Case Studies

EBG Is Victorious in Two Electronic Health Record Incentive Program Matters

In May 2014, Epstein Becker Green scored major victories in two matters relating to the Centers for Medicare & Medicaid Services ("CMS") Electronic Health Record ("EHR") Incentive Program, which provides incentive payments to eligible professionals, eligible hospitals, and critical access hospitals as they adopt, implement, upgrade, or demonstrate meaningful use of certified EHR technology.

In the first matter, Epstein Becker Green, on behalf of a hospital client, persuaded CMS to admit that it was possible to meet an EHR Incentive Program requirement in a way that was not clearly addressed in the program's rules. Specifically, the EHR Incentive Program requires the transmission of a "transition of care" document to a patient's new providers when a hospital refers or transfers the patient. Ideally, this document is sent electronically and directly to the provider. But, in certain circumstances, the EHR Incentive Program rules also allow the transition-of-care document to be provided to the patient to deliver to the next provider. Epstein Becker Green obtained a written response from CMS that Epstein Becker Green's hospital client is permitted, instead of printing this document and providing it physically to each patient, to post the document in the "patient portal"—a private website accessible by the patient that hosts copies of certain health care documents (and is itself another EHR Incentive Program requirement). This result greatly pleased our hospital client, since it was no longer required to print and hand out all of that paper.

In the second matter, Epstein Becker Green represented a small orthopedic group practice that was participating in the EHR Incentive Program, had received incentive payments, and was recently audited by one of CMS's outside auditing vendors. The audit determined that the group practice did not meet all of the "meaningful use" requirements under the EHR Incentive Program. Therefore, the group practice was ordered to refund its incentive payments, which totaled over $100,000. However, Epstein Becker Green, using its extensive knowledge of the EHR Incentive Program, was able to successfully appeal the audit determination, resulting in no recoupment by CMS of any of the payments.

The Epstein Becker Green attorney representing the hospital client and the group practice was Joshua J. Freemire.

Epstein Becker Green Assists Two Health Insurers in Defeating Data Breach Class Certification

After more than five years of litigation, on April 26, 2016, a three-judge Superior Court panel in Pennsylvania upheld the denial of a motion for certification of a class action against Epstein Becker Green clients Keystone Mercy and AmeriHealth Caritas Health Plans.

In December 2010, the plaintiff, on behalf of his daughter, filed a lawsuit against the two insurers, claiming that they violated state consumer protection laws by losing a flash drive containing the personal health information (PHI) of more than 283,000 individuals and by failing to live up to their promise to protect and safeguard these individuals’ PHI.

In denying the plaintiff’s class certification motion, the panel found that the trial court had “carefully considered the numerosity, typicality, adequacy of representation, and fair and efficient method of adjudication requirements for class certification under Rule 1702 [('Prerequisites to a Class Action')] and found the class action requirements were not met.” In addition, the panel agreed with the trial court’s ruling that the plaintiff could not properly represent potential class members because he was unable to conclusively link his daughter to the PHI contained on the lost flash drive. Also, the panel left in place the trial court’s finding that, as there was no there was no actual harm associated with the data breach, the plaintiff failed to fulfill the typicality requirements for a class action.

The Epstein Becker Green team was led by Stuart M. Gerson and included Patricia M. Wagner and Tanya Vanderbilt Cramer.

Epstein Becker Green Assists in Launch of Mental Health App

Epstein Becker Green assisted iExhale in the launch of an application to promote mental health and happiness. The app allows users to speak with a board-certified therapist instantly via in-app messaging or by phone. Additionally, users have access to a social network to create a greater support system. iExhale has developed partnerships with after-school programs and youth centers in order to deliver mental health services to teenagers who may have restricted access to such services. The app launched on June 6, 2016.

The Epstein Becker Green team provided strategic advice and counseling regarding regulatory issues affecting the provision of telehealth services, including state licensure, scope of practice, credentialing and privileging, online prescribing, and coverage and reimbursement. Additionally, the team built the terms of use and condition, privacy policy, and consent documents for the app. Epstein Becker Green’s telehealth and security attorneys were supplemented by the business consultancy services of Epstein Becker Green’s affiliate EBG Advisors, Inc.

EBG Advisors will continue to assist iExhale in the app’s security management.

The Epstein Becker Green team included Adam C. Solander, Robert J. Hudock, Kevin J. Ryan, Amy F. Lerman, and Daniel G. Gottlieb.

Epstein Becker Green Advises Health System on Forming First-of-Its-Kind Direct-to-Employer Health Care Network and Alliance in California

Epstein Becker Green provided health care transactional and regulatory advice to MemorialCare Health System (“MemorialCare”) pertaining to structuring and developing a five-year arrangement involving a direct contract to provide medical care to Southern California employees of The Boeing Company (“Boeing”) and their families (approximately 37,000 people). The arrangement has been described as the first such customized health plan option in California between a large employer and a health care provider.

The network with MemorialCare for Boeing’s employees includes 2,400 primary care doctors and specialists, nine hospitals, and 71 community-based ambulatory surgery, medical imaging, urgent care, and dialysis centers, among others. The hospitals involved include MemorialCare’s five hospitals that span parts of Los Angeles and Orange Counties in addition to hospitals, physicians, and other facilities through MemorialCare’s related network contracts with UC Irvine Medical Center, Torrance Memorial Medical Center, PIH Health Hospital-Whittier, PIH Health Hospital-Downey, and PIH Health Physicians.

The arrangement is designed to improve health, enhance patient experience, and make health care more affordable for Boeing and those employees who choose it. Also, the arrangement allows MemorialCare direct access to clinical data to better customize and coordinate employees’ health needs.

The Epstein Becker Green team was led by Paul A. Gomez and included Leonard Lipsky and Patricia M. Wagner.

Epstein Becker Green Successfully Advises on Regulatory Issues for Mental Health Platform

Epstein Becker Green has successfully advised Ginger.io, Inc., a big data/behavioral analytics health care company based in San Francisco, on a number of regulatory issues concerning, among other things, telehealth, corporate practice of medicine, reimbursement, the Food and Drug Administration (FDA), compliance, and fraud and abuse.

Named a “2015 Technology Pioneer” by the World Economic Forum, Ginger.io is an industry leader whose mobile app analyzes passive data and analytics to identify patterns in users’ behavior and mental state that may impact their health and well-being. Providers can use the Ginger.io platform to reach out when patients need support.

Ginger.io also provides a virtual care network of mental health providers to enable users to receive virtual care therapy through the mobile app. Our team counseled Ginger.io as the company prepared to launch that virtual care network.  Ginger.io has collaborations and partnerships with a number of leading hospitals, academic medical centers, and insurers.

The Epstein Becker Green team included Kevin J. Ryan, Jason E. Christ, John W. Eriksen, Helaine I. Fingold, Paul A. Gomez, Daniel G. Gottlieb, Zachary C. Jackson, Amy F. Lerman, Jennifer L. Nutter, Kim Tyrrell-Knott, and Patricia M. Wagner.