PHYSICIAN LIABILITY UNDER COLLABORATIVE PRACTICE AGREEMENTS

In Indiana, and in some other states, nurse practitioners are allowed to provide certain medical services under the general supervision of a physician under a collaborative practice agreement (CPA).  In a recent Indiana case a plaintiff’s estate sought recovery alleging the physician was negligent in providing care to a patient because of the death of the patient after receiving medical care and treatment from the nurse practitioner.  The plaintiff’s apparent theory was that the doctor should be liable for any negligence of the nurse practitioner where a CPA was in place.

Interestingly, the court looked not so much at the statutory authority for nurse practitioners and CPAs, but rather to the language of the CPA itself which specifically contained language that the nurse practitioner would exercise his/her own independent judgment with regard to treatment and medical care, and that the CPA did not increase or created any liability for the consulting physician.  The court determined then, that only if the physician had entered into a physician/patient relationship and performed any affirmative act with regard to the patient could the doctor be held liable.

The important takeaway here is (i) CPAs do not automatically create liability for physicians in such an arrangement; and (ii) collaborative practice agreements need to be very carefully written in Indiana if a physician wishes to avoid liability under such agreements.

FIRE YOUR PAYOR

While many times I am consulted by physicians who are upset that a payor plan is terminating the physician, sometimes I have physicians ask me how to fire a particular payor who is failing to pay claims timely, adequately or consistently.  The first stop is always looking at any written participation agreement with the payor.  This agreement will usually contain much of what we need to consider in determining how and when to terminate a particular payor so that proper notice is given, particularly with regard to so-called evergreen contracts which automatically renew unless you give notice to terminate.  Other issues which often arise are sending notice to the proper address and the proper payor officers required by the contract.  This technical step is often the basis for disputes.

The next question is strategic – do you want to terminate the payor completely or only for certain areas or lines of practice?  What time period for termination will minimize the impact on your patients?  Is the “bad behavior” of your payor limited to that payor, or is it part of an industry trend?

BUSINESS ASSOCIATE AGREEMENTS WITH PROFESSIONALS

Changes to HIPAA make it clear that you should have business associate agreements with your legal, billing, accounting and other professional providers, if, at any time, you share protected health information with them.  Because of the ethical rules that apply to providing legal services, and to some degree, ethical issues with accounting and other professional services, such BAAs are different than typical nonprofessional service provider BAAs.  If you would like to see a sample for a BAA for a law firm, click the following link: HIPAA Business Associate Agreement - Law Firm.

SECURITY RISK ASSESSMENT

HIPAA and HITECH require medical practices and hospitals to perform risk assessments as part of their HIPAA security policy and procedure adoption.  These policies require you to protect against reasonably anticipated threats or hazards to the security or integrity of electronic PHI (EPHI), and to implement security measures to sufficiently reduce risks to EPHI.  Such risk assessments are not rocket science, but do require a systemic review of the operations of your practice or hospital in a number of areas.  Such assessments obviously defer whether the assessment is for a small physician practice, a complex multidisciplinary clinic or a hospital.  If you would like to view an example of our outline for HIPAA Security Risk Assessment for a small physician practice, click the following link: HIPAA Security Risk Assessment - Small Physician Practice.

UNITED HEALTHCARE TERMINATING PHYSICIANS

United Healthcare has been terminating many physicians in at least nine states from its Medicare Advantage Plan.  Apparently, United Healthcare believed that it could unilaterally amend the plans to allow it to terminate the physicians, and then immediately terminated the physicians.  A federal judge in Connecticut has temporality blocked United Healthcare from dropping 2,200 physicians in that state.  We understand that the Ohio State Medical Association and others are considering filing similar suits.  United Healthcare has been active in Indiana terminating physicians also.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions about this newsletter or any other matter at (812) 402-1600 or pwallace@joneswallace.com.