’s view, half-truths in a claim for reimbursement from a government program … [are] just as actionable as an outright lie if the failure to disclose noncompliance with a statute, regulation, or contract term makes those representations misleading half-truths.”

However, the Supreme Court rejected the government’s notion that every omission, regulatory violation, or contract breach can result in fines and damages under the FCA. The compliance violation must be material to the government’s payment decision, the justices said. This means an alleged regulatory or contractual violation must have mattered to the agency’s payment decision to be actionable under the FCA, said David L. Douglass, a Washington-based health law attorney.

In their written opinion, the justices offered this example: If the government adds a requirement that health providers who participate in Medicaid must buy American-made staplers, and a health provider submits a claim but fails to disclose the use of foreign staplers, that provider should not be held liable under the FCA.

“An undisclosed fact is material if, for instance, no one can say with reason that the plaintiff would have signed this contract if informed of the likelihood of the undisclosed fact,” the justices wrote. “A misrepresentation cannot be deemed material merely because the government designates compliance with a particular requirement as a condition of payment. … The False Claims Act does not adopt such an extraordinarily expansive view of liability.”

This aspect of the ruling is good news for defendants and potential FCA targets, Mr. Douglass said in an interview.

“The court has restored the role of the materiality element,” he said. “The materiality element is a stringent protection against the risk that technical instances of noncompliance can become the basis for punitive liability.”

The high court also noted that if the underlying violation is known to widely occur and, nonetheless, Medicare regularly pays such claims, the violation is likely not material to payment, added William W. Horton, a Birmingham, Ala.–based health law attorney and chair of the American Bar Association Health Law Section.

“What I think this does, from the standpoint of defense of these claims, is open up new possibilities for arguing about whether a technical violation of a legal requirement, in fact, satisfies this test,” Mr. Horton said in an interview. “Whether, if CMS had known the violation occurred, would that have been material to CMS’s decision to pay the claim or not?”

But attorneys for plaintiffs and whistle-blowers are also hailing the Supreme Court opinion as positive for their clients.

Stephen M. Kohn, executive director of the National Whistleblower Center, said the Supreme Court correctly ruled on the issue.

“The legal position taken by the Chamber of Commerce and health care industry in this case was dumbfounding,” Mr. Kohn said in a statement. “Had the court agreed with the chamber and its allies – that you can bill the taxpayers for the services of a so-called doctor who was in fact unlicensed, and whose degree came from an unaccredited Internet college – then the floodgates would be opened for fraud in government contracting.”

Houston-based plaintiffs’ attorney Joel Androphy, who represents whistle-blowers, called the opinion “very favorable” for implied certification claims.

“Eliminating barriers such as the mandated condition of payment language in statutes or regulations was a proper change in direction for evaluating pleadings,” Mr. Androphy said in an interview. “If the defendant cheats, there should not be a free pass because Congress did not include magic wording in statute or regulation to support a false claims case. Materiality may be a lingering area of dispute; however the court made clear that a commonsense approach should be applied.”

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A U.S. Supreme Court ruling that expands liability under the federal False Claims Act (FCA) could have both positive and negative implications for physicians accused of submitting false claims to the government.

Justices ruled June 16 that health care providers can be held liable under the FCA if they bill for a service, but fail to comply with underlying regulations, even if the violation is not explicit in the claim. The decision upholds use of the “implied false certification theory” in FCA cases, which provides that any submission for government payment include an implicit certification of compliance with all applicable contract requirements, laws, and regulations.

The ruling allows a lawsuit by a patient’s family to continue against Universal Health Services, a national hospital management company. The plaintiff, Julio Escobar, claims that Universal presented false claims to Medicaid by seeking payments for services provided by unlicensed, unsupervised health care providers. Although the reimbursement claims submitted to the government accurately described the services provided and cited the correct charges, the plaintiffs alleged that because the clinic’s operations violated state requirements to participate in Medicaid, Universal had also violated the FCA. Universal argued the FCA suit was invalid because a reimbursement claim cannot be false unless its details are untrue or inaccurate.

The Supreme Court ruled in favor of the plaintiffs. By using National Provider Identification numbers that corresponded to specific job titles without disclosing many violations of staff and licensing requirements, Universal’s claims constituted misrepresentations, the justices said.

The opinion includes language that is both helpful and harmful to physicians, according to health law attorneys. On the one hand, the justices supported the implied certification theory, thus expanding the scope of potential liability under the FCA in certain circumstances, said George B. Breen, a Washington-based health law attorney.

“The court’s decision is significant for health care providers and suppliers that submit claims to federally funded health care programs, including Medicare and Medicaid, because the FCA remains one of the federal government’s primary enforcement tools,” Mr. Breen said in an interview. “In the court’s view, half-truths in a claim for reimbursement from a government program … [are] just as actionable as an outright lie if the failure to disclose noncompliance with a statute, regulation, or contract term makes those representations misleading half-truths.”

However, the Supreme Court rejected the government’s notion that every omission, regulatory violation, or contract breach can result in fines and damages under the FCA. The compliance violation must be material to the government’s payment decision, the justices said. This means an alleged regulatory or contractual violation must have mattered to the agency’s payment decision to be actionable under the FCA, said David L. Douglass, a Washington-based health law attorney.

In their written opinion, the justices offered this example: If the government adds a requirement that health providers who participate in Medicaid must buy American-made staplers, and a health provider submits a claim but fails to disclose the use of foreign staplers, that provider should not be held liable under the FCA.

“An undisclosed fact is material if, for instance, no one can say with reason that the plaintiff would have signed this contract if informed of the likelihood of the undisclosed fact,” the justices wrote. “A misrepresentation cannot be deemed material merely because the government designates compliance with a particular requirement as a condition of payment. … The False Claims Act does not adopt such an extraordinarily expansive view of liability.”

This aspect of the ruling is good news for defendants and potential FCA targets, Mr. Douglass said in an interview.

“The court has restored the role of the materiality element,” he said. “The materiality element is a stringent protection against the risk that technical instances of noncompliance can become the basis for punitive liability.”

The high court also noted that if the underlying violation is known to widely occur and, nonetheless, Medicare regularly pays such claims, the violation is likely not material to payment, added William W. Horton, a Birmingham, Ala.–based health law attorney and chair of the American Bar Association Health Law Section.

“What I think this does, from the standpoint of defense of these claims, is open up new possibilities for arguing about whether a technical violation of a legal requirement, in fact, satisfies this test,” Mr. Horton said in an interview. “Whether, if CMS had known the violation occurred, would that have been material to CMS’s decision to pay the claim or not?”

But attorneys for plaintiffs and whistle-blowers are also hailing the Supreme Court opinion as positive for their clients.

Stephen M. Kohn, executive director of the National Whistleblower Center, said the Supreme Court correctly ruled on the issue.

“The legal position taken by the Chamber of Commerce and health care industry in this case was dumbfounding,” Mr. Kohn said in a statement. “Had the court agreed with the chamber and its allies – that you can bill the taxpayers for the services of a so-called doctor who was in fact unlicensed, and whose degree came from an unaccredited Internet college – then the floodgates would be opened for fraud in government contracting.”

Houston-based plaintiffs’ attorney Joel Androphy, who represents whistle-blowers, called the opinion “very favorable” for implied certification claims.

“Eliminating barriers such as the mandated condition of payment language in statutes or regulations was a proper change in direction for evaluating pleadings,” Mr. Androphy said in an interview. “If the defendant cheats, there should not be a free pass because Congress did not include magic wording in statute or regulation to support a false claims case. Materiality may be a lingering area of dispute; however the court made clear that a commonsense approach should be applied.”

[email protected]

On Twitter @legal_med

In the wake of the U.S. Supreme Court’s ruling to strike down a Texas abortion law as unconstitutional, a number of lower courts have temporarily blocked abortion restrictions in their states.

On July 13, a district judge blocked two state laws that would have effectively closed the only abortion clinics in Huntsville and Tuscaloosa, Alabama. One restriction had prohibited clinics that provide abortions from operating within 2,000 feet of public a school offering kindergarten through 8th grade; the other restriction banned dilation and evacuation procedures during a woman’s second-trimester. The American Civil Liberties Union, along with two local clinics challenged the laws in court. U.S. District Judge Myron Thompson halted the laws until after a hearing in October.

©ETIENJones/thinkstockphotos.com

In Utah, the 10th U.S. Circuit Court of Appeals on July 12 blocked a decision by Utah Gov. Gary R. Herbert (R) to cease providing state and federal funds to Planned Parenthood Association of Utah. The directive to remove funds was due to alleged video evidence about inappropriate fetal tissue practices by Planned Parenthood affiliates outside of Utah, according to court documents. Appeals judges concluded that Planned Parenthood Association of Utah shows a likelihood of success on the merits of their claims.

In Kansas, District Judge Julie A. Robinson on July 5 temporarily threw out a decision by the Kansas Department of Health & Environment to remove Planned Parenthood of Kansas and Mid-Missouri (PPKM) from Medicaid. The removal came in May at the direction of Kansas Gov. Sam Brownback (R) because of the same alleged video evidence and because of PPKM’s alleged failure to cooperate with solid waste disposal inspections, according to court documents. In her order, Judge Robinson said blocking the injunction was in the public’s best interest.

On July 1, a Florida district court blocked enforcement of a state law that prevents state or local funds from going to an organization or clinic that provides abortion services. The law also requires that state officials inspect the medical records of 50% of all abortion patients and defines the trimesters of a pregnancy using terminology different from accepted medical terminology. Planned Parenthood of Southwest and Central Florida sued over the law in early June. In his order, District Judge Robert L. Hinkle said an injunction was justified so that the plaintiffs are not “forced for unconstitutional reasons to dismantle programs unrelated to abortions.”

Meanwhile in Indiana, a federal judge halted a new state law that would have banned abortions sought because of fetal gender, race, or disability. The law also had required that a pregnant woman considering an abortion be given the opportunity to view the fetal ultrasound and hear the auscultation of the fetal heart tone at least 18 hours before the abortion is performed. Planned Parenthood of Indiana and Kentucky sued the state over the law in April. District Judge Tanya Walton Pratt temporarily blocked the law on June 30, saying the restrictions were likely unconstitutional.

The lower court decisions come after a June 27 decision by the Supreme Court finding that two Texas abortion restrictions were unconstitutional and placed a substantial obstacle in the path of women seeking abortions. In a 5-to-3 vote, justices ruled that both provisions of HB 2 create an “undue burden” on abortion access. The majority justices found the requirements – mandating that abortion providers have admitting privileges at a hospital within 30 miles of an abortion clinic in order to provide the service, and that all abortion clinics meet the same requirements as ambulatory surgical centers (ASCs) – are unnecessary and offer little medical advantage to patients. The court struck down both requirements, reversing a decision by the 5th Circuit.

[email protected]

On Twitter @legal_med

In the wake of the U.S. Supreme Court’s ruling to strike down a Texas abortion law as unconstitutional, a number of lower courts have temporarily blocked abortion restrictions in their states.

On July 13, a district judge blocked two state laws that would have effectively closed the only abortion clinics in Huntsville and Tuscaloosa, Alabama. One restriction had prohibited clinics that provide abortions from operating within 2,000 feet of public a school offering kindergarten through 8th grade; the other restriction banned dilation and evacuation procedures during a woman’s second-trimester. The American Civil Liberties Union, along with two local clinics challenged the laws in court. U.S. District Judge Myron Thompson halted the laws until after a hearing in October.

©ETIENJones/thinkstockphotos.com

In Utah, the 10th U.S. Circuit Court of Appeals on July 12 blocked a decision by Utah Gov. Gary R. Herbert (R) to cease providing state and federal funds to Planned Parenthood Association of Utah. The directive to remove funds was due to alleged video evidence about inappropriate fetal tissue practices by Planned Parenthood affiliates outside of Utah, according to court documents. Appeals judges concluded that Planned Parenthood Association of Utah shows a likelihood of success on the merits of their claims.

In Kansas, District Judge Julie A. Robinson on July 5 temporarily threw out a decision by the Kansas Department of Health & Environment to remove Planned Parenthood of Kansas and Mid-Missouri (PPKM) from Medicaid. The removal came in May at the direction of Kansas Gov. Sam Brownback (R) because of the same alleged video evidence and because of PPKM’s alleged failure to cooperate with solid waste disposal inspections, according to court documents. In her order, Judge Robinson said blocking the injunction was in the public’s best interest.

On July 1, a Florida district court blocked enforcement of a state law that prevents state or local funds from going to an organization or clinic that provides abortion services. The law also requires that state officials inspect the medical records of 50% of all abortion patients and defines the trimesters of a pregnancy using terminology different from accepted medical terminology. Planned Parenthood of Southwest and Central Florida sued over the law in early June. In his order, District Judge Robert L. Hinkle said an injunction was justified so that the plaintiffs are not “forced for unconstitutional reasons to dismantle programs unrelated to abortions.”

Meanwhile in Indiana, a federal judge halted a new state law that would have banned abortions sought because of fetal gender, race, or disability. The law also had required that a pregnant woman considering an abortion be given the opportunity to view the fetal ultrasound and hear the auscultation of the fetal heart tone at least 18 hours before the abortion is performed. Planned Parenthood of Indiana and Kentucky sued the state over the law in April. District Judge Tanya Walton Pratt temporarily blocked the law on June 30, saying the restrictions were likely unconstitutional.

The lower court decisions come after a June 27 decision by the Supreme Court finding that two Texas abortion restrictions were unconstitutional and placed a substantial obstacle in the path of women seeking abortions. In a 5-to-3 vote, justices ruled that both provisions of HB 2 create an “undue burden” on abortion access. The majority justices found the requirements – mandating that abortion providers have admitting privileges at a hospital within 30 miles of an abortion clinic in order to provide the service, and that all abortion clinics meet the same requirements as ambulatory surgical centers (ASCs) – are unnecessary and offer little medical advantage to patients. The court struck down both requirements, reversing a decision by the 5th Circuit.

[email protected]

On Twitter @legal_med

In the wake of the U.S. Supreme Court’s ruling to strike down a Texas abortion law as unconstitutional, a number of lower courts have temporarily blocked abortion restrictions in their states.

On July 13, a district judge blocked two state laws that would have effectively closed the only abortion clinics in Huntsville and Tuscaloosa, Alabama. One restriction had prohibited clinics that provide abortions from operating within 2,000 feet of public a school offering kindergarten through 8th grade; the other restriction banned dilation and evacuation procedures during a woman’s second-trimester. The American Civil Liberties Union, along with two local clinics challenged the laws in court. U.S. District Judge Myron Thompson halted the laws until after a hearing in October.

©ETIENJones/thinkstockphotos.com

In Utah, the 10th U.S. Circuit Court of Appeals on July 12 blocked a decision by Utah Gov. Gary R. Herbert (R) to cease providing state and federal funds to Planned Parenthood Association of Utah. The directive to remove funds was due to alleged video evidence about inappropriate fetal tissue practices by Planned Parenthood affiliates outside of Utah, according to court documents. Appeals judges concluded that Planned Parenthood Association of Utah shows a likelihood of success on the merits of their claims.

In Kansas, District Judge Julie A. Robinson on July 5 temporarily threw out a decision by the Kansas Department of Health & Environment to remove Planned Parenthood of Kansas and Mid-Missouri (PPKM) from Medicaid. The removal came in May at the direction of Kansas Gov. Sam Brownback (R) because of the same alleged video evidence and because of PPKM’s alleged failure to cooperate with solid waste disposal inspections, according to court documents. In her order, Judge Robinson said blocking the injunction was in the public’s best interest.

On July 1, a Florida district court blocked enforcement of a state law that prevents state or local funds from going to an organization or clinic that provides abortion services. The law also requires that state officials inspect the medical records of 50% of all abortion patients and defines the trimesters of a pregnancy using terminology different from accepted medical terminology. Planned Parenthood of Southwest and Central Florida sued over the law in early June. In his order, District Judge Robert L. Hinkle said an injunction was justified so that the plaintiffs are not “forced for unconstitutional reasons to dismantle programs unrelated to abortions.”

Meanwhile in Indiana, a federal judge halted a new state law that would have banned abortions sought because of fetal gender, race, or disability. The law also had required that a pregnant woman considering an abortion be given the opportunity to view the fetal ultrasound and hear the auscultation of the fetal heart tone at least 18 hours before the abortion is performed. Planned Parenthood of Indiana and Kentucky sued the state over the law in April. District Judge Tanya Walton Pratt temporarily blocked the law on June 30, saying the restrictions were likely unconstitutional.

The lower court decisions come after a June 27 decision by the Supreme Court finding that two Texas abortion restrictions were unconstitutional and placed a substantial obstacle in the path of women seeking abortions. In a 5-to-3 vote, justices ruled that both provisions of HB 2 create an “undue burden” on abortion access. The majority justices found the requirements – mandating that abortion providers have admitting privileges at a hospital within 30 miles of an abortion clinic in order to provide the service, and that all abortion clinics meet the same requirements as ambulatory surgical centers (ASCs) – are unnecessary and offer little medical advantage to patients. The court struck down both requirements, reversing a decision by the 5th Circuit.

[email protected]

On Twitter @legal_med