On September 11, 2014, the Third Circuit Court of Appeals decided the case of King v. Governor of the State of New Jersey.
The King case deals with a New Jersey statute that prohibits licensed counselors from “sexual orientation change efforts” with clients under the age of 18. The plaintiff-appellants, who provide licensed Christian-based counseling to minor clients seeking to reduce or eliminate same-sex attractions, challenged the N.J. statute as improperly violating their First Amendment freedoms of speech and religion.
The court affirmed the lower court’s upholding of the statute but on the basis of a much more conservative/protective analysis of the First Amendment rights.
The 3rd Circuit’s holding is in line with recent holdings from the 4th, 9th, and 11th Circuits that establish special rules for the regulation of speech that occurs pursuant to the practice of a licensed profession. (The 11th Circuit case dealt with the Florida gun-gag law on doctors.)
Though, unlike the other Circuits, the 3rd Circuit in King held that the statute must be subjected to “intermediate scrutiny” (as opposed to a more deferential review or no review) in order to “adequately protect the First Amendment interests inherent in professional speech.”
The take away here for me is that the reach of state legislatures has gotten bigger. State legislatures are enacting laws that challenge/support the influence of religious groups (challenge, as in the King case) or political groups like the NRA (support, as in the Florida gun-gag case). The Constitution has been a shield upholding intrusive laws that support very specific political agendas (e.g., pro-gay, pro-gun). The politics of a state’s legislators, and the views of their supporters, will likely continue to trickle down to impact on what may be said to patients/clients by their counselors and by any other regulated professions. I suspect that legislators will explore new ways to intrude on matters of individual choice and conscience that should be outside their interest or concern.
The days speed by and so much happens, that it’s good to regroup over the weekend and, while enjoying a cup of coffee, see what you may have missed. In no particular order, here are some items to be aware of:
- AMA Calls for Design Overhaul of Electronic Health Records to Improve Usability — The AMA, with the help of the RAND Corporation, has figured out that physicians are struggling with their EHR systems.
- Despite Progress, Problems—New And Old—Pop Up In Florida’s Medicaid Managed Care Program — Problems challenge Florida’s new Medicaid Managed Care system. In other news about the struggles with Medicaid, Kaiser Health News reported on ways states game the Medicaid system.
- Healthcare costs in South Florida and the Nation are often Shrouded in Secrecy — The Miami Herald and WLRN-Miami Herald News have been exploring secrecy in healthcare pricing. Interestingly, some states, e.g., New Hampshire, have better healthcare pricing transparency.
- USF Medical School extends deal with Tampa General — USF med students and faculty continue their relationship with TGH. In related news, USF severed its relations with The Villages Health.
- OIG Issues Special Advisory Bulletin, Report on Manufacturer Copayment Coupons — Pharmaceutical manufacturers do not have adequate safeguards in place to prevent their copayment coupons from being used to fund copayments for drugs paid for by Medicare Part D.
- Florida Home Health Care Company and its Owners Agree to Resolve False Claims Act Allegations for $1.65 Million — A Plus Home Health Care, Inc. located in Ft. Lauderdale and its owners settle allegations against them that they hired spouses of referring physicians in a kickback scheme. In another healthcare fraud case, Dr. Farid Fata, a Detroit-area cancer specialist, pleaded guilty to putting some of his patients through unnecessary chemotherapy treatments and then billing insurers.
- CMS Says ACOs Have Saved Medicare Millions and Improved Care — In a press release, CMS issued quality and financial performance results showing that Medicare ACOs “have improved patient care and produced hundreds of millions of dollars in savings for the program.”
- Health care still big in midterms — Healthcare issues continue to burn up the political campaign airwaves. The Tampa Bay Times reported on some of the facts and fictions used in campaign rhetoric.
- 7.3 Million Who Picked Exchange Plans Paid Their Premiums — The New York Times, Bloomberg, and other news sources reported that 7.3 million people who had signed up for health insurance had paid their premiums and remained covered.
- More Doctors Optimistic About Future Of Medicine — More doctors are optimistic about their profession even if they remain skeptical of healthcare reform efforts.
Of course, the feeds on the right always provide a handy resource of what’s happening in health law.
On Tuesday, the AMA issued a press release “AMA Calls for Design Overhaul of Electronic Health Records to Improve Usability” about its landmark study with the Rand Corporation, “confirming that discontent with electronic health records … is taking a significant toll on physicians.” Steven J. Stack, president-elect of the AMA was quoted extensively in the release.
One has to wonder whether Steven “Rip Van Winkle” Stack has been sleeping for the past 5 years or was just off visiting relatives on a distant planet. Same for the Rand Corporation. One also has to wonder how much the study cost. One can sure, however, that if the government had done the study, it would have been a clear contender for a Golden Fleece Award.
Physicians in this country have been abandoned and left alone to deal with the thousands of software charlatans selling inadequate EHR products. Many physicians are on their second EHR system, and some are still looking for something that works.
EHRs and the data that they can produce are critical in dealing with questions of population health and focusing on prevention rather than procedures, all of which will promote more cost-effective health care.
Hopefully, now that the AMA in on task, something useful can be derived from the desolate software environment.
Physicians are under a lot of pressure to improve their bottom line. In office procedures as described in this blog, as well as investments in surgery centers and other business ventures, all bring levels of needed regulatory compliance and increased regulatory scrutiny. From the business side, there are many stories of corporate partners from Hell! Before getting involved in any of these “opportunities,” physicians should work closely with their legal and financial advisors. An ounce of legal prevention is worth a pound of very expensive legal cure.
By: Jeff Cohen
Vascular access centers are a common ancillary service offered by a variety of physicians, mostly nephrologists. They provide a unique setting for patients requiring interventional vascular services in connection with things like oncology, dialysis, nutritional delivery, wound healing, pain management and more. Unlike many surgical services, however, they are typically not provided via a surgery center, but rather as part of (and inside) the physician’s practices.
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