Protecting Vulnerable Adults While Protecting Their Physicians – A Proposed Statutory Amendment

The Arizona Supreme Court’s recent decision in Delgado v. Manor Care of Tucson AZ, LLC, subjects health care providers to liability for ordinary negligence under the Adult Protective Services Act.  This decision therefore creates a potential new strategy for plaintiffs’ attorneys and subjects providers to more severe consequences than previously available in malpractice suits.  A simple statutory amendment is available to limit this source of liability without impacting plaintiffs’ ability to pursue legitimate malpractice claims. Arizona’s Adult Protective Services Act (A.R.S. §§ 46-451 – 503) was enacted to protect incapacitated adults from caregivers who endanger their lives or health through abuse, neglect, or exploitation. Claims arising out of health care providers’ ordinary negligence, on the other hand, are covered by the Medical Malpractice Act (A.R.S. §§ 12-561 – 573).  Although legislative history is sparse, there is evidence that the legislature never intended APSA to encompass medical malpractice actions.  This position is supported by the legal meanings of the terms “neglect,” as used in the APSA, and “negligence,” which is required for malpractice liability.  Although they share a common root word, the legal definitions of “neglect” and “negligence” are not the … Continue reading

Posted in Uncategorized

Share this Article:

Making Informed Decisions About Informed Consent

Patients have come to expect that they will be actively involved in making decisions about their health care. Informed consent aids patient involvement and provides a process whereby a health care provider discusses a treatment or procedure with a patient, including the nature of the proposed procedure, reasonable alternatives, and the relevant risks and benefits of that procedure. The provider uses this process to assess the patient’s understanding of the treatment plan, while the patient uses this process to become actively involved in the treatment process.  The process, in addition, may help protect providers from claims that patients did not understand the pertinent risks in the event of adverse outcomes resulting from the procedure. Recent court decisions in Pennsylvania and Missouri are worth consideration for providers, and serve as a reminder that providers may wish to review their informed consent practices if there have been recent state law changes regarding informed consent. A recent Pennsylvania Supreme Court decision determined that physicians cannot delegate the informed consent process to another provider in their practice without still retaining liability. The court found that the physician providing the treatment or procedure has the … Continue reading

Posted in Uncategorized

Share this Article:

Nevada’s Direct Primary Care Crisis

In 2012, Turntable Health opened its doors in downtown Las Vegas with one goal—providing preventive healthcare at a reasonable cost. As a direct primary care (“DPC”) clinic, Turntable Health offered unlimited access to primary care physicians for a monthly fee. Only five years after opening, Turntable permanently closed in January 2017, citing an inability to reconcile its practice with the economic demands of the healthcare industry.  Following Turntable’s lead, an industry forerunner based out of Seattle, Qliance Medical Management, closed in May.  These closures leave medical professionals and patients in Nevada questioning DPC’s viability and, in consequence, its future. While large-scale DPC providers like Turntable and Qliance are a relatively new concept, small DPC practices have existed for decades.  Under the DPC practice model, physicians offer contracts that allow patients to pay low monthly fees for unlimited access to primary care services, discounted blood work, and prescriptions.  However, DPC memberships do not cover all healthcare needs, including costly hospitalizations, specialist visits, and surgery. For that reason, providers suggest—and federal law requires—that patients hold, at a minimum, high-deductible health plans.  Rather than a standalone healthcare solution, a DPC membership is one … Continue reading

Posted in direct primary care, Health Care, Uncategorized

Share this Article:

Arizona Enacts “Surprise Out-Of-Network” Balance Billing Law

by Paul Giancola Arizona has joined the national trend of trying to solve the “problem” of “surprise medical out-of-network bills.” The prevalence of this concern was reported in the New England Journal of Medicine which stated that 22% of patients who visited an emergency department received a surprise bill from an out-of-network provider.  A “surprise bill” arises when an enrollee of a health plan receives care, and a medical bill, from a health care provider who does not belong to their health insurer’s provider network.  These bills are typically for medical services that are rendered at an in-network health care facility or at the request of an in-network physician.  The enrollee is then billed by the out-of-network provider for the remaining amount of the charge that is the difference or the “balance” of the charge less the allowable insurance amount paid under the enrollee’s health plan.  In contrast, in-network providers are generally prohibited from balance billing a patient under their plan contracts. The Arizona Senate Bill 1441, signed on April 24, 2017 by Governor Ducey, amends Title 20 of the Insurance Law, Section 20-3102 by adding Article 2 “out-of-network claim … Continue reading

Posted in Health Care, surprise bill

Share this Article:

(Un)Protected Health Information Held for Ransom

Recent experiences of major health care companies offer a reminder of the importance of data security and following a well-written policy for compliance with the HIPAA Privacy Rule. Lithuanian police reported on Tuesday that a hacking group had illegally obtained and published over 25,000 private photos and personal data from a chain of European plastic surgery clinics. According to the report, hackers made the theft known and demanded a $385,000.00 ransom for the data.  When the demands for payment were refused, the information was published on the Internet.  The investigation is in its early stages and it is not clear how many individual patients are affected. Although this breach involves a European provider, not covered by HIPAA, it highlights the value and vulnerability of healthcare data. In fact, there have been reports of similar breaches involving potentially millions of American patients.  Data security experts have estimated that nearly 1 million new malware threats are released every day, with ransomware being the most common type. The HIPAA Privacy Rule (42 C.F.R. Part 164) requires covered entities to implement administrative, physical, and technical safeguards to guard against the breach of protected health … Continue reading

Posted in Health Care, HIPAA, Uncategorized

Share this Article:

ANOTHER BATTLE LOOMS OVER REPEAL OF OBAMACARE

After the withdrawal of the American Health Care Act in late March in the face of defeat, Republicans have continued to work on a healthcare bill that can pass Congressional muster. Earlier this week an amendment to the AHCA was negotiated between Tom MacArthur, moderate Republican and leader of the “Tuesday Group,” and House conservative Freedom Caucus Chairman Mark Meadows. The amendment would allow states to seek waivers from ACA provisions that guarantee “essential health benefits” and prohibit charging higher rates to less healthy consumers. Opponents argue this amendment weakens several key Obamacare insurance reforms that protect those with pre-existing conditions, including the benefits insurers must cover in their policies and the ban on allowing carriers to charge more based on a person’s health background.  The AHCA would rely on so-called high-risk pools to serve the sickest Americans, aiming to keep costs and premiums down in the larger pool that serves most consumers. While conservatives have now largely signed on to the AHCA, many moderates are still balking. It’s an effort to bridge the gap between hardline conservatives in the House Freedom Caucus and more moderate Republican members. Major health … Continue reading

Posted in Uncategorized

Share this Article:

2017 Nevada Legislative Session – Potential for Additional Anesthesiology Practice Opportunities in Nevada

On February 27, 2017, Senate Bill 210 (“S.B. 210”) was introduced into the Nevada Legislature, which paves the way for expanded anesthesiology practice and patient care opportunities in the State of Nevada.  Specifically, S.B. 210 provides for the licensure and regulation of anesthesiology assistants, a category of medical professionals who practice exclusively in the anesthesiology field.  Under the proposed legislation, anesthesiology assistants would be permitted to practice under the direct supervision of a licensed physician anesthesiologist as part of an anesthesia care team designed to increase treatment capacity while improving practice efficiency through the use of highly skilled, lower cost providers. The catalyst for S.B. 210 stems from ongoing financial constraints facing Nevada’s anesthesiology practitioners and increased demand for anesthesiology services, particularly among Medicaid enrollees.  During Nevada’s 2010 special legislative session, Medicaid payments to physician anesthesiologists and nurse anesthetists were reduced by 50%, which led to a shortage of anesthesiology services for Nevada’s Medicaid participants.  The state’s access to care dilemma was later exacerbated by the individual health insurance mandates under the Patient Protection and Affordable Care Act and Nevada’s expansion of Medicaid coverage in 2014, which increased Nevada’s Medicaid … Continue reading

Posted in Uncategorized

Share this Article:

HIPAA and the Cloud’s Shared Responsibility Models

Cloud-based service providers (CSPs), like Amazon Web Services and Microsoft Azure, offer online access to shared computing resources. As such, they have developed a “shared responsibility model” for how CSPs and companies that use their cloud services will share responsibilities when it comes to ensuring security in the cloud. A lot of companies believe that, if they host protected health information (PHI) with a CSP, it is the CSP that is ultimately responsible for ensuring HIPAA compliance. That is NOT the case. While the CSP will generally be responsible for ensuring that their cloud infrastructure is secure under the HIPAA rules, companies using the cloud services are responsible for ensuring the use and disclosure of their own PHI, as well as any of their platforms, applications, and operating systems that live in the cloud, comply with HIPAA. Business Associate Agreements CSPs that want to do business with a company that is subject to HIPAA (like a hospital or physician) will need to sign a Business Associate Agreement (BAA) with that company before any PHI is transmitted or uploaded. Under this BAA, the CSPs generally will agree to maintain appropriate safeguards … Continue reading

Posted in Cloud Based Services, Health Care, HIPAA

Share this Article:

Is Your Arbitration Agreement Enforceable?

Health care providers may favor arbitration due to the perception that it is a faster, less expensive alternative to litigation. State and federal policy favors arbitration for the same reasons.  Because of the strong public policy favoring arbitration, doubts as to whether a case is subject to arbitration are resolved in favor of arbitration.  (Arbitration may also provide a desired level of confidentiality by preventing allegations from becoming a matter of public record in court.)  Arbitration agreements, however, are subject to the same defenses to enforceability as any other contract. A recent decision of the Arizona Court of Appeals provides guidance for evaluation of the enforceability of arbitration agreements. Gullett v. Kindred Nursing Centers West, LLC arose out of the plaintiff’s claims that a rehabilitation center had abused and neglected his father, who lived there for the last month of his life.  After the complaint was filed, the defendant moved to compel arbitration pursuant to an agreement signed by the decedent upon admission.  The plaintiff opposed arbitration, arguing that the agreement was substantively and procedurally unconscionable.  After evaluating several aspects of the agreement, the Court held that the agreement was … Continue reading

Posted in Health Care

Share this Article:

Does Defensive Medicine Impact the Cost of Healthcare?

By Paul Giancola Healthcare in the United States costs at least two to three times as much as healthcare in other developed countries. One of the reasons usually given is defensive medicine – doctors who order unnecessary tests and procedures due to fear of being sued.  Some also argue that such treatments unnecessarily drive up the cost of care and expose patients to the risk of complications.  Surveys vary but a significant majority of physicians surveyed do report practicing some defensive medicine.  The reasons include: to avoid being named in a lawsuit, defensive medicine is the standard of care, patients demand that everything possible be done, fear of missing something, and peer pressure. By way of example, several recent studies showed that in stable patients with the same degree of coronary artery occlusion, stents yielded no benefit over noninvasive treatment, yet most cardiologists would recommend a stent. Common rationales were that they had heard of someone dying suddenly, they could better defend themselves in a lawsuit if the patient did get a stent and then died, and the stent would relieve patient anxiety. The draft of the original Affordable Care … Continue reading

Posted in Health Care, Uncategorized

Share this Article: