March 23 marks the two-year anniversary of President Barack Obama’s ambitious and controversial Patient Protection and Affordable Care Act. While the ultimate legacy of this landmark legislation remains to be seen, its fate will soon rest in the hands of the nine U.S. Supreme Court Justices, and then possibly the Electoral College.

With talk of constitutional challenges and potential repeal sharing headlines almost every day, now is the perfect opportunity to trace the changes in American health care over these past 24 months.

As our health care system continues to experience growing pains, certain basic tenets of reform have already made their mark, and may be difficult to retract in the event of the bill’s failure. The number of insured young adults under the age of 26 has continued to rise since 2010, as has the estimated 105 million Americans who no longer face lifetime limits on health benefits. Statistics also point to 50,000 newly insured who had in the past failed to qualify for health insurance due to pre-existing conditions.

Across the nation, individual states are gearing up for health insurance exchanges, while hospitals and physicians prepare for monumental changes in the Medicare reimbursement infrastructure as it transitions from a historically cost-based to a performance-driven platform.

Under the reform bill, the Federal Government has increased its presence with an unprecedented focus on eliminating health care fraud, abuse and waste.

Thanks to the Office of the Inspector General, Centers for Medicare & Medicaid Services and Department of Justice having procured health care fraud-related settlements and judgments in excess of $3 billion last year (capping the largest three-year streak in history with a total of $8.7 billion since January 2009), health care providers are now busy crafting or fine tuning their own custom-tailored compliance programs.  At the same time, providers must also fight off Medicare and Medicaid related audits from a number of newly created entities known only by their acronyms (RACs, MICs, MACs and ZPICs to name a few).

No matter what effects the Supreme Court’s decision and upcoming elections may hold for the Affordable Care Act, it is clear that American health care will never be the same.

Only time will offer any definitive perspective for us to evaluate the changes it has imposed upon the delivery of our nation’s health care.

Welcome to health care reform, year three, as it promises to be a busy one.

Lessons From My Father0

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

“Everything in moderation, including moderation.”  –Oscar Wilde, Irish writer and poet

When it comes to understanding what it means to be a man, little boys typically look toward one specific individual, Dear Old Dad.  What is not so consistent, however, is the manner in which a father chooses to undertake his role. Nowhere else is the drive to impart all that he has learned so strong and the possibility of instilling hard-won wisdom so pronounced as when a father looks at his eager young son. And yet, for this very reason the school of fatherhood boasts a subjective curriculum at best, as the competency of the teacher pales in comparison to the ways in which the student will go on to apply these lifelong lessons, many of which have been handed down through generations, whether knowingly or not.

Several thousand years of fiction tell us all we need to know about how tenuous the influence of a mature man upon his children can be.  From King Laios of Thebes (the biological father of Oedipus) to Wilbur Meecham (the tyrannical father of Ben) to Carlisle Cullen (the eternal father who adopted Edward), the most valuable lessons often emanate from the reactions of the son rather than the actions of the father. In truth, a man’s best intentions may fall upon deaf ears or be misinterpreted by a youth struggling to carve the foundations of his own identity, and sometimes the best we can hope for is that a little luck and our unspoken influence through way of example will provide the necessary navigational instincts for our children as they pass through whatever storms may confront them.

The relationship between father and son is always complicated and in each case unique, with every example of success or failure providing a new interpretation on what it means to be a father. If that was not enough, there is never a guarantee that an idyllic father will raise a comparable son, or that the child of an atrocious man will ultimately follow in his ancestor’s malevolent footsteps. This cumulative nature of fatherhood is in many ways for the best, as nearly every boy at one point or another finds himself determined to be anything but his father. Today, however, as I read that rhyming masterpiece of Dr. Seuss, Hop on Pop, to my 10-month old son on what would be my own father’s 75th birthday, I realize that not only am I deep into uncharted territory, but there is no way of knowing what aspects of history might repeat themselves. Without any guidance or source of direction, how will I ever know if I am a good father?

In looking for answers, I find it hard to gather much from my siblings on what it means to be a father, as both my brother and sister learned from the same role model I did. While fiction and history provide a number of cautionary tales, they are blueprints at best, to be relied upon loosely.  But even as I try to learn from the experiences of friends whose opinions I respect on this subject, there remains the ever-present fact that every case is different, from the point of view of both father and son.  Though one friend is in my opinion an exemplary role model for his children, I cannot help but wonder how much of his inspiration stems from his contentious relationship with his own father, the secrets of which are lost on me and my very different experiences growing up. An example in stark contrast does little more than cast an even brighter light on the many different facets that can shape the paternal instinct. … Read more →

Advice from Antiquity0

“Life is like riding a bicycle. To keep your balance you must keep moving.”  — Albert Einstein

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

Every so often I stop to reflect upon the seemingly random series of events that have led my life to its current point. In times like these my mind rarely gravitates toward any single individuals who left lasting impressions, positive or negative, but instead remains fixed on the patterns that have emerged over time.  Make no mistake, I still search for a seemingly insignificant or banal event from my past that might offer some magical context to help define the person I have become, especially in light of my newfound fatherhood.  And yet, while I am not holding out for such an epiphany any time soon for myself, such a revelation could do wonders for my son as he crawls faster and faster toward the conclusion of his first year.

At the age of eleven, I read my first Greek myth, and I was hooked. Eleven years later, I graduated from college with a major in classical studies, a discipline I have described as familiarization with an abundance of Greek myths experienced in a written rather than spoken format, in a language that dates back seven to ten thousand years.  From this historical depository of dactylic hexameter and Socratic dialogue, a few key tenets have remained permanently etched in my brain, and it is not uncommon for me to draw upon these scraps of wisdom on any given day. While often overshadowed by the technological advances that largely define our fast-paced modern society, I continually find that those bits of knowledge I learned twenty years ago are more than enough to help me navigate through even the most baffling of days.

Victory comes to men in turns.”

This famous quote from a traditional English translation of Homer’s Iliad is a source of comfort and hope in troubled times as well as a gentle reminder for us all to strive for humility at any stage. … Read more →

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


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 →

Instructions Never Included0

“Man cannot discover new oceans unless he has the courage to lose sight of the shore.”

— André Gide, French author

This article was first published on the PBS affiliated website This Emotional Life.

I have decided at last to forgo my search for instructions. Though it was nearly a decade ago that I first hoped to uncover an operational manual at work during my first tenuous days in an unfamiliar hospital environment, such guidance always escaped my discovery.

Seven months ago a new job of sorts presented itself to my wife and me, and not surprisingly, this owner’s manual also turned up missing. The resultant experiences brought about by new fatherhood have only served to reinforce my decision to trust my instincts from this point forward, as while there is an abundance of literature that purports to bridge such gaps in both professional and personal knowledge, I have yet to encounter any crisis brimming with patience, be it related to emergency department protocol or an unexpected and unexplainable late night tantrum.

In my professional role as health care attorney and consultant, I have come to grips with the fact that the federal government may not publish an “executive summary” covering all 2,700 pages of last year’s Patient Protection and Affordable Care Act (PPACA, more commonly referred to as health care reform) anytime soon.  … Read more →

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.

California’s Unique Funding Picture1

This article first appeared in the August 25, 2011 edition of Payers and Providers.

As President Obama’s Patient Protection and Affordable Care Act (PPACA) continues to evolve, the structure of health care in the United States grows ever more complicated, and California is no exception to the rule. One of the nation’s most expensive states when it comes to treating an average hospital patient, California makes up more than 10% of what the U.S. spends on health care annually.  Therefore, it is not surprising that state legislation has designated certain opportunities for its hospitals to benefit from special programs designed to fortify their financial stability in the short term.

However, with these conditional programs come additional regulations, making an already complex system even more difficult to navigate.  Leapfrogging over the myriad requirements relating to authorizations, categorization of in- and out-of-network providers, and the other combinations of factors that exist as a condition precedent to accessing non-emergency care, many of California’s hospital administrators have recently found themselves in the eye of health care’s hurricane, temporarily lulled into submission by the peace of mind granted by such programs and their promised funding, even as the chaos surrounding the nation’s health care reform is presented daily in the press. … Read more →

Will Health Care Reform Survive Its Sophomore Term?0

This article first appeared in the Daily Journal on August 17, 2011.

When President Barack Obama signed the Patient Protection and Affordable Care Act (PPACA) last year, he effectively gave the United States a map to describe the route of American health care for the foreseeable future. And if its initial robust 2,700 pages were not enough, additional regulations proved quickly forthcoming. As necessary and expected as these supplements may be in the grand scheme, pouring through their merits can be daunting.  To make matters worse, the frequency with which the federal government updates health care reform through regulatory addendums is not only confusing to the general public and health care professionals alike, but it provides opportunities to infuse partisan politics on either side, which detract from the gravitas of the situation at hand.

The last few months have seen clarifications to some key components within PPACA. For example, in April the federal government released the long awaited and much anticipated details defining Accountable Care Organizations (ACOs). Although ACOs are not set to take effect until 2012, these proposed regulations may have unexpectedly stalled the fervent collaboration between private payers, physicians, and health system leaders previously occurring nationwide.

On the surface, ACOs may trigger well-established violations of law without the benefit of a new, expected safe harbor provision or other comparable exceptions, especially in California where the corporate practice of medicine is prohibited. Moreover, proper formation of ACOs under the regulations will necessitate a significant capital commitment, a commodity that has been depleted in a state like California with serious financial burdens separate and apart from an underfunded health care system, which is in the process of entering the electronic health records age with physical structures that must meet state mandated seismic safety standards.

Perhaps as a way to provide some assurance that the fledgling ACO-collaborations stay on track, the federal government subsequently offered details on its Pioneer ACO Model. The Pioneer Model caters to health care alignments with preexisting experience in coordinating patient services, thus creating a “fast track” from the shared savings model to a population-based model. Similar in structure to the Medicare Shared Savings Program, the federal government hopes that its Pioneer Model will set the gold standard for ACOs in the future as these new entities scramble to align payers, providers, and patients.

Last month the federal government released approximately 300 pages of guidelines addressing the ways in which states must implement new ”affordable insurance exchanges” by the Jan. 1, 2014 deadline, although California was the first state to pass legislation in this regard. Last week, the government directed another $185 million in “establishment grants” to assist the individual states with their health exchange endeavors. The exchanges intend to provide consumers with a variety of private health insurance options displayed in such a way as to allow an easy comparison of covered services, premiums, co-pays and deductibles.  This is indeed the quintessential harbinger of health care’s future under PPACA.

At least one article reporting on the new regulations last month (Los Angeles Times, July 12, 2011) commented that the exchanges are designed to make the purchase of health insurance much like employing the Internet to purchase airline tickets and hotel reservations.  Whether accurate or not, such an analogy is frightening and evokes images of innocent hospital patients shopping for coverage just prior to an appendectomy, and ending up on standby for gallbladder surgery with a layover in the ICU.

One of the primary objectives of the exchanges is simplification. Necessary or not, these new regulations do very little to ease the minds of most health care consumers. Instead, this outpouring of information strikes fear in the hearts of hospital patients. Both fan and foe of PPACA can agree that there is plenty of information to process at present, and even more assembling on the horizon.

And if that was not enough information to digest, last week the 11th U.S. Circuit Court of Appeals held that the individual insurance mandate is unconstitutional, thus creating a split amongst the circuit courts. In ruling against this component of health care reform, the court argued:  “The uninsured have made a decision, either consciously or by default, to direct their financial resources to some other time or need than health insurance.” (Florida v. United States Dept. of Health and Human Srvs.,(11th Cir., Aug. 12, 2011.)

But have the 50 million uninsured really made a decision, or is their inaction simply a reaction to the confusion inherent in our current health care system? Making sense of the situation will take time, and any rush to judge these developments will result in a disservice to all those involved. As lengthy as it is, the original text of PPACA did little more than outline a new way of delivering health care to a nation in need of support.  In fact, a majority of PPACA’s initial draft relates to pilot programs, preventative care measures, and other studies that focus on the future of medicine, rather than the delivery of health care.

And while the fight to repeal PPACA moves closer to the U.S. Supreme Court, as well as into the hands of the debt ceiling legislation’s “Super Committee,” it is important to remember that from a practical standpoint, PPACA’s legacy remains difficult to quantify until it has been given the chance to mature into a definable entity.


No Choice But To Care: What Happens When a Hospital Can’t Shut Its Doors?0

This article was first published on Becker’s Hospital Review.

Well into its second year, President Obama’s Patient Protection and Affordable Care Act continues to exhibit a series of growing pains as it struggles to flex its muscles and mature. As with any rapidly evolving entity, our nation’s healthcare system has been reshuffling a number of core options lately, and though only a select few draw national attention, the recent vote to keep Oak Forest Hospital up and running in Illinois’ Cook County sheds new light on an escalating problem within the American healthcare structure. Namely, who pays the greatest price when a hospital is not allowed to shut its doors?

As the fledgling PPACA gains momentum, change is certainly afoot. Earlier this year the federal government placed strict requirements on those insurance companies who intend to raise plan premiums in excess of 10 percent. Last month, the same federal government announced that hospitals could no longer ignore patient satisfaction if they wanted to maintain their Medicare reimbursements without additional cuts. Prior to that, the Centers for Medicare & Medicaid Services released a set of much anticipated proposed regulations for accountable care organizations, which will arguably become the blueprints for the future of American healthcare. The draft requirements, however, make it clear to any but the largest health care providers that the future of medicine is both cost prohibitive and fraught with even more regulatory minefields than the existing system.

This is not good news for smaller, independently owned hospitals struggling to stay afloat in the current economic climate. It also emphasizes the frightening fact that each year fewer emergency departments are available nationwide, in urban neighborhoods in particular. A recent study by a doctor at University of California at San Francisco states that one out of every four hospital emergency departments has shut down in the past 20 years, even as ED visits have increased by 35%. The strain of regulatory pressures on today’s medical facilities is causing significant cracks in the foundation of America’s healthcare structure as a whole, and if not rectified in the short term, it will ultimately be the patient who is forced to do without.

When the Emergency Medical Treatment and Active Labor Act (EMTALA) was passed in 1986, requiring hospitals to provide medical care to anyone needing emergency treatment, regardless of citizenship, insurance, or ability to pay, hospital administrators across the country clamored that such a mandate would be the death knell of many of the nation’s hospitals. Imagine their surprise to hear that we as a nation have progressed so far this past quarter century as to not allow a failing hospital to close when it can no longer afford to provide for its community.

Though the basic tenets of the PPACA are laudable in their attempts to provide a broader range of coverage, in the final analysis healthcare is a business, and as such must be allowed to follow the traditional rules of commerce if it is to be expected to successfully provide an acceptable quality of service. By forcing hospitals to stay open when they are financially unable or unwilling to do so, the system effectively creates a smoke screen, tricking patients into thinking they have access to reasonable medical care when in fact the facility is scraping bottom.

While federally mandated health care does its best to ensure that no one slips through the cracks, such blanket coverage comes at a price. And that price just might be your local hospital.