1 / 63

Health Care Law

Health Care Law . Professor Edward P. Richards LSU Law Center http://biotech.law.lsu.edu/. Institutional Issues. Charitable Hospitals. What is the social bargain behind charitable status of hospitals? What is competitive advantage of being a charitable hospital?

roch
Download Presentation

Health Care Law

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Health Care Law Professor Edward P. RichardsLSU Law Centerhttp://biotech.law.lsu.edu/

  2. Institutional Issues

  3. Charitable Hospitals • What is the social bargain behind charitable status of hospitals? • What is competitive advantage of being a charitable hospital? • What issues does this raise during a conversion to a for-profit hospital? • Charitable immunity for torts and its demise

  4. Who Benefits in Charitable Organizations? • Who stands in the shoes of shareholders in overseeing the mission of charitable organizations? • What is surplus? • What is the inurnment problem? • How do you decide if there is an inurnment problem? • What are the constraints on joint ventures between charitable and for-profit organizations?

  5. Charitable Purpose • What is charitable purpose? • Is a bigger better hospital a proper charitable purpose? • Is more surplus? • What are ways to measure community service? • What should the IRS or state tax agencies look at in determining charitable purpose?

  6. EMTALA • How does EMTALA work? • Who does it apply to? • Is EMTALA a medical malpractice law? • What is emergency care under EMTALA? • Why does this pose a problem for chronic disease management? • What are the government remedies for violations? • What are the private remedies for violation? • What incentives does EMTALA give hospitals in poor neighborhoods?

  7. How does EMTALA Benefit Specialty Hospitals? • What is the quality justification for specialty hospitals? • What is the cost justification? • How does EMTALA affect their economics in LA? • What is the impact on community hospitals? • What problems does this cause for health care in the community?

  8. Theories of Tort Liability for Health Care Institutions • Direct negligence • Vicarious liability • Employee? • Control theories • Ostensible agency • Implied agency • Apparent agency

  9. ERISA • What is ERISA? • Why was health insurance included in ERISA? • What competitive advantages does an ERISA qualified health plan have? • Who regulates the plans - state or the feds? • Affects on liability for medical necessity decisions? • About coverage decisions, i.e., does the plan have to pay for things like experimental care? • How do you tell the difference between a coverage decision and a medical necessity decision?

  10. ERISA and Health Care Reform • How does ERISA affect state efforts to create statewide access to health care? • What was the Maryland Wal-Mart bill? • Why did it run afoul of ERISA? • What things can a state do that are not a problem for ERISA? • What state actions will run afoul of ERISA • Think about California and Massachusetts

  11. Discrimination Law • How does the ADA affect health care providers? • What other discrimination laws do health care providers have to worry about? • Explore the issues posed by an HIV or hepatitis B infected health care provider • Explore the issues posed by an HIV or hepatitis B infected patient

  12. Staff Privileges and Hospital–Physician Contracts • What is the effect of removing a physician from the hospital medical staff? • National Practitioner Database issues? • Practice issues? • What are the due process rights for physicians? • Private hospitals? • Public (government) hospitals? • What legal claims might a physician make for improper termination? • How did Congress limit these claims? • Why did Congress limit these claims?

  13. Labor and Employment • What is employment at will? • What is the NLRB? • What can unionized physicians do that independent contractor physicians cannot do? • Who can form a union? • What is a bargaining unit? • Why do hospitals hate unions? • Discuss the limitations of whistleblower laws

  14. Fraud and Abuse Are You Cheating the Government?

  15. Conditions of Participation (COP) • The contract between the providers and CMS • If you do not comply with the COP you can be denied payment or excluded from the program • If you knowingly violate the provisions of COP it can be grounds for false claims and criminal prosecution

  16. What does the government care about? • 1) Cost • 2) Cost • 3) Cost • 4) Cost • 5) Utilization (medical necessity) • 6) Quality

  17. Cost • This is controlled directly • The feds decide what they want to pay • What are the constraints on pricing?

  18. Utilization (Medical Necessity) • What are the issues we have seen on medical necessity? • Is the treatment needed? • Is it experimental? • Is it effective? • Is it covered by the policy • What are the political constraints on the government in setting utilization rules?

  19. Quality • Does the government care about quality? • What about when quality and cost collide? • Should patients have a right to cheaper, lower quality care? • Does the federal government directly control quality? • States? • JCAHO?

  20. Fraud Issues • Was the care delivered at all? • Durable medical equipment scams • Billing for more care that was actually delivered • Was the care necessary? • Was the care unbundled? • (Charging separately for care that should be one charge) • Where kickbacks paid?

  21. Related Laws • General government contracting laws • Mail and wire fraud • RICO • False Claims Act • Statutory penalties - $5-11,000 per claim • Treble damages (whichever is higher) • Qui tam - private enforcement

  22. Coding • CPT codes - AMA • Some are time based • Others are work-based • You get paid more for doing more • It does not matter how long you take • Levels 1-5 • Is it better to see a lot of patients or do a lot to each you see?

  23. Why use Codes? • Uniform billing for all claims • Equalize billing across specialties • Provide incentives for more comprehensive care • Allows computerized payment • Allows tracking of medical information derived from claims forms

  24. Upcoding • Anything that increases the payment for the encounter • Can be legal • Optimizing coding • Can be illegal • Work that was not do, or work that was not properly documented • Misstating the patient's medical condition

  25. US v. Krizek, 111 F.3d 934 (D.C. Cir. 1997) • The judge thinks the doc is a good guy • Criticizes the crazy reimbursement system • Let the doc put on evidence of standard billing practices to refute fraud charges • Thinks the law is crazy because the feds can assess $81,000,000 in penalties

  26. What did Krizek do wrong? • Did he actually treat the patients? • Was his treatment medically necessary? • What were the issues in billing? • Billed for 40-50 minute time code for everyone • Who did this • What was the justification? • Did the doc know?

  27. Doc's Defense • He really did spend the time, he just did not spend it all on the patient • Lots of stuff you do in the office as part of the care

  28. "Scienter" - What does the prosecutor have to show the Doc knew? • Intent to defraud? • Knowing that the claim is wrong but submitting it anyway? • Why does the statute specifically say that there is no need to prove intent to defraud? • What is the doc's certification problem?

  29. District Court Ruling • Found liability on the days when there were more than 12 codes for 50 minutes • Thought that the doc was liable, but an unfortunate system

  30. Appeals Court • Makes it clear that reckless ignorance is wrong and grounds for liability under the Act • Is not sympathetic to the doc's claimed slipshod accounting

  31. Is Bad Care Fraud? • What would make bad care fraudulent? • What are you certifying when you bill for care?

  32. Whistleblower Provisions • Only protection if you bring suit • Not a good protection • Health care is a vindictive business • Whistleblowers and folks who are not team players get screwed

  33. Interesting Issues • Bribes by device and drug companies • Oncologists can make millions on the drugs they administer - should you care? • PATH audits (medical schools) • HCA/Tenant Health Care

  34. Qui Tam • Standing in the shoes of the government • 15-20% • Feds can march in • May not apply to claims against states

  35. Understanding Self-Referral Laws

  36. Physicians as Fiduciaries • Model Penal Code • Informed consent law • General principles • Knowledge differential • Power differential

  37. Fiduciary Obligations • The physician acts as purchasing agent for the patient • Self-referral laws target incentives that encourage the physician to make certain decisions contrary to the patient's interests • Order unnecessary care or tests • Choose providers based on criteria other than the best interests of the patient

  38. Why Does the Federal Government Care? • They claim to care about quality • FTC undermines this with talk about the right to buy cheap, crummy care • They care a lot about costs • Unnecessary care is wasted money and bad for the patient • It is assumed that if a kickback is necessary, the care is either worse or more expensive

  39. Problems with the Federal Bias • The feds are only concerned with incentives to order more care or to steer care • They do not care if there are incentives to deny care • Big issue with HMOS and other structured plans • Underlines the problem with consumer directed care

  40. The General Self-Referral Laws • There is broad statutory authority banning deals that create incentives to refer business • These deals have to be analyzed to map out the cash flow to determine what incentives the physicians see

  41. The Lease Scam • Hospitals often own professional buildings • Physicians in the professional are more likely to admit patients to the hospital • Proximity • Shared services • Is the hospital providing incentives for physicians to be in their professional building? • How do you put a fair market value on proximity?

  42. The Recruitment Scam • The hospital sees that there is a need for physicians with specific skills in the community • The hospital recruits a physician with a relocation package • Moving expenses • Salary support for a period of time • Does any of this obligate the physician to refer to that hospital? • What if it is the only hospital in the community?

  43. The Lab Scam • There is a huge amount of money in medical lab tests • Hence my skepticism about the real causes of defensive medicine • Is the lab providing incentives to the physician? • Direct kickbacks • Subsidized services, like renting space in the physician's office • Gifts - trips to the fishing camp

  44. The Hospital Investment Scam • Hospital wants to increase the flow of surgical patients • Hospital sets up surgical suite as a separate corporation and sells surgeons shares • Earnings are based on the capital contribution • What is the impact of a admitting patients on the physician's return on investment?

  45. The Practice Purchase Scam • Hospital buys the physician's practice • Hires the physicians to deliver care in the new hospital practice • Is this really a sale or just a kickback scheme? • How was the business valued? • What are the terms for payment? • Is any of the payment contingent on referrals?

  46. The Stark Law Approach • Stark has a list of 11 defined services • Any deals that influence the ordering of these services are banned • There are a series of safe harbors for transactions that are not thought to be abusive

  47. Philosophy of Stark • Simplify the law by clearly outlining the forbidden areas • Create safe harbors that can be used as models

  48. Problems with Stark • Too much money in the forbidden areas • Doc and hospitals go the extra yard to game the system • Spotty to non-existent enforcement • No clear boundaries • Puts complying entities at a completive disadvantage

  49. Exceptions to Stark • Physician controlled ancillary services • If the doc runs the lab and it is part of the practice, it is not covered by Stark • What is the incentive? • Is it even worse than for an outside lab?

  50. Analyzing Stark Transactions • Is it a covered service? • Does it met the ancillary service exception? • Is there any financial linkage between the provider and the referring doc?

More Related