Monthly Archives: June 2012

Paying for Mom’s Healthcare? See the rise of Filial Responsibility Enforcement via WSJ Blogs.

By Kelly Greene

Twenty-nine states have “filial support” laws on the books that could be used to go after patient’s families for unpaid long-term-care bills.

We described one case in Pennsylvania, the main state where health-care providers have started using such a law, in last weekend’s Family Value column, “Are You on the Hook for Mom’s Nursing-Home Bill?”

This has become a hot topic for financial planners and others advising Americans, young and old, on healthcare costs for aging parents.

Many estate planners are selling all kinds of asset protection strategies (i.e. forming business entities, creating irrevocable trusts and off-shore trusts, re-titling property in joint-tenancies, etc.).

But since these filial responsibility laws were rarely enforced in the past, attorneys do not really know how well these strategies will hold up in court, in terms of protecting children's assets from their parents' creditors. As a result, attorneys aren't giving too much information, at least not on their web pages/blogs, about exactly what kinds of asset protection strategies they use and/or that work.

They merely alert their readers to the re-emergence of filial responsibility law enforcement, and then invite people to consult them about asset protection strategies, medi-cal planning, and long-term insurance possibilities.

Be careful if you are delving into estate planning and asset protection for this reason as it is truly uncharted territory as to what works and what does not.

Submitted by Jennifer N. Sawday

Matt Kinley Speaks About Foundations and ACO’s

California Medical Association General Counsel and Vice President Francisco J. Silva, Esq., and Matthew L. Kinley, Esq. of Tredway, Lumsdaine & Doyle, LLP, spoke to the Orange County Medical Association on June 7, 2012, about the impact of medical foundations and accountable care organizations. 

The wide ranging topics included the legal basis for medical foundations and accountable care organizations, the benefits and burdens of physician employment by such entities, and the contracts and agreements that typically are utilized for such arrangements.

Matt reported that, "Physicians and medical providers who are considering working for an integrated health care model should carefully consider their options before signing on the dotted line.  A lawyer with healthcare experience should be retained to help the medical professional through the legal maze presented by such a step." 

Some the specific areas that a physician should be concerned with:

Does the culture of the new entity fulfill the needs of the physician group? 

How do valuations play a part in the transaction? 

What due diligence will take place? 

What potential contracts may need to be signed? 

What to look for in an employment contract, an asset purchase agreement, or a professional services agreement? 

How are physician salaries determined? 

The two hour seminar was attended by approximately 50 physicians.

Investigations by the California Medical License Board: What Happens and What You Can Do

The California Medical Board issues licenses which it can deny, revoke, suspend, or place on probation. 

The Board investigates complaints or reports which may involve a violation of the Medical Practices Act.  Investigations are generally conducted by investigators, in consultation with deputy attorneys general, medical consultants, and medical experts employed by the Board.  The initiation of the investigation is not evidence of guilt.  There can be numerous bases for accusations, most frequently including negligence due to patient quality of care, prescribing violations, substance abuse, sexual misconduct or from convictions of a crime. 

Board investigators have peace officer authority. California Penal Code §830.3.  This means they can subpoena documents they deem necessary for their investigation.  Board investigations often span for more than a year.  At the investigation, licensed physicians are investigated by investigators with badges, guns and Board-paid medical consultants.  Sometimes this is at the Board's office or at the doctor's office.  They may request records or for voluntary mental examinations.  These are similar to depositions and are recorded. 

If the investigation produces evidence that a physician appears to have violated the Medical Practice Act, the Board transmits the case file to the Health Quality Enforcement Section of the Office of the Attorney General.   A Deputy Attorney General drafts a formal accusation and represents the Board in any subsequent disciplinary proceedings.  When a Statement of Issues or Accusation is filed by the Attorney General's Office, the doctor must prepare to defend him or herself before an Administrative Law Judge.  The information contained in a formal accusation is public record.  Some offenses may be resolved through a public record of reprimand, citation and fine or other actions. California Bus. and Prof. Code §2233

By law, a physician has a right to a hearing when formal charges are filed.  If a physician chooses to contest the charges in an accusation, he or she may request an administrative hearing conducted by an administrative law judge.  The hearing will result in a proposed decision that is submitted to the Board for final decision.

The Board must act on the proposed decision within 90 days to either adopt it, modify it, or substitute an alternate decision.  If the Board wishes to impose a more stringent penalty, each member must read the transcript of the hearing.  Final decisions are public record. 

Prior to the hearing, the physician may be offered an opportunity to negotiate a resolution to an accusation.  If this is done, a proposed stipulated decision is prepared by the parties and submitted before the Board.  Then the Board may adopt the stipulated decision or make changes. 

Discipline of a Physician’s License by the Board is governed by California Business and Professions Code §2227.  Disciplinary action taken against a physician’s license may take any of the following forms:

“(1) Have his or her license revoked upon order of the board.

(2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board.

(3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board.

(4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board.

(5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge may deem proper.

(b) Any matter heard pursuant to subdivision (a), except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the board and successfully completed by the licensee, or other matters made confidential or privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1.”

There are ways to reinstate a surrendered or revoked California Medical License through a petition and following certain statutory waiting periods.

What to do if you are being investigated:

It is important that if you are being investigated, you consult with an attorney to guide you on how to handle responding.  Depending upon the nature of the investigation, we may recommend to you that you enroll in a particular Board approved program to avoid a formal accusation being filed against you and communicate that to the Board initially.  If a formal accusation is filed against you, you will need to work with your attorney to prepare for a hearing and retain several experts early on to support your defenses.   

Written by Pamela Tahim

Prohibition of Corporate Practice of Medicine. How Do Physicians Stay Compliant?

California law prevents the practice of medicine by anyone but a person licensed to practice medicine.

With the increasing integration of healthcare, new systems need to be created to make sure that physicians continue to fulfill their duties.

A licensed physician must:

* Make all decisions regarding the care of patients.

* Decide the diagnostic tests which are appropriate for a particular condition.

* Determine the need for referrals to, or consultation with, another physician or specialist.

* Responsibility for the ultimate overall care of the patient, including treatment options available to the patient.

* Determine how many patients a physician must see in a given period of time or how many hours a physician must work.

* Keep accurate records of a patient and to make sure such records are private.

* Bill appropriately for all services rendered.

Under many models of integrated care, including ACOs and IPAs, physicians give up considerable control over many of these required functions. For instance, physicians are usually required under such contracts to assign all rights to bill medicare and medicaid, as well as private payers.

Under the law, however, the physician, not his or her group, is responsible for the accuracy of these bills.

A good lawyer is needed if you are entering into a contract with any healthcare provider. The lawyer should assure that the healthcare professional keeps his/her rights under the new legal framework.

Written by Matthew L. Kinley