Archive
Americans will need doctors but physicians are leaving primary care
With the aging of America and healthcare reform, more Americans will need primary care doctors at precisely the same time doctors are leaving the specialty in droves.
Mobile Devices: Changing Healthcare Forever
Mobile devices aren’t only changing how doctors work–they’re shaping the overall healthcare landscape, too.
Oklahoma City Dentist Charged with Health Care Fraud
See on Scoop.it – Hot Topics in Healthcare Law and Regulation
ROBIN R. LOCKWOOD, 44, a dentist from Oklahoma City, has been charged with committing health care fraud. Lockwood is a dentist licensed to practice in the State of Oklahoma and was employed under contract by Ocean Dental at offices located in Oklahoma City. Ocean Dental’s dentists provided dental care to Medicaid-eligible children. Ocean Dental submitted claims to the OHCA for reimbursement of dentists’ services based on patient treatment notes created by the dentists. Ocean Dental paid Lockwood a percentage of the funds that OHCA reimbursed to Ocean Dental for services she personally rendered. Lockwood engaged in a scheme to defraud Medicaid by submitting claims for dental services that she did not provide.
See on www.justice.gov
Fee-for-service medicine on the way out? | HNF Stories | Health News Florida
See on Scoop.it – Changing Healthcare for the Better
Fee-for-service medical practice is dying, even if the Supreme Court strikes down the entire federal health law, an increasing number of health-business analysts say.
See on www.healthnewsflorida.org
Physician’s Own Use of Hydrocodone Warrants Medicare Exclusion
Health care fraud is not limited to financial misconduct. Improper drug use can lead to exclusion from Medicare.
In the unpublished opinion from last week reproduced below, the U.S. Court of Appeals (4th Cir.) affirmed a district court’s decision that barred a West Virginia doctor from practicing in Medicare programs for five years after the doctor diverted hydrocodone samples for his personal use., This case has limited precedential value but physicians and other healthcare providers should be aware of how their personal conduct can have serious repercussions.
(By the way, if this were a Florida physician, he would not be allowed to renew his license in Florida by virtue of being on the excluded entities list. New thing as of 7/1/12. The conviction, as well, could knock him out.)
Morgan v. Sebelius
U.S. Court of Appeals, Fourth Circuit
10-2270
June 14, 2012
(Unpublished)
May 17, 2012
BRETON LEE MORGAN, M.D., Plaintiff-Appellant, v. KATHLEEN SEBELIUS, Secretary of Department of Health and Human Services, Defendant-Appellee.
Case History and Disposition
Appeal from the United States District Court for the Southern District of West Virginia, at Huntington, Robert C. Chambers, District Judge.
Affirmed by unpublished per curiam opinion.
Opinion Text
PER CURIAM:
Breton Lee Morgan appeals a district court order dismissing his action challenging the decision of the Secretary of the United States Department of Health and Human Services (“the Secretary”) to exclude him for five years from participating in Medicare, Medicaid, and all other federally sponsored health care programs pursuant to the applicable terms of 42 U.S.C.A. § 1320a-7(a)(3) (West 2011). Finding no error, we affirm.
I.
Morgan is a physician licensed to practice medicine in West Virginia. In March 2007, he pled guilty to one count of violating 21 U.S.C. § 843(a)(3), which proscribes “knowingly or intentionally … acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” 21 U.S.C.A. § 843(a)(3) (West 1999). His plea was based upon several occasions in which Morgan obtained free hydrocodone samples from pharmaceutical representatives for his personal use by leading the representatives to believe that he would be giving the samples to his patients for medical purposes. As a result of the plea, Morgan was sentenced to 30 days’ imprisonment and three months of supervised release.
On May 30, 2008, the Inspector General (“I.G.”) of the Department of Health and Human Services (“HHS”) wrote Morgan, notifying him that he would be excluded for five years from participating in Medicare, Medicaid, and all other federal health-care programs pursuant to the applicable terms of 42 U.S.C.A. § 1320a-7(a)(3). This statute requires the Secretary to impose such an exclusion on “[a]ny individual or entity that has been convicted for an offense which occurred after August 21, 1996, under Federal or State law, in connection with the delivery of a health care item or service” if that offense consists of a “felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.” 42 U.S.C.A. § 1320-7(a)(3).
Morgan appealed the I.G.’s decision in a proceeding before an Administrative Law Judge (“ALJ”) in HHS’s Departmental Appeals Board (“DAB”) Civil Remedies Division. The ALJ found that the I.G. had a sufficient basis to exclude Morgan and that the five-year term of the exclusion was not unreasonable in light of applicable law.
Morgan then appealed the ALJ’s decision to the DAB Appellate Division on April 3, 2009. In his proceeding before the Appeals Board (the “Board”), Morgan argued, as is relevant here, that to warrant an exclusion under 42 U.S.C.A. § 1320a-7(a)(3), a conviction must be for an offense that relates to financial misconduct. Morgan maintained that his fraud conviction was not related to “financial misconduct” since he neither had a corrupt motive nor received any substantial pecuniary benefit in committing the crime to which he pled guilty. The Board rejected Morgan’s argument, finding that Morgan was excludable under § 1320a-7(a)(3) because his conviction constituted “fraud” within the plain meaning of the statute regardless of whether it was related to financial misconduct. The Board additionally concluded, in any event, that his crime was related to financial misconduct insofar as he “derived some unquantifiable measure of pecuniary value by illegally diverting the controlled substances.”
Morgan subsequently brought an action in federal district court, asserting that the Board erred in failing to recognize that § 1320a-7(a)(3) applies only to offenses relating to financial misconduct. Concluding that the statute unambiguously is not limited to offenses relating to financial misconduct, the district court dismissed Morgan’s action.
II.
Reiterating his argument that § 1320a-7(a)(3) is limited to offenses relating to financial misconduct, Morgan argues that the district court erred in dismissing his suit. We disagree.
“We review questions of statutory construction de novo.” Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003). Because the Secretary is charged with administering § 1320a-7(a)(3), the established rules of deference in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), guide our analysis. Under Chevron, if a statute is unambiguous regarding the question presented, the statute’s plain meaning controls. See Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). However, “[i]f … the statute is silent or ambiguous with respect to the specific issue before us, the question for this court becomes whether the [Secretary’s] interpretation ‘is based on a permissible construction of the statute.’” Id. (quoting Chevron, 467 U.S. at 843).
Under Chevron’s first step, we “employ[] traditional tools of statutory construction” in considering whether Congress addressed “the precise question at issue.” Chevron, 467 U.S. at 842, 843 n.9. In doing so, “we begin with the text and structure of the statute.” National Elec. Mfrs. Ass’n v. United States Dep’t of Energy, 654 F.3d 496, 504 (4th Cir. 2011).
Congress required the Secretary to exclude from participation in federal health-care programs any person who has been convicted of an offense “in connection with the delivery of a health care item or service” if that “offense consist[s] of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.” 42 U.S.C.A. § 1320-7(a)(3). It is undisputed that Morgan was convicted of a felony relating to fraud and connected to the delivery of health care. He nevertheless maintains that his conviction was not for “a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct” since his offense did not relate to financial misconduct. That is incorrect.
The applicable language makes clear that to warrant mandatory exclusion, an offense need only relate to at least one of five categories: (1) fraud, (2) theft, (3) embezzlement, (4) breach of fiduciary responsibility, or (5) other financial misconduct. The argument that the presence of the fifth category, “other financial misconduct,” somehow narrows the meaning of “fraud” from its ordinary usage is unpersuasive. See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir. 1996) (explaining that unless there is “explicit legislative intent to the contrary,” we must give words in a statute their “plain and ordinary meaning”). Morgan maintains that if the presence of the word “other” did not have this narrowing effect, “there would be no reason to have the word ‘other’ in the statute.” Appellant’s brief at 11. But that is simply not correct. That the fifth category is “other financial misconduct” reflects the fact that the other four categories can, themselves, relate to financial misconduct. In this way, the presence of “other” eliminates the possible confusion that could have resulted from a statute that applied to “embezzlement… or financial misconduct.”
In fact, it is Morgan’s interpretation that would render much of the language surplusage. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (explaining that a court should “avoid a reading which renders some words altogether redundant”). Had Congress intended that an offense must relate to financial misconduct for the mandatory exclusion to apply, then it could have omitted the terms “fraud,” “theft,” “embezzlement,” and “breach of fiduciary responsibility” and simply required the exclusion for offenses “relating to financial misconduct.”
Furthermore, Morgan’s interpretation would not serve the statute’s purposes. See, e.g., United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (explaining that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy” (internal quotation marks omitted)). Congress enacted the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), of which 42 U.S.C. § 1320-7(a)(3) is a part, “to combat waste, fraud, and abuse in health insurance and health care delivery.” Pub. L. No. 104-191, 110 Stat. 1936, 1936 (1996). In fact, the legislative history to § 1320-7(a)(3) as it was originally enacted indicates that it was specifically intended to protect federal programs from untrustworthy individuals and to “provide a clear and strong deterrent against the commission of criminal acts.” * S. Rep. 100-109, at 5 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 686. These purposes indicate that Congress was targeting fraud generally, not simply fraud relating to financial misconduct, and none of the purposes would be served by narrowing the scope of the statute as Morgan urges.
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* As originally enacted, the statute made exclusion from the federal programs only optional as opposed to mandatory.
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Finally, it is worth noting that the Senate Report that accompanied the statute as originally enacted described the provision as applying to “a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility or financial abuse.” S. Rep. No. 100-109, at 6 (1987), reprinted in 1987 U.S.C.C.A.N. 682, 687; see National Elec. Mfrs. Ass’n, 654 F.3d at 504-05 (“[W]e have described legislative history as one of the traditional tools of interpretation to be consulted at Chevron’s step one.”). Considering that the word “other” did not even appear in the description, there was no suggestion that Congress intended that “fraud” would have anything other than its ordinary meaning.
For all of these reasons, we hold that regardless of whether the district court correctly concluded that the statute unambiguously does not require that any fraud relate to financial misconduct in order to warrant the mandatory five-year exclusion, the Secretary’s construction was, at the very least, a permissible one to which we must defer.
III.
Finding no error, we affirm the district court’s dismissal of Morgan’s case.
AFFIRMED.
Use of patient centered medical home features not related to patients’ experience of care
See on Scoop.it – Changing Healthcare for the Better
Providing patient care using key features of a Patient-Centered Medical Home (PCMH), a model of health care delivery promoted by major physician groups, may not influence what patients think about the care they receive, reports a new study in Health Services Research.
See on medicalxpress.com
Spine on the Hill, Part 2
See on Scoop.it – Hot Topics in Healthcare
Physician Groups Offer Recommendations to House Committee on SGR.
See on spineline.wordpress.com
Spine on the Hill
See on Scoop.it – Hot Topics in Healthcare
House Majority Leader Outlines Plan for ACA Related Provisions.
See on spineline.wordpress.com
Physician‐Health System Integration Models
Health care reform, in one form or another, is here to stay. The pressures on physicians and health systems to work together are strong, and will remain so regardless of what SCOTUS does with the Affordable Care Act.
Three basic integration models for physicians and health systems:
- Physicians can become employed by health systems (including possibility of selling their practice)
- Physicians and health systems can enter into professional service and co‐management agreements
- Physicians and health systems can enter into joint ventures
Employment by Health Systems
- Physicians seek security – to control costs, to adopt technological advances, to attract and retain qualified employees, and to maximize commercial managed care reimbursement
- Health systems seek patients and leverage – to reduce competition with physician ventures, to prepare for Medicare payment reforms, bundled payments, and ACOs, and to better address preventable hospital readmissions
- Both seek to improve access to care (including having quality primary care physicians and specialists available), to increase quality, to reduce costs, and to remain competitive
Professional Service and Co‐Management Agreements
Professional service and co‐management agreements are an alternative to physicians being employed by health systems.
These arrangements promote the alignment of the business interests of a health system with physicians, provide new revenue opportunities for both, provide the health system with specialist physicians while reducing its employee costs, and allow the physicians to retain their practice independence.
- In a Professional Service Agreement, a health system owns and operates a clinic and contracts with an independent physician group to provide specified clinical services. The health system pays the physicians agreed upon compensation and bills and collects for their services.
- In a Co-Management Agreement, a health system and a group of physicians who are members of the medical staff form a management company which is jointly owned which manages one or more service lines offered by the health system. The management company is paid for its management services (with incentives for patient satisfaction, reducing readmissions, etc.).
Health System‐Physician Joint Ventures
Joint venture activities typically include surgery centers and diagnostic imaging centers (may also include MSOs, ACOs, and PHOs, discussed later).
Joint ventures present opportunities and benefits for the health system and the physicians:
- Physicians gain brand strength and access to capital and clinical resources
- Health systems gain physician allies and support, additional service lines, and improved brand strength
Hurdles to All Physician-Health System Business Arrangements
- Complying with the regulatory requirements – including Stark, anti‐kickback, antitrust, and income tax laws if the health system is a nonprofit
- Balancing physician expectations regarding the value of their practices and their services vs. fair market value considerations
- The parties must deal with each other at arm’s length, and the transaction must comply with fair market value considerations
- Negotiating the legal and business provisions
- Compensation (base and productivity) and benefits, if applicable
- Services to be provided and location(s)
- Staff, facilities, and resources
- Determining who reports to whom
- Hiring and firing staff/clinic employees
- Adding/contracting with additional physicians
- Termination and restrictive covenants
- Unwind and but-sell considerations
- Ownership percentages & sharing revenues and expenses
- Control and decision making
- Investors and capital requirements
- Reimbursement from payers and indigent care
Evolving Physician Practice Structures – Why?
Health care reform, economic and business uncertainty, increased regulatory burdens and scrutiny, and declining reimbursement from Medicare and other managed care payers are pushing a realignment of physician practices and providing new incentives for integration, consolidation, and other practice structures.
In a recent Medical Economics poll, 4 out of 5 physicians found it challenging to maintain their dual roles as doctor and businessperson, and 76% thought it was only going to get worse.
New and Complicated Regulations, like the following:
- New enrollment, disclosure , and compliance requirements under the Affordable Care Act
- Transition to ICD-10 Coding and version 5010 HIPAA transaction standards
- Regulatory and Advisory Organizations are expected to impact care and reimbursement –
- Patient-Centered Outcomes Research Institute (identifies research priorities and conducts research on the clinical effectiveness of medical treatments)
- Independent Payment Advisory Board (makes recommendations to reduce the per capita rate of growth in Medicare spending)
- Physician Quality Reporting Initiative
Increased Regulatory Oversight, like the following:
- Stark, Anti-kickback, HIPAA, False Claims Act, and similar Florida laws are being vigorously enforced (e.g., HEAT)
- The Affordable Care Act has made health care fraud much more dangerous –
- A physician no longer must have direct knowledge that his or her actions constituted a violation to be prosecuted.
- Activities of staff may be more easily attributed to the physician
- There is new liability for making a false statement or material error on provider applications
- Keeping an overpayment for longer than 60 days after discovery is now a violation of the False Claims Act
- Physicians providing diagnostic services like MRI, PET and CT scans must provide information to patients in writing about the other area providers
- Whistleblower and Qui Tam actions by former employees
- Increased scrutiny of valuations
Reimbursement issues, like the following:
- Decrease in government reimbursement – slower, less reliable
- Increase in number of Medicaid funded patients with lower payments (an average Medicaid payment is 56% of private payment, Medicare is 81%)
- Affordable Care Act raises the Medicaid rate for primary care physicians to 100% of Medicare in 2013 and 2014, but no guarantee long term
- Payment is shifting from traditional fee for service to “results delivered,” and segmented approaches to care are being replaced by accountability and responsibility for a patient’s health
- Thus, changes in payment methodologies — bundled payments (combined payments across multiple sectors), and new delivery models (e.g., Accountable Care Organizations and Medical Homes)
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In subsequent posts, I will outline the following and discuss how they fit into evolving physician practice structures:
- Different Physician-Health System Integration Models
- ACOs, IPAs, and PHOs
- MSOs
- Physician Practice Consolidations
- Changing Levels of Medicare Participation
- Concierge Practice.
Joseph Rugg's Health Law Blog 