Health Care’s Adventures in Wonderland0

This article by Craig B. Garner[1] and Jessica Weizenbluth[2], Health Care’s Adventures in Wonderland: Provider Agreements for Electronic Records, was first published in February 2016 in California Health Law News.

iStock_000068974059_Large“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”[3]


Y93.J1: Activity, piano playing[4]

Today’s health care provides its own spin on the word “complex,”[5] while at the same time forging possible paths to what may be “unwinnable” scenarios.[6] For the modern physician[7], the universe within which he or she exists requires updated definitions for words such as “complex” and “challenging,” especially as that “perfect storm”[8] also known as health care reform continues to age. Somewhere in between the 2015 Physician Quality Reporting System (“PQRS”)[9], the Physician Value Based Payment Modifying Policies (“VBP”)[10] and tenth revision of the International Statistical Classification of Diseases and Related Health Problems (also known as ICD-10),[11] physicians find themselves still struggling to adopt electronic health records (“EHR”) in practice.[12]

As technology continues to evolve, there remains a general landscape with which those in the health care field must familiarize themselves. Even from this challenging vantage point, providers still have opportunities to bolster their position and practice their craft as they continue down the digital path and adopt an EHR system for which the Federal Government established incentive payments.[13]Read more →

Killing HIPAA0

This article, Killing HIPAA, first appeared in California Healthcare News on February 8, 2016.

iStock_000012752406_Large“When truth is buried, it grows. It chokes. It gathers such an explosive force that on the day it bursts out, it blows up everything with it.” -Emile Zola

The issue of confidentiality when applied to modern American healthcare is fraught with differing objectives, creating myriad complications as the needs of each attempt to merge together in their search for common ground and compromise. To arrive at a sense of clarity, we must look to those exceptions that define the fundamental system of rules at the heart of our nation’s health care structure, as the conflicting areas to be found within shed light on the vulnerabilities of the concept as a whole. The demands of federal statutes aside, gray areas abound, since attorneys can breach the duty of confidentiality in response to threats against life or to prevent substantial bodily harm, physicians must answer to certain matters of public health before protecting the secrets of the patient, and spouses can freely tell all when it comes to the actions of their partner, even if the words between them remain protected. … Read more →

The Health Care We Are Left With0

This article, The Health Care We Are Left With, was first published in Corporate Compliance Insights on January 6, 2016.

iStock_000007436109_Medium“Ending a sentence with a preposition is something up with which I will not put.”  Winston Churchill

Since the inception of the Affordable Care Act (the ACA) six years ago, the nation’s struggle over the proper provision of health care has been fought on many fronts, with both sides remaining passionately true to their convictions. As is the case with many of our nation’s historic battles, the American people may be remiss to disregard the impact of these struggles upon the evolution of our current health care structure. Like the January 3, 1777 Battle of Princeton during the American Revolution or the October 8, 1962 Battle of Perryville in the Civil War, many smaller events that appear understated or unimportant often have a long term impact. Instances where both patients and providers initially underestimated would-be tenets of the ACA can offer as much insight as outright Congressional mistakes in crafting the law. On the cusp of the iron anniversary for health care reform, this article offers examples of both the ACA’s shortcomings and successes. After all, too much of the planet’s most common element (at least by mass) can cause cirrhosis of the liver or arthritis, while a deficiency in iron can result in anemia. The following are topics that were resolved in 2015, as well as those for which 2016 may bring some clarity.Read more →

Health Care Unhinged0

This article, Health Care Unhinged, first appeared in California Healthcare News on November 3, 2015.

iStock_000054577884_Large“And though she’s not really ill | There’s a little yellow pill | She goes running for the shelter of a mother’s little helper | And it helps her on her way, gets her through her busy day.” — Sir Michael Philip Jagger and Keith Richards

To date, there exists no thermometer to measure vacillations in a person’s mental health, which is a good thing for febriphobics, and generally speaking, neither acetaminophen nor ibuprofen can cure mental illness, especially if the diagnosis is pharmacophobia. Unlike a fractured bone or sinus infection, ailments of the mind tend to be subjective and therefore more difficult to gauge. Just as a diagnosis of schizophrenia relies on a spectrum, psychotic examples range from hallucinations to speech impediments (even for glossophobics), and bipolar affective disorder by definition alternates between periods of elevated mood and depression. While the tenth revision of the medical classification system known as the International Statistical Classification of Diseases and Related Health Problems (ICD-10) contains more than 14,400 different physical health concerns, the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), still hovers around a paltry 300 disorders from which to choose.

We Know What We Do Not Know

The dearth of clearly identifiable mental disorders is a disheartening factor for the 3.1% of American adults who have presented with serious psychological distress within the past 30 days, or the 1.5 million hospital inpatients discharged with psychosis as the primary diagnosis, the average length of stay for whom was 7.2 days (and this not fast enough for those inpatients with nosocomephoia). Add to such dismal figures some 63.3 million visits to doctors (not including iatrophobics), as well as emergency departments or other outpatient clinics, and top off the numbers by including the 41,149 suicides that took place in 2013 (which equates to 13 deaths by suicide for every 100,000 people), one does not need a PsyD to identify a serious problem.Read more →

Medicare – Bridging the Gap Between Ridiculous and Sublime0

This article, Medicare — Bridging the Gap Between Ridiculous and Sublime, was first published in California Healthcare News on July 13, 2015.

Digital Illustration of a Chair
Between the Ridiculous and Sublime

“Have no fear of perfection – you’ll never reach it.” — Salvador Dali

Somewhere in Rural America

Settled in 1845, the city of Sumter rests in the bucolic middle of South Carolina and boasts the only public park in the United States containing all eight known species of swan. Originally named Sumterville, this sleepy, rural Southern town has for nearly one hundred years been home to the Tuomey Healthcare System (“Tuomey”), an acute care hospital also providing a 36-bed nursery, 10 operating suites, Cancer Treatment Center, Tuomey Home Services and a subacute skilled care program. As of 2013, and affirmed in June 2015, Tuomey also faced a record-breaking $237,454,195 judgment for violating federal law.

The path leading up to this verdict was a crooked one. As it attempted to hedge projected losses of more than $15 million at the turn of the millennium over the next fifteen years, Tuomey knew the treacherous landscape into which it entered, and from the outset had no intention of navigating the federal physician self-referral prohibitions (commonly known as the “Stark Laws”) or the Federal False Claims Act (“FCA”) alone. To secure its end, Tuomey consulted with a former Inspector General for the Department of Health and Human Services, a prominent health care law firm, and its longtime counsel, Nexsen Pruit, who in turn sought assistance from a national consulting firm. While implementing new contracts with local physicians, Tuomey’s lone hold out, Michael Drakeford, M.D., filed the qui tam action in 2005 that resulted in the record-breaking outcome.Read more →

The Abyss of Managed Care0

This article, the Abyss of Managed Care[1]. was first published on June 24 2015, in the State Bar of California Business Law News, Issue 2 (2015).

iStock_000006020673Large“God hates violence. He has ordained that all men fairly possess their property, not seize it.”[2]

Modern American health care affords every hospital patient the inalienable right to emergency treatment,[3] although this same system has yet to create any parallel infrastructure beyond the clinical delivery of such care. While today’s emergency department physicians across the nation have access to cutting-edge, integrated technology-based tools[4] designed to improve patient outcomes by combining advances in medicine with evidence-based clinical guidelines,[5] the science of overseeing managed care patients often appears to be light years removed from the era in which it was born.[6] As a result, American health care has become a system of fundamental brilliance that finds itself limited by gross inefficiencies,[7] a combination that has led to a symbolic, if not actual, nationwide revolution.[8]

At their core, the 2010 Patient Protection and Affordable Care Act[9] and the amendments set forth in the 2010 Health Care and Education Reconciliation Act[10] address the concept of patient access, one of health care’s greatest challenges in recent years.[11] Notwithstanding the 961[12] regulatory pages known as the Affordable Care Act, or “Obamacare,”[13] the relationship between the patient and the entity responsible for covering the cost of care has received surprisingly less attention in comparison.[14]

In California, the recent decision in Children’s Hospital Central California v. Blue Cross of California[15] has been seen by many as the culmination, and by some as the resolution, of conflict between providers and payers within the managed care system.[16] This article focuses on events preceding the Children’s Hospital Central California decision, how the managed care system of private payers has evolved over the past 40 years, and the challenges faced by payers and providers simply trying to coexist.Read more →

CMS Issues ACO Final Rule0

CMS Issues ACO Final Rule

Last week the Centers for Medicare & Medicaid Services (“CMS”) issued its proposed final rule for Accountable Care Organizations (“ACOs”) participating in the Medicare Shared Savings Program (“MSSP”), a program designed to promote accountability for a patient population, foster coordination of items and services under Medicare Parts A and B, and encourage investment in infrastructure and redesigned care processes for high quality and efficient health care service delivery. CMS issued its proposed rule on December 8, 2014, expanding the original rule from November 2011 (76 Federal Register 67802).

The final rule focuses on the following areas:

  1. Data-sharing requirements;
  2. Eligibility relating to ACO participants, providers and suppliers;
  3. Application updates;
  4. ACO legal structure and beneficiary requirements;
  5. Assignment methodology;
  6. Methodology for determining financial performance; and
  7. Program integrity and transparency concerns

The final rule also addresses some of the 275 comments CMS received in response to the December 2014 proposed rule. In response to concerns about the program’s integrity, CMS commented as follows:

“In 2011, Medicare made almost no payments to providers through alternative payment models, but today such payments represent approximately 20 percent of Medicare payments. Earlier this year, the Secretary announced the ambitious goal of tying 30% of Medicare fee for service payments to quality and value by 2016 and by 2018 making 50% of payments through alternative payment models, such as the [MSSP]. . . . With over 400 ACOs serving over 7 million beneficiaries, the [MSSP] plays an important role in meeting the Secretary’s recently articulated goal.”


HIPAA: Society’s Modern Day Prohibition0

This article, HIPAA: Society’s Modern Day Prohibition, was first published in California Healthcare News on May 4, 2015.

HIPAA: Society’s Modern Day Prohibition
HIPAA: Society’s Modern Day Prohibition

Secrets, silent, stony sit in the dark palaces of both our hearts: secrets weary of their tyranny: tyrants willing to be dethroned.” – James Joyce, Ulysses

Codified in American Law through Article Three of the United States Constitution and evolving through changing times by way of the Sixth and Fourteenth Amendments, the right to trial by jury remains a sacrosanct keystone of our nation’s legal system. Even so, there exists a degree of delicacy with which the judicial system evaluates the facts of any given case, and all involved must remain mindful that at times pertinent information may not be available for consideration. Significant violations of judicial filtering may result in the end of deliberations, known more abrasively as a “mistrial.”

The judicial system understands all too well that information cannot be honestly disregarded or ignored once heard, and does its best to account for the imperfections of the human mind. To enforce the Constitutional tenets of trust and truth upon which the faith of a jury must rest, today’s health care providers find themselves held to a unique standard of scrutiny when dealing with issues of privacy.Read more →

2016 Hospital IPPS For Acute Care Hospitals0

2016 Hospital IPPS For Acute Care Hospitals

iStock_000023989921LargeThis e-bulletin from the Health Law Committee of the Business Law Section for the State Bar of California, published on April 20, 2015, summarizes recent proposed regulations by the Centers for Medicare & Medicaid Services (“CMS”) for the Fiscal Year (“FY”) 2016 Hospital Inpatient Prospective Payment Systems (“IPPS”) for Acute Care Hospitals.

Every spring CMS issues its proposed regulations to modify the inpatient prospective payment systems for acute care hospitals, as well as other facilities. Sometime in August CMS issues its final regulations in anticipation of the new fiscal year starting October 1. This year like all others, the 1,526 pages of regulatory guidance (reduced to approximately 800 triple-columned-pages in the Federal Register on April 30, 2015) provide hospitals with the most important revenue information for the year, especially as these institutions try to navigate through the current climate of health care reform.

The proposed regulations cover the gamut of Medicare reimbursement concerns, including the types of hospitals that must adhere to the 2016 changes as well as what’s new with the already established Hospital Value-Based Purchasing (“VBP”) Program, the Hospital-Acquired Condition (“HAC”) Program, the Hospital Readmissions Reduction Program (“HRRP”) and disproportionate share hospital payments. One new additions to CMS’ annual encyclopedia of regulatory modifications includes a recoupment adjustment to account for changes in Medicare-severity diagnosis-related group (“MS-DRG”) documentation and coding that do not reflect real changes in case-mixing, totaling $11 billion over the next four years.

As the Medicare program continues to swell in ranks and hospitals become more dependent on revenue therefrom, just about any of the 382,000 words in the proposed regulations may hold the key to unlocking the mystery behind Medicare in 2016. For more information, the proposed regulation can be found here.

Physician-Owned Hospital Self-Disclosures0

The following Health Law E-Bulletin was published by the Business Law Section of the California State Bar on March 27, 2015.

The following summarizes recent instructions from the Centers for Medicare & Medicaid Services (“CMS”) for disclosures of noncompliance arising solely from a violation of 42 C.F.R. § 411.362(b)(3)(ii)(C) (physician-owned hospitals: website and advertising disclosures).

As part of the Affordable Care Act, Section 6001, physician-owned hospitals and rural providers must disclose on any public website for the hospital, and in any public advertising, that the hospital is owned or has physician investors. See 42 C.F.R. § 362(b)(3)(ii)(C). CMS has determined that for providers to comply with the requirements in section IV.B of the CMS Voluntary Self-Referral Disclosure Protocol (OMB Control No.: 0938-1106), physician-owned hospitals disclosing non-compliance with this very specific part of the regulation need only provide the following information:

  • Name and address of hospital
  • Hospital’s CMS Certification Number(s) (CCN), national provider identification number(s) (NPI), and tax identification number(s) (TIN)
  • Hospital’s contact person/representative for the disclosure
  • Names and NPI numbers of all physicians who were owners/investors during the period(s) of noncompliance identified below.
  • Period(s) of noncompliance: For the period beginning on September 23, 2011, identify the months during which the hospital had at least one noncompliance. The hospital can provide a date range to satisfy this requirement.
  • Provide the requested certifications

The complete instructions appear online here. Other disclosures, including those that include website and advertising concerns, must follow the Voluntary Self-Referral Disclosure Protocol.