Miami Nursing Home Negligence Attorney
CLASS NOTES
Latest Reading
Notes to make up: 1/22 & 2/5
EMTALA Statute
EMTALA http://www.emtala.com/faq.htm
- Screening requirement
- Stabilization
- Transferring patients
You get to the hospital what next?
What if an emergency medical condition is found?
-
"Stabilized" →
- with respect to a , that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility, or,
- with respect to , that the woman has delivered (including the placenta).
- "Transfer" →
On call violation for lack of good faith effort
Medicare
Medicare - Care for the elderly, handicapped
Hypo (pg. 742): LOL with $3000/yr drug costs. Plans:
- $35/month ($420/yr), change 2 drugs to equivs
- $23/month ($276/yr)
- $23/month ($276/yr), requires her to leave primary care provider
- $30/month,
Diagnosis-related group (DRG) system
Prospective payment formula for doctors (pg. 753)
Physicians may accept payment from patient, may accept medicare indemnification, or bill medicare directly. However they may not bill patients the balance of costs in excess of medicare.
Medicaid
Medicaid - Aid for the poor
- Economic Need (those in) (Controversy over Medicaid Estate Planning)
- Category
INTRODUCTION
Costs → in 2002, we spend 14.9% of GNP on health care! Through the 1990s, health expenditures as a share remained fairly constant, since then, they have gone up again
Quality → sometimes magnificent, but often the quality of care provided is poor. Focus on alternative ways of defining and influencing quality
Managed care → claims review. Even if you are insured, sometimes you don’t get the $$!
Cost vs. Access vs. Quality ("Pick any two.")
ACCESS TO HEALTH CARE
BARRIERS TO ACCESS
COMMON LAW BASELINE
Doctors have no duty to practice medicine on a non-patient
Where a relationship is established, notice (at least 30-day, preferably repeatedly) and referral are necessary to terminate the duty of medical care.
‘’’Quasi-public institutions’’’ have an obligation to provide care in an emergency
STATE EFFORTS TO ASSURE ACCESS
More likely than not that but for the ∆’s actions, the injury would have occurred
Rational relationship standard
QUALITY REGULATION: Privileges, Hospital Physician K’s; Managed Care K’s
Staff Privileges and Hospital Physician K’s
Hospital is organized as a corporation (profit or non-profit).
Managed Care K’s for Professional Services
Health Insurance and Managed Care
Integration and New Organizational Structures
Insurance has now become “managed care” –a term used to describe HMOs and other forms of health insurance that attempted not just to pay for, but also to control the cost of health care services.
Blue Cross (hospital insurance)/Blue Shield (physician insurance) arose as a result of the Depression; state based; in exchange for not-for-profit status they have to take everyone; these plans are usually not a good value because it has to accept everyone.
HMO is basis of managed care. Employes Drs (primary care physicians) and nurses to deliver health care. Differs form Drs office because it not only provides health service but insurance as well. Did away with deductibles. They didn’t take off—patients can only go to certain Drs and there is no incentives for Drs (they get paid the same salary no matter how many patients they see)
Purpose of insurance is to transfer risk.
Premium you pay is actually what co predicts its future losses will be.
Insurable risks must meet criteria 1) must be uncertain loss will occur 2) loss produced by risk must be measurable 3) must be large number of similar ? 4) loss must be significant
Hallmarks of Managed Care:
Drs agree to managed care organizations because they will have a pool of patients
US health care system moving steadily away from delivery of health care through independent practitioners and toward more integrated approaches.
IPA (Independent Practitioner’s Association): a physician organized entity that contracts with payers on behalf of its member physicians. Usually negotiates K’s with insurers and pays physicians on a fee for service basis with a withhold.
PPO (Preferred Provider Organization): If you go to primary care physician, you will be 100% insured. If you get sent to specialist who is part of plan, will be fully covered. But of you choose your own specialist, only covered 75%.
If hospitals are non-profit, why do prices keep going up?
Now, consumer driven health care will hopefully level off skyrocketing prices but eventually, they will rise again
Why wouldn’t people like consumer driven health care? Have to pay fees out of pocket over allocated amount, higher co-pays, and deductibles.
Forms of Business Enterprises and Their Legal Consequences
Partnerships: associations of 2 or more persons acting as co-owners Ex—Family Medical Associates
Limited Liability Companies & Partnerships: liable for his or her own professional negligence
What type of organization to choose often is influenced by tax considerations and retirement plans.
Contract Liability of Private Insurers and MCO’s
State Regulation of Private Health Insurance
State Regulation of Managed Care Practice
Enacted “any willing provider laws” which require MCOs to accept accept into their network any provider willing to accept its terms
In order to limit MCO’s ability to restrict access adopted laws guaranteeing MCO members access to particular specialties such as gynecologists and pediatricians.
Adopted “continuity of care” requirements. If provider drops a physician, you cann continue to see him for a period of time.
Enacted due process rights for termination of providers.
State law can ban gag clauses. Gag clauses tell Dr he can’t talk about other treatment options
Some state statutes will make certain services mandatory Ex—ER care, substance abuse treatment, coverage for newborns; length of stay
Strategies used by MCO’s to manage costs: 1) limiting members 2) utilization reviews 3) provider incentives 4) regulate quality
Utilization Review
Provider Incentives
Non-Profit/Charity Status Standards
Nonprofit Hospitals and Other Health Care Providers
501(c)(3) vs. 501(c)(4) (4) can lobby but can't accept donations or issue bonds
X-Hospital forms X-Corp. Physicians of X-Hospital form LP with X-Corp as a GP. The X-Corp held future profits of hospital investing in LP to benefit of partners.
In Not-For-Profit context, dividend distribution is either Inurement (for insiders) or Private Benefit (for anyone)
Physician recruitment
Excess Benefit Transactions (pg. 968)→ Private Inurement (insiders) & Private Benefit (anyone)
St. Andrew's Pt II (pg. 973)
Fraud and Abuse
False Claim
Laws designed to protect the gov from paying for goods or services that haven’t been provided or weren’t provided in accordance with gov regs
Statutes we’ll be dealing with are 1) False Claims Act (FCA) 2) Medicare/Medicaid Anti-kickback statute 3) Stark I & II
- FCA has applicability to anyone dealing with gov. Other 2 deal specifically with healthcare claims.
- FCA penalizes anyone who submits a false claim to the gov
United States v. Krizek
- D is a psychiatrist and his wife who oversees the Drs billing operations. Practice consists in large part of Medicare patients. Gov is suing Dr for providing medically unnecessary services and improper billing for services provided in that he changed the code so he would get higher reimbursement level. Question is Did Dr engage in improper billing?
- Court said no because statute was too ambiguous. However, court held Dr liable for billing irregularities because wife just assumed length of service and automatically billed for highest time. This amounted to reckless disregard of truth so Dr liable under FCA.
- Dr. liable because he failed to review billing practices and claims
- Must have the mens rae of knowingly for FCA cases
- Remedies available will be treble (triple) damages and 10,000 civil penalty per claim.
Luckey v. Baxter Healthcare
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