June 1, 2009 Legislation

State Legislation

Federal Legislation

State Legislation

California is attempting to raise pricing for individuals to purchase health insurance.  The legislature is doing this by mandating coverage.  With each mandate the cost to purchase insurance goes up per individual.  The latest is the banning of gender rating.  This means that men and women will be charged the same for coverage.  It is well known that women are larger users of healthcare than men, including pregnancy.  The legislature also is mandating that those insurance companies that cover treatment for cervical cancer must also cover the vaccine for prevention of HPV, a potential precursor to cervical cancer.

The People's Republic of Massachusetts is finally getting some common sense.  The state Senate wants to cut non-citizen but legal immigrants from the roles of the state mandated healthcare.  These people do not qualify for federal matching subsidies so are more expensive.  The Republic also is finding itself in deeper financial problems than previously thought.  The amount of revenues expected has dropped by $1.5 Billion in the last few days.  

The Republic's patients are paying significantly more for healthcare now due to increased costs and the recession.  Over the several years of operation another important point has been seen.  There has been no change in the amount of patients using the ED for non emergencies.  The reason is that physicians do not take the state insurance.

Next door in Connecticut, a hospital has been disciplined for a patient dying due to sepsis from a central line catheter that was left in place for 11 days.  There were many other problems as well with The Hospital of Central Connecticut.  

Oklahoma is attempting to mimic Texas and get alot of physicians interested into coming to the state.  The legislature has passed a cap on non-economic damages of $400,000. The bill also forbids peer review information being allowed in med mal cases.  The state trial attorneys must be apoplexic.   

Maryland has a new law that requires health insurers to offer financial help to physicians to adopt electronic health records.  There would also be a required healthcare record exchange where there would be a linkage of all physicians, labs, hospitals and pharmacies.  This means most with electronics would need to change to comply with the integration.  This new law requires money as a lump sum or increased reimbursements or other services that have monetary value.  The plan must be up and running for all by 2015 or insurers can pay less.  This exchange would include patient medical history, latest medical research (that changes almost daily) and proposed treatments.     Top

Federal Legislation

The House Democrats who have never seen a spending opportunity they have not liked is now considering mandating all people have health care with government subsidies.  They also are wanting to mandate employer play or pay for healthcare.  The estimated cost for the former plan is over $1 trillion over the next ten years.  They have not yet quite figured out how to pay for it but that has not stopped them before. 

In case you have not heard about it there is a law called Section 111 Reporting.  This requires all settlements for Medicare beneficiaries must be reported by worker comp, no fault or liability insurance which includes physicians or hospitals if they are self insured (including deductibles) or is subject to a fine of $1000 per day.  The rationale is to make sure Medicare is not paying for things covered by other insurance or monies.  This has been the rule for various payments in the past but the new reporting and registering rules start January , 2010.  Registration at the Coordination of Benefits Secure Website ( COBSW) has begun and goes to October 1. This means that if you write off monies owed due to a potential problem (a goodwill gesture) you must report. To make matters worse CMS is labeling this reporting as an admission of liability.  Watch for higher med mal rates to follow.  Along with this is the "Never events" that CMS states it will not pay.  Plaintiff attorneys are not saying these events are automatic liability and so are per se violations. 

The Pres has signed a bill that requires CMS to see that all overpayments are by knowingly and improperly retained before they can assess interest and penalties.  Of course, overpayments must be repaid but if reconciliation talks are ongoing there should be no penalties. 

The OIG has given the green light for hospitals to pay physicians for taking call and seeing uncompensated patients.  In Advisory Opinion 09-05 a non-profit hospital, the only one in its county, found physicians no longer willing to take ER back-up coverage.  They wanted to amend the bylaws to allow payments to physicians to take coverage.  The OIG stated the payment should by fair market and arm's length for necessary items or services and not have any relation to volume of services between the parties.  It would be better if the compensation is set in advance so that it might fit into the personal services exception.  The compensation should be offered to all physicians uniformly. The physician would need to take one week of call per month and then bill the hospital for all uncompensated care.  The hospital will determine if the patient is Medicaid eligible or potentially so.  If so, the claim will be returned to the physician so they may bill Medicaid.  If truly uncompensated patients are seen then the physician will be paid $100 per consultation in the ED.  If admitted the physician gets a total of $300 for all care and paperwork.  Any surgery gets the primary surgeon $350 for any surgery and $150 for any endoscopy.  This low compensation was generated by the hospital using their interpretation of data.  The hospital did not state in their request for an advisory opinion whether the physicians would accept these meager terms. 

The opinion went on to state the rule of which the above is the exception.  It cites the Anti-Kickback Rule where it is illegal to accept any remuneration to induce or reward referrals.  This may include paying physicians for just taking call or they will stop doing business with the hospital.  However, the OIG believes it is possible to structure legitimate payments as long as it is fair market value and in an arm's length transaction.  The problems come if the compensation is for "lost opportunity" without bona  fide lost income, payment for no identifiable services, high on call payments compared to the physician's regular income and/or payment to physicians when they receive additional payments from insurers.  The law neither requires hospitals to pay for on call nor have physicians take on call without payment. It is probably better to have the hospital contract individually with physicians than make it a bylaws provision.  However, all physicians should be included.          Top


DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.