Health Care Lawyer Blog

A federal district court judge in Pensacola, Florida dealt the controversial Patient Protection and Affordable Care Act (PPACA) another blow today by holding the entire Act to be void because a key provision - the individual mandate - does not pass constitutional muster.

In a 78-page opinion, Judge Rodger Vinson of the Northern District of Florida held that Congress exceeded its constitutional authority by enacting PPACA, which imposes fines upon all U.S. citizens who do purchase health insurance coverage by 2014.

“The individual mandate is indisputably necessary to the act's insurance market reforms, which are, in turn, indisputably necessary to the purpose of the act,” Vinson wrote in his opinion. “Because the individual mandate is unconstitutional and not severable, the entire act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications.”

In reaching his opinion, Vinson reasoned that since PPACA imposes fines on all citizens who do NOT purchase health insurance, by its implementation Congress is essentially attempting to regulate inactivity instead of commercial activity. As Vinson noted in his opinion, "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause."

The U.S. Department of Health and Services, the named Defendant in the case, alleged that due to the "unique nature" of the health market, individuals who do not purchase insurance are not "inactive" and have a substantial impact on commercial activity. Specifically, HHS alleged that:
1) Human beings are always susceptible to injury, and thus cannot "opt out" of the healthcare market.
2) If and when emergency health care services as sought, hospitals are required by law under the Emergency Medical Treatment and Active Labor Act (EMTALA) to provide such services, regardless of an individual's ability to pay.
3) The costs are then passed along to third parties, which has economic implications for everyone. (According to congressional estimates, uncompensated care cost $43 billion in 2008 alone).

In response to Defendant's argument, Vinson drew parallels to other markets that individuals cannot "opt out" of, such as the food market or housing market. Vinson noted that Congress could accordingly force individuals to buy broccoli, or that costs from markets where individuals cannot "opt out" also get passed along - for example, people who buy houses and then default on their mortgages then have the costs passed along to third parties. (Incidentally, Vinson's opinion did not address the fact that while the food market is not one that can be opted out of, there is no law requiring grocery stores to give people food when they cannot afford it.)

The case is State of Florida, et al. v. United States Department of Health and Human Services, et al., Case No. 3:10-cv-71. Twenty-five other states, all with Republican governors or Attorney Generals, joined the case as Plaintiffs. As another indication of how heavily partisan the PPACA debate remains, both federal judges who have ruled PPACA unconstitutional are Republican-appointed, and both who have ruled it constitutional were appointed by Democratic presidents.

FHW attorney Michelle D. Bayer contributed to this post.

Many physicians go their whole careers without ever facing a credentialing, privileging, or licensing issue. Those physicians are fortunate. However, other physicians who are not so lucky sometimes fail to appreciate the seriousness of their situation and take action too late in the proceedings, thereby jeopardizing their livelihoods.

This post provides an overview of the key issues for physicians from the onset of any hospital investigation or other disciplinary/credentialing action, and includes a step-by-step assessment to help physicians determine if an “investigation” is present, and tips on how to best protect their rights, privileges and medical licenses and avoid a report to the National Practitioner Data Bank (NPDB).

Step #1

It is crucial to immediately determine whether disciplinary/credentialing proceedings initiated by a hospital qualify as an “investigation.” While seemingly innocuous, this distinction is important because both Michigan State Licensing Board (SLB) and National Practitioner Data Bank (NPBD) guidelines require physicians (including dentists) to be reported if they resign during an “investigation”. Many times, resignation seems like a reasonable alternative during the proceedings, and unwitting physicians resign (without challenging the substance of the charges against them) only to discover later that the resignation itself is reportable.

What constitutes an “investigation” and how these investigations are conducted are usually defined in some manner in medical staff bylaws. However, some bylaws are poorly written, vague (intentionally or unintentionally) and fail to properly define an investigation, or how the investigation, review, and appeals process should be conducted. Vague procedures for the investigation/review and appeal processes favor the hospital and can do a great disservice to the physician.

In situations where “investigations” are not clearly defined under the bylaws, the NPDB Handbook and case law provides guidance to determine if an “investigation” is present. Generally, an “investigation” must meet the following criteria:
- Formal notice of the investigation must be given to the physician.
- An investigation must be carried out by a health care entity, not an individual. Thus, just because a lone individual has raised concerns about a physician’s quality of care, this does not mean an investigation is present. Generally during an “investigation,” a physician’s files are reviewed by an ad-hoc committee or submitted for outside, independent review.
- A routine or general review of cases is not considered an investigation; generally, in cases where courts uphold NPDB reports arising from resignations during “investigations,” the investigation is triggered by a specific complaint or incident.
- The investigation must be related to issues directly pertaining to patient care, not documentation or administrative issues.

After the jump - Step #2 - What Are My Rights?

Continue reading " Tips on Handling Hospital Investigations and Avoiding a Report to the NPDB " »

As repeated pleas for bi-partisan cooperation reverberate in Congress following the Tucson, Arizona shooting earlier this month, Democrats and Republicans continue to battle over the fate of the Patient Protection and Affordable Care Act (PPACA).

This week several Democratic leaders, including Senate Majority Leader Harry Reid and House Democratic Leader Nancy Pelosi, filed an amicus brief in a pending Sixth Circuit Court of Appeals case which questions the constitutionality of PPACA. The case, Thomas More Law Center v. Obama, et al. (Court of Appeals Docket #: 10-2388), is on appeal from the Eastern District of Michigan, where Judge George C. Steeh ruled last October that Congress had the power under the Commerce Clause to implement PPACA’s mandatory coverage provision.

Although dozens of lawsuits have been filed challenging PPACA constitutionality, the More case is the first to reach the appellate court level. So far two other district court judges have upheld the law, and another has declared the individual mandate unconstitutional. Many other cases have been tossed out of court on procedural grounds.

The amicus brief filed by Democratic leaders alleges that PPACA is a valid exercise of Congress’ power to regulate commerce, and that Congress also has power under the Constitution’s “Necessary and Proper Clause” to adopt the individual mandate. Dozens of other amicus briefs have been filed in the case for both pro and anti-PPACA groups; a few participants to date include the American Cancer Society, American Hospital Association, March of Dimes, and countless other professional and medical specialty organizations.

Several Democratic Attorney Generals said last week that they have formed a coalition to defend the constitutionality of the law in the More case, and in other cases. They include Oregon, Iowa, California, New York, Vermont, Connecticut, Hawaii, Maryland, and Delaware. Conversely, twenty-six other states (most represented by the state Attorney General) have filed a separate lawsuit in Florida challenging the health reform law.

While last week the House of Representatives passed H.R. 2, the two-page bill which repeals PPACA, the fate of PPACA is likely to be resolved in the Supreme Court and, depending on how quickly an opinion is rendered, More will likely be the first case to present the issue before the nine justices. It is almost certain that regardless of whether the Sixth Circuit affirms, reverses, or remands the case, any holding will be appealed by either the More Law Center or the federal government to the Supreme Court.

Oral argument has not yet been scheduled in the More case. The Health Care Lawyer Blog will continue to follow More and other cases regarding PPACA.

HITPC Issues Preliminary Recommendations for Stage 2 Meaningful Use Objectives, Solicits Public Comment - Last week the federal Health Information Technology Policy Committee (“HITPC”) released its proposed “Stage 2” objectives for meaningful use – i.e., what healthcare providers will need to do in order to quality for Medicare/Medicaid incentive payments.

The Stage 2 objectives place a heightened emphasis on health information exchange across institutional boundaries, and focus heavily on computerized physician order entry (CPOE) and e-prescribing. For more information, and for details on how to submit a public comment, click here.

U.S. House Vote on Healthcare Bill Repeal to Take Place This Week – Speaker of the House John Boehner (R-Ohio) has announced that the House’s “symbolic” vote on the repeal of PPACA would take place this week. The vote, which was originally scheduled for Jan. 12, was delayed following the Jan. 8 shooting in Arizona that left six dead and several others wounded, including Congresswoman Gabrielle Giffords (D-Ariz.).

The “symbolic” vote is largely to fulfill promises to the constituencies of the newly-elected GOP members, given that regardless of what happens in the House, an actual repeal of PPACA is impossible. The Democratic-led Senate will not back a House vote, and even if the bill does pass President Obama will certainly veto it. Additionally, the bill’s main flaw (dubbed the “Repealing the Job-Killing Health Care Law Act”) is that it seeks to repeal PPACA in its entirety, and many of even the most emphatic “anti-Obamacare”-ites have agreed that certain provisions of PPACA, such as those that allow children to stay on their parents insurance up until the age of 26, or ones that mandate coverage for children with pre-existing conditions.

The vote is tentatively scheduled for Jan. 19, according to a scheduled released by House Majority Leader Eric Cantor (R-Va.)

Medicare Rescinds Payments for End-Of-Life Counseling – Speaking of repealing, the Centers for Medicare and Medicaid Services (CMS) has announced that Medicare will not issue payments to physicians who advise patients on end-of-life care and other advance-care planning during annual wellness visits. The payment policy had taken effect on Jan. 1 but was yanked a mere 5 days later. The advanced-care counseling provision was highly contested by critics who claimed that the effort would lead to “government-sanctioned euthanasia” or “federal death panels.”

Amongst all of the pomp and circumstance surrounding the New Year, the federal government has quietly implemented the next round of provisions from 2010’s Patient Protection and Affordable Care Act.

One major provision dictates to health insurance providers how they can spend their money. Specifically, insurers are required to allocate 80 percent of the money they bring in back to the customers. That is, they can use it to pay claims or for other programs that help to improve customer health. Large group policies have a different standard – they must cycle 85 percent back to the insured. The bright side for the insurance companies is that they can use the remaining 20 or 15 percent respectively for whatever they want; they can pay salaries, use it for marketing and overhead, or simply keep it as profit. The government says that this provision was necessary because as insurance costs continued to increase, some companies were keeping up to 50 percent as profit. The insurance companies, on the other hand, claim that they may have to decrease services offered or possibly completely remove themselves from states that have higher administrative costs.

Another provision that has been closely watched and is now current helps seniors by closing what has become known as Medicare’s “doughnut hole.” It has been called this because under the former system, seniors’ prescription costs would eat away at the Medicare doughnut until they reached $2,830. Once the costs hit that level, the Medicare beneficiaries were out of luck until their costs reached $3,610, where Medicare would take over again. Effectively, seniors would be responsible for 100 percent of their prescription costs for the $780 in the middle of the hole. This year’s newly implemented provision will now reimburse beneficiaries for 50 percent of the cost of brand-name drugs. It is hard to find fault with this provision, but those that are concerned believe this gives drug companies licenses to increase prices whereby seniors will be paying the same amount and the government will be matching their payments.

Finally, Medicare beneficiaries can now get preventive screenings free of charge. Where there used to be one covered “welcome to Medicare” exam, now the seniors can get an annual wellness visit as well as any screenings rated “A” or “B” by the U.S. Preventive Services Task Force. Depending on the age, sex, and health of the beneficiary, those screenings may include mammograms, cancer screenings, measurement of bone mass, and even counseling on nutrition.

To get the full benefit of this Act, it is imperative that insurance companies follow the new rules and seniors take advantage of the new prescription drug coverage and wellness visits. The main premise of the Act is that if we can remain healthier, we will end up costing the system less in emergency care. Insurance companies still have enough margin to make a healthy profit while providing real service to their customers.

Today's post was written by FHWN law clerk Scott Malott.