Institutional Issues

Charitable Hospitals

What was charitable immunity and why did we have it?

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?

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?

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?

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?

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?

Theories of tort liability for health care institutions

Direct negligence Vicarious liability

Employee? Control theories

Ostensible agency Implied agency Apparent agency

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?

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

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

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?

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

Fraud and Abuse

Are You Cheating the Government?

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

What does the government care about?

Cost Utilization (medical necessity) Quality

Cost

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

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?

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?

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?

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

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?

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

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

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

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?

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

"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?

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

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

Is Bad Care Fraud?

What would make bad care fraudulent? What are you certifying when you bill for care?

Whistleblower Provisions

Only protection if you bring suit Not a good protection

Interesting issues

Bribes by device and drug companies PATH audits (medical schools) HCA

Qui Tam

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

Understanding Self-Referral Laws

Physicians as Fiduciaries

Model Penal Code Informed consent law General principles

Knowledge differential Power differential

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

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

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

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

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?

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?

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

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?

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?

The Stark Law Approach

Start 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

Philosophy of Stark

Simplify the law by clearly outlining the forbidden areas

Create safe harbors that can be used as models

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

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?

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?

The Integrated Provider Exception

Integrated providers provide both medical and hospital and other services

It is OK to tell employees where to refer patients You cannot pay employees a bonus for referrals,

but they can share in the profits (gain share) Does this exception make any sense? Does it just provide a way for hospitals to avoid

self-referral laws by buying physician's practices?

Antitrust

Fundamental Assumptions

Competition is good Big is not bad Monopoly practices are bad People should be allowed to buy whatever quality

they want The market will provide whatever is necessary

Market Organization

Vertical markets Horizontal markets What is the market for services?

Rural markets with limited providers Urban markets

Are there specialized services?

Monopoly Power - What one Competitor Does

What does monopoly power allow? Unilateral anticompetitive actions

Tying Retail price maintenance agreements

Before the court right now

Joint Action

Any time competitors make agreements that affect competition there is an antitrust question

Professional standards can be anti-competitive vehicles

Why are docs such a problem? Are labor unions an alternative?

Penalties

Federal prosecution Criminal fines Prison time

Civil enforcement by the FTC Fines Treble Damages

Private enforcement Treble damages and attorney's fees

Per Se v. Rule of Reason Violations

Per se violations only require proof of the violation, not the market power of the competitors or the effectiveness of the action

Rule of reason violations require detailed market analysis

The defendant is well on the way to winning if the court decides it is rule of reason

The Professional Standards Defense

Is it a defense that the restraints improve patient care? Why does the FTC not care about quality? What are other controls on quality?

Can you do group action through a professional organization? Is JCAHO an illegal conspiracy?

Per Se Violations Through Joint Action

Group boycott Wilk - Chiropractor Indiana Federation of Dentists

Market division agreements Price fixing

The Advertising Cases

Lawyer advertising First case was advertising lower prices Then any truthful advertising

Physicians Followed the lawyer cases

Physician Staff Privileges Cases

How can staff privileges become an antitrust issue?

Is peer review among competitors always an antitrust issue?

How could the staff avoid this claim? What did the feds do to protect peer review?

Federal Health Care Quality Improvement Act

How do Antitrust Issues Change with Health Care Consolidation?

What can large group practices do that individual docs cannot do?

How about hospitals buying physician practices? How does this affect competition?