David J. Davidson

Board Certified as a Specialist in Health Law

About me

“Straight out of law school nearly 30 years ago I jumped right into healthcare and joined a firm that represented a hospital and large physician practice. It has captivated me ever since and I enjoy applying my broad experience to help my clients.”

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22 years as in house counsel for large integrated health care system

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In 1986 President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (EMTALA) into law.  Since then, the application of the law has been expanded and refined.  It was one of the first laws giving the government the authority to dictate certain operations of a hospital.  While other laws and regulations such as the Anti-Kickback Statute and the Stark Law have become more of a focus for health care providers, EMTALA remains an area of active enforcement.  All providers with hospital privileges should therefore be aware of its application.

The policy behind the law is fairly straightforward.  Hospitals with emergency departments should not be able to turn away patients needing care because of their inability to pay (no more “wallet biopsies” as part of triage).  Likewise, hospitals should not be able to “dump” patients on other facilities for reasons other than for advanced care.

The requirements of the law are also very basic.  If a patient comes to an emergency department and requests an examination or treatment for a medical condition, the hospital must provide an appropriate medical screening exam, within its capability, to determine whether or not the patient has an emergency medical condition.  The screening provided goes beyond simple triage, and must be performed by a clinical provider such as a physician, nurse practitioner, or physician’s assistant.

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There will likely come a time in your practice when you find yourself considering whether you should maintain a relationship with a patient.   It may be that the patient is non-cooperative.  Or the patient may refuse to pay his or her bill, or to follow a reasonable payment plan.  Even more significantly, the patient may have engaged in behavior that is disruptive to your practice.  For whatever reason, you are questioning the value of the relationship.

In those situations, the law does allow a physician to terminate a patient from his or her practice.  However, careful analysis must be done in these situations, and there are several steps that should be followed. The risk of a claim of abandonment or of professional negligence makes it important to protect yourself, your practice, and the licenses of the providers within your group. You may already have a process spelled out in your policies and procedures, and if you do, that process should be followed.  However, make sure your policy at least covers the points below.

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The last few weeks have seen some significant examples of the federal government’s vigilance in policing the healthcare market.  These events serve as a reminder of the highly regulated and scrutinized industry in which we work.  They are also a reminder to physicians and other providers to make sure their practices and contractual arrangements can pass this scrutiny.

The most significant recent event is the $115 million settlement between the government and the Adventist Health System.  This settlement resolved two whistleblower cases brought against the system by three employees.  The lawsuits alleged that the Adventist Health System violated the Stark law, which generally prohibits payments to physicians for making referrals unless an exception to the law is met.  The specific allegations against the Adventist Health System were that the compensation paid by the health system to some of its employed physicians exceeded fair market value; that the structure of the practice of the employed physicians did not meet the “group practice” exception; that physician compensation improperly included payment work not performed by the physicians; and that the physicians were paid for making referrals to the system.

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