I had a law school professor who repeatedly referred to his class as “Doom at Noon.” The topic was dry, the cases were boring and, if not for the professor himself, the class would have been unbearable. I think of that, all these years later, every time I have to counsel a client on a topic that makes his or her eyes glaze over, like healthcare compliance.
Compliance means that you’re operating within the bounds of law. Sure, it sounds boring, but it’s a giant undertaking for any business, and especially for one so regulated as healthcare. Over the last three decades, the Department of Health and Human Services’ Office of the Inspector General has urged the private healthcare community in to take steps to combat fraudulent conduct and prevent the submission of erroneous claims.
The need for healthcare services is growing at an exponential rate throughout the US and across the world while the number of healthcare providers is dwindling in comparison which paves the perfect way for telemedicine. The ease of healthcare access should be standard for all people, but many go without healthcare because of their geographic location or lack of funds. From these circumstances, technology has risen as the new champion for the provision of healthcare; technology is building necessary connections between healthcare providers and patients through telemedicine. The field of telemedicine complements traditional medical care in various ways already, and it is expected to continue to expand through the healthcare industry. Some current uses are as follows:
When considering optimization of healthcare business operations it is important to remember Limited Liability Companies are fundamentally just partnerships with added liability protection. The LLC structure offers liability protection called charging order protection, which prevents your (or your partners’) personal creditors from seizing your business or its assets to settle personal debts. Since LLCs were designed to be partnerships, you are expected to adhere to some basic partnership rules – most importantly, you should have partners. Running an LLC with no partners opens you up to liability.
On June 8, 2017 the Florida Supreme Court, in a 4-3 opinion, ruled that the legislatively-established caps on non-economic damages (such as awards for pain and suffering) in medical malpractice cases are unconstitutional. In 2014 the Florida Supreme Court determined the cap established for wrongful death claims was unconstitutional. The 2017 decision now does away with the remaining caps.
With the opioid epidemic in South Florida at crisis levels, there is an increasing demand on local hospital emergency departments for screening and evaluations of drug overdoses, considered a medical emergency. Addiction treatment law evolves with EMTALA updates. Many patients receiving substance abuse treatment in this community are coming from out-of-state. Many are young, under 35 years and a majority receive outpatient services. Overdoses are occurring more frequently as patients deliberately misuse opioid prescriptions such as Fentanyl or an illicit drugs such as heroin. If the patient possesses and or uses an illicit drug while in treatment, the policy in many facilities is to terminate treatment and discharge the patient. But if the patient has overdosed, the facility will place a call to 911 and that patient will end up with a visit to a local emergency department. A discharged patient will often continue using and end up in the emergency department, taken there by paramedics or some other individual.
Evolution of EMTALA
Local emergency departments now play a pivotal role in the next steps that an overdosed patient may take. Is the patient receiving their EMTALA rights (Emergency Medical Treatment and Labor Act), a federal law requiring anyone coming to a hospital emergency department to be screened and examined? If an emergency medical condition exists, treatment is provided to relieve or eliminate the emergency medical condition within the service capability of the hospital, a difficult task with substance abuse.
The dominant forces of change in the addiction treatment industry are law enforcement and insurance companies. The focus and impact of insurers is currently focused on the argument that what treatment providers do isn’t medically necessary. This rationale is undeniably misguided and is the biggest threat to the survival of many health care providers, including those at the forefront of adapting to the demands by implementing meaningful legal regulatory compliance. This focus of this article is a parallel intervening factor in the addiction treatment industry: that of law enforcement, most notably in Palm Beach County, Florida. Consequently, providers in the addiction treatment space and their employees are becoming increasingly familiar with the concept of immunity as they are deal with law enforcement on a routine basis.
We assume there are bad-actors in the addiction treatment space. There are bad-actors in every industry and profession. No one can appreciate that more than this article’s co-author, Randy Goldberg. He is a retired Florida law enforcement professional, who spent a significant portion of his career investigating law enforcement officers for alleged criminal misconduct, having been deeply involved in the arrest and successful prosecution of law enforcement officers who abused their authority and strayed to the dark-side of the law.
As expected for some time, Florida’s limits on non-economic damages has been ruled unconstitutional by the Florida Supreme Court. This event will likely drive medical malpractice premiums up and have healthcare providers reexamining (a) whether it makes more sense to “go bare” (without liability coverage), and also (b) their corporate structure to minimize exposure to professional liability claims.
Thursday the Florida Supreme Court ruled that a law capping noneconomic damages (pain-and-suffering damages) at $1 million in medical malpractice personal injury suits is unconstitutional. Medical malpractice insurance premiums will climb fast now that damage award limits are off. If you’re a physician and you haven’t built limits for yourself through asset protection it’s time to get moving.
Florida Supreme Court Ruling on Medical Malpractice Cap
The Florida Supreme Court’s ruling should come as no real surprise since the underlying case has been working through the court system for some time. Initially, the plaintiff was awarded approximately $4 million in non-economic damages by a jury in circuit court. However, the judge applied the Florida law capping non-economic damages and a government-run hospital’s liability cap statutorily set at $100,000. This reduced plaintiff’s award by over $3 million. Although the lower court concluded the plaintiff’s injuries were indeed catastrophic, the law on caps and government limits was in play. The case traveled through the appellate process and on to the Florida Supreme Court.
The Florida Supreme Court’s ruling that non-economic damages caps are unlawful, i.e, unconstitutional under the equal protection clause, is critical for all professionals in healthcare business to take note of. It is fundamental for professionals and entities alike to look at how their businesses are structured so that they can protect assets that likely having nothing to do with a professional’s or an entity’s performance as it relates to patient care.
Evaluating Medical Malpractice Coverage & Asset Protection
It will also be critical to re-evaluate medical malpractice coverage to ensure coverage is adequate. Keep in mind that medical malpractice insurance may pay out the upper end of liability insurance. However, this may not fully satisfy a judgment entered by a court against a healthcare provider, business or entity. Unsatisfied judgments against an individual or entity will remain recorded in the public records until satisfied. Unsatisfied judgments can make it difficult to grow a business or obtain a loan at favorable rates. They can also lead to collection efforts against the individual or entity, such as having liens placed against unprotected assets, garnishment of wages, obtaining charging orders against limited liability companies, and so on.
Assets need to be protected prior to a case being commenced against an individual or entity or prior to the possibility of a complaint being brought. Ideally, physician asset protection planning should be considered at the start of a new career, or early on in a career. Likewise, asset protection planning for entities should be considered when forming the entity or during the planning phases of starting a new venture. Once a medical malpractice suit has been commenced, or there’s reason to know a suit might be brought, asset protection planning options become severely limited. Be prudent – start thinking about asset protection planning before you have problems.
A recent decision by a Health and Human Services appellate panel emphasizes how strictly the government will interpret its rules and the disingenuous results that can sometimes follow when healthcare business operations best practices are less than optimal. Although the case referenced below involves a home health agency, the panel’s application of the rules applies to all Medicare providers. The resulting loss of the agency’s participation in Medicare serves as a sobering reminder that total compliance with all conditions of participation is crucial.
Vamet Consulting & Medical services was a Medicare-enrolled home health agency based in Houston, Texas. On July 14 and 15, 2014 the company conducted training for its office staff at its primary location. The training meant that all the agency’s staff would be in the back of the office, either in training or working, so the company locked its front door.
In the last few months, settlements related to potential violations of HIPAA and the Security Rule have ranged from $31,000 to $5.5 million. The smallest settlement amount, $31k, for potential HIPAA compliance breach violations related to one missing Business Associate Agreement (“BAA”) between a pediatric group and an ePHI records storage company that had come under HHS’ Office of Civil Right’s (“OCR”) scrutiny. The pediatric group used the ePHI record storage company since 2003, yet could not locate or provide a signed BAA to the OCR prior to 2015. The outcome of the OCR’s compliance review indicates that internal risk analysis and risk management was not thoroughly undertaken.
The largest settlement reached was $5.5 million to be paid by Memorial Healthcare Systems (“MHS”) located in south Florida. MHS operates 6 hospitals, an urgent care center, a nursing home, and numerous ancillary healthcare facilities. Additionally, MHS is affiliated with physician offices through an Organized Health Care Arrangement. MHS experienced a breach that potentially compromised the ePHI of over 115,000 individuals, when impermissible access by its employees and impermissible disclosure to affiliated physicians occurred through the use of the login credentials of an affiliated physician’s former employee. Although MHS reported the breach and had policies and procedures in place related to HIPAA and the Security Rule, it had not implemented procedures for reviewing, modifying, and/or terminating users’ rights of access as required by HIPAA. Further, MHS failed to regularly review records of information system activity, in applications that maintain ePHI, by employees or workforce users or users at affiliated physician practices, even though MHS had identified such risk during risk analysis conducted from 2007 to 2012.