Physician Practices

The Eleventh Circuit Court of Appeals: A violation of AKS or Stark Law cannot be used to prove state law claims against a competitor for statutory unfair competition and common law

October 2, 2015 | Little Health Law

1330873_courthouse This litigation involves claims of unfair competition and tortious interference under nine different states’ laws, where the claims are based, in part, upon alleged violations of the federal Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b(b), and Stark law (“Stark”), 42 U.S.C. § 1395nn(a). Our Georgia business and healthcare law firm follows legal developments in the world of healthcare.

This particular dispute is between Ameritox Ltd and Millenium Laboratories, Inc. These laboratories are competitors in the drug-screening/testing marketplace. Each sells to physician practices and other healthcare providers products and services that facilitate analysis of patient drug use, including point-of-care (POCT) cups. POCT cups are used by physician practices to collect and store urine samples. Additionally, POCT cups contain chemically activated strips that indicate the presence of particular drugs in the patient’s system. POCT cups thereby facilitate “qualitative testing,” informative of patients’ drug use. Such information is very limited, however; it does not, for example, reveal the precise quantity of a drug in the patient’s system. To obtain more meaningful information about the patient, a doctor must send the POCT cup to a clinical laboratory, for “confirmatory testing.” These two laboratories compete for that business.

The Continuing Trend of Physician Employment

August 25, 2015 | Little Health Law

medical-doctor-1314903-m A recent survey by search agency The Medicus Firm shows steady continuation of the national trend toward employment of physicians. In representing employers and employees, our Georgia physician practice law firm follows physician employment trends and issues. According to the Medicus survey results, the vast majority of physicians hired in the first half of 2015 — nearly 90% — were hired by either hospital systems or group practices.

The Medicus survey also revealed other interesting aspects of the physician employment trend. For example, the survey shows that one aspect of the current employment trend is increased placement in urban and mid-sized communities, compared to recent years. The survey also shows that the top four placement categories (by specialty) during the same time frame were:

Family Medicine (almost 19%)
Internal Medicine (11%)
Ob/Gyn (almost 6%)
Psychiatrists (5%) and hospitalists (5%)

Where the Current Physician Employment Trend and Employment Law Meet

As many drivers of the trend toward physician employment remain on the horizon, more employment law disputes will involve physicians as plaintiffs. There are many examples:

Majority of Georgia Hospitals Face Medicare Penalties

August 14, 2015 | Little Health Law

usa-dollar-bills-1431130-m About two-thirds of Georgia hospitals can expect to be fined for excessive Medicare readmissions, according to a recent article in the Atlanta Journal. According to our Georgia business and healthcare law firm’s research, this places Georgia hospitals well above the national average of 54% of hospitals facing similar fines. The fines are imposed by way of reduced Medicare reimbursement rates for those hospitals with excessive readmissions (readmissions within 30 days of discharge).

Medicare fines imposed as penalties against hospitals with too many patients returning in a month’s time for follow-up treatment, are part of healthcare reform. For the past several years, the federal government has promoted a program to reduce Medicare readmissions, for purposes of improving patient treatment outcomes and saving money. The federal readmission penalty program reflects a strong effort to remove a financial incentive to hospitals for readmitting sick patients. A 2013 article referenced an estimate of The Medicare Payment Advisory Commission (MedPAC), which advises Congress, that 12 percent of Medicare patients may be readmitted for potentially avoidable reasons. “Averting one out of every 10 of those returns could save Medicare $1 billion,” MedPAC says. The readmission penalty program strives to modify hospital behavior by replacing previous financial incentives with financial penalties for avoidable patient readmissions, so that hospital administrators and providers work affirmatively to keep patients healthier and avoid untimely readmissions. Statistics comparing hospital performance as to the readmission reduction program are available on a website maintained by the Centers for Medicare and Medicaid Services (CMS), called “Hospital Compare.”

FRAUD DOESN’T PAY: HEALTHCARE PROVIDERS BEWARE CIVIL MONETARY PENALTIES LAW

July 31, 2015 | Little Health Law

hammer-to-fall-673264-m Physicians and other healthcare providers and businesses who seek to stay in the center of the court and avoid fraud allegations often inquire of our Georgia business and healthcare law firm about the applicability of STARK (civil statute) or the Federal Anti-kickback (criminal) statute to particular circumstances or transactions. While those laws have great importance and severe penalties for violations, another federal law often warrants review to ensure business is conducted in a legally compliant manner. Many physicians and healthcare businesses have not heard of the “Civil Monetary Penalties” law (CMP), found at 42 U.S.C. § 1320a-7a.

Under the CMP law, the United States Office of Inspector General (OIG) may impose civil monetary penalties upon persons, organizations or entities who knowingly present (or cause to be presented) to a state or federal government certain types of false claims. Such penalties can be severe, ranging from $2,000 to $50,000. Further, the law gives the OIG the ability to treble damages.

So, what triggers CMP?

False Claims Act Compliance: 16 Hospitals to Pay $15.69 Million to Resolve Allegations of Medically Unnecessary Psychotherapy Services

May 21, 2015 | Little Health Law

By: Lee H. Little

Health Care providers evaluating billing compliance for psychotherapy services should take caution from a recent multi-million dollar settlement under the federal False Claims Act involving allegedly unnecessary intensive outpatient psychotherapy (IOP) services.

Georgia Healthcare Law Firm

According to the Department of Justice’s (DOJ) press release, the government’s allegations were that billing by these providers was improper because the patient conditions did not qualify for IOP; patient treatments were not provided pursuant to an individualized treatment plan designed to help patients address specific mental health needs and reach achievable goals; patient progress was not adequately tracked or documented; patients received an inappropriate level of treatment; and/or the therapy provided was primarily recreational or diversional in nature, and not therapeutic.

Medicare Fraud Indictment of Ophthalmologist

May 18, 2015 | Little Health Law

medical-series-11-124837-m-e1423597784531 As Medicare fraud schemes continue to bilk federal taxpayers of billions of dollars, federal law enforcement continues to push diligently to identify and prosecute Medicare fraud. Because of the importance to federal law enforcement of ferreting out healthcare fraud schemes, it is critical for all healthcare providers and healthcare businesses to follow the law to the letter and keep their business practices in the center of the court.

Georgia Healthcare Fraud Defense Law Firm

A key focus for the government is whether tests and procedures are actually medically necessary and properly documented. A recent example is the case of Dr. Salomon E. Melgen. On April 14, 2015, the Department of Justice announced the indictment of Dr. Melgen for alleged Medicare fraud in connection with eye centers owned and operated by him. Dr. Melgen, 60, is a Florida ophthalmologist and retina specialist. He owned the Vitreo-Retinal Consultants Eye Center and the Melgen Retina Eye Center, which together had four offices in south Florida. The eye centers treated 100 or more patients a day, many of whom were Medicare beneficiaries.

FMLA Litigation: A Rising Tide Large Healthcare Employers Face

April 28, 2015 | Little Health Law

hospital-corridor-2-65904-m Hospital systems and other large healthcare providers face increasing risks associated with noncompliance with the Family and Medical Leave Act (FMLA), as FMLA litigation is on the rise. According to Law360, FMLA litigation tripled in one year (from 2012 to 2013). Our Georgia business and healthcare law firm has litigated FMLA and numerous other employment law cases in federal court. Because following the regulatory scheme of the FMLA can involve difficult details (e.g., tracking intermittent leave taken in small increments), many employers can violate the Act inadvertently. Retaliation claims are also problematic because of how the employee is treated before and after the medical leave. Tight protocol and committed training of management, supervisors and HR personnel is critical to minimizing the financial risks associated with FMLA noncompliance.

Cell Phones and Medical Malpractice

March 5, 2015 | Little Health Law

Post by Guest Author: Gyalia Rutledge RN, LNC

mobile-phone-in-hand-1438231-1-m Attorneys are increasingly becoming aware of distractions caused by cell phones, tablets and other technology in the clinical setting and how they play a role in medical malpractice cases. In fact, attorneys are now advertising statistics about “Distracted Doctors” on their website in hopes of garnering new clients. Interestingly, what they are advertising is happening and the number of instances is steadily increasing and ever more apparent in today’s medical malpractice cases.

In December 2011, The New York Times quoted doctors who have witnessed others texting, updating Facebook, and shopping at Amazon and eBay during surgical procedures. According to a survey in Perfusion, half of the heart-monitor technicians stated they’ve texted during surgery along with 55% of OR technicians who stated they made cell phone calls while in surgery – though 40% of that number admitted it was an unsafe practice. Additional examples found in literature include nurses not taking care of patients because they were on their phone at the nurse’s station; an anesthesiologist on Facebook while monitoring a patient during surgery; a neurosurgeon making personal calls during an operation; a nurse checking airfares during surgery; and a poll showing that half of the technicians running a bypass machine admitting to texting during a procedure.

As a result of these technological distractions, physicians can be sued for medical mistakes caused by inattentiveness. Hospitals that employ distracted nurses and operating room technicians and other patient care staff, can also face lawsuits under the legal theory of “respondeat superior,” which holds an employer liable for employees’ negligence.

ICD-10 Implementation: What To Do Now

February 19, 2015 | Little Health Law

Post by Guest Author: Robert F. Polglase, MD, JD, CHCQM

stethoscope-notepad-1004854-m On Wednesday February 11, 2015 the House Energy and Commerce Committee’s subcommittee on healthcare held its much-awaited hearing on ICD-10 implementation, scheduled for October 1, 2015.

Since the implementation delay last year, many providers have slowed down or stopped their preparation for the ICD-10 transition in hopes of another delay, or outright abandonment of the ICD-10 code set. Although CMS has issued a final rule stating October 1, 2015 is the implementation date, there is still much skepticism as to whether this will actually move forward.

At the hearing, several members of the subcommittee, including the chairman, voiced their support for moving forward with ICD-10 implementation on October 1. It remains to be seen whether amendments will be offered to the upcoming annual “doc fix,” or the Sustainable Growth Rate rule that would trigger Medicare pay cuts to physicians, or any other legislation between now and October 1. There’s a lot of skepticism out there and for good reason. However at this point it’s a good idea to have processes in place to be ready for October 1 to be sure your practice or organization isn’t caught off guard.

Here are some things you can (and should) be doing right now:

FQHCs AND HOSPITALS: EXPECT MORE SECTION 340B AUDITS THIS YEAR

February 2, 2015 | Little Health Law

While various types of regulatory and insurance “audits” are on the radar of any prudent Federally Qualified Health Center (FQHC) or hospital, as health care providers, Section 340B audits are a relatively new and unknown animal. The Section 340B Program, whereby qualified covered entities can benefit from substantial discounts on certain patient drugs, has existed since 1992. Section 340B audits, however, began less than three years ago. The U.S. Department of Health and Human Services, through the Health Resources and Services Administration (HRSA) authorized the first Section 340B Audits in 2012. Since then, the number of Section 340B Audits has been on the rise. In 2014, HRSA audited 99 health care providers and has forecasted doubling that number this year. Increasingly, these audits present serious financial and business risks for Section 340B Program participants.

Presently there are two categories of Section 340B audits: audits conducted by HRSA and audits conducted by the drug manufacturer. Results of HRSA-conducted Section 340B audits are publically available. All Section 340B audits are geared toward requiring and facilitating Section 340B “covered entities” (i.e., the FQHC or hospital that participates in the program) to ensure Section 340B program integrity and accurate record keeping. Requirements are set forth in 42 U.S.C. § 256b, which authorizes Section 340B compliance audits.
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