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 Decay in Regulating California’s Corporate Practice of Medicine0

This article, The Decay in Regulating California’s Corporate Practice of Medicine, first appeared in the Business Law News (Issue 2, 2015) of the State Bar of California on June 24, 2015.

ToothThere is nothing worse than a sharp image of a fuzzy concept.”[1]

         In the 1990s, dentists in North Carolina[2] began to whiten teeth.[3] A decade later, nondentists across the state began to provide the same services, but at a lower price.[4] In 2006, the North Carolina State Board of Dental Examiners (the “N.C. Dental Board”) responded by issuing more than 47 cease-and-desist letters to parties whitening teeth without degrees in dentistry, and in 2007 the N.C. Dental Board enlisted the aid of the North Carolina Board of Cosmetic Art Examiners to issue similar warnings, specifically to cosmetologists[5] Their combined efforts were successful, and North Carolina nondentists soon stopped offering teeth whitening services.[6]

         The United States Federal Trade Commission (the “FTC”) took exception to the actions by the N.C. Dental Board, and in 2010 the FTC filed an administrative complaint, alleging the N.C. Dental Board acted deliberately for the benefit of North Carolina dentists and to the detriment of North Carolina nondentists.[7] According to the FTC, these anticompetitive and unfair tactics violated the Federal Trade Commission Act, and in particular Section 5.[8]

         After multiple hearings before an administrative law judge, followed by the FTC’s internal oversight and a review by the Court of Appeals for the Fourth Circuit[9] in February 2015, the United States Supreme Court[10] agreed with the FTC’s 2010 allegations, namely that the anticompetitive conduct of the N.C. Dental Board violated antitrust law, and in particular the Sherman Act.[11] The Supreme Court also held that sovereign immunity did not protect the actions of the N.C. Dental Board.[12]

         In its 6-3 decision referring to the roles of dentists and nondentists in North Carolina, the Supreme Court reached a far greater audience than those concerned with tooth color in the Tar Heel state.[13] In point of fact, the Court’s ruling did much to undermine most if not all authority held by professional organizations in California, including in particular the Medical Board of California (“MBC”).[14] This article explores how and why such change came about. … 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 Final Regulations for Accrediting Organizations0

The following e-Bulletin was published by the California State Bar, Business Law Section, on May 21, 2015.

CMS issued its proposed final regulations for accrediting organizations, revising the survey, certification and enforcement procedures relating to CMS oversight of entities such as the Joint Commission and the Healthcare Facilities Accreditation Program. These revisions implement provisions under the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), as well as clarify CMS’ oversight of these accrediting organizations.

In general, providers and suppliers of health care services must be substantially in compliance with certain statutory requirements before participating in the Medicare program. These obligations are known as “conditions of participation” (CoPs) for hospitals and most providers, “requirements” for skilled nursing facilities, and “conditions for coverage” (CfCs) for ambulatory surgical centers. Failure to meet the standards set forth by CMS may compromise a provider’s ability to participate in the Medicare Program.

Following the April 5, 2013 proposed regulations, the final regulations accomplish, in part, the following:

  1. Confirm CMS’ standards to the MIPPA revisions.
  2. Clarify and reorganize existing regulations, eliminate potentially confusing and unnecessary duplication.
  3. Strengthen CMS’s ability to oversee the 21 CMS-approved accrediting organizations.

The text of these final regulations can be found here.


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 →

CMS Quality Measures0

iStock_000016711099Small-300x225This Health Law e-Bulletin, published on March 20, 2015, summarizes the 2015 National Impact Assessment of CMS Quality Measures Report (the “2015 Impact Report”) (as mandated by section 3014(b), as amended by section 10304, of the Affordable Care Act (the “ACA”)).

What if one day the Internal Revenue Service (“IRS”) changed the ways in which the Federal Government taxed individuals? For example, rather than assessing tax liability on the basis of income, what if the IRS assessed taxes on the basis of an individual’s contribution to society, or on his or her general demeanor or overall perception as “good” or “bad”? Under the ACA, Medicare has started to transform in such an historical manner, reimbursing hospitals now (and physicians soon) on the basis of performance, efficiency, and patient satisfaction, gradually replacing the previous system that structured reimbursement on the costs involved in the delivery of health care. The 2015 Impact Report represents the second assessment by CMS since the ACA became the law in 2010, this time focusing on 25 CMS reporting programs and nearly 700 quality measures (using data from 2006 to 2013).

The ACA mandated a push toward high-quality, evidence-based care for patients, with top priorities including (1) making care safer, (2) ensuring that each person and family are engaged, (3) promoting effective communication and coordination of care, (4) promoting the most effective prevention and treatment practices, (5) working with communities to promote wide use of best practices to enable healthy living and (6) making quality care affordable. The 2015 Impact Report provides a 262-page scorecard for those who may be interested in the ACA’s success during its first few years.

CMS is committed to quality measurement as it transforms the very nature of modern American health care. The 2015 Impact Report illustrates how providers, private payers, and communities can work together to achieve the greatest impact on quality. As stated in the 2015 Impact Report: “Everyone receiving healthcare in the nation is likely to benefit from CMS programs and initiatives, as healthcare professionals engage in delivery system reform to achieve better care for patients, better health for the U.S. population and lower costs through quality improvement.” The complete 2015 Impact Report can be found here.

Advancing Health Care The Old-Fashioned Way0

This article, Advancing Health Care the Old-Fashioned Way, was first published by Healthcare Innovation News on February 8, 2015.

Stethoscope and hourglass with book.“Nothing recedes like progress.”
— Edward Estlin (e.e.) Cummings

Though cutting-edge technology serves as the foundation for modern American healthcare, an accurate measure of progress must consider the occasional conflict between society and science. Even as yesterday’s medical miracles give way to what are now considered “state of the art” practices, it is the duty of health care providers to remain mindful of both sides of the equation, balancing the capabilities of today’s technologies with the needs of today’s patient. If society and science are not in sync, patient care will suffer, and sometimes we can only advance healthcare through old-fashioned methods. For example, radiology information systems (RIS) and picture archiving and communication systems (PACS) collaborate to deliver dynamic and brilliant medical images to any healthcare provider around the globe with access to a desktop computer or mobile device. And yet, if these technologically advanced tools of the trade fail to employ the appropriate methods of encryption as they transmit digital health information to a doctor’s iPad as he or she vacations on the island of Tristan da Cunha, or worse, send this sensitive information to the hard drive of any one of the island’s 297 permanent residents living in the recesses of the Atlantic Ocean, a data breach occurs. This is no small matter for the hospital of today, and could easily result in a series of fines that could force the shutting of its doors for a single infraction.

Read more →

A Brave New Medicare0

This article, A Brave New Medicare, was first published in California Healthcare News on February 4, 2015. 

Caduceus background“Consistency is contrary to nature, contrary to life. The only completely consistent people are dead.” —Aldous Huxley

Next month the Affordable Care Act turns five, and by all accounts the influence of this historic legislation will forever change the landscape of health care in the United States, regardless of its ultimate fate. As each passing year introduces thousands of new regulatory pages to an already expansive body of federal and state law, praise for what has come to be known as health care reform is only rivaled by the relentless partisan calls for its repeal.

Recognition of the Affordable Care Act’s more laudable accomplishments should not be overlooked, especially the elimination of preexisting conditions, an overall reduction in the number of uninsured, and, according to some experts, findings that point to an actual slowing in health care spending at a national level. On the other hand, we as a nation must also be mindful of any collateral damage caused by reform, especially when considering that the immediate statistical data used to document the success of reform tends to present itself easily, while the longer-term, potentially less favorable information upon which the Affordable Care Act can also be judged may take decades to unfold.Read more →