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DOCTORS AND THE SURROGATE MOTHER

How should physicians deal with contractually arranged pregnancies?
Physicians, particularly obstetricians, dealing with surrogate pregnancies have unique legal and practical issues to face when dealing with the contractual obligations of the surrogate mother.

Physicians are not lawyers and shouldn’t pretend to help the parties with the surrogate contract issues. However, they can help the parties understand the medical issues such contracts create.

Treat Surrogate Mother and the Fetus

According to the recommendations of a 2008 American Congress of Obstetricians and Gynecologists (ACOG) committee opinion, a medical professional’s obligation is to care from the pregnant woman and the fetus.

“While caring for a surrogate mother it is the professional obligation of the obstetrician to support the well-being of the pregnant woman and her fetus, to support the pregnant woman’s goal for the pregnancy, and to provide appropriate care regardless of the patient’s plan to keep or relinquish the child. The obstetrician must make recommendations that are in the best interests of the pregnant woman and her fetus, regardless of prior agreements between her and the intended parents.”

This contrasts sharply with  California law since 1993 when the California Supreme Court approved surrogacy agreements for gestational surrogacy (Johnson v. Calvert). The court ruled that as between the genetic relationship of the woman who donated the egg, and the relationship of the surrogate, “she who intended to procreate the child-that is, she who intended to bring about the birth of a child that she intended to raise as her own-is the natural mother under California law.”

The parties who hired the surrogate should be the parents. By making this ruling, the Court signaled it’s intent to look at the intent of the parties to determine who was the parent.

How does the healthcare system respond to conflicts between the birth mom and the contracting parents? The ACOG Opinion requires the physician to support the goals of the pregnancy of the birth mother. The California Supreme Court (later codified), gives the mantel of parenthood to the parties who hired the surrogate. How does the doctor decide when the parties disagree?

California Case Demonstrates the Issues.

One California case demonstrates some of the issues (CM v. MC.) In the case, a 50-year old male postal worker who lived with his mother wanted a male child. Though a surrogacy agency, he contracted with a 47-year old women to carry his surrogate baby. The intended father and the surrogate mother never met. Through the broker, a 75-page agreement was signed. The agreement provided that the mother would receive $27,000, with a $6,000 bonus in the case of multiple pregnancies, that the woman would become impregnated by implantation of donor eggs fertilized by the postal worker’s sperm, and that the intended father would pay medical bills and insurance for the surrogate during the pregnancy. The agreement further provided that the intended father wanted a male child and that in the event of a multiple pregnancy, the intended father had the right to require “selective reduction” of the pregnancy.

The surrogate mother became impregnated by implantation, resulting in a pregnancy of three males. The surrogate mother either did not read or did not understand the agreement she signed. The agreement allowed the intended father to make a decision about selective reduction if there was a multiple pregnancy. The surrogate mother, however, did not believe in abortion. When the father instructed that she reduce the pregnancy, because he was running out of money and could not handle triplets, the surrogate mother refused. Litigation resulted. The end result was that the triplets were born and the intended father got custody.

Guidelines for Treating Surrogate Mothers

The following is a list of guidelines for caring for surrogate mothers.

First a warning: there is little legal guidance for many of these guidelines and there has been too little discussion about the legal obligations of the physician in these situations.
Get a copy of the Surrogacy Contract.

The purpose of obtaining this agreement is not to give legal advice or to make decisions based upon the agreement. Rather, knowledge of the agreement can give the obstetrician important information about the medical choices made by the parties. Some of them include:

a. HIPAA Waiver. Surrogate contracts usually give the intended parents the right to information about the pregnancy. This should be reviewed by compliance professionals. If it’s not sufficient, the practices’ HIPAA waiver should be offered to the surrogate so that the intended parents can receive information and possibly attend in office appointments.

b. Surrogate Mother’s Behavior During the Pregnancy. Standard contracts provide for behavior of the surrogate mother during the pregnancy, including diet, abstention from tobacco, achohol, drugs, etc., the utilization of vitamins, exercise, and frequency of visits to the physician. Agreements may even require treatment of the child before birth, like reading to the child, or music, or birth methods, etc.

c. Decision Points During the Pregnancy. The physician can take note of the obligations of the surrogate to make certain decisions, such as DNA testing, or selective reduction as described in the case above.

Note that there is some risk in obtaining the Surrogacy Contract:  By having knowledge of the terms of the agreement, a slighted party may try to sue the physician for a tort called “interference with contract.”  This would be an allegation that the physician intentionally attempted to get the surrogate to breach the contract.  There is no known case in the country for this cause of action at this time.

Follow The Instructions of the Surrogate Mother.

As the pregnancy unfolds, the ideal situation would be when the surrogate mother and the intended parents visit the physicians’ offices together, and they make joint decisions as the pregnancy proceeds. However, if there should be conflict, or if the physician is faced with a situation where the surrogate mother is not following the surrogacy contract, the physician should follow instructions of the surrogate mother unless and until the surrogate parents obtain a court order. The physician should stay out of any legal dispute.

Inform Intended Parents.

As long as the surrogate mother has allowed the intended parents access to medical information, and as long as such waiver of privacy is not terminated by the surrogate mother, the physician should share information about the pregnancy with the intended parents. If such privacy waiver is revoked, the physician should inform the intended parents of such revocation, and stop sharing information without a court order.

 Absentee Intended Parents.

Often, the intended parents are absent until the birth. In such cases, the physician should only follow the surrogates instructions during the pregnancy.
 After Birth Issues.

Generally, surrogate contracts allow intended parents to go into court and get an order of custody at the time of birth. If such an order exists, the intended parents would usually have the right to make all decisions regarding children born to surrogate parents. Without such order, the surrogate mother’s instructions should be followed.

This article is meant as guidelines in an area of law that has no real guidelines. Suggestions or different experiences are welcomed.

By Matt Kinley, Esq.  Founder of Kinley Law Practice.

HIRING THE HEALTH CARE LAWYER

MAKE SURE YOUR NOT GETTING RIPPED-OFF BY THE BIG LAW FIRM

The Problem

All businesses need to be careful with hiring and paying attorneys. American Express at Open Forum reports on the different ways that law firms take advantage of clients. Some examples: Including charges for corporate, estate planning and real estate forms that they have used multiple times and billed to multiple clients.  Being shuffled off to less experienced attorneys and paying for the “supervision” by the senior attorney; and, refusing to negotiate the billable hour and replacing it with things like flat fees or other creative billing.

According to AMEX: “All attorneys should be open to negotiating their hourly rate, especially if you have a big project or will pay a cash retainer up front,” said Street. “Better yet, ask them to quote you a flat rate for your project. Most attorneys are still learning how to think about flat- or project-rate billing, so they may need your help in setting the fee, but you will then have complete control over the cost of your representation.”

Avoiding Excessive Legal Fees

All businesses, especially healthcare businesses, avoid the problems of hiring lawyers by creating a continuing relationship with a lawyer. Businesses of a certain level have the ability to hire in-house counsel, an important position in any organization. The General Counsel of a firm can protect it from many legal threats and can help the organization find appropriate legal support.

Smaller businesses can’t afford to hire General Counsel. Given the more and more complicated legal framework, owners of businesses must find appropriate avenues to obtain advice to avoid the harsh penalties of a legal mistake.

Healthcare Law and the General Counsel

Healthcare firms must make sure that they get accurate and specialized lawyering to support their business. One step is to follow the guidelines of AMEX when hiring a lawyer and make sure they are getting the right advice and paying the appropriate amount for the advice.  Negotiating and setting a set plan for the advice needed is the best alternative to the billable hour.

Healthcare Compliance

Healthcare firms face a wide range of regulatory compliance matters impacting the healthcare industry.

Kinley Law Practice works with businesses to create and implement safeguards to ensure that clients are in compliance with all applicable federal and state regulations. These safeguards not only minimize exposure to administrative fines, costly lawsuits and settlements, they also ensure maximum profits and efficiency.

KLP’s compliance capabilities include:

• Anti-kickback laws
• Stark Law matters
• Ethics and Patient Referral Act
• Emergency Medical Treatment and Active Labor Act (EMTALA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Health Information Technology for Economic and Clinical Health Act (HITECH)
• Loss of licensure issues
• Corporate Integrity Agreement negotiations with Health and Human Services
• Office of the Inspector General
• Clinical Research Regulations
• Informed Consent matters
• Medical staff and peer review matters
Outside General Counsel Services

KLP’s general counsel services are a unique way for healthcare clients to obtain the expertise and accessibility of an in-house legal team without having to endure the burden of employing and managing a team of attorneys. Our clients typically engage us on a set monthly retainer based on business size, volume of work involved and other business specific factors. We provide a complete turnkey solution for all legal needs, or we can work with existing in-house counsel to provide specialized guidance with a particular challenge, such as with post-acquisition employment compliance integration or the development and maintenance of a licensure platform.

As “outside general counsel” we provide the following services personalized to the specific needs of our clients:

Compliance and Risk Assessment. We personally visit our clients’ business site and conduct a top to bottom review of processes to assess risk and establish relationships with staff. We will know each key employee by name and each of those individuals has access to our expertise at their fingertips.

Contract Review and Negotiation. We draft, revise and update all form contracts and negotiate and document the multitude of contracts our clients need to function. We provide a complete solution from equipment purchase deals to commercial leases and everything in between.

Employment Issues. We help develop sound recruiting, hiring, discipline, termination policies to help our clients minimize administrative claims and litigation risks.

Litigation Management. We manage all aspects of litigation by outside counsel or handle litigation needs ourselves. If hiring other outside counsel is in the best interest of our clients, we will work with outside counsel to keep track of budgets and strategies. We monitor important filings, deposition transcripts and coordinate trial and alternative dispute resolution tactics.

Onsite Office Visits and Management Meetings. We partner with our clients to on site at regular intervals to enable us to work face-to-face with key management personnel in identifying and implementing specific strategies for improving efficiency in a legally sound manner. We regularly participate in key management meetings and provide input as needed.

Transactions and Real Estate Needs. We advise our clients in all aspects of transactions such as the purchase of physician practice, to structuring the ownership of medical office buildings occupied by physician owners. We also negotiate space leases between hospitals and physicians as well as consult in the construction, financing and equipping of continuing care retirement communities, nursing homes, and assisted living facilities.

Matt Kinley, Esq. Healthcare Lawyer at Kinley Law Practice.

 

Kinley Law Practice starts January, 2017

QUALITY HEALTH LAW ADVICE

The California Healthcare Law Blog was created several years ago to keep the healthcare industry abreast of new developments in health law.  It’s been an amazing journey!  It’s culminated in a new law firm, Kinley Law Practice, committed to supporting health care entities with quality advice.  Give me a call at 562.715.5557 or email me at matt@kinleylawpractice.com with comments or questions.

 

klp_newyearannouncement

ANNOUNCEMENT for California Healthcare Law!

Wishing you all Happy Holidays and a great 2017!!15591617_10209664176813896_850258008651978225_o

California Physicians May Be Asked to Help with Assisted Suicide

PHYSICIANS CAN OPT OUT OF ASSISTED SUICIDE LAW

California was the most recent state to adopt the End of Life Option Act, codified at Health & Safety Code section 443. It basically allows a competent patient who has been diagnosed with a terminal illness to seek and obtain a prescription for the necessary drugs to be self administered.  The law is effective on June 9, 2016.

Aid-in-dying legislation has passed in Oregon, Washington, Vermont, and Montana.   Doctors in those states are permitted to prescribe drugs to terminal patients that they will use to end their lives.  The patients must meet certain requirements and undergo a set process to receive the medication.

California’s procedures, like the other states, seek to protect terminal patients from rash decisions or over-anxious relatives.  While patients may designate agents to make all sorts of health care decisions on the patient’s behalf, an agent is not able to request aid-in-dying drugs on behalf of a patient, and therefore these drugs cannot be requested through an advanced healthcare directive.

The  Act allows doctors, medical groups and hospitals to opt out of the law.    Most, if not all, religious hospitals are expected to reject the law.  Physicians are not required to prescribe life ending drugs to patients.  The California Medical Association dropped it’s opposition to the bill.  According to news reports, the state of California will pay for the costs of the drugs to be utilized.

According to the Act, the “aid-in-dying drug” means a “drug determined and prescribed by a physician for a qualified individual, which the qualified individual may choose to self-administer to bring about his or her death due to a terminal disease.”  The Act does not describe what the appropriate drug might be.

Health and Safety Code section 443.22 provides the physician with a checklist to be used if a patient seeks the end of life drug.  See, AttendingPhysicianChecklist

To summarize the requirements, in order for a person to seek aid-in-dying drugs, they must meet the following criteria:

  • The patient must be at least 18 years old
  • They must have capacity to make medical decisions
  • Diagnosed with a terminal illness by an attending AND consulting physician
  • The individual must voluntarily express the wish to receive the aid-in-dying drug
  • They must request the drug twice orally—such requests should be made 15 days apart
  • Must request by written request which is signed/dated and witnessed by two adults
  • Must be California resident (and provide proof of such residency)
  • Must have physical and mental ability to self-administer the drug
  • The decision must be confirmed that it is not due to coercion or undue influence
  • The attending physician must offer the qualified individual to withdraw or rescind the request

Upon filling the aid-in-dying prescription, the patient must complete a “Final Attestation for an Aid-in-Dying drug to End My Life in a Humane and Dignified Manner” form 48 hours prior to self-administering the drug.

Developments in the law should be closely monitored as it is likely that that state regulators may develop more detailed and specific standards when facing a terminal patient seeking end of life drugs.

By Matt Kinley,Esq., LLM, CHC

562.715.5557

Los Angeles Medical Association: Navigating the Hornet’s Nest of Reimbursement

Matt Kinley Speaks to Los Angeles County Medical Association on March 23, 2016.  Contact Mr. Kinley at mkinley@tldlaw.com if your interested in attending.

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PHYSICIAN ALIGNMENT WITH HEALTH CARE SYSTEMS

HEALTH CARE SYSTEMS SHOULD UTILIZE REAL ESTATE TO CAPITALIZE ON PHYSICIAN ALIGNMENT

Health care systems have recently increased acquisitions and joint ventures with physician groups in order to increase hospital exposure and revenue.  While regulations which limit referrals should be carefully considered and followed, some of the following real estate assets that hospital systems have can be utilized to attract new physicians.

Office Condo Projects:  Allows physicians to invest in projects on or near campus.

New Construction: Building new office buildings with an eye toward comprehensive care and alignment of patient experience.

Hosting New Clinics and facilities which promote the hospital community.

Key to complying with regulations is fair market value agreements and documentation. Both the hospital and physician should have appropriate legal representation to assure compliance.

By Matt Kinley,Esq., LLM, CHC

562.715.5557

 

 

Fraud Alert Issued by OIG Puts Medical Directorships Under Suspicion

Make Sure Your Medical Directorship is Legal

HHS’s Office of Inspector General’s Fraud Alert issued in June of this year  puts an often-used tool for compensating physicians in the regulatory cross hairs. “Medical directorships,” or the payment of a physician for overseeing clinics or other medical services, will violate the Federal and state Anti-Kickback statutes if “even one purpose of the arrangement is to compensate a physician for his or her past or future referrals.”

Compensation arrangements between hospitals, physician groups and other medical providers that contemplate management or directorships by a physician should be carefully evaluated by competent counsel. OIG has said that it will be reviewing such arrangements with particular interest. If a violation is found, the result could include criminal, civil and regulatory fines, and exclusion from federal health care payment systems.

Some of the elements of an appropriate directorship or management position for a physician might include a written contract for at least a year with a salary that constitutes a fair market value for services actually provided. Such an agreement should be backed up by salary surveys or other documentation that the compensation is based on similar positions within the community.

By Matt Kinley,Esq., LLM, CHC

562.715.5557

NY TIMES ARTICLE: MISUSE OF HIPAA PREVELANT

IN this important article,  the author makes the point of the misuse of HIPAA.  Medical privacy is an important subject, but hospitals and doctor’s offices sometimes misunderstand and misapply the law.

By Matt Kinley,Esq., LLM, CHC

562.715.5557

 

Home Care Stakeholder Workshop

The Home Care Services Bureau conducts Care Services Consumer Protection Act Stakeholder’s Meetings pursuant to California’s AB 1217, the Home Care Licensure Act.   Those who are interested in the subject are encouraged to submit their questions to: HCSB@dss.ca.gov AND to our Policy Director, Braden Oparowski at boparowski@cahsah.org.

The Department has announced that they expect to release the licensing fees and aide registration fees sometime in July. Information was also presented on the following topics: fingerprint transfer process, home care aide training requirements, written directives verses regulations, licensing inspections, personnel and administrative file requirements, abuse reporting requirements, reporting organizational changes and TB clearance.

The Home Care Bureau’s website DSS’ Home Care Services Bureau will be posting the Power Point presentation from the webinar on the main page of their website. Additional questions about the Home Care Services Consumer Protection Act Stakeholder Meetings or AB 1217, may be directed to CAHSAH’s Legislative Specialist Mary Adorno at
(916) 641-5795 extension: 124.