HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, July 27, 2013

Published This Week

Thursday, July 25, 2013

HHS Disciplines Surgeon for Disability Discrimination for Refusal to Treat HIV+ Patient

The Office for Civil Rights (OCR) at the Department of Health and Human Services has recently taken a much more aggressive enforcement stance.  This has been evident in its enforcement of HIPAA.  It is now also evident in enforcement of the Rehabilitation Act against physicians who refuse to treat patients with disabilities.  In announcing its action, OCR stated firmly that it is part of a coordinated strategy to improve access to treatment for patients who are HIV positive.

The physician in question is a California neurosurgeon who refused to operate on a patient with HIV.  The facts of the case were not contested.  The physician was found to have violated the Rehabilitation Act by refusing to treat the patient based on his disability, HIV.  The ALJ decision can be found here.  The physician has been barred from future Medicaid funding until he can demonstrate compliance with the Rehabilitation Act. 

These efforts by OCR are to be welcomed.


July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

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July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

Income Maintenance Among Chinese Doctors

Journalists have repeatedly made the case that physicians should earn less.  The question then becomes: how will doctors react once their pay is cut?  China provides some interesting examples

Bribery is the lubricant that helps keep China's public hospitals running, and the health system would struggle to function without illegal payments to poorly paid doctors and administrators, say medical practitioners and industry experts.

The corruption stems largely from doctors' low base salaries, which are set in line with a pay scale for government workers. Hospitals can pay bonuses but, given public hospitals are strapped for cash, compensation is usually low, say doctors and industry experts.

Low salaries have also spawned a system of under-the-table payments from patients. The payments are known as "hongbao" -- a reference to the cash-filled red envelopes given as presents during Lunar New Year festivities -- and cover various services from jumping the queue for appointments to extra surgical fees.

I predict we'll soon be seeing a concierge medicine firm called "Red Envelope" springing up in the USA.  More seriously: have America's health care cost cutters seriously considered the potential unintended consequences of their crusade?  We live in a world where Wall Street compensation has skewed expectations generally.  "Only 28 percent of those worth $1 million to $5 million said they were wealthy," according to a recent survey.  I don't predict many specialists are going to miss out on a chance to join the $5 million+ crowd.  Health care cost cutters may simply be encouraging them to shift their energies away from ordinary Medicare and Medicaid patients, and toward the worried wealthy.


July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Pioneer Accountable Care Organizations and Downside Risk--It's Deja Vu All Over Again

Numerous outlets, including the Washington Post, have reported that nearly one-third of the 32 Pioneer ACO's under the Affordable Care Act have left the program.  Almost half of th program participants  have failed to produce any cost-savings.  Most of those that have left have switched to the Medicare Shared Savings Program, which does not carry the down-side financial risk that the Pioneer ACO program carries.  One of the major reasons for leaving the program cited by those dropping out is that physician groups aren't accustomed to dealing with financial risk of this nature.

In the late 1990s, I practiced health care law in Seattle, Washington.  Among the folks I represented were physician-led organizations who had contracted with commercial insurers to accept downside financial risk for the cost of the care they rendered.  Invariably, when the accounting at the end of the contract term was done, the physician-led organization was told that it had incurred a loss, and owed money back to the insurers.  This tended to result in the four stages of litigation:  Disbelief, denial, blame, and filing a lawsuit, followed by the four stages of settlement:  Discovery, failed negotiation, mediation, and payment of substantial attorneys' fees. Ultimately, most physician-led organizations stopped accepting contracts with down-side risk, and insurers came up with different methods of controlling costs and ensuring quality of care, with varying degrees of success.  Clearly, there is more to facilitating the delivery of cost-effective, good-quality care, than merely putting all of the financial risk of the care on the providers.

When the Pioneer ACOs were first proposed, I wondered why anybody thought that the outcome of this experiment would be different than the mostly failed full-risk contracts that had been the rage in the late 1990's.  While the early ACO numbers indicate that some progress has been made (2/3 of the providers are remaining in the program, and almost 60% have produced some cost-savings), this early outcomes data should give us a reason to re-examine our assumptions about what it takes to change the way we deliver health care in the United States. Clearly, it's not all about financial incentives.


July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Published Last Week