Health Law Ticker : California Lawyers & Attorneys for Regulatory, Transactional & Litigation Representation for Healthcare Professionals in the US

I recently had the pleasure of hearing Atul Gawande, M.D. speak about his views on health care reform, including his simple but profound message that the yeoman’s share of healthcare reform work needs to be done at the community level, rather than at the national or corporate level. I have also recently been interviewing physicians, nurses and technicians who are witnesses in a peer review hearing about the quality of services being provided by one of their colleagues.

Because these physicians’ compensation amounts are determined, to some degree, by the physician’s ability to cut costs, rather than the more traditional fee-for-service model, there is little concern that the physician who is the subject of the peer review matter can allege competition or “turf” battles as a cause of witness bias. Further, to Dr. Gawande’s point, it is clear that this “community” of interventional radiologists, vascular surgeons, neurosurgeons and cardiologists, does a terrific job of deciding amongst them who can provide the most effective and economical care, in large part because they do not compete for those dollars.

This struck me as another example to illustrate Dr. Gawande’s conclusion that local communities and physicians are the ones to determine cost control and healthcare improvement, as he discusses in a recent New Yorker article.

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A  prosecuting attorney who represents professional licensing boards shared with me his view that the decision to file disciplinary charges (PDF) is determined largely by the licensee's past conduct, whereas the degree of discipline is significantly influenced by the remedial measures undertaken by the licensee since the events leading to the disciplinary action.

In my experience, this is true.  The sooner a health care professional can take a serious look at and begin to effectively address the issues leading to the board's action, the better off he or she will be.  This is appropriate even if the allegations are exaggerated, and even in some cases where the allegations are untrue.

What kinds of remedial measures are appropriate in a given case?  The best answer to this is to initiate whatever measures are necessary to assure the licensing board that patient safety will be protected.  The highest priority of any health care licensing board is to protect patient safety.  So, any problem (or allegation of a problem) that threatens patient safety must be addressed.

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Even the most casual observer of the healthcare scene knows that “exchanges” are going to be an important element of the coverage system that is transforming because of the recent federal reform legislation.  There will presumably be a public exchange in each state -- an administered and serviced electronic marketplace through which groups, families and individuals will be able to sign up for healthcare coverage.  In certain instances this will be subsidized, including through tax credits. The state exchange will likely be the exclusive portal for subsidized programs.  It could over time become the dominant venue for purveyors and purchasers of healthcare coverage to interact and transact. If structured properly it could have a positive impact on the quality, cost, accessibility, effectiveness and creativity of healthcare.

An exchange will have multiple and operationally complex responsibilities. It will be linking people together with huge HMO’s, carriers and other kinds of delivery systems.  By as-yet undetermined mechanisms it must ensure that the on-going relationships are enrollee-friendly and productive. It must be the central “trusted information source” to help everyone, on all sides of the care equation, to understand and engage in the very new world of care coverage and delivery that is emerging.  There are already major, competing bills in the California Legislature to structure a State Exchange, even though the federal law sets January 2014 as the start-up date for state exchanges.

Critical up-front roles of a state exchange will be promoting its coverage opportunities and services to the public and facilitating participation in the exchange marketplace.  A state exchange will need all the help it can get with this. A public bureaucracy will not be able to do the job by itself. It must enlist the intimate collaboration of the private sector, of professionals who know and meet the challenges of explaining and enrolling the laity in healthcare coverage.  The skill and expertise of brokers need to be enlisted, so-called “navigators” who can get the word out and people in must be signed up.  Other entities that today serve as portals to coverage or as private exchanges need to be structured into the processes of the state exchanges as private sector partners in what will be a gargantuan undertaking.

A tattered page should be taken from California’s last experiment with a similar mechanism, the public small-group HIPC of the ‘90’s.  Such was the ideology of the day, brokers were banned from participating in its processes, even though the small group market is heavily dependent on their services. The result of so scorning the potential of the private sector was that the HIPC never realized its potential and eventually folded.  By contrast, a parallel undertaking of the same timeframe in the private sector, the California Choice Exchange, relied heavily on brokers to recruit and educate small groups and survives to this day.  Notably, 44% of the groups who receive their coverage through this exchange had not previously offered coverage to their employees. The private sector made it work then, it must be involved this time.

Much is at stake with the anticipated state exchange, and it better be set up right. A pivotal condition of success will be deploying the expertise of the private sector. 

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How many of us recently read this or a similar headline: “Nine California hospitals fined for medical errors,” Los Angeles Times, May 21, 2010 and immediately searched the article to see which hospitals were involved? You may even be tempted to do it now to refresh your memory on the list of facilities included in the press release issued last month by the California Department of Public Health. The headlines are attention-grabbing for those who work in hospitals as well as the patients and families in the communities served by the hospitals.

Physicians have at least three good reasons to be concerned about the unwelcome attention.

• First and foremost is the concern that patients may have been harmed, and whether that harm may recur because of systemic problems in hospital operations. Who might be the next patient to suffer similarly?
• Second, the reputation of the physician caring for the patient may be damaged even if the physician was not directly responsible for the errors.
• Third, the reputation of all physicians on the Medical Staff of the hospital is impacted when the reputation of the hospital is tarnished.

There are a number of things physicians on the Medical Staff can do when they hear about quality of care problems (including events that don’t make it into news reports).

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The Medicare Recovery Audit Contractors (RAC) audits of hospitals are going into are going into high gear.  It is very important for hospitals to review RAC denials immediately as the appeal periods at the various review levels are very short.  The RAC auditors are paid on a percentage of the amount of dollars they disallow; they have every incentive to "disallow first, ask questions later."  Some of the important issues include:

• Date of claim and initial Medicare determination on the claim.  RACs may not go back more than three years beyond the date of the initial determination.
• Was the RAC claim based on an automated review when it should have been made on a review of medical records?
• Inpatient vs. Observation Short Stays.  The RACs may contend the care could have been provided at the observation level of care rather than the inpatient level of care.  If the RACs are correct, the entire claim is disallowed--the hospital cannot go back and bill at the observation level.  Hospitals need to have strong physician documentation.  Currently, the initial decisions at the ALJ level are in a state of flux.
• Inpatient Rehabilitation Facility (IRF) vs. Skilled Nursing Facility (SNF).  Can become "battle of the experts."  Important that hospital clinical staff understand the different criteria for IRF versus SNF.
• Precedential effect of ALJ and other administrations.  As a body of cases begins to develop at the administrative level, it is unclear what effect this will have have regarding RAC denials on similar issues.
• When in doubt, appeal!  Can lose appeal rights quickly by inaction.

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In the unfortunate event that a health care professional faces an accusation from a licensing board, what issues should he or she be thinking about?  The answer is - everything!

The implications of professional discipline extend as far as one's professional life.  All professional organizational affiliations are likely to be impacted.  Therefore, in planning a defense, it is imperative to take into account a broad range of issues, including at least the following: 

• Medicare/Medi-Cal provider status;
• private network provider status;
• DEA registration;
• professional liability insurance;
• specialty board certification;
• employment status;
• medical staff issues;
• tort liability; and
• immigration status. 

For a full-length discussion of these issues, see my article published in ABA The Health Lawyer entitled, Representing Healthcare Professionals in Disciplinary Actions: Containing the Collateral Damage (PDF).  This was written for attorneys representing health care professionals.

This broad range of issues can seem overwhelming.  The point to keep in mind, however, is that the touchstone in any disciplinary action is patient safety and professional rehabilitation.  To the extent that a health care professional can demonstrate that he or she is fit to practice safely with due regard for the well-being of patients, and that the professional is undergoing appropriate rehabilitation if needed, the prospects for maintaining one's professional status are quite good.

Check my blog again as I address these and other topics in more detail.  Your questions and comments are, of course, welcome.

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The most frequent question I am asked, in almost every context of my life, is "Why did you change from practicing medicine to practicing law?"  Of course, I have an answer to that question that I can recite in my sleep, and depending on my mood, who's asking and how verbose I'm feeling, it varies from simply, "I wanted to combine the two disciplines" to a much longer (and undoubtedly very boring) history of my life and feelings at the time I decided to make the switch. 

The truth is that I get great satisfaction in drawing on my medical background in my legal practice.  In peer review matters, I understand the clinical issues better than my non-clinicial attorney colleagues.  In EMTALA cases, I love putting the medical records next to the confusing regulations and advocating for the client in a way that a non-physician-attorney could only dream of.  Even in drafting ordinary hospital-physician business contracts, my understanding of what it means to be on-call and/or to provide medical director services and/or to provide professional services from the physician's perspective adds great value to the services I provide both my physician and hospital clients.

Still, my clients are sometimes leary and make half-serious jokes about my "defection" to the "dark side."  There seem to be only two vocations where, if you decide, for whatever reason, not to continue in that vocation, people just don't quite get it: one is being a physician, the other, a priest.  Those two paths are often deemed "callings" rather than "careers." 

I'd like to put a plug in for the law as being just as noble a vocation as medicine or the priesthood.  As a healthcare attorney, I strive to help my clients to provide the best patient care possible by ensuring that they are doing their best to comply with the law and are as minimally distracted by government scrutiny as possible.  If my clients think the laws are not conducive to high quality care, I help them to find a way to change the law. 

So, for now at least, I will try to keep answering politely whenever I'm asked why I made the switch. 

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