Tag Archives: health care

Report: Florida Received an F in Medical Pricing Transparency

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

6 Indest-2008-3In Florida, it’s difficult to compare prices for medical services and procedures because the various prices are not made public. In part because of this, a recent study by a health-care advocacy group gave Florida an F for transparencies in pricing.


What Did the Analysis Look For?

The report analyzed whether or not states have laws and regulations that require health prices be made public.

Only One State Received an A.

The only state to receive an A in the study was New Hampshire. This is because of its NH Health-Cost site. The site provides consumers prices based on geography, type of insurance and other factors for everything from a basic visit to complicated medical tests. Consumers are able to go on the site and compare prices.

Florida Was Not the Only State to Receive an F.

Every state except five received the lowest grade from the Catalyst for Payment Reform and the Health Care Incentives Institute. So, if F was the average grade, I guess that means that Florida actually only received a C. Maybe there should be a “No State Left Behind” policy.

Comments?

Would you have given Florida an F? Do you think every state should have a health-cost website? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys.

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

Sources:

Kassab, Beth. “Hidden prices for health care earn Florida an F for transparency.” Orlando Sentinel. (July 16, 2015). Print.

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.

KeyWords: Florida attorney, health care lawyer, health care attorney, law, health law, health care law, medical services, physician attorney, health care defense attorney, health care defense lawyer, health care, health care coverage, health law attorney, health law lawyer, The Health Law Firm

“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 © 1996-2015 The Health Law firm. All rights reserved.

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Federal Health Officials Propose Medicare Paying Doctors to Discuss End-of-Life Issues

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Centers for Medicare and Medicaid Services (CMS) released a new plan for doctors to discuss end-of-life issues with their patients. The plan is part of the CMS annual Medicare physician payment rule. This comes six years after the original controversy when President Obama first announced his health care legislation.

Doctors Will Be Paid for Discussing Treatment Options with Elderly Patients.

In what can only be described as welcomed and needed relief, the rule would reimburse doctors for discussing living wills and end-of-life medical treatment options with older patients. The medical discussions include long-term treatment options, like heart transplants. It also handles advance care planning, including a patient who desires treatment for a condition that affects his or her decision-making. These are conversations already taking place, but physicians are not currently paid for them.

The Pressure is on Medicare.

Medicare reimbursement is extremely important for elderly and disabled persons. As the second-largest insurer, many private insurers also follow the same rules Medicare adopts. Their place in the end-of-life care has long been debated. Whether or not health care professionals should be reimbursed for hospice and end-of-life treatment talks has been the center of debate. Physician groups and patient advocates have been pushing the health program to pay doctors for these consultations.

Many advocacy groups, including the American Medical Association (AMA), support the proposal. The AMA believes it’s the patient’s choice to plan advance-care decisions. Research has shown that there are great benefits to elders in advance-care planning and having their end-of-life wishes known to others. Receiving timely knowledge from physicians and health professionals can result in better decisions and ease of mind.

Rules Previously Criticized as “Death Panels” by Ignoramuses.

Sarah Palin, the towering mountain of medical knowledge and intellectual analysis, who dragged down John McCain into defeat during the elections of 2008, previously denounced similar payment provisions in the past. Sparking a great deal of unnecessary controversy, Palin claimed the health care reform legislation would create “death panels.” As a result of these and other similar accusations, the provision was removed from the final Affordable Care Act legislation. This deprived elders of useful knowledge and deprived health care providers of payment for their services. To read more about the “death panel” controversy, click here.

Comments?

What do you think of end-of-life discussions? Do you think they should be in place? Should physicians be reimbursed?  Please leave any thoughtful comments below.

Sources:

Grier, Peter. “ ‘Death Panel’ Controversy Very Much Alive.” The Christian Science Monitor. (Aug. 21, 2009). From: http://www.csmonitor.com/USA/Politics/2009/0821/death-panel-controversy-remains-very-much-alive

Sun, Lena H. “Medicare Proposes to Pay Doctors to Have End-of-Life Care Discussions.” The Washington Post. (July 8, 2015). From:
http://www.washingtonpost.com/national/health-science/medicare-proposes-to-pay-doctors-to-have-end-of-life-care-discussions/2015/07/08/1d7bb436-25a7-11e5-aae2-6c4f59b050aa_story.html

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.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Medicare, federal health, health law, health law attorney, health law lawyer, end-of-life issues, The Centers for Medicare and Medicaid Services (CMS), CMS, Medicaid, healthcare, health care, health care attorney, health care lawyer, physicians, physician attorney, health care legislation, Affordable Care Act, ACA, medicine, the health law firm, death panel, death panel controversy, Medicare investigations, Medicaid investigations, elderly healthcare, senior health care, American Medical Association

“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 © 1996-2015 The Health Law firm. All rights reserved.

The Collateral Effects of a Criminal Case on a Health Care Licensee

Criminal charges against a health care professional can have serious consequences. Learn more about the impact of a criminal charge on Florida licensed health professionals. For further information, visit our website.

What is the Effect of a Plea of Nolo Contendere for a Florida Licensed Health Professional?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), a plea of nolo contendere is treated the same as a plea of guilty for all purposes.  Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions;  sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

What Is the Effect of an Adjudication or Finding of Adjudication Withheld?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), an adjudication or finding of adjudication withheld (or “adjudication deferred” in some jurisdictions) is treated the same as a finding of guilty for all purposes.  Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions;  sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

When must a Licensed Health Professional Report Guilty Pleas (Nolo Plea or Guilty Plea) and Convictions (Adjudication Withheld or Finding of Guilty) to the Florida Department of Health?

Any guilty plea (as defined above as a nolo plea or guilty plea) or any adjudication of guilt (as defined above as adjudication withheld or finding of guilty) of any crime must be reported  by the health professional to his or her professional licensing board (or the Department of Health when there is no board) within thirty (30) days of the conviction or finding.  Section 456.072(1)(x), Florida Statutes.

In Florida, all health professionals licensed or regulated under Chapter 456 of Florida Statutes, are required to report to their professional board (or the Florida Department of Health if there is no professional board in their profession) any convictions or findings of guilty of criminal offenses, in any jurisdiction.  Unfortunately, pursuant to Florida Statutes, a plea of nolo contendere must be reported just as a plea of guilty to an offense (a plea of not guilty does not need to be reported).  A finding of guilty or a finding of adjudication withheld (also called a “withhold” or “deferred adjudication” in some jurisdictions) must also be reported (a finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

Licensed practitioners who also are required to have a profile with the Department of Health (e.g., physicians licensed under Chapters 458, 459, 460 or 461), must submit an update to their profile, including criminal convictions, within fifteen (15) days of the “final activity that renders such information a fact.”  Section 456.042, Florida Statutes.

For example, a doctor of medicine (M.D.), licensed pursuant to chapter 458, Florida Statutes, must submit an update to the physician’s profile within fifteen (15) days.  A registered respiratory therapist, on the other hand, doesn’t have a profile.  The registered respiratory therapist would have to report  a matter qualifying with the above within thirty (30) days to his or her board, the Board of Respiratory Care.  (A finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

As with any such important legal matter, we recommend reporting in a typed, professional letter, via a reliable method of delivery which provides tracking and delivers you a receipt.  We do not consider e-mail to be reliable or susceptible of verification or tracking.  We usually recommend reporting such matters via U.S. Express Mail, with a return receipt requested.  Be sure to keep copies of the correspondence, the receipt of mailing and the return receipt, to document reporting and delivery dates, and to prove receipt.

Always consult the latest versions of the Florida Statutes and the Rules of the Department of Health and your professional board to make sure you have the correct information.  We recommend retaining a health attorney familiar with the Department of Health and its regulatory processes, as such a report will usually require the Department of Health to commence an investigation of the health professional, even if the health professional is located in another state.

Which Crimes May Result in an Automatic Bar to Licensure?

Senate Bill 1984, effective July 1, 2009, amended various section of Florida Statutes, including sections of Chapter 456.  These amendments prohibit the Department of Health from granting a new license to or granting the renewal of a license to a health professional because of a guilty plea or conviction of certain offenses.  This is also grounds for revocation of the health professional’s license.

Generally, as set forth in Section 456.0635(2)(a), Florida Statutes these are:

Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a felony under:

    • Chapter 409 (the Medicaid Program)
    • Chapter 817 (Fraud)
    • Chapter 893 (Drugs)
    • 21 U.S.C. Sects. 801-970 (Food and Drugs);  or
    • 42 U.S.C. Sects. 1395-1396 (Medicare, Medicaid, and Social Security)

unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application.  (Sect. 456.0635(2)(a), Fla. Stat.)

Additionally, grounds for discipline against the existing license of health professional includes:

    • Any misdemeanor or felony relating to Medicaid fraud:  “Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. Sect. 669, Sects. 285-287, Sect. 371, Sect. 1001, Sect. 1035, Sect. 1341, Sect. 1343, Sect. 1347, Sect. 1349, or Sect. 1518, or 42 U.S.C. Sects. 1320a-7b, relating to the Medicaid program.”  (Sect. 456.072(1)(ii), Fla. Stat.
    • Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud.  (Sect. 456.072(1)(ll), Fla. Stat.

Defense Strategies and Avoidances

    • Plead to some offense or offenses other than the ones listed above.
    • Avoid a felony conviction;  misdemeanors do not prohibit licensure or renewal, but may result in disciplinary action.
    • Avoid any offenses that sound like “health fraud,” “Medicaid fraud” or “Medicare fraud.”
    • Violations of other states’ laws don’t count;  just Florida’s and federal listed above (caveat).
    • Attempt to obtain pre-trial diversion, pre-trial intervention or drug court.
    • Attempt to avoid having to enter a guilty plea or nolo plea.
    • Attempt to include in settlement agreement/plea bargain agreement/stipulation that client may apply to have record sealed immediately upon completion of requirements and State will not object.
    • Advise client to immediately apply for sealing of record when all requirements of probation are met.
    • Obtain input from a board certified health lawyer or other “expert” as to the disproportionate effect (all of the collateral consequences) that a “conviction” may have on the licensed health professional.

What Are the Collateral Effects of “Conviction” of above Offenses?

  1. A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until entire licensure case is complete.
  2. Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.
  3. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic.  This will usually be physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), podiatrists, clinical psychologists and clinical pharmacists.
  4. Mandatory report to the National Practitioner Data Base (NPDB) (Note:  Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.
  5. Must be reported to and included in the DOH profile that is available to the public online (for those having one), and remains for at least ten years.
  6. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction.  (Note:  I have had two clients who had licenses in seven other states).
  7. The OIG of HHS will take action to exclude the provider from the Medicare Program.  If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
  8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.
  9. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.
  10. The certified health professional’s certify organization will act to revoke his or her certification.
  11. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.
  12. Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.
  13. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

The 25 Biggest Mistakes Physicians Make After Being Notified of a Department of Health Complaint

The investigation of a complaint which could lead to the revocation of a physician’s license to practice medicine and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH).  This is a very serious legal matter and it should be treated as such by the physician who receives it.  Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over, and they have attempted to represent themselves throughout the case.  Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the physician.

These are the 25 biggest mistakes we see in the physician cases we are called upon to defend after a DOH investigation has been initiated:

  1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.
  2. Contacting the DOH investigator and providing him/her an oral statement or oral interview.  (Note:  There is no legal requirement to do this.)
  3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so.  (Note:  There is no legal requirement to do this.)
  4. Failing to carefully review the complaint to make sure it has been sent to the correct physician (Note:  Check name and license number).
  5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the physician’s license until all proceedings are concluded.  (Note:  This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)
  6. Providing a copy of the physician’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so.  (Note:  There is no legal requirement to do this.
  7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.
  8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.
  9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
  10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.
  11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.
  12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.
  13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.
  14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
  15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
  16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.”  The matter does not ever just go away.
  17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
  18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.
  19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
  20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
  21. Retaining “consultants” or other non-lawyer personnel to represent them.
  22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
  23. Attempting to defend themselves.
  24. Believing that because they know someone on the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
  25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

 Bonus Point:

 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed.  There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the physician may be disciplined.  In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel.  In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing.  The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

For more information, on how to respond to a DOH investigation, or other legal matters, visit our website.

Patient-supplied Respiratory Equipment in the Hospital

By Michael L. Smith, JD, RRT

Hospitals and respiratory therapists regularly receive requests from patients asking to use their own respiratory therapy equipment in the hospital. Chronic pulmonary patients are generally reluctant to change their treatment regimen and may request they be permitted to continue using their home ventilators or positive airway pressure units in the hospital. Generally, hospitals should not allow patients to use their own medical equipment.

Patient-supplied medical equipment poses numerous risks for hospitals and their RTs. Patient supplied equipment may be a different model than what the hospital’s RTs and other staff routinely use, which can contribute to errors in the equipment and alarm settings. The hospital may not have compatible parts to ensure that the patient-supplied equipment remains functional during the patient’s hospital stay.

Another risk for the hospital and its staff exists because the patient may not have properly maintained the medical equipment. The hospital and its staff cannot easily determine whether the patient-supplied medical equipment has been regularly serviced, including any necessary modifications based upon recalls. While a particular piece of equipment may appear well maintained on the surface, it could have numerous deficiencies that are almost impossible to detect by the hospital and its staff.

The hospital and its staff may be assuming significant legal liability by allowing patients to use their own medical equipment. Patient-supplied medical equipment that malfunctions could conceivably cause injury to multiple patients and hospital staff. Consequently, hospitals should avoid allowing patients to use their own medical equipment in the hospital.

Despite the risks, most hospitals still allow the use of at least some patient-supplied medical equipment under certain circumstances.

Whenever the hospital elects to allow patient-supplied medical equipment, it should involve the hospital’s counsel, risk manager, and all the necessary hospital departments in the process.

Most hospitals that allow patient-supplied medical equipment have some type of policy on the use of that equipment. Those policies should require written approval from the patient’s physician stating that the patient-supplied equipment is suitable based upon the patient’s current medical condition. Every policy also should require notice to all the clinical and non-clinical departments necessary to ensure the equipment is in good working order and safe to operate. Every piece of electrical equipment must be thoroughly checked for electrical safety, usually by the hospital’s biomedical department.

Whenever the hospital agrees to allow patient-supplied medical equipment, the hospital should have the patient sign a waiver that explicitly states that the hospital is not assuming any liability for the equipment. The waiver also should permit the hospital to use substitute equipment in the event the patient-supplied equipment fails or the patient’s condition changes. Unfortunately, the hospital probably cannot completely absolve itself of any liability for patient-supplied medical equipment, even when the patient signs a waiver.

In the event the patient-supplied equipment fails, the hospital staff will need to intervene and provide appropriate care to the patient, even if the patient assumed all responsibility for the equipment. The hospital staff also will need to regularly check to confirm that the equipment is functioning properly and that the medical equipment remains appropriate for the patient’s condition. Of course, the hospital staff must document their regular assessment of the patient-supplied medical equipment.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Florida. This article is for general information only and is not a substitute for formal legal advice.

This article was originally published in Advance for Respiratory Care and Sleep Medicine.