The healthcare industry is highly regulated, and health lawyers play a valuable role in guiding healthcare providers through the myriad of regulations to which they are subject. One of the most active areas of the healthcare law is regulatory work. Most healthcare providers are required to have a license in order to render services to patients, including physicians, nurses, physician extenders (i.e., physician assistants, nurse practitioners), physical therapists and other rehab specialists, imaging centers, home health agencies, hospitals, nursing homes, assisted living facilities, long-term care facilities, health maintenance organizations (“HMOs”), and many other health care providers and payors. The licensing statutes. regulations and rules, as well as many other federal and state laws and regulations, also spell out, among other things, how services are to be rendered and documented; how bills for services are to completed with supporting documentation and delivered to government and commercial payors ( e.g., insurance companies, HMOs, PPOs, and other payors); how health care facilities must be built, supplied, and staffed; how medicines and controlled substances can be dispenses, administered and prescribed; the privacy and security of patient records; and what to do when there is a breach of the privacy of patient records.
Healthcare law also addresses both federal and state reimbursement issues. These involve assisting providers to be properly registered with government payors (e.g., Medicare, Medicaid, TriCare, Workers’ Compensation) and credentialed/contracted with private payors (and dealing with payments when a provider is “out of network”). It also involves many complicated reimbursement rules, which address how to code diagnoses to support a plan of treatment, whether certain treatments are “covered” by payors, what to do when a treatment is not covered, and helping physicians who choose to “opt out” of Medicare and other payors (this often is referred to as “concierge medicine”).
Another active area of healthcare law involves counseling providers on how they can work together in (and be paid through) joint ventures, co-management arrangements, professional services arrangements, employment and independent contractor arrangements, and the like. This area includes counseling on how to comply with (and defensing providers when they are audited or accused of violating) the federal Medicare and Medicaid Anti-Kickback Statute (and its Safe Harbor Regulations), Civil Money Penalties law, False Claims Act, and the so-called Stark law prohibition on referrals for certain designated health services, as well as many similar (and sometimes broader) state laws. These laws prohibit referrals by physicians and other providers in some cases and prohibit billing for services that are rendered in arrangements that violate these laws. Some of them are criminal laws, while others are civil laws that carry significant penalties. Some violations can result in imprisonment and termination of a provider’s ability to participate in Medicare, Medicaid and other federal health care plans. Violations also can lead to a loss of license from the state in which the provider practices.
Most Common Health Care Law Issues
1. Regulatory Issues:
Make sure that people are appropriately licensed and accredited to provide the services they provide. Licensing is by state government entities, while accreditation is by private agencies or bodies that certify a healthcare providers’ abilities, such as The Joint Commission on Accreditation of Health Care Organizations.
2. Relationships between Providers:
This would include both employers dealing with professional employees and providers dealing with each other (e.g., joint ventures, co-management arrangements, professional services arrangements, independent practice associations, management services organizations, preferred provider organizations, exclusive provider organizations, and the like).
3. Payor Issues:
Making sure that entities and individuals are registered to be able to provide services and be paid (commonly called “reimbursed”) by payors, both government and private. This also covers a myriad of questions about whether or not payment is available for specific services that a provider determines are in the best medical interests of a patient but that may not be specifically “covered” by a payor or that may be deemed by the payor to be “experimental.”
4. Dealing with Other Payor Issues:
Dealing with payors where they claim the provider used the wrong codes, overcharged, or failed to document the basis of a diagnosis or what treatment was rendered (this often is called “if it is not in the patient record, it did not happen”).
5. Risk Management:
Risk management is helping providers to be able to deal with the risks they face in rendering professional services. This involves regulatory advising (e.g., states often regulate the amount of professional liability insurance that a provider must carry), best practices advising (e.g., what is the proper level of professional liability insurance to carry?), and implementing compliance procedures and policies to ensure that the provider is acting in accordance with the various laws that apply (e.g., Medicare and Medicaid Anti-Kickback Statute, False Claims Act, Stark, HIPAA, and the many other laws that govern healthcare).
Role of a Healthcare Law Attorney
I tell my clients that I recognize that I am a “cost center” for them, but my legal philosophy follows Ben Franklin’s adage that “an ounce of prevention is worth a pound of cure.” In other words, if the lawyer does his or her job correctly, then the provider can save money in the long-run. Proper planning at the outset can make a world of difference in the event of a lawsuit, payor audit, government investigation or civil or criminal charge from the government. The health lawyer is the first line of defense for a provider in risk management and general business management, to ensure that the provider is properly positioned and properly protected to be able to render services with the least risk.
It may cost thousands of dollars to set up a proper legal entity, joint venture or other arrangement or to negotiate contracts upfront. However, that upfront cost must be compared to the hundreds of thousands of dollars that could be spent to defend against a lawsuit, payor audit or government investigation. It is not just the penalties to be paid to the other party but also the cost, time and personal anxiety of litigation. So, even though we attorneys are cost centers, we also bring a valuable service to our clients, along with peace of mind.