Health Law Monitor

WV Supreme Court Reinforces Mandatory Pre-Suit Requirements in Medical Professional Liability Actions

July 12, 2022

West Virginia’s Medical Professional Liability Act (MPLA), W. Va. Code 55-7B-6(b), provides that at least thirty days before filing suit, a claimant must serve two pre-suit documents - a Notice of Claim and a Certificate of Merit - on each health care provider they intend to sue.  Timely compliance with the statute can “toll” or extend the applicable statute of limitations.  In Adkins v. Clark, No.…

HIPAA Rules Now Permit Audio-Only Telehealth

June 16, 2022

On June 13, 2022, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced new guidelines clarifying how audio-only telemedicine can comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules (HIPAA Rules).[1] These guidelines were announced in response to Executive Order 14058, issued on…

Creating Cultural Responsiveness in the Colorado Healthcare Network

May 6, 2022

Beginning January 1, 2023, the Colorado Option Plan will go into effect. Under the Colorado Option Plan, private insurers will be required to offer a standardized insurance plan that offers certain health care services and dictates the services that insureds could receive without paying towards the deductible to the counties in which insurers already sell plans to the individual and small group…

West Virginia Board of Medicine Investigators May Now Be Carrying Concealed Firearms

April 27, 2022

In its most recent legislative session, the West Virginia Legislature passed a law, which was subsequently signed by Governor Justice, that will allow investigators with the West Virginia Board of Medicine to carry a concealed firearm.[1]  This is a new law that will create a new statutory section in the West Virginia Medical Practice Act, which is codified at W. Va. Code 30-3-1, et seq.  According…

The Consolidated Appropriations Act, 2022 (March 15, 2022) Provides Five-Month Reprieve for Telehealth Flexibility Upon the Expiration of the COVID-19 Public Health Emergency under 42 U.S.C 1395m(g)(1)(B)

March 18, 2022

Since January 31, 2020, the federal government has been operating with robust authority to combat the COVID-19 pandemic based on the U.S. Secretary of Health and Human Service’s ongoing declaration of a “public health emergency” (PHE) under 42 U.S.C 1395m(g)(1)(B). Telehealth services have been ubiquitous throughout the pandemic, and the expanded grant of legislative authority under the PHE have…

Potential Showdown Between State Exemptions to COVID-19 Vaccination and Federal Vaccine Mandates in West Virginia.

February 18, 2022

Last month, the Supreme Court lifted the stay regarding the Centers for Medicare & Medicaid Services (“CMS”) vaccine mandate for providers participating in the Medicare and Medicaid programs to require their employees to be vaccinated against Covid-19.[1] However, several states, including West Virginia, have recently adopted statutes that interfere with  employers’ ability to implement mandatory…

Colorado HB 22-1163: State Income Tax Deduction for Medical Expenses

February 10, 2022

On Friday, February 4, 2022, Colorado House Bill 22-1163 was introduced in response to growing out-of-pocket medical expenses in the state.  These expenses are expected to increase by nearly ten percent per year over the next five years.  Up to five hundred thousand Coloradans may lose their coverage under Medicaid in the near future, resulting in substantially more out-of-pocket medical expenses.…

"Play Ball" - The No Surprises Act Update: Fourth Installment

January 19, 2022

Congress enacted the No Surprises Act (the “Act”) to protect patients against “surprise bills,” while at the same time respecting a provider’s ability to receive remuneration for services rendered. To accomplish this, the Act creates an independent dispute resolution process (“IDR”), whereby the provider and insurance plan negotiate charges for an item or service in a manner similar to major…

Telemedicine: Prescribing Limitations

November 29, 2021

The West Virginia Medical Practice Act’s section regarding telemedicine provides some limitations on a physician’s ability to prescribe Schedule II controlled substances.  A physician practicing telemedicine in West Virginia may not solely use telemedicine technologies to prescribe a patient controlled substances listed in Schedule II of the Uniform Controlled Substances Act.¹  However, the…

Hospital Policies and the Standard of Care - Perspective from the Trenches

November 10, 2021

When pursuing any substantial medical malpractice litigation plaintiff’s counsel will always look for a way to include a hospital or other healthcare entity as a defendant. Hospital organizations are viewed as having a “deep pocket” and also provide a less sympathetic target than individual practitioners. In crafting a claim, plaintiff’s counsel will look for hospital policies or protocols that…

"Play Ball" - The No Surprises Act Update: Third Installment

October 27, 2021

Congress enacted the No Surprises Act (the “Act”) to protect patients against “surprise bills,” while at the same time respecting a provider’s ability to receive remuneration for services rendered. In this third installment of the series (first installment and second installment), we provide an update that the Department of Health and Human Services (“HHS”) together with the Department of Labor…

Ohio Court Denies Preliminary Injunction Requiring Administration of Ivermectin

September 8, 2021

An Ohio court attracted national attention when a judge issued a temporary restraining order requiring a hospital to administer ivermectin to a COVID-19 patient.  Another judge has now issued an order denying a motion for preliminary injunction, relieving the hospital of the order to administer the drug.  

By order dated August 23, 2021, an Ohio Court of Common Pleas judge granted a 14-day…