Six Things Every Lawyer Should Know About Health Law
by Chuck Blanchard, Jennie Knapp and Debrán O’Neil
Most lawyers do not represent healthcare providers; fewer delve deeply into healthcare regulations. Nonetheless, every lawyer should have a basic understanding of several health law topics.
1. Treatment Decisions.
Individuals can make future medical treatment wishes known and generally enforceable through directives, medical powers of attorney (MPOA) and do not resuscitate orders (DNRs). Directives and DNRs instruct healthcare providers whether to administer life-sustaining treatment. MPOAs designate agents to make healthcare decisions in the event of incapacity. These tools are governed by Texas Health and Safety Code Chapter 166. Without them, the attending physician makes treatment decisions in consultation with a patient’s relative, or, if no relative can be found, another physician. If a physician refuses to follow directives or if there is disagreement, the statute provides some process for resolution. Other legal remedies (such as guardianship) may also be available.
2. Anti-Kickbacks and Stark.
The Anti-Kickback statute (42 U.S.C. § 1320a-7b(b)) prohibits giving or receiving payments aimed to influence the referral of Medicare and Medicaid patients to particular healthcare providers. Stark laws (42 U.S.C. § 1395nn) restrict physicians from referring patients to providers with which the physician has a financial relationship. Texas has similar laws—Texas Occupation Code Chapter 102 and Texas Human Resources Code Chapter 32—applicable to patients covered by federal programs and private insurance. These statutes are implicated in situations that are not always obvious. For example, they have been considered in cases involving municipalities structuring services for residents, grocers providing rewards for prescription purchases and charities assisting the sick. Entities doing business with healthcare providers should consider the application of these laws, and proposed business arrangements can be submitted to the Office of the Attorney General for opinions on whether they will violate Anti-kickback and Stark statutes.
HIPAA and the HITECH Act establish federal protections for patient information. Texas Health and Safety Code Chapter 181 provides additional requirements, particularly regarding training for employees handling protected information. While these statutes focus on healthcare providers, they also cover “business associates” —those who perform functions involving protected information, such as legal, accounting and information technology services. All covered entities may face civil or criminal penalties for violations of these privacy laws and are required to follow mandated security, training and disclosure provisions. Any entity that comes into contact with protected health information should take steps to ensure compliance.
4. Medicare Reimbursement.
The Medicare Secondary Payer Act (MSPA) requests that Medicare be reimbursed when patients receive payments from third parties for bills Medicare already paid. MSPA applies to payments on final judgments or settlements that include compensation for bills paid through Medicare. Any case where the plaintiff’s damages may be paid through Medicare (in whole or in part) could trigger a right to reimbursement of the full Medicare amount, although the reimbursement can be negotiated to account for attorneys’ fees or other costs. For past medical bills, documentation of the amount Medicare spent should be obtained. Medicare is commonly reimbursed by writing a check payable to plaintiff’s counsel and Medicare for the amount. For future Medicare expenses, defendants might seek indemnification or the establishment of a Medicare Set Aside, which makes reimbursement payments to Medicare as they become due.
5. Chapter 74.
Texas Civil Practice and Remedies Code Chapter 74 places additional requirements and limitations, such as expert reports and damage caps, on health care liability claims (HCLCs). Courts have struggled to define HCLCs, sometimes dismissing cases brought by lawyers who assumed that Chapter 74 did not apply. In 2012, the Texas Supreme Court extended Chapter 74 to both the complaint of an employee of a healthcare facility injured by a patient and to complaints of sexual assault against a physician. If a claimant has any uncertainty as to whether Chapter 74 applies, she would be well served to produce an expert report out of caution and then argue that the claim is not subject to Chapter 74’s requirements.
Clients with complaints regarding healthcare services may wish to contact the following:
- For physicians: Texas Medical Board (www.tmb.state.tx.us)
- For hospitals, surgery centers, mental health centers and other facilities: Texas Department of State Health Services (www.dshs.state.tx.us)
- For nursing homes, assisted living facilities, home health and hospice: Texas Department of Aging and Disability Services (www.dads.state.tx.us)
- For health insurance: Texas Department of Insurance, www.tdi.state.tx.us
- For consumer complaints, including products, access to healthcare, Medicaid fraud and insurance: Office of the Attorney General (www.oag.state.tx.us)
Chuck Blanchard, Jennie Knapp and Debrán O’Neil practice at Carrington, Coleman, Sloman & Blumenthal, L.L.P. They can be reached at firstname.lastname@example.org, email@example.com and firstname.lastname@example.org, respectively.