Volume 2 | February 2020
Featured Client Alerts
Leap Year Means a February Deadline for HIPAA Breach Notifications to OCR
HIPAA Reporting in General

The HIPAA Breach Notification Rule requires covered entities, business associates, vendors of personal health records, and other third-party service providers handling protected health information (PHI) to make certain notifications any time there is a breach of unsecured PHI. Pursuant to guidance by HHS' Office of Civil Rights (OCR), which is the agency that enforces compliance with HIPAA regulations, any impermissible use or disclosure of unsecured PHI is presumed to be a breach unless there is a low probability that PHI was accessed or compromised.  

Reporting "Small" Breaches to OCR

If fewer than 500 individuals are affected by a HIPAA breach, the Breach Notification Rule allows the reporting entity to notify the OCR annually, but “not later than 60 days after the end of each calendar year.” While this rule typically results in a March 1 deadline, because 2020 is a leap year, this year’s reporting deadline is February 29 .  For this reason, covered entities and business associates that experienced such a breach in 2019 should ensure that such notification is made by that deadline. The required notification can be submitted to OCR through its online breach notification portal, which can be accessed here .

First Prosecution under EKRA Results in Guilty Plea

I n a press release issued last month, the DOJ announced its first criminal prosecution under the Eliminating Kickback in Recovery Act (EKRA). Defendant Theresa Merced – who is 80 years old – pled guilty and admitted to soliciting kickbacks from a toxicology lab in exchange for referring urine drug tests to the lab. Sentencing is scheduled for May 1, 2020.

Merced, the office manager of a substance abuse treatment clinic, accepted a $4,000 check and promised inducements from the CEO of a toxicology lab in exchange for Merced referring the clinic’s urine drug tests to the lab. When asked by law enforcement agents about the check, Merced denied knowing anything about it and opined that it was a loan from the lab CEO to her husband. After her interview with the agents, Merced telephoned the lab CEO and requested he change the lab’s financial records to corroborate the story she told to law enforcement. Merced subsequently pled guilty to one count of violating EKRA, one count of making false statements, and one count of attempted tampering with records. 

This prosecution telegraphs DOJ’s focus on prosecuting criminal behavior under EKRA, which was signed into law in late 2018 as part of the larger SUPPORT Act. To read more about EKRA, the differences between EKRA and the AKS, as well as this prosecution, please read Chilivis Grubman partner Scott Grubman’s recent article on the topic, published in the AHLA Weekly, by clicking here

To read all of this month’s client alerts, please visit our website blog by clicking our link below:
Upcoming Events
In March 2020 Chilivis Grubman partner Scott Grubman will be presenting at the 2020 KnowledgeLab Conference , the annual conference of the Clinical Lab Management Association (CLMA), in Louisville, Kentucky.

The title of Scott's talk is "Stark, AKS & EKRA, Oh My! Government Enforcement Trends and Priorities in the Laboratory Space," which will include a detailed discussion of government enforcement in the clinical laboratory space, a topic he knows well having represented a number of clinical laboratories in government investigations.

Chilivis Grubman News
Chilivis Grubman Adds Attorney

Chilivis Grubman is pleased to announce the addition of attorney Leo Kogan to the firm.

Leo is an experienced attorney who represents companies and individuals in civil litigation, arbitration and government and regulatory investigations. His clients include securities broker-dealers, registered representatives, investment advisors and healthcare providers, among others.

Before joining Chilivis Grubman, Leo practiced with Eversheds Sutherland (US)’s Atlanta office, where he focused on representing corporations, broker-dealers, registered representatives and investment advisors in civil litigation, arbitration, regulatory investigations and other proceedings.

Leo has tried numerous Financial Industry Regulatory Authority (FINRA) arbitrations through award, frequently as lead counsel, in cases involving disputes arising from transactions in stocks, bonds, mutual funds, options and structured finance products. Leo has substantial experience representing corporations in private securities class actions and state court actions, and he regularly takes and defends depositions. Leo’s cases have also involved allegations of breach of contract, theft of trade secrets and violations of employment agreements, among others.

Leo joins Chilivis Grubman as Counsel.


New Publication

Chilivis Grubman partner Scott Grubman 's article on parallel criminal and civil proceedings was published as the cover story in the February 2020 Georgia Bar Journal.

The article, co-authored with fellow criminal defense attorney Don F. Samuel, discusses unique and often-tricky factors that attorneys must consider when representing clients who are facing such parallel proceedings, including the invocation of the Fifth Amendment privilege in civil proceedings and the possibility of seeking a stay of civil discovery.

The article can be read here .