monday, may 11, 2009 health law S1
H E A LT H L AW
L LAW Ticked
S p e c i a l S e c t i o n o f t h e C o n n e c t i c u t L a w Tr i b u n e
t h e C o n n e c t i c u t L a w Tr i b u n e
Feds enlist extra help in identifying
improper Medicare payments
By PATRICK J. MONAHAN II
and WILHELMINA A. de HARDER
I n 2005, the Centers for medicare & medicaid Services
(CmS) introduced a three-year demonstration project
in California, Florida, and new york using Recovery au-
dit Contractors (RaCs) to assist medicare in identifying
improper payments made to health care providers.
These private contractors were paid a contingent fee Attorney general
based on a percentage of overpayments recovered. The
purpose of the demonstration project was to determine challenges controversial
whether the use of RaCs would be a cost-effective meth-
od to discover and correct improper medicare payments.
Lyme disease guidelines
as of march 2008, RaCs identified more than $1.03 bil-
lion in medicare improper payments (from a total of $317
billion in medicare claim payments available for review)
at a cost of 20 cents for each dollar collected.
RaCs analyze claims data using their proprietary tech-
niques to identify claims that either clearly contain errors
or likely contain errors, resulting in improper payments. By ELLIOTT B. POLLACK and CHRISTINE COLLYER
RaC review claims involving physicians, hospitals,
skilled nursing facilities, inpatient rehabilitation, clinical
laboratories, and durable medical equipment. Improper
payments generally result from lack of documentation to
a generation ago, most physicians would have doubted that antitrust rules and the
clinical practice of medicine could intersect. attorneys were of the same view
about their profession until 1975 when the U.S. Supreme Court decided Goldfarb v. Vir-
support the service/claim; non-covered services (includ-
ing services that are not reasonable and necessary); incor- ginia State Bar and threw out minimum fee schedules on restraint of trade grounds.
rectly coded services; and duplicate services.
In the case of improper overpayments resulting from now, fast-forward 31 years to november 2006 when Connecticut attorney General
clear errors, RaCs use a process called “automated re-
view” to identify and recoup the overpayment amounts.
Richard Blumenthal initiated an investigation of the Infectious diseases Society of
For instance, RaCs could use information systems to america (IdSa). more particularly, the attorney general sought information about
search for claims for two or more identical surgical the development process of the IdSa’s 2000 and 2006 guidelines on the diagnosis
procedures for the same beneficiary on the same day at
the same hospital. as duplicate surgical procedures are
and treatment of lyme disease.
clearly not medically necessary, the hospital should not
have billed twice and should not have been paid twice the investigation did not attack the science behind the guidelines but, rather,
by the medicare claims processing contractor. sought to determine whether IdSa engaged in exclusionary and monopolistic con-
RaCs perform an automated review only when the
duct during their development. Blumenthal’s inquiry was whether IdSa excluded
improper payment was obvious, such as a duplicate
SEE PAGE 6 See PaGe 4
Giving Birth On Alert Refusal Rights Crackdown On Getting Lost
To Controversy For Red Flags For Providers? ‘Exclusion Billing’ In Translation
more and more couples who don’t be surprised if your Forty-seven states, including The federal government keeps a list Under federal law, most health
cannot conceive are using surrogate physician’s office requests photo Connecticut, have some sort of of health care professionals and or- care providers that take part in
parents to make their dreams of a identification at your next visit. conscience clause legislation that ganizations that are excluded from federal reimbursement programs
family a reality. But state courts are Federal law requires businesses, protects the rights of health care billing medicare, medicaid and must find ways to effectively
in a state of disarray regarding including many health care providers that refuse to provide other federal health care programs. communicate with patients who
the pre-birth agreements that providers, to establish identity certain procedures or services for Federal authorities are pursuing are hearing impaired or who
accompany these arrangements. theft prevention programs. moral or religious reasons. those who continue to bill. speak limited english.
SEE PAGE 2 SEE PAGE 4 SEE PAGE 4 SEE PAGE 7 SEE PAGE 8
S2 health law monday, may 11, 2009
Surrogate Parenting Gives Birth To Controversy
the past six months, the state department of parents lived dress this issue is though the legislative pro-
Courts divided on how to health has objected to the Superior Court is- in Romania, cess and not the courts. If the legislature does
suing orders unless the intended parents are they were un- choose to address this issue, the constituency
handle cutting-edge genetically related to the child or the children. able to obtain can then decide how best to clarify this legisla-
reproduction issue at the Superior Court level, there is a split of jurisdiction tion as opposed to judges, clerks and lawyers
authority regarding whether Conn. Gen. Stat. for a co- who attempt to infer intent through legislative
§7-48a, as written, allows this form of relief. The parent adop- histories. If the statute is not clarified, numer-
By CHRISTOPHER M. GALLAGHER Connecticut attorney General’s office, through tion or enter ous issues will continue to serve as problems
the department of health and Judge John d. into a same for parties to a gestational carrier agreement.
a gestational carrier agreement is an agree-
ment covering the birth of a child through
surrogacy, wherein an individual or a couple
Boland in Oleski v. Hynes (2008), has advocated
that the law only allows for a genetic parent to
be named on a replacement birth certificate and
This office has lobbied legislators to clarify
Conn. Gen. Stat. §7-48a. Rep. Thomas drew
(d-Fairfield) introduced house Bill 1137
enters into an agreement with a woman to that the correct procedure for a non-genetic law. accord- which sought to clarify this law. The bill would
carry and give birth to their child. parent to obtain parental rights is through a co- ingly, the authorize a court of competent jurisdiction to
In some cases, the two intended parents are parent adoption in the Probate Court. non-genetic make a finding of intended parentage for par-
the genetically related parents of the child to to the contrary, Judge lloyd Cutsumpas, in father has no ents of children conceived through assisted
be born. In other cases, the intended parent or Griffiths v. Taylor (2008), and an overwhelm- legal parental Christopher M. reproduction, and pursuant to a gestational
parents use an egg and/or sperm donor and ing number of Superior Court judges have ad- rights until Gallagher carrier agreement. Currently, the bill awaits
therefore, at least one of the intended parents is vocated that Connecticut allows for a finding app el l ate action by the state Senate. hopefully, the leg-
not genetically related to the child to be born. of intended parentage and have signed orders Court rules on the state’s appeal. islature will take action to ensure that courts
In either case, counsel has brought complaints supporting the same. Recently, however, once Until the appellate Court hears argument on are provided with guidance in implementing
seeking the issuance of pre-birth orders pursu- these orders are issued, the state appeals the these matters and issues a decision, no represen- these orders and are not subject to analyzing
ant to Connecticut General Statute §7-48a for ruling of the Superior Court, thereby delaying tations can be made regarding the ability of any and interpreting legislative intent.
genetic and non-genetic intended parents of the implementation of the Superior Court’s attorney to obtain a pre-birth order without the more and more individuals who either
children being carried by gestational carriers. order and leaving the gestational carrier as the matter being appealed. even after the appellate cannot conceive or cannot carry children to
Currently, Connecticut is in a state of dis- legal parent. Court rules, the party denied relief can petition term are utilizing assisted reproductive clinics
array regarding the issuance of these pre- This office currently represents two intended the Supreme Court. In the final analysis, the to make their dreams of a family a reality. to
birth orders by the Superior Court. For about parents at the appellate Court level (See Rafto- time frame for a binding ruling from a higher ignore this new and progressive field of medi-
pol v. Ramey, et al). at the trial court level, Judge court could take more than two years. cine does a disservice to the children conceived
Christopher M. Gallagher is an associate James G. Kenefick, granted the intended par- even with the difference in viewpoints, through this form of technology and the in-
in the law firm of Victoria T. Ferrara P.C., ents’ petition for a pre-birth order and the state both the courts and opposing counsel to these tended parents who seek to raise their children
in Fairfield. subsequently appealed. Because the intended actions agree that the correct manner to ad- in a loving home. n
Watching Out For Those Who Are Incapacitated
agent” are still in full force and effect provided is not specifi- Living Wills
Subtle differences between they were executed before oct. 1, 2006. with cally granted multiple levels of forethought are a telltale
these grandfathered documents, there is no to the con- sign of competent legal work—especially with
‘health care representative’ need, legally speaking, to execute the new ap- servator is regard to a person’s living will. however, what
and ‘conservator’ pointment of health care representative. how- retained by makes that document shine to a lawyer can
ever, practically speaking, hospitals and nurs- the individu- make it unwieldy to a health care provider—
ing homes sometimes look at you cross-eyed al who is free those who apply the meaning of the document
By ANDREW S. KNOTT with an old power of attorney covering health to keep it or in an emergency.
care, so it’s good to have the statutory citation delegate it to Consider this situation: a patient is suf-
w hether an attorney handles estate tax
planning or medicaid planning, both
types of work involve human beings as clients
that validates these documents handy: General
and then there are conservators. when
fering from cardiac arrest and there is a five-
page living will in the chart that has yet to
be consulted. does anyone really think that
who require planning for sickness and inca- explaining to clients the difference between a individual the living will would be consulted before any
pacity. In recent years, our legislature has been conservator and a health care representative, I can execute medical procedures are begun? and leaving
tinkering with statutes covering this subject, quip: “a conservator is a health care represen- a “designa- that aside, at a Connecticut Bar association
causing a lack of understanding of the various tative on steroids.” tion of con- elder law section meeting last year, a hand-
health care documents—even amongst practi- s e r v a t o r,” Andrew S. Knott ful of practitioners mentioned that they
tioners. Key Differences which is a encountered physicians who automatically
let’s start out with the basics: Under cur- For purposes of this article, a conservator of document assumed that a living will was a “do not
rent law, an appointment of health care rep- the person has all the authority of a health care that requests that the probate court appoint Resuscitate/do not Intubate” order, which
resentative is the document that designates representative. The key difference between a particular individual as conservator in the is flat wrong.
who will make medical decisions on anoth- the two is that a conservator is appointed by event the court is inclined to appoint one. Consider another scenario: dad has died,
er’s behalf when that person is no longer ca- the probate court and acts as its agent, while a In fact, the court pretty much has to ap- and mom is failing to the point where she
pable to do so—to the exclusion of powers of health care representative is appointed by the point the designated individual unless there needs 24-hour care. The children move mom
attorney. a power of attorney allows a per- individual and acts as his agent without any is good cause for an alternate appointment. to a nursing home, which would like to see her
son to handle only financial transactions on court involvement. many clients ask why they should have a on dnR/dnI status, but the family disagrees.
behalf of another. This is a departure from additionally, a conservator has a duty to act designation of conservator when they al- The nursing home consults the living will and
the way things were done for many years on behalf of the conserved person whereas the ready are executing an appointment of a interprets it as requiring dnR/dnI status.
when the power of attorney statutory form health care representative has the right, but health care representative. The trite answer each side lawyers up and the issue is forced on
specifically included health care decisions, not the duty, to so act. oftentimes, a conser- to that question is the need for redundancy a probate judge to decide mom’s fate.
and it is still a source of confusion for some. vator is appointed because an existing health due to murphy’s law. In both situations, the living will is inter-
It must be noted, though, that a power of care representative is not exercising his right. It should be noted that whenever a person is preted by someone other than the health care
attorney that included health care decisions But it must be noted that although the ap- fulfilling his role as the medical decision-maker representative—the person for whom the doc-
as well as the old “appointment of health care pointment of a conservator typically trumps – in whatever form – it is emphatically not the ument is meant. It is for these reasons that I
any existing health care representatives in ef- job of such person to substitute his judgment counsel clients to hold onto the living will and
Andrew S. Knott, a partner at Knott & fect, it does not necessarily. The language of for that of the incapacitated person. Rather, he only provide it to the health care representa-
Knott LLC in Cheshire, is co-chair of the Young the probate court’s decree of appointment must work to implement the wishes of the per- tive, so a health care provider takes direction
Lawyers Sections of the Connecticut Bar Asso- should specify the authority which the court son for whom he is making decisions. This is from the health care representative, who in
ciation’s Estates and Probate Committee. grants to the conservator; any authority that where the living will comes into play. turn takes orders from the living will. n
monday, may 11, 2009 health law S3
Helping Consumers Through The Managed Care Mire
newer form of focused, higher-dose radia- S i n c e in an acute hospital for three days prior to
State advocacy office helps tion treatment to prevent further damage to 2001, oha the residential treatment.
Claire’s lungs and heart. The oncologist re- has assisted ■ P.a. 08-171, established a Commission on
insured residents get the quested prior authorization for the treatment more than health equity whose mission is to elimi-
treatment they deserve as required by Claire’s insurer. an approval 8,000 people nate “disparities in health status based on
would guarantee that the insurer would not and returned race, ethnicity and linguistic ability, and
argue that the treatment was not medically $14.5 mil- to improve the quality of health for all of
By VICTORIA VELTRI necessary. a denial would guarantee a de- lion back to the state’s residents.”
lay in treatment at best, or no treatment at c onsu me rs ■ P.a. 08-132, requires insurers to cover
h ealth reform and access to health insur-
ance coverage are the talk of the state
and the country. extending insurance cov-
worst. Claire, like many others before her,
hit a major roadblock. her insurer rejected
the oncologist’s request for prior authoriza-
of care are
therapies for autism spectrum disorders
to the same extent they are covered for
erage to the tens of millions of americans tion for the procedure, calling the procedure last year ■ P.a. 07-75, incorporates a definition of
and the hundreds of thousands of Connecti- experimental and investigational, despite its alone, oha medical necessity into the individual and
cut residents without it is certainly a widely frequent and effective use for repeat cancer saved con- group health insurance statutes.
shared goal—there are multiple bills under patients with organ damage. sumers $5.2 ■ domenici-wellstone mental health Par-
consideration in the state legislature that after oha convinced the insurer to re- Victoria Veltri million with ity act. For more information, see U.S.
would move us much closer to that goal. open Claire’s appeal and to have an appro- an 85 per- Sen. Christopher dodd’s comments in the
nonetheless, we need to make it a prior- priately trained provider review the request cent success rate of getting care denials over- Congressional Record: www.govtrack.us/
ity to focus also on the many inconsistencies based on Claire’s individual circumstances, turned. Referrals come to oha from all areas congress/record.xpd?id=110-s20070918-
and barriers to care faced by consumers who including the compromised status of her heart of the state, from legislators, state agencies, 53&person=300036
are currently insured so we don’t duplicate and lungs, the insurer overturned its denial. our congressional delegation, hospitals, pro- These “mini-fixes” reflected in legislation
our mistakes on a systemic basis. daily, Claire started her focused radiation treatment viders, and, most importantly, from previous must be addressed as we take on a new health
Connecticut’s commercially and publicly in- the next day and is doing very well. consumers. care system. one of oha’s near-term goals will
sured residents struggle to understand their The overriding concern in managed as general counsel for oha, in addition be to outline the access-to-care issues insured
insurance coverage, their financial responsi- health care is whether requested health care to other duties, I have the responsibility of residents now face so that these same issues are
bilities and how to challenge decisions that services or treatments are “medically neces- developing and advocating for the legislative not perpetuated in any future model.
deny medically necessary care. The office of sary.” The concept of medical necessity has agenda that we set each year. while we have In Connecticut, if you or someone you rep-
the healthcare advocate (oha) helps con- been the subject of complex litigation and several pieces of legislation moving through resent is having difficulty selecting an insurance
sumers navigate these confusing processes. multiple pieces of state legislation to protect this year’s legislative session, recently we plan, getting approval for a service, challenging
oha is an independent, non-partisan providers and consumers, and to reinvigo- succeeded in pushing these bills through the a denial or has general questions about health
state agency with one overriding mission: to rate and codify the deference due to health legislature or Congress: care or health care insurance, please call the
provide assistance to consumers who may providers when they render care to patients. ■ P.a. 08-125, eliminates an arcane legal re- State of Connecticut, office of the healthcare
be confused about health care in general and however, at its core it is an individual issue quirement prohibiting coverage for men- advocate (oha) toll-free at 1-866-hmo-4446
affecting individual consumers. tal health residential services unless one or contact us at www.ct.gov/oha for the help or
to be sure, insurers approve the major- is at an acute or crisis level of care and is information you need.
The Office of Healthcare ity of requested treatments. Sadly, however,
Advocate is right in the Claire’s experience with a denial of medically
necessary treatment was repeated over 60,000
middle of the medical times last year for individual health care poli-
necessity, claim denial and cyholders in Connecticut. approximately 17
percent of the 358,000 advance requests for
other health care battles. treatment last year were denied. These statis-
We fight for individuals tics do not include insurers’ other denials of
claims based on a lack of medical necessity
like Claire who face death for services or treatments that do not require
or serious illness. advanced approval. nor do they include data
on claim denials for other reasons such as a
need help in working through managed care patient’s use of an out-of-network provider.
issues. Since its inception, the office has pro- oha is right in the middle of the medical
vided free services to consumers in investi- necessity, claim denial and other health care
gation of their complaints, appealing denials battles. we fight for individuals like Claire
of coverage by insurance plans and assisting who face death or serious illness in the mir-
residents in the selection of plans. oha pur- ror, and whose choices are limited to either
sues legislative or systemic remedies when doing everything they can to get their medi-
individual casework identifies ongoing bar- cally necessary treatment, or going without,
riers to health care. State and national offi- because their insurers fail to look at them
cials, and officials from other states, consult as individuals with unique circumstances.
with our staff on a regular basis to discuss nowadays, an insurer not paying for prom-
emerging federal health care issues and to ised medically necessary care is tantamount
seek our input on proposed legislation. to an actual denial of care.
Cancer Case Increased Demand
one person who was caught in a man- Skyrocketing health care costs, a rough
aged care mire is Claire, a 63-year-old wom- economy, the clamping down on approvals of
an who thought her battle with breast cancer requests for health care coverage, and the esca-
ended more than 15 years ago. Instead, it lating numbers of people requesting coverage
returned with a vengeance and she needed for mental health services, surgical interven-
immediate treatment to save her life. She tions and effective medications have only in-
underwent major surgery, chemotherapy creased demand for the free legal, individual
and radiation during her first go-around, and systemic advocacy services that the office
but one of her lungs and her heart were af- of the healthcare advocate provides to Con-
fected by the massive doses of radiation. her necticut residents. we try each day to restore
new and experienced oncologist suggested a the balance between the consumer’s need for
health care, the provider’s need for respect for
Victoria Veltri is general counsel in the his or her medical judgment and the need to
state’s Office of Healthcare Advocate. control health care costs.
S4 health law monday, may 11, 2009
Providers Must Be On Alert For ‘Red Flags’
regardless of ties that have after the completion of services, including for
New federal law requires size and re- a low risk the balance of medical fees not reimbursed by
gardless of of identity insurance; or allows the creation of payment
policies to prevent whether the theft — for plans after the services have been rendered.
identity theft health care example, If, however, the health care provider re-
provider is health care quires payment in full before or at the time
a for-profit providers of service; or accepts only direct payment
By KRISTIN CONNORS or not-for- who know from medicaid or similar programs; or ac-
and EDWARD SPINELLA profit entity. their patients cepts credit cards as the form of payment,
amidst personally – then the health care provider is not a “credi-
d o not be surprised if your physician’s of-
fice staff requests photo identification at
your next visit. Federal law requires certain
the rule. no
tor” and is not subject to the rule.
a “covered account” is an account used
primarily for personal, family or household
businesses and organizations that extend the rule is tails regard- purposes that involves multiple payments or
credit, which includes many health care pro- written too ing the tem- transactions.
viders, to establish and enforce written iden- broadly, the plate were
tity theft prevention programs. These health FtC has Kristin Connors Edward Spinella immediately ‘Suspicious Documents’
care providers must be on the alert for “red (for a sec- available. Red flags are a “pattern, practice, or spe-
flags” — patterns, practices or specific activi- ond time) delayed enforcement until aug. cific activity that indicates the possible risk
ties that indicate possible identity theft. 1, 2009. on april 30, FtC Chairman Jon Covered Providers of identity theft.” examples of “Red Flags”
The Fair and accurate Credit transac- leibowitz, stated in a press release: “Given The rule is applicable to any entity that include, but are not limited to:
tions act of 2003 (FaCta) directed fi- the ongoing debate about whether Congress meets the definition of “creditor” and main- ■ alerts, notifications or warnings from a
nancial regulatory agencies, including the wrote this provision too broadly, delaying tains “covered accounts.” a “creditor” is de- consumer reporting agency.
Federal trade Commission, to promulgate enforcement of the Red Flags Rule will allow fined as any entity that regularly extends, ■ Suspicious documents, such as a change of
rules regarding the establishment of iden- industries and associations to share guid- renews or continues credit, or arranges for address notice, that is followed by a request
tity theft prevention programs. In novem- ance with their members, provide low-risk others to do so; and includes all entities for new credit or an application that appears
ber 2007, the FtC, along with other agen- entities an opportunity to use the template that regularly permit deferred payments for to have been forged, altered, or reassembled.
cies, issued the “Red Flags Rule” requiring in developing their programs and give Con- goods or services. ■ Suspicious personal identifying informa-
“creditors” and “financial institutions” with gress time to consider the issues further.” The FtC considers a health care provider tion, such as a Social Security number
covered accounts to implement programs The FtC also announced that the agency to be a creditor if the health care provider
to identify, detect and respond to red flags will soon release a “template” to help enti- regularly provides services and bills patients n continued on PAGe 8
n From ticked on PAGE 1 ters for disease Control and Prevention lists that his investigation uncovered “seri- lines to determine whether they should be up-
the IdSa guidelines on its website. In three ous flaws” in IdSa’s guideline process. he dated or revised. none of the panelists who sat
legitimate but contradictory evidence and disciplinary proceedings before the Con- stressed that medical groups, such as IdSa, on the 2006 panel are permitted to serve again.
opinions on the existence of chronic lyme necticut medical examining Board, the de- have both a “legal and moral duty to use ex- IdSa must hold an open application process.
disease. This is believed to be the first time partment of Public health has offered expert acting safeguards and scientific standards.” all applicants are to be screened for potential
a state has relied on antitrust principles to witnesses who espouse the IdSa guidelines The panelists who draft the guidelines must conflicts by the ombudsman approved by the
investigate a medical society’s guideline in its prosecution of physicians who believe be free of conflict, he stated, and should not attorney General’s office.
process. however, it is not the first time in and treat chronic lyme disease. exclude divergent views unless unsupported after the new panel is established, it must
that antitrust law has been used to chal- Blumenthal’s investigation caused a ma- by evidence. These were the very concerns hold an open scientific hearing, which has
lenge a medical entity’s clinical stance. jor stir in the medical community national- of lyme disease activists who brought Id- yet to be scheduled, to consider information
In 1978, dr. Chester wilk and four other ly. Some, like the lyme disease association, Sa’s actions to Blumenthal’s attention and from “interested parties” approved by the at-
chiropractors sued the american medical applauded because it believed that IdSa had who were the catalyst for his investigation. torney general’s office and the ombudsman.
association, among others, alleging Sher- improperly excluded evidence about the ex- Some of the serious flaws uncovered by however, the hearing is not open to the pub-
man act violations because the ama’s rules istence of chronic lyme disease. IdSa sup- the attorney general’s office were: (1) pan- lic — which has raised some eyebrows in the
prohibited allopathic doctors from referring porters argued that Blumenthal overstepped elists with undisclosed financial interests lyme disease community. In lieu of a public
patients to or even coordinating care with his bounds and was improperly interfering were not discovered because IdSa failed hearing, IdSa is required to broadcast the
chiropractors. nine years later, a U.S. district in scientific matters. to conduct a conflict of interest review; (2) hearing on its web site. after the hearing,
Court found that the ama had tried to elimi- panelists refused to consider information the reviewers will decide whether the 2006
nate the chiropractic profession; essentially, it Two Schools Of Thought concerning the existence of chronic lyme guidelines are supported by the evidence.
had orchestrated a group boycott. The court a person unfamiliar with the controversy disease and removed a physician who dis- It is too early to tell whether the “redo”
ordered the ama to revise its rules. The Su- that surrounds lyme disease and chronic agreed with the majority opinion; (3) IdSa demanded by Blumenthal will produce a
preme Court upheld its decision. lyme disease might not understand the blocked appointments of scientists and different result. lyme activists have ex-
It is not unusual for a professional medi- significance of the attorney general’s thrust. physicians who believed in the existence of pressed doubt that it will. The most im-
cal organization to draft clinical guidelines. Briefly, there are two schools of thought on chronic lyme disease by telling them the portant lesson of the attorney general’s/
These guidelines pack a mighty punch be- the diagnosis and treatment of lyme dis- panel was full even though it was later ex- IdSa settlement is that regulators can no
cause they are frequently employed to de- ease. Physicians adhering to the school re- panded; and (4) IdSa appointed a chair- longer be expected to hang back in the face
fine the relevant standard of care. doctors flected in the IdSa guidelines believe that man who was so biased about the non-ex- of exclusionary practices by medical clini-
apply them in their practice and often base lyme disease is easy to diagnose and treat. istence of chronic lyme disease he used his cal standard-setting bodies. The credence
treatment decisions on them. Insurance They contend that short-term antibiotics are position to appoint like-minded individu- given to IdSa’s lyme disease guidelines
companies rely on them to determine cov- the appropriate therapy. They do not believe als without oversight committee approval. by regulatory, reimbursement and profes-
erage and to deny reimbursement. State reg- that chronic lyme disease exists. They stress sional medical groups, coupled with the
ulatory agencies use them in licensure and the importance of positive laboratory tests Credibility Issues hostility showed by IdSa adherents to dif-
disciplinary proceedings against doctors. to confirm a lyme disease diagnosis. These flaws called the guidelines’ credibility fering views, was dramatically exposed by
The IdSa lyme guidelines have had a Physicians subscribing to the school re- into question. IdSa and the attorney general’s the attorney general’s efforts. legislation is
sweeping impact on the diagnosis and treat- flected in the International lyme and asso- office entered into a settlement agreement currently pending at the General assembly
ment of lyme disease, especially in Connecti- ciated diseases Society’s guidelines believe under which IdSa agreed to an extensive re- addressing the lyme disease controversy
cut, a highly endemic area for the disease and that the diagnosis and treatment lyme examination of its 2006 guidelines. a review which will be the subject, if enacted, of a
whose quaint shoreline town gave the disease disease is complex. They maintain chronic panel will be created to “scrutinize” the guide- future article. n
its name. Insurance companies such as Unit- lyme disease is quite prevalent and may
ed healthcare, health net and others regu- require long-term antibiotic treatment, Elliott B. Pollack is a member of Pullman & Comley in Hartford where represents
larly rely on them to dispute the existence of sometimes intravenously. They dispute the health care providers. Christine Collyer is an associate in the firm’s Hartford office where
chronic lyme disease and to deny coverage accuracy and utility of available testing. she handles health care litigation. The authors represent a physician charged by the
for long-term antibiotic treatment. The Cen- on may 1, 2008, Blumenthal announced Department of Public Health with improperly diagnosing and treating Lyme disease.
monday, may 11, 2009 health law S5
Do Health Providers Have ‘Right to Refuse’?
tion appears in the Public health Code, and cal interven- refusing, on religious grounds, to provide in-
‘Conscience clauses’ allow states that “no person shall be required to tion and life- vitro fertilization to same-sex couples. (North
participate in any phase of an abortion that sustaining Coast Women’s Care v. Benitez, Ct. app. 4/1
hospitals to opt out of violates his or her judgment, philosophical, t re at m e nt , d045438).
abortions, other procedures moral or religious beliefs.” (Conn. agen- even if the
cies Reg. § 19-13-d54) Some states (such institutional New Federal Regulations
as arkansas, delaware, and Florida) give an and individ- on aug. 21, 2008, the department of health
By JENNIFER N. WILLCOX unfettered ability to individuals and institu- ual caregiv- and human Services issued a proposed regu-
tions to opt out of any procedure that results ers involved lation that would deny federal funding to any
R ecent stories about pharmacists’ refusal
to provide contraception, and plans by
President Barack obama’s administration
in the “termination of a pregnancy,” while
other states place restrictions on the types
of procedures to which providers can object
hospital, clinic, health plan or other entity that
“subject[s] any institutional or individual health
care entity to discrimination on the basis that
to withdraw last-minute regulations on pro- or the types of institutions that can refuse to the health the health care entity does not provide, pay for,
vider rights of conscience left behind by for- provide treatments. care provid- provide coverage of, or refer for, abortion.”
mer President George w. Bush have put the more recently, states such as arkansas, er’s or facil- an earlier draft of the regulation that was
issue of conscientious objection to health Georgia, mississippi, and South dakota have ity’s right to leaked to the media included language that de-
care treatment in the spotlight. passed laws that explicitly give pharmacists Jennifer N. Willcox conscience fined abortion (for the first time in a federal
technological advances often outpace our the right to refuse to dispense drugs related against the law or regulation) as anything that interferes
ability to develop ethical guidelines about how to contraception, while others (California individual patient’s interests, and require with a fertilized egg after conception. That
these technologies will be put to work, and the and Illinois) have passed laws mandating that that the objecting provider assist in transfer- language was deleted, but commentators said
health care system must grapple with the colli- pharmacies or institutions fill or dispense such ring the patient to another provider that will that the final regulations were broad enough
sion between the individual rights of providers prescriptions. carry out the patient’s wishes. (See Brophy v. to protect health care providers who decline
and the health care needs of patients. Some states, including Connecticut, re- New England Sinai Hospital Inc., 497 n.e.2d to provide oral contraception, the “morning
quire hospitals or other facilities to provide the 626,633 (mass. 1986)). Recent cases also after” pill and other types of contraception.
Background “morning after pill” to rape victims who pres- have imposed damages for failure to follow Industry officials and state and federal legis-
almost before the ink dried on the Roe ent for treatment, as long as certain require- a patient’s instructions that were contrary to lators called for the rule to be withdrawn, and
v. Wade decision, Congress responded in ments are met. (See Conn. Gen. Stat. § 19a-11e the moral or ethical beliefs of the provider. In Connecticut attorney General Richard Blu-
1973 with the Church amendment, which (Public act 07-24)). texas, a jury imposed a $42 million verdict menthal brought suit to block its implemen-
provides that the receipt of federal funds in a few states have expressly adopted “con- on a hospital for disregarding parental objec- tation. Shortly after obama took office, the
various health programs does not require science protections” that go beyond abortion tions and providing life-sustaining treatment department of health and human Services
hospitals or individuals to participate in and contraception. maryland’s “conscience to a premature infant born after 23 weeks of issued a proposal that would rescind the pro-
abortions if they object on moral or religious clause” legislation extends to artificial insemi- gestation. on appeal, the verdict was over- vider conscience regulations. Comments were
grounds. So-called “conscience clauses” af- nation as well as sterilization and termination turned. (Miller v. HCA, 118 S.w.3d 758 (tex. due by april 9, 2009, and a final rule has not yet
ter the Church amendment have extended of a pregnancy. States such as Indiana, Penn- 2003)). and last summer, the California Su- been issued. Until the “Rescission Proposal” is
protection to other types of health care pro- sylvania, Idaho and texas provide some pro- preme Court concluded that the state’s anti- finalized, the Bush administration regulations
viders, and expanded the grounds on which tections for health care providers who refuse physicians from
discrimination laws prevent4/13/09 10:36
CT_Law_5x6.5:3312009 remain in effect.
AM Page 1 n
such clauses can be invoked. The hyde- on moral grounds to implement the instruc-
weldon amendment of 2004 prohibits a tions of patients regarding end-of-life issues.
government program from receiving certain
federal funds if it “subjects any institutional Case Law
or individual health care entity to discrimi-
nation on the basis that the health care entity
Several cases have addressed the intersec-
tion of providers’ conscience rights and the Webster’s Attorney Package.
does not provide, pay for, provide coverage needs of patients. In Doe v. Bolton, a com-
of, or refer for abortions.” (Public law no. panion case to the better-known Roe v. Wade, Webster offers a tailored package of financial services to help you
108-447, § 508(d)). the Supreme Court reviewed a Georgia statute
States have been even more active in the that, among other things, required a panel of manage costs and run your practice more efficiently. We offer your
arena of provider conscience protections, three physicians to approve all abortions. firm business checking options suited to your needs, no-fee IOLTA
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instructions of patients regarding end-of-life issues. For more information contact Jordan Arovas at 203.782.4656
or via email at firstname.lastname@example.org.
and have taken widely varying approaches Speculating that the provision was to protect
to addressing the problem. at present, 47 the hospital, rather than the woman’s informed
states have some sort of conscience clause choice, the court noted in dicta that “the hospi-
legislation that protects the rights of health tal is free not to admit a patient for an abortion.
care providers (individuals or institutions) . . . Further a physician or any other employee Voted best bank for attorneys to do
that refuse to provide certain procedures or has the right to refrain, for moral or religious business with by the readers of the
Connecticut Law Tribune.
services; alabama, new hampshire and Ver- reasons, from participating in the abortion pro-
mont have no such statutes. These laws vary cedure.” (410 U.S. 179, 197-198 (1973)).
in the types of providers covered, the nature There have been myriad cases involving WebsterOnline.com
of the procedures to which providers may ob- moral or religious refusals to withdraw life-
IOLTA Checking - Miscellaneous fees may apply.
ject, the process that must be followed, and sustaining treatment, from the new Jersey 2
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the permissible grounds for refusal. Supreme Court’s decision in In re Quinlan cations may require further consideration and/or supplemental information. Certain terms and conditions may apply.
The majority of state conscience clause (355 a.2d 647 (1976)), to the 2006 controversy SBA guaranteed products may also be subject to additional terms, conditions and fees.
WebsterOne Relationship checking: minimum opening deposit of $50 required. Normally there is a $15 (or $13
legislation addresses abortion or abortion- about terri Schiavo, the severely brain-dam- with direct deposit) monthly service charge if combined monthly average balance of $4,000in checking, savings
related procedures. Connecticut’s protec- aged Florida woman whose husband and par- or money market accounts or $20,000 in combined deposit (checking, savings, CDs or money market) or home
equity and installment loan balances is not maintained. This fee will be waived as long as your employer remains
ents fought in court over whether she should a Webster Bank at Work customer. Direct deposit of your paycheck is also required. Miscellaneous fees may apply.
be taken off life support. Webster will not charge any fees for using non-Webster ATMs and will rebate you if another financial institution
Jennifer N. Willcox is a partner in the most cases conclude that an otherwise charges you a fee for using its ATM.
Health Care Department at The Webster Symbol, Webster Bank and Webster We Find a Way are registered in the U.S. Patent
competent adult has the right to refuse medi- and Trademark Office. Webster Bank, N.A. Member FDIC. Equal Housing Lender. 04/09
Pullman & Comley LLC.
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S6 health law monday, may 11, 2009
Understanding How To Deal With Overpayments
be diligent efits,” and medicare overpayment, odds are there will
Practices obligated in watching i nt e r v i e w - also be private payer overpayments which
payments ing staff. should also be resolved via repayment. These
to return undeserved received Specialty- situations, particularly when the amounts
federal funds from payers, specific cod- are small, can be made with a very general
especially ing require- explanation. Counsel and the provider
medicare. ments and should anticipate and have a more careful
By ANDREW P. GAILLARD Just because rules should explanation in hand, however, should any
and HELEN HADLEY a payment be discussed payers seek more details.
has been with the more significant dollar amounts, par-
o ne of the more difficult questions con-
fronting health care providers and their
counsel is how best to handle what we will
ticularly if there are factors that suggest
impropriety on someone’s part, may be best
resolved via the office of Inspector General’s
call “overpayment” situations. Those are situ- it was paid sonnel have self-disclosure protocol (see the oIG web
ations where it is discovered that the provider correctly. Ul- the knowl- site, http://oig.hhs/gov/fraud/selfdisclosure.
has received payments it should not have. timately, the edge that asp for details).
There are a variety of overpayment situations practice is Andrew P. Gaillard Helen Hadley promotes In recent years the office of the Inspec-
that can arise. Some are a result of minor bill- responsible clean claims tor General has sought to promote voluntary
ing or coding errors, while others may be the for billing and coding services accurately, and proper billing. Counsel and consultants compliance efforts by the provider commu-
result of a long-running fraud. many will fall and has the obligation of returning funds will want to regularly reference the depart- nity by rewarding those who self-disclose
somewhere between these two extremes. when the claim is paid incorrectly. ment of human Services’ office of the In- with lesser financial penalties. The office
Identifying the extent of such overpay- Keeping a close eye on “explanation of spector General’s “work Plan and the local has a specified format and procedure for
ments is generally time-consuming and Benefits” is the first step in identifying over- medical Review Policies” in an effort to pre- the self-disclosure, but great care must be
expensive. and then even, once they are payments. every claim that is paid incorrectly pare for these discussions. taken to fully and accurately describe the is-
fully identified and understood, there are a warrants investigation, but overpayments sues. opening the door to the office of the
variety of ways to resolve them. while there may have resulted from duplicate claim sub- What To Do With Them Inspector General is a serious step, and in-
is often no clearly “right” way of handling mission or submission of the incorrect service once an overpayment situation is iden- accurate or incomplete disclosures will only
the overpayment, there are most certainly (CPt code). Running regular “credit balance” tified, the obvious question is what to do make the situation far more problematic and
“wrong” ways. Given the potential pitfalls reports may reveal overpayments that have about it. The provider’s first reaction may be difficult to resolve.
of mishandling such situations — including been posted and not yet resolved. Investigat- to ignore the overpayment altogether, and If the overpayment situation involves
termination of provider status, civil penalties ing the credits can uncover myriad issues. hope it never comes up. when the amounts substantial amounts of money, and/or the
and damages, criminal charges, and even ex- overpayments may unwittingly have are small, and the costs of identifying them, underlying facts indicate clear-cut fraud on
clusion from medicare and other healthcare occurred when a practice learns that it has repaying the various payers, and fixing the someone’s part, the best course may be to self-
programs — overpayment situations must been coding services incorrectly. This can provider’s books, are high, the temptation report the situation directly to the U.S. attor-
be handled very carefully. happen when: (1) the providers are selecting will be strong to hope the problem goes away ney’s office. This course should only be taken
a higher level of service than was rendered, by itself. This is never a good option. The fact when it is clear the matter will be of interest
How To Identify Them (2) the wrong CPt code was selected, or (3) is that the provider has received funds that to civil and criminal health care fraud pros-
It is obviously preferable that the provider the service should not have been billed at all. belong to someone else. If a payer, especially ecutors. This tactic requires a very carefully
office identifies overpayments itself rather each of these billing/coding errors is seri- a government payer, discovers the problem thought out proposal for what the “end game”
than learn of them via insurance company ous, and suggests that the providers and staff and then learns the provider knew of it but should look like. The end result will certainly
audits, government inquiries, whistleblower have not educated themselves on appropri- decided to ignore it, the consequences are be painful, but almost certainly less painful
actions, or other third parties. to this end, ate coding and billing procedures. Periodic certain to be more severe. than the outcome if the government learns of
practices and their billing managers should training, as well as routine reassessment or In the simplest situations, where the over- the situation through a whistleblower or one
review of the practice’s procedures and sys- payment is the result of a billing or coding of the other means described above.
tems, are important means of avoiding over- error that has been caught and corrected by
Andrew P. Gaillard is a Stamford-based
partner in Day Pitney’s White-Collar De- payments in the first place. the provider, repayment of the funds to those Conclusion
fense and Internal Investigations Practice when counsel or consultants are engaged who overpaid them is relatively straightfor- overpayment situations are legal mine-
Group. Helen Hadley is president and by a provider group, overpayments can be ward. medicare contractors have an over- fields. It is possible to navigate them carefully
founder of VantagePoint, a Hamden-based uncovered by running the credit reports, re- payment form and a process for practices to and safely. But they can also severely harm,
health care consulting firm. viewing a sampling of “explanation of Ben- use for repaying overpayments. If there is a or even destroy, the careless or unwary. n
n From when on PAGE 1 certain types of claims and certain types of 2006 made the RaC program permanent quest letters or other correspondence.
providers may see more RaC auditing ac- and required that the Centers for medicare Second, the provider should assemble
claim, or when there is a deviation from a tivity than others. & medicaid Services to implement the pro- a team to develop a process for handling
written medicare policy, medicare article, or during the demonstration program, 85 gram in all states by Jan. 10, 2010. Based on RaC audits. The provider should consider
medicare-sanctioned coding guideline that percent of overpayments were collected the most recently published schedule, the involving counsel in this process so that
precisely describes the coverage conditions. from inpatient hospital claims; 6 percent RaC program could begin in Connecticut nothing falls through the cracks. The pro-
from inpatient rehabilitation facility ser- by aug. 1, 2009. Before RaCs begin their vider should identify the RaC in Connect-
Complex Review vices; 4 percent from outpatient hospital auditing activities in Connecticut, provider icut and watch for correspondence from
In the case of claims that likely contain claims; and the remaining from physicians, outreach programs, including educational that company. The RaC for Connecticut
errors, RaCs generally request medical re- skilled nursing facilities, durable medical meetings and town hall gatherings, will be (Region a) is diversified Collection Ser-
cords from the provider to further review the equipment suppliers and ambulance, labo- conducted in late June or July. vices (1-866-201-0580).
claim. Based on a review of the record, RaCs ratory or other providers. most overpay- There are a number of steps that provid- Third, the provider should be educated
make a determination as to whether payment ments occurred when providers submitted ers (with assistance from their counsel) can on RaC response times and have a system in
of the claim was correct or whether there was claims that did not comply with medicare’s take to prepare for a possible audit. place to monitor such times. RaC deadlines
an overpayment or an underpayment. This coding or medical necessity policies. First, a provider’s staff should attend out- are strict and failure to file timely appeals will
process is called a complex review. reach programs in the provider’s area. The prevent an appeal of an improper denial.
although there is no way to forecast RAC In Connecticut Centers for medicare & medicaid Services Fourth, a provider and its legal coun-
which providers will be targeted for review, The tax Relief and health Care act of contact person for Connecticut (Region a) sel should keep current with Centers for
is listed as ebony Brandon (410-786-1585). medicare & medicaid Services announce-
For more than 20 years, Patrick J. Monahan II has represented hospitals, businesses, and during these educational meetings (or ments and other pertinent publications,
other clients in corporate and regulatory compliance matters, government relations, and shortly thereafter), providers will likely which can help guide compliance efforts.
litigation. He is the partner in charge of the Stamford office of Garfunkel, Wild & Travis P.C. have an opportunity to identify the precise In conducting reviews, RaCs are guided
Wilhelmina A. de Harder, an associate with the firm’s Litigation and Arbitration Practice address and contact person to whom the by medicare policies, regulations, national
Group, advises clients on a range of health care related litigation and compliance issues. RaC should send any medical record re- n Continued on PAGe 7
monday, may 11, 2009 health law S7
Government Cracks Down On ‘Exclusion Billing’
cussed an exclusion billing settlement in- about how p er for me d
Providers must screen volving walnut hill Care Center, a skilled frequently to ensure
nursing facility based in new Britain. In providers continued
employees to ensure 2005, walnut hill hired a nursing supervi- should con- compliance;
eligibility for federal funds sor. after the nurse’s license was revoked in duct exclu- (2) the con-
another state, the facility learned that she had sion checks. tractor’s re-
been excluded from medicare and medicaid. Some pro- sponsibility
By MAUREEN WEAVER after a lengthy investigation into potential viders per- to notify the
and JODY ERDFARB False Claims act liability, walnut hill, with- form them provider if
out admitting any wrongdoing, entered into quarterly; the contrac-
“e xclusion billing” is now a govern-
ment enforcement priority, warned
assistant U.S. attorney Richard m. molot at
a civil settlement with the government, pay-
ing $222,419, and also entered into a Certi-
fication of Compliance agreement with the
twice a year.
tor or any
of its em-
a november 2008 health Care enforcement office of the Inspector General. officials have excluded;
Roundtable sponsored by wiggin and dana. more recently, the Connecticut U.S. at- indicated in- and (3) the
exclusion billing is the unlawful billing of torney’s office announced an exclusion- formally that p r o v i d e r ’s
medicare, medicaid and other federal health related settlement with Silver hill hospital, screening Maureen Weaver Jody Erdfarb right to im-
care programs for services provided by in- a psychiatric hospital in new Canaan. In should occur mediate ter-
dividuals or entities, including employees or 2004, Silver hill hired a full-time registered systematically at least annually. Providers mination in the event the contracting entity
contractors, that are excluded from partici- nurse. although the nurse’s Connecticut li- should decide on a time frame, incorporate is excluded.
pation in federal health care programs. mo- cense had recently been reinstated, she still it into policy and check the databases regu- Take immediate action if an employee
lot said that Connecticut has seen an uptick appeared on the inspector general’s exclu- larly. evidence that a provider conducted or contractor appears on the exclusion list.
in investigations into exclusion billing, and sion list. Silver hill employed the nurse for regular checks can be crucial to avoiding or If an employer learns that an employee or
whistleblowers have alerted the government four years before learning that she was ex- mitigating penalties if it is discovered that an contractor appears on the exclusion list, it is
to many of these cases. cluded. without admitting liability, Silver excluded individual was on the employment best to consult with counsel. The first step
Who are excluded individuals and en- hill settled for $60,338. rolls, or that one of the provider’s vendors is may be to immediately stop any billing for
tities? The U.S. department of health and What can health care providers do? excluded. services provided by the employee or con-
human Services’ office of Inspector Gen- Providers and their counsel can take a few Address exclusion in contracts. agree- tractor. There are many complex rules for
eral is required to exclude individuals or simple steps to mitigate risk: ments with outside contractors should in- calculating when exclusion takes effect and
entities under certain circumstances, such Check government exclusion data bases clude provisions addressing: (1) the contrac- how long after that date claims may still be
as upon conviction of a criminal offense for all prospective employees and contrac- tor’s representation that neither the entity processed. In most circumstances, an inter-
related to the delivery of an item or service tors. every health care organization’s corpo- nor any of its employees are excluded and nal review followed by self-disclosure to the
under medicare or of certain drug related rate compliance program should contain a guarantee that periodic exclusion checks are government is the recommended course. n
felonies. The inspector general has sweep- policy and procedures addressing exclusion.
ing permissive authority to order exclusion The policies should require that all prospec- Maureen Weaver is chair of the Executive Committee and a partner in the Health Care
in a variety of other circumstances, includ- tive employees and outside contractors be Compliance Practice Group at Wiggin and Dana LLP. Jody Erdfarb is an associate in the
ing fraud, breach of fiduciary responsibility, screened against the office of the Inspector firm’s Health Care Compliance Practice Group.
financial misconduct, unlawful kickbacks, General’s list of excluded Individuals or en-
or interference or obstruction of a criminal tities, available at www.oig.hhs.gov/fraud/
investigation. exclusions/exclusions_list.asp and the U.S.
How can excluded individuals and enti- General Services administration’s excluded
ties affect health care providers? The Bal- Parties list System, available at www.epls.
anced Budget act of 1997 authorized the gov/. The Connecticut department of Social
inspector general to impose civil monetary Services also requires that prospective em-
penalties on any business that employs or ployees and outside contractors be screened
contracts with excluded individuals or enti- against the state administrative action list,
ties to provide services or supplies that are available at www.ct.gov/dss/.
reimbursed by federal health care programs. Develop a policy and practice for regular
Penalties for exclusion billing can include exclusion updates. In addition to checking
fines of up to $10,000 for each billed item or state and federal databases upon hire or prior Each
service furnished by the excluded individual to entering into contracts, providers should
or entity, recoupment of reimbursement re- require that exclusion databases be checked
ceived for such services, civil monetary pen- on a regular basis to determine whether cur-
alties of up to three times the amount of the rent employees or contractors have been ex-
claims submitted, and program exclusion. In cluded. Policy and procedures should also
some cases, providers may face liability un- address training of human resources staff
der the federal False Claims act. on exclusion billing and on the process for
How is the law enforced? at the health regular exclusion checks. Federal officials
Care enforcement Roundtable, molot dis- have not made any formal recommendation
DEDICATION TO TRIAL LAW. PASSION FOR JUSTICE.
n Continued from PAGE 6 sel to properly draft appeals to challenge
denials. Under the RaC program, pro-
coverage determinations and local cover- viders will have the same appeal rights For many years, we at RisCassi and Davis have been privileged to help support Coach Jim
age determinations. In instances where they would have if Centers for medicare Calhoun's charitable work throughout Connecticut. On Saturday, June 13th, Coach will be
there is no medicare policy, RaCs review & medicaid Services or a carrier or fiscal riding in his annual event to combat cancer – the Jim Calhoun Cancer Challenge Ride.
claims based on accepted standards of intermediary identified the alleged over-
medical practice at the time of the claim’s We encourage all of our colleagues, their families and friends to register to ride with Coach
submission. Providers subject to RaC (as well as
on June 13 in Simsbury. The Ride beneﬁts The Carole and Ray Neag Comprehensive Cancer
In addition, review of office of Inspec- other medicare audits and claim denials) Center at the University of Connecticut Health Center and Coaches vs. Cancer.
tor General and Comprehensive error Rate may have a number of strategies available Please help Coach stop cancer now. Register to ride, donate or volunteer at
testing reports indicates where improper to them during the appeals process to over- www.calhounride.com today or call 860-674-1500 for more information.
payments have been found, and by reviewing turn or limit an adverse decision. In addi-
this information, a provider can be proactive tion to advocating the merits of a claim,
and correct or improve areas of potential various legal defenses are available that
concern prior to being subject to an audit. have proven valuable for providers chal-
Fifth, providers should work with coun- lenging medicare audit determinations. n
S8 health law monday, may 11, 2009
Doctors’ Explanations Can’t Get Lost In Translation
nicate with the patient. The ada also pro- language in- interpreters.
Laws mandate sign hibits providers from passing the cost of the terpreter for In other geo-
language assistance on to the patient. a patient, a graphic ar-
language, foreign however, the ada does not require a new Jersey eas, Spanish
language interpreters sign language interpreter every time services case recently may be the
are provided to a hearing impaired patient. demonstrat- predominant
Providers are required only to ensure that ed how dif- language
By LISA M. BOYLE hearing impaired patients are able to effec- ficult it is for and Spanish-
and B. MOSES VARGAS tively communicate with their health care providers to speaking
provider. how the provider accomplishes demonstrate interpreters
F ederal law prohibits certain health care
providers from denying care to patients
based on their need for language assistance.
that is not mandated by the ada; but if the
communication is determined to be ineffec-
tive, the provider’s choice will be subject to
court in Ger-
may be re-
The americans with disabilities act pro- scrutiny and a violation of the ada may be ena v. Fogari providers
hibits providers that offer care in a place found. to determine what sort of language held that with limited
of public accommodation from denying assistance is appropriate, providers should it was not budgets are
services to individuals because of their dis- consult with the patient, take into consid- an undue Lisa M. Boyle B. Moses Vargas not expected
ability. hospitals, physicians’ offices, health eration the patient’s abilities, and recognize burden for to provide
centers and other health care providers that that the type of language assistance will a solo physician to pay more for a sign lan- the same level of language services as larger
accept patients from the general public are likely vary depending on the nature and guage interpreter than he was receiving from providers with greater resources. a provider
considered places of public accommodation complexity of the communication involved. the patient’s insurer. while this case may be offering only outpatient services has a lesser
under the ada. In addition, title VI of the a more complex communication (i.e. pre- an aberration, it highlights that all provid- burden than a hospital. If the service being
Civil Rights act of 1964 says that health care surgery instructions or informed consent) ers must ensure appropriate communication offered is not urgent, and the provider’s re-
providers that receive federal financial assis- would likely require the provider to obtain with hearing impaired patients. sources and frequency of contact with low
tance, other than only medicare Part B pay- a sign language interpreter, whereas the use english proficiency patients are low, then
ments, cannot deny individuals with limited of written notes would likely suffice for sim- Foreign Language Interpreters such providers may not be required to employ
english proficiency meaningful access to pler communications (i.e. routine examina- title VI requires health care providers to staff interpreters. Instead, the provider could
health care services based upon their inabil- tions). provide patients with limited english profi- use telephonic interpreter services or share
ity to speak english. Small providers and solo practitioners have ciency with meaningful access to their ser- language assistance services with other pro-
to provide appropriate care, health care argued in court that providing language as- vices. a provider must apply a four-factor viders. health care providers have the burden
providers must be able to communicate with sistance is financially burdensome, especially analysis to determine what language servic- of determining the level to which language
patients who are hearing impaired or who in light of decreasing reimbursement rates es it must provide to patients. The provider services are necessary and reasonable and of
speak limited english. what’s difficult for from government and commercial payors. must consider: (1) number or proportion of providing such services in a timely manner.
providers covered by the ada and/or title The ada says that that if a health care pro- limited english proficiency patients served Providers often have patients who want to
VI is ascertaining the effort they must make vider demonstrates that offering language as- or encountered in the geographic area; (2) use a family member or friend as their inter-
to facilitate this communication. Recent sistance would fundamentally alter the nature frequency with which these types of patients preter. In these circumstances, providers need
case law and other guidance suggest that the of the services being offered or result in an are served; (3) the nature and/or urgency of to inform the patient that he has the option of
burden on a provider may be considerable undue burden (i.e. a significant difficulty or the provider’s services (i.e. emergency sur- receiving outside interpreter services at no cost.
and that the size of the provider will rarely expense), then the provider can substitute an gery, routine examinations, etc.); and (4) a a provider cannot rely on the patient’s family
provide an exemption. alternative type of language assistance, if one provider’s available resources and costs. or friends to provide interpreter services if the
exists. In determining whether the language Specifically, a health care provider must patient wants an independent interpreter. If a
Sign Language Interpreters assistance would cause an undue burden, pro- consider the predominant languages spoken friend or family member is suggested as an in-
Under the ada, providers cannot deny viders need to consider, among other things, in the area served and the number of patients terpreter, the provider must consider whether
services to hearing impaired patients sim- the nature and cost of the language assistance speaking only those languages. For example, the interpreter is competent, appropriate, will
ply because they do not have language as- needed and the provider’s overall financial a provider in an area with a significant popu- maintain confidentiality, and whether the in-
sistance (i.e. qualified interpreter, note taker, resources. while this may suggest that small lation of Chinese-speaking individuals may terpreter has a conflict of interest. If the inter-
etc.) readily available to effectively commu- providers will not be required to hire a sign be required to provide Chinese-speaking preter is determined to be inappropriate, the
health care provider should strongly recom-
mend the use of an independent interpreter.
n From providers on PAGE 4 tions adopted pursuant to the health In- regular and limited patient base might be Providers have some flexibility in deter-
surance Portability and accountability act justified in adopting a “more limited pro- mining whether they have to provide sign
that matches a Social Security number (hIPaa). Federal officials counter the rule gram” than a large metropolitan clinic that language and foreign language interpreters
submitted by another person; is flexible and only calls for reasonable and serves a high volume of patients. In the for patients. Under both the ada and title
■ Unusual use of, or suspicious activity effective measures, adding that the rule case of a larger sized health care provider, VI, providers are allowed to consider their
relating to, a covered account, including deals with patient accounts while hIPaa the provider’s board of directors must ap- resources when determining how to ensure
the use of an account that has been in- deals with medical records. prove the policy. meaningful access. The predominance of pa-
active for a long period of time health care providers should not risk Regardless of the provider’s size, several tients speaking a particular foreign language
■ notices from customers, victims of iden- fines of up to $3,500 per violation while general compliance actions should always in the community will increase the obliga-
tity theft, law enforcement authorities, this disagreement is unresolved. Identity be taken. These include: tion of the provider. In both cases, covered
or other businesses about possible iden- theft detection and prevention programs ■ Create a written identity theft preven- providers should have a process in place for
tity theft in connection with covered ac- must be put in place by the aug. 1, 2009 tion policy. obtaining some type of language assistance
counts. deadline. ■ train employees with respect to the policy. for its hearing impaired and low english pro-
health care providers that extend credit ■ Identify red flags relevant to your practice. ficiency patients. as for sign language inter-
Continued Debate should implement a written identity theft ■ establish procedures to respond to red preters, recent case law suggests that the bar
Various groups representing organized policy to detect, prevent, and mitigate flags (including when a response is not is high for demonstrating that the provision
medicine, such as the american medical identity theft. The rule allows covered en- needed and documenting the reason for of sign language interpreters for hearing im-
association, continue to debate the FtC tities to design and implement reasonable the decision). paired patients would be an undue burden.
on the application of the rule to health care policies and procedures that reflect the ■ Periodically update the identity theft Providers must identify the language needs
providers. size, complexity, and environment of each prevention program. of their community and patients and be pre-
The ama claims the rule burdens health particular business. ■ assess the identity theft prevention pro- pared to provide appropriate assistance. n
care providers by duplicating preexisting In an official letter to the ama, the FtC gram.
identity theft provisions found in regula- noted that a small medical practice with a health care providers should note that Lisa Boyle is a partner and the chair of
while the rule is flexible and calls for rea- Robinson & Cole’s Health Law Group.
Kristin Connors is a partner in Carmody & Torrance’s litigation group where she has sonable efforts, each “creditor” will be held She represents health care providers in
extensive experience in health care litigation. Edward Spinella is an associate in the accountable for the overall effectiveness of regulatory and transactional issues. Moses
firm’s business services group. the customized program. n Vargas is a member of Robinson & Cole’s
Health Law Group.