CALIFORNIA HEALTHCARE LAW

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.

 This is the third 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.

When physicians leave a practice, both the practice and the doctor should make sure that certain third parties are notified in addition to notifiying patients.  Vigilance in such notifications helps protect each party from liability and potential adverse consequences in the future.

NOTICES SHOULD BE IN WRITING.  Be prepared to prove that you made the required communications

Third
Parties to Notify

Dependent
upon the provisions of contracts and state law, both the departing physician
and the practice may need to notify various the following third parties:

Insurance

Professional liability carriers need  to
know of any changes in order to ensure coverage of the care rendered in both
the prior and future practice settings. Physicians who are retiring and have a “claims made” policy should inquire about “extended reporting period endorsements” or “tail” coverage.

Medical, life and disability carriers should also be notified.

Payers.

All payers should be notified of the change.  This should be done as soon as possible, especially with regard to Medicare, in order to make sure that payments to the physician in the new practice.

Hospitals.

The medical
staff committee of hospitals where the departing physician has privileges. If
he or she is on-call at the hospital, notify the emergency department as well.

State Licensing, Permits, Certifications, Registrations.

The state
board of medicine (if required by state law).  Any other federal or state licensing in held in the name of the departing physician (as opposed to the name of the practice).

Other Contracts.

Any contract held in the name of the departing physician, such as building or equipment leases.

Legal
counsel for assistance as needed in contract provisions and employment law.

By: Matthew L. Kinley, Esq.

This is the second 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
should the organization do when (1) a physician decides to leave and (2) the physician’s patients decide to stay with organization?

First, as stated in the prior posting on this subject, the
patient should be notified about the change in physician.  The patient should be provided the
opportunity to make inquiries, and someone within the organization should be
tasked with taking those calls. If the care will be provided by another
practitioner with the same scope of practice as the departing physician, the
organization should make sure that physician is appropriate for the
patient.   If the physician is in the same practice, notice should simply inform the
patient of the new physician’s name, and reference that the medical records
will be maintained.

Special care should be utilized when replacing a specialist, particularly if a different type of specialist will be the replacement.  The organization should make sure that the replacement physician has the capability to service the patient.  The notice to the patient should reflect the change in specialities.

Service
to the Departing Physician‘s Patient.

In
general, physicians are not liable for the care given by the previous provider,
unless they were part of the same medical group or otherwise participated in
the prior care. To promote continuity of care and avoid allegations of failure
to diagnose or failure to follow-up, however, the new provider assuming care of
the patient should obtain the patient’s medical record from previous providers
and review it. Once the review is complete, make an entry in the medical
record, noting pertinent history and current healthcare plan and needs.  At the time
of the first visit, carefully evaluate and document the  patient’s current
condition at the time of the first visit. Take special care to document the then-current condition of the patient and changes to the patient’s care plan.

A top cause of malpractice lawsuits is comments by physicians about their predecessors and their care or lack thereof.  Lawsuits will often include both the new and the old physician.  Physicians should be counseled to focus on the current condition of the client and appropriate treatment options.When discussing prior care, all physicians should use maximum caution.   Physicians and nursing staff should restrict their comments to the known medical facts, and refrain from speculation or
blame. If asked by the patient to render an opinion about the prior physician’s
decision-making process or care, inform the patient that you were not present
during that aspect of the care and are therefore not able to comment upon it.
Refer the patient back to the prior physician.

By: Matthew L. Kinley, Esq.

This is the first 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.

Physicians who retire or leave a medical practice are
duty-bound to notify patients of the change.
Even if the physician is employed by a group or other corporate model,
the physician and the entity should work together to notify patients that the
physician is changing practices and how the patient will obtain continued
care.   The patient must have the right
to change physicians, even follow the departing physician, if the departing
physician is still providing care.

Consider this scenario:  A doctor leaves a practice, fully expecting the practice to follow-up on her patients.  A chronically ill patient is unable to get an appointment with “her doctor,” and fails to come in for a regular visit.  The patient dies fromt the chronic disease, a death that arguably wouldn’t have occurred if she had visited her phsyician’s office.  The claim agasint the physician:  Abondonement of Patient.  The scope of this article is preventing such claims.

The California Medical Board recommends that “due
care be exercised when closing or departing” a medical practice to ensure
against “patient abandonment.”
This includes notification of the move.
As stated by the Medical Board:

“It is the patient’s decision from whom to receive
medical care. Therefore, it is the responsibility of all physicians and other
parties who may be involved to ensure that:

• Patients are notified of changes in the medical practice.
  This is best done by letter to patients by the physician explaining the change,
  including the final date of practice. (The California Medical Association (CMA)
  recommends, if possible, that letters be sent by certified mail, return receipt
  requested, and that a copy of the letter with the return receipt be kept. To
  inform inactive patients or those who have moved away, the CMA also recommends
  placing an advertisement in a local newspaper.)

• Patients be advised as to where
  their medical records will be stored including how they may access them.

• To
  facilitate the transfer of medical records to the new treating physician, an
  authorization form should be included in the letter.

• That patients secure another health care provider. If the
  practice is being taken over by another physician or another can be
  recommended, the patients can be referred to that physician.”

Retiring or Leaving Physicians. 

 When physicians retire or leave a practice, patients have
the right to decide who will provide them care.
They may stay with the current practice, continue their care with the
departing physician, or go to some other physician all together.

 Physician’s Agreement.

 The original practice agreement should address the
process to be used when a physician leaves the practice.  Such agreement should not interfere with the
patient’s right to choose their physician.
All parties should cooperate to send appropriate notice to patients.

Avoid Patient Abandonment.

 Before the departing physician terminates any
physician-patient relationship, that patient must be given sufficient advance
notice to enable him or her to secure the services of another physician. Failure
to provide sufficient notice may leave the departing physician and/or the
practice vulnerable to charges of patient abandonment, which is when a
physician fails to provide for necessary medical care to a current patient
without adequate justification. In general, once a physician-patient
relationship is established, the physician and the practice have an ongoing
responsibility to the patient until it is terminated.

Patient Notification.

 The exact nature of the notification depends on the
patient.  Patients with more severe
conditions require more immediate notification, and consideration should be
given to sending letters by certified mail, with return receipt requested. Such
patients are those who are more likely to experience adverse outcomes and allege
abandonment if their physician is unavailable for ongoing care. You should use
your professional judgment when deciding who falls within this category.
Examples would include post operative patients and those currently being
followed for serious or chronic conditions.
The parties should keep a copy of the notification letter and
certification material in the patient’s record. 

Active patients who aren’t high risk should be sent a letter by regular
post. Examples of active patients include those seen within the last 12 to 18
months. Keep a copy of the notification letter in the patient’s record.  Notify other patients who won’t be receiving
a letter by placing a notice in the local newspaper with the largest circulation,
putting a sign up in the lobby and preparing a patient handout.

The practice should also provide a script for
receptionists on what to say. This should include information on how to contact
the departing physician.

What should the patient notification say?

 If the departing physician will be available for ongoing
care, explain to patients that the physician is leaving the practice but is
available in the area. Tell patients that they have the choice of staying with
the practice or continuing to see the same physician in his or her new
location. Instruct patients who choose to follow the physician that, upon their
written authorization, a copy of their medical record will be forwarded to the
physician at his or her new location.

To expedite the transfer of records, you should consider
including an authorization form with the letter of notification. If your
practice is going to charge the patient for the photocopying costs, you should
inform the patient what the fee will be. Any material that is related to
patient care should be considered part of the medical record and should be
provided to the new physician. Both the practice and the new physician should
keep a copy of the medical records.

The best practice for both the group and the doctor is to work together to send notices to the patients in order to prevent claims in the future for patient abandonment.

By:  Matthew L. Kinley, Esq.

California physicians need to understand the ramifications
of prescribing medication to patients who may not need them.  This is true
even if the physician is openly and publicly conducting medical examinations of
the patient, and thereby giving the impression that the physician has nothing
to hide and is prescribing the medication to patients with legitimate
needs. 

A Southern California physician, named Alvin Ming-Czech Yee,
recently agreed to plead guilty to charges of illegally prescribing drugs to
patients with whom he frequently conducted nightly meetings in Starbucks
stores.  In fact, Dr. Yee met with almost a dozen people almost every
evening between 7 and 11 pm in Starbucks stores throughout Orange County. 
During the meetings, Dr. Yee would perform short examinations, even checking
the pulse and blood pressure of patients.  One patient—an undercover DEA
agent—quoted Dr. Yee as saying: "Bet you never had your blood pressure
taken in a Starbucks before." 

Federal officials began to suspect wrongdoing when one of
Dr. Yee's patients, a 21-year-old woman, died of a drug overdose after he
prescribed drugs for her.  Further investigation revealed other suspicious
facts: approximately one-third of Dr. Yee's patients were 25 or younger; Dr.
Yee was charging patients $600 per meeting; Dr. Yee was prescribing highly
abused drugs such as OxyContin, Vicodin, Xanax, and Adderall; Dr. Yee's name
was associated with several other overdose deaths under investigation; and investigators
seized large quantities of commonly abused drugs from drug dealers in Seattle,
Phoenix, and Detroit whose prescriptions were linked to Dr. Yee. 

These facts, coupled with the unusual setting of his nightly
visits, led federal prosecutors to conclude that Dr. Yee was illegally selling
prescriptions to patients with no legitimate need for them.  The
government's medical expert, who reviewed Dr. Yee's practice of performing
cursory examinations in Starbucks stores, called it, "a front for drug dealing." 
Dr. Yee will likely spend the next 8 to 10 years in prison for his
actions.  Given the strict consequences, physicians need to be sure they
are prescribing medication to patient's who really need them and avoid
scenarios that might be perceived as “a front for drug dealing.”

By Pamela Tahim

The Centers for Medicare and Medicaid Services has posted remarkably readable and useful information about the transition from ICD-9 to ICD-10 on their website.  Click here to see. 

The PPACA requires employers to provide a notice to their employees about
the applicable state or federal health insurance exchange and explain
how that exchange will work, and also explain various cost sharing and
tax consequences of participating in the exchange. The statute requires
the notice to be provided to employees by March 1, 2013.

However, on January 24, 2013, Federal Regulations postponed the date that employers must
provide the exchange notice. The deadline is now tentatively pushed out
to late summer or fall of 2013, although the agencies did not provide a
firm date. The government also announced that it is considering
providing a model exchange notice that employers could use to satisfy
the requirements.

California has moved full force ahead to create its exchange, called Covered California.  The goal of the exchange is to enroll nearly 2 million new people in Medi-Cal, and helping an additional 2 million Californians to purchase health coverage with federal subsidies for families earning about $92,000 or less annually. Covered California is an internet based service that will also provide coverage to certain employers through the SHOP (Small Business Health Options Program).

Just today, Covered California issued it’s initial website with costs for plans of insurance.

Employers should contact your attorney, health insurance provider and/or broker to make sure your company is in compliance with the law.

Posted by Matthew L. Kinley, Esq.