Singularity Health Law Blog

“DEATH PANELS” REDUX

CMS indicates that it is again considering compensating physicians for discussions and advice with patients concerning end of life decisions. The American Medical Association requested consideration of the issue last fall. 

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.

INDIAN CARDIOLOGISTS CAN PURSUE DISCRIMINATION CLAIM

 On November 30, 2012, Judge Greg Costa of the U.S. District Court for the Southern District of Texas, on remand from the 5th Circuit Court of Appeals, allowed three Indian cardiologists to move forward with their discrimination claim against David P. Brown, the administrator of Citizen’s Medical Center, finding that under the McDonnell Douglas shifting burden framework, the plaintiff’s had met their burden of showing a prima facie case of discrimination through circumstantial evidence  on 4 out of 8 adverse employment actions alleged by the plaintiffs and that the justifications offered by the defendant were pre-textual.

 

OIG APPROVES PLAN FOR CALL-PAY

More and more physicians who used to accept on call duty at a hospital as part of their obligations of being part of the medical staff are insisting on receiving some form of remuneration for the inconvenience. On October 30, 2012 the Office of Inspector General of HHS posted an advisory opinion No. 12-15 approving a hospital’s plan to pay for on-call services of physicians on its medical staff.  These are for consulting physicians, not those physicians called on a regular basis to assist the ER, like intensivists, hospitalists, interventional cardiologists, etc. The concern of the OIG was the likely implication of the federal antikickback statute.  The personal services and management contracts safe harbor at 42 CFR Section 1001.952(d) doesn’t apply because it requires the aggregate amount of compensation to be identified in advance.

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.

 

SCOTUS HEARS GEORGIA “STATE ACTION” ANTITRUST CASE

On November 26, 2012 the Supreme Court of the United States will hear an important antitrust case where an admittedly anticompetitive merger between two hospitals in Georgia was immunized against FTC action by  the application of the “state action” defense first promulgated under the precedent of Parker v. Brown, 317 U.S. 341 (1943)(the Sherman Act does not subject states to liability for anticompetitive conduct within their jurisdiction). Political subdivisions of the a state are not automatically protected by the Parker doctrine, but may under some circumstances be granted immunity if the state generally authorizes the challenged action and the state has a “clearly articulated policy authorizing anticompetitive conduct.

 

SHAM PEER REVIEW BOOK INTERVIEW: Greg Piche´

Those that are interested can find an interview of the author of Sham Peer Review by the Denver Press Club at the following link.

http://denver.granicus.com/MediaPlayer.php?view_id=96&clip_id=5585

PEER REVIEW DAMAGES CLAIM WEARS THIN.

“Yo-yo litigation” bouncing back and forth between trial courts and appellate courts is wearing and expensive. Dr. Richard Chudacoff, M.D. should be able to attest to that.  Prior to moving to Las Vegas, Nevada in 2008, he was a renowned minimally invasive gynecological surgeon at Baylor University in Texas. In May of 2008, the University Medical Center of Southern Nevada, where he was an assistant professor, abruptly suspended his clinical privileges without notice or hearing. The action was described as a “routine administrative action” and not a 30 day emergency action based on immanent harm to patients. His university employment terminated because of the loss of his privileges.  The university hospital  forwarded a report of the suspension to the National Practitioner Data Bank in Washington asserting that the suspension resulted from “substandard or inadequate care.” Subsequently the “fair hearing” panel hearing his case disagreed with the grounds for the suspension and sent a recommendation to the Medical Executive Committee that his suspension be lifted and it was, in October, 2008.

Gun Rights Trumps Hospital/School Property Rights in Kentucky.

Michael Mitchell was a anesthesia technician at the University of Kentucky Chandler Medical Center when he was discovered to have possession of a loaded semi-automatic pistol in his automobile.  The gun was licensed and he had a concealed weapons permit. In April of 2009, the University fired him for violation of its no guns on campus policy. Mitchell, an at-will employee, brought an action for “wrongful termination” for violation of his constitutional rights to bear arms and his rights under Kentucky statutes. Kentucky, like most states recognizes an exception to an “at will” firing where the firing has been the result of a violation of the clearly expressed public policy of a state. Mr. Mitchell’s suit was dismissed on summary judgment and he appealed to the Kentucky Supreme Court which reversed.

Proposed Overpayment Rule Expands Exposure.

On February 16, 2012, the Secretary of Health and Human Services, Katherine Sebelius published a proposed new rule to implement Section 6402(a) of the Accountable Care Act that requires Medicare providers to report and repay government overpayments within the later of 60 days of being “identified” or of the date of submission of a required cost report.  The term “identified” is not defined in the Act and is the critical trigger for commencing the running of the 60 day period and the exposure for False Claims and Civil Monetary Penalty liability.