INDIANA DUTY TO TREAT NON-PATIENT?

Last month the Indiana Court of Appeals refused to create a physician/patient relationship for a hospitalist who was requested to consult a patient, but refused to do so because the potential patient’s primary care physician had not approved hospitalist care for his patients.

The case is nearly a textbook example of modern medicine where the patient presented, following a fall, for a broken nose, and ENT recommended surgery.  Following surgery, in the post care unit, the patient deteriorated with lower levels of oxygen saturation and low blood pressure.  The anesthesiologist contacted the ENT surgeon, the attending physician, and ENT indicated that he would request a hospitalist see the patient.  All of the hospitalists worked for a company that had a policy of only treating patients where the primary care physician agreed that all of the physician’s patients would have their hospital care overseen by the hospitalist group.  Since this family doctor did not participate in that arrangement, the hospitalist, after looking at the chart at the patient’s bedside, refused to see or treat the patient, and notified the ENT who notified the primary care physician.

Three days later the patient died and a malpractice case was filed.

The plaintiff requested that the court create a duty for the hospitalist, even without the existence of a patient physician relationship, to treat the patient.  The plaintiff argued that public policy reasons should create the duty, and that the hospital’67s own rules and regulations somehow created a duty to consult with patients without regard to the hospitalist group policy.

The Court decided that it would not change the long standing Indiana rule that physicians must take some affirmative action on behalf of a patient to create a patient/physician relationship.

RAC AUDITS – IS THIS AMERICA?

CMS, at the expiration of the last set of RAC auditor contracts, put the program on hold.  Also put on hold is the ability of providers to appeal the results of RAC audits.  Even before the suspension, the RAC audit appeal process, to say the least, was slow and ineffective with appeals often two years old.

The underlying statutes create a deadline for 90 days relating to Medicare payment appeals.  Traditional notions of due process indicate that there must be some real appeal process within a reasonable time.

CMS has now decided to restart audits of Medicare fees for service claims, at least on a limited basis.  Unfortunately, it has not indicated a removal of the two year moratorium on appeals.

It is likely that a large provider or trade group will immediately file a federal suit to require that either the appeals program be restarted and apply with statutory time requirements, or that the Court prohibit new RAC audits until both ends of the program, the audit and the appeal process, both work.

CREDIT CARD PROCESSING

Amazon has just announced a program called Amazon Local Register.  While I don’t normally comment on credit card matters in this newsletter, the Amazon program promises substantial savings for providers and even hospitals who utilize credit card payments.  Given the large dollar volume of credit card paid provider charges and hospital charges for co-pays and uninsured, Amazon’s program indicates new competition in this area, and at least through January 2015, materially lowers rates for physicians and hospitals.

ANTHEM WHATEVER

Anthem, which became WellPoint, has decided to change its name back to Anthem.  Apparently billions of dollars of profits lead to profound decisions.

CMS CAN AUDIT BETTER

Twelve house and senate lawmakers requested GAO review current CMS audit procedures.  The GAO, and its Report 14-474, found:

• MAC and ZIPIC conduct duplicative reviews of provider claims.

• CMS contractors have inconsistent requirements for communicating with auditor.

• The CMS process is administratively burdensome.

GAO recommends that CMS standardize communication requirements between providers and auditors of all four types, MAC, RAC, ZIPIC and CERT, the CMS issued complete guidance on whether MAC or ZIPIC reviews should even occur, much less a duplicative review, and that CMS should monitor its data warehouse to assure that information inputted is complete and accurate.

No timetable for CMS complying with GAO’s recommendation was given.  If you would like to review the 62 page report, please advise and I will forward a copy.

OIG CONTRACTORS SELF DISCLOSURE GUIDANCE

On August 12^th, HHS – OIG posted guidance and frequently asked questions and answers regarding contractor self disclosure.  This rule is mandatory for federal contractors with contracts over $5M when credible evidence of violations is found.

The guidance notes that such disclosures are made with no advance agreement regarding possible OIG actions, and no promise to limit or cartel civil or criminal penalties.

While helpful, in my opinion, the guidance continues the proliferation of competing and often conflicting disclosure requirements regarding payments and overpayments, fraud and similar matters.  A consistent and single point of contact and rules for exploring and making self disclosures would be beneficial both to payors and providers.

PHYSICIAN SIGNING BONUS MUST BE REPAID

This month a Kentucky Court of Appeals held that Jose Alzadon, M.D. had to repay a signing bonus/guaranteed income payment to Consolidated Health System.  The surgeon was required to provide two years service in order to avoid repayment of the upfront bonus.  The good doctor’s privileges were suspended less than 2 months after he began working, his privileges were restricted to certain limited procedures, and he was required to complete a surgical mini-residency.  It appears the doctor never completed the training, the hospital notified the doctor that he was in breach, and that his repayment obligations were triggered.  The doctor apparently argued a number of technical and procedural matters with regard to the restriction and ultimate suspension of his privileges, and also argued that the hospital obstructed his performance.  The Court would have none of it, and ordered the doctor to pay the amount due under the agreement, and pay the hospitals attorney’s fees.

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 on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.