Health Care Law Questions and Answers
(Note: These health care law questions and answers have been published
in the "Ask the Professionals" section of the Orlando Business
Journal. Please consult the Orlando Business Journal for the latest
one.)
Question 1:
I recently received a letter from the President of the Medical Staff
at a hospital where I hold clinical privileges. It referred to an incident
in which I had a disagreement with another physician over a procedure
that was being considered from a patient upon whom we are both consulting.
The letter makes references to my causing "disruptions" in
the hospital and warns me about not being a "disruptive physician."
Should I be concerned about this?
Answer 1:
Yes. You should be very concerned. If you are labeled as a "disruptive
physician" this could lead to an attempt by the hospital to revoke
your medical staff membership and hospital privileges. It could also
result in a report being made to your state licensing board and disciplinary
action being taken against your license. It could also cause the state
impaired physicians program (known as the Professionals Resource Network
or "PRN" in Florida) to attempt to force you into its program
for disruptive physicians; this is onerous, expensive and carries a
great stigma with it. You should take action to document the correct
facts in this situation in order to keep your record clean.
We expect to see more of these types of allegations in the future,
as a result of recent publications by the Joint Commission on Accreditation
of Healthcare Organizations (JCAHO). On July 9, 2008, JCAHO issued Sentinel
Event Alert, Issue 40, entitled "Behaviors That Undermine a Culture
of Safety." It states, in part:
Intimidating and disruptive behaviors can foster medical errors,
contribute to poor patient satisfaction and to preventable adverse
outcomes, increase the cost of care, and cause qualified clinicians,
administrators and managers to seek new positions in more professional
environments. Safety and quality of patient care is dependent on
teamwork, communication, and a collaborative work environment. To
assure quality and to promote a culture of safety, health care organizations
must address the problem of behaviors that threaten the performance
of the health care team.
We are also aware of incidents in which labeling someone as a "disruptive
physician" has been used in a retaliatory or unfair way. We are
aware of the economic competitors of a physician using the "disruptive
physician" label to attempt to eliminate a competing physician.
We have also encountered hospital administrators advising nursing staff
to look for and write up a physician for any possible incident in an
attempt to have his medical staff membership revoked.
Any correspondence, warning, letter or counseling a physician receives
that mentions the word "disruptive" or makes such an insinuation,
should be taken very seriously by the physician. It should be responded
to immediately, with facts, in an objective and dispassionate manner
without attempting to "blame" anyone else. When in doubt,
consult with an experienced board certified health law attorney.
back to top
Question 2:
I am a registered nurse. I have received a letter from the Florida
Department of Health (DOH) advising me that a complaint has been filed
against my license and that I am being investigated for this. The letter
requests that I contact the DOH investigator to give her my side of
the story and also requests that I send the investigator my resume or
CV. Should I do this? What should I do?
Answer 2:
This is a serious matter. The investigation may result in formal proceedings
in which permanent disciplinary action is taken against you. This could,
in turn, result in elimination of job opportunities, loss of employment,
loss of professional liability insurance, being disqualified from hospital
positions, being disqualified from working for anyone taking Medicare
or Medicaid, disciplinary action being taken against your professional
license(es) in other states, and other actions.
You should not call the investigator or send in a written statement
of any type. Any statement you make, oral or written, can be used against
you to prove a charge or part of a charge.
You should immediately consult with or hire an experienced
health attorney who is familiar with DOH investigations and has been
involved with actions by your professional board.
If you have professional liability insurance you should notify your
insurer and ask if your insurance company will pay for your legal expenses
in connection with the investigation. Many professional liability insurance
companies will do this. Nurses Service Organization (NSO) Insurance
and Health Professionals Service Organization (HPSO) Insurance are two
such examples.
If you are unable to hire an attorney, you should write a letter to
the DOH Investigator and request that a complete copy of the investigation
be provided to you when it is finished. You should also state that you
may desire to make a statement or submit additional documents
before the case goes to the probable cause panel, after reviewing the
investigation. Send this letter by certified mail, return receipt requested,
and keep a signed, dated copy of it. You have a right under Florida
law to do this. Do not state anything else in your letter requesting
a copy of the investigation.
If the investigator contacts you directly (by telephone, by letter
or in person) tell the investigator you do not desire to make a statement
at this point in time and that you are considering obtaining an attorney
to represent you. Do not let the investigator provoke you into making
any statement of any kind. Do not chit chat with the investigator. She
is not your friend.
We cannot overemphasize the importance of attempting to obtain legal
representation by an appropriately qualified and experienced attorney.
Such an attorney may be of great assistance in obtaining a dismissal
of the case by the probable cause panel or in negotiating a favorable
settlement of the case.
Furthermore, in certain types of investigations, the DOH may be attempting
to obtain an emergency suspension of your license. This is usually the
case if the investigation involves allegations of drug abuse, alcohol
abuse, mental impairment, sexual abuse, unpaid student loans or fraud.
If there is an emergency suspension of your license, your professional
license will be suspended (and you will be unable to work in that profession)
until the entire matter is completed and finalized, which may be a year
or more, even if you are found to be innocent. An experienced attorney
may help prevent this from occurring.
Again, even the most innocuous response on your part could be used
against you to prove part of the charges against you. Do not fall into
this trap.
back to top
Question 3:
What is the difference between "direct supervision" and
"indirect supervision" of medical personnel by a physician?
Answer 3:
Direct and indirect supervision are terms referring to how closely
a physician is required to supervise his or her employee (usually an
advanced registered nurse practitioner (A.R.N.P.), physician assistant
(P.A.), medical assistant or other medical personnel. These terms usually
acknowledge the experience and skills of a particular medical staff
member and their ability to function and make medical decisions independently.
They are also used to determine the appropriateness of paying for a
certain procedure or service performed by that individual or the amount
of payment, by Medicare, Medicaid or third party insurance companies.
Rule 64B8-2.001 (1), Florida Administrative Code (F.A.C.), a state
rule (or "regulation") enacted by the Florida Board of Medicine,
defines the different levels of supervision in reference to doctors
of medicine (M.D.'s).
Rule 64B8-2.001 (1) (a), F.A.C., defines "direct supervision"
as follows:
(a) "Direct supervision" shall require the physical presence
of the supervising licensee on the premises so that the supervising
licensee is reasonably available as needed. When this term is used
in probationary terms of a Final Order, it requires that the licensee
practice medicine only if the approved supervisor is on the premises.
In other words, the term "direct supervision" usually means
that the supervising physician must be present on the premises (i.e.,
in the same building) so that he or she is immediately available to
answer questions or otherwise respond.
Rule 64B8-2.001 (1) (b), F.A.C., defines indirect supervision as follows:
(b) "Indirect supervision" shall require only that the
supervising licensee practice at a location which is within close
physical proximity of the practice location of the supervised licensee
and that the supervising licensee must be readily available for consultation
as needed. "Close physical proximity" shall be within 20
miles or 30 minutes unless otherwise authorized by the Board.
Technically, these definitions adopted by the Florida Board of Medicine
can only apply to medical doctors and other medical personnel regulated
by the Board of Medicine practicing in Florida. However, these definitions
are similar to those adopted in Medicare Guidelines applicable to all
health care professionals who are Medicaid providers. Additionally,
in the absence of similar rules adopted by other professional boards
(e.g., Board of Osteopathic Medicine, Board of Chiropractic Medicine,
etc.), state and federal regulators and insurance companies may look
to these definitions for guidance.
For example, in Florida an unlicensed medical assistant may perform
a number of acts and provide a number of services that appear to be
medically related, provided these are performed under the direct supervision
of a physician. Section 458.3485(2), Florida Statutes, sets forth these
as follows:
DUTIES.--Under the direct supervision and responsibility of a licensed
physician, a medical assistant may undertake the following duties:
(a) Performing clinical procedures, to include:
1. Performing aseptic procedures.
2. Taking vital signs.
3. Preparing patients for the physician's care.
4. Performing venipunctures and nonintravenous injections.
5. Observing and reporting patients' signs or symptoms.
(b) Administering basic first aid.
(c) Assisting with patient examinations or treatments.
(d) Operating office medical equipment.
(e) Collecting routine laboratory specimens as
directed by the physician.
(f) Administering medication as directed by the
physician.
(g) Performing basic laboratory procedures.
(h) Performing office procedures including all
general administrative duties
required by the physician.
(i) Performing dialysis procedures, including
home dialysis.
Section 458.3485(1), Florida Statutes, enclosed herein, defines a medical
assistant as follows:
DEFINITION.--As used in this section, "medical assistant"
means a professional multiskilled person dedicated to assisting in
all aspects of medical practice under the direct supervision and responsibility
of a physician. This practitioner assists with patient care management,
executes administrative and clinical procedures, and often performs
managerial and supervisory functions. Competence in the field also
requires that a medical assistant adhere to ethical and legal standards
of professional practice, recognize and respond to emergencies, and
demonstrate professional characteristics.
For further guidance as to the Medicare Program's requirements, you
may desire to refer to 42 CFR Section 411.355(a)(ii), 72 Fed. Reg. p.
51088 (Sept. 5, 2007) and Medicare Program Memorandum Carriers Transmittal
B-01-28 (April 19, 2001), which discuss the level of supervision required
for certain services paid for by Medicare.
back to top
Question 4:
I am a doctor contemplating an employment relationship with a hospital.
A representative of the hospital sent me a "Physician's Employment
Agreement". I was told to sign it if I agree to it. I read it and
was somewhat confused by the wording. I have been talking to a representative
of hospital about the requirements of the job being offered to me and
I would like to work for this hospital. Should I sign the agreement
even though I have not had an attorney review it?
Answer 4:
No. A "Physician's Employment Agreement" is a legally enforceable
contract. Your signature on the contract is an expression of your agreement
to comply with all of the contract's terms and conditions. A court of
law will enforce those terms against you even if you later contend the
terms were poorly worded, confusing, or you did not read them. The person
with whom you have been speaking may be a lawyer or may have legal experience.
Regardless, he will be representing the hospital's interests and will
not have your best interests in mind.
Often the agreement drafted by the hospital is tailored to address
the hospital's objectives and concerns about the proposed employment
relationship rather than your specific objectives and concerns and may
be completely one-sided. Consultation with an experienced health care
attorney will help you understand both the practical and legal meaning
of the language in the contract. In turn, this will enable you to negotiate
a better terms concerning important issues such as compensation, bonuses,
extra duties, benefits, standing call, time off for continuing education,
reimbursement of expenses, coverage, and relief in the event the job
does not work out. You should, with the help of an experienced attorney,
negotiate the best terms you are able, to protect your interests in
the event the relationship breaks down at a later point in time.
You should always:
- Have any significant contract or agreement reviewed by a health
care attorney with experience in such matters.
- Ensure that the wording of the contract exactly and clearly represents
what you were promised orally.
- Assume that every part of the contract will be enforceable against
you despite promises or rumors to the contrary.
- Be sure all blanks are completely filled in and all forms,
documents, schedules and exhibits are attached to it before
you sign it.
- Be sure you receive a copy of any and all regulations, policies,
procedures, rules, handbooks, codes of conduct, bylaws, or other documents
referenced in the agreement, and review these, before you sign
it.
- Keep a signed, dated copy of the complete agreement.
- Receive back a copy of the agreement, signed and dated by the hospital,
before you start work.
back to top
Question 5:
I am a physician. I received a letter from the Department of Health
(DOH). It contained an administrative complaint about my care of a patient.
It also contained a statement saying I could request a formal hearing
or an informal hearing, and a proposed "consent agreement"
in which I would agree to receive a fine. Should I agree to this and
the informal hearing?
Answer 5:
No. Since your case has gotten this far, it is a serious matter. If
you choose an informal hearing, you are agreeing that all facts in the
administrative complaint are true and you are guilty of the allegations;
the only issue left undecided is what your punishment is to be. You
may have good defenses that could be raised in a formal hearing and
you have procedural rights which may result in dismissal of the case.
Also, in a formal hearing, the state agency has the burden of proof
and may not be able to prove the allegations. Even if you do not decide
to pursue the formal hearing, a better deal may be negotiated with DOH
or you may submit additional evidence and request a reconsideration
of the case by the probable cause panel. Since any disciplinary action
taken against your license will be reported to the National Practitioner
Data Bank and will be on file forever, you need the advice of an experienced
health care attorney in making this decision.
back to top
Question 6:
I am a physician. I received a letter from the Department of Health
(DOH) indicating it has issued an emergency order to suspend my license
to practice medicine. Can it do this? What should I do?
Answer 6:
The Secretary of the DOH has the authority to suspend your license
to practice medicine on an emergency basis for a number of different
reasons, usually related to safety of patients. These are often used
if the physician is found to be impaired from drug or alcohol abuse.
An emergency suspension order (ESO) may be used to force the physician
to undergo a physical or mental examination. DOH may issue an ESO if
a physician pleads guilty to, is convicted or found guilty of, or enters
a plea of nolo contendere to a felony, or if a physician has defaulted
on a student loan issued or guaranteed by the government. An ESO is
a public record that is published in newsletters and released to the
media. There are alternatives to ESOs that may keep the matter confidential.
Also, ESOs may be challenged in court proceedings. If you suspect that
DOH may issue an ESO, you should immediately hire an experienced health
care attorney to begin working on your case. Your attorney may be able
to help avoid an ESO or to expedite having your license reinstated.
back to top
Question 7:
I am a physician. I received a letter from my hospital peer review
committee advising me that I was being investigated for concerns that
it had about my medical care and advising me of a meeting that I should
attend to answer questions. What should I do?
Answer 7:
This type of letter is usually the first step in a process to take
adverse (or "disciplinary") action against you in relation
to your clinical privileges and medical staff membership at the hospital.
This may result in a lengthy, costly "peer review" or "fair
hearing" in the hospital followed by an even longer legal battle.
It may seem minor to you, but the hospital staff or one or more other
physicians involved may consider the matter to be very serious or to
indicate a "trend" that needs to be stopped. Adverse findings
made by such hospital proceedings are reported to the National Practitioner
Data Bank and remain on file forever, haunting the physician throughout
his/her career. It is important that you immediately seek the advice
of a health care attorney who has experience in hospital credentialing
issues and who routinely represents physicians in such hearings. This
particular subject is fraught with peril and even a senior, experienced
attorney who has not been involved in these before will be at a notable
disadvantage.
back to top
Question 8:
I am a physician. I received a letter from an investigator advising
me that a complaint had been filed against me and asking me to make
a statement explaining my side. Should I send the investigator my statement
telling my side of the story?
Answer 8:
No. You should not speak with the investigator. Although you may have
a very good, logical explanation, you should never communicate directly
with an investigator in such a case. Your statement can and will be
used against you and serve as proof of certain issues that might not
be proved otherwise (such as the fact that you saw a certain patient,
that you prescribed a certain medication, that you did or did not do
certain things, etc.). Additionally, you may have inadvertently violated
a law or regulation that you did not even know existed (such as advertising,
billing or solicitation regulations). The fines authorized by law for
infractions by health professionals have recently increased to $10,000
per incident and may also include suspension or revocation of your license.
What may seem to you to be only a "minor" event may actually
be viewed as much more serious by members of your professional board.
We recommend that you not respond to the investigator but that you immediately
hire an experienced health care attorney to advise you and respond on
your behalf if called for. Don't wait.
back to top
Question 9:
I am a medical doctor with a solo practice. I have been told I should
incorporate my practice as a professional association by some, and as
a limited liability company by others. What is the best structure for
my medical practice?
Answer 9:
Your medical practice should be organized as some business entity that
limits your liability. Both the professional association and the limited
liability company limit the personal liability of owners. Most medical
practices are organized and operate successfully as professional associations.
However, if the practice owns significant assets in the form of real
estate or other property, which is often the case with medical practices,
we recommend the formation of a limited liability company for those
assets. A limited liability company may provide tax advantages when
assets such as real estate appreciate in value.
back to top
Question 10:
I have heard that there are new Medicare regulations which required
physician groups that perform diagnostic testing, such as radiographic
studies, to become licensed as Independent Diagnostic testing Facilities.
Is this correct? If so, when does this requirement go into effect?
Answer 10:
In 2007, Medicare proposed requiring physician practices that perform
diagnostic testing to comply with most of the enrolment requirements
Independent Diagnostic Testing Facilities are required to satisfy in
order to bill for diagnostic tests provided to Medicare beneficiaries.
Medicare recently deferred the implementation of that requirement on
physician practices so physician practices are not currently required
to enroll in Medicare as IDTFs, as of December 10, 2008.
Medicare is developing an accreditation process for physician practices
that perform advanced diagnostic testing. Physician practices performing
advanced diagnostic procedures need to consult with their health law
attorneys to ensure their practices remain complaint with the Medicare
requirements.
Mobile testing is another area that concerns Medicare. Physician practices
should reexamine their lease agreements to ensure that they are not
inadvertently contracting with a mobile testing facility.
Question 11:
What are the Medicare "Anti-Markup Rules" and what do they
prohibit?
Answer 11:
This is a Federal Regulation which governs the amount that the Medicare
Program will pay a health care provider as reimbursement for certain
diagnostic tests which the provider purchases. The new Federal Regulation
goes in to effect on January 1, 2009.
Physicians are permitted to bill Medicare for diagnostic tests performed
by the physician, another physician in the ordering physician's office,
or by personnel that are supervised by the ordering physician or another
physician in the ordering physician's office. Medicare will pay up to
the Medicare fee schedule amount for these diagnostic tests.
Physicians are also permitted to bill Medicare for purchased diagnostic
tests (excluding clinical laboratory tests). However, the billing physician
must bill Medicare the lower of the physician fee schedule, or the actual
amount the billing physician paid for the purchased diagnostic test.
Over the last few years, Medicare has seen a significant increase in
the number of arrangements whereby physicians were able to significantly
expand their traditional practices to include diagnostic testing. Medicare
has expressed its concerns that many of those arrangements result in
overutilization and abuse of the Medicare trust fund so Medicare made
significant changes to the Medicare anti-markup provisions found in
the Federal Regulations that become effective on January 1, 2009.
Under the new anti-markup provisions, physician groups may still bill
Medicare for diagnostic test the physician group orders if the physician
group performs those tests. However, if any portion of the test is performed
or supervised by a physician that does not "share a practice"
with the ordering physician, then the test is a "purchased test"
and the anti-markup provisions apply.
A physician shares a practice with the billing physician, for the purposes
of the anti-markup provisions, if the arrangement satisfies one of the
following two (2) alternatives. Alternative one, the physician performing
or supervising the diagnostic test shares a practice with the billing
physician if the performing or supervising physician furnishes substantially
all of his or her professional services through the billing physician's
practice. Alternative two, the physician performing or supervising the
diagnostic test shares a practice with the billing physician if the
technical component of the test is performed and supervised, or the
professional component of the test is performed, in the office of the
billing physician. The office of the billing physician is the office
where the ordering physician provides substantially the full range of
patient care services that the ordering physician generally provides.
Physician groups should have their arrangements for diagnostic testing
reviewed for compliance with the anti-markup provisions of the Federal
Regulations on Medicare before the January 1, 2009, effective date.
back to top
Question 12:
What are "Recovery Audit Contractor Audits" (RAC Audits)
and should I be concerned about them?
Answer 12:
The Centers for Medicare & Medicaid Services (CMS), the federal
agency with authority over the Medicare Program, advised that it took
administrative measures to in its "comprehensive efforts"
to identify "improper Medicare payments and fight fraud, waste
and abuse" in the Medicare program by awarding a number of contracts
to four permanent Recovery Audit Contractors (RACs) designed to "guard
the Medicare Trust Fund."
We consider this nothing more than an attempt by the federal agency
to avoid its legal duties by contracting with private corporations to
do what it should be doing. RAC's are often referred to as "headhunters"
or "bounty hunters" because they are paid a percentage of
what they recover for the government.
RAC Audits are specialized Medicare audits that originally began as
a demonstration or pilot program. Because the demonstration program
resulted in over $900 million in Medicare payments being returned to
the Medicare Trust Fund between 2005 and 2008, at no cost to the government,
CMS has decided to expand this program.
The RAC Program was developed by Medicare to identify "improper"
Medicare Payments not detected using previously existing error detection
and prevention program efforts. Section 302 of the Tax Relief Health
Care Act of 2006 made the RAC program permanent and required its expansion
to all 50 states. By 2010, CMS plans to have four major RACs in place
that are responsible for identifying overpayments and underpayments.
On October 6, 2008, CMS announced the names of the four new national
RACs. The new RACs are:
(1) Diversified Collection Services, Inc. of Livermore, California.
Region A, initially working in Maine, New Hampshire, Vermont, Massachusetts,
Rhode Island and New York.
(2) CGI Technologies and Solutions, Inc. of Fairfax, Virginia.
Region B, initially working in Michigan, Indiana and Minnesota.
(3) Connolly Consulting Associates, Inc. of Wilton, Connecticut.
Region C, initially working in
South Carolina
Florida
Colorado
New Mexico.
(4) Health Data Insights, Inc. of Las Vegas, Nevada. Region
D, initially working in
Montana
Wyoming
North Dakota
South Dakota
Utah
Arizona.
It is reported that additional states will be added to each RAC region
in 2009.
How are RAC Audits different from regular Medicare audits by CMS or
its regional carriers? RAC Contractors are paid on a contingency fee
basis. RACs are financially motivated to go out and find errors. RACS
can draw on HPMP and CERT methodology and data. RACs are now permanent
and will develop an automated, ongoing denial system.
How do RACs operate? RAC's conduct audits by reviewing medical data
and billing data. They rely on "automatic" and computerized
reviews as opposed to complex medical reviews and complex billing analysis.
An "automatic review" is a computerized analysis of claims
and coding practices utilizing existing databases. These reviews identify
errors such as duplicates in billing and the inappropriate bundling
or unbundling of claims. "Complex medical reviews" are a method
by which billing and coding experts review samples of medical records
and billing documentation. These reviews identify billing errors and
also lead to denials in payment based upon assertions of "no medical
necessity" and "incomplete documentation." RACs will
utilize presently-existing auditing procedures and will, therefore,
have an infrastructure to complete audits and demand overpayment from
their first day of operation.
RACs determine whether documentation for medical services provided
meet the Medicare Guidelines for payment and whether the services are
medically necessary.
How can you prepare for a RAC Audit? Consider moving toward and adopting
Electronic Medical Records (EMRs). Make sure your billing staff (either
internal or external) is properly qualified, trained and provided with
continual training/updates. Utilize certified billing and/or coding
experts on a yearly or biennial schedule to ensure compliance, update
templates and train staff. If you are notified of an audit, immediately
contact experienced health care counsel to begin representing you.
Remember, RACs are paid to find errors and alleged overpayments, not
to be fair and objective.
|
