Health Care Lawyer Blog

Today's post was authored by FHW attorney Louis C. Szura.

The concept of the government reimbursing physicians for counseling their elderly patients regarding “end-of-life” issues (“EOL”) has, unfortunately, become more about politics than about patients. Medicare reimbursement for such counseling has almost become reality on a number of occasions, but it still seems like a distant possibility at this point.

During the extensive political debates surrounding the passage of health care reform acts, known as the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act, the divisive issue of the government reimbursing for EOL counseling claimed much of the spotlight. Although it was eventually removed from the health care reform acts, the issue is still with us today. Despite the merits of EOL counseling, it appears that the political attention the issue attracted during those debates may continue to prevent Medicare for reimbursing physicians for EOL counseling anytime soon.

EOL counseling as part of health care reform first arose in the U.S. House. Section 1233 of U.S. House, H.R. 3200. That section was entitled “Advance Care Planning Consultation” and provided for physicians to be reimbursed by Medicare for consulting with patients about advance directives, living wills, palliative and hospice care, among other EOL issues. That provision soon became a political lightning rod. Opponents of the measure repeatedly, and inaccurately, characterized the provision as government-mandated “death panels,” which would allow physicians and government employees to “pull the plug” on the elderly. Even though the reality of Advance Care Planning is much different than that, the short and frightening description of a “death panel” found traction with some of the public. Ultimately, the Advance Care Planning provision was dropped from the health care reform bill.

Although the Advance Care Planning Consultation provision was removed from the House bill, the Patient Protection and Affordable Care Act that passed both houses of Congress and was signed into law on March 23, 2010, provided a Medicare benefit for “personalized prevention plan services.” Those benefits allowed Medicare recipients to receive an “Annual Wellness Visit” by their physician at no cost to them. However, the procedures for those Annual Wellness Visits would, once again, raise the issue of EOL counseling.

After the jump - why the EOL counseling provision was ultimately dropped

Continue reading " Will Medicare Ever Pay for End-of-Life Counseling? " »

While the increased penalties for HIPAA privacy violations have made headlines over the past two years, no one knew if the U.S. Department of Health and Human Service was serious - until now.

Today HHS announced a $4.3 million civil monetary penalty imposed against Cignet Health of Prince George's County, Md., stemming from violations of the HIPAA privacy laws. According to the Notice of Final Determination, HHS's Office of Civil Rights, which enforces HIPAA's provisions, found that Cignet violated 41 patients' rights by denying them access to their medical records when requested between September 2008 and October of 2009. The $4.3 million civil monetary penalty (CMP) marks the first issued by HHS for a covered entity's violation of the HIPAA Privacy Rule. The CMP is based on the violation categories and heightened penalties authorized by the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act.

Specifically, HIPAA provides that a covered entity must provide a patient with a copy of his/her medical records between 30-60 days of the patient's request. After Cignet failed to abide by this provision, the effected patients filed individual complaints with OCR. During OCR's investigation, Cignet initially refused to respond to OCR's demands to produce the records; then failed to produce the records in response to an OCR subpoena.

Notably, the CMP for failing to provide patients with requested medical records pursuant to HIPAA is $1.3 million; the remaining $3 million resulted from Cignet's failure to cooperate with OCR's investigation, which they are required to do under federal law.

The Notice of Final Determination is significant because many covered entities wrongly assume they are insulated from CMPs absent mass privacy breaches or particularly damaging disclosures of protected health information (PHI). However, as the Cignet case proves, even "administrative" violations of HIPAA can result in fines and penalties.

Last week a Mississippi Appeals Court affirmed a lower court decision dismissing a physician's defamation claim against a hospital for stating in an NPBD report that he was "unable to practice safely", when an independent evaluator reported that the physician could practice if certain precautionary steps were taken.

In Lambert v. Baptist Memorial Hospital – North Mississippi, Inc., plaintiff Dr. C. Jake Lambert signed an employment agreement with Baptist Health Services in February of 2004 to provide cardio-thoracic-surgery services. Shortly after his hiring, the hospital began to receive complaints from staff and patients about Dr. Lambert’s angry and abusive behavior, as well as occasions where he “froze up” during surgery.

Following the complaints, Dr. Lambert agreed to be referred to the Mississippi Professional Health Program (MPHP), which referred him to a physician (Dr. Anderson) for evaluation and treatment. Following the evaluation, Dr. Anderson issued a detailed statement to the hospital with several recommendations, including that Dr. Lambert enter a five-year monitoring program with MPHP, and that he should enter an intensive, structured treatment to address the disruptive behavior. Dr. Anderson later filed an addendum to the report stating that:

"It is our impression that Dr. Lambert is currently unfit to practice medicine with reasonable skill and safety, based on the report of a credible source that he has 'frozen up' on three separate occasions in the midst of a surgical procedure. However, this is based on a second-hand report…”

Based on Dr. Anderson’s conclusion, the hospital suspended Dr. Lambert’s privileges and issued a letter informing him that his staff privileges were suspended pending successful completion of the treatment program. Due to the suspension, his employment with the health system was terminated and the suspension was reported to the National Practitioner Data Bank (NPDB).

After the jump - legal analysis

Continue reading " Mississippi Court Rejects Physician's Defamation Claim Following NPDB Report " »