Thursday, August 13, 2015

The Pain Medication Conundrum - How Are To Physicians Deal With Subjective Pain Patients?

Stuart Isett for The New York Times
The New York Times has a well done opinion-editorial article entitled "The Pain Medication Conundrum" by Dr. Danielle Ofri about the challenges faced by physicians who are asked to prescribe pain medication. Here are some excerpts from the article:  
"Here it was again: the dreaded pain conundrum. A patient requests a strong pain medication and the doctor has to figure out whether the request is legitimate. This is an aggravating situation on many levels. On the individual level, there are the immediate issues of trust — do I trust Mr. W.’s story, and, conversely, how will my decision affect Mr. W.’s trust in me?"

"Then there is the larger issue of how we doctors treat pain in general. A 2011 report from the Institute of Medicine highlighted how poorly the medical field handles pain. Undertreating pain, we are admonished, violates the basic ethical principles of medicine. On the other hand, we are lambasted for overprescribing pain medications, enabling addicts and creating an epidemic of overdose deaths."

"What are doctors to do? Pain is a subjective symptom. There is no instrument to indicate its severity. All that a doctor has is the patient’s word."


"For patients with chronic pain, especially those with syndromes that don’t fit into neat clinical boxes, being judged by doctors to see if they “merit” medication is humiliating and dispiriting. It’s equally dispiriting for doctors. This type of judgment, with its moral overtones and suspicions, is at odds with the doctor-patient relationship we work to develop."

This is going to be an issue for some years as prescription drug addiction has grown into a national health crisis. Patients with chronic pain who take these medications are not classically "addicts" even though they are reliant on these medications because they are seeking it for pain relief. Then there are addicts. How do physicians tell the difference? Years ago the medical community urged physicians to treat pain. Pain was undertreated. Now physicians are running scared. Physicians need to have new protocols and learn from those who have been too trusting of patients.



Tuesday, July 28, 2015

Executives and Professionals Are Held to a Higher Standard. What You Can Learn From Female Toyota Executive Who Resigned After Arrest for Mailing Prescription Drugs to Herself in Japan. Don't Let It Happen to You.

Executives and professionals are held to standards that are above and beyond those of the average person. For example, the company you work for or your licensing board may hold you to a standard that is higher than the standard for filing criminal charges in the United States. 

In addition, executives and professionals who travel or work abroad should be careful not to violate the laws in other countries since it could affect their careers and their liberty.  Other countries’ criminal justice systems are much different than ours and a person can spend weeks in jail before being brought to court.  

Toyota’s first-ever female executive officer, 55-year-old Julie Hamp, learned about the double jeopardy that exists when she mailed herself prescription painkillers to Japan where she was working.  She was arrested but not charged and ultimately resigned from her executive position at Toyota. She also learned about the Japanese legal system since she was in custody for over two weeks. In Japan, suspects can be detained for up to 23 days without a formal charge or the possibility of bail.

What happened here?  Ms. Hamp was arrested on June 18 on suspicion of importing an illegal pain medicine into Japan. Still transitioning from California to Japan after starting the move in early June, police claimed that Ms. Hamp illegally mailed herself over 50 tablets of Oxycodone to the Tokyo hotel she was staying at. Oxycodone is a legal prescription painkiller in the U.S. and Japan, but importing it into Japan without advance government permission is illegal and it is illegal to ship it by mail in Japan. The police conceded that Ms. Hamp was using the painkiller for health reasons (knee pain) and was not abusing it.

Japanese prosecutors said Ms. Hamp conspired with her father to import narcotics by hiding 57 tablets of Oxycodone in a package and sending it to Japan from the U.S. in June. The police claimed that the Oxycodone was not declared on the custom labels of the package and only stated that jewelry was inside. They also said that Ms. Hamp was aware that Oxycodone was tightly controlled under Japanese law.

On June 23rd, media outlets reported that the Japanese police raided the Toyota headquarters, which only raised further questions about the situation. A week later, despite support from Toyota's president that Ms. Hamp had not intentionally broken the law, Ms. Hamp stepped down from her new position. Due to being in police custody for 19 days and unable to contact the company directly, Ms. Hamp used her lawyer to tender her resignation.

Per capita, Japanese use of Oxycodone is 1/60 of American use, according to the Japanese Ministry of Health, Labor and Welfare. Japanese physicians save the pain killer for extreme cases like pain from advanced cancer, meaning it can be seen as an extreme narcotic overseas.

Ultimately, Japanese prosecutors announced  that Ms. Hamp would be released and they would not be charged. Police said Hamp's intent was not malicious and reports have claimed that her father was the one who sent her the pills. If they had decided to indict her, Japanese prosecutors claim they have close to a 99 percent conviction rate in drug cases.

Toyota said it would still accept Ms. Hamp's resignation due to the concerns the situation caused their stakeholders. Overall, improperly transporting prescription drugs into another country cost Ms. Hamp a high-level position at an international company, proving the importance of understanding United States laws as well as other countries' laws before visiting them or working there. We have had clients who had prescriptions in foreign countries for controlled substances and had issues in bringing them into the United States - so it works both ways. 

When Green and Associates' law firm represents someone in an investigation, the attorney and paraprofessional staff have to consider the big picture: their career, their family, any licensing (medical license, etc.), and reputation. In the United States, there are many regulations that criminalize behavior. Many of our cases involve individuals or companies allegedly breaking rules or regulations that were not fully understood or known.

The collateral consequences of even an arrest can damage a career. For example, if a physician, lawyer, accountant, CPA, real estate agent, nurse, or other licensed professional were arrested but not charged – the governing board or bureau can start an investigation and file charges since there is a different burden of proof. “Unprofessional conduct” and “moral turptiduge” are terms that are broadly defined  and do not have to be limited to conduct that occurred on the job.

Protect your career and license that you worked hard to establish. Be careful and seek legal advice when needed to protect yourself. Reliance on the compliance advice of counsel is a defense and protection when the laws and regulations are not clear. We would rather do preventive work first and prevent potential problems. It is also far less expensive to do preventative work. Ms. Hamp learned a hard lesson and we can all learn from her unfortunate experience.

If you have any questions about your specific situation, feel free to contact attorney Tracy Green us at 213-233-2260 or email us at tgreen@greenassoc.com.

Posted by Judson O. Tomaiko, Legal Assistant (Twitter: @JTomaiko)







Monday, July 13, 2015

Telemedicine (Telehealth) Rules Are Changing Slowly and Medical Boards and Payors Are Slowly Adapting. Be Careful to Follow State, Federal and Payor Rules

Today's New York Times has an article about telemedicine (we call it telehealth in California) entitled "Modern Doctors' House Calls: Skype Calls and Fast Diagnosis." It is a worthwhile read.

In my practice, I get calls from physicians and health care providers telling me that "telemedicine is now legal." This is especially common in aesthetic medicine (medical spas) in compliance with a physician or advanced practitioner visit before services are performed. While it is under certain circumstances, the efforts to make medicine like Uber or Lyft will face some challenges from medical boards, malpractice lawsuits, HIPAA compliance, prescribing issues, and insurance companies.

I have seen many physicians, health care providers and psychologists use Skype and FaceTime without researching their compliance and state rules. Remember, telemedicine (telehealth) is simply a valuable tool for providing health care services. 

It is as good as the policies and procedures followed. It is a valuable tool and can be very helpful to patients and practices. 

Here are things to think about if you are providing or plan to provide health care services via telemedicine (telehealth):

1.  If it is a new patient, you will be held to the standard of care for a physician having an in office visit. 

Physicians are held to the same standards and duties associated with practicing medicine regardless of whether they are practicing via telehealth or face-to-face, in-person visits. Your specialty will also come into play. Thus, if you are an internist or family practice physician, that is the standard. 

What if the patient has not had a physican in a certain number of years? How do you rule out other medical conditions?

How will you run labs (urine or blood) or perform other diagnostic studies? If the standard of care is that you take vital signs, how would that be accomplished?

2.  Prescribing is an issue. How will you prescribe for a new patient without a face to face visit? 

The prescribing laws in California for example are different than the telehealth laws and you must comply with them. For example, California requires that physicians perform a “physical exam” before prescribing drugs, and explicitly outlaws prescribing on “the internet” without a prior examination. Will your documentation meet this standard?

3.  Licensing. Most states require that you be licensed in their state. For example, physicians using telehealth technologies to provide care to patients located in California MUST be licensed in California. There are exceptions for consults but that requires that a physician request the consult and the other physician is simply using your review of the patient or medical records as a consultation.

4.  Informed consent. Physicians are held to the same responsibilities of providing informed consent. How will you obtain the written informed consent? How will that be in your file?

There are ways to handle this. The informed consent could be extremely useful to address some of the other issues raised here (the scope of the visit for example and a requirement that the patient go get a full physical and that you are not the primary care physician) but this needs to be thought out.

5.  HIPAA and State Privacy Laws. Physicians are held to the same responsibilities of ensuring the privacy of medical information. Skype and Facetime may not meet those requirements. They are not fully encrypted. There are services that are HIPAA compliant but Skype is not.

6.  Record keeping. Physicians are held to the same responsibilities of medical recordkeeping. 

7.  Malpractice and informed consent lawsuits and Board Complaints. I can imagine that in a couple of years we will see a lot of horror story lawsuits and Board complaints - probably many of them nuisance - simply because physicians and health care providers did not obtain written informed consents, did not follow HIPAA, did not keep good records and/or did not perform physicals or refer the patient for follow up.

8.  Medicare, Medi-Cal (Medicaid) and Private Insurance. Check with your biller on these issues. Medicare is not allowing billing for telemedicine and make sure your biller does not bill for phone or Skype visits or follow-up.

At present, the state laws are often limiting coverage to urgent care telemedicine.
For example, Washington is the 24th state to ensure reimbursement for some telemedicine services, does NOT cover virtual urgent care outside a medical facility.

It is the future but it will be carrier by carrier. UnitedHealthcare announced that by next year it would cover virtual urgent care visits for most of its 26 million commercial members by next year, citing the shortage of primary care doctors and the cost of less than $50 per virtual visit. Anthem will cover virtual urgent care visits for 16 million members in 11 states by the end of this year, and it expects the number to reach 20 million next year. 

Both insurers are relying on third-party telemedicine companies to provide the doctors and the technology platform for the service, just as most health systems do for now. Remember that these patients are already in the system where physicians have access to their records and they have a primary care physician. And the limit currently is for "urgent care." 

I believe that technology will vastly improve patients' lives and reduce the cost of health care. It will take time for us to adapt face-to-face to virtual examinations and get patients, providers, insurers, licensing boards, and malpractice standard of care all on the same page. If you are doing this, take the time to create policies and procedurers and run your plan by a health care lawyer. This is preventive medicine for your own practice.

For information or advice for your own practice, feel free to contact attorney Tracy Green at tgreen@greensasoc.com or 213-233-2260. Be careful out there.







Thursday, July 9, 2015

Health Insurance Companies Seek Big Rate Increases for 2016 - How Will This Affect Health Care Businesses and Providers?

Zach Gibson / New York Times
Health care providers need to follow what is happening with health insurance companies: the mergers, the rate increases, the data issues, the complexitites. These mirror what will be happening in the health care industry as a whole. 

Reporter Robert Pear’s article in The New York Times (7/3/15) entitled “Health Insurance Companies Seek Big Rate Increases for 2016” explains how “health insurance companies around the country are seeking rate increases of 20 percent to 40 percent or more, saying their new customers under the Affordable Care Act turned out to be sicker than expected.” Federal officials say they are determined to see that the requests are scaled back.

“Insurers with decades of experience and brand-new plans underestimated claims costs. Blue Cross and Blue Shield plans — market leaders in many states — are seeking rate increases that average 23 percent in Illinois, 25 percent in North Carolina, 31 percent in Oklahoma, 36 percent in Tennessee and 54 percent in Minnesota." 

The Oregon insurance commissioner just approved 2016 rate increases for companies that cover more than 220,000 people. Moda Health Plan, which has the largest enrollment in the state, received a 25 percent increase, and the second-largest plan, LifeWise, received a 33 percent increase.

Jesse Ellis O’Brien, a health advocate at the Oregon State Public Interest Research Group, said: “Rate increases will be bigger in 2016 than they have been for years and years and will have a profound effect on consumers here. Some may start wondering if insurance is affordable or if it’s worth the money.”

Sylvia Mathews Burwell, the secretary of health and human services, said that federal subsidies would soften the impact of any rate increases. Of the 10.2 million people who obtained coverage through federal and state marketplaces this year, 85 percent receive subsidies in the form of tax credits to help pay premiums.


The good news is that there are more insured consumers. There are opportunities for health care providers and businesses. Consumers may buy catastrophic insurance to keep costs low and pay cash for everyday care where they can choose their own physicians. 

The money is going to the insurance carriers. How will the money trickle down from the carriers to the providers?  There is a pent up demand and my physician clients who provide primary care are completely overwhelmed.  This will change but it will take some years for this to adjust and the price levels to become predictable and for providers and businesses to have an idea of what life will be like in 5 years. 

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law

Friday, June 26, 2015

Private Investigator Hired Hackers To Obtain User Names Passwords for Emails of People He Was Investigating. Being Sentenced Today For One Count of Federal Conspiracy to Commit Computer Hacking

Anyone tempted to hire an investigator to obtain access to another’s emails or hacks into someone else’s email should know that it is a federal crime. 

In addition, just because you see hacking services “advertised” on the Internet or in email solicitations do not mean that they are legal. Today, June 26, 2015, federal prosecutors are expected to seek a prison sentence of up to six months for a licensed private investigator in New York City, Eric Saldarriaga, 41, who admitted to hacking into emails on behalf of his clients.

Mr. Saldarriaga, age 41, pleaded guilty on March 6 before U.S. District Judge Richard J. Sullivan to one count of conspiracy to commit computer hacking, paid an unidentified overseas firm to secure the login credentials and passwords for the email accounts he wanted access to without permission.

Like many federal cases, the facts occurred years ago. In the plea agreement, Mr. Saldarriaga admitted that over six years ago, beginning in 2009 he found services advertised on the Internet (the “Hacking Services”). He then paid the Hacking Services to provide him with login credentials, including usernames and passwords, for e-mail accounts of numerous individuals he was investigating on behalf of his clients as well as individuals in whom Mr. Saldarriaga was interested for personal reasons. Mr. Saldarriaga then admitted that he unlawfully accessed and reviewed victims’ e-mail communications. In total, Mr. Saldarriaga  admitted that he hired Hacking Services to hack into, and provide unauthorized access to, at least 60 different e-mail accounts. These individuals are the “victims” in this federal case.

Mr. Saldarriaga has been the only one charged with a crime, even though some of those who hired him appear to have been aware of what he was doing. Mr. Saldarriaga's clients are known to have included lawyers, wealthy people and even other private investigators.  Some of the victims of Mr. Saldarriaga's email hacking, like Tony Ortega, a former editor of The Village Voice who has written about Scientology, have been pressing the prosecutors in the U.S. Attorney’s Office to reveal the name of the clients.

The sentence was left up to Judge Sullivan and in sentencing memoranda, the defense sought probation while the prosecutors sought six months of prison. The maximum sentence for this charge is 5 years in federal custody but that is not expected since this is Mr. Saldarriaga’s first offense and he only made $5,000 from these hacking assignments. The assigned Assistant U.S. Attorney argued in a pre-sentencing memorandum that Mr. Saldarriaga's invasion of privacy warranted a stronger punishment than the six months of home detention and three years of supervised probation recommended by the court's own probation department. "Unlike defendants in a gun or drug case, who often act without reflection, there is reason to believe that individuals who engage in hacking and other forms of cybercrime can be deterred by a substantial threat of penalties," he wrote.

Judge Sullivan later sentenced Mr. Saldarriaga to three months in prison because the guidelines showed that economic losses by the victims were minimal. However he noted that the guidelines do not cover the drastic invasions of privacy performed and ordered that Mr. Saldarriaga also serve three months of home detention after his release as a deterrent to others. Two victims who addressed the court requested that sentencing be put off until they discover who paid Mr. Saldarriaga to hack their emails. One of the victims suspected it was the Church of Scientology who has hired investigators before to follow him after he wrote news articles critical of the church. Yet Judge Sullivan noted it was not his job to investigate that matter and that he could not force Mr. Saldarriage to reveal who hired him.

The lesson from this case is that while all attorneys and parties in a case would enjoy having an upper hand by knowing the private communications of others, any such temptation must be resisted. As I tell my clients when they ask me to do something that is not legal in order to gain advantage: “who will be representing you while I am in jail?” Litigation and business/family disputes can be incredibly frustrating especially when the other side is not fair or is incredibly unreasonable. However, ethics and following the law are required and everyone should use legal means to obtain information. There are a wide number of ways to obtain information legally and this should be exhausted in these cases.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Monday, June 15, 2015

Largest Health Insuance Companies Are Seeking to Merge in Order to Capture Medicare Managed Care Patients In a Multi Billion Dollar Industry

The Los Angeles Times reports today in an article entitled "Anthem, other health insurers are eyeing consolidation" by Chad Terhune that Anthem (the largest for profit insurer in California) is one of the potential bidders for Humana, Inc. The Los Angeles Times reports that Anthem had annual revenue of  $73 billion and profit last year of $2.6 billion. The consolidation of insurance companies is a trend that has been predicted for years in the health care industry. Humana is sought after due to its expertise in managed care plans for Medicare patients.

What does this mean for providers? There will be fewer carriers and it will be critical to have managed care and insurance contracts with the largest providers as the health care industry consolidates.

Posted by Tracy Green, Esq.

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