Singularity Health Law Blog

SCOTUS REELS IN “STATE ACTION” ANTITRUST IMMUNITY DEFENSE

The United States Supreme Court, in a unanimous opinion written Justice Sotomayor, overturned an Eleventh Circuit Court of Appeals and Georgia District Court finding “state action” antitrust immunity in the case of FTC v. Phoebe Putney Health System, Inc. et al, No. 11-1160. Had they ruled otherwise there would have opened a huge whole in the FTC’s ability to regulate anticompetitive conduct by state sub-entities under a general grant of state authority. Georgia like many states has a hospital authorities law that permits counties and or municipalities to create quasi governmental entities with broad grants of powers to operate health care facilities.

HAZARDS OF “CLONED” MEDICAL RECORDS.

One of the “advantages“of computerized medical records is the easy ability in some programs to develop templates for the development of physician history and physicals and other documentation requirements for billing Medicare and other third party payors for services provided or in some cases not provided in order to increase payments. According to a recent article in the New York Times there has been a substantial increase in Medicare payments as the result of computer based upcoding of Medicare payment requests due to the cut and paste of various unrelated medical records to develop documentary support for higher levels of reimbursement.

 

TOP Ten Health Issues (2012)

Bloomburg/BNA just published its annual list of ten top health issues for 2012.  Not surprisingly Health Care Reform Uncertainty and the Supreme Court top the list.

Top 10 for 2012

1. Uncertainty reigns as providers and payers attempt to implement a health care reform law that could be invalidated in whole or in part by the U.S. Supreme Court.

2. Fraud and abuse concerns proliferate with reform-related collaboration through such vehicles as accountable care organizations and a demonstrated government interest in pursuing fraud at the individual, as well as corporate, level.

3. Changes to Medicare payment and administrative and funding challenges for Medicaid programs continue.

4. Threat of government antitrust enforcement exposes provider consolidation risks.

5. Quality continues to underpin third-party payment reform.

6. Final privacy and security rules keep health information hot.

7. The health plan regulation arena is dominated by the Affordable Care Act health insurance reforms.

8. Unionization initiatives and a partisan National Labor Relations Board create labor and employment challenges.

9. Implementation of the Affordable Care Act's additional requirements for tax-exempt hospitals (including patient financial assistance requirements and mandatory community health needs assessments) burdens IRS and providers alike.

10. Corporate governance concerns intensify with compliance and enforcement risks.

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: Number 4.

This is a series describing the ten important pro-immunity peer review cases where court have granted immunity to peer reviewers under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”).

No. 4:   Austin v. McNamera, 979 F.2d 728 (9th Cir., 1992)

Dr. George Austin was a neurosurgeon who received medical staff privileges at Santa Barbara Cottage Hospital. Dr. McNamera was the Chief of Staff at Cottage Hospital. Dr. Austin complained that he was attacked by other members of the medical staff in front of nurses and that other neurosurgeons at the hospital refused to cover for him. The medical staff commenced an investigation of his cases by members of the medical staff and two outside reviewers. The outside reviews were generally favorable to him despite some limited reservations. Three days after HCQIA  became law, Dr. McNamera summarily suspended Dr. Austin for seven months.  During his suspension he continued his practice at other local hospitals where his privileges remained intact. 

10 CRITICAL PRO IMMUNITY PEER REVIEW CASES: Number 9

This is a series describing the ten important pro-immunity peer review cases where court have granted immunity to peer reviewers under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”).

No. 9: Sugarbaker v. SSM Health Care, d/b/a St. Mary’s Health Center,  190 F. 3rd 905 (8th Cir. 1999)

Dr. Sugarbaker was general surgeon practicing in Jefferson City, Missouri in 1995. A member of the medical staff raised concerns about his surgical technique and timing and he received a precautionary suspension of his privileges when he refused to refrain from practice voluntarily.  His performance was reviewed by a number of committees and although the executive committee sought to permanently terminate him, other committees opted for restrictions and monitoring. He eventually lost all of his privileges in 1999 when he refused to abide by the conditions imposed on him.

 

PPACA : 60-DAY TICKER REFUNDING MEDICARE OVERPAYMENTS.

 During the course of a compliance audit a Medicare overpayment issue arises when the auditor determines that the documentation for certain CPT codes is inadequate to justify  billing for the same. What to do and when to do it?  There is of course an obligation to return funds that constitute an overpayment by the government.  The Patient Protection and Accountable Care Act (“PPACA”) Section 6402(D)(2) provides that the money must be returned within 60 days after the date on which the report was identified; or the date any corresponding cost report is due. Failure of comply with the time frame under the PPACA can of course lead to False Claims Act liability.

STATE MEDICAL BOARDS IGNORE HOSPITAL SANCTIONS?

Public Citizen, a consumer “watch dog” founded by Ralph Nader in 1971, recently issued a report critical of state medical boards for their failure to follow up on physicians disciplined by hospitals and reported to the National Practitioner Data Bank. Public Citizen did a study of 10,672 physicians “banked”  during 1990 through 2009 from data provided by the NPDB. There were a total of 10,672 physicians reported during the period, but only 45% of those had one or more state licensure action as well.

HOME HEALTH GAMING MEDICARE?

Shocking though it might be, the U.S. Senate Finance Committee discovered recently that companies primarily organized to provide home health care services to Medicare recipients tend to tailor their care to meet government payment incentives. The care tends to follow the money to the surprise of almost no one except perhaps the finance committee. Three large home health companies and their patterns of distribution of services were reviewed by the committee. The committee found that Gentiva Health Services, Amedisys,Inc.,  and LHC Group, Inc. encouraged employees to make enough home visits to trigger incentive bonus payments offered by the government.  

 

SMILE: HOSPITAL PHOTO BANNED UPHELD BY NLRB

Given the ubiquity of cell phone cameras, it is not an infrequent experience for relatives visiting patients in hospitals to take pictures of the patients, nurses and others present in the facility.  Doctors and nurses have even been known to pose with patients for group photos.  In 2007, Flagstaff Medical Center in Flagstaff,  Arizona became concerned about the use of cameras in the hospital and banned the “use of cameras for recording videos of patients and/or hospital equipment, properties or facilities.

 

SEX OFFENDERS IN NURSING HOMES.

There is a lot of news this week about sex offenders in nursing homes. In Boston, MA, the State Supreme Judicial Court determined that a Mass. law prohibiting registered sexual offenders from living in nursing homes was unconstitutional as applied to a certain “John Doe” because it did not permit him to demonstrate that he was not risk to safety of the other 11 residents.  Mr. Doe was a level three (most serious) offender convicted of abusing two young boys in 1992. He is 65 years old and suffers from Asperger’s disorder, glaucoma, heart attacks, seizure disorders, poor hygiene and “disorganized communication.”