The Evolving Relationships Between Hospital, Physician and Patient in Modern American Healthcare0

This article, written by Craig B. Garner and David A. McCabe, was first published in the Journal Health, Culture and Society, Vol. 3, No. 1, on November 16, 2012.


Today’s healthcare climate is one of uncertainty, with the longstanding bond between doctor and patient growing ever more tenuous as the nation reacts to fundamental changes within its healthcare structure. Since March 2010, when President Obama signed into law the Patient Protection and Affordable Care Act[1] as amended by the Health Care and Education Reconciliation Act[2] (collectively referred to as the Affordable Care Act or “ACA”), the federal government has continued to release information aimed at clarifying and expanding upon the original 2,700 pages of codified reform. At its core, ACA seeks to prohibit health insurers from denying coverage or refusing claims based on pre-existing conditions, expand Medicaid eligibility, subsidize insurance premiums, provide incentives for businesses to offer healthcare benefits, and increase support for medical research.

As the implementation of these new programs, partnerships, preventative care measures, competitions and grants steals headlines daily, ACA’s ramifications underscore the ways in which the Federal government has increased its presence in healthcare in an effort to ensure that the allocated trillion dollars in federal funding remains accountable. Arguments made by both critics and supporters of ACA have become all too familiar in the ongoing debates, with each side citing the nation’s growing economic crisis as a major factor in ACA’s future.  … Read more →

Book Review: “Obamacare on Trial”0

This book review was first published in the Daily Journal on November 9, 2012.

With 225 years separating the ratification of the Constitution of the United States and the landmark United States Supreme Court decision National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Constitutional impact of Chief Justice John Robert’s majority opinion will resonate down the labyrinth of Federalism for decades to come.

As it relates to the 2010 Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act, the holding is clear and concise, even as the legacy of the Affordable Care Act has yet to be determined.  Few scholars will disagree on the meaning of the Court’s ruling – that the Affordable Care Act’s individual mandate is constitutional and the Medicaid expansion provisions will survive – although the way in which the Court reached its conclusion remains the subject of heated debate.

Einer Elhauge’s Obamacare on Trial approaches the Supreme Court decision much like the Phythia at Delphi, although sadly this latest collection of high profile, widely published essays conclude where the real story begins. … Read more →

Redefining the Valuation Methods of Modern Day Hospital Care1

This article was first published in the New York State Bar Association’s Health Law Journal, Vol. 17, No. 3 (Summer/Fall 2012).

Due to the sensitive nature of the industry it services, the American hospital must rightfully operate under copious federal and state regulations, in addition to volumes of rules and ordinances established by separate, non-governmental entities. Though policing policies such as accreditation, certification and periodic review come from a variety of both public and private sources, the goal is generally consistent: develop uniform standards to ensure that hospitals in the U.S. operate at an acceptable safety level while delivering quality patient care.

The Many Paths to Accreditation

Though its primary function is without question the delivery of accurate and effective medical treatment, health care is also big business.[1] In an attempt to promote constant vigilance among America’s hospitals, any one institution may be subject to accreditation review at any time from private, non-governmental organizations such as the Joint Commission,[2] the Healthcare Facilities Accreditation Program (HFAP),[3] Accreditation Commission for Health Care (ACHC),[4] Community Health Accreditation Program (CHAP),[5] the Compliance Team, Inc.,[6] Healthcare Quality Association on Accreditation (HQAA),[7] or DNV Healthcare, Inc. (DNV),[8] among others.[9]

By and large, each private entity governs through its own set of rules.  For example, the Joint Commission surveys hospitals by following more than 276 standards and reviewing 1,612 elements of performance.  HFAP does largely the same thing pursuant to its 1,100 or more individual standards.  Focusing on home medical equipment as well as durable medical equipment, prosthetics, orthotics and supplies (“DMEPOS”), HQAA has developed a review process consistent with federal standards.[10] … Read more →

The Supreme Court Opens the Road to Health Care Reform, But Will California Meet the Challenge?0

This article, by Craig B. Garner, Esq. and Julie A Simer, Esq., first appeared in the Business Law News of the State Bar of California (Issue 3 2012).

Almost 28 months after President Barack Obama signed the Affordable Care Act (“ACA”)[1] into law, the United States Supreme Court upheld the constitutionality of health care reform.[2]  Though the underlying arguments set forth in the 59-page majority slip opinion venture deep into the labyrinth of constitutional law and test the traditional boundaries of federalism, the holding itself is clear and concise: (1) the ACA’s individual mandate is constitutional;[3] and (2) the Medicaid expansion provisions found within the ACA survive, but the Federal Government is prohibited from penalizing “[s]tates that choose not to participate in [the Medicaid expansion] by taking away their existing Medicaid funding.”[4]   The decision promises to have a dramatic effect on California, as the country’s most populous state.

In ruling that the individual mandate is constitutional, the Court rejected the Commerce Clause[5] and the Necessary and Proper Clause[6] in the Constitution as bases for upholding the mandate. The Court held that the Commerce Clause failed to provide a sufficient nexus between the requirement to purchase health insurance and its anticipated effect on interstate commerce to validate the individual mandate:

No matter how “inherently integrated” health insurance and health care consumption may be, they are not the same thing: They involve different transactions, entered into at different times, with different providers.  And for most of those targeted by the mandate, significant health care needs will be years, or even decades, away.  The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception . . . .[7]

Chief Justice Roberts noted that the Commerce Clause does not give Congress the authority to compel an individual “to become active in commerce by purchasing a product, on the ground that … failure to do so affects interstate Commerce.” [8]  Likewise, the Court rejected the Necessary and Proper Clause as a means to sustain the individual mandate, finding it was not “an essential component of the insurance reforms.”[9] The Court distinguished previous decisions upholding laws under the Necessary and Proper Clause, because the laws at issue in those cases “involved exercises of authority derivative of, and in service to, a granted power.”   Whereas, the individual mandate would give Congress the ability to create the “necessary predicate to the exercise of an enumerated power.” The Court added:  “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.[10] … Read more →

60 Days to Pay – Has Medicare Reached the Point of No Return?0

This article first appeared in the September 2012 issue of Compliance Today, a publication of the Health Care Compliance Association.

In February the Centers for Medicare & Medicaid Services (“CMS”) clarified an oft quoted existing rule: Providers must return overpayments to Medicare within 60 days “after the date on which the overpayment was identified,” or in the alternative, “the date any corresponding cost report is due, if applicable.”[1]  For providers of any size, failure to report and return Medicare overpayments pursuant to these temporal requirements may result in potential liability under the Federal False Claims Act[2], resulting in substantial monetary penalties and the risk of being denied future claims for reimbursement.

Dating back to the American Civil War, the False Claims Act (FCA) has over time become the “primary litigative tool for combating fraud” for both federal and state governments.[3] At its core, the FCA imposes liability on anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.”[4]  While most providers have worked within a similar time frame after identifying an overpayment, it appears that the statutory requirements under the 2010 Patient Protection and Affordable Care Act [5], as amended by the Health Care and Education Reconciliation Act[6] (collectively referred to as the Affordable Care Act or health care reform) were not enough.[7] In reaction, the February 2012 regulations now leave nothing to chance, imposing upon the health care industry detailed definitions with numerous examples to assist providers in determining exactly when the 60-day clock begins.[8] … Read more →

The Spectacular Aspect of Contemporary Health Care0

This article first appeared in the Daily Journal on September 11, 2012.

Spectacular – adj.: of or like a public show; striking, lavish (spek ‘tækjulə(r))[1]

As images of NASA’s 2012 “Curiosity” expedition continue to capture public interest, the word “spectacular” has been getting a lot of play in recent national media. By replacing images of our nation’s beloved hero Neil Armstrong bouncing on the lunar surface[2] with “a one-ton, automobile-size piece of American ingenuity” that is destined to spend the next two years “examining rocks within the 96-mile crater” into which it landed[3], NASA has proven how far we as a unified nation can come in under fifty years with a well-designed, properly funded and tightly executed plan.

Unlike with space travel, gauging the progress of the evolution of a health care system is not nearly so cut and dry. While advances in modern medicine since the introduction of Medicare[4] have in many ways been equally riveting from a technological, political and sociological standpoint, each new period of change has brought with it a divisiveness that has forced individuals to decide whether the system’s latest step is spectacular in its success or failure. When it comes to health care, Americans tend to see things in black and white.

Much of what we now take for granted the field of modern medicine was unthinkable fifty years ago. Technologically, the jumps have been astounding. From its humble origins in the 1970s, X-ray computed tomography has evolved from being able to give a reading that included 160 images, each taking 2.5 hours to process, into today’s 256-slice CT scanner which can in seconds measure subtle changes in blood flow or blockages in blood vessels the width of a toothpick within the heart and brain.[5]

Our understanding of disease has also made great strides, as can be shown by improvements in the treatment of HIV. While still a serious condition, the human immunodeficiency virus has become markedly more manageable, and though it still reduces the overall life expectancy of an individual by 5-10 years, it no longer carries with it the death sentence it held when first discovered.[6]

And yet, even as the provision of medicine continues to improve, the lack of unity among Americans as to how health care should be managed has taken its toll on the industry, bringing with it a host of sociological and ethical issues that often prevent modern breakthroughs from reaching the greatest number of people. … Read more →

Are We Fighting the Right Health Care Battle?0

This article first appeared in Becker’s Hospital Review on August 30, 2012.

Though the United States Supreme Court may have finally put to rest any constitutional disagreements over the Affordable Care Act (ACA), the debate over health care is far from settled.

Finding critics of the landmark decision is as easy as surveying the Court itself, since each of the eight remaining justices took issue in one way or another with the majority opinion set forth by Chief Justice John Roberts.

It therefore comes as no surprise that the aftereffects of the Court’s 5-4 split have already trickled down through nearly every aspect of federal and state politics, providing more than 100 pages of partisan fodder that will ensure both sides have an ample supply of rhetoric to flame this debate for years to come. For this reason, now is the time to ask ourselves if the nation is focusing on the wrong questions. If so, the answers over which we now debate are of little value.Read more →

CMS Issues Final Rules for EHR Incentive Programs, Stage Two0


In 1996 the Federal government took on increased regulatory responsibility with the passage of the Health Insurance Portability and Accountability Act (HIPAA).

This multifaceted bill was broad in its jurisdiction over  both Medicare and American health care in general, as it sought to provide new Federal rules improving continuity  or “portability” of coverage in the large group, small group, and individual health insurance markets, while reinforcing the need to protect the privacy of patient health records.

Combining a group of disparate issues, Title I of HIPAA amended the Public Health Service Act, the Employee Retirement Income Security Act of 1974 (ERISA), and the Internal Revenue Code of 1986. In doing so, HIPAA strove to regulate the availability and scope of group health plans and many individual health insurance policies, including the protection of health coverage for workers and their families who have lost or changed jobs. … Read more →

The Fifth Circuit and Physician Owned Hospitals0

In the 2010 Affordable Care Act, Section 6001 added new regulatory restrictions and requirements for physician-owned hospitals. See 42 U.S.C. § 1395nn(i).

“Physician-owned hospital” means any hospital “in which a physician, or the immediate family member of a physician, has an ownership or investment interest.  The ownership or investment interest may exist through equity, debt or other means, and includes the interest in an entity that holds an ownership or investment interest in the hospital.”  See 42 C.F.R. § 489.3.

Federal regulations previously provided for the “whole hospital” exception to the Stark Laws. This particular safe harbor required that the referring physician/owner: (1) have a financial interest in the whole hospital, and not just a specific part; (2) be authorized to perform services at the hospital; and (3) be expected to actually perform the agreed upon services.  The requirements of Section 6001 substantially modified this exception.  See 42 C.F.R. § 411.362.

Under the Affordable Care Act, the whole hospital exception applies only to physician-owned hospitals that had physician ownership as of March 23, 2010, and had obtained a Medicare provider number by the end of 2010.Read more →