California’s Vanishing Community Hospital: An Endangered Institution0

This article first appeared in the Fall 2011 Issue of California Health Law News, a Publication of the California Society of Healthcare Attorneys.

Across the nation, America’s community hospitals are under siege. Once considered indispensible to our health care system, the twenty-first century finds the local hospital fighting an uphill battle against a convergence of factors that favors the sharing of resources by multiple facilities.  Rising health care expenses, challenging regulatory hurdles, and a reimbursement structure in the midst of transition all bear some responsibility for the obstacles faced by today’s community hospital.  Nowhere is this phenomenon more pronounced than in California, where regular hospital closings amid an ever-growing population stand as incentive for remaining hospitals to team up (or remain teamed up) under the potentially false notion that in modern American health care, there is safety in numbers.

Learning From Past Mistakes – What History Reveals About Health Care

Understanding the historical evolution of the American hospital is fundamental to recognizing the core problems faced by smaller hospitals today.  From the 1736 opening of an almshouse in New York City (which would eventually become Bellevue Hospital) through the expansion to nearly 5,000 hospitals by the 1920s, and continuing through the post-1960 shift toward multifunctional facilities, health care has responded to the socioeconomic and political influences of each era.  A trend of multihospital systems replacing freestanding community hospitals picked up speed after 1965, driven largely by a combination of economic factors (including the creation of Medicare) and technological advances in medicine.  The five hospital consolidations noted in 1961 ballooned to upwards of fifty per year in the 1970s.  By the 1980s, an estimated thirty percent of the hospital beds in the United States existed within hospital systems.[1] … Read more →

Administrative, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, Regulatory

Our Fear of Health Care Reform and the Household Vacuum0

“That’s the nice thing about carousels, they always play the same songs.”  –The Catcher in the Rye by J.D. Salinger

This article first appeared on the PBS affiliated website This Emotional Life.

It starts with a vacuum.

The sudden, unfamiliar dissonance signals fear in his little mind, which grows quickly, magnified by the sight of an unexpected entanglement between the woman he trusts most and this monstrous machine. As he turns to run (or crawl), I find myself thankful to be just inches away, in perfect position to catch my 10-month old boy as he does his best to flee the frightful scene. His two outstretched arms secure a tight grip around my neck, while a sad face burrows deep into my chest. For one sharp moment I feel like a hero, a wholly necessary, trustworthy entity whose sole purpose is to be relied upon in times of trouble.

Fear is a formidable foe, and the ways in which we as grown ups react to its presence can often be inconsistent. Regardless of its origin, any meaningful cause for alarm typically signifies a commonality of chaos, to be first understood, and then vanquished. Though my son’s safety was obviously never compromised during his run-in with the vacuum cleaner, his reaction illustrates the fact that in the eyes of an infant the world is full of uncertainties. In the mind of a child, laughter and tears coexist every day, yet we seldom stop to consider how these emotions actually resonate. Rather, we tend to focus on the cause, which with luck might lead us to a solution, as a means to restore the calm and save the day. Indeed, some of the most seasoned parents have an entire cache of remedies upon which to rely when a crisis hits, and they wield them like weapons of precision, each one crafted and selected for just the right moment.

But what about the child in the midst of a trauma?  … Read more →

Children's Health, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, PBS This Emotional Life, Regulatory

Providing Care for the Uninsured Without the Federal Case0

The article first appeared in Becker’s Hospital Review.

Estimated at close to 50 million strong, the fate of America’s uninsured has caused quite a stir of late. As the media anxiously reports on the U.S. Supreme Court’s acquiescence to assess the constitutionality of certain tenets at the heart of healthcare reform, the nation sits anxiously on the sidelines, awaiting the outcome. Indeed, a suggested, unprecedented televised hearing on the insurance mandate could potentially attract even more viewers than the record-breaking 111 million football fans who watched the Green Bay Packers beat the Pittsburgh Steelers in Superbowl XLV on Feb. 6, 2011.

The uninsured conundrum

At the core of the debate lies an enormous price tag. The sheer volume in dollars it takes to provide medical treatment to the uninsured is astounding, and its ramifications affect many fundamental aspects of our healthcare structure. In 2008, uncompensated medical care in the United States approached an estimated $57 billion, of which nearly $43 billion was paid by federal, state and local governments from funds earmarked for this very purpose. Although the federal government typically foots close to half of this annual bill, its contribution equals only 2 percent of federal healthcare spending yearly. The great bulk of responsibility for America’s uninsured falls to our nation’s hospitals, who shoulder approximately 60 percent of uncompensated medical care, due largely to a regulatory structure mandating that emergency departments at hospitals participating in Medicare or Medicaid must treat just about anyone who arrives in need of medical care, regardless of citizenship, legal status or ability to pay.

To add to the friction, most Americans have a stronger grasp on the rules of professional cricket than they do the leading constitutional challenge to President Obama’s 2010 Patient Protection and Affordable Care Act. … Read more →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, Regulatory

Tracing the Evolution of American Health Care Through Medicare0

This article first appeared in the journal Health, Culture and Society.

I. Before Medicare

Since its inception as a government sanctioned public health insurance program, Medicare has been both a bone of contention between political parties and a beacon from which to gauge the changes in American health care as a whole. Passed as part of the Social Security Amendments of 1965, Medicare had as its focus individuals sixty five years of age and older, with a similar yet state-run program, Medicaid, addressing the medical needs of people with certain disabilities and low income families. Over time, however, Medicare has grown to be the preeminent standard for our nation’s health care in its entirety, with nearly every substantive change to its core foundation signaling a corresponding restructuring of our overall health care system.

The modifications imposed on Medicare, both by market forces and federal legislation, stand as a series of growing pains from which to mark the evolution of the American health care model. By charting these changes through the decades we can better understand the ways in which health care as a whole has morphed from a cost based system to one of performance evaluation. In turn, this may provide us with a glimpse into health care’s future if certain fundamental issues are not addressed in current reform legislation.

The rise of the government’s role in providing health care to its citizens came relatively late in America’s history. For much of its first two centuries the burden of caring for the sick and injured fell to neighbors, friends and relatives, with additional support from individual communities and religious groups. Visits by an actual doctor were generally limited to the home and dictated by local demographics. Almshouses and charity wards provided a certain degree of medical service, as hospitals were few and far between, and often existed solely upon the largess of the surrounding vicinities. Those who had the opportunity to visit a hospital prior to the twentieth century more than likely did so after an accident or as the result of an unfortunate designation of insanity.

Read the complete article here.

 

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, Regulatory

Health Care Reform Sets the Standard Under the Federal Anti-Kickback Statute, But How Much Longer Will It Apply?0

17 No. 4 Westlaw Journal Health Care Fraud 1

October 12, 2011 — Commentary

Craig B. Garner, Esq.

Copyright © 2011 Thomson Reuters — Reprinted with Permission

Introduction

Under its aegis, the 2010 Patient Protection and Affordable Care Act, more commonly referred to as Health Care Reform, Pub. L. No. 111-148, clarified the criminal-intent requirement under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.

Before PPACA, federal courts applied different standards of intent, both general and specific, in determining the existence of violations under the AKS. Section 6402(f)(2) of PPACA amends the AKS by stating, in part:

With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.

Like it or not, congressional design is clear, and this general-intent threshold now serves as the national standard for the AKS after PPACA. While constitutional scholars may take aim at this seemingly benign amendment when they eventually tire of health care reform’s individual insurance mandate, health care and criminal law practitioners are better served by understanding the historical landscape leading up to Section 6402(f)(2). By tracing the evolution of the AKS, as well as the companion False Claims Act, 31 U.S.C. § 3729, and the Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn (more commonly referred to as Stark I and Stark II), practitioners may have a stronger perspective with which to offer their clients advice within the rapidly changing climate of health care reform, rather than relying upon cautionary missives that speak to this watered-down standard of scienter.

Some legal history

Actus non facit reum nisi mens sit rea. (“The act is not culpable unless the mind is guilty.”) [FN1]

With a few exceptions, historical discussion of criminal law has tended to combine bad actions with a previously existing desire to effectuate the same. Most often in the context of ordinary, visible crimes such as murder, battery, robbery, arson, etc., a common condition precedent to conviction for such offenses was specific intent. [FN2] This mental element exists as a subset within two separate and distinct types of crimes: those prohibited by statutory authority (malum prohibitum, such as parking regulations, copyright laws and the tax code), and those plainly in violation of society’s standards (malum in se, such as rape and murder). … Read more →

Administrative, Health Care Law, Health Care Reform, Historical, Hospitals, Miscellaneous, News, Regulatory

Facebook and EHRs: A Very Fine Line Just Got Even Finer0

This article first appeared on iHealthBeat.org.

Americans love their privacy. And yet, as the ever-increasing trend of social networking illustrates, they also love to share the facts of their lives. As a result, defining privacy can be tricky in this modern age and often depends on the venue in which information is presented and the form it takes.

In today’s world of electronic health records, straddling the fence between harmless information and sensitive data is no longer such an easy task, and the repercussions for the slightest transgression can be severe.

On August 22, HHS issued a press release challenging software developers to create new Facebook applications to assist in emergency preparation efforts. If Facebook was a nation, its “population” would be more than double that of the United States. If online minutes for Facebook users were the functional equivalent of “dollars spent,” the social network’s estimated $84 trillion in annual “spending” would top the collective gross national products of all nations across the globe, even if the U.S. or European Union were counted twice.

While Facebook is a great way to stay connected to friends and family, it also can blur the line between privacy and the public domain. With a few quick clicks you may come to learn that Susan is at the coffee shop with Billy, Milton is attending a marketing seminar, or David is recovering nicely from a recent appendectomy at a hospital in Florida.

While Facebook might be given free rein to spread news of David and his recently removed appendix, other mediums must proceed with caution. If someone from David’s hospital was to leak his news, the hospital would face great scrutiny because health care providers are bound by law to obtain in advance David’s express, written authorization to publicly disclose details about his physical well-being. This is true even if said metadata were common knowledge among David’s 268 Facebook friends. … Read more →

Administrative, Clinical, Community, Health Care Reform, Historical, Hospitals, News, Regulatory, Technology

Will Health Care Reform Survive Debt Ceiling Legislation?0

This article first appeared on Becker’s Hospital Review.

Contrary to media headlines closely monitoring the lower- and mid-level federal courts as they opine on the individual insurance mandate, the United States Judiciary Branch may have little impact on the future of President Barack Obama’s 2010 Patient Protection and Affordable Care Act. As fascinating as the legal ramifications may be, the ways in which the Commerce Clause or the Necessary and Proper Clause impact the constitutionality of healthcare reform’s most notorious provision of late could have little meaning if the government fails to pay a few utility bills and the congressional lights go dark.

While the importance of judiciary participation in this historical debate should not be discounted, the U.S. healthcare system must first and foremost be concerned with self-sustainability, especially in light of recent issues concerning our credit rating as a nation. … Read more →

Administrative, Clinical, Health Care Reform, Historical, Hospitals, News, Regulatory

Preparation Does Not Guarantee Perfection0

This article first appeared on California Healthcare News.

California has always found its way into the public spotlight, and 1975 was no exception. That is the year in which Jerry Brown became the state’s 34th governor, Nolan Ryan started the season for the California Angels, President Ford survived an assassination attempt in Sacramento, actors Jon Voight and Marcheline Bertrand gave birth to their daughter Angelina Jolie Voight in Los Angeles, and the state’s Medical Injury Compensation Reform Act of 1975 (MICRA) was passed.

At its core, MICRA was the end result of efforts to save California’s physicians from the fallout of a multitude of lawsuits, runaway jury verdicts, and draconian responses by insurance liability companies. With its $250,000 cap on non-economic damages in medical malpractice litigation, MICRA made history as its backers trumpeted the salvation of medicine in California. Controversial from the day Governor Brown first signed it into existence, MICRA continues to face challenges these 36 years later. For better or worse, however, MICRA addressed a critical issue and assuaged what were at the time very real fears that issues of liability and catastrophic jury verdicts would bring California’s medical system to a halt.

California’s hospitals are not alone in their need to proactively address situations involving unforeseen events. In this present era of health care reform, providers across the nation have an even greater abundance of legal issues on which they must focus their attention. For example, in the not too distant past a new concern appeared on the horizon some 2,700 miles from Sacramento. August 2005 saw Hurricane Katrina wreak havoc throughout southeastern Louisiana, with a death toll in excess of 1,800 and an $80 billion price tag, to say nothing of the sociological and environmental collateral damage that quickly followed.

Once the storm had passed and the dust had begun to settle, a frightening discovery at Memorial Medical Center in New Orleans captured the nation’s attention anew and resonated in the hearts and minds of every hospital administrator across the nation. Forty-five Memorial Medical Center patients died from the Hurricane, a number greater than any other New Orleans hospital, and blame was quickly directed to the hospital and its failure to provide for its community in an emergency situation. … Read more →

Administrative, Clinical, Community, Historical, Hospitals, News, Regulatory

Looking Back to Move Ahead: Leading Hospitals Through Fast-Paced Change (Becker’s Hospital Review)0

The article was first published August 26, 2011 on Becker’s Hospital Review (written by Molly Gamble).

Healthcare executives might remember time moving a bit more slowly before March 23, 2010. That was the day President Obama penned his signature, supposedly letter by letter, onto the Patient Protection and Affordable Care Act. The average workday for healthcare or hospital CEOs was probably filled with slightly different concerns or agendas before that moment. Since then, though, the industry has been flung into fast motion to accommodate the policy changes mandated in that 2,700 page bill along with its larger overarching themes that are shaping modern-day healthcare.

For the rest of the article, visit the Becker’s Hospital Review Website.

Administrative, Clinical, Health Care Law, Health Care Reform, Historical, Hospitals, Miscellaneous, News, Regulatory

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