As part of its continuing professional education program for Internal Revenue Service employees, the IRS recently conducted a series of internal training sessions on governance for tax-exempt organizations. The materials are available on the IRS website. The training materials include a combination of outlines and PowerPoint presentations explaining why the IRS is focused on nonprofit governance, emphasizing recommended governance measures and policies, and discussing the role of IRS employees as it relates to their review of governance issues. The IRS clearly intends to carry out a long-term study of nonprofit governance; the materials state that the IRS’ next steps regarding governance are to:
- Develop an examination check sheet regarding various governance topics to explore the link between good or bad governance and compliance with tax laws;
- Incorporate Form 990 questions and responses into compliance initiatives; and
- Continue training of both IRS employees and tax-exempt organizations.
If you have any questions regarding adopting or implementing the governance practices encouraged by the IRS, please contact our health law attorneys.
The Federal Trade Commission (the “FTC”) will delay until November 1, 2009, enforcement of a provision of the “Red Flags” Rule that requires physicians and hospitals to adopt written plans for tracking and responding to indicators of identity theft in their billing operations. The delay is intended to give creditors and financial institutions more time to review the FTC’s guidance and develop and implement written Identity Theft Prevention Programs.
The Red Flags Rule is an anti-fraud regulation, requiring “creditors” and “financial institutions” with covered accounts to implement programs to identify, detect, and respond to the warning signs, or “red flags,” that could indicate identity theft. Resources to help organizations comply with the Red Flags Rule are available at FTC’s Red Flags Rule microsite.
For further detail on Red Flag Rules, see von Briesen & Roper’s Health Law Bulletin: “Red Flag Rules: Are They Applicable to You?”
In its July 24, 2009 decision in Bubb v. Brusky, the Supreme Court (6-0) ruled that Wisconsin’s informed consent statute requires physicians to inform patients about the availability of all alternate, viable medical options for treatment and diagnosis. Physicians must also explain the benefits and risks associated with each treatment option. The Supreme Court also reaffirmed that the exceptions to the disclosure requirements remain and thus, there is not an unreasonable burden on physicians to inform patients in accordance with the statute.
On September 1, 2009, important changes to Wisconsin’s rules governing physician assistant prescriptive practices will take effect. Most important among the changes is the repeal of the rule requiring physician co-signatures of physician assistant prescription orders. The new rules still require established written guidelines under which the physician assistant may issue prescription orders, but the guidelines must now include the drug categories the physician assistant may prescribe. (For example, antibiotics, cardiovascular medications, etc.) Finally, the new rules will require supervising physicians to periodically review the physician assistant’s prescription orders, although the rules do allow some flexible options concerning the method and frequency of review. Read more…
Rep. Jackie Speier (D-CA) introduced HR 2962, or the Integrity in Medicare Advanced Diagnostic Imaging Act of 2009 that would amend Title XVIII of the Social Security Act. The bill would exclude diagnostic MRIs, CT, and PET from the exception to the Stark Law for in-office ancillary services. Group practices typically rely on this exception to provide patients with access to imaging services in their offices rather than sending patients to third party providers.
It appears likely that the bill will be incorporated into the Healthcare Reform Package that is currently being debated in the Energy and Commerce Committee. Supporters of the bill contend that the over utilization of imaging services through the practice of self-referral places a burden on an already cash strapped Medicare system. Opponents of the bill contend that the existing exception recognizes that referrals within a group practice promote quality, efficiency, and advance the continuity of care offering substantial benefit to patients. Read the bill here.
In 2008 The Joint Commission convened a Task Force to review proposed Standard MS. 1.20, renamed MS.01.01.01, regarding the required contents of Medical Staff Bylaws and how amendments must be handled.
Since the standard was created in 2004, many have raised concerns about the intent of the requirements of the standard, including requiring too many details in the bylaws, the cost and burden associated with changing bylaws, the potential for disrupting relationships between the medical staff and the governing body and the role of the medical executive committee.
The new draft is supported by the National Association Medical Staff Services, which reports that while the latest version may require many facilities to change their medical staff bylaws to some degree, there are significant improvements over the previous version.
Reported improvements include allowing facilities to include policy and procedure details in documents separate from the medical staff bylaws as well as allowing the medical staff to delegate the approval of policies and procedures to the medical executive committee.
Those organizations represented on the Task Force are currently circulating the revised draft standard among their members, with member input due by October 15, 2009. The Joint Commission will review the results of the feedback after that date and will then determine whether to release the proposed revision for field review.
Click here to read The Joint Commission’s official announcement.
Providers in the health care community are starting to use social networking mediums for promotion of their programs and public education. In fact, over 290 health care systems in the United States currently use a form of social networking, including several Wisconsin health care providers. This Bulletin provides a basic overview of the utility of using social networking websites to broadcast surgeries, and sets out some basic legal considerations related to this new trend. Read more…
Wisconsin courts have frequently found that if any restrictive covenant within an agreement was unlawful, the entire agreement was unenforceable. However, on July 14, 2009, in Star Direct, Inc. v. Dal Pra, the Wisconsin Supreme Court issued a decision that could increase the enforceability of restrictive covenants in Wisconsin. The Court held that separate covenants within one agreement may be divisible and separately enforceable, even if one or more of the covenants are found to be unenforceable. Read more…
Effective July 24, 2009, both the federal and Wisconsin minimum wage for adult employees will increase to $7.25 per hour. The Wisconsin minimum wage for tipped employees will remain $2.33, and the Wisconsin minimum wage will remain $5.90 for employees under age 20 who are in their first 90 consecutive calendar days of employment with a particular employer. The federal minimum wages for tipped and youth employees are lower ($2.13 and $4.25, respectively), but Wisconsin employers are required to comply with Wisconsin’s higher minimum wage requirements for these groups.
The Wisconsin Legislature is currently considering a bill that would provide for yearly increases to the state minimum wage rate in connection with the cost of inflation. This bill, 2009 Senate Bill 1, was passed by the Wisconsin Senate on February 10, 2009 and it has been in front of the Assembly’s Committee on Labor since that time. We will provide further updates if this bill is passed.
Waukesha Circuit Court Judge Michael Bohren issued a decision earlier this month concluding that ProHealth Care, Inc. is not entitled to a tax exemption for its Pewaukee facilities, which provide administrative support for ProHealth’s non-profit affiliates Waukesha Memorial Hospital and Oconomowoc Memorial Hospital. The principal stumbling block to the health system’s exemption claim was that ProHealth’s Pewaukee operations also provide support to a taxable affiliate, Waukesha Health System, and ProHealth failed to establish that this support was only inconsequential or incidental. Judge Bohren analyzed the support of both exempt and non-exempt affiliates as a “dual use,” part of which involved a commercial purpose, such that the property was taxable. Judge Bohren’s decision did not attempt to apply a partial exemption analysis, however, even though ProHealth submitted evidence comparing the revenues, employees, and services attributable to Waukesha Health System against those attributable to the exempt hospitals.
While Judge Bohren’s ruling is instructive, it is not a binding precedent since it is only at the trial court level. ProHealth has stated that it does not intend to appeal the decision.