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 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.

Monday, May 18, 2015

California Concierge Physician and Her Husband Arrested For Unlicensed Practice of Medicine and Conspiracy to Furnish Morphine After 88 Year Old Patient Dies at Her Home

Concierge medicine that involves Scheduled narcotics appears to be under greater scrutiny, especially where there are unlicensed people involved and bad medical results for elderly patients. 

Last week, Dr. Ellen Crowe (age 54) and her non-physician husband Paul McQuillan (age 61), were arrested and charged in Ventura County Superior Court with  felonies relating to the death last year of 88 year old Polly Duntley of after she was allegedly given morphine. An arrest contains allegations that a defendant has committed a crime. Every defendant, including these, is presumed to be innocent until proven guilty in court.

The case involves a concierge medical practice that makes home visits called “House Call Visits Thousand Oaks” and is allegedly owned by Dr. Crowe and is operated by both she and her husband Mr. McQuillan. A May 15, 2015, Los Angeles Times article on this case  by Matt Hamilton details the allegations in the case.

This case was investigated by the Ventura County Interagency Pharmaceutical Crimes Unit and the State of California Medical Board. The Ventura County Interagency Pharmaceutical Crimes Unit is a task force made up of members of the Ventura County Sheriff’s Office, Simi Valley Police Department, the District Attorney’s Office Bureau of Investigation and the California Highway Patrol.

Dr. Crowe and Mr. McQuillan are a married couple who own and operate a business known as House Call Doctor Thousand Oaks (“House Call DTO”), and Ms. Duntley was a patient, said Sgt. Victor Fazio, of the Ventura County Sheriff’s Office.  The allegations are that on July 30, 2014, a physician (other than Dr. Crowe) from House Call DTO made a visit to Ms. Duntley’s home. Ms. Duntley  had her first appointment at her home with the medical practice and she was complaining of pain in her leg, Sgt. Fazio said. A physician other than Dr. Crowe saw her. This physician ordered x-ray and ultrasounds tests to be performed the next day.   

The next on July 31, 2014, Mr. McQuillan, who has no official medical training, responded to the home of Ms. Duntley in Camarillo on the follow-up visit,  authorities said.
Authorities allege that Mr. McQuillan injected Ms. Duntley with morphine provided by Dr. Crowe and ordered by the other doctor, making the injection just before X-ray and ultrasound tests were to take place at the residence. Ms. Duntley fell into a deep sleep within minutes, authorities said.

After the injection, Mr. McQuillan left the residence to treat another patient in the neighborhood, and in his absence, a technician from another company arrived to perform the ultrasound, authorities said. 

Mr. McQuillan returned while the ultrasound was being conducted, realized Ms. Duntley no longer had a pulse, called 911 and tried to provide first aid, authorities said. Emergency responders resuscitated Ms. Duntley, but she never regained consciousness. She died in a hospital on August 2.

Mr. McQuillan was arrested at his home and a search warrant was served there, authorities said. Dr. Crowe was located in Bakersfield and arrested as well.

Mr. McQuillan was booked into county jail on (1) suspicion of practicing medicine without a license and (2) furnishing morphine, authorities said. 

Dr. Crowe was booked on (1) suspicion of conspiracy to practice medicine without a license and (2) conspiracy to furnish morphine. They were released on bail and are scheduled to be arraigned in Ventura County Superior Court on May 27.

Practitioners need to ensure that they are fully compliant in home visits and concierge medicine. Patients with serious medical conditions may not be appropriate for home care and all steps should be taken to ensure that no unlicensed personnel engage in the unlicensed practice of nursing or medicine.

Posted by Tracy Green, Esq.


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