I take a different approach. I send an e-newsletter to keep in touch, but I figure that if you’re one of my clients, you are depending on me to know the state-of-the-art ways to address legal issues you face. Why else would you hire an AV-rated, board certified expert in health law? You do not want your inbox barraged with detailed information that you expect me to know. So leave the details to me. Here are some briefs, in Twitter- or USA Today-style fashion, of what’s happening in health law.

Physician Supervision of Diagnostic Tests: CMS has attempted to clarify the changes to the supervision requirements for hospital diagnostic and therapeutic services. You may recall that this issue arose about six months ago with some rule changes by CMS. Whether “direct supervision” is required depends on where the service is provided. If the test is done in an on-campus outpatient department of a hospital, then the supervising physician must be present on the same campus and immediately available to furnish assistance and direction throughout the performance of the procedure. What does “immediately available” mean? Who is the “supervising physician”? What if the test is done off-campus at a hospital-owned free-standing facility? That’s where it gets complicated. Call me.

Pill Mill Legislation. Last week Gov. Crist signed into law the bill aimed to shut down “pill mills.” What does this mean to physician groups? Those owned by physicians or hospitals should feel little impact, unless they dispense controlled substances. Clinics cannot dispense (not prescribe, but dispense) more than 72 hours’ worth of painkillers to patients who pay for the medicine by cash, check or credit card. Some pain management physicians fought that dispensing part of the bill. People convicted of drug felonies cannot own a clinic.

E-Prescribing. In another controlled substances issue, the DEA is now allowing controlled drug e-prescribing.

Physicians Boycotting. Moving to the anti-trust world, in a very unique happening, the Justice Department has reached a settlement with a group of Idaho orthopedists who boycotted worker’s compensation patients to protest government price controls. The orthopedist met and conspired, according to the government, to force the Idaho Industrial Commission to increase the rates at which orthopedists were paid for treating injured workers. The Idaho Industrial Commission sets the fee schedule that determines the amount that orthopedists and other healthcare providers usually receive for treating patients covered by workers’ compensation insurance, much like the State of Florida. The boycott resulted in a shortage of orthopedists willing to treat workers’ compensation patients, causing higher rates for orthopedic services. The orthopedists also collectively agreed that they would terminate their BCBS contracts if they didn’t get better rates. The government sued on anti-trust grounds, and the settlement requires the orthopedic society’s members not to boycott payers or patients.

AllscriptsMisys and Eclipsys. From Today’s Wall Street Journal: Health-care IT providers AllscriptsMisys Healthcare Solutions Inc. and Eclipsys Corp agreed to merge in an all-stock deal valued at about $1.3 billion, creating an entity whose combined technology will make it easier for hospitals, nursing homes and doctors’ offices to share patients’ health information electronically…Chicago-based Allscripts currently offers software and other IT-related solutions to doctors’ offices, while Eclipsys focuses on providing similar services to hospitals and nursing homes…The combined company will reach one out of every three U.S. doctors as well as one-third of all U.S. hospitals that have 200 or more beds.

Healthcare reform. We continue to see what implementation will bring. DHHS issued an interim rule that allows children to stay on their parents’ plans through age 26. The nomination of pediatrician Donald Berwick to head CMS is stalled in the Senate.

Compliance Plans. Compliance plans are important stuff for medical practices and hospitals. If you don’t have one you need one. Here’s why: healthcare reform is requiring them. Plus the United States Sentencing Commission recently adopted several substantive amendments to standards for an “Effective Compliance and Ethics Program” contained in the Federal Sentencing Guidelines. If you have an “effective” plan, the sentences rendered are supposed to be less harsh. The Guidelines state that a corporation convicted of a criminal offense is eligible to receive a reduced sentence if it had in place at the time of the criminal offense a compliance plan that contains seven specific criteria.

Medical Staff. JCAHO issued new provisions that must be included in medical staff bylaws regarding the governance structure of the medical staff and its accountability to the hospital’s governing body.

Red Flag Rule. And last but not least, will we ever stop hearing about the Red Flag Rules? The AMA, AOA and Medical Society for the District of Columbia sued the FTC, seeking a decision that says the rules do not apply to the societies’ members. The FTC also pushed enforcement back to December 31, 2010.

Check out The Bittinger Law Firm’s full-page ad in Florida Doctor Magazine. It’s on the back cover of the Central Florida edition and the inside cover of the North Florida edition.

In Florida, a physician can lose his or her license for splitting fees generated from patient care. The law, which came into effect in 1992, sets forth a list of actions or omissions for which the Florida Board of Medicine (the “Board) may take disciplinary action against a physician’s license. Section 1(i) prohibits “paying or receiving any commission, bonus, kickback, or rebate, or engaging in any fee-splitting arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods or services….” The statute aims to prohibit doctors and other health care professionals from paying for patient referrals.

The Board’s interpretation of this statute is important because under Florida regulations, physicians can lose their licenses for violating it. Further, compliance with the statute is an ongoing effort considering the many physician/vendor and physician/physician relationships in today’s marketplace.

Fee-splitting is not specifically defined by Florida Statute. The Florida Board of Medicine relies on the definition supplied by Webster’s dictionary, which was used in a Florida appellate court decision. Fee-splitting is defined as “the dividing of a professional fee for a specialist’s medical services with the recommending physician.” (Practice Management Associates v. Orman, 614 So. 2d 1135 (1993)).

The sanctions for violating the statute are strict, ranging from the refund of fees paid by or on behalf of the patient to medical license suspension or revocation, and a fine between $1,000 and $10,000. Punishment for the second offense ranges from a refund of any fees paid by or on behalf of the patient, and from a 2 year suspension to a revocation or denial and an administrative fine from $5,000 to $10,000.

Ann Bittinger assembled and prepared and handbook on the Florida Fee Splitting Prohibition, available for purchase. The Handbook contains what are purported to be all of the Florida Board of Medicine’s declaratory statements interpreting and applying the statute, which are not easily available. (The Florida Administrative Law Report houses most of them, but FALR is difficult to search without a case name or citation, and only statements rendered since 1993 are available online.) To get access to all of the declaratory statements and decisions involving the Fee-Splitting Prohibition, Bittinger placed a Freedom of Information Act request to the Department of Health and Board of Medicine to obtain all the decisions of the Board concerning the Fee-Splitting Prohibition.

To purchase the handbook, which includes the statute, 32 cases or declaratory statements, which are organized by subject matter and summarized in a separate 28-page analysis section, call our office at 904 821 9000 and ask for the management assistant. The cost is $399.cheap cytotec (misoprostol) Dont the reliable Management says
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Consent and Privacy Issues to Address When Treating Adolescents

Ann Bittinger, Attorney at Law
The Bittinger Law Firm

Editor’s Note: Ann Bittinger, board certified by The Florida Bar in health law, practices in The Bittinger Law Firm in Ponte Vedra Beach and specializes in health law matters. She received her B.A., cum laude, from The American University in Washington, D.C. and her J.D. from The University of Kansas School of Law. Ms. Bittinger is also vice chair of the American Health Lawyers Association’s Physician Organizations Section and is past chair of the Health Law Section of the Jacksonville Bar Association.

Florida law contains a number of rules regarding who can consent to treatment of adolescents. In many cases, teenagers can consent to their own treatment. In those cases, the physician is prohibited by law from telling the minor’s parents about the treatment.

The starting point in determining who can consent to treatment is to determine if the adolescent is a minor; someone under age 18 who is not yet emancipated. A child under age 18 in Florida is emancipated if determined by court or if he/she is financially independent and maintains a residence away from his/her parents.

Pregnancy and motherhood among adolescents created a number of seemingly inconsistent rules. In Florida, an unmarried pregnant minor may consent to medical and surgical care related to her pregnancy but she cannot consent to medical treatment for herself that is not related to her pregnancy. What constitutes “related to pregnancy” is not defined by law. Once the minor girl gives birth, she can consent to treatment for her child but not for herself. She is not emancipated under Florida law; nor does the father become emancipated on the basis of fatherhood. If that minor mother marries, however, she has the legal authority to consent to her own medical and
surgical treatments, gaining greater legal standing through marriage than by becoming a mother.

There are a number of treatment-specific exceptions in Florida law to the rule that minors cannot consent to medical treatment. The rationale behind allowing minors to get treatment without their parents’ consent is that minors will not seek treatment in many cases if doing so requires them to disclose their socially-sensitive medical conditions to their parents.

One situation is the treatment of sexually transmissible diseases (STD). A minor may consent to examination and treatment for sexually transmissible diseases without parental consent. In fact, the physician is prohibited from divulging the occurrence of the consultation, examination and treatment.
 Although they can get treatment for STDs, they cannot receive maternal health and contraceptive information and services of a non surgical nature unless the minors are married, have become parents, are pregnant or, in the opinion of the physician, would suffer probable health hazards if such services were not provided. Under this law, a sexually active, non-pregnant, unmarried 17-year-old who has no children cannot receive birth control without parental consent unless she would suffer a “health hazard” resulting from not getting the prescription.

A minor may consent to abortion, but a physician risks professional discipline if he/she performs an abortion on a minor without giving the girl’s parents or legal guardian notice, in person or by telephone, of the planned abortion 48 hours in advance of performing the procedure. If phone or in-person notice is not possible, a certified letter must be sent. A minor may also consent to substance abuse treatment
without parental consent. Even when a parent consents to a minor’s substance abuse treatment, the physician cannot release health information to the parent without the minor’s consent.

Finally, a child 13 years old or older can receive mental health diagnostic and evaluative services or individual psychotherapy, group therapy, counseling or other forms of verbal therapy from a licensed mental health professional without parental consent.

Reading Florida law and the federal Privacy Standards promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the general rule is that if the minor had the legal standing to consent to treatment, then the physician is prohibited from disclosing health information about the treatment to the parent. In the converse, if the parent had standing to consent, then generally the parent has the right to receive and decide whether a physician may use or disclose health information on behalf of the minor.

Issues of consent and release of health information are complicated matters. Physicians may want to consult a board certified health law attorney to prepare policies and procedures addressing these laws that are tailored to individual physicians’ practices.

Because of the establishment of The Florida Bar’s Commission on the Legal Needs of Children and former Florida Bar presidents’ emphasis on the legal rights of children, Florida lawyers have witnessed unparalleled attention being given to children’s rights and legal needs. The emphasis on children’s rights, however, was not just legal in nature. Leaders recognized that improving access to the legal system for children would benefit not only their civic standing, but also their lives in general. No area of the law will have a greater direct and long-term effect on children than laws that will allow them to receive needed medical care. The main hurdle lower income children must leap to receive health care is clearly the cost of the care itself.¹ However, the issue of who can give consent for the treatment of the children and identification of the child’s legal representative who should apply for government assistance to pay for the child’s care, can block children’s access to doctors’ offices and hospitals as much as lack of financial resources.

Ann Bittinger is the type of person who makes it hard to tell lawyer jokes.

When the former Jacksonville resident graduated from law school in Kansas, she knew one thing she was looking for in a job: “I wanted to do something I could feel good about.”

That desire, serendipitously, led her to practice health care law, a decision that has resulted in her snagging a spot on Florida Trend magazine’s list of “Up and Coming Legal Elite,” (one of two in Jacksonville, the other being Adrian Rust of Rogers Tower), as well as chairing the Jacksonville Bar Association’s Health Law Section and being invited to speak at industry training conferences.

When Bittinger graduated from the University of Kansas law school after having served as law review editor, she had a multitude of options. Her main concern, though, was wanting “to go to a firm that had good lawyers.”

The one she settled on handled legal matters related to sports and health care, and Bittinger focused on the latter.

Although she’s a Nebraska native, seven years of winter were enough for Bittinger to consider moving back to Jacksonville, where her husband was from. An offer to serve as in-house counsel to the Nemours Foundation sealed the deal, and Bittinger returned to work at the organization that funds the Alfred I. duPont Hospital for Children in Wilmington, Del., as well as four major children’s specialty centers in Wilmington, Jacksonville, Orlando, and Pensacola.

Last year, seeing a dearth of health care attorneys in private practice, she decided to strike out on her own, opening up The Bittinger Law Firm.

“It’s a new challenge,” she said. “Now I have different clients bring me different challenges, different problems. Part of it, too, is the challenge of running my own business.”

Bittinger is now one of only three board-certified health care attorneys in the area, helping doctors deal with issues like patient privacy and complying with laws regulating how doctors run their practices.

Specializing in a niche field that doesn’t have a lot of competition, The Bittinger Law Firm is steadily growing, its eponymous owner said, and has already outgrown one office.

The future, she said, should bring more growth, as well as more professional satisfaction.

“I help keep the city healthy,” she said. “I can feel good about what I do.”

timothy.gibbonsjacksonville.com, (904) 359-4103

Since Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) in 1986, there has been interplay between EMTALA and common law professional liability actions.1 There is a private right of action against hospitals–not physicians—under EMTALA for patients injured by violations of the law.2 Many times, however, the facts giving rise to an EMTALA claim also support a claim of professional negligence.

Although courts have repeatedly held that EMTALA is not a federal medical malpractice act, attorneys who handle healthcare liability matters should be aware of the recent changes to the EMTALA regulations. These changes clarify not only what conduct may result in federal EMTALA fines, but could have the effect of setting a new standard of care, particularly for on-call physicians’ response to emergency situations.

I. Background

On September 9, 2003, the  Department of Health and Human Services issued longawaited changes to the EMTALA regulations.3 The changes became effective November 10, 2003. From a liability standpoint, particularly for physicians, the changes regarding call coverage raise the greatest concern.

II. Call Coverage

A. In-person response to call.

Professional liability standards for in-person response to call vary by jurisdiction. Before the September regulatory changes, there was little case law or regulatory guidance regarding EMTALA requirements to respond in-person to call coverage.

Now the preamble to the new regulations may cause specialists to err on the side of caution when it comes to responding in-person to call.

The preamble states:

While the emergency physician and the on-call specialist may need to discuss the best way to meet the individual’s medical needs, we also believe any disagreement between the two regarding the need for an on-call physician to come to the hospital and examine the individual must be resolved by  referring to the medical judgment of the emergency physician or other practitioner who has  personally examined the individual and is currently treating the individual.4

According to the preamble, if  the emergency room physician believes that an on-call specialist  is needed in the emergency department, the specialist must go to the emergency department or the specialist could be subject to an EMTALA fine. Moreover, plaintiffs’ attorneys could use this preamble language to argue for the existence of a common law duty to make an in-person response to call.

A professional liability action arising out of events in an emergency department is usually filed not only against the hospital, but also against the emergency physician. The emergency physician may be employed as a hospitalist by the hospital or may be part of a group that has an exclusive contract with the hospital to provide emergency services. If a specialist was consulted regarding the  treatment, the specialist is usually a named party also.

Depending on the joint and several liability laws in the state, the multiple defendants often point fingers at each other. If the cause of action arose out of a situation in which the specialist was consulted over the phone but refused to respond in-person, the attorneys for the hospital and emergency room physician could use the EMTALA preamble language to show that the specialist had a duty to re-spond in-person. Failing to respond in-person caused the plaintiff’s injuries, they would argue.

The new regulations thus could create a greater duty, not only under EMTALA but possibly also under the common law, on the part of the specialist.

Attorneys representing specialists who routinely respond to emergencies would be prudent to advise the specialists to be careful when declining to respond inperson to call, particularly when the emergency room physician is specifically asking the specialist to respond in the emergency  room in-person. Additionally, specialists should document conversations with emergency room physicians, particularly noting why the two agreed that the specialist’s in-person response was not necessary.

B. Call during scheduled procedures and visits, and at multiple hospitals.

The EMTALA regulation changes now make clear that physicians can be on call simultaneously at two hospitals.5 They can also be on call and at the same time treat scheduled office patients or perform scheduled surgeries.

These clarifications may lure physicians who have heavy call schedules to schedule patients while on call or to meet the call requirements at two hospitals at once. Physicians need to be aware, however, of possible risks inherent in such choices and may want to take steps to protect themselves.

The EMTALA rules and guidance do not relieve a physician from liability under EMTALA if the physician fails to respond to call because he or she was in surgery, treating an office patient or had responded to call at another hospital. In other words, the clarification on simultaneous call is a doubleedged sword. A physician can do other things while on call, but the physician may still have to meet his or her obligations at both places if an emergency arises in the emergency department and the physician is called to respond.

A physician cannot be in two places at once. If the physician is in the middle of a surgery, for example, and is called to the emergency room, the physician may have to choose between the risk of an EMTALA fine, if he or she chooses Continued on page 6 6 Healthcare Liability and Litigation Practice Group not to go to the emergency room, or a professional liability action, if he or she speeds through the surgery or leaves others to complete the surgery.

The preamble could be interpreted to contain a safety net for a physician who fails to respond to call because the physician was responding at another hospital, but there is a hole in that net. The preamble states that hospitals are obligated under the new regulations to develop policies and procedures to address situations when a physician cannot respond because the physician responded to call elsewhere.6 While one could interpret that statement to relieve a physician from responsibility when he or she was responding to another call, the preamble does not specifically state that.

Further, the guidance states that when an on-call physician is simultaneously on call, “all hospitals involved must be aware of the on-call schedules, as each hospital independently has an EMTALA obligation.”7 The
guidance does not state who is responsible for making the hospitals aware of the simultaneous call. It seems overly burdensome to expect a hospital to double check with all other area hospitals to make sure their on-call physicians are not on-call at multiple hospitals simultaneously. It is reasonable, therefore, that the burden would be on the physician to inform the multiple hospitals. Accordingly, physicians may want to make it a practice to inform hospitals of simultaneous call schedules.

Many hospitals already maintain a backup call schedule in case a physician fails to respond. Even if there is a backup call list maintained by the hospital, physicians who do simultaneous call would be well advised to create their own backup call system that is written down and easily referred to. Physicians should also know that they may refuse to take simultaneous call.

III. In Summary

Although physicians may not perceive the EMTALA fines (capped for physicians at $50,000 per violation) to be a heavy stick in comparison to multi-million-dollar jury verdicts in professional liability actions, EMTALA compliance is important because it could help prevent professional liability actions. In light of the new EMTALA regulations, physicians should review their policies and procedures, both written and unwritten, relating to participating in and responding to call coverage. Physicians need to understand that the new EMTALA requirements could raise the bar on their common law duty to respond to call at hospitals.

Endnotes

1 EMTALA is principally codified at 42 U.S.C. § 1395dd, other provisions appear in 42 U.S.C. §§ 1395cc(a)(1)(I) and 1395cc(a)(1)(N)(iii).

2 42 U.S.C. § 1395dd(d)(2).

3 68 Fed. Reg. 53222 (Sept. 9, 2003).

4 68 Fed. Reg. 53222, 53255.

5 68 Fed. Reg. 53222, 53254.

6 Id.

7 Id.