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Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

Since 1976, our litigators have effectively and efficiently represented clients in federal and state courts in business litigation, municipal law, employment law, personal injury and a variety of complex litigation.

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Healthcare Law News - Volume 35

ONLINE PHYSICIAN RATING SITES

Physician online ratings are becoming a fact of life.  These websites usually offer the opportunity for anonymous or near anonymous posters to post their vision and opinion, whether accurate and fair or not, about a physician and their offices.

State and Federal laws may offer some limited protection against incorrect factual statements about a physician, but dealing with bad or inaccurate reviews remains a troublesome area.

On some sites a physician is offered the opportunity to reply or comment on the posted patient opinion.  Great care should be taken to avoid the use of any protected health information, even if you suspect that you know which patient posted the inaccurate opinion or information, and even if the poster posted PHI about themselves, accurate or not.

My recommendation?  If you must post a reply, post a reply that simply states that you believe that the opinion and/or factual claims are inaccurate.  Then simply state your practices’ philosophy with regard to patient care, how one makes appointments, etc.

There has been at least one HIPAA violation claim based upon a hospital responding to patient posts which I discussed in this Newsletter in Volume 29.  Don’t make the same mistake. Focus instead on your practice’s policies and promises to patients.  A positive statement which confirms your practice’s professionalism is the best response.

HOSPITAL DENTAL MEDICAID RULING

On October 15, 2013, OIG posted a new Opinion which may be of significant use for hospitals which offer some dental care or services for which payment is expected, but also operate a free dental clinic.  In the particular factual situation in the Opinion, a hospital sought approval for submitting Medicaid claims for adults and dependents eligible for Medicaid reimbursement.  What made the Opinion significant is that the hospital also offered free dental care for children, presumably to improve their overall health.  In the past, such situations have created a significant concern that because the hospital offered free dental care to a portion of the population, that it would not be proper to seek Medicaid reimbursements for dental care for other segments of the patient population.

I believe there are two significant aspects to this Opinion, the first being that Medicaid has now officially approved such a program.  The second is the possibility of extending this reasoning to areas outside of dental, perhaps preventative care or prenatal programs, where again, the hospital may wish to offer certain patient populations, such as children, pregnant women or other defined groups, free care while continuing to seek to reimbursement from Medicaid for the same services for another patient segment.

Hospitals, medical practices and clinics may wish to reexamine their philosophy on seeking Medicaid reimbursement for certain services in light of this Opinion.

ON CALL COMPENSATION

The issue of on call compensation for physicians and its limits under the anti kick back statute continues to generate cases and issues.  Advisory Opinions 7-10 of the OIG outlines the method of determining fair market value for on call compensation.  These Opinions require that fair market value be based on the burden on the doctor providing coverage, including whether it was a weekday or weekend, and the frequency of actual call events along with the likelihood of caring for uninsured patients, and the actual burden on the physician, or in other words, the severity of the condition or illness that requires that physician’s presence.

These on call compensation plans have implicated the anti kick back statute because of the possibility of using such systems disguise prohibited payments for referrals.

The trends going forward appear to be either using hospital employees for call cover (still raising the question of FMV compensation) or moving to sharing on call coverage among multiple hospitals and clinics.  The advantage of this later approach is that if a group of anesthesiologists provide coverage to multiple hospitals, it makes the argument that such compensation is not for referrals an easier argument, and also makes it easier to claim that if multiple hospitals are willing to pay the same rate, it is a good indicator of fair market value.  This argument is further strengthened if the payments change based upon whether coverage occurs on weekends or weekdays, according to a calculated probability of actually taking call, and the severity of the event (i.e. time invested) in a call event.

The proper design and documentation often mean the difference in a finding as to whether the anti kick back statute (AKS) applies, or whether the compensation is considered acceptable and compliant.


This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions about this newsletter or any other matter at (812) 402-1600 or pwallace@joneswallace.com.