Singularity Health Law Blog

CALIFORNIA STREAMING: TELEHEALTH ADVANCEMENT ACT

The often contentious California legislature passed the Telehealth Advancement Act of 2011 without opposition achieving broad advances in the expansion of medical services in rural areas of the state. It expands the Telehealth Development Act of 1996 to all licensed health care providers and proscribes insurance plan requirements for an in person relationship to obtain consent. Consent can be verbal and must be recorded. Failure to obtain consent is deemed "unprofessional conduct."

 

The new Act provides for advancing hospital credential approval of distant consultants and specifies that insurance companies may not place limits on settings where telehealth services may be provided. The Act does state that it is not to be used to mandate telehealth service in settings that insurance companies deem inappropriate.

 

The Legislature in enacting the law sought to dispel any doubt about the future of telemedicine in California.

 

It is the intent of the Legislature to recognize the practice of telehealth as a legitimate means by which an individual may receive health care services from a health care provider without in-person contact with the healthcare provider. 

 

GOVERNMENT ISSUES ANTITRUST ENFORCEMENT POLICY REGARDING ACCOUNTABLE CARE ORGANIZATIONS (“ACO’S ”)

The FTC and the Department of Justice issued the Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program last week with a  public comment period up until May 31, 2011.  The Medicare Shared Savings Program is contained in Section 3022 of the Patient Protection and Affordable Care Act. (“PPCA”)  It is a sort of gain sharing program whereby the government will share cost savings with clinically integrated organizations of hospitals and providers who accept a Medicare population for care for at least three years.  The savings are expected to be derived from efficiencies due to the clinical integration of providers and the management and oversight (accountability) of patient care.  While this program being a Medicare based program is not subject to antitrust concerns, the agencies are providing guidance for those enterprises who wish to contract with commercial carriers as well as the government.

 

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

 

ANTITRUST DIVISION SERVES NOTICE TO HEALTH SYSTEMS WITH MARKET POWER.

On February 25, the Anti-trust Division of the U.S.Department of Justice filed a settlement in the case of United States v. United Regional Health Care System, N.D. Tex. No 7:11-cv-00030, entering a consent decree against the hospital system for violation of Section 2 of the Sherman Act for attempting to maintain a monopoly through the use of its market power. United Regional has 90% of the inpatient hospital market and 65 % of the outpatient surgery market of the "relevant market" defined by the government as the metropolitan statistical area for Wichita Falls, Texas. This a companion case to the one brought by the government against Michigan Blue Cross and Blue Shield which is still pending for exercising monopolist clout to injure competition in the marketplace. United Health Regional Health Care is a 369 bed hospital system occasioned by the 1997 merger of Wichita General Hospital and Bethania Regional Health Center. These were the only acute care hospitals in the market at the time of the merger. The only marginal competitor was a small outpatient surgery center. In 1999, a number of physicians banded together to form Kell West Regional Hospital, a 41 bed acute care facility that competed with United except in cardiac surgery and obstetrics. In 1998, in an effort to resist competition from Kell, United began offering insurers who contracted with United exclusively a 25% discount on costs. Others received a 5% discount. United was a "must have" hospital in the market for an insurance company to effectively compete with the other insurers in the market. The government alleged that 30 to 35% United's profits came from payments by excluded insurance companies paying supra competitive prices to United for its services, while exclusive contractors paid substantially less. The government alleged that the excluded insurance companies were paying 70% more than companies in the Dallas-Ft. Worth market and an average per day rate 70% higher than at Kell West Regional. The government made a major point of warning insurance companies and providers with market power that if they were pursuing the development of Accountable Care Organizations in order to obtain market power, that the weight of antitrust enforcement powers would be applied.

PHYSICIAN ANGER MANAGEMENT IN WYOMING

Dr. Chris Guier, M.D., who is apparently a competent and intense orthopedic surgeon has an anger management problem. On February 24, 2011, the Wyoming Supreme Court affirmed his termination as a member of the St. John's Medical Center hospital in Jackson, Wyoming because of disruptive behavior. Guier v. Teton Co. Hospital District, No. S-09-0259. In doing so the hospital skipped over the procedures in the hospital's disruptive physician policy and proceeded to directly terminate him under the hospital's medical staff by-laws. The hospital's bylaws required that the physician has the burden to prove the adverse recommendation by the medical staff was without merit by a preponderance of the evidence. Dr. Guier argued that that standard was unfair and conflicted with the provisions of Wyoming's administrative procedure act. The operating room staff at the hospital had refused on three occasions over some 14 years to work with Dr. Guier in the operating room. In 2006 in a reappointment agreement he agreed to a set of narrow limitations designed to control his explosive displays of anger. His conduct seems largely related to frustrations in the process of events in the operating room. "Level 10 yelling," tossing of scissors, demeaning comments and name calling. Dr. Guier perhaps could have used some anger management therapy. There is an interesting scene in the movie, Anger Management in which Adam Sandler as patient and Jack Nicholson as therapist suddenly block traffic on a New York bridge during rush hour when Nicholson grabs the hand break in response to Sandler's mounting anger and requires him to go to a different place with his anger by singing "I feel pretty, oh so pretty . . . ." Singing in the Operating Room may lead to other types of intervention but it is an innovative concept, much more conducive to waves of negative vibrations from explosive anger. The Wyoming Supreme Court in affirming the trial court and the Medical Staff determined that pure angry behavior was enough to terminate a competent physician's privileges, quoted the Oregon Supreme Court in Huffaker v. Bailey, 540 P 2d 1398 (Or. 1975). "Most other courts have found that the factor of a ability to work with others is reasonably related to the hospital's object of ensuring patient welfare. This conclusion seems justified for, in the modern hospital, staff embers are frequently required to work together or inseams, and a member who, because of personality or otherwise, is incapable of getting along, coulee diversely hinder the effective treatment of patients." A surgeon singing in the operating room may be disconcerting and probably annoying, but there has not yet been a single case reporting it to constitute disruptive conduct. Hopefully these kinds of interventions can develop earlier in the process.

Regulatory Ricochet - a Peril of Multi-State Licensure For Physicians.

The rise of the internet, telemedicine and on-line communication technology have led to a greater federal government interest in improving the cost and quality of medicine by promoting the cost-effective patient access to consulting or even treating physicians across state lines. Earlier many states had loose regulations permitting limited consultation by in-state physicians with out of state physicians. With the proliferation of communications technology many, if not most, states have tightened up their vigilance and regulatory requirements for out of state physicians consulting on or treating patients located in the state. Most states have adopted standards to deal with and in varying degrees permit telemedicine. They provide various forms of limited licensure and of course require the payment of fees and the submission of the physician to the jurisdiction and authority of the state medical board which regulates and imposes discipline on the practice of medicine.

THE GREAT NURSE ANESTHETIST “OPT OUT” DEBATE

 

 

Under Medicare rules Certified Registered Nurse Anesthetists (“CRNAs”) must be supervised by a physician, typically an anesthesiologists or perhaps by a surgeon in rural areas where anesthesiologists are not available.  Medicare has a state “opt out” provision which permits CRNAs to practice without supervision of a physician.  To date, 15 states have chosen to opt out and others like Colorado are considering doing the same.  Anesthesiologists are compensated for supervising CRNAs and can supervise up to 3 at a time because they are not required to be in the same room.

HOSPITALS INSTALL MEDIATION CENTERS TO QUELL PATIENT VIOLENCE AGAINST DOCTORS

    Is access to quality healthcare a right of all citizens or a privilege for the privileged?  Consider the prospect of a growing disparity between the halves and have nots and the frustration of those excluded from the better hospitals and physicians because of the inability to pay. Imagine the potential for violence as patients observe loved ones needlessly dying or facing disabling injury as a result of poor or inadequate treatment.  Hospitals demanding police protection, but officers concerned that they are public servants and not body guards.  2000 people riot at a hospital which refuses to treat a three year old who is unable to pay an $82.00 up front fee. A pediatrician jumps out of a fifth floor window to avoid the wrath of angry relative of an infant who died under his care.  Relatives beat doctors and nurses with mops and sticks for referring feverish patient to an outside clinic. 5,500 medical workers injured by patients in a single year. A grim vision of the future?

Health 2.0: Insurance Coverage and Broadband Expansion For Telemedicine Services.

Whether or not an insurance company will provide coverage for telemedicine services or not is generally controlled by the company’s interpretation of its policies.  Many insurance companies do voluntarily provide telemedicine coverage.  Some insurance policies require “face to face” provision of services or specifically exclude telemedicine coverage.  In most states the issue of telemedicine coverage is left to the discretion of the insurance companies in their plan designs.

E-PATIENTS AND ELECTRONIC PERSONAL HEALTH RECORDS (“EPHR”)

 The cost of health care is an enormous drag on the productivity of American business. When the cost of health care for employers rises to 20% of the cost of doing business in some industries, the structural handcuffs of health care costs can make the difference in economic survival or not.  The advent of electronic medical records (“EMR”) has been received in some quarters as a panacea for the achievement of improved quality of health care delivery and reduction of the crushing runaway costs of the system.