Szura, a founding partner of Southfield law firm Szura & Delonis, P.L.C., was selected during the HCLS Annual Meeting on September 20th.

The Health Care Law Section is one of the largest sections of the State Bar of Michigan with approximately 1,000 members. The HCLS’s numerous committees and programs provide valuable educational resources for its members around the state. Those resources include webinars and publications on emerging issues in health care law, as well in-person programs at its Annual Meeting and the annual Health Law Institute, which it co-sponsors with the Institute of Continuing Legal Education. In addition, the HCLS seeks to “serve the health care community and advocate on behalf of its interests concerning state and federal legislation and public policy which affect the practice of health care law and related issues.”

Szura’s previous experience with the Health Care Law Section includes service as Chair of its Publications Committee, service as Chair-Elect and as an active Council Member. Szura has also presented on numerous health law topics at HCLS events. He is also an active member of the Medical/Legal Committee of the Oakland County Bar Association.

Szura is a 2003 graduate of Cornell Law School, with a concentration in Business Law and Regulation. He received his undergraduate degree from the University of Michigan, He has been repeatedly selected as a Michigan Super Lawyer Rising Star, among other distinctions.

Szura represents and counsels health care clients on many aspects of their business, including complex health care regulations, such as the Stark Law, the Anti-Kickback Statute, and HIPAA. He also advises on licensing issues, telemedicine, medical staff and peer review matters, and employment matters, among other areas. In addition, Szura has represented health care clients in a wide variety of matters in state and federal courts and in administrative hearings.

Szura & Delonis, P.L.C. is a firm of Michigan business lawyers who provide legal counsel for small and medium-sized businesses with a particular focus on health care law, real estate and labor and employment law.

However, earlier this month the Centers for Medicare and Medicaid Services (CMS) proposed significant changes in government reimbursement for telehealth services in the 2019 Physician Fee Schedule and Quality Payment Program.

Specifically, CMS is proposing new codes for remote patient monitoring services. The new codes will reduce some of the burden on practice groups. They will require less treatment time for a service to be reimbursed (20 minutes a month instead of 30 minutes). They provide separate reimbursement for set-up and patient education of the system. Finally, and perhaps most importantly, they allow other staff professionals (e.g., RNs) to be reimbursed for such services. These new codes might be the difference in the decision whether to provide remote patient monitoring.

CMS is also seeking to increase access to qualified health professionals by advancing virtual care services. CMS is proposing new codes for virtual check-ins, evaluations of forwarded images and videos, and peer-to-peer online consultations. Importantly, those codes would not require the use of live, interactive audio-video technology and would not require the patient be located in a rural area or a specific qualifying originating site. The originating site requirements and the live face-to-face requirements have been major hurdles in adopting or expanding telehealth services. The fact that CMS is proposing to remove those requirements in this area indicates the requirements may be losing favor. That would be good news for those who have been stopped by those hurdles when deciding whether to expand their telehealth services.

These changes are only proposals at this time. CMS is currently accepting comments on these changes up to September 10, 2018. However, it is likely that they will be adopted in some form for the 2019 fee schedule. That would be good news for providers seeking to expand their practice and good news for patients who have trouble traveling to a qualified provider for the treatment they need.

The full opinion is at the bottom of this article, but these are the highlights:

The opinion, written by Justice Thomas, adopted the “implied false certification” theory of liability. Under this theory, even if the express terms of the claim submitted to the government are accurate, the defendant may be liable, in some circumstances, if it knowingly failed to disclose its non-compliance with a statutory, regulatory, or contractual requirement. In other words, the party submitting the claim has “impliedly certified” that it has complied with all applicable statutory, regulatory, and contractual requirements. If it has not complied with those requirements, it may be held liable for submitting a false claim. (The adoption of the implied certification theory of liability ends a split among the lower courts in favor of the majority rule.)

The Court set out that an implied false certification theory can be a basis for liability where at least two conditions are satisfied:

first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.

The Court then addressed an important issue of the second condition – how to determine if there is material statutory, regulatory, or contractual noncompliance. The Court rejected the defendant’s argument that only requirements expressly designated as a “condition of payment” by the government were material and could lead to liability. Instead, the Court held that whether a requirement was a condition of payment is relevant, but not dispositive of the issue of materiality. The issue requires a deeper analysis.

The Supreme Court held that lower courts should engage in a “rigorous” and “demanding” determination of materiality and that it cannot be found where noncompliance is “minor or insubstantial.” As way of example, the analysis may include evidence of (a) whether the defendant knows the government typically refuses to pay claims in light of such violations and/or (b) whether the government has a record of paying such claims despite the particular violations. Essentially, the analysis should not focus on nominal designations for the regulations, but on how material the regulations have been treated in practice by the government. The Court stopped short, however, of providing guidance on the scope or weight of such evidence in determining materiality. Instead, it left the application of the standard to the lower courts and remanded the instant case to the First Circuit Court of Appeals for such a determination.

Full Text Opinion: http://www.supremecourt.gov/opinions/15pdf/15-7_a074.pdf

(*Louis Szura is a member of Szura & Delonis, PLC. This post is intended for general informational and educational purposes only and should not be construed as legal advice. All rights reserved. Copyright 2016.)