Health Care Lawyer Blog

Today's post was authored by FWH attorney Sue Nolan

The final rule implementing provisions of the Medicare Shared Savings Program for Accountable Care Organizations (“Final Rule”) was released by the Centers for Medicare and Medicaid Services ("CMS") on October 20, 2011. The Final Rule will be published in the Federal Register on November 2, 2011, and sets forth requirements for Accountable Care Organizations ("ACOs") under the Medicare Shared Savings Program. These requirements pertain to how ACOs are formed, the governance of an ACO, the entry into an ACO agreement with CMS, who may form an ACO, who may join an ACO, beneficiary assignment, quality reporting, calculation of and sharing of savings and losses and termination of an ACO.

The Final Rule contains several changes that addressed comments made by the various stakeholders on a proposed rule published by CMS on March 31, 2011 (“Proposed Rule”).

Listed below are some of the most important changes made in the Final Rule. On the whole, the changes are expected to make formation of and participation in an ACO more appealing to providers and health systems, in part because the financial incentives are stronger and the compliance burdens are somewhat less. (Note: A separate Health Care Lawyer Blog post will follow addressing the interim final rule issued by the OIG setting forth certain waivers of Stark, the Federal Anti-Kickback Statue, and certain civil monetary penalties law provisions that apply to specified arrangements involving ACOs.

Background on ACOs. The goals of the Medicare Shared Savings Program are to provide better care to Medicare beneficiaries, promote better health for the Medicare population, and reduce the growth in Medicare expenditures. In short, an ACO is expected to increase the quality of care while at the same time reducing the cost of care. An ACO is a legal entity recognized and authorized under applicable state, federal or tribal law, is identified by a taxpayer identification number, formed by one or more ACO eligible participants, and may include other participants. The ACO provides the structure for coordinating care, controlling the quality of care given to Medicare beneficiaries, distributing shared savings payments or paying for losses.

After the jump - Important highlights from the Final Rule

Continue reading " Final Rule on Medicare Shared Savings Programs for ACOs Released " »

Michigan physicians may not refuse to enter into a doctor-patient relationship with individuals based on discriminatory reasons, according to a recent opinion by the Michigan Court of Appeals. Importantly, the opinion overrules long-standing Michigan common law, which generally held that a doctor-patient relationship is consensual and a physician cannot be required to render services to anyone.

In Moon v. Michigan Reproductive & IVF Center, et al., (Case No. 299623), plaintiff Allison Moon contacted the defendants, two southwest Michigan fertility centers, and specifically asked if the clinics would provide in vitro fertilization (IVF) services to a single woman. Both clinics responded that they would not. Moon filed suit against both, alleging discrimination based on marital status under Michigan’s Elliott-Larsen Civil Rights Act.

The Elliott-Larsen Act provides generally that: “The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.” MCL 37.2102(1)(emphasis added).

The circuit court granted defendants’ motion for summary disposition, reasoning that under Michigan common law: "a physician-patient relationship is voluntary and consensual, and a physician may refuse to enter into such a relationship for any reason or no reason at all. This Court does not believe the ELCRA was intended to function so as to force professionals to enter into relationships with clients. That is likely one reason why MCL 37.2302 begins with the phrase “[e]xcept where permitted by law.”

After the jump - what this case means to medical professionals

Continue reading " MI Court Holds that Medical Professionals May Not Deny Services For Discriminatory Reasons " »

A recent New York Times article spotlighted the use of telepsychiatry, or the use of web-based video conferencing technology such as Skype or iChat, to connect patients with psychiatrists. The article described a patient receiving an appointment “reminder” on her iPhone, then fixing herself a mojito and lounging poolside while her therapist counseled her via webcam.

The use of such technologies to provide health care remotely (commonly referred to as telemedicine) may sound idyllic, but can also raise numerous compliance issues for health care providers. For example, is the use of such technologies within the scope of practice? Do state laws place a restriction on the use of telemedicine? Is the standard of care for services provided via telemedicine the same as services provided in real life?

The following are a few issues that providers should consider before using telemedicine as a means to treat patients.

What do state statutes or licensing boards say about the use of telemedicine? First and foremost, a provider should check with his/her state licensing board or consult applicable state statutes to determine if telemedicine is contemplated within the scope of practice. For example, in Michigan the statute defining practice of medicine does not include telemedicine, as some other states such as Indiana. In addition to statutory guidance, state licensing boards may have issued informal or formal guidance to providers regarding the use of telemedicine. If the state licensing board is silent on the issue, a provider should consult with any professional societies he/she may belong to (American Medical Association, American Psychological Association, etc.) for information.

After the jump - additional considerations for providers.

Continue reading " Telemedicine: A Checklist for Health Care Providers " »