L E G A L R I S K S F O R P H Y S I C I A N S I N TO DAY ’ S H E A LT H CA R E C L I M AT E
LACMA Welcomes 144th President
DR. PETER RICHMAN JULY 2015
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JULY 2015 | TA B LE OF CONT ENT S
Volume 146 Issue 7
12
8
8 FEATURE | Legal Risks for Physicians 12 Surviving a Peer Review 15 Telemedicine & HIPAA – What Physicians’ Offices Need to Know to Be Compliant
COVER STORY
6
DR. PETER RICHMAN TAKES THE GAVEL AS LACMA’S 144TH PRESIDENT
More than 200 LACMA member physicians and guests assembled on June 24 for the presidential
FROM YOUR ASSOCIATION 4 President’s Letter | Peter Richman, MD 16 CEO’s Letter | Rocky Delgadillo
installation of Dr. Peter Richman, who will serve
as the president of the Los Angeles County Medical Association for the 2015-2016 year, and
to celebrate and honor the organization’s elected healthcare leaders.
Physician Magazine (ISSN 1533-9254) is published monthly by LACMA Services Inc. (a subsidiary of the Los Angeles County Medical Association) at 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. Periodicals Postage Paid at Los Angeles, California, and at additional mailing offices. Volume 143, No. 04 Copyright ©2012 by LACMA Services Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to Physician Magazine, 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 9001 7. Advertising rates and information sent upon request.
J ULY 2015 | W W W. P H Y S I C I A N S N E W S N E T W O R K .C O M 1
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than 100 years, LACMA has been at the forefront of current medicine, ensuring that its members are represented in the areas of public policy, government relations and community
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County and with the statewide California Medical Association, your physician leaders and staff strive toward a common goal– that you might spend more time treating your patients and less time worrying about the challenges of managing a practice.
Peter Richman, MD Vito Imbasciani, MD William Averill, MD Richard Baker, MD Pedram Salimpour, MD
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David Aizuss, MD Erik Berg, MD Robert Bitonte, MD Stephanie Booth, MD Jack Chou, MD Troy Elander, MD Hilary Fausett, MD Samuel Fink, MD Hector Flores, MD C. Freeman, MD Sidney Gold, MD Jinha Park, MD Stephanie Hall, MD David Hopp, MD Kambiz Kosari, MD Sion Roy, MD Paul Liu, MD Maria Lymberis, MD Philip Hill, MD Nassim Moradi, MD Vamsi Aribindi Ashish Parekh, MD Jerry Abraham, MD Po-Yin Samuel Huang, MD Michael Sanchez, MD Heather Silverman, MD Annie Wang Nhat Tran, MD Fred Ziel, MD
LACMA’s Board of Directors consists of a group of 30 dedicated physicians who are working hard to uphold your rights and the rights of your patients. They always welcome hearing your comments and concerns. You can contact them by emailing or calling Lisa Le, Director of Governance, at lisa@lacmanet.org or 213-226-0304.
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P RES IDEN T ’S LET T ER | P ET ER RIC H M AN, M D
I am the newly elected president of the Los Angeles County Medical Association. I’m not a policy expert, but I wish to convey my understanding of our present healthcare situation to stimulate discussion and set a common ground. It may be a bit wonkish, but I feel it is very important. The American healthcare system is amazing. We have among the best medical schools in the world. Drs. Osler and Halstead at Johns Hopkins Hospital formulated the structure of the residency program which persists to this day. We have among the best clinics in the world to which many international leaders come for advanced care. However, we as physicians and the healthcare sector are facing the perfect storm. There is a confluence of economic and social currents that are creating great turmoil. Healthcare is expensive and the trajectory is worsening. In 2013, the U.S. spent $2.9 trillion on healthcare. Healthcare expenditures as a percentage of GDP stand at 18%, the highest of all developed nations. This has been rising for decades despite all previous attempts to control it. This is true in Europe as well, where there is a mixture of single payer, state and private insurance. The United States spends the most per capita. Medicare and Medicaid expenditures have steadily risen since the mid-1960’s. Total government sources account for 39% of direct healthcare dollars. With the aging of the baby boomers, there will be an expected bump in spending. The elderly account for the highest average spending per person in healthcare. Current Medicare and Medicaid spending accounts for 4.4% of GDP. This is expected to rise to 12% in 2050. Current medical expenditure for the federal government is 24% of budget. A threefold increase in spending by 2050 will far outweigh the expected increase in revenue, taking dollars from Defense, education, infrastructure, etc. The increasing cost of healthcare has affected employers and employees as well. Total employer contribution to premiums has steadily risen, as have employee contributions. Worker contributions have outpaced worker earnings fourfold. This has led to workers’ earnings only staying in pace with overall inflation. Employer costs have been an increasing loss to their bottom line. With these rising costs, one would hope we as a nation have much better care than others. The data does not support this. Examining metrics of the beginning and end of life, we may compare ourselves with hard data. Our rising expenditures per capita have not led to markedly greater increases in life expectancy. We have the highest infant mortality among wealthy nations. Further4 P H Y S I C I A N M A G A Z I N E | J ULY 2015
more, there is great disparity in what we achieve along socioeconomic lines. Black, non-Hispanic infant mortality is still significantly higher in the 21st century. To quote Martin Luther King Jr.: “Of all the forms of inequality, injustice in health care is the most shocking and inhumane” (1966). In 2008, Dr. John Wennberg of the Dartmouth Institute for Health Policy and Clinical Practice released a white paper on improving quality and curbing healthcare spending. The authors discussed “unwarranted geographic variation and uncontrolled health care spending.” Their conclusions were to eliminate unneeded care and thereby reduce costs, improve quality and allow for the expansion of coverage. A white paper from Thomson Reuters in 2009 delineated six components of healthcare where $700 billion could be saved. Controlling unwarranted use could save $250 billion to $325 billion (of a healthcare budget of $2900 billion). With such studies promoting the holy trinity of less cost, better efficiency and better quality, the Patient Protection and Affordable Care Act (Obamacare) was signed into law in 2010. Obamacare had benefits popular to the general public and expanded coverage with subsidies gained from the purported cost savings. It encouraged physicians to align into accountable care organizations (ACOs). They would expand EMR use and, by sharing payment risk, increase efficiency, lessen cost and increase quality. While the Obamacare plan was rolling out, the SGR debacle was finally repealed. The SGR was an 18-year-old mechanism that never worked. As part of the bill, Medicare provider payment was “modernized.” Physicians will be paid under a Merit-based Incentive Payment Plan where the bottom 50% in quality metrics will pay a penalty of 9% to subsidize an increase payment of 9% to the upper 50%. If physicians join an ACO, they are not subject to this mechanism. As physicians, where does this leave us now? One size does not fit all. Some may join a group or IPA in an ACO. There will be some loss of autonomy. Some may remain independent and spend money to make money with the risk of not making the upper 50%. Some may opt out of Medicare with probable exclusion from narrow networks or possibly all networks. Some may move into concierge medicine, but it is limited to a patient population with high disposable income. Finally, some may retire. Going forward, we can accept the status quo. However, we may alter Obamacare implementation with active physician input. There are many areas of potential improvement. This will require diligent physician education and recruitment to leadership. We will have to educate our patients and the greater public, and we will have to work through the legislative process at all levels. It is a lot of work. But if we care about medicine, we must do it for ourselves and future physicians, and for our patients, including our families and taxpayers.
Success. It’s what California’s finest physicians strive for... and what CAP can help you achieve. Since 1977, the Cooperative of American Physicians (CAP) has provided superior medical professional liability coverage and valuable risk and practice management programs to California’s finest physicians through its Mutual Protection Trust (MPT). As a physician-directed organization, we understand the realities of running a medical practice these days, and are committed to supporting you with a range of programs and services that no other professional liability company offers. These include a 24-hour early intervention program, HR support, EHR consultation, a HIPAA hotline, and a robust group purchasing program, to name a few.
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J ULY 2015 | W W W. P H Y S I C I A N S N E W S N E T W O R K .C O M 5
Renowned Surgeon Dr. Peter Richman Takes the Gavel as LACMA’s 144th President More than 200 LACMA physician members and guests assembled on June 24 for the presidential installation of Dr. Peter Richman who will serve as the president of the Los Angeles County Medical Association for the 2015-2016 year, and to celebrate and honor the organization’s elected healthcare leaders. The installation reception and dinner took place at the El Caballero Country Club and was presided over by outgoing president, Pedram Salimpour, MD. John Baackes, CEO of L.A. Care Health Plan, the nation’s largest publicly operated health plan serving more than 1.6 million members, was the keynote speaker. Baackes spoke on the importance of delivering high-quality, high-value healthcare to his patient population, emphasizing his focus was on assuring his entire organization makes quality and value-based healthcare a priority. Baackes further noted that healthcare is delivered locally, and as such, many of the issues facing medicine are influenced by the efforts of the local physician community. Baackes publicly recognized the contributions of LACMA member Thomas L. Horowitz, DO, who serves on the board of L.A. Care. The program included a thank you to Dr. Salimpour for his contributions during his yearlong presidential term. Most notably, LACMA membership increased during Dr. Salimpour’s term, making it the largest medical association in the state. Also, during the past year, LACMA actively engaged in a host of policy issues impacting the practice of medicine, such as the defeat of Proposition 46. Dr. Richman focused his inaugural remarks on the overall state of healthcare in the U.S., noting: “There 6 P H Y S I C I A N M A G A Z I N E | J ULY 2015
is a confluence of economic and social currents that are creating great turmoil. Healthcare is expensive and the trajectory is worsening. In 2013, the U.S. spent $2.9 trillion on healthcare. Healthcare expenditures as a percentage of GDP stand at 18%, the highest of all developed nations.” Richman went on to note that “Our rising expenditures per capita have not led to markedly greater increases in life expectancy. We have the highest infant mortality among wealthy nations. Furthermore, there is great disparity in what we achieve along socioeconomic lines.” Noting that studies have shown there is significant opportunity to reduce the overall coast of healthcare, Richman concluded with a call to action for physicians. “There are many areas of potential improvement. This will require diligent physician education and recruitment to leadership. We will have to educate our patients and the greater public, and we will have to work through the legislative process at all levels. It is a lot of work. But if we care about medicine, we must do it for ourselves and future physicians, patients including our families and taxpayers.” Dr. Richman received his medical degree from UCLA School of Medicine, where he was awarded the CIBA Award for Outstanding Community Service.
Top row photos, left to right: Outgoing LACMA president Dr. Pedram Salimpour passes the gavel to Dr. Richman. The Richman Family, from left to right: Tess Richman, Peter Richman, MD, Marie Richman, Grant Richman Grant Richman, Dr. Richman’s son, giving the invocation. Clayton Patchett, MD, right, swearing in LACMA 2015-16 officers: (l to r) Dr. Peter Richman; Vito Imbasciani, MD, Presidentelect; William Averill, MD, Treasurer; and Richard Baker, Secretary. Dr. Richman delivering his remarks.
He completed his residency in General Surgery at Los Angeles County Harbor UCLA Medical Center and is a member of the American College of Surgeons. In 2012, Dr. Richman received the Top Doctor Award from Castle Connelly, a healthcare research and information company identifying excellent doctors in regions throughout the nation. Dr. Richman also serves on the Community Board of Directors for Facey Medical Foundation and Providence Health Services. He is also a Trustee of the California Medical Association. It was a highly successful and engaging evening, thanks in large part to event Platinum Sponsors Cooperative of American Physicians, The Doctors Company, NORCAL Mutual, Facey Medical Group and Anthem Blue Cross; Gold Sponsor Mercer; and Verizon, who provided Dr. Richman with a Samsung Galaxy S6.
Reo Carr, publisher of Physician Magazine and Physicians News Network, with Michael Kamiel, MD.
Dr. Richman with James Moore, MD, and Karen Sibert, MD, of the California Society of Anesthesiologists.
Stephanie Hall, MD, Oscar Autelli, and Gregory Taylor, MD.
The evening’s keynote speaker, John Baackes, CEO of L.A. Care Health Plan.
Jeffrey Penso, MD, Glenna Tolbert, MD, Kelvin Tolbert and Robert Bitonte, MD.
J ULY 2015 | W W W. P H Y S I C I A N S N E W S N E T W O R K .C O M 7
r o f s k s i R l a g e L s n a i c i s y Ph te
in today
a m i l c e r a c ’s health
M BY BENJA
IN FENTO
N N | FENTO
LAW GRO
UP
Malpractice
There is no question that malpractice lawsuits pose the largest ongoing risk to physicians. While in many instances there is nothing a doctor can do to prevent a malpractice case, there are some measures that a physician can take to help minimize the likelihood of these lawsuits. One of the more obvious safety measures is to maintain clear, detailed and legible medical records of any particular case. There is an axiom that if something is not documented in medical records, then it is as if it did not occur. For purposes of malpractice lawsuits, lack of documentation of an event will call into question whether it occurred. A skilled plaintiff’s attorney will be able to take full advantage of mistakes or omissions in a physician’s medical records to imply the worst possible scenario. If a doctor has any doubt whether to document an apparent event or point of information, then it is better to err on the side of over-documentation. It is equally important to document unusual circumstances or events in a case. Any unusual event could potentially lead to legal action and should be well documented. Finally, any time a physician adds to or amends a patient record, the date of the amendment and the fact that the amendment occurred should be noted clearly in the record to avoid any claim that a physician is trying to misrepresent when an amendment occurred. While thoroughness of medical records can provide physicians with important defenses in malpractice matters, less clinical aspects of care can help minimize the likelihood of malpractice suits as well. Not surprisingly, a patient’s “experience” with a particular physician or practice can influence or avert the filing of a suit. Factors like pleasant bedside manner and friendly and professional support staff will have a positive impact on the patient’s overall experience and will decrease the likelihood that the patient is displeased with the care provided. Even expressions of sympathy or compassion to patients by a physician cannot be used to show any liability on behalf of the physician under the California Evidence Code. The idea is that physicians should not worry that expressions of sympathy or compassion towards a patient will later be used against the physician.
If a doctor has any doubt whether to document an apparent event or point of information, then it is better to err on the side of over-documentation.
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LEGAL RIS KS F OR P H Y S IC IAN S | F EAT U RE
In today’s business and legal landscape, there are a number of potential pitfalls all physicians should be aware of. More than in any other profession, potential legal issues or problems can arise in almost all aspects of physician practice. Here, we cover some common legal issues and problems affecting physician practices.
F EAT U RE | LEG AL RIS KS F OR P H Y S IC IAN S
Potential Issues with Employees
A second potential area involving legal pitfalls for physicians is the management of employees in the medical practice. A number of statutes in California specifically protect employees in healthcare settings who complain about issues relating to patient care or safety. If an employee is terminated for speaking out regarding patient care or a safety issue, a claim could be made that the termination was in retaliation for that employee’s advocacy. If any employee makes a complaint regarding patient safety, that complaint should be investigated. In addition to statutes specifically related to healthcare practices, physician practices are as susceptible to unlawful discrimination lawsuits as any other business. To avoid allegations of discrimination or harassment, a practice should always maintain a high degree of professionalism. The management of the practice should not tolerate harassment or discrimination by any employed individuals, even if it is intended to be a joke. Certainly, if an employee complains regarding harassment or discrimination, the practice should take that complaint seriously and investigate its legitimacy. Physicians need to also be familiar with the labor commissioner rules governing employee hours, overtime pay, and timeliness of final payments to employees after separation. But for a few exceptions, employees must receive their payment of final wages within 72 hours of separation from the medical practice. Delays in paying final wages can result in fines and penalties to the employer. One way to avoid the headache of potential legal issues with departing employees is to offer severance pay in exchange for a “release of claims.� An employee may be willing to release the employer from all claims he or she may have in return for a severance payment following the termination or resignation. This is often a win-win for both the employee and medical group. On the other side of the coin are the many physicians who choose to practice as employees within medical groups. Any employment agreement between a physician and his or her employer should be in writing and clearly state the agreed upon terms. A physician who is entering into an employment agreement with a medical group should diligently review the agreement (often with the help of an attorney) for fairness and for adequate protections to the physician. Areas to focus in on when reviewing an employment agreement include the termination or resignation section, the compensation structure and the scope of malpractice liability.
In addition to statutes specifically related to healthcare, physician practices are as susceptible to unlawful discrimination lawsuits as any other business.
Prohibition against the Corporate Practice of Medicine
Regulatory bodies continue to enforce violations of the ban on the corporate practice of medicine. The prohibition against the corporate practice of medicine requires a physician to have control over all decisions (medical or business) made in the medical practice. These decisions should not be left in the hands of a layperson. This includes the hiring and firing of physician extenders (typically, nurse practitioners and physician assistants), the purchasing of medical equipment and any agreements entered into between the medical practice and third-party payors. A layperson manager or management company is prohibited from engaging in decision-making regarding medical or business aspects of the medical practice. These decisions are solely within the purview of a physician owner.
Financial Interest Disclosures
Medical practices should ensure that they have up-to-date and compliant business disclosures. Any
1 0 P H Y S I C I A N M A G A Z I N E | J ULY 2015
In-Office Dispensing of Drugs
More and more physician offices are dispensing drugs in offices. Physician practices that do dispense drugs must comply with specific patient disclosure requirements that include notification to the patient that they may obtain the prescription from a pharmacy of the patient’s choice, i.e., not necessarily from the medical practice, and to offer to provide a written prescription that the patient may elect to have filled by any pharmacy. These disclosures, which are found primarily in California Business and Professions Code section 4170 et seq., are intended to inform patients that they are free to fill any drug in an outside pharmacy as opposed to in a physician’s office.
Patient Assignment of Benefits
For those out-of-network providers who provide services to insured or managed care patients, an assignment of benefit form executed by the patient is required to transfer to the physician any rights or benefits the patient has under his or her health insurance or managed care contract. The purpose to assigning benefits is so that the physician can receive payment directly from the insurer. Unfortunately, it is becoming increasingly common for insurance companies to refuse to comply with assignment of benefit forms and issue payments to the insured patient rather than to the physician. This puts the physician in the difficult and uncomfortable position of trying to collect debts from patients. The above is a snapshot of some of the business and legal issues physicians deal with on a day to day basis. Of course, as the business and legal landscape of medicine changes, so do potential issues facing providers. It is important for physicians to remain vigilant with respect to complying with employment and regulatory rules governing their practice to avoid potential legal pitfalls. Benjamin J. Fenton is a litigator with significant trial and appellate experience. He regularly advises and represents healthcare providers and entities in healthcare business disputes, hospital peer review actions, and state and federal administrative actions and investigations. Ben regularly represents physicians and other healthcare providers before the Medical Board of California, the Osteopathic Medical Board, the Board of Registered Nursing, and other healing arts licensing agencies. Ben has extensive experience representing healthcare providers in Medicare and Medi-Cal disputes, such as overpayment demands, terminations or suspensions, and audits and investigations. Ben also regularly litigates business disputes in court, representing physicians and medical groups both as plaintiffs and defendants. He also represents healthcare providers in the defense of RICO, False Claims Act and Fraud and Abuse litigation.
MEDICAL BOARD HOSPITAL STAFF F R A U D / A B U S E MEDI-CAL/M E D I C A R E
MEDICAL PRACTICE PURCHASES, SALES AND MERGERS
Assisting physicians with legal issues for over three decades. Fenton Law Group, LLP 1990 South Bundy Drive Suite 777 Los Angeles, CA 90025 310.444.5244
The brand physicians trust
www.fentonlawgroup.com
J ULY 2015 | W W W. P H Y S I C I A N S N E W S N E T W O R K .C O M 11
LEGAL RIS KS F OR P H Y S IC IAN S | F EAT U RE
physician who refers to or seeks a consultation from any organization in which the physician or a family member has a financial interest must disclose this in writing to patients (or the parent or guardian of a patient) at the time of referral. In some cases, though not all, the disclosure rule can be met by posting a conspicuous disclosure statement in the waiting room.
It is important for physicians to remain vigilant with respect to complying with employment and regulatory rules governing their practice to avoid potential legal pitfalls.
Surviving a Peer Review Investigation ANTHONY HUNTER SCHIFF, J.D., M.P.H.
Every year, thousands of peer review inquiries are conducted by medical staffs in California hospitals. The vast majority are routine and end after a brief amount of review. However, a small number raise significant concerns and trigger potentially career-ending investigations. How the subject physician reacts, prepares and cooperates with the peer review process significantly influences the ultimate outcome of the investigation. This article explores how the subject physician should respond to a peer review investigation.
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What Is the Peer Review Process?
The Joint Commission’s ongoing professional practice evaluation (“OPPE”) initiative now requires constant monitoring and the collection of clinical data on all practitioners. OPPE requires the medical staff to factor and evaluate data “into the decision to maintain existing privilege(s), to revise existing privilege(s), or to revoke an existing privilege prior to or at the time of renewal.” As a result, all physicians who utilize hospital facilities are now routinely subject to far more review than ever before. Some physicians identified by OPPE as providing patient care which might indicate quality of care issues will be required to participate in focused professional practice evaluation (“FPPE”). It is the responsibility of the medical staff to define the circumstances requiring OPPE and FPPE monitoring and evaluation of a practitioner’s professional performance. The information and data collected typically include traditional sources of peer review data. For example, medical records sometime “fall out.” This can be due to complications and are often identified by infections, excessive blood or pharmaceutical use or excessive operating room, time or excessive length of stay. Inappropriate use of consultants also can raise a red flag. The trigger for peer review can be a single incident or evidence of a clinical practice trend. Of course, morbidity and mortality data are reviewed. In other instances, incident reports are filed by staff, frequently by nurses. In other instances, either an involved physician or a patient may complain. Malpractice actions reported to the Medical Board also become the subject of an inquiry. Finally, reviews are conducted after a significant adverse event.
When a medical staff committee determines that a patient record should be formally reviewed, prior to the formal investigation stage, a committee chair may talk to the subject physician. In other instances, the committee will request an interview with the subject physician. Other times, a physician will first be requested to provide a written response before he/she appears before the committee. How the subject physician responds at this point is critical. If the matter is deemed serious, and a formal investigation is going to be undertaken, the medical staff bylaws require that a formal notice of investigation be given to the subject physician. Either the department or the medical executive committee (“MEC”) is empowered to create an ad hoc committee to conduct an investigation. A significant number of peer review inquiries needlessly become formal investigations as a result of the subject physician’s being inadequately prepared at an earlier stage of review, and as a consequence, he/she makes statements that can be inaccurate or at variance with the medical record. Such errors, if material, can trigger the formation of an ad hoc committee by the department chair or are directly referred to the MEC. Most physicians have little or no experience in preparing and responding to committee questions and frequently make the critical mistake of assuming that they will give a brief explanation and answer a few questions based solely upon their recollection of the medical record. Often, the physician is interviewed by the ad hoc committee. Sometimes, questions are prepared in advance by the ad hoc committee or an outside expert. For the subject physician, preparation for such interviews is critical. In my experience, most physicians choose to represent themselves at this stage of the medical staff process and sometimes fail to grasp the gravamen of the ad hoc committee’s inquiry. In addition, physicians sometimes believe they can avoid this process by simply resigning from the medical staff. While a resignation makes the pending investigation moot, the resignation automatically triggers a Business and Professions Section 805 report to the Medical Board of California (“MBC”) and the National Practitioner Data Bank (“NPDB”) as required by law. After the ad hoc committee has reviewed the salient medical records, obtained information from the subject physician, and perhaps spoken to its own expert, the ad hoc committee should prepare a written report. The report should contain factual findings, conclusions and recommendations. Ultimately, the MEC will review the report and decide what actions, if any, it believes should be taken against the subject physician’s privileges and/or membership. If the MEC determines that it will recommend an action that limits or revokes the subject physician’s membership and/or privileges, i.e., a corrective ac-
What Specific Areas of Concern Does the Medical Staff Investigate? Based on complaints or collected data, medical staff committees most frequently focus on issues of medical judgment, fund of knowledge, medical necessity or skill, particularly surgical skill. From time to time, they also investigate ethical issues involving dishonesty and/or conviction of a crime, or exclusions from a federal program, e.g., Medicare. While medical staff committees strive to be objective, how familiar the medical staff is with the subject physician may influence whether the peer review process briefly reviews a concern or whether the matter becomes a formal investigation. In this regard, if a physician is new to the medical staff, or if the physician rarely uses the hospital it is my experience that the subject physician is more likely to be subject to a formal investigation. For example, if a physician has done only three surgeries in a hospital, and there is a problematic case, then it is 33% of his/her surgical cases.
S U R VIVING A P EER REVIEW | F EAT U RE
How Did This Happen to Me?
While a resignation makes the pending investigation moot, the resignation automatically triggers a Business and Professions Section 805 report to the Medical Board of California (“MBC”) and the National Practitioner Data Bank (“NPDB”) as required by law.
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to the MBC pursuant to Section tion, then pursuant to state law and the medical staff bylaws, a A medical staff hearing can 805 and to the NPDB. Further, pursuant to Section 805.5, the notice must be given to the physician of such recommended ac- be just as complex (and ex- MBC then has a right to obtain pensive) as a civil trial in a transcript of the judicial review tion. If the physician requests a formal hearing, he/she is entitled court, and if the MEC pre- committee hearing and any evidence that was introduced by eito receive a notice of charges vails in the hearing, the dethat identifies the involved medicision must be reported to ther side during that proceeding. MBC will review such matecal record(s) and, the charges the MBC pursuant to Sec- The rial and then determine whether that have led the MEC to take the it will initiate a licensure action recommended action. Typically, tion 805 and to the NPDB. against the subject physician. the subject physician is also proAs such, the subject physician should carefully disvided with a copy of the medical staff bylaws. The majority of disciplinary actions consist of a cuss with counsel whether or not it is advisable to go recommended action that does not go into effect until through the hearing process. after the physician has had a hearing or waived his/ her right to a hearing. However, in instances where Conclusion the MEC believes that there is an immediate threat to In summary, the subject physician should proceed patient or personnel safety, then summary suspension cautiously when he/she receives notice of any medical or restriction on part or all of the physician’s privi- staff inquiry. All medical staff investigations, no matter leges is imposed. If the summary suspension is not how simple they appear, or how informally they may lifted within 14 days, then the summary suspension be presented, may ultimately lead to adverse actions becomes reportable to the MBC and, after a total of that are reported to the MBC. The subject physician 30 days, to the NPDB. should never “shoot from the hip,” but should always first study the medical record in detail before responding to an investigating committee. Where appropriate, If You Are the Subject Physician, the subject physician should also review the salient What Should You Do? First, the subject physician who receives a recom- medical literature to gain additional insight about parmended action/summary suspension should take the ticular medical issues. If the matter appears to be serimatter very seriously. Second, the subject physician ous, the subject physician should consider engaging should obtain a copy of the medical records and re- qualified counsel at an early stage of the proceeding. view the hearing rights section in the bylaws. Third, Counsel should be used to review the likely medical if the subject physician has not already done so, he/ issues and help the subject physician prepare a cogent she should obtain qualified legal representation. If a response, with reference to the facts contained in the notice of charges has not yet been provided, before medical record, and possibly to the medical literature, requesting the notice of charges, the subject physi- that supports the subject physician’s actions. Finally, all physicians should recognize the duty cian should first meet with counsel. Counsel may recommend that the subject physi- of the medical staff to review and investigate peer cian ask a partner or colleague to review the medi- review matters. The medical staff is responsible to cal records with counsel, along with the notice of conduct an adequate and fair investigatory process. charges. If an expert review is required, the expert Where warranted, the medical staff must undertake should be retained by counsel in order to be covered investigations and take actions. Physicians have by attorney work product doctrine. In some circum- fought hard to have self-governing medical staffs that stances, counsel may recommend that the physician conduct peer review at the local level. As such, phyattempt to meet informally with medical staff lead- sicians should participate in and support good-faith ers and/or the MEC to discuss the matter with a view peer review. toward attempting to resolve the matter without the Anthony Hunter Schiff, J.D., M.P.H. is a Professor (Adjunct) in the Department of Health Policy and Management, Fielding School of necessity of a formal judicial hearing. Public Health, UCLA. He is also a partner in Schiff and Bernstein, A While a discussion of how to prepare for and con- Professional Corporation, Los Angeles __________________________________ duct a judicial review hearing is beyond the scope of this article, it is obvious that the subject physician 1. See Joint Commission Standard, MS.08.01.03, Comprehensive should make every effort to avoid a hearing in the first Accreditation Manual for Hospitals: The Official Handbook. 2. See Joint Commission Standard, MS.08.01.01, Comprehensive place. Requesting and pursuing a hearing should not Accreditation Manual for Hospitals: The Official Handbook. be done without advice and careful consideration. 3. Ibid. 4. See California Business and Professions Code Section 809, et seq. A medical staff hearing can be just as complex (and 5. A request for notices of charges may start the procedural process expensive) as a civil trial, in court and if the MEC pre- and cause procedural time periods to begin to elapse. 6. See California Business and Professions Code Section 805. vails in the hearing, the decision must be reported 7. See California Business and Professions Code Section 805.5.
1 4 P H Y S I C I A N M A G A Z I N E | J ULY 2015
Telemedicine & HIPAA – What Physicians’ Offices Need to Know to Be Compliant BY ALLAN RIDINGS, SENIOR RISK MANAGER & PATIENT SAFETY SPECIALIST | COOPERATIVE OF AMERICAN PHYSICIANS, INC.
As with conventional medicine, a telehealth and video caregiver must uphold the same duties to safeguard a patient’s medical record and keep their treatments confidential. In addition, storage of electronic documents, pictures, audio / video recordings. etc., must uphold the same precaution and care credited to paper documents. The issues regarding privacy and confidentiality in the medical field are not necessarily any different in an “electronic” environment. Some patients might feel skeptical about the use of or the idea of video with its lack of visual prompts or cues. First and foremost, verify that the services that you agree to use have received a HITECH certification, is HIPAA compliant and that you have a current BAA (business associate agreement) and current signed patient/provider agreement for telehealth and video. Acknowledge and respect a possibility of cultural diversity; set ground rules up front; watch for facial expressions, gestures and body language. If your gut instinct tells you to offer the patient a true face-to-face office visit – then go with your gut instinct. Additionally, fears about the reliability, the technology and the potential devastation of a loss of their protected health information (PHI) may leave some patients distrustful of telehealth. As with any un-encrypted PHI, when “video” travels over the “public switched telephone network (PSTN)” without encryption, the opportunity for hacking and/or breaches exists. Using a dedicated and HIPAA secure encrypted service and network and up-to-date computer virus security software may reduce the opportunity of hacking attempts and potential breaches. Some of these concerns with technology or services may be addressed through a combination of technical and security measures such as the enforcement of the privacy rule within the Health Insurance Portability & Accountability Act of 1996 (HIPAA), California AB415 and other items addressed below. Certain video services such as Skype have known issues with se-
curity and privacy – at this time, this particular service fails to offer a business associate agreement (BAA) “which upholds the HIPAA privacy rules” and has failed to receive any HIPAA security certifications. The failure to have HIPAA / security measures in place opens the opportunities for HIPAA breaches. Using Skype has its vulnerabilities as mentioned above—its lack of HIPAA and BAA certification / compliance opens up a possibility of a breach. The HIPAA privacy rule specifies “Protected Health Information (PHI) means ‘individually identifiable health information – transmitted by electronic media; When reviewing telehealth for maintained in electronic use in medical environments, media; or transmitted or things to address are: maintained in any other form or medium’” and therefore must be in com• HIPAA Privacy Rules pliance with the privacy • Notice of Privacy Practices rules: https://www.fed• Business Associate Agreement eralregister.gov/. At pres• Assembly Bill 415 (AB-415) ent, several HIPAA secure videoconference services are available. It is recommended that the physician or administrator quality check each service prior to entering into any contract and securing a BAA. Caution and security should be paramount when contemplating any telehealth services. It is recommended that all physicians and office managers do their homework prior to entering into any new ventures, contracting, etc. Become familiar with the HIPAA privacy rule, institute a quality check program for all BAAs and, acquaint your practice with all applicable local, county, state and federal requirements that may affect patients’ privacy and open a practice to possible breaches.
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J ULY 2015 | W W W. P H Y S I C I A N S N E W S N E T W O R K .C O M 1 5
AS S OC IAT ION H AP P ENINGS | LAC M A NEWS
CEO’s LETTER
S U M M E R I S F I N A L L Y H E R E and we’re all looking forward to the longer, sunnier daytime hours. At LACMA, July, of course, is always a pivotal time of change in our leadership, and I’m honored to present our new president—LACMA’s 144th president, Dr. Peter Richman. I am looking forward to working with Dr. Richman as well as the newly installed officers, brought to you during our special “Installation of President and Officers” dinner on June 24 at the El Caballero Country Club. Dr. Richman is a renowned surgeon in Mission Hills and affiliated with multiple hospitals in the area. He has been a long-time member of the Los Angeles County medical community. He attended the UCLA Geffen School of Medicine and completed his internship and residency at Harbor UCLA Medical Center. He is very familiar with the concerns of local physicians and as LACMA’s new president will provide understanding and a voice for all. I also want to take this opportunity to thank LACMA’s outgoing president, Dr. Pedram Salimpour, for his outstanding leadership and for taking our organization to new heights. To name a few of his accomplishments, Dr. Salimpour devoted his energy and time tackling major issues, including MICRA, heightened the status and profile of our organization in the media and the public eye, inspired the next generation of doctors, and was instrumental in increasing LACMA’s membership numbers, making LACMA stronger and more united than ever before. I also would like to give thanks to Cedars-Sinai Medical Center. Last month, I had the honor to accept the invitation by Dr. Leo Gordon, Coordinator of Great Debates in Clinical Medicine at Cedars-Sinai Medical Center, to serve as one of five judges in a formal medical debate about a timely topic in medicine. The Dr. Leon Morgenstern Great Debates in Clinical Resident Competition, named in honor of the late Dr. Morgenstern, who was the chair of the Department of Surgery for 30 years, is one of the key events in the Los Angeles County medical community. This June, some 300 physicians of all ages attended the Cedars-Sinai debate about “Can fee-for-service medicine survive--should it change or should it continue?” With summer being here, I hope that many of you will spend some quality time with your families. Taking some time off may just be the best medicine to re-energize. Regards,
Rocky Delgadillo Chief Executive Officer
1 6 P H Y S I C I A N M A G A Z I N E | J ULY 2015
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