DAVID J. HYMAN JOINS DOERNER, SAUNDERS' HEALTHCARE PRACTICE

We are happy to announce that David J. Hyman has joined Doerner, Saunders in its healthcare law practice group. David has over fifteen years experience representing physicians, hospitals, clinics and specialty service providers throughout Oklahoma in matters involving contracts, business organizations, professional and facility regulation and licensure, reimbursement, physician-hospital relations, and fraud and abuse. He is included in The Best Lawyers in America and Oklahoma Superlawyers, both for healthcare law; he is also an arbitrator and mediator for the American Health Lawyers Association Alternative Dispute Resolution Service.

David has served as the Chair of the Oklahoma Bar Association Healthcare Law Section, and as a Vice-Chair of the American Health Lawyers Association Physician Practice Group. He has been a member of the adjunct faculty of the University of Tulsa College of Law, teaching healthcare finance and organization law. David is a contributor to the American Health Lawyers Association's publication Representing Physicians Handbook published in 2006 and 2009, authoring chapters on physician employment agreements, practice organization entities, and non-physician practitioners. He received his B.A. degree in 1974 from Vanderbilt University and his J.D. degree in 1981 from the Cumberland School of Law of Samford University where he was articles editor of the American Journal of Trial Advocacy.

Telemedicine

NEW REGULATIONS EASE THE CREDENTIALING REQUIREMENTS FOR TELEMEDICINE IN MEDICARE FACILITIES

New CMS regulations issued May 5 allow Medicare participating hospitals and critical access hospitals ("CAHs") to provide telemedicine services with reduced administrative burden. The new regulations provide an alternative, abbreviated means of credentialing the physicians and practitioners who provide medical services from a distance via electronic communication. CMS will now permit a hospital or CAH to rely on the credentialing by the telemedicine physician's "home-base" hospital as the basis for its own credentialing of the physician. In announcing the new regulations, CMS stated that it instituted the change to bring "more flexibility to small hospitals and CAHs in rural areas and regions with limited supply of primary care and specialized providers."

Fundamentally, Medicare-participating hospitals and CAHs must credential and grant appropriate privileges for all physicians and practitioners who provide medical services to its patients. This applies not only to the facility's "local" medical staff, but also to the providers who furnish care to the facility's patients from a distance by telemedicine. Until the arrival of this new regulation, even a small or rural hospital's medical staff and governing body had to thoroughly examine, verify and approve the credentials of all its telemedicine providers in the same fashion that it vetted its "local" medical staff members. Similarly, this required a CAH to enter an agreement with an qualified outside institution to perform the same full-blown process for it. In both cases, this onerous requirement was seen to impede the use of telemedicine to bring essential medical services to patients. That system, CMS stated, was "duplicative and burdensome ... [for] small hospitals and CAHs, which often lack adequate resources to fully carry out the traditional credentialing and privileging process for all the physicians and practitioners that may be available to provide telemedicine services."

Therefore, CMS designed the new regulations to allow a more convenient means of credentialing telemedicine providers. The new regulation provides that, if the telemedicine physician's or practitioner's credentials are approved by his home-base hospital (the "remote" hospital), it is no longer necessary for the hospital at which the patient receives the telemedicine services (the "local" hospital) to duplicate every step of the credentialing process. If the remote hospital's credentialing standards comport with Medicare's credentialing requirements, the local hospital may rely upon the remote hospital's credentialing as the basis on which to approve the physicians and practitioners who provide the telemedicine services. The new telemedicine credentialing and privileging regulations for CAHs are modeled after the hospital requirements with almost no differences.

In order for hospitals to employ the new credentialing method, the following specific requirements must be met: (1) the remote hospital and the local hospital must enter a written agreement for the provision of telemedicine services; (2) the agreement between the hospitals must provide that the remote hospital will apply Medicare's credentialing standards to the physician or practitioner who provides the telemedicine services; (3) the remote physician or practitioner must be credentialed and privileged at the remote hospital and the remote hospital must provide the local hospital with a current list of the physician's or practitioner's privileges; (4) the physician or practitioner who provides the telemedicine services must be licensed to practice in the state in which the patient receiving telemedicine services is located; and (5) once a physician or practitioner is credentialed to provide telemedicine services at th e local hospital, the local hospital must inform the remote hospital of all information about the physician or practitioner that the remote hospital will need in performing its own periodic credentialing review, including any adverse events resulting from the telemedicine services.

The new regulations specifically amend the Medicare conditions for participation for a hospital's governing body and its medical staff (42 CFR §§482.12 and 482.22) and the conditions for participation for critical access hospitals (42 CFR §§485.616 and 485.641).

The author, David J. Hyman, may be contacted at dhyman@dsda.com

Oklahoma Legislation

NEW OKLAHOMA HEALTHCARE LAWS

With the conclusion of the 2011 Oklahoma legislative session, a variety of new laws will affect the delivery of healthcare in the state. Here is a brief summary of these new laws:

• Malpractice - House Bill 1209 provides protection from liability for physicians in providing emergency care to contestants in amateur and professional martial arts contests.
• Mental Health - House Bill 1271 amends the Oklahoma Mental Health Law's definition of a person requiring treatment for mental illness or drug or alcohol dependency.
• Nursing - House Bill 1275 specifies the qualifications and role of Advance Practice Registered Nurses (Certified Nurse Practitioners, Clinical Nurse Specialists, Certified Nurse Midwives, Certified Registered Nurse Anesthetists), who are regulated by the Oklahoma Board of Nursing. The act also addresses the qualifications for Licensed Practical Nurses and Advanced Unlicensed Assistants. The act also addresses ministerial licensure and disciplinary issues.
• Assisted Living - House Bill 1282 requires the licensure or certification by the Oklahoma State Board of Examiners for Long-Term Care Administrators of administrators of assisted living, residential care facilities, and adult day care centers. All current administrators may continue to serve in that capacity until the Board establishes qualifications for licensure and certification.
• Long Term Care - House Bill 1363 mandates the development of eligibility criteria for persons applying for the Advantage Waiver Program, which permits Medicaid-eligible individuals who require nursing facility care to receive services in their homes.
• Healthcare Finance - House Bill 1381 creates The Supplemental Hospital Offset Payment Program Act and imposes a fee to be paid by certain Oklahoma hospitals until 2014; the fee will be matched by federal subvention and used to support the Oklahoma Medicaid program.
• Home Care - House Bill 1504 adds the Accreditation Commission for Health Care to the organizations whose accreditation is deemed to be sufficient for the licensure of a home care agency in Oklahoma. Previously, deemed accreditation was afforded for agencies certified by only the Joint Commission, the Community Health Accreditation Program of the National League for Nursing, or the Medicare and Medicaid programs.
• Long Term Care - House Bill 1554 creates the Oklahoma Options Counseling for Long-term Care Program to provide information and counseling to elderly and disabled persons regarding options for long-term care; the program is mandated not to be used in the implementation of the federal Patient Protection and Affordable Care Act of 2010.
• Obstetrics - House Bill 1826 requires a physician to order a blood sample from a pregnant female at the time of delivery if she has had no prenatal care and to submit the sample to an approved lab for an HIV test. It also provides that a consultant pharmacist is only required to visit an ambulatory surgical center once a month.
• Abortions - House Bill 1888 and Senate Bill 547 affect the performance of abortions. House Bill 1970 addresses a physician's prescription of RU-486 (mifepristone) and the treatment of patients for whom it is prescribed.
• Financial Support to Primary Care Providers - House Bill 2017 affects the Oklahoma Medical Loan Repayment Program principally by limiting the program to primary care physicians and by removing the cap on the number of physicians assisted by the program and on the amount of the stipend that may be provided to participants. The Physician Manpower Training Commission is authorized to provide financial support to the Oklahoma Medical Loan Repayment Program for new or expanded primary care residency programs in rural and underserved areas of the state, including support to hospitals that establish or continue primary care residency programs and to primary care residents who remain in practice in rural Oklahoma.
• Inmate Care - Senate Bill 180 authorizes the state Department of Corrections to contract with physicians and other providers of inpatient and outpatient health care services, equipment and health care related products necessary for the delivery of health care to inmates when the Department is unable to provide the necessary care internally.
• Medical Examiner - Senate Bill 250 makes numerous changes to the Office of the Chief Medical Examiner and the make-up of the Board of Medicolegal Investigations.
• Dental Prescriptions - Senate Bill 574 specifies the information to be contained in dental laboratory prescriptions, and requires that all dentists maintain malpractice insurance.
• Medical Records - Senate Bill 701 regards the release of a deceased person's medical records. As enacted, the bill requires the permission of the decedent's personal representative, surviving spouse or close family member in order to release the records. The bill also authorizes providers to charge up to twelve cents per page for medical records produced in digital form.

The author, David J. Hyman, may be contacted at dhyman@dsda.com

Fair Labor Standards Act

HOURLY-PAID HEALTHCARE PROFESSIONALS ENTITLED TO OVERTIME PAY.

The Fair Labor Standards Act ("FLSA") entitles employees to overtime pay for hours worked in excess of forty hours per workweek. The overtime pay must be at least one-and-one half times the "regular rate" of pay. Bona fide professionals, however, have no right to overtime pay.

Bona fide professionals are those who perform work requiring knowledge of an advanced type in a field of science or learning that is customarily acquired by specialized intellectual instruction, and who are also compensated at least $455 per week on a "salary or fee basis". If the employee is licensed to practice medicine, however, an exception applies: the employee may be considered a bona fide professional with no right to overtime pay even if she is paid by the hour and not paid a salary or fee. While medical doctors, podiatrists, dentists and optometrists are subject to the exception, the U.S. Department of Labor, which administers the FLSA, has determined that pharmacists, nurses, therapists, technologists, dieticians, social workers, psychologists, and "other professions which serve the medical profession" are not covered by the exception. Accordingly, the latter are entitled to overtime pay unless they are paid a salary or a fee.

So, where does a Physician's Assistant ("PA") or Nurse Practitioner fall in this scheme? In a recent case before a federal court in Pennsylvania, a PA who had always been paid by the hour claimed the right to overtime pay. At issue was whether the PA should be considered tantamount to a physician who would not be entitled to overtime pay, or to a professional "which serves the medical profession" who would be entitled to overtime pay if she were not paid a salary or fee. The employer argued that the PA qualified for the exemption because she was licensed to practice medicine under physician supervision. The court rejected the argument and held that PAs and Nurse Practitioners are "other professionals who service the medical profession" and held that they must be paid on a "salary of fee" basis in order to be exempt from overtime pay. Consequently, even though the PA had the training and did the work of a professional, she w as entitled to overtime pay because she had been paid by the hour.

If you employ PAs or Nurse Practitioners, take a look at your compensation structure to determine whether you are compensating them on a "salary or fee" basis. If you need help, call us.

The author, Rebecca M. Fowler, may be contacted at rfowler@dsda.com

Healthcare Provider Liens

SUCCESSFUL HOSPITAL AND PHYSICIAN LIENS DEPEND ON PROPER PROCEDURE

Oklahoma's hospital and physician liens can assure payment out of funds a patient receives for his injury from a third-party. The lien authorizes the "properly perfected" provider to be paid from the proceeds of a third-party claim before the injured party or a non-perfected providers are paid from the recovery fund. The recoverable amounts include all reasonable and necessary charges incurred by the injured party.

A vital component for caregivers who expect to recover from claims against third parties is ensuring that the lien is "properly perfected." Without perfection, the protection of being paid prior to distribution to the injured or other non-perfected lien holders is lost.

An enforceable hospital or physician lien depends upon the completion of multiple steps in order to be perfected. First, the hospital or physician must provide proper notice to the person, firm or corporation against whom the claim is made and to the injured person and his or her attorney. The notice must contain certain information regarding the provider and other interested parties including any insurance policies against which the lien is asserted, the name of the physician, the name of the injured person and who the lien is claimed against. Next, the lien must be properly filed on the mechanic and materialman's lien docket in the county clerk's office where the principal office of the physician is located.

Aside from properly perfecting the lien, the hospital or physician must enforce the lien within the period provided under statute. From the time the physician or hospital learns of a judgment or compromise in favor of the injured party, providers must enforce the lien within one year of the date of such knowledge. Failing to do so causes the lien to be invalid.

In order for a hospital or physician to keep its priority over other lien holders, it is imperative that the steps outlined above are followed. Such compliance could mean the difference between being paid in full and not being paid at all.

Medicaid

U.S. SUPREME COURT WILL HEAR MEDICAID CUT BAN

The State of California is facing a budget deficit of $25.4 billion. Because of various ballot initiatives passed over the years by the populace, there is not much room to cut. The biggest costs are in schools and Medicaid, which is called "Medi-Cal" and "Denti-Cal", so those areas have been the targets of budget cuts. Medi-Cal and Denti-Cal were ordered to cut payments to patients by ten percent across the board.

After the cuts were ordered, the California Hospital Association and other organizations brought suit in Federal Court to overturn the cuts, based on alleged violations of state and federal laws. The U.S. District Court overturned the cuts and the Ninth Circuit Court of Appeals upheld that action and issued an injunction barring cuts to Medi-Cal and Denti-Cal. The State of California sought a Writ of Certiorari to the U.S. Supreme Court and, very recently, that Writ was granted. It is expected that the case will be argued next Fall and decided in early 2012.

In the meantime, CMS also denied California's attempt to cut Medicaid. Since program changes cannot, by law, be made without CMS' consent, the cuts cannot be restored. So the sole remaining issue for the Supreme Court to decide is whether private individuals, such as the California Medical Association, have the right to sue in federal court to enforce the federal Medicaid law.

Many states across the U.S. are also facing serious budget deficits, and many were contemplating Medicaid cuts. The actions taken by both regulatory agencies and the federal courts with regard to the attempt by the State of California to cut Medicaid should be a relief to those who are providers of care to Medicaid patients everywhere.

The author, G. Michael Lewis, may be contacted at mlewis@dsda.com

AnnouncementS

On June 28, 2011, Courtney Bru will be presenting As if the Americans with Disabilities Act weren't already complicated enough at the Learning Lab sponsored by the Tulsa Area Human Resources Association (TAHRA). For more information, click here.

MIKE WOFFORD NAMED LEADER IN LAW

Mike Wofford of the firm's Oklahoma City office will receive a Leadership in Law award from The Journal Record for his contributions to the community. Mike created, helped to fund, and has for the past twelve years served as Chair of the Advisory Board of the Mark Coleman Environmental Fellowship at the University of Oklahoma. He is a member of the Board of Visitors of the OU College of Arts & Science (emeritus) and has endowed a scholarship at the University for Leadership Scholars.

You can reach Mike at mwofford@dsda.com.

FIRM WINS TIER III PERMIT FOR OKLAHOMA CLIENT

The firm successfully represented an Oklahoma start-up company in its efforts to obtain the first Tier III solid waste disposal site permit issued in Oklahoma in a number of years. Mike Wofford led the firm's team of attorneys through the administrative hearing process at the Oklahoma Department of Environmental Quality. The hearing involved the presentation and cross-examination of multiple expert witnesses on both sides of the issues being raised. Our client received a recommendation from the Administrative Law Judge that the technical and scientific evidence justified the issuance of the permit for the site. The final permit was issued by the Executive Director of the ODEQ in late April of this year.

You can reach Mike at mwofford@dsda.com.

PROFESSOR ROBERT SPOO WINS TU OUTSTANDING TEACHER AWARD

The University of Tulsa recently announced that DSDA lawyer and University of Tulsa Professor Robert Spoo is a winner of the university-wide Outstanding Teacher Award. To read the full article, click here.

ROSS CRUTCHFIELD AND LEAH WARD PASS ARKANSAS BAR - LEAH SCORES HIGHEST ON STATE BAR EXAM

Ross Crutchfield and Leah Ward both recently passed the Arkansas Bar and they are now licensed to practice law in both Oklahoma and Arkansas.

Special kudos to Leah who received the highest score on the February 2011 Arkansas bar examination.

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