Choosing a medical malpractice insurer 

Now is a good time to re-visit the question of what should a physician look for in placing his or her professional liability coverage. A commitment to manage risk and manage claims is a key factor in a physician's choice.

Rehabilitating impaired physicians in Pa.

Pennsylvania ’s Physicians’ Health Programs has been in operation since 1970, and its Professional Health Monitoring Programs since 1986. These programs are often confused with each other but are fundamentally distinct.

How to avoid Medicare provider exclusion 

It is important to recognize the power of government to exclude providers from the Medicare/Medicaid Program, the reasons used to exclude providers and a new technique being used to avoid provider exclusion.

Craft an e-mail policy for your employees

Physician practice groups are employers, as well as health care providers and are consequently responsible for managing and monitoring their employees’ use of the practice computer system to ensure its proper and legal usage.

CMS ratchets back Stark exceptions 

CMS continues to struggle to define, explain and implement it nearly 19 years since Congress first began regulating physician referral relationships under Pete Stark’s leadership. The latest attempts appear as a “Phase III Final Rule” and as further tinkering in the 2008 Medicare Physician Fee Schedule.

Physician income agreements after Stark

If you are hired by a practice that is receiving hospital assistance, you may be asked to sign a hospital assistance agreement. This agreement should be drafted so that it is fair to all parties to the transaction.

Imaging center investments gone bad 

Physician investors should consider a variety of options for turning their investments around, and even if the investment cannot be salvaged, should carefully develop a strategy to cut their losses to the extent possible.

Resolving issues between practice owners

Whatever the challenge, it is important for each physician owner to objectively consider their rights and obligations so that they can make the best decisions for themselves and the practice.

Physician recruitment in the wake of Stark III 

The CMS published final rules amending regulations with respect to the physician self-referral prohibition, commonly known as Stark. Some of the most drastic and positive changes were made to the physician recruitment exception.

Disability insurance claims: 12 ways of business

A helpful guide to the “twelve ways of business” to better understand the disability insurance claims process.

Compliance planning on a shoestring budget 

Developing a basic – but effective – compliance program need not be overwhelming or overly expensive.

Anatomy of a malpractice lawsuit

Your evidence can help you to avoid a judgment or at least avoid a severe award. Your evidence (or lack of it) is also what causes a plaintiff’s attorney to take on a plaintiff’s case in the first place.

Would a practice merger be right for you? 

If properly planned out, organized and implemented, a merger may indeed result in a larger group which would be stronger as one unit than the individual practices were prior to them coming together. This generally results in maintaining or increasing the total market share of the doctors involved.

Pharmaceutical company marketing practices 

Regulators and prosecutors, as well as some leading physician and private interest groups, have called for a new prescription for quality patient care: the reform of inappropriate marketing practices.

Preparing for private carrier fraud audits

We need to be prepared to deal with the carrier’s evidence-gathering methods so that there is no miscommunication or misunderstanding about your practice area, specialty or billing methodology.

Medicare out-of-network payments 

Unlike claims for out-of-network services submitted to commercial health plans – which are often paid based on a percentage of charges or some other negotiated process – payment for out-of-network services provided to Medicare Advantage enrollees are dictated by Medicare law and regulations.

Structuring contractual joint ventures 

Physicians must take particular care to ensure that the arrangements not only comply with the anti-kickback statute but, wherever possible, do not have the “suspect” attributes identified by the OIG.

Corporate medicine in 21st century health care 

States need to reevaluate the prohibition on the corporate practice of medicine and recognize that in order to truly move toward a health care system that encourages technological advancement, improved patient care, and cost-efficiencies, corporate medicine not only has a place in the system, but could ultimately benefit such a system.

Implications of new advanced directive law

Act 169 represents an effort to remedy the deficiencies in the system by allowing for decision-making even in the absence of an advance directive.

New Medicare enrollment rules and forms 

Not only do new regulations require additional information to be submitted during the enrollment process, they also create new obligations for hospitals, physician practices, and other health care providers and suppliers to report changes to the government.

ERISA LTD claims tug of war continues

Often-times the reality of successfully bringing a claim under your group LTD policy is such a distortion of reality, it’s more like Alice ’s trip through “Wonderland.”

Prevailing in medical necessity fraud case 

The Prabhu case demonstrates that physicians should stand their ground when they have not done anything wrong, and that the court system can effectuate justice and acquit a physician of baseless charges of fraud and false claims.

Top medical malpractice risk areas

The good news is that we understand more than ever before how to impact this liability. The open question is, Will we do anything about it? Two of the leading the areas of risk are physician-patient relationship and appropriate disclosure after an adverse event.

Making Medicare incident-to rules work for you 

Failure to follow the rules to the letter can result in significant overpayment and even fraudulent billing liability.

Physician employment agreement

Consider the issues facing a physician-employer when hiring a new physician, and employees who are reviewing employment agreements with physician-employers.

ASCs and the federal anti-kickback safe harbor 

The primary concern is whether distributions to ASCs constitute disguised remuneration for referrals. Given the severity of the criminal and civil sanctions under the Anti-Kickback Statute, physicians need to structure these arrangements carefully and consistent with the ASC safe harbor and OIG’s position on health care ventures.

E-discovery in health care litigation

New Rules cover not only information in an electronic medical records system and other health information systems, but all data in electronic form, including e-mail and instant messages.

Stark and reassignment rule changes proposed 

If these changes are eventually finalized as they had been proposed, some physician group practices may very well need to consider revamping the manner in which they furnish ancillary services in connection to the patient care they provide.

Returning monies to the federal government 

Practices face a number of choices in terms of how they disclose an overpayment and to whom within the government it will be disclosed

Common medical record-keeping questions

Many physician practices remain unclear about certain legal requirements affecting medical record-keeping, and are not confident that their current practices meet legal requirements.

Enforcement of noncompete agreements 

Recent rules enacted pursuant to the federal Stark Law pose a serious challenge to medical providers seeking to protect their competitive advantage through noncompete agreements with their physician employees.

Alternative revenue streams

Specialty health care ventures – including specialty hospitals, gainsharing arrangements and specialty purchasing groups and alliances – provide a mechanism through which certain physician specialists and hospitals can control and reduce costs, increase efficiencies and enhance quality of care. The ventures, however, are not without risk.

Changing jobs: Securing the right opportunity

Whether you are just starting out or miserable in your current position and thinking of moving on, finding a new job is a time intensive process that can be both frustrating and anxiety producing at the same time. Advance planning and self-evaluation will help you make the right career move.

The 'median coding' phenomenon

It makes no sense to continually perform median coding when appropriate coding, once learned and applied, is far less worrisome and generally more profitable.

Peer review committee member protections

Physicians who undertake this important responsibility with the proper frame of mind and devote their full attention to the matter should be protected by applicable law.

Choose your ASC partners wisely

The process of developing and operating an ASC is not so complex that physicians, with the assistance of experienced advisors, cannot successfully launch an ASC without the involvement of a hospital or management company.

Liability risk reduction strategies for physicians

Risk management is not about defending lawsuits or claims. It is about safety, communication, analysis of data and creation and execution of tools to reduce those clusters of circumstances in the first place.

On-call obligations under EMTALA

No other area of EMTALA compliance has fostered the level of confusion and discord among hospitals and physicians as has the topic of physician on-call coverage.

Privacy implications of disease management programs

Any electronically-based disease management program can create significant risk to an organization for unauthorized use or disclosure of patient information, and must comply with applicable federal and state patient confidentiality, privacy and consent requirements.

Turf wars: physicians vs. physicians vs. hospitals

Physicians, hospitals and business entities alike continue to aggressively pursue ancillary revenue streams, and as reimbursement dollars remain limited, conflicts are unavoidable.

Consulting for drug and medical device companies

In this complex and sometimes counter-intuitive regulatory environment, defining the limits appropriate for these relationships can be a challenge.

Legal implications of economic credentialing

The American Medical Association and others have taken exception to this type of credentialing asserting that such credentialing practices conflict with state and federal law, including the federal Anti-Kickback Statute.

'Own occupation' in disability insurance claims 

If your disability insurance carrier confuses and dilutes the basis of the disability equation, it obviously becomes harder to obligate them to pay. And that’s what it’s all about: diluting.

MCARE and licensure board investigations

How the Boards’ sizable caseload is being handled, what standards for review are used to determine whether to investigate and prosecute certain cases, and to what extent prosecution of cases before the Board will impact a pending civil liability action are all issues of concern to Pa. physicians.

Pa.'s trade secret law and medical practices

It is clear that there will be more activity in this area, in light of a new Act and the increasingly competitive nature of health care today. Health care entities and professionals should be aware of these important aspects of the law so that there are no unexpected and unpleasant surprises.

Fraud enforcement under Medicare Part D

Some new risks are anticipated to arise because of incentives inherent to the design of the Part D benefit, but others are as old as health insurance itself.

Thinking of outsourcing your billing?

While outsourcing may be a cost-effective alternative for many medical practices, there are a host of practical and legal issues that must be considered (and in most cases addressed in the written agreement between the practice and the billing company) before taking this leap.

Government seeks to encourage e-prescribing

The OIG and CMS are looking to strike the right balance between encouraging the dissemination of these technologies and minimizing the risk of abusive arrangements. The many conditions in their proposals suggest that they put greater weight in the latter objective, however.

Physician shortages override noncompete clauses

In light of Wellspan, it may be increasingly difficult for hospitals, or other employers of specialty physicians, to enforce restrictive covenants against specialists who are in short supply in their geographic area.

Understanding the attorney-client privilege

Communications between clients and their attorneys may only be protected where certain requirements are satisfied.

Malpractice case alternative dispute resolution

Where there is at least some merit to the claim and the risk of proceeding to trial is deemed to be too great, mediation or another form of ADR should be considered.

Avoiding sexual harassment lawsuits

Adopting an effective written harassment policy, and then educating and training your employees and supervisors on how to utilize and enforce the policy, can help you meet the expectations of the EEOC, and your legal responsibility to keep your workplace free from harassment.

Physician-owned group purchasing organizations

Physician groups looking for purchasing power, alternative revenue streams and value adds have begun to develop their own specialty GPOs. These arrangements, however, are not without risk, since many of the payment arrangements often implicate the federal Anti-Kickback Statute.

Does your medical director agreement meet the test?

Applying these simple tests can give a physician peace of mind that he/she will not have to prove to the government or whistleblower that the services provided are necessary, fair and reasonable.

What does contractual boilerplate mean to you?

Physicians often focus on the key substantive terms of a contract, such as compensation, termination and restrictive covenants, and pay little attention to the remainder of the document.

False Claims Act implications

A recent decision may have a significant impact on health care providers’ obligations to be conversant with and abide by not only reimbursement laws and regulations, but also carrier interpretations and medical policies.

Hiring a physician assistant in Pa.

Regulations address permissible activities of physician assistants, impose strict requirements for a written agreement, and require the supervising physician to assume several obligations in supervising and overseeing the physician assistant.

Implications of malpractice insurance subsidies

These arrangements are not without risk and should be properly tailored to comply with the federal Anti-Kickback Statute, Stark and other applicable laws and regulations.

Disability insurance bad faith

You hope, if you are or become disabled, that your disability insurance company will keep its promise.

Challenges for foreign physicians

Legal regulations, exploitative employers and bureaucratic delays can make you feel like giving up on your American dream. But knowing your rights can help you avoid common traps and, when pitfalls do occur, how to navigate your way out.

New bankruptcy law affects retirement plans

Since legal battles between debtors and creditors are often played out in bankruptcy, much of the law in the area of asset protection arises in the context of bankruptcy proceedings.

Legal barriers to electronic health records 

For those contemplating implementation of an electronic health records system, there will be significant legal issues to resolve that increase in importance as the complexity of the system deployment increases.

Physician investments in specialty hospitals 

With the release of the Medicare Payment Advisory Commission’s Report to the Congress on Physician-owned Specialty Hospitals, the status of the expiration of that prohibition may now be in jeopardy until at least January 1, 2007.

Reducing your risk of malpractice claims

By enhancing communication and service excellence, a physician can reduce professional liability risk and simultaneously enhance a practice’s bottom line through higher patient satisfaction.

Permissible physician-hospital joint ventures 

All joint ventures need to be approached with caution, as they nearly always raise issues of compliance with the federal antikickback/fraud and abuse rules, the Stark law, state anti-referral or “mini Stark” laws, and other rules.

Medical device manufacturer relationships

There are a myriad of laws, regulations and ethical tenets governing arrangements between physicians and medical device manufacturers which could present significant traps for the unwary physician.

Combating frivolous malpractice lawsuits 

In Pa.., there are several tools which are available to deter baseless claims. Each has advantages and disadvantages from the defense perspective.

Are you ready for HIPAA security rules

The security regulations may require even more time and effort than you spent on the earlier HIPAA privacy regulations.

MCARE and physician licensing sanctions 

MCARE has raised the profile and responsibilities of the boards and focused them on a new and far more aggressive mission.

Physician-hospital joint ventures safe harbors 

With the finalization of the joint venture safe harbors and greater certainty in the Office of Inspector General’s position regarding joint ventures, there has been a revival of physician-hospital ventures.

OIG on hospital and physician relations 

The OIG issued a draft Supplemental Compliance Program Guidance for the Hospital Industry, detailing additional requirements for hospitals and providing significant additional guidelines that directly affect physicians’ relationships with hospitals.

Medical practice split-up considerations 

Although the facts and circumstances surrounding if, when and how a group practice may implode are unpredictable, physicians together with practice legal counsel, can take certain steps to prepare for that eventuality, even if they believe it to be unlikely.

Legal & ethical duties of medical researchers 

Requirements which relate to subject selection and protection, informed consent, privacy and confidentiality, conflicts of interests, and fee splitting and referrals need to be reviewed regularly by researchers, otherwise they can result in a trap for the unwary.

Phase down options for group practice founders 

It is possible to negotiate arrangements with the group enabling the senior doctor to phase down gradually, so that the later years of practice are enjoyable, not grueling.

HIPAA compliance: One year later

What is evident one year later is that there is still considerable misunderstanding surrounding the operation of the HIPAA privacy rules.

Path cleared for aggressive Stark enforcement 

The new CMS rule removes the final barrier to unleashing the government enforcement process and may help private whistleblowers assert claims based on Stark Law violations.

Fraud and abuse issues for ambulatory surgery

Learn how to minimize fraud and abuse concerns inherent in operation of an ambulatory surgical center.

New overtime rules coming 

In addition to correcting problems, a proper review can uncover attractive alternatives that are already available and remain under the new overtime pay rules.

Legal obstacles to Internet prescribing

Physicians need to be cognizant of the legal issues presented by on-line prescribing, as well as the ethical considerations associated with the physician-patient relationship forged over the Internet.

Vulnerability to counterfeit drugs 

The perception of the nation’s drug supply as safe and reliable is now forever altered.

Appropriate care in disability insurance

Protect yourself from the imposition of the company which aims to control your claim.

Preventing informed consent malpractice claims 

Physicians must continually be aware of new developments in the law. One of the most recent and troubling developments in Pa. and other states is the expansion of the Doctrine of Informed Consent.

Interactions between drug reps and physicians

The OIG’s Compliance Program Guidance specifically targets the pharmaceutical manufacturing industry and gives clear guidance as to those types of arrangements with physicians which are considered to be suspect.

Primer on physician-owned surgicenters 

As with all opportunities, there are risks to consider. Investment in a surgicenter requires contribution of significant capital and execution of complex and substantial legal documentation.

Obligations to assist disabled patients

In recent years even state Medical Assistance Program agencies have taken this awareness to a new level, notifying their provider-participants of increased departmental scrutiny.

Negotiating a managed care contract 

Even the best run practices often sign agreements which contain provisions that can prove to be troublesome.

Clearing the EMTALA fog 

We can now begin to assess to what degree the regulations met their stated goal of reducing confusion and easing many of the burdens faced by hospital emergency departments, while still ensuring that individuals will receive appropriate screening and emergency treatment, regardless of their ability to pay.

Alternatives to Pa.'s prompt-pay law 

On its face, Pa.’s prompt-pay law appears quite promising. In practice, however, the law has not provided much help for physicians or deterred recalcitrant payers.

Disciplining and terminating employees

When necessary, discipline may be implemented, up to and including termination of employment. Implementing uniform practices when managing your employees will likely improve the overall efficiency of your practice, while reducing your legal exposure.

ERISA and long-term disability claims 

Are you relying on that group LTD policy to pay you benefits? If you become disabled, you may be in for the fight of your life.

Consumer-directed marketing: do's & don'ts 

If physicians are not careful in their approaches to marketing and advertising, they may find themselves in violation of a myriad of federal and state laws and regulations which carry heavy civil and criminal sanctions, as well as licensure discipline.

Legal guide for selling a medical practice 

You have the opportunity to control the transaction and the way in which your transition to retirement or a new career is handled.

HIPAA's rules link privacy & security 

It would be wise for physicians to integrate the security measures required under the Security Rule into their current Privacy Rule policies.

Opting out of Aetna's class action settlement

While Aetna’s class action settlement appears beneficial, the financial relief for physicians with substantial claims against Aetna for past reimbursement problems may be less than adequate. If in doubt, a physician will protect his or her options by submitting an opt-out notice by the August 29 deadline.

Some perils of telemedicine

Telemedicine's growth, however successful, has been slowed by payment and other legal concerns, such as limits on services that qualify for insurance coverage, state licensure laws, potential malpractice liability, and privacy and security concerns.

Impact of venue, certificate of merit reforms 

The amended venue rules will likely provide a sturdy challenge for plaintiffs using venue to seek out sympathetic juries and, by requiring plaintiffs to find an expert to certify that a case has merit, the rules provide yet another layer of protection for defendants who in the past relied on preliminary objections and summary judgment to dispose of baseless lawsuits.

Exploding myths about HIPAA privacy

Panic, overreaction, paranoia and misinformation have flooded the HIPAA privacy marketplace of ideas, while consultants’ interpretations frequently end with a serious misunderstanding of the law or, in other cases, blatant falsehoods

Hospital-physician recruitment arrangements 

No matter how advantageous these arrangements initially appear, they should never be entered into lightly.

Reducing liability through patient accountability

It is time to truly put the ball of responsibility firmly in a patient's court and create documentation vehicles to do so, in a positive, not an adversarial, fashion.

Stark compliance for group compensation 

Because the "Stark" law is generally understood to prohibit certain physician referrals, physician practices frequently overlook the fact that Stark also places limitations on their compensation plans. This article explores compensation strategies for group practices that comply with Stark.

Fighting frivolous malpractice lawsuits

After being served with a frivolous lawsuit, a doctor can request his or her defense lawyer to file a countersuit

OIG's physician marketing advisory 

Some physicians rely on marketing as a method to obtain new patients. Not all marketing programs, however, take into consideration complex federal and state prohibitions against certain types of marketing.

Physician messenger model under fire 

Enforcement actions provide valuable insight into the type of conduct of physician networks and their messengers that the DOJ and FTC view as anti-competitive.

Protecting a practice from excluded providers 

Practices need to confirm, prior to employing a physician or other individual or contracting with a provider or vendor, that the individual or entity is not excluded from participation in federal health care programs.

Legal guide for acquiring a medical practice

The dollars and obligations are big and the pitfalls are many. Here is a practical legal guide for those about to embark on the journey

Alternative malpractice insurance mechanisms

In response to a crisis of cost and availability, a number of alternative risk mechanisms are emerging, including a domestic reciprocal exchange, risk retention groups (RRGs) and captives. How do these alternatives compare to traditional insurance, and what should physicians expect from participation in an alternative risk mechanism?

Effectively responding to billing questions

Even the most honest and scrupulous of practices can find themselves answering questions regarding their billing for services. It is more important than ever that physicians try to avoid any allegations of personal financial benefit, and even fraud or abuse, by appropriately responding when questions about their billing arise.

Crackdown on Rx industry affects physicians

Your dealings with pharmaceutical companies will no longer be business as usual. The government will carefully scrutinize arrangements that have long been standard operating procedure in such relationships.

Wage & hour rules for medical practices

The Fair Labor Standards Act (FLSA) has been around since the 1930s, yet misconceptions about its rules persist in many medical practices. Here are some basic concepts to keep your practice on the up and up

HIPAA countdown for physicians

While HIPAA poses a compliance challenge for physicians, recent modifications to HIPAA's privacy requirements provide some clarification to assist in compliance efforts. This article briefly recaps the status of the regulations, describes a couple of the recent privacy modifications that may be helpful and suggests some compliance priorities.

What to do when a lawsuit is filed

Having a professional liability claim is like a statistical equation in which certain factors affect the outcome. You are an important part of that equation in so many ways.

Patient safety reporting requirements

Health care workers who reasonably believe that a "serious event or incident" has occurred must report it in accordance with the Patient Safety Plan. Reporting the filing of a medical malpractice action is also a new requirement

Medicare payment for physician assistants

The services of PAs are reimbursable under Medicare rules, but physicians must be mindful of their limitations and must be cognizant of the requirements for physician supervision of PAs imposed by state licensing laws.

What is medical necessity?

Claims for services that are not medically necessary will be denied, but not getting paid isn't the only risk.

Advanced beneficiary notice rules

These new rules clarify how and when ABNs must be used, the form an effective ABN must take, and what physicians can do when beneficiaries are unable or unwilling to sign an ABN.

Physician termination agreements put out fires

If a departing physician joins a competitor or sets up a new practice in the vicinity, suspicions abound that he or she will solicit practice patients and referral sources, steal patient lists, or disparage the practice.

Renegotiating employment relationships

As physician practice contracts come up for renewal, health systems are being selective in offering renewals to those practices and physicians that they believe are most advantageous to retain as employees and seeking to part company with the less profitable practices on good terms.

Oversight of ambulatory surgical procedures

With the growth in the types and numbers of ambulatory care procedures that can be performed without an inpatient admission, so too have arisen a number of questions about the regulatory oversight imposed when such procedures--particularly those that might be classified as surgical procedures--are performed.

Provider misidentification can be costly

Misidentifying the provider who actually rendered services could establish civil false claims or criminal liability, or an overpayment and recoupment action.

Developing personnel policies that work

By structuring clear employment policies now, and communicating these policies to your employees, your practice will hopefully avoid employment-related liability claims.

Demystifying HIPAA for physician practices

Covered entities are required to develop policies and procedures, consent forms and authorization forms for the disclosure of Private Health Information.

HHS relaxes Medicare 'incident to' rules

The Final Rule clarifies certain incident to billing requirements and recognizes that auxiliary personnel providing an incident to benefit may be an employee, leased employee, or independent contractor and may provide services incident to the services of physicians who employ or contract with them or who are employees or independent contractors of the same entity.

OIG 2002 work plan's focus on physicians

The OIG Work Plan provides health care providers with an annual warning as to the areas in which the OIG will be focusing in the upcoming year.

Physician disability insurance benefits update

Many disability insurance companies, due to poor sales revenue and declining profits, have turned to re-engineering claims practices with an emphasis on shortening the duration of a claim, reducing the liability acceptance rate and increasing claim terminations.

The Occupational Safety and Health Administration has been busy issuing regulations, compliance directives and guidance surrounding two separate issues: new requirements aimed at preventing needlestick injuries and revised regulations dealing with recordkeeping of workplace injuries and illnesses. OSHA's latest compliance directive clarifies how these separate initiatives will interact, and physicians in private practice will be substantially affected.

When a physician may refuse to treat a patient

While the physician may withdraw from the physician/patient relationship under certain circumstances, the physician cannot just say "no" to providing the patient further care.

Fraud enforcement of Rx marketing practices

The promotional activities of drug and device companies--and the responses of health care professionals to these promotions--are under close scrutiny from enforcement agencies. Physicians and hospitals should acquaint themselves with the various initiatives under way and review their own practices against the ever-stricter standards.

New life for MD-hospital joint ventures

The regulatory environment is now ripe for hospital-physician ASC joint venture arrangements. A new ruling clarifies how a non-profit health care system can participate in an ancillary for-profit joint venture while maintaining its tax-exempt and public charity status.

Justice Dept. OKs third party messenger model

A proposed consent decree filed by the Department of Justice has further validated the use of the third-party messenger model as a means of collectively dealing with managed care contracting while avoiding antitrust scrutiny. The messenger model will come under scrutiny when it is used principally to strengthen the bargaining power of physician group participants, but it may be used appropriately to facilitate information exchange between plans and physicians, thereby enhancing the negotiation process by independent groups.

Swinging pendulum of peer review immunity

A physician subjected to peer review may have little chance of surviving unless early and aggressive measures are taken, facilitated by an understanding the case law and limitations on judicial remedies.

Shareholder status & compensation policy

A recent court decision should serve as a wake-up call for physician practices to analyze their compensation policies. This decision raises the specter that the IRS may now begin reviewing distributions by physician corporations more closely.

Giving expert opinion in court

Physicians who make the best expert witnesses are those who do so occasionally, have unique expertise and get involved because they realize the true importance of the task. Here are guidelines on what to expect.

Opportunities for joint ventured imaging services

Hospital Outpatient Prospective Payment System (HOPPS) implementation may have important ramifications for imaging services heretofore delivered primarily in hospitals. More radiology procedures may well be shifted out of the hospital setting and some hospitals may see the advantages of working with radiology groups on outpatient diagnostic imaging center joint ventures.

Structuring physician-chiropractor relationships

By working together, physicians can add valuable expertise to their practices, share their administrative burdens and limit the necessity of outside patient referrals, lowering their costs and expanding their revenue. Like most new endeavors, however, the decision of whether and how MDs, DOs and DCs should enter into multidisciplinary practices is ripe with legal aspects that must be carefully considered

Disciplinary actions against physicians

A professional's candid but carefully worded explanation of an embarrassing situation will serve him or her far better than any attempt to hide the information. At the first hint of a problem, the professional is wise to proactively seek a creative way to resolve the situation.

New Medicare appeal process

Under the new procedure, reconsideration of claims will be heard by independent external contractors no longer bound by local carriers’ medical review policies.

OIG approves hospital-physician gainsharing

Gainsharing's surprise recovery came in the form of an Advisory Opinion issued by the OIG. Although the OIG reiterated its concerns regarding the potential adverse affects of gainsharing on patient care and its potential for disguising payments for referrals, it permitted the hospital and physicians to enter into the carefully structured cost-sharing arrangement proposed by the requestors.

Legal obstacles to tort reform in Pa.

The medical professional liability crisis, with its spiraling liability insurance costs and exorbitant jury verdicts, has sparked a renewed and vigorous effort to demand legislative action on tort reform. In Pennsylvania there have been and continue to be obstacles to the enactment of tort reform. The law in Pennsylvania presently provides little guidance and wide latitude to juries in determining damage awards.

Advantages and risks of voluntary disclosures

Knowing which Medicare billing errors to disclose, when, and to whom is critical. Unfortunately, there is no guarantee that any form of disclosure will be 100 percent effective in avoiding or minimizing penalties.

IRS Interim Tax Sanctions for physicians

Examples of transactions affecting physicians that may be subject to this tax are practice sales, practice divestitures, employment arrangements, medical director agreements, leases, practice plans, and independent contractor arrangements.

Stark II and physicians' outside relationships

The Stark law applies to both a physician's financial relationships with his medical practice to which he makes referrals, and to a physician's direct or indirect financial relationships with outside entities, such as hospitals, to which the physician refer

Preliminary HIPAA compliance recommendations

With the general principle of "scalability" in mind, physicians and physician groups can take initial steps toward compliance with the new Privacy Standards.

In-office ancillary services under Stark II

HCFA has attempted to broaden the in-office ancillary services exception through the liberalization of the supervision requirements, easing the criteria for qualifying as a group practice, and permitting separate cost centers within a group.

Antitrust issues confronting physicians

The cornerstone of any response to the malpractice crisis must either be in the nature of group lobbying activities or individual decisions that may be preceded or followed by limited forms of coordinated activities. Physicians of the same specialty must be cognizant at all times of the need not to reach agreements that limit each other's individual economic actions, but they can take advantage of the opportunity to coordinate a response to individual actions that is consistent with good professional practice.

Protecting your disability insurance benefits

It is important to have full knowledge and understanding of your disability contract and of all issues in order to protect your rights and entitlements. It is equally important to know the process of a claim and receive guidance in negotiating the potential problems and issues that may occur.

Effective patient-clinician communication

Patients know that communication matters, and it is often poor communication in the face of a bad outcome that initiates legal action by the patient turned plaintiff.

Making non-compete agreements work

Whatever reluctance your practice may feel, the reality is that you could face real economic challenges if a physician leaves your practice only to open a competing office in your neighborhood.

Pa. physician reinstated under HMO laws

Analysis of the first Pennsylvania judicial decision in which a court has determined that due process rights may apply to a physician when that physician is de-selected from an HMO provider panel.

OIG compliance guidance  

HHS' Office of Inspector General has issued its final "Compliance Program Guidance for Individual and Small Group Physician Practices" to help protect doctors from Medicare Fraud & Abuse prosecution. We offer some guidance on the guidance, in five easy pieces.

Redistributing health care's power imbalance

Ill-equipped to undertake systemic health care reform directed at achieving greater power, physicians should consider radical, long-term proposals that foster a more equitable distribution of power at the state and federal levels.

Physicians, the law and professional courtesy

The legality of the well-honed tradition of professional courtesy has been called into question due to an upsurge in government's efforts to ensure accurate billing of claims, new federal laws addressing physician referral and patient relationships and the novel application of existing laws. Perhaps even more unfortunate, no one clear viewpoint has arisen as to its continuing legal viability.

Civil enforcement of fraud & abuse laws

With increasing frequency, courts are being called upon to evaluate the legality of relationships between providers and third-parties in the context of civil litigation. The facts and outcome in Zimmer illustrate a number of important observations that derive from the line of cases involving civil enforcement of the fraud and abuse laws.

Considerations when retiring from practice

The legal and business issues which a retiring physician must resolve will vary depending upon their practice arrangement: sole shareholder, partner in a practice or employed physician.

MD online rating raise concerns

Physicians are rightfully concerned that unfiltered access to online ratings of them without appropriate safeguards may be detrimental to informed patient decision making, and may have distorting effects on patient access to care.

HMO liability set back by Supreme Court ruling

An HMO and its physicians cannot be sued in federal court for breaching their fiduciary duties to patients when they implement a managed care program in which the physicians receive financial incentives to contain costs.

OIG's draft compliance program for physicians

The draft compliance program guidance will likely become the standard of care for all physician practices and those practices without some formal plan will be extremely vulnerable when responding to any third party audit for billing purposes

Fraud & abuse regulation of health Web sites

The same characteristics that define Internet e-health commerce are also giving rise to increased scrutiny by government enforcement agencies. The U.S. Department of Justice has started to expand enforcement activities in matters related to e-health web sites for both HCFA and FDA.

All-products clauses in provider contracts

The aggressive use of all-products clauses in managed care participation agreements, sometimes referred to as "cram-down," is becoming the focus of increased scrutiny as insurers use them more coercively to build and retain their physician networks across product lines.

OIG fraud alert for MD office space rental

The OIG’s basic concern is that rent paid by physicians to other physicians who refer patients to them may be disguised kickbacks paid to the physician-landlords to induce referrals

Liability for electronic medical communications

The emergence of e-mail communication in the delivery of patient care, although offering significant benefits, presents new legal and ethical challenges to physicians. If physicians are going to integrate electronic messaging systems into their practices, they need to be aware of the unique issues pertaining to such systems, inform patients of the relevant confidentiality, security and privacy issues presented by electronic medical communications and adopt appropriate policies, procedures and safeguards to meet the obligations associated with the use of such technology.

Unionization of interns, residents and fellows

The NLRB has concluded that interns, residents and fellows qualify as employees under the National Labor Relations Act. There is little question that the decision will have an enormous impact on the unionization of teaching hospitals.

More safe harbor regulations for physicians

In addition to adding several new Safe Harbor Regulations, the regulations published by the OIG on November 19, 1999 revised several of the existing Safe Harbor Regulations that are relevant to physician practices.

ERISA and disclosure of financial incentives

Breach of fiduciary duty occurs when physicians delay providing necessary treatment to or withhold administering proper care to plan beneficiaries for the sole purpose of increasing their bonuses. Analysis of the Herdrich case and other case law developments.

ERISA and disclosure of financial incentives

Breach of fiduciary duty occurs when physicians delay providing necessary treatment to or withhold administering proper care to plan beneficiaries for the sole purpose of increasing their bonuses. Analysis of the Herdrich case and other case law developments.

Safe harbors for ambulatory surgical centers

Physicians can now participate in the burgeoning Ambulatory Surgical Center marketplace as investors and protect themselves from violating the Anti-Kickback Statute

Responsibilities to patients of insolvent MCOs

If a physician is contractually or statutorily obligated to continue treatment of patients of an insolvent PPO or HMO, he or she must do so or face exposure to liability and possibly licensure discipline.

New federal confidentiality rules

The Department of Health and Human Services issued proposed regulations dealing with the confidentiality of medical records electronically transmitted or electronically stored which, when final, will dwarf Y2K compliance efforts. Thus, the health care industry must begin now to brace itself for "Y2K2," the sequel

The expansion of APRN scope of practice

HB 50 would have two clear effects: (1) to place the Advanced Practice Registered Nurse’s scope of practice on par with the unrestricted practice of medicine and (2) to provide them with extensive prescriptive authority.

Responding in the wrong fashion risks contempt orders or a patient lawsuit. Consider rules that allow the physician to assess the situation and proceed in a lawful manner sometimes without consulting counsel.

New peer review confidentiality issues

Physicians in Pennsylvania now have the means to access documentation or recordings of their peer review proceedings, which should make it easier to substantiate allegations of bad faith and improper motive of the peer review committee members and to overcome the presumption of immunity.

IRS guidance on physician recruitment

The IRS’ Private Letter Ruling provides guidance on a number of physician recruitment regulations, including whether a hospital can assist an existing medical practice recruit a new physician and what are the limitations of "cross-town" recruitment.

Physician-hospital gainsharing arrangements

How can gainsharing programs be designed or existing programs untangled to comply with the OIG’s Special Advisory Bulletin outlawing traditional gainsharing arrangements?

Be wary of OIG's exclusionary authority

The Office of Inspector General’s exclusion authority is quite broad and extends far beyond fraudulent billing and unprofessional conduct

Stricter billing contracts ahead for Medicare

The OIG identified 17 specific risk areas as particularly appropriate for compliance focus, all of which potentially violate Medicare and Medicaid laws.

Liability for failing to follow advanced directives

Physicians and health care institutions that fail to adhere to their patients’ advance directives can be sued under various theories, including negligence and battery.

Physician duty to warn third parties

There are a string of Pennsylvania cases addressing the issue of when a physician may have an obligation to a non-patient third party in the realms of mental health care and communicable disease transmission.

Liability exposure in a managed care environment

The managed care environment is fraught with liability risk right now, but exposure can be reduced in many cases without operational disruption.

Choosing a professional legal entity

The ideal legal entity for a medical practice would shield physicians personally from practice liability, be nontaxable and be free of requirements, restrictions and limitations in co-ownership arrangements, formation and administration. Most of these objectives can be achieved in whole or in part.

Self-referrals under Pa. Worker's Comp Act

Many insurance companies have begun to deny claims for appropriate ancillary services based on the holding of the Commonwealth Court in the Three Rivers case.

Telemedicine legalities for Pa. physicians

A physician’s use of telemedicine poses a variety of new risks and questions of liability which do not occur in traditional medicine.

Employment law challenges for MD practices

Working against the physician group in the employment law area is the perception that the medical practice is a "small" employer and so is exempt from many of the federal and state laws governing employees.

Avoiding legal landmines in MD compensation

Simple income division has shown itself to be problematic. Increasingly, practices are moving towards developing a compensation plan that accounts for the various contributions each physician makes to the group.

Terminating patient relationships appropriately

If done incorrectly, patient discharge can lead to claims of abandonment. Good documentation reduces the potential of a malpractice claim.

MD liability for home care & DME certifications

In a new Fraud Alert, the OIG expresses concern that some physicians are inappropriately ordering home health care and durable medical equipment for Medicare patients, and outlines the protocols they should follow for certifying the medical necessity of those items and services.

ERISA protection gone for HMOs in PA

Now, when a Pennsylvania physician and HMO are named in a malpractice suit in state court for the negligent provision of medical care, the managed care plan will remain in the case as a co-defendant.

MD protection and advocay under Act 68

The Act provides protection for physician interests and increases the opportunity for exercise of independent clinical judgment.

MD credentialing issues under the PA HMO Act

Providers should know when the law applies, what credentialing restrictions are placed on managed care organizations, what rights the providers are afforded and what are the limitations of those rights.

HMO liability presents risks to physicians

The physician may not only be subject to additional litigation by being joined in a suit or sued after a final determination of vicarious liability on the part of the HMO, but may also find himself/herself without the protection of insurance.

Staff privilege denial and disability discrimination

A disabled physician can sue a hospital that strips him of staff privileges under the public accommodation provision of Title III of the Americans with Disabilities Act.

Your rights after termination without cause

The exercise of "without cause" termination rights is truly a double-edged sword for managed care organizations and practitioners alike.

Challenging Blues medical necessity denials

Physicians who have had claims denied or recoupment demanded by Blue Shield have the right now to initiate litigation in the physician’s local county court.

Limitations of PSOs in Medicare risk contracts

Through a properly structured PSO, providers can now directly undertake Medicare risk contracts. In reality, it seems likely that few if any PSOs will be capable of exploiting this opportunity

Third party messenger antitrust problems

Some forms of physician collaboration are permissible under antitrust law when negotiating with payers, but must be adhered to in practice and not just on paper.

Do unique identifiers violate patient privacy?

Maintaining the confidentiality of health information should not impede progress towards the development of a system within which health information may be effectively exchanged.

Enforcement of your non-compete agreement

In determining whether non-compete agreements are legally enforceable, physicians would do well to consider the following six basic considerations

How to sever your practice from Allegheny

Once you decide to leave, time is your enemy. You need to be making plans now to transition your practice.

Using physician assistants properly

Lack of appropriate supervision not only results in potential tort liability of the practice, but also affects reimbursement for services provided by the physician assistant.

Legalities of a telephone nurse triage system

According to the definition of a diagnosis, when nurses use a computer checklist to determine the nature and extent of a medical problem, they are identifying an illness and giving medical advice.

Private Medicare contracting

A closer inspection leads to the conclusion that the Balanced Budget Act of 1997 likely will not promote wide-scale private Medicare contracting.

Inspector General's 1998 work plan

The OIG’s 1998 Work Plan describes numerous projects, including program audits, program inspections and investigative initiatives it plans to perform.

Movement on vicarious HMO liability

For the first time, a federal court has specifically extended vicarious liability principles to an HMO, which made it liable for negligent acts of a physician.

Your first employment contract

The majority of residents in their first year of training will join an established private practice, work for an HMO or be employed by a health institution or system. Here’s how they can scrutinize the major provisions found in a typical contract

Practice management fee structures

An opinion released by the Office of Inspector General raises significant questions regarding the validity of common payment mechanisms under Physician Practice Management contracts.

Reassignment of Medicare billing

Medical groups commonly enter into independent contractor relationships with specialists, billing for their services through reassignment of Medicare benefit payments. But physicians must ensure that their reassignment practices do not run afoul of HCFA’s intent to enforce prohibitions against some forms of reassignment

A prescription for compliance programs

The scope of federal and state fraud and abuse enforcement efforts are steadily increasing nationwide, confronting providers with criminal, civil and administrative sanctions. A well-designed compliance plan can deter improper conduct and can identify it before much damage can be done.

Prescribing drugs as a learned intermediary

Consider your legal responsibilities and liabilities when prescribing drug combinations

New PA legislation protects physician IRAs

Physicians devote considerable attention to the timing and amount of contributions to their IRAs, but often miss a factor essential to their well-being: the ability of creditors to go after plan assets.

Legal issues of physician unionization

Seemingly inconsistent rulings on the legitimacy of physician unions do suggest a coherent list of issues. Follow some of the recent cases ruled on by the NLRB.

Satisfying Stark II group practice regs

Changes have been proposed for Stark II regulations on physician group referrals to ancillary services. Some of the proposals may nullify common strategies to meet referral requirements.

Physician supervision of diagnostic tests

New regulations specify three levels of required physician supervision for diagnostic tests: General, Direct and Personal

Policing billing for Medicare audits

A physician or practice that receives an audit notice from Xact Medical Services should take the matter seriously, and respond in a way that demonstrates medical necessity in a detailed fashion

Coping with litigation stress

Malpractice suits are generally experienced as an assault on a physician’s competence and integrity. While they can’t choose whether to be sued, physicians can choose how to respond to a malpractice complaint.

Ending failed partnerships

The termination of a physician partner or associate is one of the most difficult things that could happen in a group, even when it is properly handled.

Genetic testing law

The problem of rapidly changing and significant clinical information requiring special use restrictions is not unprecedented. The case of genetic testing is presented in detail.

Medicare chart documentation

The most effective preventive risk management program for physicians is to maintain records from which anyone can determine what patient services were provided and to properly code the bills derived from those records. Some advice from former government insiders.

Patent infringement liability changes

Medical patent law has changed recently. Will you or your colleagues now violate the law by using a certain medical procedure or device? Sift through some of the key statutory changes.

Sale of a nonprofit: Obligations and legalities

Duties of a board of directors, federal and state safeguards, and charitable asset requirements physicians should know, particularly those who are board members of a nonprofit contemplating selling their operating assets to for-profit businesses.

Avoiding liability when HMOs refuse to pay

Physicians remain a favorite target in malpractice cases involving denial of treatment or referrals by managed care companies. Judicious record-keeping of office consultation, use of patient consent forms and investigation of HMO policies and track records are discussed as strategies to minimize your exposure to managed care company liability.

Failure to abide by key principles when contracting with HMOs may have you sacrificed on the altar of the new health care economy—with the sacrifice being performed by the high priest of bureaucracy.

The increasing incidence of latex allergy has accelerated with the demand for gloves prompted by the spread of the HIV virus. Understand the nature of this growing problem and the ways to insulate your staff and yourself from it.

Expanding technical capabilities of vendors and users of health care information require serious legal considerations regarding the protection of electronically stored and retrieved information. A summary of Pennsylvania’s statutory and regulatory standards of confidentiality, as well as individual privacy laws.

Some of the more common areas of difficulty are: specific protections of buyer and seller, software license agreements and retirement packages. Consider some advice for negotiating each of these issues.

They remain a fixture in physician employment contracts, shareholder and asset purchase agreements. Physicians must be more attentive than ever to the nature and possible effect of restrictive covenants in their agreements. Courts analyze validity of covenants, reasonableness of their restrictions and remedies for their breach.

Do you have a duty to protect others who come into contact with your patient who has a contagious disease? Does it matter whether or not the disease is a "reportable" one? The issue of liability to a third party is becoming more timely as new viruses and drug-resistant strains appear.

Many issues could arise upon leaving a medical practice. It is essential to negotiate the