YOUR MEDICAL OR DENTAL PRACTICE MAY BE “TERMINAL”

Aetna recently dropped 552 physicians from its networks; apparently because they cost too much. It cited the “demand” for “smaller networks that are less expensive.”[1] Insurance company euphemisms aside, since most insurance companies pay physicians from a fee schedule, that can only mean that these physicians must have ordered “expensive” tests, procedures, or therapy. Although each jurisdiction differs on termination rights, most follow a modified “at will” employee concept. In a nutshell, the physician can be terminated at any time without cause but with some notice, and the physician can drop out of a plan, again with some predefined notice, for any reason. The Texas Medical Association, where 130 of the terminated physicians work, pointed out that Aetna only examined Evaluation and Management codes (E&M) 3 and 4, which are most often used by Primary Care Physicians’ for office visits; thus leaving these physicians especially vulnerable.[2]

Are these actions legal? Yes and no. When a physician joins a provider network, he or she agrees to abide by everything in their provider agreement, most of which individual physicians never even bother reading. If you read carefully, you’ll find that the physician has few rights, but many are reserved for the insurance company. Moreover, the fact that you may not have read all the fine print, or had it reviewed by an attorney, does not void it – you signed it! On the other hand, there are situations in which such provisions in provider “contracts” are, in fact, voidable.

A contract is “a promise for consideration.” In other words, “if you do this for me, I’ll pay you this much (yes, it is more complicated, but we’re not getting into that now).” However, the gravamen by which such contractual obligations will be judged by a court is whether or not they were freely bargained for. If one party, literally, had no choice, the contract, or that provision may be voidable. This is important because in many instances, one or two health insurance companies control more than 80% of a market. You don’t have to sign their contracts but, if you don’t, you will simply have no patients and be out of business. This may, however, be a Contract of Adhesion, and may be voidable if such monopolistic coercion is shown to exist. Can you fight back? Can you prevent such an event happening to you? Do you have any rights if terminated? The answer is, “it depends.” For that answer, you need to have your practice and contracts reviewed by a knowledgeable Health Law attorney (not your family lawyer); which will cost less and be less stressful now, than when you are actually dropped.

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[1] Lewis, Morgan Jr., Aetna drops 552 higher-cost physicians, April 11, 2012.

[2] Ibid.

FALSE CLAIMS ACT - VIOLATIONS ARE NOT ALWAYS WHAT YOU THINK.

When physicians and other health care providers hear the words, "False Claims Act," two things go through their minds. First, the enormous awards or settlements that frequently follow such claims. Secondly, "it can't happen to me/us because we never submit a false claim." It's time to understand that a false claim may be different than you think, and take steps to prevent the problem.

Of course, false claims may involve billing for services that were never provided, but there is more to the False Claims Act ("FCA") than you may think. This is one example. The Federal Government expects all claims to represent care provided, at least, at or above the generally accepted standard of care. While a single violation would not lead to prosecution, multiple violations or a trend, most likely would if it were brought to their attention by a whistleblower.

If you care for patients in any institutions, and bill the Federal government or cause such bills to be sent, even by another, you may be liable. Speak with a knowledgeable health care attorney and spend the time and money to review your practices before your name appears in DOJ press releases.

When Trayvon Martin was shot, were more fingers on the trigger than Zimmerman’s?

It is far from certain whether George Zimmerman will be indicted for murder because all of the facts have yet to be disclosed. Even the 911 tape in which the operator tells Zimmerman not to follow Martin, has portions which may indicate that Zimmerman believed Martin to be approaching him and armed, and felt “in fear of his life.” That could work as much in his favor as against him. Either way, though, there will be a civil lawsuit which will raise additional questions.

When Mr. Zimmerman pulled the trigger and killed Trayvon Martin, there may have been more people holding the gun than just him. He was a member of the homeowner’s association and, presumably, acting on their behalf to “patrol” the area. Will the association be liable for his actions? Will the other members of the association? If it is incorporated, will that protect them? We do not yet have the answers to these and other questions, but when they come, they may affect us all. What do you think?

WHEN A ROSE IS NOT A ROSE

(With apologies to Gertrude Stein)

Every occupation has its own lexicon; phrases and jargon that convey a particular meaning (often with subtle differences) within the profession. Certainly no area has more of these than health care. Unfortunately, in 2012 and beyond, our words are no longer limited to our own profession and we need to understand how they are interpreted by others when they leave our hands.

Last week, I was faced with two instances that highlight this. In the first, I was representing a client in a trial in which the meaning of the phrase, “compatible with” was a determining factor in the outcome. As a physician, how many imaging reports have I seen in which that phrase was used instead of making an actual “diagnosis.” Now, I know why we do this, and certainly understand the lack of precision within Medicine and the use of a differential diagnosis, but it was being used in a legal setting, and the “case law” held that “compatible with” did not equal “diagnosis.”

The second instance in which this was encountered was a hearing in which the use of that phrase was pivotal in whether the health care provider was paid. In that case, its use was held to be “constructively equal” (legal jargon meaning “effectively the same thing”) to making a diagnosis. How can the same phrase be interpreted two different ways in our legal system and both be correct? For that answer I would need much more time and room. Using the correct phrasing, however, is becoming increasingly important for physicians and others in health care to learn, if only to be paid for what you do. It’s time to prepare yourself and your practice for the coming changes in health care.

Speak to a knowledgeable health care attorney about a legal check-up for your practice or facility. Just as it is better and less expensive to prevent disease than to cure it, so it is easier and less expensive to prevent these, and other (more serious) legal problems rather than “cure” them later.

DOCTOR?

Recently, I was asked by a friend to comment upon a medication that her mother was being given for arthritis. She felt much better with the medication, but her "doctor" told her that she didn't want to give it to her because it may damage her kidneys. "Certainly, that's a possibility," I answered, "but there are many other medications and methods of treatment available." I then asked whether she was seeing a Rheumatologist. "She's only seeing Dr. X," was the reply. She then followed it by reading from a recent communication, "Dr. X, CRNP."

I agree, as I have in other publications, that anyone who earns a doctorate is entitled to use the term, "doctor." On the other hand, healt care is a different kind of field, and the use implies a particular kind and degree of training - either an MD or a DO and further specialty training. In a patient contact situation, anyone else who uses the honoritic, "doctor," must be absolutely clear who they are and, since that is not always possible, it's use must be avoided wherever it could be misleading.

The legal implications of misrepresentation, intentional or otherwise in health care are potentially staggering. If you are a patient, make sure that the "doctor" who is treating you is really the physician you think they are. If you have a doctorate in anything but Medicine or its functional equivalent and do not make your status clear, the next notice you receive could be from a court.

For questions about how to proceed, contact a knowlegeable health care attorney and don't get caught in the middle of a problem of your own making.

THE END OF AMERICAN RIGHTS!

In 1933, a group of NAZIs set fire to the German Parliament (Reichstag) and blamed it on terrorists. To ensure the safety of the German people, that same Reichstag passed the Decree of the Reich President for the Protection of People and State. This law effectively gave the German Chancellor (soon a newcomer named Adolph Hitler) nearly dictatorial powers and suspended rights that German citizens previously enjoyed. We all know how that turned out.

In the waning hours of 2011, President Obama signed into law the National Defense Authorization Act (NDAA), which makes it legal for ANY PRESIDENT (now or in the future, since there is neither a sunset provision nor a geographic limit) or his designee, to label an American citizen an "enemy combatant" or similar label and arrest and incarcerate them for life, without charge, trial, public notification, right to an attorney, or ANY of the basic constitutional guarantees the Founding Fathers fought for, and Americans have died to protect ever since (see Title X, Subtitle D, SEC 1021(a-e)). This statute makes the U.S. a nation whose ability to tyrannize its own people is not materially different from that of NAZI Germany, Stalinist Russia, or Bathist Iraq. Now, all that stands between us and a dictatorship is the good will of any single President; what has always been referred to as a “benign monarch.”

Benjamin Franklin once said that "those who would trade their freedom for a little security deserve neither and will lose both." The Patriot Act began the decline of American freedoms, and the NDAA has completed it. Thank you, Congress, for returning us to the dark ages of politics, and turning us into our enemies. Thank you, President Obama, for allowing the law to pass and leading us from freedom to tyranny. Most of all, the American people can now thank themselves for electing representatives who would nullify the Bill of Rights and give the government the right to arrest them on American soil and hold them in prison for life, without trial, if you protest any of its actions because that might make you an "enemy combatant" supporting terrorism.

As the comic strip, POGO, once quipped;

“We have met the enemy, and he is us!”

HAVE WE LEARNED FROM OUR MISTAKES?

In 1932, the country was in economic collapse. The stock market crash of 1929 bankrupted businesses and, many of those who managed to survive the crash saw their remaining cash lost in one of the more than 9,000 bank closures that followed. By Inauguration Day in March, nearly all of the nation’s banks were either closed or had at one point been closed, and of those remaining open, most were operating under special state rules designed to protect them. Moreover, Gross Domestic Product (in current dollars) had fallen from $103.6 billion in 1929 to $56.4 billion in 1933.

The bank closures not only took people’s money, but tightened the money supply to the point where even business with good credit could hardly obtain a loan, let alone individuals. Unemployment reached 23.6% so demand dwindled, supply followed, and Franklin Roosevelt’s political opponent and author of the debacle, Herbert Hoover, blamed the depression and its aftermath on Roosevelt’s failure to declare that he would maintain a balanced budget at any cost.

Finally, the disproportionate distribution of wealth in the US had reached crisis proportions. The Atlanta Mortgage Examiner opined in 2009 that , “. . . the main cause for the Great Depression was the combination of the greatly unequal distribution of wealth throughout the 1920's, and the extensive stock market speculation that took place during the latter part that same decade. In 1929 the top 0.1% of Americans controlled 34% of all savings, while 80% of Americans had no savings at all.

Does this sound familiar? Admittedly, we are not in quite the same position today, largely because of the social and economic safeguards that emerged from that era. Stock trading is regulated, bank deposits are insured, unemployment compensation keeps the “short term” unemployed from becoming homeless and without food and Social Security and Medicare/Medicaid prevent our most vulnerable citizens from being completely crushed by an economic juggernaut over which they had little control. We are not “quite” in that position, but we could fall over the edge.

Today, this nation, indeed the entire world is standing on the brink of economic collapse, more from the fear of future events than from the reality of our situation. Moreover, there is a greater disparity in wealth in the United States today than at any time in our history. As of 2004, in terms of financial wealth (total net worth less the value of one's home), the top 1% of households had a 42.2% share of the overall wealth, and the wealthy, both individuals and corporations, do not seem predisposed to any voluntary realignment.

What we need now, just as the nation needed it then, is clear direction. The President cannot pull the nation and the world out of this economic morass by himself, but he can set the tone and lay out a plan for recovery which, alas, President Obama has yet to do. Short of another World War, the only thing that will make a substantial change in things is a Presidential, “Declaration of Principles” of economic recovery and expansion, much as Roosevelt did with his “New Deal.” It wasn’t popular with the Hoover conservatives, and some of his proposals were ultimately declared to be unconstitutional, but they had the effects of getting the country moving again, and relieving enough doubt in people’s minds to begin bringing money back into the markets.

It is time to tell the nation and the world that the US will expand jobs by hiring people to rebuild and expand our crumbling infrastructure. Let everyone know that we will make massive investments in returning manufacturing jobs to the US by investing in research and development, education, and supporting businesses that manufacture new products such as the “Green Tech” industry that produce products in the US, that we can sell to the world.

We need to limit global warming, of course, but such a limit will do little good if poverty, war and famine eliminate large portions of the world’s population. Therefore, while we’ve converting to an economy based upon renewable energy, we must announce that we will utilize our massive reserves of coal and natural gas to eliminate the need for purchasing oil from the Middle East and other “enemies;” and we will do it NOW.

Finally, the President needs to announce a broad based program to encourage home purchases. This would include not just first time buyers with good credit, but those whose financial fortunes brought them to credit ruin and home loss. This would not require a government investment at all, but a government mortgage loan guarantee program that releases people from the iron grip of the credit reporting agencies that now holds them down.

With these steps, we will restore not only the “full faith and credit” of the United States, but the confidence of the people that the world will be better for our children than it was for us, and that the best days of our republic are still ahead of us. Without them, we will continue along our current, inexorable path toward becoming a footnote in history.

               Have we learned from our mistakes?