new orleans
baton rouge
jackson
tupelo
gulfport
houston
tampa
london

All rights reserved, Phelps Dunbar LLP Health Law Update is published as a service to clients and friends of Phelps Dunbar LLP, and should not be construed as legal or professional advice or as opinion on specific fact.

Louisiana's New Health Care-Related Laws and Amendments

August 23, 2007

The following is a summary of new health care-related laws or amendments to existing health
care-related laws passed by the Louisiana legislature in its recent regular session:

HB 246/Act 293 Certified Medication Attendants Pilot Program

This Act creates a pilot program to authorize certification of certified medication attendants (“CMAs”). A CMA under the supervision of a licensed nurse will be permitted to deliver and administer certain prescribed medications to patients in nursing homes. A CMA may also record administered medications in patients’ records and chart the medications’ effects and side effects.

The Department of Health and Hospitals (“DHH”) has until March 31, 2008 to promulgate regulations to establish the required education curriculum and standards for training and licensure of CMAs. To participate in CMA education, a person must be a certified nursing assistant with at least 1 year’s experience in a nursing home and meet other requirements.

Effective July 9, 2007

HB 251/Act 142 Changes to Respiratory Therapy Practice Act

Act 142 expands and clarifies the activities that may be performed by licensed respiratory therapists and expands the causes for disciplinary action by the Louisiana State Board of Medical Examiners (“LSBME”).

Effective August 15, 2007

HB 452/Act 476 Access to Health Care Records by Social Security Claimants

Under this Act, a health care provider must furnish a copy of health care records to a claimant filing for Social Security or SSI benefits within 15 days of receipt of the claimant’s request and written authorization. The health care provider may charge up to 50 cents per page for the first 5 pages and 25 cents for each additional page, but any amount charged to the claimant may not be less than the Department of Social Services paid for a copy of the same records.

If the copy has to be obtained by court order or subpoena due to the health care provider’s failure to comply, the health care provider will be liable for reasonable attorneys’ fees and court expenses. The sanctions will not be imposed unless the claimant or his representative notified the health care provider by certified mail of the failure to comply and the health care provider failed to comply within 5 days of the notice.

Effective August 15, 2007

HB 509/Act 152 Exception to Code of Governmental Ethics

A physician member of the board of commissioners of a hospital service district (“HSD”) in a parish of 125,000 or less may contract with the HSD, subcontract with another provider that contracts with the HSD or own an interest in an entity that contracts with the HSD. The physician must recuse him/herself from participating in any transaction before the board relating to any of these contractual relationships.

Effective June 25, 2007

HB 512/Act 153 Reporting Venereal Disease; HIV Testing

The requirements for reporting venereal disease must now be in accordance with the Louisiana Sanitary Code.

A physician who attends a pregnant woman for conditions relating to pregnancy must offer to take a blood sample at the time of the first exam or as soon as possible thereafter. If the woman does not object, the sample will be submitted for a standard syphilis test and a standard HIV test.

If HIV diagnostic testing is offered to a person as part of a routine medical screening, the patient must be informed orally or in writing that HIV testing will be performed unless the patient declines. A separate written informed consent for HIV testing is no longer necessary in these circumstances. A person requesting HIV testing must be provided the opportunity to remain anonymous and if the health care provider does not have the capability of providing HIV testing on an anonymous basis, the health care provider must refer, at no extra charge, the person to a site that performs anonymous testing. This requirement is not applicable to hospital inpatients.

Effective August 15, 2007

HB 523/ Act 318 Prescriptions Based on Electronic Questionnaires

This new law provides that a prescription issued solely on the results of answers to an electronic questionnaire and without any documented patient evaluation, including a physical examination, is outside of the context of a valid physician/patient relationship and is not a valid prescription. A pharmacist who knows that a prescription has been authorized in the absence of a valid physician/patient relationship may not fill the prescription. A pharmacist who violates this law will be imprisoned, with or without hard labor, for up to 5 years and may be fined up to $5000.

Effective August 15, 2007

HB 602/Act 410 Health Data Panel

This Act creates the Health Data Panel, which will make recommendations to the Office of Public Health regarding the release of data for consumers to compare costs and quality of care measures among medical facilities. All licensed medical care facilities must submit information in the manner and form required by DHH. The Office of Public Health will protect confidentiality of patient information by enforcing regulations at least as stringent as the HIPAA privacy regulations.

Effective August 15, 2007

HB 603/Act 328 Nursing Home Sprinkler Systems

Present law requires nursing homes to be protected by a supervised automatic sprinkler system by January 1, 2008, with submission of plans by December 31, 2006. This Act amends that law to permit a nursing home to request an extension of time to submit sprinkler system plans by August 31, 2007. Under the Act, a nursing home operator will also be in compliance with the sprinkler system requirement if the operator attests that its facility will be replaced with a licensed and operable facility that will be protected with a system by December 31, 2009 and submits plans for the replacement facility to DHH and the State Fire Marshal by November 1, 2007.

Effective August 15, 2007

HB 632/Act 444 Moratorium on New Hospice

Effective July 1, 2007, DHH is imposing an 18-month moratorium on new hospice licenses. Any application for hospice licensure postmarked after July 1, 2007 will be returned. Further, any applicant applying prior to that date must be prepared for a licensing survey within 90 days of submitting the application or DHH will not issue a license.

Effective July 1, 2007

HB 770/Act 204 Changes to Podiatry Act

This Act expands the definition of “podiatry” to include treatment of the ankle, muscles or tendons of the lower legs by podiatrists with certain qualifications. The Act also greatly expands the causes for nonissuance, revocation or suspension of podiatry licenses.

Effective June 27, 2007

SB 1/Act 423 Health Care Reform Act of 2007

The purpose of the Health Care Reform Act of 2007 is to develop and implement a health care delivery system, Louisiana Health First, which will provide a continuum of evidence-based, quality-driven health care services for Medicaid recipients and low-income uninsured citizens in Louisiana. The key concept in Louisiana Health First is a medical home system of care, which will consist of an integrated system of public and private primary care providers, specialty care groups and hospitals that will willingly participate in the integrated system. Among other requirements, each participating provider must adopt an interoperable electronic medical record system. Reimbursement will be at a level that ensures provider participation and success.

DHH will apply to the Centers for Medicare & Medicaid Services (“CMS”) for a waiver application or state plan amendment to develop the payment methodology for Louisiana Health First. Prior to submitting the application or amendment to CMS, DHH must submit the plan for review to the House and Senate Committees on Health and Welfare and then to the Joint Legislative Committee on Budget. The provisions of this new law will be budget neutral or subject to an annual appropriation of the legislature.

Effective August 15, 2007

SB 97/Act 253 Exceptions to Moratorium on New Nursing Home Beds

This Act provides an exception to the current moratorium on additional beds in nursing homes. To qualify for the exception, a nursing home must be a Louisiana nonprofit corporation; the total number of new beds must not exceed 10; and the beds must be occupied only by individuals who meet certain criteria, such as individuals who reside in an assisted living facility owned by the same legal entity that owns the nursing home. Tentative approval of the plans for the beds must have been received by DHH before August 15, 2006 and construction must have started by August 15, 2006 and completed by April 1, 2007.
 
A continuing care retirement community provider licensed on or before May 3, 2002 may add up to 30 beds, which DHH will license but not certify for Medicaid participation. The provider has several options for the individuals who may use these additional beds.

Finally, the Act requires DHH to adopt regulations that will permit a nursing home in a service area with less than 93% occupancy to convert temporarily a number of licensed beds to an alternative use until the average annual occupancy rate in the service area exceeds 93%. The facility must then relicense the beds as nursing home beds within 1 year or the licensure of the beds will be deemed expired.

Effective July 6, 2007

SB 235/Act 225 Exception to Code of Governmental Ethics

The Code currently permits a HSD with a population of 100,000 or less to employ as a health care provider a licensed physician, registered nurse or allied health professional who is a member of the immediate family of the HSD’s CEO or of a member of the HSD’s board or the parish governing authority, if the family member is the only qualified person who has applied for the position after it was advertised for at least 30 days. This section of the Code was amended to extend this exception to allow a HSD to enter into an initial recruiting contract with such a person under the same circumstances.

Effective August 15, 2007

SB 281/Act 14 Louisiana Medicaid False Claims Act

The federal Deficit Reduction Act of 2005 (“DRA”) provided a financial incentive for states to enact Medicaid false claims acts that are at least as effective as the federal False Claims Act in establishing liability for false Medicaid claims and rewarding and facilitating qui tam actions. Prior to DRA, Louisiana had an existing false claims act, which is part of the Medical Assistance Program Integrity Law (“MAPIL”). Earlier this year, the Office of Inspector General (“OIG”) reviewed Louisiana’s false claims act and found it did not meet the requirements of DRA. Act 14 amends the MAPIL false claims act to comply with the DRA requirements. If the amended Louisiana false claims act is approved by the OIG, Louisiana will receive an increased share of any damages recovered under the MAPIL false claims act (and the federal government will receive a decreased share).

Effective June 18, 2007

SB 282/ Act 274 Louisiana Health Care Professionals Reporting Act

This new law requires a health care entity to report an adverse action taken against a health care professional for impairment or possible impairment. A health care entity must also report any instance in which it accepts the surrender of clinical privileges, the resignation of employment or of a contractual relationship or the withdrawal from participation in a health care training program if the health care professional is under investigation by the entity for impairment or it is done in return for not conducting an investigation. The health care entity must make a written report to the appropriate professional licensing board within 72 hours of the adverse action, surrender, resignation or withdrawal. A report is not required if the individual has been granted a leave of absence for evaluation or treatment of the impairment under certain conditions.

A “health care professional” is any person who has a current license, certificate, permit or authorization from the LSBME, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board or Psychologists to provide health care services in Louisiana or to participate in a health care training program in Louisiana. A “health care entity” is defined as a hospital or clinic licensed by DHH, any health care entity that has a formal peer review process for quality of care purposes, any hospitalization or care facility maintained by a university or medical school or a health care training program in which trainees are required to have a license or permit from a professional licensing board in order to participate in training. An “adverse action” includes reducing, restricting, suspending, revoking, denying, terminating or failing to renew any clinical privileges, membership, employment, contractual relationship or participation in a health care training program.
 
This Act also authorizes criminal background checks for applicants for licensure for the practice of psychology.

Effective August 15, 2007

Inquiries concerning topics addressed in the Health Law Update may be directed to any of our Health Law attorneys.  Your comments, questions, and suggestions are encouraged.

(662) 690-8136
(662) 690-8141
(662) 690-8137
(662) 690-8156
(662) 690-8135
(662) 690-8166
(662) 690-8113
(662) 690-8177
(662) 690-8176
(662) 690-8120


(504) 584-9317
(504) 584-9253


(225) 376-0217
(225) 376-0269
(225) 376-0245