Direct Primary Care: Getting Calls from Patients While Avoiding Calls from Law Enforcement

by Allison Davis For providers interested in simplifying the provider-patient relationship, one option is direct primary care. Ironically, though, simplification can be complicated, particularly when the government is involved. One of the greatest hurdles to medical practice simplification is the role of Medicare on both the patient side and provider side. Any physician interested in the direct primary care (DPC) model should be very careful about how his/her practice interacts with the Medicare Program. The goal of this post is to clarify and stratify the different Medicare related risks a provider could encounter when establishing a DPC practice. The first natural question about DPC is: what is DPC and why is it appealing? The answer is that the current healthcare system is a behemoth, surpassing the three trillion dollar mark back in 2012.  In addition to its growth in size, the healthcare industry is growing in complexity. When a patient or insurance company pays for healthcare, that payment is being divided into more and more pieces every day. Some payments will cover the cost of the physician’s visit itself, but a larger percentage of the payment will go elsewhere in … Continue reading

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ACA Changes – What is Being Considered? A Look Inside The Leaked Republican Bill

By Terry Roman On February 24, a Republican draft reconciliation bill was leaked to Politico.  While it hasn’t been introduced or acknowledged by House Republicans it provides the most comprehensive look so far at how House Republicans plan to change the Affordable Care Act (ACA). First, what does it not do. The bill does not repeal the ACA, but it replaces substantial portions of it.  It does repeal particular sections of the ACA, such as its taxes, the individual mandate, Medicaid expansion and subsidies.  Most of the ACA’s insurance reforms remain in place, such as the requirements that health plans: cover preexisting conditions not impose lifetime or annual limits no health status underwriting cover adult children up to age 26 not discriminate on the basis of race, nationality, disability or sex cap annual and lifetime out-of-pocket expenditures Now, here are some of the key provisions in the draft legislation: Under the ACA, people get subsides to help pay insurance premiums based on their income. The House bill replaces subsidies with tax credits that vary based on age. A person under 30 would be eligible for a $2,000 tax credit while … Continue reading

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SAMHSA Issues Final Rule Modernizing Confidentiality Requirements for Patients Receiving Substance Use Disorder Treatment

Last month, the U.S. Department of Health and Human Services (“HHS”) Substance Abuse and Mental Health Services Administration (“SAMHSA”) released a Final Rule updating the Confidentiality of Alcohol and Drug Abuse Patient Records regulations at Title 42 of the Code of Federal Regulations Part 2 (“Part 2”). The Final Rule serves to modernize the regulations to facilitate information exchange and health integration while protecting the privacy of patients seeking treatment for substance use and the confidentiality of their medical records. The Part 2 regulations were promulgated in 1975 to protect the identities of individuals seeking substance use treatment from possible negative social consequences and stigma that could deter individuals from seeking treatment. They have not been substantively updated since 1987. The Final Rule was intended to go into effect February 17, 2017; however a Trump administration memorandum issued in mid-January establishing a “regulatory freeze” has delayed the effective date for at least sixty days from the date of the memorandum. In response to this directive, SAMHSA has postponed the Final Rule’s effective date to March 21, 2017. The updates to the Part 2 Regulations seek to enable improvements in healthcare … Continue reading

Posted in Health Care | Tagged

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Navigating the California Corporate Practice of Medicine “CPM” Prohibition

By Paul Giancola CPM is a variation of the statutory prohibition against unlicensed practice of medicine. CPM states enforce the prohibition against corporations practicing medicine by requiring a separation between medical/clinical decisions made by physicians and business decisions made by corporations.  This generally means that physicians cannot be employed by non-medical professional corporations or LLCs absent an exception . In this regard, The California Medical Board (CMB) states that the following clinical decisions should only be made by a California-licensed physician and would constitute the unlicensed practice of medicine if performed by an unlicensed person: Determining what diagnostic tests are appropriate for a particular condition. Determining the need for referrals to, or consultation with, another physician/specialist. Determining how many patients a physician must see in a given period of time or how many hours a physician must work. Responsibility for the ultimate overall care of the patient, including treatment options available to the patient. In addition, the following “business” or “management” decisions and activities, resulting in control over the physician’s practice of medicine, should be made by a licensed California physician and not by an unlicensed person or entity: Ownership … Continue reading

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Recent Arizona appellate decisions of note to providers

With change, breaking news, and uncertainty dominating the legal concerns of health care providers on a federal level, it remains important to review and refresh on state-level concerns and legal rules. This is especially true for those currently or frequently involved in health care litigation. In particular, Arizona appellate courts issued three decisions early this year of which health care providers may wish to take note. First, in Stafford v. Burns, 756 Ariz. Adv. Rep. 34 (App Div. 1 January 17, 2017), the Arizona Court of Appeals held that the heightened standard of proof for claims against a health care professional set forth in A.R.S. s 12-572(A) (“clear and convincing evidence” instead of a preponderance of the evidence) applies broadly “whenever the acts or omissions the plaintiff contends were deficient were provided in the course of evaluating and treating a patient in a hospital emergency department.” The heightened standard of proof of proof under the statute applies when services are provided in compliance with the federal Emergency Medical Treatment and Active Labor Act. The appellant had argued for a narrower interpretation that would have ratcheted down the burden of proof … Continue reading

Posted in court of appeals, Health Care

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You’re Fired: What Impact Will Sally Yates’ Departure Have on the DOJ’s Fraud Enforcement?

As most of the world now knows, President Trump fired acting Attorney General Sally Yates last week after she declined to defend the President’s travel ban. Dana Boente has replaced Ms. Yates, but he may not be long for the job.  In fact, it is possible that by the time you are reading this, Alabama Republican Jeff Sessions will have been confirmed as Attorney General of the United States.  The Senate Judiciary Committee advanced Mr. Sessions to the full Senate along party lines and a confirmation is expected any day. While the rest of the world watches the political drama unfold and anticipates the immediate impact on existing travel ban litigation, those who do business with the Federal Government cannot help wondering about the enduring legacy of the infamous “Yates Memo,” named for its now-former acting Attorney General author. Although its application is often nuanced, the purpose and crux of the Yates Memo is that absent special permission based on extraordinary circumstances, the Department of Justice must pursue individuals in corporate fraud and abuse cases.  Until a new policy is announced, the Yates Memo’s mandate remains in effect. Mr. Sessions … Continue reading

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Want to run the government like a business? Bring back the ACA.

Just days after his inauguration, President Donald Trump signed an executive order to delay further implementation of the Patient Protection and Affordable Care Act (ACA). This is just one of many steps the President and Congress plan to take in an effort to repeal the ACA. It sounds simple – just a few strokes of a pen and this behemoth of a law will disappear into history. But will it? Aside from the individual mandate and Medicaid expansion, two of the most famous and controversial pieces of the ACA, there are countless others. The ACA itself required the creation of nearly fifty new entities, with each of those entities authorized to implement other new entities or programs. For example, the ACA authorized the creation of the Center for Medicare and Medicaid Innovation (CMMI), which has created over eighty innovation models with the goal of increasing the quality and efficiency of patient care while decreasing the cost. This new relationship between cost and quality in health care is termed “value based purchasing,” and it is an idea that has taken root beyond the reaches of the ACA. Over 65% of the … Continue reading

Posted in Affordable Care Act, Private Payors

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Yahoo! Data Breach Results in Another Lawsuit Against Corporate Directors and Officers

A number of claims have been made against companies’ directors and officers alleging a breach of fiduciary duty for failing to adequately oversee data security programs.  To date, the defendants’ oversight of the programs and their documentation of that oversight have been sufficient enough so as to allow courts to rule in directors’ and officers’ favor. The past several years have seen a number of high-profile data breaches involving public companies, including Wyndham Worldwide, Home Depot, Target and, most recently, Yahoo!  Each of the earlier cases yielded lawsuits against the companies’ boards of directors and/or officers, and, last week, plaintiffs filed a class action lawsuit against Yahoo! and its CEO, CFO and board member alleging federal securities law violations relating to Yahoo!’s disclosure of the data breach.     The plaintiffs’ claims against directors and officers in previous cases have generally revolved around breaches of fiduciary duty, and, more specifically, the respective boards’ oversight of data security.  To date, the cases have been dismissed by motions at various stages.  In each of those cases, the courts have examined the nature and extent of boards’ oversight of data security programs.  A brief summary of the cases … Continue reading

Posted in Business Law, Governance, Securities | Tagged

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The MACRA Final Rule: In Search of the “Goldilocks” Model

The Medicare Access and CHIP Reauthorization Act (“MACRA”) Final Rule published late last year implements CMS’ new payment approach for physicians and other Medicare Part B eligible clinicians under the Merit-Based Incentive Payment System (“MIPS”) and looks to steer clinicians towards more “at risk” advanced alternative payment models (“Advanced APMs”).  In light of some Congressional concerns on MIPS’ potential negative impact on small physician groups, the Final Rule softened some of the initial timeframes for MIPS implementation.  In addition, the Final Rule proposed a new “ACO Track 1+” model that would qualify as Advanced APM, which some providers hope will turn out to be that ACO in the “goldilocks zone” – not too much, not too little, but just the right balance of shared savings and risk.  Last week, CMS issued some new guidance regarding the ACO Track 1+ model and promised to provide additional details in the coming months. CMS helps (or hopes) to ease into MIPS As we noted in our prior blog post on the MACRA Proposed Rule, MIPS represents the consolidation of three CMS reporting programs: Physician Quality Reporting System, the Value-Based Modifier Program, and Meaningful … Continue reading

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If Obamacare’s Days are Numbered, What’s Next? Trumpcare.

The Affordable Care Act has withstood 62 repeal attempts by the House of Representatives and several challenges brought to the U.S. Supreme Court.  Now, with Donald Trump as President and a new Republican-led House and Senate, full or partial repeal of the ACA seem likely to occur sometime in 2017, perhaps with a delayed effective date.  What impact would an ACA repeal have on healthcare industry?  Is a full repeal possible?  What are the potential varieties and timing of any replacement “Trumpcare” programs?  Below are some of our initial thoughts on some of these questions. Provider uncertainty ahead. Several stock analysts have expressed concern that successful repeal of the ACA would have a negative financial impact on health care providers and that any replacement would not be as lucrative for providers.  The first immediate impact after the election of Trump was a sharp decline in stock prices for some healthcare services companies, although some medical device and pharmaceutical companies saw a rise in stock prices, presumably on theory that less regulation would be better for their businesses.  MACRA was the result of bi-partisan consensus to move into alternative payment models … Continue reading

Posted in Affordable Care Act | Tagged , ,

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