The Impact of Health Care Reform on Physician Liability Exposure

1. The Impact of Health Care Reform on Physician Liability Exposure Ericka L. Adler, Esq. Kamensky Rubinstein Hochman & Delott, LLP 7250 N. Cicero Avenue, Suite 200 Lincolnwood, Illinois 60712 (847) 982-1776 eadler@kr-law.com April 24, 2014 Veronica Brattstrom Senior Risk Management Consultant PSIC Profsolutions.com

2. The Goal of the Patient Protection and Affordable Care Act (ACA) on Health Care Delivery • Contribute to a reduction in the rate of medical inflation • Intended to improve patient care while containing costs • Coordination of health care services • Apply a team approach to disciplinary care • Conversion of paper record to electronic health records • Development of ACO style health care delivery models

3. Impact of ACA on Medical Professional Liability Exposure • Potential conflicts between delivering quality care and reducing costs • Liability due to increased use of nurse practitioners • Heightened patient expectations • Potential new standards of care • New types of information that can be used against a health care provider in court • Conflict between cost containment and providing highest standards of medical care • Privacy and data security issues

4. What are some of the negative results of the ACA? • Failure to comply could result in severe sanctions • Increased funding for health care fraud and abuse enforcement • Expansion of civil monetary penalties • Lower triggers for application of False Claims Act • No need to prove actual knowledge of Anti-Kickback Statute nor specific intent

5. What are some of the negative results of the ACA? • CMS can suspend provider pending investigation of “credible allegation of fraud” • Increased scrutiny of Medicare enrollment • Overpayment must be refunded within 60 days or face False Claims Act Liability

6. How can Physicians deal with the liability implications of the ACA? • COMPLIANCE • Physicians and practices must dedicate staff time and focus on issues • Proper credentialing, snapshot audits, risk self-assessments • PRACTICES MUST BE PROSPECTIVELY COMPLIANT BEFORE AN INVESTIGATION OR ACTION COMMENCES • Practices must be assured that there’s no question billing is compliant

7. Issue: Refusal of Care • Patient with infected toe told to go to hospital for admission and IV antibiotic treatment; • Patient told scope needed for potential stomach cancer based on testing; • What if patient does not follow through? • Common issues: high deductible, fear, religion, do not understandimportance/believe doctor

8. Refusal of Treatment • Liability Issue: • Patients will claim they were not informed about how potentially detrimental it would be to refuse treatment/not follow up with test • Patients do not fully understand risk • Patients did not appreciate time frame for having test or treatment

9. Preventive Measures: Refusal of Treatments • Potential risks of declining recommended course of treatment should routinely be discussed with patients, along with the risks and potential complications of the procedure/treatment itself • Patient should be given opportunity to raise any questions or concerns about proceeding or not proceeding • If patient decides to refuse the treatment, physician should not assume the patient understands consequences of refusal. Physician should verbally confirm the patient understands and has no questions

10. Preventive Measures:Refusal of treatment • Try to understand patient reasons and address • If cost is issue: provide other sources of procedure or testing and document it • Complete, detailed documentation is best. At minimum, notation “Full RBAQ,” indicating a complete discussion of Risks, Benefits, and Alternatives with the patient and the answering of all Questions may be sufficient for a defense. • Follow–up with patient to see if test done. • Free Services?

11. Follow Up Guidelines • Log recommendation into an electronic or paper tracking or reminder system. • Schedule follow-up appointment and discuss with the patient the importance of keeping the follow-up appointment. • If a patient does not appear for a scheduled appointment, the fact should be noted in the chart. Attempts should be made to contact the patient and reschedule the appointment, and those attempts should be documented. • If referring for test / procedure / visit with another healthcare professional, the referral should be tracked in a tracking or reminder system. It should also be noted in the patient’s records whether the patient visited with the healthcare provider to whom the referral was made. If the consulting doctor provided a report, its receipt should be noted, and a system should be in place that ensures the report has been reviewed by a physician prior to being filed in the patient’s chart. All these components of a consultation or referral should be addressed by the practice’s tracking system.

12. Follow Up Guidelines • If a healthcare provider has a patient referred to him or her by another healthcare provider, the physician/consultant has an obligation to notify the referring healthcare provider once the patient has been seen and send a consultation report that includes the consultant’s findings and recommendations. • When contacting patients via a practice reminder or tracking system, HIPAA regulations must be followed. • How many follow up calls or reminders needed?

13. PSICRisk Management Tips Be Crystal Clear • Here’s what we are going to do for you • Use discharge handouts • Consider having patients sign them • Consider inviting family into room (if not already there)

14. PSICWhat to Document • Document the reasons why you are ordering or NOT ordering a test/referral • DOCUMENT why it’s important to follow the recommendations • DOCUMENT the discussion • Document the patient’s understanding of the consequences of NOT following your recommendations

15. Sample Scenario: Co-Pay/Deductible • Patient cannot/will not pay co-pay or deductible • Determine reason why (too much money?) • Offer payment plan where possible • If simply unwilling (i.e. ”forgot” wallet), offer to reschedule for another date or time • Uncooperative patients can be discharged using proper approach • Treat for emergencies always • No abandonment issues/referrals to other resources

16. Sample Scenario:Not Filling Prescriptions • Non-adherence: sicker, more complications, higher mortality rates = $170 billion annually in U.S. • ACA has caused medications previously covered to no longer be covered or cost more. Generics not always available. • 20% of first-time patient prescription not filled • Less likely to fill prescription by non-primary care specialists • Affordability/Ease of filling RX are key • Reduce liability: • Electronic prescribing • Follow-up with patient • Lower cost alternatives/generics • Ask before they leave office if they understand • Check community research (cancer)

17. Liability for Participation in ACOs • New healthcare delivery models may require participants to function in unfamiliar roles or adapt to new processes. In the long run, coordinated care is likely to benefit patients, but shorter term realigning of resources and implementing new processes and procedures may increase the likelihood of a medical error. • ACO-type models may increase professional liability risk by raising patient expectations. An ACO that falls short in delivering fully coordinated care may be more likely to become a target for a lawsuit. • ACOs may result in standards of care that exceed prevailing standards. This could occur broadly, with regional or national standards of care defined by practice specialty, or it could be specific to an organization. • For example, CMS requires ACOs to define processes to promote evidence-based medicine, which could result in creating, and documenting, a heightened standard of care for that organization. • ACO-type models may increase professional liability risk by raising patient expectations. An ACO that falls short in delivering fully coordinated care may be more likely to become a target for a lawsuit.

18. Liability for Participation in ACOs • Coordinated health care may result in additional discoverable documentation that can be used against healthcare providers in a malpractice case. Additionally, since an ACO must issue public reports on certain aspects of its performance and operations, it may inadvertently provide plaintiff attorneys with a roadmap to problem areas of the organization. • Some observers have expressed concern the payment model runs the risk of providing incentives for physicians to not refer patients for needed treatment. • Some new healthcare delivery models expand the responsibilities of nurse practitioners and other types of providers, potentially increasing credentialing exposures and malpractice risk. • Physicians typically prefer vigorous defenses of malpractice claims, but if decisions to settle claims are made by ACO management, the emphasis could shift to settling claims early in order to manage costs. Databank issues must be considered.

19. Liability from Use of Extenders • Increased use of extenders such as APNs and PAs. • Check license and experience • Make sure paper documents are filed with state for employment and prescribing • Meet supervision requirements • Don’t supervise too many extenders (PA = 2) • Bill properly: Incident-to versus using separate numbers • Training, oversight and review are key to minimize liability • Proper record-keeping and education • Various liability issues

20. Liability from Increased Collection Efforts • Guidelines for Handling Patient Debt: • Medical Debt Responsibility Act • Allow 120 days to resolve bill before taking “extraordinary collection action” such as reporting debt to credit bureau, filing lawsuit, liens, etc. • Remove paid medical debt from credit reports within 45 days

21. Liability from Increased Collection Efforts • When transferring debt to collection agency/reporting to credit bureau, still need to communication with agents: • Monthly reconciliation of accounts • Tracking of complaints • Regular audits • Make sure patients understand medical services they require and fees for those services (10 most common services) • Make it convenient to pay at the time of treatment and encourage it • Send bills punctually and follow up consistently on unpaid debt • Have established system to deal with insurance claims • Suing may invite a countersuit!

22. Fair Debt Collection Act • Do not threaten to refer a bill to a collection agency or take any other action unless there is a plan to do so. • Do not threaten to take any action which you know is illegal or impermissible. • Do not call patients late at night or at work if you know they are not permitted to take personal calls. • Do not communicate to a third party, over the phone or otherwise, that you are attempting to collect a debt from the patient. • Do not send overdue notices on postcards. • Do not send statements with “Past Due” marked on the outside of the envelope.

23. PSICRisk Management Tips • Be thoughtful • Develop a protocol/policy for handling outstanding balances • Inform patients of the “rules” of the practice using printed marketing materials (patient information brochures, website, etc.) • Consider using a financial payment plan contract • Assign a point person • Reduce complication by having the same person talk with the patient • AVOID allegations of abandonment • Terminate appropriately • Document Well • Communication is key

24. Liability as a Result of Changes in Doctor-Patient Relationship • Doctors to be forced to do more paperwork and spend less time with the patients • Reduction in reimbursement will compel doctors to see more patients in less time • Time constraints will push patient doctor interactions away from a patient participatory discussion to a more a paternalistic physician-dominated approach • Physicians will have less time to educate, counsel, answer questions and offer explanations to patients and patients will be less likely to understand their diseases and how best to treat them • Physician autonomy will be impacted by more extensive regulation and medical decisions and treatment courses will become standardized by regulators with little medical background and no knowledge or compassion for individual situations

25. Liability as a Result of Changes in Doctor-Patient Relationship • Patients will encounter difficulty of obtaining the care they’ve been accustomed to and want and may feel helpless and upset and likely will blame doctors • Physicians will not be able to practice medicine as they have in the past and will be unable to order tests, consults and medicine the patients need which will be frustrating • Consequences: patient dissatisfaction, misunderstanding, lack of trust in doctor, lack of long-term relationship with providers, poor continuity. MORE LAWSUITS.

26. The Standard of Care Protection Act: Tort Reform • A new Georgia law drafted from an AMA model legislation prevents help performed metrics from being used as evidence in liability cases • Peer guidelines and quality criteria under federal law cannot be used to establish a basis for negligence or standard of care for the purposes of determining medical liability • “Administrative behavior” would not be admissible in court and would not be used in standard of care determination. This could not be “malpractice” or “negligence”. • Will prohibit health system reform provisions from being construed to establish a standard or duty of care or by a healthcare professional to a patient in any liability case.

27. The Standard of Care Protection Act • Would not allow lawsuits be brought against healthcare providers based simply on whether they followed national guidelines created by health care law. • Reinforces medical decisions must be made between patients and the doctors and there is no “one size fits all” practice of medicine.

28. The Standard of Care Protection Act • How would the law work? • Example • In a gallbladder case, the issue should be whether the physician met the standard of care. • Under the ACA: a plaintiff could introduce evidence about the physician’s readmission rate, complication rate or other issues that deal primarily with reimbursement and payment • Under the law, the individual’s physician deciding what is in the best interest of the patient would be determining factor.

29. PSICRisk Management Tips • Office • Hire well • Treat staff well • Cost of hiring, training, etc. • Cross train • Time study/office flow • Patients • Under promise, over deliver • Increase office hours

30. PSICRisk Management Tips • Get a good history • Preventative Care • Ask QUESTIONS • Document • Establish reasonable expectations • Don’t skimp on TRAINING • Invest in staff

31. PSICNew “Business” Ideas • Think out of the box! • Group appointments • Great for chronic disease management • Physician speaks to the group on common issues • Patients then go off for 5 minutes personal appointments with PA/NP/MD • Meet and Beat patient expectations • Improve waiting room experience • Coffee, TV, magazines, no clocks