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 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 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.”

 

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 →