26 Video 1 DMU DPM 2024 Health Law - IBP & EMTALA PDF

Top 10 Lessons: Helping Podiatric Physicians Survive the Health Law Jungle Video 1 DPM Community Health Septemb...

Top 10 Lessons: Helping Podiatric Physicians Survive the Health Law Jungle Video 1 DPM Community Health September 2024 Denise M. Hill, JD/MPA Associate Professor, Drake University © 2024 Denise Hill-- For Education Not Legal Advice 1 Of Counsel Attorney, Whitfield & Eddy, PLC  Learning Objectives: Jurisprudence (2024) Identify the laws that protect patients; including their medical records, protected health information, and their safety. Identify the role of laws that govern corporations and other legal practice entities in protecting patients. Recognize the general legal concepts that govern medical practice. Identify the duties and responsibilities of state medical boards and hospital medical staff. Demonstrate knowledge of the following; Federal Kickback Law, Stark II Law, and False Claims Act as they relate to fraud and abuse. Define and demonstrate knowledge of informed consent liability, batter, and the essential elements of negligence (duty/standard of care, breach of care, damages, and causation) as they relate to health care delivery. Identify strategies for disclosure © 2024 Denise of adverse Hill-- outcomes For Education and legal ramifications. Not Legal Advice 2  Top Lessons (Part 1) Top Lessons to Survive the Health Law Jungle: 1. Don’t ignore those who set limits & control your destiny. 2. Be clear on the scope of your relationship and don’t abandon your patients. 3. Deal with the elephant in the room—informed consent and disclosure are crucial. 4. Plan ahead and take steps to protect yourself from malpractice. 5. Don’t repeat everything you hear—maintain confidentiality. © 2024 Denise Hill-- For Education Not Legal Advice 3  Top Lessons (Part 2) 6. Know how to recognize and avoid the dangers of fraud and abuse 7. Don’t try to blend in—report. 8. Set up a business system that works efficiently and profitably. 9. Don’t be proud, let process drive you & work with others to improve. 10.Don’t get stuck with a bad contract. © 2024 Denise Hill-- For Education Not Legal Advice 4 1. Take Care of the 800 lb Gorillas Don’t ignore those who control your destiny and decide what YOU are allowed to do!!! Iowa HHS © 2024 Denise Hill-- For Education Not Legal Advice 5  https://www.ipms.org/ https://www.ipms.org/ Advocates https://www.apma.org/ © 2024 Denise Hill-- For Education Not Legal Advice 6  What does the law have to do with the Practice of Podiatry? © 2024 Denise Hill-- For Education Not Legal Advice 7 “It’s the law that makes organized life possible.” Ray Garrett Jr., 1920-1980 © 2024 Denise Hill-- For Education Not Legal Advice 8  Legal Authority-Sources of Law Constitution Statutes or ordinances (Legislative Branch) Administrative Law (Executive Branch) Common Law (Judicial Branch Decisions) © 2024 Denise Hill-- For Education Not Legal Advice 9  Iowa Statutory Law is in the Code of Iowa Chapter 147 GENERAL PROVISIONS, HEALTH-RELATED PROFESSIONS 147.1 Definitions. For the purpose of this and the following chapters of this subtitle: 1. “Board” means one of the boards enumerated in section 147.13 or any other board established in this subtitle whose members are appointed by the governor to license applicants and impose licensee discipline as authorized by law. 2. “Department” means the department of public health. 3. “Licensed” or “certified”, when applied to a physician and surgeon, podiatric physician, osteopathic physician and surgeon, physician assistant, psychologist, chiropractor, nurse, dentist, dental hygienist, dental assistant, optometrist, speech pathologist, audiologist, pharmacist, physical therapist, physical therapist assistant, occupational therapist, occupational therapy assistant, respiratory care practitioner, practitioner of cosmetology arts and sciences, practitioner of barbering, funeral director, dietitian, marital and family therapist, mental health counselor, social worker, massage therapist, athletic trainer, acupuncturist, nursing home administrator, hearing aid dispenser, or sign language interpreter or transliterator means a person licensed under this subtitle. SEE LAWS OF THE STATE WHERE YOU WILL PRACTICE! © 2024 Denise Hill-- For Education Not Legal Advice 10 Administrative IBP Administrative Rules Law are in the Iowa Administrative Code Iowa Administrative Code If you practice in another jurisdiction—See that state’s administrative code. © 2024 Denise Hill-- For Education Not Legal Advice 11 Board of Podiatry – Rules & Enforcement https://dial.iowa.gov/boards/podiatry © 2024 Denise Hill-- For Education Not Legal Advice 12 Indirect “Sources of Law” Policies and Procedures – Can function like laws or incorporated in laws – Arrange affairs in lawful, orderly & uniform manner – Med Staff Bylaws – Sometimes contracts (e.g., employee handbook) – See Example at http://www.rainiermeded.com/v/vspfiles/assets/images/nail%20&%20callus%20protocols.pdf Codes of Ethics – Look to for guidance – APMA https://www.apma.org/files/Code%20of%20Ethics_FINAL_1669749709677_2.pdf – May be incorporated by reference (e.g., IBM Rules incorporates AMA/AOMA Codes of Ethics) – AOA http://www.osteopathic.org/inside-aoa/about/leadership/Pages/aoa-code-of-ethics.aspx – AMA http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page © 2024 Denise Hill-- For Education Not Legal Advice 13 Federal Law: Medicare COPs Conditions of Participation Medicare enrolled providers CMS directives Not direct regulations—Not legal authority. Use spending power to influence providers—“power of the purse strings” © 2024 Denise Hill-- For Education Not Legal Advice 14 Access to Podiatric Care © 2024 Denise Hill-- For Education Not Legal Advice 15 © 2024 Denise Hill-- For Education Not Legal Advice 16  Scope of Practice State licenses a private entity or person to perform a particular defined function—gives public indicia of reliability/quality. Defines practice-guidance as to what that practice includes. Legislate to the “lowest common denominator.” A lot of gray area—not always exclusive. May be situation specific © 2024 Denise Hill-- For Education Not Legal Advice 17 Scope of Practice: Hard to Define Can be more than one profession Blood pressure Can be expressly limited by own Board Estheticians use of lasers Can be expressly authorized by Board PT can supervise PTA Can be exclusive Only MD/DO amputate foot Can be limited by education/training within profession authorized Dermatologist can’t perform eye surgery © 2024 Denise Hill-- For Education Not Legal Advice 18  Iowa Code: Podiatry Scope of Practice 149.5 Amputations — anesthesia — prescription drugs. 1. A license to practice podiatry shall not authorize the licensee to amputate the human foot. 2. A licensed podiatric physician may do all of the following: a. Administer local anesthesia. b. Administer conscious sedation in a hospital or an ambulatory surgical center. c. Prescribe and administer drugs for the treatment of human foot ailments as provided in section 149.1. © 2024 Denise Hill-- For Education Not Legal Advice 19 What is the Potential Impact on Podiatric Scope of Practice? © 2024 Denise Hill-- For Education Not Legal Advice 20 Iowa Board of Podiatry https://dial.iowa.gov/boards/podiatry Practice Act--Iowa code:147, 149 http://www.legis.state.ia.us/IowaLaw.html Defines practice Regulates unlawful practice without a license Authorizes Board of Medicine Iowa Administrative Rules: 645 I.A.C. 220-224 http://search.legis.state.ia.us/nxt/gateway.dll/ar/iac?f=templates&fn=default.htm SEE STATE WHERE YOU WILL PRACTICE! © 2024 Denise Hill-- For Education Not Legal Advice 21 APMA State Law Scope of Practice https://forums.studentdoctor.net/attachments/scope-chart-updated-2018-final-pdf.332899/ © 2024 Denise Hill-- For Education Not Legal Advice 22 Example of State Law re: Supervision Ind. Code § 25-29-8-2 : Indiana Code - Section 25-29-8-2: Supervising podiatrist certification; qualification (a) A licensed podiatrist may apply to the board for a certificate as a supervising podiatrist. (b) An applicant under this section must agree: (1) to be personally responsible for the supervision of the podiatrist's assistant who is employed by the applicant; (2) to not employ more than two (2) podiatrist's assistants at one (1) time; (3) to limit a podiatrist's assistant's activities to areas in which the supervising podiatrist is qualified; and (4) other criteria established by the board. © 2024 Denise Hill-- For Education Not Legal Advice 23  Only take on procedures you are competent & qualified to perform Act within the scope of practice Ask for help if you need it. Don’t perform if not sufficient experience even if pressured to do so. i.e. No Ankle Arthroscopy if you do not have training and/or experience. © 2024 Denise Hill-- For Education Not Legal Advice 24  Primary Board Issues Discipline Impaired Practitioners Continuing Education False Statements on licensure Forms Peer Reporting Impaired Practitioners © 2024 Denise Hill-- For Education Not Legal Advice 25  Disciplinary Complaints & Investigation Notice of Complaint—initially no right to see file or know complainant(s) identity. Formal Statement of Charges—can see investigative file and find out identity of complainant(s). Broad authority to subpoena records but have attorney review 1st (may want to seek motion to quash—issues of patient authorization & potential liability) Information in investigative file is not made public but----statement that under investigation=Stigma. © 2024 Denise Hill-- For Education Not Legal Advice 26  Be Prepared Be prepared to respond to investigations or complaints at any time: – Policies and procedures – Know who to call/Coordination – Not required to talk to investigator-entitled to attorney © 2024 Denise Hill-- For Education Not Legal Advice 27  Possible: Sanctions Suspension of license for Limit specific procedures, Revocation of License set time or until further Non-renewal of License methods, or acts in the action by the Board physician’s practice Order physical and/or mental examination or Require substance abuse Probation Civil penalty training/education screening within specified time (paid by PT) Issue citation and Other appropriate warning sanctions allowed by law © 2024 Denise Hill-- For Education Not Legal Advice 28 Board Action: Denial https://idph.iowa.gov/Licensure/Iowa-Board-of-Podiatry/Discipline-and-Public-Actions 29 © 2024 Denise Hill-- For Education Not Legal Advice Board Action: Negligence © 2024 Denise Hill-- For https://idph.iowa.gov/Portals/1/Actions/ActionFiles/14/e0a16787-0240-4d5c-98d2-3ff13c45f87e.pdf Education Not Legal Advice 30  Compare & Contrast: Board Actions on Impairment © 2024 Denise Hill-- For Education https://idph.iowa.gov/Licensure/Iowa-Board-of-Podiatry/Discipline-and-Public-Actions Not Legal Advice 31 https://idph.iowa.gov/Licensure/Iowa-Board-of-Podiatry/Discipline-and-Public-Actions  BEWARE: The Consequences of Board Discipline Cross Borders © 2024 Denise Hill-- For Education Not Legal Advice 32 Not Just Iowa… © 2024 Denise Hill-- For Education Not Legal Advice 33  Action: Boards in Other Jurisdictions © 2024 Denisehttps://idph.iowa.gov/Portals/1/Actions/ActionFiles/14/1f2b4c7a-a022-4a3a-a27a-0cc9989daab4.pdf Hill-- For Education Not Legal Advice 34 © 2024 Denise Hill-- For Education Not Legal Advice 35 Not Just Licensing Boards © 2024 Denise Hill-- For Education Not Legal Advice 36  Your Turn...Dr. C’s Surprise Dr. C was shocked when he found out he was being investigated by the Iowa Board of Podiatric Medicine. No one would tell him specifics of the allegations or who his accusers were so when he received a notice from the board he decided to wait and respond until he got more information. A few weeks later a patient came into the office very upset and demanding to see a physician other than Dr. C. She had a copy of a statement of charges against Dr. C from the Board’s website. © 2024 Denise Hill-- For Education Not Legal Advice 37  The Statement alleged the Board found probable cause that he… Engaged in a pattern of unprofessional conduct in violation of laws and rules governing the practice of medicine in Iowa including but not limited to: – Pattern of verbally abusive behavior toward co-workers and other health professionals – Frequently becoming angry, yelling a swearing and on one instance grabbing a female co-worker by the arm in an aggressive matter. – Concerns about false statements on his license application; and failure to respond to the Board’s notice. He can’t believe it--this is not accurate, and he should have a chance to tell his side of the story before it is made public. © 2024 Denise Hill-- For Education Not Legal Advice 38 2. Be Clear about the scope of your Relationship with Patients & DON’T Abandon Them! Patients can leave atDenise © 2024 anyHill-- time—Physicians have limitations. For Education Not Legal Advice 39 The General Rule: Duties Depend on Relationships Patient Relationship is Mutual Patient can end at any time (still must pay) – Informed consent – Leaving against medical advice Provider owes duties to patient – Follow Standard of Care – Can’t abandon patient Notice--30 days Ensure alternate care available Transfer records etc. © 2024 Denise Hill-- For Education Not Legal Advice 40  You are entering the EMTALA No Dumping Zone http://www.emtala.com/ig.pdf 41 © 2024 Denise Hill-- For Education Not Legal Advice  EMTALA— Requirements Why? EMTALA is designed to protect patients from being denied care when facing an emergency health condition Who? Medicare enrolled hospitals ED/UC & Providers Where? “Emergency Department” (ED) What? Provide a medical screening exam (MSE) and stabilize if needed When? When patient presents at ED or elsewhere on campus and asks for emergency assistance—Cannot delay How? Qualified personnel screen to determine if an Emergency Medical Condition (EMC) exists.—If no EMC, EMTALA not longer applies—If yes, must treat/stabilize before transporting/discharging © 2024 Denise Hill-- For Education Not Legal Advice 42 © 2024 Denise Hill-- For Education Not Legal Advice 43  Where? “Dedicated emergency department” any department of the hospital regardless of whether located on or off the main hospital campus, that meets one of these requirements – Licensed by the state as an emergency room or emergency department – Held out to the public as a place that provides care for EMCs on an urgent basis without requiring a previously scheduled appointment or – During previous calendar year, has provided at least one third of all outpatient visits for the treatment of EMCs on an urgent basis – 250 foot rule © 2024 Denise Hill-- For Education Not Legal Advice 44  What? Medical Screening Exam "an evaluation reasonably calculated to identify emergency medical conditions suggested by presenting signs and symptoms." May require use of any diagnostic aids and/or specialty consultations normally available in the ED. Done by “qualified personnel” Different than medical triage (order of being seen) © 2024 Denise Hill-- For Education Not Legal Advice 45  EMTALA— How? Duties if EMC If EMC exists then: – Qualified personnel must provide further examination or treatment to stabilize. – Transfer the patient to another facility—only if stabilized AND appropriate transport A lot of scrutiny and case law in this area— especially for psychiatric conditions. © 2024 Denise Hill-- For Education Not Legal Advice 46  EMTALA- Appropriate Transfers – Requested by the patient or physician certifies that benefits of transfer outweigh the risks (Look at Trauma Level of Hospital) – Hospital must minimize the risk of transfer by providing any treatment within its capacity – Receiving facility has space and qualified personnel and agrees to accept the transfer (scrutiny on this!)—If not accept patients=EMTALA Violation – Sending hospital sends medical records – Qualified personnel to effect the transfer (a lot of liability private cars) © 2024 Denise Hill-- For Education Not Legal Advice 47  EMTALA—Documentation ED should document, document, document! Many complaints/findings based on incomplete documentation of care, stabilization and transfer. Need training! See https://www.hollandhart.com/avoiding-emtala-penalties © 2024 Denise Hill-- For Education Not Legal Advice 48 DPM EMTALA Issues © 2024 Denise Hill-- For Education Not Legal Advice 49 EMTALA—On Call Requirements Hospitals have discretion to best meet the needs of the community Physicians are permitted to be on call simultaneously at more than one hospital and schedule elective surgery Physicians need to know on-call requirements and policies © 2024 Denise Hill-- For Education Not Legal Advice 50  Emergency Medical Condition (EMC) Emergency medical condition means-- (i) A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in--(A) Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (B) Serious impairment to bodily functions; or (C) Serious dysfunction of any bodily organ or part; or (ii) With respect to a pregnant woman who is having contractions--(A) That there is inadequate time to effect a safe transfer to another hospital before delivery; or (B) That transfer may pose a threat to the health or safety of the woman or the unborn child. © 2024 Denise Hill-- For Education Not Legal Advice 51  EMTALA— Stiff Penalties Apply to hospitals and physicians, including on-call physicians Civil fines of up to $129,233 per violation Exclusion of a physician from participation in the Federal health care programs. © 2024 Denise Hill-- For Education Not Legal Advice 52  Your turn…Stan’s Story Podiatric Surgeon Stan was on call at Hospital and came into the ED to evaluate a man who severely cut tendons in his ankle with pieces of tile Dr. Stan told patient the he needed to go to the OR for surgery. Patient said, “Wait, I have no insurance, how can I pay for this”? Dr. Stan said, “Don’t worry, we’ll just bill you”. Patient asked “How much will that be?” Dr. Stan said truthfully “About 10k-20k dollars.” Patient said “I can’t afford it”, signed out against medical advice and went to nearby trauma centre. They told him no details about being charged and said “don’t worry, we’ll work it out.” The man was treated. Trauma Centre reported Surgeon and Hospital for EMTALA violation for setting up a barrier to care and forcing Patient to sign out and go elsewhere—Trauma Centre considered an illegal “dump”. Adapted from: http://erstories.net/archives/309 © 2024 Denise Hill-- For Education Not Legal Advice 53  Leaving Against Medical Advice (AMA): Process 1. Determine patient capacity to understand medical conditions and risks. If no capacity don't let them leave 2. Review chart. Explain (plain terms) diagnosis, condition, specific risks of leaving and alternatives to patient 3. Involve family, friends or hospital personnel to help convince patient to stay or to take responsibility if patient leaves 4. Have patient shouldn't sign AMA form and document in the chart—best if witnesses sign 5. Send aftercare instructions and invite to return. © 2024 Denise Hill-- For Education Not Legal Advice 54  Procedure (Continued) Give notice to patient directly in person whenever possible. (At least 30 days) Send a letter to the patient clearly stating that the physician is withdrawing services, effective at a given time. (Certified mail) Transfer medical records to new provider. If present at the ER and on call, physician must still see the patient and reaffirm that for follow up purposes not their physician. Statute of Limitations. © 2024 Denise Hill-- For Education Not Legal Advice 55  DOCUMENT!!! Patient's mental capacity (vital signs, mental status, physical examination) Explanation of why patient should stay and risks specific to medical condition (use exact words told patient) Efforts used to get patient to stay and family/others consulted with Statement: Patient has decided to leave AMA, has a normal mental status and understands condition and the risks of leaving (be specific including permanent disability and/or death), had an opportunity to ask questions medical condition, aftercare instructions, informed that may return at any time and has been referred to see local medical physician ASAP. © 2024 Denise Hill-- For Education Not Legal Advice 56  Follow up care is Crucial Review chart Discuss steps to minimize harm/risk Talk to the patient about signs or symptoms that would indicate a need to return to the facility Arrange for applicable home care or prescriptions Set timely follow-up appointments and/or telephone conferences. "Discharge AMA does not absolve the physician of responsibility for poor outcomes; as always, good clinical care and careful documentation are of paramount importance.” Stephen Hwang, MD, MPH © 2024 Denise Hill-- For Education Not Legal Advice 57  Patient Unwilling to Sign AMA Does not sign AMA form and leaves any way,: Look policies (algorithm) Procedure for a witness (or sometimes two) to sign documenting that the patient left against medical advice from the hospital/physician and refused to sign the Form after being requested to do so. "Against Medical Advice" form used and/or documentation in the medical record should cover three areas— – Liability – informed process and – choice of the patient to leave/refuse treatment. Have a nurse or other confidential individual witness the discussion and signature on forms (where applicable). Challenge is that if the patient is not competent how do you establish that the patient was competent to sign. Physician should certify and document. If unable to make decisions and designated POA or guardian that person decides. If not, can seek court order involuntary commitment. See Jones RC, Holden T. A guide to assessing decision-making capacity. Cleve Clin J Med. 2004;71:971-975. © 2024 Denise Hill-- For Education Not Legal Advice 58 Agency for Healthcare Research Quality, Case and Commentary (May 2005).  What Your to do…. Story turn…Stella’s Dr. Stella is a Podiatric physician on-call at the local ED. She is called in to consult on Brad, a young man who has a severe foot contusion and has lost a lot of blood. Brad keeps telling Stella he is fine and needs to get back to work or he will lose his job. Stella tells him that he should stay because his foot looks very bad, and she is worried that he has lost too much blood and it could get infected. Brad says firmly, “a little blood doesn’t hurt anyone—this is a long way from my heart. I am leaving now!” Then he walks out of the ED. Stella notes in the chart that he refused care and heads home. On the way out to his car, Brad faints and is rushed back into the ED. He has to have a blood transfusion and ankle surgery. He then sues the hospital & Dr. Stella. © 2024 Denise Hill-- For Education Not Legal Advice 59  May Want to End a Patient Relationship… Failure to comply/show up Failure to pay Disruptive or violent patient Drug seeking patient © 2024 Denise Hill-- For Education Not Legal Advice 60  Terminating Care Generally Patient right to unilaterally end relationship with provider at any time. Right of provider to end relationship is limited by duties (EMTALA, notice and civil rights/ADA). – Can’t discriminate – Must provide notice – Cannot abandon patient © 2024 Denise Hill-- For Education Not Legal Advice 61  ME4.4 Patient Abandonment The podiatrist shall not cease to provide care or to be available to provide care without giving the patient sufficient notice and/or the opportunity to seek continuing treatment from another health care practitioner. © 2024 Denise Hill-- For Education Not Legal Advice 62  ME 1.32 All follow-up care should be provided by a qualified podiatrist or other appropriate health care professional until the patient has fully recovered. If the podiatrist is unable to personally provide the follow-up care, then the podiatrist shall make arrangements with another qualified podiatrist or qualified health care professional to provide continuing care, with the approval of the patient. © 2024 Denise Hill-- For Education Not Legal Advice 63  Terminating Patient Relationship: Process Evaluate the medical status and needs of the patient Determine appropriate, timely alternative care is available (particularly rural areas) Consider requirements of contractual relationships with third party payers. © 2024 Denise Hill-- For Education Not Legal Advice 64  Procedure (Continued) Give notice to patient directly in person whenever possible. (At least 30 days) Send a letter to the patient clearly stating that the physician is withdrawing services, effective at a given time. (Certified mail) Transfer medical records to new provider. If present at the ER and on call, physician must still see the patient and reaffirm that for follow up purposes not their physician. Statute of Limitations. © 2024 Denise Hill-- For Education 65 Not Legal Advice  Your Turn…Paula’s Story Dr. Paula is Patient Steve’s Podiatrist. He cancels his appointments multiple times. When he finally does come in Steve is seeking drugs. He also doesn’t pay his bills. Paula can hardly believe it when Steve starts rubbing her thigh as she examines him. She tells him that she is no longer his doctor and should leave. As required by clinic policy, she takes steps to notify him in writing that she is terminating the patient relationship. Thirty days later she is the only qualified medical provider on call in the Emergency Department at Community Hospital. Steve presents at the Emergency Department complaining his foot is in pain, has lost his medication, and says he feels like he is dying. Paula “knows what he is after” and refuses to see him. She tells staff he is a “deadbeat frequent flier.” She instructs them to tell him she has terminated the provider relationship, he should leave the ED immediately, and drive to Public Hospital across town. © 2024 Denise Hill-- For Education Not Legal Advice 66