Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at http://www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!
The Supreme Court upheld President Obama’s health care law today in a splintered, complex opinion that gives Obama a major election-year victory.
Basically. the justices said that the individual mandate — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax.
Chief Justice John Roberts — a conservative appointed by President George W. Bush — provided the key vote to preserve the landmark health care law, which figures to be a major issue in Obama’s re-election bid against Republican opponent Mitt Romney.
The government had argued that Congress had the authority to pass the individual mandate as part of its power to regulate interstate commerce; the court disagreed with that analysis, but preserved the mandate because the fine amounts to a tax that is within Congress’ constitutional taxing powers.
The announcement will have a major impact on the nation’s health care system, the actions of both federal and state governments, and the course of the November presidential and congressional elections.
A key question for the high court: The law’s individual mandate, the requirement that nearly all Americans buy health insurance, or pay a penalty.
Critics call the requirement an unconstitutional overreach by Congress and the Obama administration; supporters say it is necessary to finance the health care plan, and well within the government’s powers under the Commerce Clause of the U.S. Constitution.
While the individual mandate remained 18 months away from implementation, many other provisions already have gone into effect, such as free wellness exams for seniors and allowing children up to age 26 to remain on their parents’ health insurance policies. Some of those provisions are likely to be retained by some insurance companies.
Other impacts will sort themselves out, once the court rules:
— Health care millions of Americans will be affected – coverage for some, premiums for others. Doctors, hospitals, drug makers, insurers, and employers large and small all will feel the impact.
— States — some of which have moved ahead with the health care overhaul while others have held back — now have decisions to make. A deeply divided Congress could decide to re-enter the debate with legislation.
— The presidential race between Obama and Republican challenger Mitt Romney is sure to feel the repercussions. Obama’s health care law has proven to be slightly more unpopular than popular among Americans.
“We are very excited about it. The fact that we serve clients all over the country has been a small secret for a while but we realized there’s a huge demand and decided to just go for it,” said Jeffrey L. Cohen, Esq. Founder and President of Florida Healthcare Law Firm.
According to Cohen, “It’s just a strange area of the law. Nearly everything in healthcare business is regulated; leases, employment agreements, compensation. Things you wouldn’t think are regulated are strongly regulated. And there are large fines and criminal penalties for getting it wrong! Our clients understand that healthcare business of any kind has serious legal risks and that they need uniquely qualified help.”
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Acknowledged throughout the country for its service and excellence, Florida Healthcare Law Firm is one of the nation’s leading providers of healthcare legal services. Founded by Jeffrey L. Cohen, Esq and headquartered in South Florida, FHLF provides legal services to physicians and healthcare businesses with the right pricing responsiveness and ethics. From healthcare clinic regulation, home health agency representation and physician contracting to medical practice formation/representation and federal and state compliance matters, the Florida Healthcare Law Firm is committed to bringing knowledge and experience to a diverse group of clients.
This is a great article published by CNN this morning.
View it in it’s entirety Here
(CNN) — On Monday, the U.S. Supreme Court takes on a political, social, economic and medical hot potato: the health care reform law that was signed into law two years ago.
For six hours during each of the next three days, attorneys will argue and justices will consider legal questions about the constitutionality of the Affordable Care Act’s individual mandate and issues surrounding federal versus state powers.
Many of the law’s major aspects have been the topic of much discussion. But are you aware that deep within the sweeping law’s 2,700 pages are many lesser known changes that could affect your life in unexpected ways?
1. How many goodies your doctors get
Is your doctor prescribing you certain drugs because those are the best for your condition or because of a pharmaceutical company’s influence? Here’s one way you can find out.
The Physician Payment Sunshine Act under health care reform requires drug, device or medical supply companies to report annually certain payments or things of value that they’ve given physicians and teaching hospitals. This could be speaking fees, consulting fees, meals and travel. So, you can find out which and how much companies pay doctors or health care workers. The companies are obligated to report annually about physician ownership and their financial investments.
Continue Reading Here
On August 10, 2011, the Fourth District Court of Appeals supported one litigant’s huge discovery request on the treating physician. The case (Katzman v. Rediron, No. 4D11-1290, August 10, 2011) arose with the following facts:
1. The doctor agreed to treat the patient under a letter of protection (LOP), which means the doctor would be paid out of the recovery of a lawsuit, not from health insurance proceeds;
2. The doctor allegedly performed a “controversial” surgical procedure, so Rediron’s lawyers wanted to know all sorts of information about how often he has ordered discectomies over the past four years and what he charged in litigation and non-litigation cases;
3. The doctor’s lawyer tried to block Rediron’s discovery request on the grounds that it would be a huge undertaking;
4. The trial court supported the discovery request, which was upheld on appeal.
The court’s analysis is interesting and instructive. The court found the treating physician to be BOTH a fact witness (because he treated the patient) and an expert witness (because he gives opinion testimony re the patient’s condition and injury). The court used their characterization of the doctor as a “hybrid” witness in order to support the trial court’s decision, which granted broad discovery on the issue of the reasonableness of the procedure’s cost and its necessity.
Discovery is something that can be used to harass and press someone into settlement. Hence, there are guidelines directed to ensuring that discovery requests are reasonable. That said, physicians who treat patients in lawsuits have a unique role that may expose them to greater than normal discovery requests.
Moreover, with this opinion, the old argument in bodily injury cases “What does reasonableness and necessity matter. It’s a BI lawsuit” will likely hold less water as all payers (including those who pay in BI lawsuits) are looking to reduce costs.
Click Here to view our October 2011 Newsletter:
Healthcare reform aside, physicians are increasingly buried under the weight of nonstop regulatory scrutiny and compliance requirements. Even the most compliant physician will find, however, that the government is no gentleman when it comes to efforts to ferret out wrongdoing.
Physicians are most commonly confronted with the regulatory process by a phone call from an investigator or perhaps a written request for information. Board of Medicine issues usually begin with the so called “45 day letter,” which invites a physician suspected of wrongdoing to submit a written response to an allegation of wrongdoing. EMTALA violations are reported to the Department of Health and the Office of Inspector General, both of which will initiate contact with the physician in writing.
Though physicians may think a simple explanation will convince an investigator or attorney to back off, that is seldom the case. Physicians wrongly think that the point of such investigations is to determine the truth. They must instead accept that, once investigators and prosecuting lawyers have contacted them, there is already a belief that wrong doing has occurred. Physicians would do well to understand that the job of the investigator and prosecutor involves just two things: (1) Seeing if the physician’s response is so convincing as to cause them to reevaluate their suspicion (it seldom is); and (2) to see if they think they have enough to justify a prosecution. The investigator and prosecutor have a job, to find wrongdoing and to punish it! They are not philosophers or social workers. They are not counselors to have a really nice conversation with. They are not to be trusted because their job is at odds with physicians who are the targets (or even witnesses) of their investigations. If physicians can remember one thing, it is that they need the support of lawyers and others who know their way over this unfriendly terrain.
Innocent physicians caught in the investigative/prosecutorial process may feel impatient and frustrated. “I’ve done nothing wrong, so surely if I just tell the truth everything will be ok.” It’s just not that way; and it’s just not that simple! Discussions with the government will take time and will require patience. What physicians have to keep in mind is that, though they are innocent until proven guilty, if they are targets of an investigation, the investigator and prosecutor already suspect them of wrongdoing. It’s a bit of an uphill climb!
Remarkably, even the best legal representation will not necessarily resolve matters quickly. By the time physicians are aware they are being investigated, in many instances months have been spent working that case, and prosecutors are simply not inclined to immediately walk away from all that hard work.
Surprising still is that prosecutors will try to get a settlement, even when your lawyer tells you there is no wrongdoing. Recall that the prosecutor has a job—find the bad guy and win the case. If the prosecutor can get you to settle, particularly by paying money, they will call it a “win” and move on to the next case. It is nauseating but true that sometimes it makes sense to settle, even when there is no wrongdoing, given the legal and related expenses. But when settling is not an option because it causes a cascade of unacceptable consequences (e.g. a Board of Medicine investigation, a medical malpractice suit, becoming sanctioned by Medicare and perhaps even losing medical staff membership and managed care contracts), physicians have no option but to fight.
Probably most surprising, physicians who vigorously defend themselves may find that they never “win.” That is, they are never told by a prosecuting lawyer that the government is giving up. Physicians who have been the targets of government investigations will find that the sound of victory is often silence. Government prosecutors simply get quiet! You just stop hearing from them.
The best physician defendant is one well armed with guidance to traverse an inherently adversarial environment.
Lawyers are trained to document every conversation and communication in writing. In its dimmest light, it is simple CYA. More generously, putting things in writing ensures that everyone is on the same page and that time and faulty memory doesn’t distort things. It’s hard enough to communicate let alone remember communication! Doctors have to learn to put things in writing more.
Admittedly, putting things in writing takes time and can be viewed as hostile. Culturally, while lawyers are used to putting things in writing and don’t take that personally, the same may not be true in the world of healthcare. Still, documenting in writing conversations and agreements between people can go a long way to avoid liability and conflict.
EMTALA (the Emergency Medical Treatment and Active Labor Act) was passed by Congress in 1986. The purpose behind the law was to ease the burden of public or so called charity hospitals from having to treat indigent patients because other hospitals refused to treat such patients due to their inability to pay. EMTALA is a non-discrimination law rather than a law establishing standards of care. The scope of the law is very limited. A hospital’s obligation is to (1) provide an appropriate screening to determine whether an emergency condition exits and (2) if there is an emergency condition the facility cannot transfer a patient until the patient is stabilized or if other conditions of law are met.
A physician’s obligation under EMTALA essentially compels a physician who is on call to go to the hospital’s emergency department and to examine and treat a patient as necessary to satisfy the hospital’s screen and stabilize duty. Contrary to what some hospitals claim (and what some medical staffs decide), there is no obligation under EMTALA to see or treat a patient in a physician’s office. A positive or negative outcome has no bearing on the issue of EMTALA compliance. The futility of providing treatment to screen and stabilize is no defense to an EMTALA violation claim. Physicians who fail to comply with EMTALA can expect an investigation from the Office of Inspector General (OIG) of HHS and can face a civil monetary penalty of up to $50,000. Physicians who are found not to comply with EMTALA often face regulatory action (licensing board) and medical malpractice suits.
- Medical Screening Examination (MSE) Requirement
42 USC §1395dd (a) requires a hospital to provide for an appropriate screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. The law proscribes the basic elements of an appropriate MSE, but does not go so far as to dictate the clinical particulars that must be implemented.
- Stabilizing Treatment Requirement
Subsection (b) provides in pertinent part:
…the hospital must provide either –
(A) within the staff and facilities available at the hospital, such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c).
Under subsection (c) a patient who has not been stabilized may be transferred only if the individual (or his/her representative) understands the risk involved with the transfer and requests in writing transfer to another medical facility and a physician has a signed certification that based on the information available at the time of the transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risks to the individual…
The terms “to stabilize” and “stabilized” are defined in Subsection (e), but are subjective or situational in nature. The definition depends on the risks associated with the transfer and requires the transferring physician faced with an emergency to make a fast on-the-spot risk analysis. Federal Appeals courts have supported the position that “stabilize” for the purposes of transfer is a relative concept that depends on the situation.
- The Transfer
Under subsection (c) of the law, a patient who has not been stabilized cannot be transferred unless there is a signed certification based on the information available at the time of transfer, the medical benefits reasonably outweigh the risk to the individual from effecting the transfer and only if the receiving facility has agreed to accept transfer of the individual and to provide appropriate medical treatment. Only unstable patients require a certification and consent of the receiving hospital. A patient who has been stabilized in the emergency room of the transferring hospital may be transferred to a receiving hospital without a certification and without an express written agreement of the receiving hospital. Stabilized patients may be transferred without any such limitation.
Medical staffs must be completely aware of EMTALA’s provisions to (1) ensure their members comply, and (2) have meaningful dialogue with hospital administrations, whose business objectives may conflict to some extent with those of the medical staff members. Physicians who are accused of EMTALA violations, either at the medical staff level, or as a result of an OIG investigation, need prompt and thorough guidance.