Foreseeable Future Fall 2007

In the 1980s, NBC News Overnight (a late, late night broadcast) anchor, Linda Ellerbee, closed each show with the sign off, "And so it goes." That salutation seems apt as we close out 2007 at OGC. Yes, as always we have seen our share of changes (see, i.e., New Attorneys at OGC below) and challenges (student loan crisis, major acquisition transactions for our institutions, etc.) in 2007, but hopefully we have hit the theme of consistency -- of consistently serving our clients. As we prepare to open 2008, new challenges await -- increasing scrutiny in ethics and conflicts of interest for higher education, doing more with less as government funding of higher education stagnates or declines and more we can't even guess at right now. Nevertheless, I'll borrow another pop-culture phrase to close, "We're here and we will keep the lights on."

New Attorneys at OGC

New UT System Initiative to Maintain Copyright Compliance in the Provision of Electronic Access to Course Materials

Earlier this fall, UT System academic and legal officers and library directors within the UT System began a project to help campuses more efficiently manage copyright compliance in the delivery of, or the provision of access to, digital academic course materials. Currently, course materials are delivered through diverse channels, including electronic course management systems (such as Blackboard and WebCT), library electronic reserve systems, individual and departmental Websites, and paper and electronic coursepacks. The UT System policy on the use of copyrighted materials requires that permission must be obtained for uses that exceed the scope of "fair use," a construct of copyright law that permits, in certain circumstances, the limited use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship and research. See, e.g., UTS107 (Use of Copyrighted Materials). The current project seeks to address the practical problems in policy implementation and management of copyright compliance in a multi-campus, de-centralized environment.

The project seeks initially to raise awareness of the issue on the campuses and then to bring together a System-wide task force to study options for streamlining and integrating the "permission piece" of the campuses' course materials delivery systems. For example, each campus may deliver access to course materials in any number of ways, but the way permissions are handled could be the same for each method. Thus, it will be the task force's objective to make recommendations to the campuses regarding efficient and effective ways to enable consistent handling of the determination of when permission may be required. The task force recommendations may include roles that System might play, such as negotiating system-wide rights licenses.

The project's goal is for each campus to implement the task force recommendations to ensure effective and compliant course materials delivery operations.

The Bottom Line: Maintaining the University's commitment to copyright compliance requires an understanding of the new modes of delivering academic course materials, the teaching practices and preferences of UT's faculty, and a familiarity with copyright law and its evolution in the context of higher education. The task force, once constituted, will likely take 6-9 months to complete its work. Expect recommendations to the institutions around Fall 2008.

Data Security Issues in Purchasing and Contracting

As technology deployment and risks have changed, the everyday processes of UT System offices and departments have become more reliant on software and computer technology. This brings new partners for outsourcing, interdependencies and unfortunately, opportunities for data exposures. Even the printers we use everyday involve the transfer of digital data and have the potential to be accessed by unauthorized individuals. As technology deployment and associated risks change, appropriate controls on access to electronic data needs to be established in the form of contract language, required environment changes, audits, and data breach notification requirements. The System-wide policy on data security, UTS165, defines the responsibilities borne by every System office and department for purchasing and contracts that involve data sharing in that office or department, even if the purchase is a "low tech" such as the purchase of new software or a new handheld PDA for the boss. An "Owner" is defined in UTS165 as:

This is usually a department head or in case of a research project the principal investigator. The Owner has primary responsibility for identifying any security risks to UT System information that is created, stored or sent via UT System technology such as desk top computers, UT e-mail systems and network servers, and ensuring that these risks are mitigated. This process is commonly referred to as a "Risk Assessment." The policy clarifies that all "Owners" are responsible for conducting a Risk Assessment that ensures the security of the information that they "own."

Each institution has an Information Security Officer (ISO or CISO) whose is charged with oversight of the Information Security program for that institution. If an Office or Department at the institution plans to purchase any software or services having a technology component, UTS165 requires that the Owner in that Office or Department, or the Owner's designee, talk to their Institution's Information Security Office to help them conduct a risk assessment. The risk assessment must be designed to examine the potential risks and make sure proper precautions are in place as part of the purchasing and contracting process. Purchasing staff should make sure that an Office or Department that is preparing to engage in a purchasing project has made a determination as to whether the project involves any outsourcing of UT System data to a third party or the purchase of software from a third party. As the purchasing and contracting project evolves, the Owner and the purchasing staff should be on the lookout for the emergence of an information outsourcing or software acquisition component to the project. If one arises, the Information Security Office should be brought in immediately to help with a Risk Assessment that is then incorporated into the purchasing and contracting process for that project. These requirements should then be incorporated into the resulting purchase order, agreement or contract with the vendor.

Below is a list of Technology Pre-Purchase Consideration for "Owner" Departments/Offices to consider including in a purchasing project Risk Assessment:

Considering buying Hardware? "Hardware" is an actual physical device, such as a desktop computer, hard drive, LAN card or printer.

Considering buying Software? "Software" is computer instructions or data--anything that can be stored electronically. "Systems software" includes the operating system and all the utilities that enable the computer to function. "Applications software" includes programs that do real work for users. For example, word processors, spreadsheets, and database management systems fall under the category of applications software.

Considering Outsourcing/Hosted Solutions where institutional employees will be accessing a vendor's Software on the vendor's site?

Finally, as always, remember that the Office of General Counsel will be happy to assist you with any purchasing or contracting issues involving such purchases and acquisitions.

The Bottom Line: Make friends with your ISO or CISO. Think about IT and data security aspects BEFORE you begin any purchasing process and get your IT folks involved early and often!

Part-Time and Shared Use Lease Arrangements in the Health Care Industry

A growing number of health care providers are seeking to generate additional income and recover facility operating costs by entering into lease arrangements that grant the lessee the right, on a part-time basis, to the exclusive or shared use of all or part of the provider's facility, equipment and/or employees. A typical lease of this nature might, for example, grant to the lessee (i) the exclusive right to use a patient examination room and all equipment therein one afternoon a week; (ii) the right during that period to the shared use of the lessor's patient waiting area and employee break room; and (iii) the exclusive or shared use during such period of one or more of the lessor's employees, such as a receptionist, nurse or lab technician. Part-time, shared use lease arrangements of this nature would raise a number of significant legal issues under any circumstances. When one or both of the parties involved are health care providers, the federal and state statutes regulating fraudulent or abusive charges for federal or state insured health care services and the confidentiality of patient medical information can add additional levels of regulation and complexity to the transaction.

Regardless of whether the parties involved are health care providers, any lease involving the part-time or shared use of facilities and equipment should expressly allocate between the lessor and the lessee the right and duty during their respective periods of control to, among other matters, (i) insure against damage to property and injury or death of persons; (ii) maintain, repair, and replace the facility and equipment; (iii) alter or modify the facility and equipment; (iv) control access and other security arrangements for the facility; and (v) use or install telephone, computer, and other telecommunication services in the facility. If the lessor is subleasing premises that it holds as a tenant under a base lease, then the underlying base lease can create additional issues, such as a requirement that the base landlord consent to the sublease or the extent of the sublessee's right to order special services (such as after-hours HVAC or additional janitorial services) that the base landlord will charge to the sublessor under the base lease.

A lease that also involves the part-time or shared use of the lessor's employees creates other significant issues. Although the lease may state that the lessee has exclusive "use and control" of the lessor's employee(s) during the designated intervals of a part-time lease, the lessor will invariably want to retain the exclusive right to discipline, re-assign or fire its employees. Moreover, notwithstanding the purported "exclusive control" granted the lessee, the employee typically remains the employee of the lessor under these leases, as the employee is merely providing services to the lessee pursuant to the lessor's instructions, in the course and scope of the employee's work for the lessor. This means, for example, that the lessor will remain liable for workers' compensation claims arising during the lessee's "exclusive use" period. Likewise, if the lessor's employee is sexually harassed by the lessee, the fact that the harassment took place during the lessee's "exclusive use" period will not of itself shield the lessor from liability.

Other significant legal issues arise when at least one of the parties to a part-time lease provides health care services to patients insured under state or federal health care insurance programs such as CHIP, Medicare, Medicaid, or CHAMPUS and patients are referred to that party by the other party to the lease. The primary areas of legal concern in such situations are (i) the federal and state fraud and abuse statutes regulating charges for health care services, and (ii) the confidentiality of patient medical information.

Fraud and Abuse Concerns. The public policy underlying federal and state "fraud and abuse" statutes such as the federal Medicare and Medicaid Fraud and Abuse Act, the federal Ethics in Patient Referral Act (commonly known as the Stark statute), the Texas Patient Solicitation Act and various Texas worker's compensation statutes and regulations (see, e.g., Texas Labor Code §415.003) presumes that any compensation paid by a health care provider for the referral of patients will ultimately result in higher health care costs to the public, private insurers and governmental insurers. Accordingly, these statutes generally prohibit paying or receiving any compensation for the referral of patients insured under state or federal insurance programs and collectively establish both civil and criminal penalties for violations. Experience has shown that some health care providers have attempted to evade the prohibitions against patient referral fees by entering into leases of facilities, equipment and/or personnel that seek to disguise the payment of the referral fees as payments owing under the lease. Accordingly, federal and state regulatory agencies regularly scrutinize health care provider lease arrangements for illicit compensation schemes, and the federal government has declared as "suspect" lease arrangements that involve:

To assist health care providers in structuring leases that comply with the complex federal fraud and abuse statutes, the federal government has issued "safe harbor" guidelines for such leases in an effort to ameliorate the concerns of parties to such leases. (See, 42 CFR 1001.952(b), as amended.) Under these safe harbor guidelines, a lease must (i) be in writing and be signed by the parties; (ii) specify the premises/equipment covered by the lease; (iii) cover all of the premises/equipment leased between the parties for the term of the lease; (iv) be for a term of not less than one year; (v) have an aggregate rental charge set in advance that is consistent with fair market value in an arm's-length transactions and is not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made in whole or in part under Medicare, Medicaid, or other federal health care programs; and (vi) be limited in aggregate to the amount of space/equipment that does not exceed that which is reasonably necessary to accomplish the commercially reasonable business purpose of the rental. If the arrangement provides the lessee with access to the premises/equipment for only part-time or periodic intervals of time, then the lease agreement must also specify exactly the schedule of such intervals, the precise length of the intervals, and the exact rent for such intervals.

Because the federal government has declared "suspect" subleases at a rental rate higher than what the sublessor is paying under its own lease, to remain within the safe harbor a sublessee's rent should be based on (i) the ratio of the time the space is in use by the sublessee to the total amount of time the sublessor's office is in use, and (ii) the ratio of the amount of space that is used exclusively by the sublessee to the total amount of space in the sublessor's premises. The federal guidelines provide a formula that states: sublessor's rent per work day times the percentage of total office space rented to the sublessee times the percentage of the work day rented to the sublessee times the number of days rented by the sublessee over the year. For example, where a sublessee rents an examination room for four hours one afternoon per week, fifty two weeks a year, in a sublessor's office that consists solely of four examination rooms of equal size that are open for business eight hours a day, five days per week, and the sublessor's effective base rent is $100 per work day, the sublessee's annual rent under the safe harbor would be $650, calculated as follows:

When permitted by applicable regulations, the federal safe harbor guidelines also allow charging rent for interior office common spaces that are shared by the lessor and any sublessees, such as patient waiting rooms and physician break rooms. The charge for the common space must be apportioned among the lessor and all sublessees that use the interior office common space, based on the amount of non-common space they respectively occupy and the duration of such occupation. Payment for the use of office common space should not exceed the sublessee's pro rata share of the charge for such space based upon the ratio of the space used exclusively by the sublessee to the total amount of space (other than common space) occupied by all persons using such common space.

Similarly, where the lessor pays a separate charge for areas of a building that are shared by all tenants, such as building lobbies, it may be appropriate for the sublessee to pay a prorated portion of such charge. As with interior office common space, the cost of the building common space must be apportioned among lessor and all sublessees, based on the amount of non-common space they respectively occupy and the duration of such occupation.

While compliance with the safe harbor guidelines is not mandatory under the federal fraud and abuse statutes, compliance does provide comfort that the federal government will not re-characterize a lease as an illicit scheme to exchange compensation for patient referrals. Moreover, the federal safe harbor guidelines are incorporated by reference into the Texas Patient Solicitation Act and the Texas workers compensation regulations. Thus it is strongly recommended that covered health care providers structure leases in compliance with the federal safe harbor guidelines.

HIPAA Concerns. Whenever a person outside a health care provider's employ (such as a subtenant, the building landlord, or an outside janitorial service) has access to the offices of the health care provider, appropriate steps must be taken to ensure the protection of protected health care information under the Health Insurance Portability & Accountability Act of 1996. Under this statute, the Department of Human Services has adopted the "HIPAA Privacy Rule" (45 CFR 164.501), which establishes security requirements for all "protected health information" ("PHI"). PHI is defined as all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. HIPAA encompasses both the transmission of protected health information by covered providers and, under appropriate circumstances, non-care provider parties who, because of their job duties, might have access to protected health information. (For example, the subtenant that occupies the provider's premises on a part time basis, the building janitor who might read medical results thrown in a wastebasket, the building maintenance personnel who might rummage through patient files during after-hours maintenance work, etc.) Accordingly, both parties to any lease (whether full or part time) or other agreement allowing access to the covered provider's premises will want HIPAA-oriented provisions in the lease acknowledging the applicability of HIPAA to the arrangement and setting forth appropriate agreements concerning: (i) the respective obligations of the parties to implement appropriate administrative, technical and physical safeguards to protect the privacy of protected health information held by each; (ii) the conduct expected of a party in the event of a disclosure of protected health information to unauthorized persons; and (iii) as appropriate, the affirmation or denial of any "business associate" relationship between the parties, as that term is defined by the HIPAA Privacy Standards. From the covered provider's perspective, such agreements have the additional advantage of establishing a contract action for damages and/or contribution against the party what violated the agreement, which is significant since any suit by the patient for breach of the patient's PHI protections will be against the health care provider. Additionally, the regulations indicate that if an agreement allowing access to a covered provider's premises does not address HIPAA concerns, then the provider has a responsibility to terminate such agreement immediately.

The Bottom Line: The trend towards part-time subleases of facilities, equipment and personnel in the health care industry involves significant pit-falls for the unwary under applicable state and federal law. Inasmuch as the applicable statutes provide both civil and criminal penalties for violation, health care providers should undertake such arrangements only with a full appreciation and understanding of the application of law to the particular circumstances of their proposed transaction.

Institutional Impact of Federal Administrative Offsets

The Spring 2006 issue of The Foreseeable Future included an article about the state's warrant hold, or offset rights, under §403.055 of the Texas Government Code ("Use of the Warrant Hold as a Collection Tool"). The federal government has similar rights as provided in 31 U.S.C. §3716.

Once a federal agency complies with the notice and other requirements outlined in the statute, it can report a debt it is owed to the federal Department of the Treasury ("DOT") for an administrative offset. The DOT will seize any amounts owed to the debtor entity and apply them as a credit to the outstanding federal debt. A judgment or other definitive finding that the debt is valid is not required prior to performing the offset.

Within UT System, we have felt the impact of this right to offset as it relates to our group health plan, which provides coverage to our employees and retirees, and the plan's relationship with Medicare. Under 42 U.S.C. §1395y(b)(2)(B), several entities, including self-insured health plans and employers that contribute to or sponsor group health plans, may be required to reimburse Medicare in situations where Medicare "believes" it has paid for medical services in error. The current situations tend to revolve around medical services provided to employees who retire, but then return to work in some capacity. Depending on the number of hours the employee is appointed, Medicare may not be the primary coverage, even though the employee is Medicare eligible. Instead, the System health plan may have primary responsibility. Regardless, for various reasons, Medicare will sometimes pay in these situations.

Initially, the Centers for Medicare and Medicaid Services ("CMS") should send a notification that a payment has been made in error, either to the System Office of Employee Benefits ("OEB") or perhaps to the employing institution's human resources department. The notification is lengthy, demands reimbursement, and explains the dispute process. If this notice is ignored or misdirected, the ramifications can be significant. Although CMS may send a series of subsequent notices, it may eventually report the debt to the DOT, and an offset will occur if the debt is not paid or otherwise resolved. Prior to the referral for offset, CMS should send a Notice of Intent to Refer to the institution or to OEB.

Unfortunately, the offset may be made against federal funds owed to a department within the employing institution that has no involvement with the benefits process. Because of the impact of such an offset, it is imperative that all institutions treat these CMS notices with special care. If a CMS demand for reimbursement is received, OEB should be contacted immediately to assist with a response. If a Notice of Intent to Refer is received, the Office of General Counsel, Claims & Bankruptcy Section, should be contacted immediately.

The Bottom Line: Any demand for payment from CMS should be handled with care, and System OEB or OGC should be contacted for assistance.

Code Red Task Force Legislative Report - Part 2

In July, 2004, the ten major Texas academic health centers, including the six University of Texas health institutions, sponsored the Task Force for Access to Health Care in Texas to analyze access to health care and health insurance issues in Texas.

Nineteen Task Force members, including four from University of Texas health facilities, as well as representatives from other academic health centers, small and large businesses, insurers, consumers, and non-academic health care providers, deliberated for 18 months and released their final report, "Code Red: The Critical Condition of Health in Texas" on April 17, 2006.

The University of Texas System's Executive Vice Chancellor for Health Affairs, Dr. Kenneth Shine, served as Senior Advisor to this Task Force and Amy Shaw Thomas and Maggie Floores from the System's Office of Health Affairs served as staff members.

The Task Force report decried our state's growing chasm between health needs and the availability of affordable health insurance and outlined ten major recommendations as proposed solutions to this challenge.

The Summer 2007 issue of The Foreseeable Future summarized the legislative activities from the recently concluded 80th Texas Legislature on the first five recommendations. This article will highlight recommendations six through ten. (More detailed analyses of these healthcare bills are available on the OGC Website under the Legislative Summaries link).

Recommendation Six: Health Care institutions and other providers must contribute to increasing community based ambulatory care, which includes integrating the latest developments in disease management and other cost effective models of health care delivery that seek to to improve the quality of patient care while decreasing the cost of care. Behavioral health (both mental health and substance abuse) services should be accessible to all Texans with mental illness and additional public funding should be appropriated.

HB 1 expands STAR+PLUS, in which Medicaid clients, their family and providers work together to help clients coordinate traditional health care (regular doctor visits), long-term care and community support services, and provides increased Medicaid funding for a projected caseload growth. As noted previously, SB 10 extensively reformed Medicaid.

HB 2439 clarifies the roles and responsibilities of local MHMR authorities to ensure open access for consumers.

Recommendation Seven: Texas must increase investment in the education and training of health professionals who will provide a significant amount of care to the uninsured and underinsured. HB 1 increased funding in graduate medical education, the professional nursing shortage program, and the Joint Admission Medical Program.

SB 156 and 138 enhanced programs for nursing and allied health, while SB 138 also established incentive programs for nursing student retention and graduation. HB 3443 established a program for hospital based nursing education partnerships. SB 139 authorizes a study to improve nursing curricula. SB 10 directs the Texas Healthcare Policy Council to study increasing the numbers for medical residents and the medical residency programs.

SB 201 grants tuition exemptions to nursing preceptors and their children; SB 289 requires grant funds from the professional nursing shortage reduction program to hire preceptors and part-time faculty for clinical nursing instruction. SB 992 extends the use of tobacco fund settlement monies to support nursing schools.

The legislature passed SB 1234, which created a comprehensive higher education master plan, and Governor Perry vetoed it.

Recommendation Eight: Implementation of an integrated approach to school health including an emphasis on nutrition, exercise, dental health and disease management of such problems as asthma. Expansion of the School Breakfast Program, increase of physical activity requirements to 60 minutes a day in Texas schools, and adoption of asthma management education for affected school children and support staff will improve the health of Texans.

SB 530 increases the requirements for student physical activity and physical assessments. HB 3618 coordinates health programs for ISDs (independent school districts) in the border region.

For disease management and prevention of diabetes, which is an increasing problem among school-aged children, HB 3735 expands the diabetes demonstration pilot program, SB 415 establishes the Type Two Diabetes Risk Assessment Advisory Committee under the aegis of UT Pan American, HB 2132 creates a diabetes registry, SB 556 creates an interagency obesity council, while HB 1373 establishes the Chronic Kidney Disease Task Force.

Recommendation Nine: Academic health institutions, state and local governments, and communities, foundations, and the private sector should support the development of health science center research programs to study cost effective health care and other characteristics of a high quality and efficient health system.

HB 14 details the most comprehensive and ambitious cancer research plan in the nation in the Cancer Prevention and Research Institute of Texas. HB 14 will only take effect if voters approve constitutional amendment HJR 90, which authorizes general obligation bond issuance.

HB 1188 increases the investment vehicles available to provide awards for innovative research in higher education from the Texas Emerging Technology Fund.

Recommendation Ten: Texas should adequately invest in public health programs, including research and community health, at the state and local level.

SB 10 incentivizes healthy lifestyle choices for Medicaid recipients. Several other bills noted in this article also relate to this recommendation.

HB 1 provided funding for Schools of Public Health expansion and special items to address public health issues and Governor Perry deleted those sections with line-item vetos.

The Bottom Line: Dr. Shine of the UT System states: "The Task Force for Access to Healthcare in Texas can point to a number of legislative achievements in the 80th Texas Legislature which take effect immediately. As for the future, the pilot programs and feasibility studies under SB 10 will hopefully result in permanent future programs. Further, SB 10 maintains the Medicaid Reform Legislative Oversight Committee and creates a Health and Human Services Transition Legislative Oversight Committee, which will recommend additional future legislation to address these recommendations."

Fall 2007

In This Issue

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