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Physician Law

Current news, updates, & useful tips relating to legal issues affecting physicians & non-institutional providers in their personal & professional lives

Changes to New Jersey’s Mental Health Privilege

Posted in Uncategorized

By Michael Coco

The New Jersey Supreme Court, through the Committee on the Rules of Evidence (the “Committee”) is proposing changes to the rules on admitting evidence and allowing testimony from health care professionals involved in the counseling and treatment of mental health patients. As it currently stands, New Jersey has a patchwork statutes, evidentiary rules, and agency regulations (“Current Rules”) that address privilege in the mental health setting. The Committee is looking to replace the Current Rules with one unified evidentiary rule (“Draft Rule”) that covers all mental health related communications, including the specific practitioners who are granted this privilege and when the privilege applies.

The Draft Rule confers privilege on the following professionals: psychologists; physicians (including psychiatrists); marriage counselors; family therapists; victim counselors; social workers; nurses; professional counselors; and psychoanalysts. These professionals would be able to claim privilege under most circumstances if asked to testify to any conversation with the mental health patient. In fact, the Draft Rule states that such professionals “shall claim the privilege unless otherwise instructed by the patient.” In other words, these professionals must maintain patient confidentiality unless they receive specific consent from the patient, or if an exception applies. Exceptions in the Draft Rule are similar to current privilege exceptions, and include allowing the professional to disclose information if the patient is a danger to himself or others. Patients, guardians, family members and representatives of a deceased patient may claim the privilege, but the mental health professional may not claim the privilege if the patient waives the privilege.[1]

Although the list of professionals in the Draft Rule is thorough, the Committee should consider including emergency responders, i.e. first responders, emergency medical technicians, and paramedics. These emergency responders often record vital information on a patient’s condition and use that information to determine transport options, and they relay the information to medical facilities or other emergency personnel. Patients should feel comfortable telling these responders – in confidence – about their current mental health crisis. Allowing the patient to confide in first responders will also increase the likelihood of the patient disclosing steps he may have taken to harm himself, such as ingesting a poison. Allowing a mental health patient to confide in first responders will also alert the responders to any danger the patient may pose to the first responders or to the public at large.

The Committee has not yet finalized the Draft Rule and is soliciting comments and opinions from the public. If you have thoughts on the mental health privilege, please share them with the Committee. The deadline for comments for the Draft Rule is June 2, 2014. More information on the Committee and submitting comments can be found here:  http://www.judiciary.state.nj.us/notices/2014/n140402a.pdf

For more information, please contact Michael Coco

[1] In certain privileged conversations, such as the priest-penitent privilege, both parties hold the privilege. In that case, for example, a priest will not be forced to testify to a privileged conversation even if the penitent waives his or her own privilege.

New Tool For HIPAA Security Assessment

Posted in Health Reform, Medicare, Practice Management

This past Friday, the Office of the National Coordinator for Health Information Technology, in collaboration with the HHS Office for Civil Rights and HHS Office of the General Counsel, developed a HIPAA “Security Risk Assessment Tool.”  The Security Risk Assessment Tool is a downloadable program that was developed to assist providers in performing HIPAA security risk assessments and determining HIPAA vulnerabilities.  The program offers an easy tool for providers to (1) determine what types of safeguards are needed for their practice, (2) document whether or not they meet each standard, and (3) document why any of the safeguards are not applicable to their practice.  The program is available for download on the HealthIT website at the following address:  http://www.healthit.gov/providers-professionals/security-risk-assessment.  There is also a helpful video on how to use the program available here:  http://www.healthit.gov/providers-professionals/security-risk-assessment-videos (3rd video on the web page).

For more information on this new tool or HIPAA security, contact Matthew Redding


Why Medical Practice Mergers Fail (or Fail to Get Off the Ground)

Posted in Practice Management

Mergers and acquisitions are exceedingly common in most industries as business leaders have seen the obvious value in consolidation. Even in healthcare, major players such as hospitals and insurance companies are moving to consolidate and grow. Medical practices, however, have been much slower to consolidate — much to the detriment of many physicians who are now being forced to abandon private practice in favor of hospital employment. There are likely many reasons that physicians have been slow to consolidate but in my experience, one of the primary reasons that merger discussions among medical practices fail to even get off the ground is a fundamental lack of trust between the merger participants.

Very often when we bring prospective medical practice merger partners together, physicians are primarily concerned about loss of control. This is understandable given that many physicians in private practice maintain a close watch on costs and utilization and the prospect of losing that control is daunting. Physician merger candidates also often express concerns over loss of their office culture to that of a larger organization. Smaller practices may fear that they will be absorbed into (i.e., taken over) by larger practices in a merger.

While all of the above concerns may be legitimate, they can certainly be overcome. In my experience, physicians who are able to suspend these concerns and look objectively at likely outcomes, and build solutions based on those outcomes, are able to make mergers work. By way of example, the post-merger practice may be structured to allow for divisional accounting and decision-making so that pre-merger office locations maintain some level of local control over income and expenses. Concerns over governance and disproportionate voting power can easily be addressed by vesting decision-making at the board level and providing for equal representation on the board regardless of pre-merger group size. Another option for addressing governance concerns is to require supermajority approval for certain defined actions.

Huge corporations throughout history have been able to make mergers work successfully so there’s no reason to believe that medical practices can’t also do it. But, for merger discussions to even get off the ground, participants must be open to a process of finding acceptable solutions.


Physicians Leaving Private Practice for Hospital Employment but at What Cost?

Posted in Health Reform, Practice Management

There was an interesting article published on nytimes.com over the weekend (see ”New Law’s Demands on Doctors Have Many Seeking a Network“) comparing and contrastng the practice of two primary care physicians, one employed by a hospital and another still in private practice but perhaps concerned about her ability to remain there.   The hospital-employed physician touts the pros of hospital employment, including that while he is seeing more patients, he has more free time to work on his farm since he doesn’t have to worry about practice finances anymore.  He was able to take a five week leave whereas in private practice, the most he was able to take was one week.  The physician in private practice on the other hand is meeting with her state representative to try to come up with a solution to the primary care shortage in the face of the expansion of the state scope of practice of mid-level practitioners.  The same article notes that  the health system which employs the first doctor recently had its credit rating downgraded due to losses from an aggressive physician employment hiring.

Many lawyers in private practice will readily admit that the idea of being employed (we call it going “in-house”) can be appealing in the right circumstances.  In-house lawyers don’t really have to worry about bringing in and keeping new clients, or about billing hours for that matter.  But, most of us realize that there’s also some pretty huge trade-offs in going in-house.  Perhaps the biggest is loss of security.  Getting and keeping clients is tough work, but happy clients will stay with a good lawyer even in a bad economy or if the lawyer has to change firms.  In house lawyers generally don’t have a loyal client base to catch them if the economy falters or company layoffs are necessary.  Another big trade-off is loss of autonomy.  Let’s face it, we all work pretty hard.  Being in private practice allows you to work for yourself and your own bottom line instead of someone else’s.  You also get to call your own shots — that is, you succeed or fail on your own terms.  You reap the rewards and suffer the consequences of your own decisions.  Of course, bad decisions hurt — but they really hurt when someone else makes them and you suffer the consequences.

Just like in law practice, I fear that in making the decision to abandon private practice for hospital employment, many physicians could be making some pretty big, and perhaps irriversable, trade-offs.  For example, why would a hospital that is losing money on its physician network hire a primary care physician when it could hire a mid-level provider at a much lower cost?  Lots of physicians I know could easily answer that question.  They would say that mid-levels have less training and therefore can’t offer the same level of care as a physician.  That could be true but what if the person making the hiring decision wasn’t a physician?  What if it was a person whose job depended on keeping his employer’s bottom line in the black?  And by the way, does the average patient really know the difference between the training a physician receives versus that of a physician assistant?   I tend to think that patients will become accustomed to the level of care they receive.  If mid-levels become the face of primary care, might not the future of primary care physicians be in jeopardy altogether?

Arguably the threat of mid-level practitioners squeezing out physicians is a “down-the-road” problem, but what about job security in the short term?  Most hospital-physician employment agreements I review have terms of less than five years (most commonly three or fewer).  What happens if (or when) cost-cutting time rolls around at the hospital and someone decides  there are too many physicians on the payroll?  Go back into private practice?  But, will patients follow or will they just change providers so they can continue to go to the same office location out of convenience?  And, what if the “formerly-employed” physician signed a restrictive covenant that requires him to relocate – more than likely that means building a practice from scratch.

Without a doubt, hospital employment can offer at least a short-term fix to the administrative and financial woes of physicians fatigued by private practice, but at what cost?

Study of Early Medical Home Pilot Shows Disappointing Results

Posted in Health Reform

The drive for reduced costs and increased quality in the delivery of healthcare is an almost universally held goal among those in the industry. However, there seems to be little consensus and much confusion over the best model for achieving these improvements. One model believed by some to be able to address both of these concerns is the patient-centered medical home model. This model which seeks to establish primary care providers as a patient’s “medical home” with the goal of improving the delivery and management of care while at the same time reducing costs. However, according to the results of a study published this week in the Journal of American Medical Association, it would appear, at least initially,  that the medical home model may not be a panacea.

The study which looked at the Southeastern Pennsylvania Chronic Care Initiative, an early medical home pilot, found that while participating medical practices showed a statistically significant improvement in quality with regard to certain specific disease, they did not show any statistically significant improvement in either utilization or costs.  Of course, ne study of one pilot project does not signal the end of the medical home.  But, the study at least suggests that the model as originally conceived still needs work.


Hospital Acquisition of Physician Practices Can Raise Antitrust Concerns

Posted in Health Reform, Practice Management

The recent federal antitrust case of Federal Trade Commission and State of Idaho, Plaintiffs, v. St. Luke’s Health System, Ltd, and Saltzer Medical Group, P.A. highlights an important legal consideration for hospitals looking to acquire medical practices and physicians looking to sell to them.  Notwithstanding arguments of cost savings and increased quality and convenience through vertical integration, where such an acquisition would concentrate too much market power in a hospital or health system, the arrangement could run afoul of federal and state antitrust laws.  Such was the case with St. Luke’s acquisition of Saltzer Medical Group in Idaho.  In the Saltzer case, a federal Court recently found that the acquisition resulted in St. Luke’s having a dominant position in its market (with 80% of the primary care physicians under the St. Luke’s banner) which was likely to increase health care costs.  In the Court’s opinion, health care prices were likely to increase as a result of St. Luke’s increased ability to (1) negotiate higher reimbursement rates from health insurance plans that would likely be passed on to the consumer, and (2) raise rates for ancillary services (like x-rays) to higher hospital-billing rates (as opposed to lower in-office rates).   As a result, the Court found that the acquisition violated § 7 of the federal Clayton Act and the Idaho Competition Act, and required St. Luke’s to divest itself of the medical group.


Medical Practice Mergers: Is bigger really better?

Posted in Practice Management

Is bigger better when it comes to private medical practices?  This is a question I get quite frequently from physicians who are considering whether to merge with other practices.  In my experience, the answer is almost always “yes”,  but usually for different reasons from those the inquiring physician has in mind. 

Quite often physicians believe that the  primary or only reason to merge is to gain leverage in negotiations with third-party payers.  Aside from the questionable legality of such a motive (think “antitrust”), this mindset misses the point.  In my opinion, the reason to become bigger is not to eliminate competition but rather to enable a practice to better compete in a complex and very competitive marketplace. 

How does getting bigger make a practice ore competitive?  To begin with, being bigger allows for spreading of risk.  In today’s healthcare environment, in order to be competitive, medical practices must make significant investments in human resources and information technology.  Where these investments might be difficult or impossible for a small practice, they are much less painful when spread among many physicians in a group.  Where a small practice might be able to afford only a part-time practice manager, a large practice might easily be able to afford an MBA level CEO.  The same holds true for legal and accounting resources, investment in compliance and strategic planning.  And, while being a bigger, more sophisticated “business” will not guarantee better third party reimbursement, quite often third-party payors are receptive to paying efficient, well-run practices more than they will pay high cost disorganized practices.

The above paragraph itemizes only a few of the potential benefits of practice consolidation.  Other possible benefits include increased patient access (i.e., more locations), increased purchasing power, economies of scale found in consolidating redundant operations such as billing, and the potential addition of ancillary services that might otherwise be too costly of an investment for a small practice.

In my opinion, practices that want to remain private and thrive should actively be looking for strategic alliances, including merger where appropriate.  The rest of the healthcare marketplace is consolidating.  Those late to the game may find that the most desirable partners have already been taken.

Use of Online Physician Rating Sites on the Rise

Posted in Practice Management

Many physicians still haven’t come to grips with the fact that .  More and more frequently the public turns to the internet first when making purchasing choices — even when purchasing health care services and selecting physicians.  According to a research paper published this month in the Journal of the American Medical Association, 59% of Americans think online physician rating sites are somehwat important and 1 in 4 people surveyed said they have consulted these sites.   (See ‘Most people say rating sites ‘important’ when picking doctors’ on Foxnews.com)

The internet offers tremendous marketing opportunities for physician but also very significant risks.  Online physician rating services enable would-be patients to screen potential physicians without ever meeting the physician or stepping foot in his or her office.  These sites also give disgruntled patients a place to voice dissatisfaction.  For this reason, physicians should develop and guard their online reputation carefully.  This means taking steps to make sure the patient experience is positive, encouraging satisfied patients to complete online reviews and taking proactive steps to counter negative ratings.  For more information on steps you can take to manage your online reputation, see ‘Six Steps for Managing Your Online Reputation‘ at aaos.org.

CMS to Evaluate Release of Medicare Physician Payment Data on a Case-by-Case Basis

Posted in Medicare

CMS announced this week that it is modifying its longstanding policy regarding the release of Medicare physician payment data in response to Freedom of Information Act (FOIA) requests.  Since 1980, CMS’ policy has been that, for privacy reasons, it would not release Medicare payment data specific to individual physicians.  However, according to a pronouncement in the Federal Register, CMS is now taking the position that it will evaluate FIOA requests on a case by case basis.

The 1980 policy was based on several court cases which found that physicians had a compelling privacy interest in their Medicare payment data.  However, in May of 2013, a US District Court vacated one of those opinions and CMS subsequently sought public comment on whether a change in its policy was warranted.  Under the revised policy, CMS will make case-by-case determinations as to whether “exemption 6″ of the FOIA applies to a given request for Medicare payment data with respect to individual physicians.  Exemption 6 requires CMS to weigh the individual physician’s privacy interest in such data against the public interest in disclosure of the data.

Pennsylvania Law Prohibits Certain Clinical Laboratory Arrangements

Posted in Uncategorized

Creative clinical laboratory arrangements seem to be proliferating of late in Pennsylvania these days. Laboratories, like many providers, are eager to find ways to more closely align with referring physicians. Such arrangements can take a variety of forms such as shared space and personnel arrangements as well as various kinds of marketing arrangements.

Providers considering such arrangements should be aware of recent amendments to the Pennsylvania Clinical Laboratory Act which may effectively prohibit many such arrangements. The amendments, which were signed in to law just this month, prohibit, among other things, the following:

1. Paying or receiving commissions, bonuses, kickbacks, rebates or entering into fee-splitting arrangements for patients or clinical laboratory specimens;

2. Clinical labs from leasing or renting space, shelves, equipment or services within a health care provider’s offices;

3. Clinical labs from leasing personnel to perform any services in a health care provider’s office; or

4. Clinical labs from placing paid or unpaid personnel in a health care provider’s office to perform any service, including specimen collection.