A Report on the 2002 Annual American Health Lawyers Association Meeting

August 2002

As a member of the American Health Lawyers Association for almost ten years I finally went to one of their annual meetings.  The organization is dominated by hospital, health plan and large firm attorneys.  The rest of us are an afterthought.  This meeting was held in San Francisco, 30 miles from me, so I thought I would attend.  It was a good decision from several standpoints.  I met some old friends and adversaries and hopefully made some new friends and adversaries.  I learned that the organization is actually starting to present both sides of an argument and allowed physician advocates to speak.  I also learned what the evil side is doing and how they plan to make the physician and medical staff work harder.  I will  only report on the sessions I attended.

The Changing Face of Privacy 

This talk by Kristin Rosati was one of the best of the entire meeting.  She went over the original privacy rules under HIPAA and then the proposed rules.  These proposed rules will be released as final with modification on or before August 14.  I would advise all physicians to learn about the rules and after they become final to start writing their policies to abide by the rules.  Of more immediate concern is the October 15 deadline to apply for an extension if you are not ready for the new transaction and code rule.  If you don't your cash flow will suffer dramatically since you will not be able to bill Medicare.  Please have your medical staff members contact a healthcare attorney immediately regarding these rules.  I doubt if any hospital wants to lose patients because they didn't tell their staff about the law.

Report from a HIPAA Implementation Team

This was a group presentation by six attorneys regarding various parts of HIPAA.  The first one was on Business Associates.  They described who is a business associate and how to find and identify them. The program then went on to the needed contracts and what they should contain.  The next presentation was focused on the remaining time for health plans.  This dealt with the health plans and their relationships with employers and the providers.  This will be a problem since under the "minimally necessary rule" the plan will no longer be getting all the information they have in the past.  The plans will also have significant problems in marketing to their insured due to privacy.  The next was medical research and privacy.  The organization must determine if the information they are using is operations or privacy. If the information stays inside the organization it is operational and no authorization is needed. Authorization is needed if the information goes outside the organization unless it is completely de-identified, a very difficult task which may require the use of a statistician.  If the information that goes out is clinical (involves the treatment of the patient) authorization is required.  If the research has been approved by the IRB, is only used for protocol or all are deceased then no authorization is required.  If the information or any part was authorized and obtained prior to April 14, 2003 and continues beyond that date no further authorization is required. The following presentation was on marketing and privacy.  The original rule allowed marketing with a patient opt out option.  The new rule does not permit marketing unless there is a face to face meeting, the product or service is of nominal value or the marketing is tailored to the individual and is an extension of treatment. Added on the last is the identity of the party making the pitch, who paid them and how much.  The entity must have authorization from the person to market outside of the above exceptions. The entity may not provide information to any third party without authorization.  The fifth talk was on organized health care arrangements (OHCA).  This is where the hospital and its independent medical staff sign an agreement that the hospital will furnish it's notice of policy and procedures (NPP) to the patient upon presentation.  The physician will need to abide by this notice while the patient is in the hospital, but will need to provide the patient his/her own policies at the office. This will allow the physician not to have to give the patient their NPP at two am or to allow the consultant to see the patient without giving their NPP.  The downside is that each must abide by the rules and if they don't there should and would be consequences.  The last talk was on HIPAA and the small group practice, what to do and when to do it. The first deadline is October 15, 2002, several months away.

Stark II Final Regs

This talk was about the new Stark regulations that went into effect this year.  This Civil penalty law attempts to define when the line between legal and non has been crossed.  The next phase of the rule regarding some exemptions will be released next year. The rule applies to MD, DO, DPM, Optometrists, DDS, and chiropractors.  It describes the basic prohibition against dealing with entities that either you or your extended family have any financial relationship with and ten designated health services. This originally started with just labs but then spread out to almost all entities. This rule will change the way some groups compensate their members.  It also allows pathologists and radiologists to order new tests if the original test was ordered by a treating physician and the need for the new test is either backed up by the medical record or later agreed to by the originally ordering provider. It also defines where a practitioner must be to "supervise" a mid level practitioner.  These rules are very strict and if not followed may cost the provider both the money collected and the fines for each violation.  Even worse is if you are asked to sign a Compliance Agreement.  These are onerous at best and onerous and very expensive at worst.  I again would recommend all seek legal advice of one who specializes in this field.  This does not include your business attorney nor even a regular healthcare attorney.

Representing Physicians in Employment Agreements

This presentation went over what the physician and his/her attorney should look for in the agreements.  Some of the highlights are the term of the agreement, but is it amended by being an at-will agreement, compensation and how it dove tails with the Stark regulations, the benefits and who pays for what, and the most important part of how the agreement may be terminated and who owes what duties and payments to who.

Hospital-Physician Transactions

This mostly dealt with medical directors, joint ventures and hospital owned clinics.  The speakers also went into the  recruitment of physician issues and the now basically defunct PHOs.  They talked about the pros and cons of these are where the mine fields were.  In the medical director agreement all agreed that the pay should be fair market and that the director must account for his/her time. This will take care of the inurnment issues.  The agreement must also be in compliance with Personal Services "Safe Harbor".  With the physician recruitment, again the Stark safe harbor must be considered as who the hospital pays.  The hospital can not pay a group to bring in a new member but can only pay an individual. 

New EMTALA Guidance 

In this talk Louise Joy and a member of CMS discussed the old and mostly the new improved version of the rule that is yet to be final.  The new rule states that the term "comes to the ED" means comes to anywhere in the hospital for emergency care.  This includes L&D, Psychiatry and off-campus emergency or urgent care centers.  The off-campus centers can call 911 and send the patient to the nearest hospital if necessary and not to the controlling hospital if it's farther away. There has been some discussion in the past whether a patient who was stabilized in the ED and admitted and then who became unstable if EMTALA would apply.  The answer under the new rule is no.  In regard to L&D and Psych there is supposed to be a central log.  This is not possible if the departments are separate.  The "250 yard" rule has been significantly modified.  The medical office building on campus can call 911 as a first response to any in-office emergency. The on-call requirements have changed.  There is now or has there ever been a codified 3 person on-call requirement.  The hospital must have written policies and procedures detailing what will happen if there is no physician in the specialty on call.  The physician on call may be at another hospital on call but the original hospital should be made aware of that and have policies and procedures if that should occur.  The same is for elective surgery.  The problem here is the rule will state that the hospital must do what "best meets the need of the patients".  This may require payment to physicians or the loss of physicians from their staff.  The trigger for EMTALA is the patient or someone on behalf of the patient requesting an examination or treatment for a medical condition.  Keep an eye out for these changes becoming final.

Exclusive Credentialing and Contracting 

This presentation consisted of two people, one who identified himself as a hospital attorney and one a physician attorney.  They were both from the same town on the East Coast.  The hospital attorney talked about the new wave of economic credentialing and how exclusive contracts are good.  The physician attorney took the counterpoint.  For those of you who not know what I am talking about, economic credentialing means not allowing on staff those physician who invest in any enterprise that is competitive to the hospital.  This has just happened with two of the three systems in Columbus, Ohio.  The third being the University.  Exclusive Credentialing is the closing of the hospital to new physicians or the closing of a hospital service to new physicians.  This has been done for years with radiologists, anesthesiologists, pathologists and emergency physicians.  It is now spreading to intensivists and cardiac surgeons or interventionists.  The hospital may or may not ask the medical staff for their input.  If they don't they potentially could have a major problem as a hospital has found recently when they changed pathologists.  The hospital will probably lose most, if not all, of their outpatient business. If you as hospital medical staff leaders are not vigilant this could happen to you!

Credentialing Hearings

This was a presentation that deserved more than the one hour.  It showed how hospital and medical staffs can manipulate the peer review process and how the physician's attorney can overcome their devices.

Recent JCAHO Initiatives

This session was by Harold Bressler the JCAHO General Council.  He attempted something different this year.  He tried to go over all the initiatives quickly and none in depth.  He did this but the talk didn't have any substance.  I will give it the space it deserved.

This was a very short overview of the meeting but as you can see there is one overriding theme.  The healthcare scene is changing and all must keep up.  This will require vigilance on the part of the providers of care and the leaning of those providers on appropriate specialists, be they healthcare attorneys or IT specialists.  If you don't keep up the penalties may be huge in money, time and reputation.  As you can see in some of the above discussions you of the medical staff must not rely on the hospital paid attorney for advice on bylaws changes.  You should also be pushing your medical staff by the use of speakers and/or fliers regarding the quickly upcoming HIPAA.  Remember only 2 1/2 months until the first HIPAA deadline.  Be ready or have an extension or don't get paid.

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I hope that I do better than the famous quote from Yogi Berra when asked if Don Mattingly exceeded Yogi's expectations, Yogi replied "No, but he did a lot better than I thought he would".

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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.