2012 Health Law Seminar


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At Chambliss' annual seminar, attorneys from the Health Care Group provided an overview of the significant developments in health care law. The review specifically highlights key legal issues affecting our local community, including the current state of health care following the Supreme Court's landmark decision earlier this summer.

Topics Include:

1. Termination of the patient relationship
2. Lessons from the government settlements with Chattanooga hospitals
3. Update on Tennessee health care laws and ACA

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  • “ Direct supervision” means physically present in building at same time Specialties include anesthesiology, neurological surgery, orthopedic surgery or physical medicine and rehabilitation This restriction does not cover joint injections, with certain exceptions including epidurals and soft tissue injections
  • - Prescribers and dispensers must report all controlled substances dispensed within 24 hours, with a 7 day reporting period available for up to 1-year periods if a party submits a statement to the committee Requires dispensers to submit reports to the database weekly instead of monthly Allows the monitoring committee to release confidential information from the database to law enforcement personnel – covering, patients, prescribers, dispensers and others “ Dispenser” means pharmacist, pharmacy or an authorized practitioner “ Prescriber” covers physicians, podiatrists, dentists, optometrists, osteopathic physicians, physician assistants and advanced practice nurses with authority - Failure by prescribers and dispensers to comply with the various requirements can result in fines and/or professional discipline
  • Reporting obligation triggered by actual knowledge that a person has knowingly, willfully and with intent to deceive, obtained or attempted to obtain access to controlled substances (includes failing to disclose information) Must report within 5 days to local law enforcement or drug task force Bill ensures that health care providers or entities will not be held liable for making reports Deception in this case is failing to disclose or deceiving a practitioner as to whether the person has received the same or similar controlled substance from another practitioner within the previous thirty days - Expands scope of practitioners that it is a misdemeanor (basic deception) or felony (TennCare used to pay) to deceive—adds dentists, optometrists, podiatrists, physician assistants, dispensers of controlled substances and advanced practice nurses
  • Present law requires numerous parties that render aid to report injuries that may relate to criminal activity Reports required under preexisting law must include, name, residence and employer of the reporting persons, as well as the person’s whereabouts at the time of reporting, the place the injury occurred and the character and extent of injuries Reports made to law enforcement and the district attorney general
  • - Prior law said that pain managements clinics operating on or before January 1, 2012 had to apply for certification within 30 days of the department publishing the application form Law governing pain management clinics does not apply to medical, dental, nursing schools (including clinics that have agreements to train residents by members of the clinic who are facility or members of the training programs), hospitals, outpatient clinics or facilities of hospitals (that are covered by Tennessee law governing health care facilities), hospice services, nursing homes and facilities operated by the state or federal governments
  • - Employment must be evidenced by a written contract, job description or similar documentation that does not restrict the physician’s independent medical judgment Physician must have completed residency training in an appropriate specialty, including internal medicine, family medicine, primary care, geriatric medicine or gerontology - The employing entity cannot interfere with patient referral decisions in a manner that unnecessary increases costs to the patient The contract must include the name and location of each site where physicians must see patients
  • Physician delegation requires that physicians ensure the following requirements are met: 1) patient receives a physical examination, 2) the entity takes a medical history, 3) a written order for treatment is entered including the diagnosis and the medical reason for hormone replacement therapy, 4) patient gives informed written consent and 5) supervising physician is immediately notified if complications occur “ Hormone replacement therapy clinic” or “hormone therapy clinic” means a medical office in which the clinicians are primarily engaged in hormone replacement or supplementation therapy or a medical office that holds itself out itself out to the public as being primarily or substantially engaged in hormone replacement therapy. Primary engaged means that a majority of the clinic’s patients receive hormone replacement therapy (this may be further defined by rule). This does not include offices in which clinicians are primarily engaged in obstetrics, gynecology, urology or primary care. Hormone replacement therapy is basically treatment with medications containing hormones with the same or similar chemical formula as those found in the human body or that the provider claims are the same or identical
  • The cut took effect on January 1, 2012 and followed a similar 4.25% reduction in 2011 The state portion of the supplemental appropriation involved in this reduction comes from the Tennessee’s unappropriated budget surplus
  • - Original law had 6 year limitation, second version had option to renew 6 year period in writing, with consideration - Basics of law – 2 years, geographic (county or 10 mi. radius) or facility-based (any facility where employer provides services while employing the physician in question) restrictions
  • Requires an indicted practitioner to report the indictment to the applicable licensing board within 7 days of becoming aware of it (although prosecutors are encouraged to notify) - Board conducts expedited review within 15 days of receiving a report about the indictment
  • - Would cover the application of permanent cosmetics or laser treatments - Supervising physicians must ensure Establishment of written protocols Physical exam is conducted – must include taking medical history Patient gives informed consent Patient understands who the supervising physician is and how to contact the physician Patient is made aware of the supervising physician is not on site during a treatment Physician is notified if complications arise Board of Medical Examiners would be authorized to promulgate rules – training, education, supervision requirements
  • 2012 Health Law Seminar

    1. 1. HEALTH LAW SEMINAR October 17, 2012 Chambliss, Bahner & Stophel, P.C.1000 Tallan Building Two Union Square Chattanooga, TN 37402 (423) 756-3000 cbslawfirm.com © 2012 Chambliss, Bahner & Stophel, P.C. All Rights Reserved
    3. 3. Prescription Drug Abuse is an Epidemic• The toll our nations prescription drug abuse epidemic has taken in communities nationwide is devastating…we all share a responsibility to protect our communities from the damage done by prescription drug abuse. Gil Kerlikowske 3
    4. 4. Staff and Employee Vetting 6
    5. 5. Drug Diversion Hep C Outbreak- Traveling medical technician who was charged in July with causing an outbreak of Hep C in New Hampshire.- A dozen hospitals in seven states are scrambling to identify people who might have been infected.- A hospital official in Arizona said he had been fired from her facility in April 2010, after he was found unresponsive in a mens locker room with syringes and needles.- He was treated at the hospital, and tests showed he had cocaine and marijuana in his system. 7
    6. 6. - Testing has been recommended for about 4,700 people in New Hampshire alone.- In addition to Arizona, he also worked in Georgia, Kansas, Maryland, Michigan, New York and Pennsylvania before being hired in New Hampshire in April 2011.Read more: http://www.seattlepi.com/news/article/Suspect-in-hepatitis-C-outbreak-was-fired-in-Ariz-3737922.php#ixzz22DXkxz7G 8
    7. 7. 9
    8. 8. 10
    9. 9. MDH Finds Drug Thefts Have Doubled• The Coalitions report, said to be the first of its kind, found 250 cases of prescription drugs that were stolen or reported missing at Minnesota health care facilities from 2005 to 2011.• A string of cases made headlines last year, including that of a nurse at Abbott Northwestern Hospital who allegedly let a patient writhe in pain after she siphoned off his painkillers.• In March 2011, St. Cloud Hospital suspended a nurse who allegedly used a contaminated needle to steal medications from IV bags, spreading bacterial infections to 23 patients. 11
    10. 10. Prescription Painkiller Overdoses Are a Public Health Epidemic• Prescription painkiller overdoses killed nearly 15,000 people in the US in 2008. This is more than 3 times the 4,000 people killed by these drugs in 1999.• In 2010, about 12 million Americans (age 12 or older) reported nonmedical use of prescription painkillers in the past year.• Nearly half a million emergency department visits in 2009 were due to the misuse or abuse of prescription painkillers.• Nonmedical use of prescription painkillers costs health insurers up to $72.5 billion annually in direct health care costs. 12
    11. 11. No One Is Immune 13
    12. 12. 14
    13. 13. Prescription Pill Epidemic Fuels Pharmacy Robberies Across the Country• "Last year, pharmacy robberies were up 18,000 in the entire country," (Knoxville P.D. spokesman D. DeBusk, 7/8/11).• Robbers come in 24/7 to demand prescription pills, especially OxyContin, and make a quick getaway.• Innocent employees and customers at risk. 18
    14. 14. Painkillers Claim More Lives in 4 YearsThan Throughout the Entire Vietnam War
    15. 15. Most Frequently Abused Drugs• To relieve pain: opioids like OxyContin® and Vicodin®• To relieve anxiety: sedatives like Valium® and Xanax®• To boost attention and energy: medicines that speed up physical and mental processes like Ritalin®, Adderall® and Dexedrine®• To improve athletic performance: steroids like Anadrol® and Equipoise®• Painkiller Opana, new scourge of rural America (Reuters 3/27/12) 21
    16. 16. Rise of Oxycontin• Oxycodone developed in 1916• Oxycontin approved by FDA in 1995• Oxycontin introduced in U.S. in 1996• Best selling non-generic pain reliever in U.S. by 2001See contra: Anatomy of an Epidemic: The Opioid Movie 22
    17. 17. Newborn Addicts 24
    18. 18. Figure 1. Weighted National Estimates of the Rates of NAS per 1000 Hospital Births per Year Patrick, S. W. et al. JAMA doi:10.1001/jama.2012.3951Copyright restrictions may apply.
    19. 19. Response by law Enforcement
    20. 20. Whack A Mole
    21. 21. Pain Meds Prescribed Based on What???
    22. 22. Methods of Drug Diversion – Engaged in Illegal Trafficking Activities• Chicago doctor given four life sentences• Convicted of causing the deaths of four patients who overdosed on pain pills February 14, 2012
    23. 23. Methods of Drug Diversion – California "Doctor Feelgood" Charged with Three Murders• Wrote more than 27,000 prescriptions in a three year period• "If my patient decides to take a month supply in a day, then theres nothing I can do about that."
    24. 24. Responses to Prescription Drug Abuse• National• State• Local• Employers 34
    25. 25. National Responsehttp://www.whitehouse.gov/sites/default/files/ondcp/issues-content/prescription-drugs/rx_abuse_plan_0.pdf
    26. 26. Epidemic Responding toAmericas Prescription Drug Abuse Crisis• Education• Tracking and Monitoring• Proper Medication Disposal• Enforcement 36
    27. 27. U.S. Senate Panel LaunchesInvestigation of Painkillers, Drug Companies 37
    28. 28. Prescriber Education• In April 2011, FDA announced the elements of a Risk Evaluation and Mitigation Strategy (REMS) to ensure that the benefits of extended-release and long-acting (ER/LA) opioid analgesics outweigh the risks. The REMS supports national efforts to address the prescription drug abuse epidemic.• As part of the REMS, all ER/LA opioid analgesic companies must provide: • Education for prescribers of these medications, which will be provided through accredited continuing education (CE) activities supported by independent educational grants from ER/LA opioid analgesic companies. • Information that prescribers can use when counseling patients about the risks and benefits of ER/LA opioid analgesic use. 39
    29. 29. • Make Better Use of PMPs• Enhance Enforcement By Creating Task Forces Locally• Ensure Proper Disposal of Drugs• Leverage the States Role as Regulator & Purchaser• Build Partnerships Among Key Stakeholders• Use the Bully Pulpit to promote Public Education
    30. 30. 43
    31. 31. As of: July 31, 2008 Drug Product: METHADONE Prescriber State: TN Rank Prescriber Name Office Zip Scripts Filled Cash Scripts Filled 1 XXXXXX Nashville-372 33 16 2 XXXXXX Nashville-372 32 32 3 XXXXXX Nashville-372 29 11 4 XXXXXX Nashville-372 29 27 5 XXXXXX Nashville-381 18 5 16 XXXXXX Nashville-374 10 10 Source: Tennessee Prescription Drug Monitoring Database
    32. 32. Tennessees New Law Prescription Safety Act• Establishes requirement that physician check database….• Requires pharmacists to update the database every 7 days rather than 30• Effective 4/13• Similar laws passed by Kentucky, Oklahoma & New York and by Massachusetts 46
    33. 33. Dont Turn A Blind Eye 47
    34. 34. DEA Activates "Pill Mill“ Tip Line• 24-hour, toll free "pill mill" tip line and email address• 888-954-4662• Callers should leave their contact information and the names of any doctors or clinics you are calling about• TN Drug Diversion Task Force: 877-FOR- RXTN• TennCare patient – OIG: 800-433-3982 48
    36. 36. ZPIC• Zone Program Integrity Contractor ("ZPIC") replaces the Program Safeguard Contractors ("PSC") 50
    37. 37. ZPIC• Given various tools to watch for "abuse" authorized to do: – Post-payment audits – Pre-payment audits 51
    38. 38. Regional Audit Contractors ("RAC") Program Mission"To reduce Medicare improper paymentsthrough efficient detection andcollection of overpayments, theidentification or underpayments, and theimplementation of actions that willprevent future improper payments." 52
    39. 39. RAC Regions 53
    40. 40. Region C ContractorConnolly Healthcare RAC Toll Free Number 866.360.2507
    41. 41. • RAC audits areas CMS has approved for it 55
    42. 42. Key Audit Approved Issue
    43. 43. Medicare by the Numbers• In 2010 the U.S. spent 2.59 trillion in health expenditures accounting for 17.9% of the U.S Gross Domestic Product• $524.6 billion was through Medicare• $401 billion was through Medicaid 57
    44. 44. Medicare by the Numbers• CMS estimates that 50.2 million Americans are enrolled in Medicare Parts A/B• U.S. population is around 314.5 million, so nearly 1/6 of the population receives Medicare benefits 58
    46. 46. Bookmark ConnollyHealthcare and Visit Regularly www.connollyhealthcare.com/RAC
    47. 47. • Know the areas of billing concern for your practice• Find out what your billing company is doing to prepare and its plan to stay on top of where the Auditors are focused• Keep your billing staff trained• Keep your doctors trained – Documents must support the billing 61
    48. 48. • Consider a self-audit• Know in advance what your billing company will and will not do or help you with if you receive an audit• Understand the importance of providing a complete response to an initial request for records 62
    49. 49. Pay Attention• Do not just assume your billing company or staff will take care of this matter• Could your practice survive having to repay a quarter to half of your Medicare money collected over a year or longer?• Focus on deadlines in the letters• Send all correspondence, documents or other materials in a manner that is traceable and requires a signature 63
    50. 50. Pay Attention• Know how to document the care provided and make sure that your filing system is accurate• Understand available resources and assistance for appeal – Billing company or self auditor – Insurance coverage• Know the potential impact to your practice and be prepared 64
    51. 51. Medicare Applications• Triple check that the right forms are correctly and completely prepared• Send in a traceable manner• Know the enrollment rules and what happens if there is a problem or delay 65
    53. 53. Audit Appeals Process• Follows normal Medicare appeals process – 5 stages of administrative review – All stages of review by the agency or its contractors – First couple of stages ~ rubber stamp – Must complete first 4 stages before the agency prior to appealing in traditional "Article 3" court• CMS correspondence includes appeal instructions 67
    54. 54. Initial Determination• When? – Varies: several months to a year after initial request for documentation• What? – Multi-page document – Standard excerpts of legal authority for reference – Citations to other legal authority including CMS Manuals – Spreadsheet of each initial determination 68
    55. 55. Initial Determination• The Spreadsheet – Beneficiary – HIC# – DOS – Original code billed and corresponding $ amount – Decision: downcode and corresponding $ amount allowed OR denial – "Rationale" • usually not very specific or helpful • e.g. "insufficient documentation" • sometimes even illegible! 69
    56. 56. 1st Stage: Redetermination• When? – 120 calendar days after receipt of notice of overpayment • 30 days in order to avoid recoupment – Contractor has 60 days to send redetermination decision • Contractor can extend for 14 days if provider submits additional materials 70
    57. 57. 2nd Stage: Reconsideration• When? – 180 calendar days of receiving Redetermination decision • Or within 60 days to avoid recoupment – The QIC (Qualified Independent Contractor) has 60 days to issue Reconsideration decision • Last chance to add records to justify billings • If Reconsideration decision not rendered within timeframe, provider can proceed to request ALJ hearing 71
    58. 58. 3rd Stage: ALJ Hearing• When? – 90 days after receipt of Reconsideration decision from QIC • Reconsideration decision will include a new spreadsheet showing rationale and new decisions • If any decision is overturned, the QIC must remand overpayment decision to be recalculated • QIC decides whether statistical sampling justified – Will receive a notice of either telephone or video conference hearing date 72
    59. 59. 4th Stage: MAC Hearing• Medicare Appeals Council – Part of the Department of Health and Human Services Departmental Appeals Board• When? – 60 days after ALJ decision – MAC has 90 days to act – Recoupment is ongoing during this time 73
    60. 60. 5th Stage: Federal District Court• When? – 60 days after receipt of MAC decision• What? – $1,220 amount in controversy requirement – Follow federal rules of procedure 74
    61. 61. ENACTED LEGISLATION Douglas S. Griswold & Calvin B. Marshall, Jr.
    62. 62. SB 1935/HB 1896• Nurses Engaged in Interventional Pain Management – Establishes requirements for direct physician supervision of advanced practice nurses and physician assistants engaged in invasive procedures involving: • Spine • Spinal cord • Sympathetic nerves • Block of the peripheral nerves – Covers office settings but not settings licensed as health facilities. – Physicians providing supervision must be certified in an applicable specialty. – Effective July 1, 2013. 76
    63. 63. SB 2253/HB 2569• Tennessee Prescription Safety Act of 2012 – Requires prescribers and certain dispensers of controlled substances to be registered in Tennessee’s controlled substances database. – Requires that the database monitoring committee check the database and report violations. – Requires that prescribers check the database before prescribing controlled substances – for every new episode of treatment and at least annually during episodes of treatment. – Also requires that dispensers check before prescribing certain controlled substances. – Effective May 9, 2012. 77
    64. 64. SB 2407/HB 2569• Doctor Shopping – Expands the responsibility to report under "doctor shopping" law to include hospitals, hospital administrators and dispensers of controlled substances. – Expands access to Tennessee’s controlled substances database so that hospitals can determine if certain employees are prescribing controlled substances for personal use. – Provides state and federal law enforcement with warrantless access. – Requires that pharmacies and pharmacists check customer identification before filling prescriptions. – Requires that pain management clinics be owned by hospitals or physicians authorized to prescribe. – Effective May 10, 2012. 78
    65. 65. SB 2416/HB 268• Drug Overdose Reporting – Requires the Commissioner to submit to the Governor, the House and the Senate an annual report covering aggregate hospital claims involving drug poisonings (covering the calendar year two years prior). – Each report must be published on DOH’s website. – Requires the Commissioner to establish a reporting protocol for medical examiners in drug overdose death cases. – Effective May 10, 2012. 79
    66. 66. SB 2587/HB 2724• Pain Management Clinics Prescribing Medication – Maintains the exclusion of suboxone from the list of prescribed substances for patients at pain management clinics. – Requires pain management clinics operating on or before January 1, 2012 to file an application for certification by October 1, 2012. – Allows applicants who are denied pain management clinic certificates to appeal. – Provides for voluntary inactivation of pain management clinic certificates. – Effective May 1, 2012. 80
    67. 67. SB 3263/HB 3514• Nursing Home Employment of Physicians – Amends Tennessee corporate practice of medicine statutes to allow nursing homes and their affiliates to employ physicians. – Certain requirements apply—most importantly, a nursing home employer must not restrict a physician’s independent medical judgment. – Effective July 1, 2012. 81
    68. 68. SB 3627/HB 2801• Hormone Replacement Therapy – Requires that in hormone replacement therapy clinics, all hormone replacement therapy must be performed or supervised by licensed physicians. – Establishes certain protocols covering physician delegation and supervision. – Effective July 1, 2012. 82
    69. 69. SB 2245/HB 2383• Adjusting TennCare reductions – Restored 1.75% of a 4.25% TennCare reimbursement rate reduction. • Covers certain providers, including x-ray providers, nursing homes, transportation providers, dentists and home health providers. – Eliminated a $2 copayment on nonemergency transportation that had previously gone into effect. – Effective May 15, 2012. 83
    70. 70. SB 2222/HB 2360• Licensure Renewal Date for Health Care Facilities – Covers health care facilities licensed under Title 68, Chapter 11 of the Tennessee Code, including hospices and ambulatory surgical centers. – Licensure renewal is due on the anniversary date of the facility license instead of June 30 of each year. – During the transition period, licenses may be renewed for terms of 5-18 months (pro-rated renewal fees). – Currently in effect. 84
    72. 72. SB 611• Physician Restrictive Covenants – Removed the former 6-year limitation on duration of physician covenants. – Expanded application of the law to osteopathic physicians. – Effective January 1, 2012. 86
    73. 73. SB 1145/HB 1591 and SB 2910/HB 2909• Amended Tennessee practice of medicine statutes in order to extend the post-termination restrictions of physician non-compete law (T.C.A. § 63-1-148) to hospital-based physicians employed independent of a bona fide practice purchase.• Does not cover situations involving a bona fide practice purchase or a breach of contract by the physician.• Both bills are currently in effect. 87
    75. 75. SB 2414/HB 2574• Emergency license suspension – Would permit the Commissioner or certain licensing boards to suspend, on an emergency basis, the license of a practitioner who is under state or federal indictment involving the sale or dispensing of controlled substances. – Includes physicians, osteopathic physicians, optometrists, podiatrists, dentists, nurses and physician assistants. 89
    76. 76. SB 2275/HB 2558• Physician supervision of aesthetic procedures – Requires that all "cosmetic treatments or procedures" be performed by physicians or under the supervision of physicians. – "Cosmetic treatments and procedures" is defined very broadly and includes using chemical, mechanical, physical or energy agents or the injection of foreign or natural substances in order to alter physical appearance. – Physicians supervising non-physicians in this context would be subject to professional discipline if they contract with any entity that is not owned or controlled by physicians licensed in Tennessee. 90
    77. 77. How to Limit RisksWhen Physicians Exit James L. Catanzaro, Jr.
    78. 78. What Are the Risks?• Employment based claims• Compliance risks• Handling of confidential and trade secret information• Patient information and competition• Maintaining integrity of system and practice items• Subsequent malpractice or other claims• Disassociation of a "Partner"• Compensation issues 92
    79. 79. What Are the Risks?• These risks are heightened because most physicians have employment contracts that require a notice period before termination occurs. Also, if one is a "partner," consideration of termination rights under operating or stockholder agreements must occur. 93
    80. 80. Steps to Limit Risks1. Effective Employment Agreement addressing: – Ownership of accounts receivable and patient information. – Establishing non-competition and non-solicitation obligations. – Defining and limiting use of confidential information. – Setting post-termination compensation process and rights. – Tail coverage rights. 94
    81. 81. Steps to Limit Risks2. Use of Separation and Severance Agreements – Use of "adequate" consideration to support ("tail coverage", severance pay, etc.). – Includes release of claims (employment, operating or shareholder agreement based, compensation and other claims). – Structures handling of notifications to patients, malpractice carriers and managed care plans, insurance networks, and licensing boards and hospitals. 95
    82. 82. Steps to Limit Risks3. Purchase of "Tail" Coverage – Provides additional carrier at the settlement table. – Can structure practices purchase based on numerous factors including: duration of service, whether termination is for or without cause, etc. 96
    83. 83. Steps to Limit Risks4. Settling the procedure by which patients are notified and how patient records are maintained – Managing the patient abandonment risk. – Protecting the ownership and control of patient lists and ensuring the solicitations do not occur. – Providing custodial rights for records. 97
    84. 84. Steps to Limit Risks5. Exit Interviews – Reduces risk of unknown qui tam claims and other complaints. – Includes use of documentation with statement to the effect that employees provide full and complete information about any issues with which he/she is concerned. – Allows Practice to disclose and manage, if needed. 98
    85. 85. Steps to Limit Risks6. Use of procedures and guidelines to limit access to a computer network and documents. 99
    86. 86. QUESTIONS? 100
    87. 87. DisclaimerThis presentation is provided with the understanding thatthe presenters are not rendering legal advice or services.Laws are constantly changing, and each federal law, statelaw, and regulation should be checked by legal counselfor the most current version. We make no claims,promises, or guarantees about the accuracy,completeness, or adequacy of the information containedin this presentation. Do not act upon this informationwithout seeking the advice of an attorney.This outline is intended to be informational. It does notprovide legal advice. Neither your attendance nor thepresenters answering a specific audience memberquestion creates an attorney-client relationship. 101