Singularity Health Law Blog

CAN PRIVATE SUIT STOP MEDICAID CUTS?

Several days ago the U.S. Supreme Court heard arguments in the case of Douglas v. Independent Living Center. The California legislature cut back payments to physicians and hospitals under the California Medicaid program providing medical care for the poor.  This case joined three cases brought by private groups to enjoin the State’s action as being violative of federal law relating to the Medicaid program. The issue is whether there exists a private right of action to enforce the provisions of Federal law under the Supremacy Clause of the Constitution that gives the federal government final say over areas in which it conflicts with a state. The following is a transcript of the oral arguments before the court on October 3. The advocates are Karin S. Schwartz representing California, and Edwin S. Kneedler representing the United States siding with California and Carter G. Phillips representing the Plaintiffs.  The arguments provide an interesting insight into the process of the court and the complexity of issues arising in this area.

 

ILLINOIS APPEALS COURT REFUSES TO ORDER ARBITRATION OF NURSING HOME DEATH CASE FOR LACK OF MUTUALITY.

Joyce Gott entered into two “stand alone” arbitration agreements with Odin Healthcare Center, a nursing home, when she was admitted. Both agreements provided that the parties would arbitrate any dispute where the claimed damages exceeded $200,000. When Ms. Gott died, her daughter brought a wrongful death case against Odin. Odin moved to compel arbitration.  The Illinois Court of Appeals held that the “no waiver” provision of the Illinois Nursing Home Care Act barred the arbitration provisions. On review the Illinois reversed the decision saying that the Federal Arbitration Act preempted contradicting state law and remanded the case to the Court of Appeals for further determinations.

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PERSONAL ELECTRONIC MEDICAL RECORDS ESSENTIAL

Dying is a messy business.  Having watched my father endure the process involving three hospitals and a SNF in the final month, I have been impressed with the primitive nature of medical record keeping today even in the most efficient and effective of medical institutions.  My father had a long history of problems with bleeding ulcers resulting in extreme surgery to remove most of his stomach.  Lately he had been under the care of an HMO with a Medicare plan. There was no central depository of his medical records.  One of the facilities, the Henry Ford Hospital in Detroit, sought valiantly to locate all of his recent records, but limited staff in other facilities resulted in significant delays in obtaining vital information.

 

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.” 

 

NURSE TERMINATION ON REFUSAL TO ABANDON PATIENT: GROUNDS FOR WRONGFUL DISCHARGE CLAIM.

South Carolina Code. Ann § 40-33-110(24) provides that a nurse may be subject to discipline of his license if he:

abandoned a patient after accepting the patient assignment and establishing a nurse-patient relationship and disengaged the nurse-patient relationship without giving reasonable notice to the appropriate personnel responsible for making arrangements for continuation of nursing care.

 

Eugene Paterson, a South Carolina nurse, was assigned by his employer Gentiva Health Services,   Inc. to provide wound care for a patient, twice a week for two weeks, pursuant to a doctor’s order which remained in effect throughout the two weeks.  Gentiva, however, ordered nurse Paterson to cease providing the care before the order expired. He refused. Gentiva fired him. In Paterson v. Gentiva Health Services, Inc. , D.S.C. 10-cv-3021 (7-25-11).  Gentiva moved to dismiss his claim on the basis that “at will” employees can be terminated by their employer for any reason or no reason.  

 

The Court held that these circumstances fell within the narrow public policy exceptions to the at will employment rule, where the firing is a potential violation of a clear mandate of public policy. In South Carolina there are two categories of exceptions when an employer terminates employment because of the employees refusal to break the law or when the reason for termination is itself a violation of the law.  Here Mr. Paterson alleged that Gentiva fired him for refusing to abandon the patient in violation of the South Carolina State nursing code. The Court agreed with Mr. Paterson.

 

GOVERNMENT ISSUES PREAMBLE TO PROPOSED NEW ACCOUNTABLE CARE ORGANIZATION RULES

CMS today issued a 426 page preamble to the proposed new Accountable Care Organization (“ACO”) Rules this morning, which will be lots of fun for health care lawyers to plumb over the weekend  These rules are designed to implement Section 3022 of the Patient Protection and Accountable Care Act related to “Shared Savings” by the government of Medicare Payments with ACOs.   The idea is to foster development of efficiently run ACOs with whom the government will share savings from the cost of fee for service Medicare medicine expenditure. It is hoped that these clinically integrated organizations with the assistance of computer technology to effect “accountability” will both reduce costs and improve quality with disciplined adherence to evidence based medicine guidelines. The link to the preamble is as follows:

http://www.ofr.gov/OFRUpload/OFRData/2011-07880_PI.pdf

 

RAC AUDITS AND NEW FEDERAL FALSE CLAIMS ACT EXPOSURE.UNDER THE FRAUD ENFORCEMENT RECOVERY ACT OF 2009 (“FERA”).

The federal squeeze of health care providers is underway. Federal Medicare recovery “bounty hunters,” the Recovery Audit Contractors (“RAC”), are marshalling resources for the anticipated, algorithm primed, data mining hunt for Medicare overpayments from hospitals, physicians, DME companies, hospices and other providers, which is likely to bloom in the second half of this year. Those that attempt to mislead the government or its computer toting agents in order to limit the harvest are facing additional potential exposure under the Federal False Claims Act, 31 U.S.C. §3729-3733 (“FCA”).

STATE CANNOT REDUCE MEDICALLY NECESSARY HOME HEALTH COVERAGE UNDER MEDICAID.

In Anna C. Moore v. M.D. Rhonda Medows, No. 107-CV-631 TWT (D.C.N.D. Georgia-Atlanta Div. June 4, 2008), an action for declaratory and equitable relief brought by a 12 year old Medicaid patient under 42 U.S.C. §1983, the U.S. District Court granted Ms. Moore summary judgment against the State of Georgia which sought to reduce the number of home duty nursing hours afforded the plaintiff from 94 prescribed by her doctor to 84 hours a week as a cost cutting measure.

$365,000.00 Penalty To Nursing Home Cited For Short Staffing Resulting in Death.

The 6th Circuit Court of Appeals affirmed a Civil Money Penalty Judgment against a nursing home in Ashbury Center v. Department of HHS, 6th Cir. No.02-3438 for the Center's failure to provide adequate supervision posing immediate jeopardy to two residents health and safety. Both residents fell down stairwells while strapped into wheel chairs. 42 C.F.R. Section 488.301 defines immediate jeopardy as a situationin which the provider's noncompliance with one or more requirements of participation has cause serious injury or death to a resident. The judgment affirmed the finding of the administrative law judge below that the Center's care did not comply with Medicare regulations requiring that corridors not be left unsupervised for indefinate periods and that adequate staffing be maintained.