Transcript The Impact of Health Care Reform on Physician Liability Exposure

The Impact of Health
Care Reform on
Physician Liability
Exposure
Ericka L. Adler, Esq.
Kamensky Rubinstein Hochman & Delott, LLP
7250 N. Cicero Avenue, Suite 200
Lincolnwood, Illinois 60712
(847) 982-1776
[email protected]
April 24, 2014
Veronica Brattstrom
Senior Risk Management Consultant
PSIC
Profsolutions.com
The Goal of the Patient Protection
and Affordable Care Act (ACA) on
Health Care Delivery
 Contribute to a reduction in the rate of medical inflation
 Intended to improve patient care while containing costs
 Coordination of health care services
 Apply a team approach to disciplinary care
 Conversion of paper record to electronic health records
 Development of ACO style health care delivery models
2
Impact of ACA on Medical
Professional Liability Exposure
 Potential conflicts between delivering quality care and reducing
costs
 Liability due to increased use of nurse practitioners
 Heightened patient expectations
 Potential new standards of care
 New types of information that can be used against a health care
provider in court
 Conflict between cost containment and providing highest
standards of medical care
 Privacy and data security issues
3
What are some of the negative
results of the ACA?
 Failure to comply could result in severe sanctions
 Increased funding for health care fraud and abuse
enforcement
 Expansion of civil monetary penalties
 Lower triggers for application of False Claims Act
 No need to prove actual knowledge of Anti-Kickback
Statute nor specific intent
4
What are some of the negative
results of the ACA?
 CMS can suspend provider pending investigation of
“credible allegation of fraud”
 Increased scrutiny of Medicare enrollment
 Overpayment must be refunded within 60 days or face
False Claims Act Liability
5
How can Physicians deal with the
liability implications of the ACA?
 COMPLIANCE
 Physicians and practices must dedicate staff time and
focus on issues
 Proper credentialing, snapshot audits, risk selfassessments
 PRACTICES MUST BE PROSPECTIVELY COMPLIANT
BEFORE AN INVESTIGATION OR ACTION
COMMENCES
 Practices must be assured that there’s no question billing
is compliant
6
Issue: Refusal of Care
 Patient with infected toe told to go to hospital
for admission and IV antibiotic treatment;
 Patient told scope needed for potential
stomach cancer based on testing;
 What if patient does not follow through?
 Common issues: high deductible, fear, religion,
do not understand importance/believe doctor
7
Refusal of Treatment
 Liability Issue:
 Patients will claim they were not informed about
how potentially detrimental it would be to refuse
treatment/not follow up with test
 Patients do not fully understand risk
 Patients did not appreciate time frame for having
test or treatment
8
Preventive Measures: Refusal
of Treatments
 Potential risks of declining recommended course of
treatment should routinely be discussed with patients,
along with the risks and potential complications of the
procedure/treatment itself
 Patient should be given opportunity to raise any questions
or concerns about proceeding or not proceeding
 If patient decides to refuse the treatment, physician should
not assume the patient understands consequences of
refusal. Physician should verbally confirm the patient
understands and has no questions
9
Preventive Measures:
Refusal of treatment
1.
Try to understand patient reasons and address
2.
If cost is issue: provide other sources of procedure or
testing and document it
3.
Complete, detailed documentation is best. At minimum,
notation “Full RBAQ,” indicating a complete discussion
of Risks, Benefits, and Alternatives with the patient and
the answering of all Questions may be sufficient for a
defense.
4.
Follow–up with patient to see if test done.
5.
Free Services?
10
Follow Up Guidelines

Log recommendation into an electronic or paper tracking or reminder
system.

Schedule follow-up appointment and discuss with the patient the
importance of keeping the follow-up appointment.

If a patient does not appear for a scheduled appointment, the fact
should be noted in the chart. Attempts should be made to contact the
patient and reschedule the appointment, and those attempts should be
documented.

If referring for test / procedure / visit with another healthcare
professional, the referral should be tracked in a tracking or reminder
system. It should also be noted in the patient’s records whether the
patient visited with the healthcare provider to whom the referral was
made. If the consulting doctor provided a report, its receipt should be
noted, and a system should be in place that ensures the report has
been reviewed by a physician prior to being filed in the patient’s chart.
All these components of a consultation or referral should be addressed
by the practice’s tracking system.
11
Follow Up Guidelines
 If a healthcare provider has a patient referred to him or her by another
healthcare provider, the physician/consultant has an obligation to notify
the referring healthcare provider once the patient has been seen and
send a consultation report that includes the consultant’s findings and
recommendations.
 When contacting patients via a practice reminder or tracking system,
HIPAA regulations must be followed.
 How many follow up calls or reminders needed?
12
PSIC
Risk Management Tips
Be Crystal Clear

Here’s what we are going to do for you

Use discharge handouts
 Consider
having patients sign them
 Consider
inviting family into room (if not
already there)
13
PSIC
What to Document
 Document the reasons why you are ordering or
NOT ordering a test/referral
 DOCUMENT why it’s important to follow the
recommendations
 DOCUMENT the discussion
 Document the patient’s understanding of the
consequences of NOT following your
recommendations
14
Sample Scenario:
Co-Pay/Deductible
 Patient cannot/will not pay co-pay or deductible
 Determine reason why (too much money?)
 Offer payment plan where possible
 If simply unwilling (i.e. ”forgot” wallet), offer to
reschedule for another date or time
 Uncooperative patients can be discharged
using proper approach
 Treat for emergencies always
 No abandonment issues/referrals to other
resources
15
Sample Scenario:
Not Filling Prescriptions
 Non-adherence: sicker, more complications, higher mortality rates =
$170 billion annually in U.S.
 ACA has caused medications previously covered to no longer be
covered or cost more. Generics not always available.
 20% of first-time patient prescription not filled
 Less likely to fill prescription by non-primary care specialists
 Affordability/Ease of filling RX are key
 Reduce liability:
 Electronic prescribing
 Follow-up with patient
 Lower cost alternatives/generics
 Ask before they leave office if they understand
 Check community research (cancer)
16
Liability for Participation in
ACOs

New healthcare delivery models may require participants to function in
unfamiliar roles or adapt to new processes. In the long run, coordinated care
is likely to benefit patients, but shorter term realigning of resources and
implementing new processes and procedures may increase the likelihood of
a medical error.

ACO-type models may increase professional liability risk by raising patient
expectations. An ACO that falls short in delivering fully coordinated care may
be more likely to become a target for a lawsuit.

ACOs may result in standards of care that exceed prevailing standards. This
could occur broadly, with regional or national standards of care defined by
practice specialty, or it could be specific to an organization.

For example, CMS requires ACOs to define processes to promote evidencebased medicine, which could result in creating, and documenting, a
heightened standard of care for that organization.

ACO-type models may increase professional liability risk by raising patient
expectations. An ACO that falls short in delivering fully coordinated care may
be more likely to become a target for a lawsuit.
17
Liability for Participation in
ACOs

Coordinated health care may result in additional discoverable
documentation that can be used against healthcare providers in a
malpractice case. Additionally, since an ACO must issue public reports
on certain aspects of its performance and operations, it may
inadvertently provide plaintiff attorneys with a roadmap to problem
areas of the organization.

Some observers have expressed concern the payment model runs the
risk of providing incentives for physicians to not refer patients for
needed treatment.

Some new healthcare delivery models expand the responsibilities of
nurse practitioners and other types of providers, potentially increasing
credentialing exposures and malpractice risk.

Physicians typically prefer vigorous defenses of malpractice claims, but
if decisions to settle claims are made by ACO management, the
emphasis could shift to settling claims early in order to manage costs.
Databank issues must be considered.
18
Liability from Use of Extenders
 Increased use of extenders such as APNs and PAs.
 Check license and experience
 Make sure paper documents are filed with state for






employment and prescribing
Meet supervision requirements
Don’t supervise too many extenders (PA = 2)
Bill properly: Incident-to versus using separate numbers
Training, oversight and review are key to minimize liability
Proper record-keeping and education
Various liability issues
19
Liability from Increased
Collection Efforts
Guidelines for Handling Patient Debt:
Medical Debt Responsibility Act
Allow 120 days to resolve bill before taking
“extraordinary collection action” such as
reporting debt to credit bureau, filing lawsuit,
liens, etc.
Remove paid medical debt from credit reports
within 45 days
20
Liability from Increased
Collection Efforts

When transferring debt to collection agency/reporting to
credit bureau, still need to communication with agents:








Monthly reconciliation of accounts
Tracking of complaints
Regular audits
Make sure patients understand medical services they
require and fees for those services (10 most common
services)
Make it convenient to pay at the time of treatment and
encourage it
Send bills punctually and follow up consistently on unpaid
debt
Have established system to deal with insurance claims
Suing may invite a countersuit!
21
Fair Debt Collection Act
1.
Do not threaten to refer a bill to a collection agency or take any
other action unless there is a plan to do so.
2.
Do not threaten to take any action which you know is illegal or
impermissible.
3.
Do not call patients late at night or at work if you know they are
not permitted to take personal calls.
4.
Do not communicate to a third party, over the phone or otherwise,
that you are attempting to collect a debt from the patient.
5.
Do not send overdue notices on postcards.
6.
Do not send statements with “Past Due” marked on the outside of
the envelope.
22
PSIC
Risk Management Tips
 Be thoughtful
 Develop a protocol/policy for handling outstanding balances
 Inform patients of the “rules” of the practice using printed marketing
materials (patient information brochures, website, etc.)
 Consider using a financial payment plan contract
 Assign a point person
 Reduce complication by having the same person talk with the patient
 AVOID allegations of abandonment
 Terminate appropriately
 Document Well
 Communication is key
23
Liability as a Result of Changes in
Doctor-Patient Relationship

Doctors to be forced to do more paperwork and spend less time with
the patients

Reduction in reimbursement will compel doctors to see more patients in
less time

Time constraints will push patient doctor interactions away from a
patient participatory discussion to a more a paternalistic physiciandominated approach

Physicians will have less time to educate, counsel, answer questions
and offer explanations to patients and patients will be less likely to
understand their diseases and how best to treat them

Physician autonomy will be impacted by more extensive regulation and
medical decisions and treatment courses will become standardized by
regulators with little medical background and no knowledge or
compassion for individual situations
24
Liability as a Result of Changes in
Doctor-Patient Relationship
 Patients will encounter difficulty of obtaining the care
they’ve been accustomed to and want and may feel
helpless and upset and likely will blame doctors
 Physicians will not be able to practice medicine as they
have in the past and will be unable to order tests,
consults and medicine the patients need which will be
frustrating
 Consequences: patient dissatisfaction, misunderstanding,
lack of trust in doctor, lack of long-term relationship with
providers, poor continuity. MORE LAWSUITS.
25
The Standard of Care
Protection Act: Tort Reform
 A new Georgia law drafted from an AMA model legislation
prevents help performed metrics from being used as evidence
in liability cases
 Peer guidelines and quality criteria under federal law cannot be
used to establish a basis for negligence or standard of care for
the purposes of determining medical liability
 “Administrative behavior” would not be admissible in court and
would not be used in standard of care determination. This
could not be “malpractice” or “negligence”.
 Will prohibit health system reform provisions from being
construed to establish a standard or duty of care or by a
healthcare professional to a patient in any liability case.
26
The Standard of Care
Protection Act
 Would not allow lawsuits be brought against
healthcare providers based simply on whether
they followed national guidelines created by
health care law.
 Reinforces medical decisions must be made
between patients and the doctors and there is
no “one size fits all” practice of medicine.
27
The Standard of Care
Protection Act
 How would the law work?
 Example
In a gallbladder case, the issue should be whether
the physician met the standard of care.
Under the ACA: a plaintiff could introduce
evidence about the physician’s readmission rate,
complication rate or other issues that deal
primarily with reimbursement and payment
Under the law, the individual’s physician deciding
what is in the best interest of the patient would be
determining factor.
28
PSIC
Risk Management Tips
Office
Hire well
Treat staff well
Cost of hiring, training, etc.
Cross train
Time study/office flow
Patients
Under promise, over deliver
Increase office hours
29
PSIC
Risk Management Tips
 Get a good history
 Preventative Care
 Ask QUESTIONS
 Document
 Establish reasonable expectations
 Don’t skimp on TRAINING
 Invest in staff
30
PSIC
New “Business” Ideas
 Think out of the box!
 Group appointments
 Great for chronic disease management
 Physician speaks to the group on common issues
 Patients then go off for 5 minutes personal
appointments with PA/NP/MD
 Meet and Beat patient expectations
 Improve waiting room experience
 Coffee, TV, magazines, no clocks
31