Tag Archives: doctor

Sexual Misconduct by Rogue Employees Can Cost Big Money: Your Responsibility as an Employer

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Johns Hopkins Health System agreed to shell out $190 million to more than 7,000 women and girls, in one of the largest settlements ever in the United States involving sexual misconduct by a physician.

A gynecologist, practicing in a Baltimore-based Johns Hopkins Hospital, one of the nation’s most prestigious medical institutions, was accused of using a tiny camera to secretly take videos and pictures of his patients. The doctor worked at the hospital for 25 years, but was fired after admitting to the misconduct and surrendering his recording devices to authorities.

This is a chilling example of how employers can be held responsible for “rogue” employees clearly not working under the consent of the employer. In general, employers have a responsibility to properly supervise their employees’ actions. As in this case, failure to do so can cost millions.

Background of the Case.

According to the Wall Street Journal, a co-worker tipped off Johns Hopkins officials that the gynecologist was wearing a pen around his neck that looked like a camera. In February 2013, an investigation revealed that the gynecologist secretly used the device in question to photograph and videotape thousands of women and girls during pelvic exams. The investigation found that the doctor’s camera captured 1,200 videos and 140 images of his patients, that were then stored on his computer. The doctor was fired in February 2013, and committed suicide days later.

Click here to read the entire article from the Wall Street Journal.

“Rogue” Employee.

In this case, Johns Hopkins states that insurance will cover the entire $190 million settlement. The preliminary agreement is awaiting final approval from a judge. In a statement, Johns Hopkins’ attorney said that the hospital was unaware of the doctor’s conduct, and that he had become a “rogue” employee. The hospital sent out letters of apology to the gynecologist’s patient list, calling the incident a “breach of trust.”

Click here to read all of the statements from Johns Hopkins Medicine in regard to this incident.

Employer’s Responsibility.

The lawsuit against Johns Hopkins alleged that the hospital failed to properly supervise the doctor and should have known of his alleged misconduct.

This situation brings up an interesting point, even though the employee was acting on his own accord, the health system would still likely have been held liable if the case was not settled.

Employers are generally “vacariously liable” for their employees’ actions. The basic idea of vicarious liability or the doctrine of respondeat superior is that an employer is held responsible for the negligent acts of its employee that cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment.

To establish that the employee’s conduct was within the scope of employment:

1. The conduct must have occurred substantially within the time and space limits authorized by the employment;
2. The employee must have been motivated, at least partially, by a purpose to serve the employer; and
3. The act must have been of a kind that the employee was hired to perform.

In certain circumstances, including the example of the gynecologist, an employer’s vicarious liability can extend to intentional or even criminal acts committed by the employee.

Vicarious liability is a powerful concept and, as evident by the Johns Hopkins case, can result in an employer being responsible for significant sums of money. Employers should institute policies which curb activities that could be injurious to others. The employer has a responsibility to monitor employees and immediately investigate any suspicious activity.

Despite the fact that Johns Hopkins acted quickly, the hospital system will still most likely be left holding a settlement sum of $190 million for actions of an employee.

Comments?

As an employer, how do you make sure your employees aren’t acting on their own or violating company policies and procedures? Please leave any thoughtful comments below.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of sexual misconduct and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Linderman, Juliet. “Hopkins Pays $190M in Pelvis Exam Pix Settlement.” Associated Press. (July 22, 2014). From: http://apne.ws/UquXOI

Levitz, Jennifer. “Johns Hopkins Agrees to $190 Million Exam-Photos Settlement.” Wall Street Journal. (July 21, 2014). From: http://online.wsj.com/articles/johns-hopkins-hospital-agrees-to-190-million-exam-photos-settlement-1405961572

Johns Hopkins Hospital. “Statement from Johns Hopkins Medicine on the recent news surrounding Nikita Levy, M.D.” Hopkins Medicine. (July 21, 2014). From: http://www.hopkinsmedicine.org/news/Nikita_Levy.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Pediatricians Who Are Targets of Medicaid Audits Should Request Hearings on the Final Audit Report Results

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We have recently been contacted by several pediatric practices that were subject to Medicaid audits. In several cases, the pediatricians received the final audit reports (FARs) stating that they owed Medicaid refunds, because of overbillings, in the tens of thousands of dollars.

With such demands for repayment of the alleged overpayments also come:

  1. Fines;
2. Penalties;
3. Requirements to sign agreements to refrain from such practices in the future;
4. Requirements to have personnel retrained; and
5. The specter of future audits.

In many cases, Medicare and Medicaid auditors may swiftly review supporting medical records and overlook key components that support the level of services (or CPT codes) that were billed, erroneously downgrading the code or disallowing the charge completely. Other times the pediatric or medical practice may have only provided partial records and have left out some key records that would support the codes billed.

Challenging the Determination.

Unfortunately, after receipt of the FAR, the only hope of challenging the determination would come by filing a written request or petition for a formal hearing in, specifically, a Medicaid case. In Medicare cases, other interim reviews or appeals are available.

If you have additional records you failed to provide, or if after a thorough review of the records you did provide show that all of the elements of a CPT code you billed (e.g., 99204 or 99205) were documented, then we recommend that you immediately retain the services of a board certified health lawyer experienced with Medicare and Medicaid audits to file a petition for you. Be sure a written request or petition for a formal hearing is filed within the time stated in the letter you receive, even if you must retain an attorney afterwards. Remember that the request must be in writing and must be received by the agency at the address specified before the date in the letter has passed.

You can always work out a settlement agreement, repayment agreement, or agreement for a different resolution of the situation. What you can’t do is to go back and get back your hearing rights after they have expired.

Steps to Take if you Receive Notice of an Audit.

What you should do immediately upon receiving notice of an audit:

 1. Retain the services of a board certified health lawyer who is experienced with such audits.

 2.  In a timely manner, provide all relevant documents pertaining to the audit, properly labeled and pages numbered (note:  in many instances, this may include more than just the minimum documents the audit requested).

 3. Watch for any interim, initial or preliminary audit reports (PARs), and be prepared to rebut it in detail if it requests a refund.

 4. If you receive a FAR demanding a repayment, be prepared to hire a board certified health lawyer who is experienced with such audits, if you have not already done so.

 5. If you disagree with the findings in the FAR, be sure the agency receives your request for a formal hearing to challenge the determination, prior to the date given in the FAR or demand letter.

For additional details, pointers and tips on this subject you may click here to read the prior blog we have published.

For information, details, pointers and tips on the subject of Medicare audits, you may click here to read the prior blog we have published on this.

Comments?

Do you know what to do if you are the target of a Medicaid audit? Did you know about requesting a hearing on the final audit report results? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Medicare and Medicaid Cases.

Attorneys with The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program. We also handle Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S.

Our attorneys also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

 

Disruptive Physicians: Nobody Likes a Nuisance

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Christopher E. Brown, J.D., The Health Law Firm

Identifying and eliminating disruptive physicians has become a paramount concern of many hospitals and healthcare systems. Disruptive physicians hinder the safe and orderly operation of a healthcare facility and are considered a threat to the safety of patients. Disruptive behavior can impact staff morale and can increase the risk of liability to all employers.

A recent New York case demonstrates this. According to a journal for surgeons, a New York doctor is being held responsible for an ongoing worker’s compensation bill as the result of a violent outburst he directed toward a physician assistant (PA). The physician allegedly lost his temper during an open-heart surgery when the physician assistant accidentally suctioned some heart tissue. The physician allegedly threatened that he would “throw the physician assistant through the wall” if it happened again.

The physician assistant has claimed that the threat deeply affected her ability to perform her job, as well as put the patient’s safety at risk. A psychologist diagnosed the PA with post traumatic stress disorder (PTSD) caused by the incident. Unable to work because of the trauma allegedly caused by the disruptive physician, the PA now reportedly collects $2,415 a week in workers’ compensation.

To read the full article from Outpatient Surgery, click here.

Implications of Disruptive Behavior.

Disruptive behavior from a physician can lead to dire consequences for both the physician and his or her employer. Lawsuits and liabilities, such as those in the New York case discussed above, can detract from a safe, cooperative, and professional healthcare environment.

Disruptive behavior can negatively affect the quality of patient care. Hospitals claim that this happens because of conduct that:

-    Disrupts or impedes the operations of the hospital;

-    Adversely affects the ability of others on the healthcare team to do their jobs;

-    Creates an unprofessional or hostile work environment for hospital employees;

-    Interferes with coworkers’ ability to practice competently;

-    Prevents effective communications among healthcare providers and staff;

-    Disrupts the continuity of care a patient receives; and

-    Adversely affect the community’s confidence in the hospital’s ability to provide quality patient care.

Being accused of being a disruptive physician may lead to adverse action against clinical privileges, action to drop the physician from insurance panels, consequential action by the state medical board or licensing authority, loss of specialty certification, termination of employment contracts and other various consequences.

What Conduct May Cause One to be Labeled a Disruptive Physician?

A hospital’s creed, ethical statement, or code of conduct, as well as Joint Commission Standards, and medical staff bylaws can define what constitutes disruptive behavior. Case reports, hospital policies and actual cases in which we have defended physicians demonstrate the types of acts that can be used to label a person as “disruptive.” Disruptive behavior includes, but is not limited to:

-    Verbal attacks that are personal, irrelevant to hospital operations, or exceed the bounds of professional conduct;

-    Shouting, yelling, or the use of profanity;

-    Verbally demeaning, rude or insulting conduct, including exhibiting signs of disdain or disgust;

-    Inappropriate physical conduct, such as pushing, shoving, grabbing, hitting, making obscene gestures, or throwing objects;

-    Inappropriate comments or illustrations made in patient medical records or other official documents, impugning the quality of care in hospital facilities, or attacking particular medical staff members, personnel, or policies;

-    Belittling remarks about the patient care provided by the hospital or any healthcare provider in the presence or vicinity of patients or their families;

-    Non-constructive criticism that is addressed to the recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence;

-    Refusal to accept, or disparaging or disgruntled acceptance of, medical staff assignments;

-    Inappropriately noisy or loud behavior in patient areas;

-    Making sexual or racial jokes;

-    Physically touching another professional, nurse or staff member, especially those of the opposite sex;

-    Making sexually suggestive remarks;

-    Commenting on another person’s body parts;

-    Threatening violence to another;

-    Throwing surgical equipment, medical supplies, charts, or anything else at or around anyone else; or

-    Other disruptive, abusive, or unprofessional behavior.

I previously wrote a two-part blog series detailing the types of conduct considered disruptive, as well as the consequences associated with disruptive behavior and how you as a physician can avoid such pitfalls. To read part one of the blog series, click here. To read part two of the blog series, click here.

Physicians: Proactively Educate Yourself.

It’s wise to review your hospital’s or institution’s policies on disruptive behavior. Arming yourself with the knowledge necessary to avoid such accusations is imperative in protecting your reputation and career.

No one lives in a glass house, but pretend you do. Someone can always observe your actions in the office or hospital. Once you have been labeled a disruptive physician, others may be closely, at times, scrutinizing you for anything you may do wrong. You will make yourself a target for possible false allegations and accusations. The healthcare industry is a demanding and stressful field. It’s understandable that potential outbursts can occur; control yourself and don’t let them.

Comments?

Have you ever been accused of being a disruptive physician? Have you ever been around one? What are some proactive tactics physicians can take to prevent any outbursts or behavioral conduct that would be deemed as disruptive? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Burger, Jim. “Doc Threatens Physician’s Assistant During Open Heart Surgery: I’m Going to Put Your Through the Wall.” Outpatient Surgery. (July 14, 2014). From: http://www.outpatientsurgery.net/surgical-facility-administration/legal-and-regulatory/doc-threatens-physician-s-assistant-during-open-heart-surgery-i-m-going-to-put-you-through-the-wall–07-14-14

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Florida Supreme Court Overturns Medical Malpractice Caps

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida’s Supreme Court ruled 5-to-2 in favor of invalidating medical malpractice caps on non-economic damages. The initial legislation was put into place in 2003 by the Florida Legislature due to an alleged medical malpractice crisis. The caps limited payments to patients for non-economic damages at $500,000 in most malpractice cases and $1 million in cases involving deaths. However, on March 13, 2014, the Supreme Court concluded that the cap on wrongful death non-economic damages violates the state Constitution’s equal protection clause.

This decision by Florida’s highest court makes Florida the seventh state to make such a ruling that such limitations are unconstitutional. There are 35 states that currently have some type of cap on medical malpractice awards.

This decision stirs up harsh criticism from doctors, and praise from trial attorneys.

History of the Caps on Medical Malpractice Lawsuits.

The damages caps were initiated in 2003 by former Governor Jeb Bush, backed by doctors, hospitals and insurance companies. Supporters argued that reforms were needed to curb the outbreak of medical malpractice costs. The caps were also initiated in an effort to lower the cost of malpractice insurance rates and to keep doctors from moving out of the state. According to Health News Florida with the caps, the number of medical malpractice lawsuits fell, which was interpreted as a sign that the caps discouraged trivial lawsuits. To read the entire article from Health News Florida, click here.

Harsh Words from Florida Medical Association.

The Florida Medical Association (FMA) President Alan Harmon, M.D., wasted no time in releasing a statement of discontent. In a press release Dr. Harmon stated, “The FMA is extremely disappointed in the Supreme Court’s decision. This decision imperils our considerable efforts to make Florida the best state in the nation for physicians to practice medicine and for patients to receive care.”

Dr. Harmon mentions that without caps to help regulate out-of-control litigation, many physicians may move out of the state, and few out-of-state physicians will look to locate to Florida.

To read the full press release from Dr. Harmon, click here.

What This Means for Health Care Professionals.

Now that medical malpractice caps are gone, trial lawyers will be refocusing on lawsuits. Health care professionals need to carefully evaluate each patient before treatment begins, even consulting with specialists when necessary. Detailed documentation is also important. Make sure everything is properly charted in the patient’s medical record. As a health care professional, its important to have an open line of communication with your patient, so that he or she knows and understands his or her medical treatment.

Get Professional Liability Insurance Now.

It is now more important than ever to have good professional liability insurance. The truth of the matter is that all health care professionals should protect themselves by obtaining a personal professional liability insurance policy. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 to $15 a month. If you do not already have it, call Healthcare Providers Service Organization (HPSO), Lloyd’s of London, CPH & Associates Insurance, or another insurance company to discuss obtaining professional liability insurance.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies (HHAs), nurse practitioners, lab technicians, occupational therapists, physical therapists (PTs), social workers, physician assistants, psychologists and other health professionals in many different legal matters.
Services we provide include representation before your professional board in Department of Health investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health care provider, how do you feel about the malpractice caps being thrown out? Will it make you think twice about taking certain cases or treating certain patients? Please leave any thoughtful comments below.

Sources:

Gentry, Carol. “FL Malpractice Caps Thrown Out.” Health News Florida. (March 14, 2014). From: http://health.wusf.usf.edu/post/fl-malpractice-caps-thrown-out

Klas, Mary Ellen. “Florida Supreme Court Tosses Out Medical Malpractice Cap on Damages.” Tampa Bay Times. (March 13, 2014). From: http://www.tampabay.com/news/politics/florida-supreme-court-tosses-out-medical-malpractice-cap-on-damages/2170030

VanSickle, Erin. “Supreme Court Invalidates Medical Liability Caps.” Florida Medical Association. (March 13, 2014). From: http://www.flmedical.org/Supreme_Court_invalidates_caps.aspx

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: The ALJ found that AHCA’s peer review expert applied certain standards to the Medicaid claims he examined in conducting the Medicaid audit, but “exercised his discretion as to whether to apply them based on the specifics of each patient’s medical records.” The ALJ dismissed the unadopted rule challenge, explaining that “where application of agency policy is subject to the discretion of agency personnel, the policy is not a rule. . . . The medical standards at issue in this case are not self-executing and require the exercise of discretion in their application.” The ALJ noted that “the medical standards of practice must be applied on a case-by-case basis to determine whether the services provided were medically necessary, and provided both an appropriate level of care and standard of care ‘customarily furnished by the physician’s peers and to recognized health care standards” as required by section 409.9131(2)(d), Florida Statutes.

Source:

Radhakrishna K. Rao et al. v. AHCA, DOAH Case No. 12-2813RU (Final Order Aug. 20, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

California Doctor To Pay $562,500 Fine and Spend 5 Days in Jail for Balance Billing Patients Covered by Managed Care Plans

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A California doctor was fined $562,500 and ordered to spend five days in jail for illegally balance billing patients covered by health plans, according to a Los Angeles Times posted in December 2013. The doctor, Jeannette Martello, M.D., is a plastic and reconstructive surgeon practicing in the Los Angeles area. She was accused of balance billing patients covered by managed care health plans that were provided emergency treatment in several hospitals in Los Angeles. The doctor had very aggressive collection practices and allegedly sued her patients frequently to collect the fees not covered by the managed care health plans.

Click here to the entire Los Angeles Times article.

What is Balance Billing?

Balance billing is the practice of doctors charging the patient the difference between what the managed care plan pays and doctor’s regular charges. A physician who is in-network is usually prohibited from balance billing patients by the health plan’s contract with the physician. The problem of balance billing arises most often in the context of emergency services where the patient may go to an in-network hospital, but the specialist physician providing services to the patient may be out-of-network. Most states require the managed care plan to pay the out-of-network physician a “reasonable fee” for the services. The physicians and the managed care plans rarely agree on the “reasonable fee” for a particular service. This often results in litigation between the physician and the health plan. The situation also arises when a patient goes to an in-network hospital for surgery, but the anesthesiologist is not in-network.

Doctor Plans to Appeal.

According to the Los Angeles Times article, Dr. Martello plans to appeal the ruling. Dr. Martello and her attorney claim the prohibition on balance billing did not apply to her patients because the patients were in stable condition.

Court Previously Entered Injunction Prohibiting Illegal Billing.

In 2012, The Los Angeles Superior Court entered an injunction ordering Dr. Martello to cease all illegal billing practices, according to the Department of Managed Health Care. Dr. Martello continued the billing practices, which is why the judge ordered Dr. Martello to serve five days in jail. The judge also issued a permanent injunction prohibiting Dr. Martello from illegally billing patients in the future.

To read the press release from the Department of Managed Health Care, click here.

The Medical Board of California also placed Dr. Martello on probation for five years for her illegal billing practices in August 2013.

Balanced Billing Could be Considered a Matter of Contract Law.

It is usually sound legal advice that if a court orders you to do something or to stop doing something, comply with the court’s order. It is hard to imagine legal advice to the contrary, unless the parties desire to have a test case to challenge the law or challenge such rulings.

Balance billing in such cases is usually a matter of contract law. The provider agreement between the physician and the health plan is the contract at issue. This, then, would be a breach of contract action and not a criminal matter.

However, in certain instances, such as for Medicare or Medicaid patients, laws may prohibit balance billing. It is always best to check with your experienced health attorney first.

Contact Health Law Attorneys Experienced with Investigations of Doctors.

The attorneys of The Health Law Firm provide legal representation to doctors and other healthcare providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers. The Health Law Firm also represents providers in billing disputes with third-party payers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever heard of balance billing patients? Do you think the doctor received a far punishment for her billing practices? Please leave any thoughtful comments below.

Sources:

Terhune, Chad and Brown, Eryn. “Doctor Gets Jail Time, $562,500 Penalty in Improper-Billing Case” Los Angeles Times. (December 6, 2013). From: http://articles.latimes.com/2013/dec/06/business/la-fi-mo-doctor-balance-billing-case-20131205

Green, Marta. “Department of Managed Care Director Brent Barnhart Issues Statement on Preliminary Injunction Granted in People v. Martello.” Department of Managed Health Care. (June 13, 2012). From: http://www.dmhc.ca.gov/library/reports/news/pr061312.pdf

The Pathology Blawg. “Dr. Jeannette Martello Gets Five Years Medical Probation for Aggressive Balance Billing.” The Pathology Blawg. (August 20, 2013). From: http://pathologyblawg.com/medical-news/balance-billing/jeannette-martello-five-years-medical-probation-aggressive-balance-billing/

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Scribes Offer Physicians Some Relief from EHR Frustrations

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In November 2013, a physician satisfaction study, sponsored by the American Medical Society (AMA), was published. In the study, physicians stated one of the most hated items in the medical industry is the electronic health record (EHR). According to physicians, EHRs are time-consuming, they hinder the physician-patient relationship by dividing the physician’s attention, they require health care professionals to perform tasks below their level of training, and EHRs can decrease efficiency in the practice.

Now there is a trend in the medical industry that allows physicians and health care practitioners to complete all their EHR documentation without ever having to touch a computer. According to an article in The New York Times, many medical practices and emergency rooms are hiring medical scribes to ease physicians’ note-taking responsibilities.

What is a Scribe?

A medical scribe is an unlicensed, trained medical information manager specializing in charting physician-patient encounters during the medical exams. A scribe enters information into the EHR at the direction of the physician or health care practitioner. Scribes can also support workflow and documentation for medical record coding.

Duties of a scribe vary by the practice. Some common duties include:

- Documenting procedures performed by the physician;
– Reviewing patient evaluation data for comparison and transcribing the results;
– Recording physician-dictated diagnoses, prescriptions and instructions for discharge; and
– Recording a provider’s consultations with other health care professionals.


Benefits of a Scribe.

According to an article in The New York Times, there are an estimated 10,000 scribes currently working in hospitals and medical practices around the country. In the same article physicians using scribes stated that they are more satisfied with their choice of career because the scribe allows the physician to concentrate on treating patients. Physicians also stated that by using scribes they can see up to four extra patients a day. Other benefits include, a reduced amount of clerical work for doctors, and better record keeping.

To read the entire article from The New York Times, click here.

Requirements of a Medical Scribe.

The growing medical scribe industry has yet to come together on a unified training and certification process. While the practitioner is ultimately responsible for the record, scribes should be trained to have a basic understanding of the EHR documentation guidelines, according to a Medical Economics article. Furthermore, there are specific signature requirements to be used when scribes are utilized, according to Medical Economics.

Some signature requirements for scribes include:

- Signing and dating all entries into the medical record. The role and signature of the scribe must be clearly distinguishable from that of the physician or licensed practitioner.
– The physician or licensed practitioner must authenticate the entry by signing, dating, and recording the time. A physician signature stamp is not permitted for use in the authentication of scribed entries.
– The authentication must take place before the physician and scribe leave the patient care area.
– If the organization determines that the scribe will be allowed to enter orders into the medical record, those orders entered into the medical record cannot be acted on until authenticated by the physician.
– The medical practice should implement a performance improvement process to ensure that the scribe is not acting outside of his or her job description, authentication is occurring as required, and that no orders are being acted on before they are authenticated.

When adding scribes to your practice, it is important to consult the guidelines laid out by state boards and other regulatory authorities in order to develop compliant scribe policies. Knowing your state’s requirements is key to reducing legal dangers and defending potential claims.

To learn more on medical scribes, click here to read the Medical Economics article.

Medical Assistants vs. Scribes.

In most states, medical assistants are allowed to perform more patient care activities than a scribe is. For example, see the list contained in Florida Law, Section 458.3485, Florida Statutes. On the other hand scribes are, in effect, merely medical transcriptionists. However, each job may prove to be a gateway to the other job. A well-trained medical assistant may make an excellent scribe and be of great assistance to the physician. An experienced medical scribe may make an excellent medical assistant, being familiar with medical terminology and patient care.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians and medical groups on EHR issues. It also represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think about the use of scribes in the medical practice? Do you or have you ever used a scribe? What are the benefits or pitfalls of using a scribe? Please leave any thoughtful comments below.

Sources:

Hafner, Katie. “A Busy Doctor’s Right Hand, Ever Ready to Type.” The New York Times. (January 12, 2014). From: http://www.nytimes.com/2014/01/14/health/a-busy-doctors-right-hand-ever-ready-to-type.html?_r=0

Lewis, Maxine. “Scribes Can Help Document Care, Boost Efficiency at Medical Practices.” Medical Economics. (October 20, 2013). From: http://medicaleconomics.modernmedicine.com/medical-economics/news/scribes-can-help-document-care-boost-efficiency-medical-practices

Conn, Joseph. “More Docs Get EHR Help.” Modern Healthcare. (August 24, 2013). From: http://www.modernhealthcare.com/article/20130824/MAGAZINE/308249958

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

ZPICs Seek “Voluntary” Agreements from Physicians for Auto-Denial Edits for Home Health Services

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law, and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

According to the Centers for Medicare and Medicaid Services (CMS), the primary purpose of Zone Program Integrity Contractors (ZPICs) is to investigate instances of suspected fraud, waste, and abuse.  The specific actions employed by ZPICs to fulfil this mission include:

-  Investigating potential fraud and abuse for CMS administrative action or referral to law enforcement;
–  Conducting investigations in accordance with the priorities established by Center for Program Integrity’s (CPI) Fraud Prevention System;
–  Performing medical review, as appropriate;
–  Performing data analysis in coordination with CPI’s Fraud Prevention System;
–  Identifying the need for administrative actions such as payment suspensions and prepayment or auto-denial edits; and,
–  Referring cases to law enforcement for consideration and initiation of civil or criminal prosecution.

However, it appears that some of the ZPICs have been overly proactive in identifying the need for payments suspensions and are asking providers to voluntarily agree to payment suspensions for certain claims.

Click here to read more on ZPICs from CMS.

Physicians Being Targeted by ZPICs for Auto-Denial Edits.

Recently, physicians have been approached by ZPICs and asked to voluntarily agree to a payment edit on their National Provider Identifier (NPI) that would automatically deny any claim for payment for home health services that listed the physician as the ordering, attending, or referring physician.  A ZPIC requesting a specific physician to voluntarily cease ordering any home health services appears to go further than identifying the need for administrative action including a payment suspension.

The activities a ZPIC may use to fulfil its obligations to CMS are:

-  Request medical records and documentation;
–  Conduct interviews;
–  Conduct onsite visits;
–  Identify the need for a prepayment or auto-denial edits and refer these edits to the Medicare Administrative Contractors (MAC) for installation;
–  Withhold payments; and,
–  Refer cases to law enforcement.

The following functions are reserved for the MACs and not functions of the ZPICs.

-  Provider outreach and education;
–  Recouping monies lost to the Trust Fund (the ZPICs identify these         situations and refer them to the MACs for the recoupment);
–  Medical review not
–  Complaint screening; for benefit integrity purposes;
–  Claims appeals of ZPIC decisions;
–  Claim payment determination;
–  Claims pricing; and
–  Auditing provider cost reports.

While a ZPIC may refer a provider to the MAC for the imposition of an auto-denial edit, some ZPICs seem to have taken this process a step further and are attempting to have physicians voluntarily agree to the auto-denial edits.

Issues with Agreeing to an Auto-Denial Edit.

A physician who voluntarily agrees to an auto-denial edit could create significant problems for his or her patients and practice.  A physician agreeing to an auto-denial edit would need to cease ordering home health services and would need to refer the patients that need home health services to another physician.  Any physician that has been approached by a ZPIC seeking a voluntary auto-denial edit should consult competent legal counsel before agreeing to the auto-denial edit.

We have heard if ZPIC representatives allegedly intimidating or attempting to intimidate physicians who routinely order home health services for patients into agreeing to such auto-denial edits.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Have you heard of these auto-denial edit requests from ZPICs? Please leave any thoughtful comments below.

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Doctor Faces Administrative Hearing Over Allegations of Torturing Patient

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Lake Worth, Florida, doctor accused of “punishment therapy” that included the use of whips, blindfolds, handcuffs and other instruments of torture could have his license revoked by the Florida Board of Osteopathic Medicine. At the meeting on November 15, 2013, the Board rejected a settlement that the Florida Department of Health (DOH) had negotiated with the doctor’s attorney. The settlement option included a $10,000 fine and two (2) years of probation. The doctor was not arrested or charged with a crime, but admitted to having an unusual and sexual relationship with his patient.

By rejecting the proposed settlement, the Board indicated that it was not satisfied with the agreed upon discipline. Instead , the Board stated that it wanted a revocation of the physician’s license.

The Florida DOH filed an administrative complaint against the doctor in July 2013, alleging inappropriate sexual conduct with a patient.

Click here to read the complete administrative complaint made against the physician.

According to the doctor’s attorney, it appears the case will head to an administrative hearing.

Punishment Therapy Allegedly Used to Help Patient’s Depression.

According to the Sun Sentinel, the doctor’s relationship with his patient was first reported in 2011. The patient told investigators that the doctor allegedly used “punishment therapy” on her to help her remedy depression. She reportedly told detectives she did not like the “therapy” which would usually take place in the doctor’s office after normal business hours. The patient claims she was repeatedly choked, whipped and tied up in a closet, according to the Sun Sentinel. The patient also alleges she never paid money for these sessions, but the doctor would give her free samples of medication.

The doctor alleges that he and his patient had a consensual sexual relationship that began after she was no longer a patient. However, according to the Sun Sentinel, investigators found evidence that the doctor prescribed medicine to the patient while they were in engaging in the “torture therapy” sessions.

Click here to read the Sun Sentinel article.

What Florida Law Says About Sexual Relationships Between Health Care Providers and Patients.

Sexual misconduct in the practice of health care is considered to be a violation of the doctor-patient relationship. This violation is grounds for discipline. The Board takes it seriously and can impose discipline up to and including revocation.

Florida law bans doctors and other health care providers from turning their patients into sexual partners because it is considered an abuse of power. Also, patients are presumed to be incapable of giving consent to a relationship with a health care provider.

To watch a short video on why a patient cannot consent to a sexual relationship with a health care provider, click here.

Don’t Wait Too Late; Consult with an Experienced Health Law Attorney.

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians in investigations and at Board of Medicine and Board of Osteopathic Medicine hearings. We represent physicians accused of wrongdoing, in patient complaints and in Department of Health investigations. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Do you think this physician should have his license revoked? Do you think the settlement agreement would have been a sufficient punishment? Please leave any thoughtful comments below.

Sources:

Gentry, Carol. “Doctor Accused of Torturing Patient.” Health News Florida. (November 15, 2013). From: http://health.wusf.usf.edu/post/doctor-accused-torturing-patient

Department of Health v. David Simon, D.O. Case Number 2012-00680. Administrative Complaint. July 11, 2013. From: http://ww2.doh.state.fl.us/DocServiceMngr/displayDocument.aspx

Clarkson, Brett. “Doctor Used Whips, Choked Female Patient in ‘Punishment Therapy,’ Deputies Say.” Sun Sentinel. (November 20, 2013). From: http://www.sun-sentinel.com/news/palm-beach/fl-lake-worth-kinky-doctor-20131120,0,3297599.story

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

MedPAC Wants to Hold Accountable Care Organizations More Accountable

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

As the Centers for Medicare and Medicaid Services (CMS) prepares to designate the next class of accountable care organizations (ACOs), the agency sought the advice and input of the Medicare Payment Advisory Commission (MedPAC) on how to proceed.  MedPAC is an independent Congressional Agency established to advise the U.S. Congress on issues affecting Medicare.

Click here to read our previous blog on the background and purpose of ACOs.

MedPAC Suggests All Medicare Shared Savings Program ACOs Join the Two-Sided Risk Model.

In response to the request from the CMS, MedPAC reiterated its previous position that it would like to see all Medicare ACOs take on greater financial risk.  As it presently stands, some Medicare-contracted ACOs do not share in the risks associated with the ACOs patients’ healthcare costs exceeding certain target ranges.  Even though those ACOs do not bear any financial risk if the goals are not met, they nevertheless stand to benefit if they are.

MedPAC found that the one-sided risk model being used by most Medicare Shared Savings Program (MSSP) ACOs to be insufficient to reach the goals of the MSSP.

Specifically, MedPAC wants to see all MSSP ACOs in the two-sided risk model.  That model requires the ACO to reimburse Medicare for some of the costs which exceeded the target ranges. This pressure is important to note because only 13 of the 32 Pioneer ACOs generated enough savings to Medicare to qualify for MSSP savings payments.

Understand an ACO Agreement Before You Sign.

As we see more and more physicians being approached to join or form ACOs, it is crucial to understand exactly what type of arrangement you are getting into.

Many ACO contracts we see are simply for participation as a provider in the organization.  However, some of the contracts we see require that the physician make a financial investment in the ACO or otherwise require that the physician pay a “pro rata” share of any penalty assessed by CMS.

Current ACO participation and recruiting is something akin to the gold rush of the nineteenth century.  Everyone is rushing to stake a claim in fear of being left out.  Be careful about what kind of an agreement you sign and be sure that you understand the long-term consequences of tying your practice to an as-yet unproven model. To read our previous blog on the first year pioneer ACO results, click here.

If you are approached to join an ACO, or are considering signing a participation agreement/contract with one, make sure to read the contract carefully and consult with an experienced healthcare attorney.

Contact Health Law Attorneys Experienced With Healthcare Business Practices.

The Health Law Firm routinely represents physician groups and practices with issues involving establishing, licensing, selling, merging, and intergroup affiliation.  If you are considering establishing an ACO or have been approached to become a participant in one, you can contact The Health Law Firm at (407) 331-6620 or (850) 439-1001 or you can visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of MedPAC’s position on ACOs? Have you considered joining an ACO? Why or why not? Please leave any thoughtful comments below.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.