What’s Happening in Health Law – June 2010

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Law firms are notorious for emailing “client alerts” and “client bulletins” to adorn clients’ inboxes with impressive analysis of current legal developments. The bulletins sometimes come almost daily, explaining in excruciating detail and in thousands of words the latest legal changes, so as to impress clients.

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.

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