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The American Medical Association publicaiton, Americn Medical News recently quoted Mr. Kinley in it's article, "Collaboration can save medical practices time, money and effort."

"Matt Kinley, a partner of Tredway, Lumsdaine & Doyle, LLP, a Southern California-based law firm, said some concerns were raised that ACOs would violate antitrust laws, leading to certain exceptions being made.

“With ACOs, physicians agree to a certain payment, but that payment is based on improved quality of care,” Kinley said. “The government is very interested in a system that improves quality of care and uses technology, which ACOs do.”

Kinley said it’s too early to tell if ACOs will replace IPAs."

AVOIDING EMBEZZLEMENT IN THE MEDICAL PRACTICE 

This is the first in a series of articles on avoiding fraud
and theft in healthcare professionals’ offices.  The article is meant for medical
professionals including physicians, dentists, home nursing and mental health
professionals. If you have any questions about this series, feel free to
contact attorney Matthew L. Kinley, a healthcare lawyer in Long Beach,
California at 562.901-3050. 

DEFINING THE PROBLEM
OF FRAUD AND THEFT IN THE HEALTHCARE OFFICE.

          Medical provider offices are subject to fraud and theft as much any business.  According to the Association of Certified
Fraud Examiners, the amount stolen annually from all U.S. business by employees
exceeds $50 billion.  The Association
claims that as many as 75% of all employees have stolen from their employers.  Most theft is caught by other employees
reporting the theft.  Internal audits catch
a little less than 20% of all theft caught.
Accidental discovery accounts for the same amount of captured theft.

          The
medical practice offers unique opportunities for theft.  Certainly employees steal the usual from
their employers, like supplies and computer parts and money.  Medical practices typically have a large
stream of money.  Employees in the
medical practice also have the opportunity to steal identities of their
employers and patients. There is also the opportunity to steal prescription
pads and controlled substances.

          The
medical facility also has unique risks.
Because of strict regulatory controls, not only does the medical
practice suffer the dollar lost for activities such as theft of co-payments and
identity, there is also the risk of penalties and fines. There is also the risk
of whistle blowers within your own ranks.

          There
are also legal issues associated with confronting the person who is stealing
from your practice.  Should you
electronically monitor employees?  Should you fire an employee?  Should you contact the police?

EMBEZZLEMENT

         This
first article focuses on embezzlement from the medical practice.  Embezzlement from the medical practice can go
unnoticed for several reasons. Often, the embezzler is also the person who
records the receipt of money. Usually it is a trusted employee. Usually, there
is general surprise that the individual caught has committed the crime.

          To
avoid employee theft, the office should have internal controls that immediately
record all transactions.  There should
also be a system of checks and balances to make sure that your employees aren’t
manipulating the system.

 ACTION ITEMS

1. Record all transactions: accounts
payable, accounts receivable, refunds, adjustments, copayments and even write
offs.

2.
Reconcile receivables and charges every day.

3. Issue a receipt with every
transaction; balance receipts every day with a second person verifying the
balance.

4.
Immediately stamp checks “for deposit only.”

5.
Retain charge sheets and explanation of benefit statements to support
daily transactions.

6. Routinely verify petty cash
balances.

7. Periodically hire an accountant to
conduct an audit.

8. Keep duplicates of all deposit
slips.

9. Periodically review all accounting
entries rather than just checking totals.

10. Require signatures from the
appropriate managers for all large checks.

11. Do not allow anyone to sign blank
checks.

11. Cross train employees for all
tasks. 

12. Have an outside book keeper
reconcile bank statements.

13. Have inventory cross checked by
different employees.

14.  Keep
strict controls over business credit cards.
Carefully review all statements.

Article by Matthew L. Kinley, Esq.

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One of the most important decisions when facing legal difficulties is hiring a lawyer that will represent the client’s needs.  It’s even more difficult when hiring a lawyer to represent a healthcare professional because of the labyrinth of laws and regulations that affect healthcare.

The lawyer should also be appropriate for your issue.  Medical malpractice lawyers don’t necessarily understand the issues involved in a merger, and a corporate lawyer isn’t ideal in dealing with liabilty issues when faced with a patient claiming malpractice.  A corporate lawyer shouldn’t represent a doctor without specialized knowledge in healthcare law.

Other issues medical professionals should be aware of include:  hourly rates of the lawyers, the approach that the lawyers will take.  Most important, you should have a comfortable relationship with the lawyer and the lawyer’s office and the lawyer should be available to you upon reasonable notice.

This article from the American Medical Association deals with these and other issues for consideration when a doctor hires a lawyer.

http://amednews.com/article/20130610/profession/130619980/4/

Submitted by:  Matthew L. Kinley, Esq.

When does
an organization that provides home services such as companionship or personal
care need a state license? What is the difference between home health care
services and other care provided to seniors or medically challenged
individuals?

In
California, there is no clear answer. 
Under Health and Safety Code section 1475(b), "All organizations
that provide skilled nursing services to patients in the home shall obtain a
home health agency license issued by the department." Skilled nursing is
defined as services provided by a registered nurse or licensed vocational
nurse. (Health and Safety Code section 1427(b).   A "home health agency" includes
"a private or public organization, including, but not limited to, any partnership,
corporation, political subdivision of the state, or other government agency
within the state, which provides, or arranges for the provision of, skilled
nursing services, to persons in their temporary or permanent place of
residence."  Under this statute,
activities that require medical or professional judgment require a license.

There are
thousands of companies that are providing "personal care." This is
care provided to people who may need help with their day to day activities,
including bathing, shopping, cooking and cleaning.  These individuals who have no training and
they do not have any experience or education in health care related tasks.  They likewise have no bonds which could be utilized to pay in the event of some sort of damage or abuse, such as financial elder abuse.  As long as they avoid medically intensive
activities, they do not require a license.

However,
organizations without licenses cannot, 
under Health and Safety Code section 1476:

"(1)
Represent itself to be a home health agency by its name or advertisement,
soliciting, or any other presentments to the public, or in the context of
services within the scope of this chapter imply that it is licensed to provide
those services or to make any reference to employee bonding in relation to
those services.

(2) Use
the words “home health agency,” “home health,” “home-health,” “home health,” or “in-home health,” or any combination of those terms, within its name.

(3) Use
the words “skilled” or “nursing,” or any combination of those terms within its name, to
imply that it is licensed as a home health agency to provide those
services."

Non-licensed
persons can help with prescribed drugs.

Some
interpretations of the Controlled Substances Act permits a companion to handle
a drug prescribed for his or her employer in ways which are consistent with the
prescription short of actual administration of the drug and which do not
constitute the practice of medicine or nursing. 

 A
question arises as to what is meant by "administering the drug."   This again is a gray area.  In a telephone conversation with the
Department of Healthcare, I was told that in investigations about licensure
requirements, the state investigators often will look at the condition of the patient.  Is the patient directing the unlicensed care
provider?  Could the patient administer
the drugs themselves?  Is the patient
providing direction to the care provider? 
If the patient is unable to direct such care, it is likely the care
requires a license.

 A home
care companion may administer non-prescription drugs to his or her employer in
the employer’s home under the domestic
administration of family remedies, but this only extends only to the “administration” of nonprescription drugs in
the domestic environment. It does not authorize a companion to participate, by
advice or otherwise, in the diagnosis or decisions regarding the drug to use or
its dosage made by the employer or his or her physician. Nor does it authorize
the companion to administer controlled substances of any kind.

The same
questions arise with home based equipment, including oxygen, sleep apnea
machines,  dialysis machines, catheters
of various kinds, and gastrostomy feeding, among many others.  This provides a scenario for disaster for the
non-licensed care provider and the patients they serve.

Take for
example, gastrostomy feeding.  In such
cases, a surgical opening into the stomach is made which allows a tube to be
inserted in the stomach through the abdominal and stomach walls. This allows
food and fluid to be instilled directly into the stomach from outside the body
when swallowing is impossible because of complete obstruction of the esophagus.
It is also sometimes used temporarily after operations on the esophagus or for
postoperative decompression in preference to nasogastric intubation. During
gastrostomy feeding the patient must be upright lest the danger of aspiration
or regurgitation occur. Precaution is required in handling the gastrostomy tube
which has been either fastened in place with sutures or has been anchored in
place with tape depending on the type of gastrostomy tube used, a
small-diameter rubber, perforated tube or a Foley catheter.

 With the
gastrostomy feeding itself, one first instills a clear liquid to make sure the
tube is open and, again, feeding is gentle using gravity or slow infusion. At
all times the tube must be kept open, because should it become clogged or
blocked, or accidentally removed, further intervention will be necessary to
replace it. The task of feeding is not in itself particularly difficult, but it
does require a studied knowledge and understanding of the principles involved,
an ability to recognize signs of potential complication, and an appreciation
for the potential for yet another intervention on the weakened patient.

Reviewing
the requirements for such care, the California Attorney General advised that
such conduct requires "substantial scientific knowledge and technical
skill."  Even though many people
complete such procedures at home, home care providers are not allowed under the
law to provide such service without a license. 
As stated by the Attorney General, "We are bolstered in this
assessment by title 42, Code of Federal Regulations, section 409.33(b)
governing Medicare eligibility for payments for skilled nursing services
listing “Levin tube and gastrostomy
feedings” as services which qualify as
skilled nursing services. Stedman’s Medical Dictionary, 5th ed.,
defines Levin tube as a tube introduced through the nose into the upper
alimentary canal.  Accordingly these
procedures come within the statutory definition of the practice of nursing and
therefore may only be performed in California by licensed nurses and
practitioners."

The
California Legislature is currently reviewing bills to license home care
providers who do work other than healthcare. This article in California Healthline details some of the most recent efforts.

 Such
proposed regulations could serve to clarify when a license is required, but
will certainly drive up the cost of such care, making it out of reach for many
of our seniors and medically challenged.   Questions about whether a license is required should be directed a lawyer with knowledge of these regulations.

What's the liablity for senior patients who run a prostitution and drug ring out of a nursing home?  check out this case from New Jersey:   http://www.northjersey.com/community/seniors/Drug_prostitution_sting_at_Englewood_senior_center_nets_three.html?page=all

California's health exchange, which is a market place for
health insurance, has a new name – Covered California.  This exchange
will allow individuals and small business to join together as long large pool
to get choices of health insurance.

Covered California makes its debut this October, offering
health insurance plans that conform to the Affordable Care Act (ACA), also
known as Obamacare.  Covered California's primary purpose will be to
insure the millions of people in California who are currently uninsured due to
preexisting health conditions or who can't afford health insurance.  

Here are some commonly asked questions about Health Reform
and our State Exchange:

Who benefits from "Covered California"

People who cannot afford health insurance.  If your
previous year's modified adjusted grow income is within 400% of the federal
poverty level, and you are an American citizen, you might qualify for an
advanced tax credit, which would reduce the amount that you would pay for
health insurance.  

Do I have to buy my health insurance through Covered
California?

No, you can choose to go through Covered California, go direct
to your health insurer, or go to your favorite licensed Insurance Broker.
 No matter which avenue you choose, you will pay the same premium, unless
you qualify for a subsidy due to low income.   You must go through Covered
California to get a subsidy.

Will my current health plan change?

Yes, existing plans will change starting in January 2014.
 In order to participate in a state or federal government health insurance
exchange, insurance companies will be required to offer plans that fit within
levels of coverage called the "metal" plans.  While each plan
must carry the same scope of benefits, the value of the benefits will vary, and
the premiums will vary by insurance company.   

      Plan Level      
           Insurance Covers      
           You Pay

     Platinum        
            90%        
                     
           10%

     Gold          
                 80%    
                     
                20%

     Silver        
                 70%    
                     
                30%

     Bronze        
              60%      
                     
              40%

Catastrophic plans will be offered to young adults under 30
and individuals who've been exempted from the individual mandate because
there's no available affordable coverage.

 How long can I keep my current plan?

For most small business health plans, the change to the
"metal" plans will occur at the  renewal periods throughout
2014.  For individual/family plans, it depends on your existing insurer.
 Some insurers are beginning advertise the fact that you can keep your
existing plan until December 2014.

For more information, visit the Health section of Lisa Davis' website.

Submitted by Lisa Davis, Insurance Solutions for Life as a guest post.

Developments
both inside and outside the healthcare industry are shaping the future of
medical real estate and several trends are emerging. We continue to see a
flight to quality within the medical office market as practices seek to upgrade
facilities and increase efficiency. The healthcare industry is working to meet
the demand of a rapidly changing environment and companies are getting creative
and more resourceful.

Healthcare
practitioners readily anticipate the significant increase in demand for medical
services expected over the next decade. Shifting demographics and new heath
care legislation are expected to expand the patient base. As a result, job
creation in the healthcare field is  expected
to mirror the increased demand. In response to the anticipated industry growth,
the Urban Land Institute estimates the demand for medical office buildings
(MOBs) will increase 19 percent by 2019. The recent spike in demand for quality
medical space is indicative of that trend.

Consolidation

While health
care real estate is subject to the broad economic factors that affect the
commercial real estate market as a whole, it also feels the effects of ever
increasing levels of regulatory compliance. The Patient Protection and Affordable
Care Act (PPACA)  requires hospitals and
practitioners to invest significantly in the implementation of many new systems
and procedures. The cost associated with the move to electronic medical records
(EMR) alone has led many physicians to seek the security of larger hospital
systems that are able to help absorb the cost and coordinate the transition.

Consolidation
of health care providers is arguably the most influential trend in the medical
real estate market. Fueled by the low cost of capital, larger healthcare systems
are being created via mergers, acquisitions and strategic partnerships. Competition
for market share along with the increase in the number of insured individuals
should keep demand for medical office property on a steady rise for the next
several years.

Repurposing and New Opportunities

As demand
for medical real estate grows, many of the larger providers will find space is
limited. In infill markets such as Orange County, we expect to see a shift
toward repurposing of existing buildings, including office, industrial and
large retail. Repurposing allows health care systems to speed time to market at
a lower cost than building a new facility.

In a related
theme, non-medical real estate properties have seen an influx of medical
activity over the last few years. Individual physicians as well as
hospital-affiliated practices have discovered the benefits of well-situated
retail centers. These smaller spaces provide a cost effective option for health
care users looking to take advantage of the visibility, lower lease rates and
high parking ratios generally associated with retail product. Retail locations
offer patients convenient access, build brand awareness and also help drive
more patients to larger operations. Established practices have also found relief
from the higher cost of medical real estate by leasing in strategically located
office product.

Trends going
forward will vary by region and state. In Orange County, we expect to see lease
rates stabilize and recover as vacancy continues to decline. Landlords are
already cutting back on tenant improvements allowances and rent abatement, both
of which are precursors to rising lease rates. 
Physicians find themselves struggling to make tough decisions. Many want
to remain flexible in their leases while they navigate a changing environment,
but the chance to lock in a low lease rate with an attractive tenant
improvement package offered on longer leases is just as tempting.

The changing leasing environment presents a new
set of challenges to physicians and real estate brokers alike. It is prudent to
have all lease documents reviewed by an attorney familiar with healthcare to
ensure compliance with state and federal laws anti-kickback statutes. For more
information please see here.

Submitted by Stacey Hall on behalf of Lee & Associates Commercial Real Estate Services, Inc. as a guest post.

This is the fourth and final in series of articles about changing or
terminating a practice.  This article focuses on notifications to
patients when a doctor retires or goes to another practice.

What to do with patients' records when a physician leaves?    Even if there is a provision with the physician in his employment contract, is it a legally valid agreement to provide the physician and the patient with continuing access to the records?

Custodianship
of Records

The departing physician and the practice need to
come to a written agreement about who is the custodian of the records and the
conditions under which the departing physician will be granted access to the
records of the patients he or she treated. Consult an attorney who is familiar
with health care, insurance and contract law for assistance in drafting the
agreement or contract.

The
custodianship agreement should state whether patient authorization is needed
for the departing physician to access his or her former records or to obtain a
copy of those records for his or her health care operations (such as a medical
malpractice allegation). If not specified in the agreement, state law may
determine whether patient authorization is needed for the departing physician
to access or copy these records. Generally, physicians should be allowed access
to the records of patients they treated. The records provided should reflect
care up to and including the day of the physician’s
departure.

The
custodianship agreement should specify the access process, contents of the
records to be copied and who pays for copies of the records provided.

Ensure
security. The custodian of the records has a legal duty to maintain the
security, integrity and confidentiality of the records, and to comply with
state law and HIPAA regulations about patient and third party access. 

Provide
access to records. When the departing physician continues to treat patients from
his or her previous practice and needs access to their records, the priority
should always be patient safety and well-being in order to avoid delays in
diagnosis or treatment. Juries will not be sympathetic to physicians or
practices that impede access to health care information for business or
financial reasons. A list of the patients treated by the departing physician
should be given to each party, in order to simplify requests for access to and
copies of the records. The list should specify the date of the physician’s departure.

Get the
patient’s authorization. If the
patient will be transferring care to the departing physician, try to obtain a
written authorization from the patient before providing a copy of the medical
record. If you do not have a copy of an authorization, do not delay transfer of
the records as long as you can verify and document the purpose of the
disclosure and the identity of the party requesting it.