Health care law newsletter最新文献

All providers contemplating managed care contracts, both individual and institutional, should carefully review the health plans' internal administrative review and dispute resolution procedures before making their decisions, especially if the contracts will represent significant income for the provider. While there may be judicial recourse in California and in other states that adopt the holding in Delta Dental, in other states providers may well be held to the health plans' internal administrative decisions as a matter of contractual agreement. Health plans should also review their own policies and procedures for adequacy under applicable state law. The health care community will not know the full extent of Delta Dental's implications until later cases area decided, but for now it seems certain that another wave of change in this area is just beginning.

As state legislatures begin to regulate utilization review activities, some appear to be utilizing the URAC standards for guidance. Still others (e.g., Iowa, Nebraska, and New Hampshire) require URAC accreditation as a prerequisite for utilization review organizations to operate in their states, while others (e.g., Alabama, Arizona, Connecticut, Indiana, North Dakota, Tennessee, and Rhode Island) accept URAC accreditation in lieu of state certification. "States Look to Accreditation for Managed Care Seal of Approval," Medical Utilization Review, Vol. 22, No. 20, Oct. 27, 1994, at 7-8. The remarkable consistency between the 1994 URAC standards and the new California law are a hopeful sign that managed care decision-making will in the future be undertaken on a more uniform and objective basis. Only through this type of consensus building will the historical chasm between providers and payors be made smaller.

Providers participating in the recent wave of mergers, acquisitions, and affiliations may have unwittingly expanded their false claims exposure because many false claim-type situations are difficult, if not impossible, to identify in pre-closing due diligence. In addition, the possibility of retrospective characterization of ordinary billing mistakes as "false claims" increasingly introduces significant uncertainty to the average provider's financial future. To date, the single most effective approach to this problem is an independent compliance review to identify and resolve any existing exposure, including voluntary disclosure if appropriate, and an ongoing compliance program to communicate to all employees not only the content of applicable rules but also the genuine commitment of management to ensure continuing compliance above other concerns.

Creating barriers to communications between the IRS and the tax-exempt health care community is particularly troubling in this time of fundamental change. As exempt hospitals around the country gear up to provide service in a managed care environment, they are becoming involved in new forms of integrated delivery systems for which there is an utter lack of guidance. If the IRS is to formulate effective policy on questions involving the creation of these new health care entities, it needs to be aware of the dynamics and economic incentives at work in a managed care environment and how these incentives and dynamics differ from those in a fee-for-service context. The Hermann Hospital experience seems altogether contrary to these objectives.

However, while a joint venture may be "safe" from antitrust challenge, it is not without some practical difficulties, especially with respect to consolidating services at one location or jointly offering services provided at multiple facilities. These practical concerns include: 1. Who will exercise operational management of the joint venture? 2. How will the joint venture deal with different pricing for services that will be provided at multiple locations? 3. What criteria will be used to decide the location at which consolidated tertiary services will be offered? 4. In what circumstances can the joint venture be unwound, either in its entirety or as to discrete functions? When clinical services have been consolidated at one location, there is an appropriate concern by the other hospital that it will be unable to provide or re-enter the market for those services if the joint venture dissolves. These operational concerns, of course, are not addressed in the Consent Decree. Thus, even if a joint venture relationship survives antitrust scrutiny, the parties must still negotiate and resolve these operational issues in order for the joint venture to be viable.

Corporate directors and their consultants must make decisions in an uncertain and changing health care environment. The losses each may face as a result of an incomplete analysis of the true value of the entities involved in mergers or acquisitions may extend beyond the failure of the transaction to the creation of personal liability as well. Accordingly, objective, careful, detailed, and fair decision-making based upon adequate information is more critical than ever for directors if they are to be able to take advantage of the business judgment rule, and also for consultants to avoid their own liability when transactions fail to deliver the values they have estimated.

Until both providers and government surveyors become more familiar with the new EMTALA regulations, there will be an uncomfortable period of adjustment, and perhaps some turmoil as well, particularly regarding the new requirement that facilities who receive suspicious transfers report those transfers to HCFA. Providers should carefully examine their internal policies on discharge and transfer of emergency patients to assure that those policies are consistent with the new regulations. Particular attention should be given to inservice training for medical and support personnel in the emergency department, because they must precisely comply with the law and their errors can subject the hospital to costly investigations and potential fines of $50,000 for each violation.

The most critical element in developing a successful IDS is identifying the needs and goals of the parties within the context of the realities of their local health care market. It is therefore unwise to select the structure of a proposed IDS until this process has been completed. An honest goals assessment might result in the immediate formation of a PHO, MSO, medical foundation or other formal IDS, or might alternatively point in the direction of something much less structured, such as a joint marketing contractual arrangement (sometimes called a "PHA"), which can be relatively inexpensive to implement and can provide a fairly immediate response to quickly changing market conditions. Some organizations might even decide to utilize a number of different IDS vehicles in order to offer physicians a menu of affiliation options. The legal issues that arise when forming an IDS can almost always be dealt with in a reasonable manner. The real key to success is entering into integration discussions with an open mind, rather than a preconceived commitment to a particular integration.

Doe demonstrates that once an employer enters into a relationship with an individual and thereafter determines that he or she may be disabled, the employer has the right to ask the individual questions about the possible disability when those questions are relevant to assessing his or her qualifications for continuing on the job. In fact, once a health care provider is on notice that an employee's or physician's disability may render the employee or physician no longer qualified, thereby potentially endangering patients, the provider is required to determine whether the person is qualified for the job. In these sensitive matters, employers must draw a fine line between unreasonably following up on every rumor on the one hand, and on the other hand investigating reliable information when there may indeed be a direct threat to patients.