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Jones Health Law Podcast: Episode 1 – Health Insurance

We have officially released our very first podcast episode! Click HERE to listen or below.

We call this series “PERSPECTIVES” because the goal is to interview individuals who work as practitioners and professionals in the health care industry and ask them to answer focused questions about the health care industry from their perspective. In future episodes we will interview, healthcare executives, healthcare providers as well as healthcare entrepreneurs.

 

 

In this episode we discuss health insurance with licensed health insurance Agent, Oxana “Oxanacare” Parfenova. She discusses the (1) challenges of being a Health Insurance Agent; (2) how and why she got into the industry; (3) distinguishes between Obamacare a/k/a Affordable Care Act and commercial plans; (4) common health insurance acronyms, phrases and words that are important for any subscriber to understand; (5) current and future industry trends; and (6) most importantly who is eligible for health coverage and how, when and where can they obtain that coverage…and at what cost?

Oxana can be reached at:

Instagram: @Oxanacare

Phone: 786-352-5879

Email: OxanaP87@gmail.com

Criminal Liability for Rationing Medical Equipment During the Coronavirus Pandemic

Recently, a physician client called me and she was very concerned about potentially being charged with murder for rationing medical equipment, such as ventilators, during the COVID-19 Pandemic. She had been instructed by superiors to use the ventilators, which were in scarce supply, only on those patients that had the best chance of recovery. For the others, she would effectively be sentencing them to death and this caused added stress to an already stressful situation. I took the time to alleviate her concerns about potential liability and thought that I would share it with you as well.

 

  1. Can I Be Convicted of Murder for Rationing Medical Equipment?

 

In Florida, Excusable Homicide is defined as “the killing of a human is excusable, and therefore lawful when the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent.” I am not a criminal law attorney, but I believe that a physician could use Excusable Homicide as a defense in the very unlikely event that he finds himself in a position where murder charges were brought against him in connection with the death of a patient who didn’t receive certain medical treatment due to equipment rationing.

Florida has 3 different degrees of murder but I will only discuss the most serious, first-degree murder. First degree murder is defined as any intentional murder that is willful and premeditated. For a first-degree murder conviction, premeditation and deliberation must be proven. This doesn’t mean that a specific period of time must be involved in the planning of the murder. A prosecutor would only have to show that the perpetrator had enough time to consciously form a plan to commit the act with the intent to kill while also having enough time for a reasonable person to stop themselves from committing the act. It is not the intent of a healthcare provider to kill a patient when they ration medical equipment or supplies. They have limited resources and are making the best use of those resources given the circumstances. Absent any evidence to the contrary, I believe that any deliberation by the provider would be about prolonging human life and not willfully ending it. This is why I’m confident that no healthcare providers will be charged or convicted of first-degree murder, or any of the lesser degrees, for rationing of medical equipment during this pandemic.

  1. Can I Refuse to Provide Emergency Treatment to a Patient During the Pandemic?

 

The most obvious situation when a physician can refuse treatment is if the physician does not treat patients with the patient’s specific condition. In 1986, President Ronald Reagan signed the Emergency Medical Treatment and Active Labor Act (“EMTALA”) into law. The legislative intent of the law was very straightforward. A hospital with an emergency department could not turn away patients needing care because of their inability to pay. Hospitals are also prohibited from “dumping” patients onto other facilities for reasons other than receiving advanced treatment. Under EMTALA, if a patient presents herself to an ED with an emergency condition the ED is required to stabilize and treat the patient, regardless of her ability to pay. It’s important to note that a hospital may correctly follow EMTALA guidelines but still be responsible for malpractice damages if they misdiagnose a patient.

There may be situations where a hospital and its physicians do not have the capability to fully stabilize and treat a patient. In those situations, EMTALA allows a hospital to transfer the patient to get the appropriate level of care. For example, if a hospital is short on ventilators due to the Coronavirus that hospital may transfer the patient to another hospital that has an available ventilator so long as the patient is stable enough to physically handle the transfer and they’ve received informed consent.

Under EMTALA, a patient cannot directly sue a physician or hospital for not complying with EMTALA’s requirements, but physicians may be subject to civil monetary penalties and may be subject to exclusion from participation in the Medicare and Medicaid programs for repeated violations of EMTALA.

  1. Prohibited Activities and Liability during the Coronavirus Pandemic

 

Under Florida Statute §458.3295(1), which is titled “Concerted effort to refuse emergency room treatment to patients; penalties”, A Florida licensed physician may not instigate or engage in a concerted effort to refuse or get physicians to refuse to render services to a patient or patients in a hospital emergency room by failing to report for duty, absenting themselves from their positions, submitting their resignations, abstaining from the full and faithful performance of their medical duties, or otherwise causing conduct that adversely affects the services of the hospital. For the purposes of this subsection, the term “concerted” means contrived or arranged by agreement, planned or devised together, or done or performed together in cooperation.

Under Florida Statute §395.1041, Neither the hospital nor its employees, nor any physician, dentist, or podiatric physician are liable if a refusal to render emergency services or care is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services. If a hospital does not have capacity, the necessary medical equipment or supplies to treat a patient due to the Coronavirus pandemic, the hospital and its providers cannot be held liable for refusing to render certain emergency services or care.

  1. Final Thoughts

 

Presently, we are dealing with an extremely unusual set of circumstances and difficult decisions have to be made. The reality is that we have to ration the ventilators. We have over 350 million people in this country and estimates are that 40-60% of the population have or will contract COVID-19. Italy, Spain, France and China have had to ration their ventilators. Even healthcare providers are becoming sick and are using the ventilators.

The federal government, so far at least, is not providing national rationing guidelines for the coronavirus outbreak other than those issued by the CDC, HHS and VA. The Centers for Disease Control and Prevention has laid out general principles for how to allocate scarce resources in a pandemic response plan, but it leaves most of the details to individual states and institutions. States are coming up with their own ethical principles to determine need, while others are prioritizing patients based on their health condition, preexisting health problems and age. Countries around the world are doing the same thing. It’s not a first-come first-serve model right now. Hospitals are transferring patients to less crowded hospital or healthcare facilities, sanitizing and reusing supplies, coming up with makeshift ventilators, cancelling elective surgeries and procedures etc. Anything they can do to treat patients. To avoid conflicts of interest and the emotional toll of life-or-death judgments, many state plans call for a senior, supervisory doctor or a panel of doctors — similar to a “three wise men” protocol developed in Britain for this scenario — who are not the provider directly caring for the patient.

The Coronavirus Pandemic has been compared to a war and our doctors and nurses are the front line of defense. They’re our soldiers in this battle. They are basically operating under combat medicine guidelines, which means that they have to triage patients and prioritize care in a discriminate way based upon their chances of recovery but not discriminatorily. I can’t imagine a scenario where a prosecutor would bring charges against a physician for making the difficult decisions that they had to make during this pandemic. Even if they do, I doubt that a jury of their peers would find them guilty of murder given the circumstances. When this pandemic is behind us, I don’t believe that any healthcare providers will be charged or convicted of murder for rationing any medical equipment or supplies.

 

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Coronavirus (Covid-19) Creates Opportunities for Use of Telehealth in Florida

I. Introduction

For several years, we have discussed the practical benefits of using Telehealth or Telemedicine as a supplement to traditional medical care and not as a replacement. However, we are facing a moment in history where Emergency Rooms are becoming increasingly overwhelmed and don’t have the staff, resources, healthcare professionals, respirators, ventilators and other equipment necessary to adequately and expeditiously treat patients.  Telemedicine is becoming more essential now that countries around the world are paralyzed due to the spread of the Coronavirus which has resulted in a pandemic.

Telemedicine is useful for those individuals who are unable or unwilling to travel to their healthcare provider while allowing them to receive the same level of care and treatment through the use of medical technology. Telemedicine is particularly useful during times like this when individuals have to self-quarantine and when a State of Emergency has been issued as a measure to minimize the spread of the virus. Telemedicine may have the ability to assist healthcare professionals by remotely diagnosing conditions, such as the Coronavirus without putting the health of others in jeopardy. The Coronavirus can cause respiratory problems, among others, and the elderly and those with pre-existing conditions regardless of age are particularly susceptible to the effects of contracting the virus, including death.

II. Florida Law

Now is as good a time as any for those who are interested in incorporating Telehealth into their practice to become familiar with the Florida laws that govern its use. Prior to the passage of House Bill 23 (Chapter 2019 – 137), the Standards for Telemedicine practice were governed by Florida Administrative Code 64B8-9.0141 (for Medical Doctors) and 64B15-14.0081, which have since been repealed and replaced by this House Bill and Florida Statute §456.47.

          A. What is Telehealth under H.B. 23

“Telehealth” is defined as the use of synchronous or asynchronous telecommunications technology by a telehealth provider to provide healthcare services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. The term does not include audio-only telephone calls, email messages, or facsimile transmissions. A “Telehealth Provider” means any individual who provides healthcare and related services using telehealth and who is licensed or certified under the appropriate Florida Statute or who is licensed under a multi-state health care licensure compact of which Florida is a member state or is a registered out-of-state telehealth provider. A telehealth provider and a patient may be in separate locations when telehealth is used to provide healthcare services to a patient. It should be noted that it is not a violation for a non-physician telehealth provider using telehealth and acting within his or her relevant scope of practice.

          B. Telehealth Prescribing and Recordkeeping

A telehealth provider may not use telehealth to prescribe a controlled substance unless the controlled substance is prescribed for the following: (1) the treatment of a psychiatric disorder; (2) inpatient treatment at a hospital; (3) the treatment of a patient receiving hospice services: or (4) the treatment of a resident of a nursing home facility.

A telehealth provider must document in the patient’s medical record the healthcare services rendered using telehealth according to the same standard as used for in-person services. Medical records, including video, audio, electronic, or other records generated as a result of providing such services are confidential and must comply with HIPAA requirements.

          C. Out-Of-State Telehealth Providers

                1. Registration of Out-Of-State Telehealth Providers

A healthcare professional not licensed in Florida may provide healthcare services to a patient located in this state using telehealth if the healthcare professional registers with the applicable board and provides those healthcare services within the applicable scope of practice established by Florida law. In order for an out-of-state healthcare professional to be registered they have to prove or complete the following: (1) complete an application to provide telehealth services as an out-of-state provider; (2) have an unencumbered occupational license that was issued by another state, the District of Columbia, or a possession or territory of the United States and that is substantially similar to the license issued to a Florida-licensed provider. Foreign trained providers without a valid Florida-professional license are ineligible to register to provide telehealth services in Florida; (3) has not been the subject of disciplinary action relating to his or her license during the 5-year period immediately preceding the submission of their application; (4) designates a duly appointed registered agent for service of process in this state; and (5) demonstrates to the board that he or she maintains professional liability coverage or financial responsibility.

A healthcare professional may not register if his or her license to provide healthcare services is subject to a pending disciplinary investigation or action, or has been revoked in any state or jurisdiction. If you are a duly registered healthcare professional, you must notify the appropriate board of any restrictions placed on your license to practice, or any disciplinary action taken or pending against you, from any state or jurisdiction within 5 days after the restriction is placed or disciplinary action is initiated or taken.

               2. Insurance Coverage

As noted above, a registered provider must maintain professional liability coverage or proof of financial responsibility, that includes coverage or financial responsibility for telehealth services provided to patients not located in the provider’s home state.

               3. Physical Presence

An out-of-state healthcare professional may not open an office in Florida and may not provide in-person healthcare services to patients located in this state.

               4. Disciplinary Action Against Out-Of-State Telehealth Provider

The board may take disciplinary action against an out-of-state telehealth provider if the registrant: (1) fails to notify the applicable board of any adverse actions taken against his or her license; (2) has restrictions placed on or disciplinary action taken against his or her license in any state or jurisdiction; (3) violates any of the requirements of this section; or (4) commits any act that constitutes grounds for disciplinary action under the applicable practice act for Florida-licensed providers. Disciplinary action may include suspension or revocation of the provider’s registration or the issuance of a reprimand or letter of concern. A suspension may be accompanied by a corrective action plan the completion of which may lead to the suspended registration being reinstated according to the rules adopted by the board.

          D. Venue

Any act that constitutes the delivery of health are services is deemed to occur at the place where the patient is physically located at the time the act is performed or in the patient’s county of residence.

          E. Exemptions

A healthcare professional who is not licensed to provide healthcare services in this state but who holds an active license to provide healthcare services in another state or jurisdiction, and who provides healthcare services using telehealth to a patient located in this state, is not subject to the registration requirement if the services are provided: (1) in response to an emergency medical condition; or (2) in consultation with a healthcare professional licensed in this state who has ultimate authority over the diagnosis and care of the patient.

          F. Reimbursement for Telehealth Services

A contract between a health insurer issuing major medical comprehensive coverage through an individual or group policy and a telehealth provider must be voluntary between the insurer and the provider and must establish mutually acceptable payment rates or payment methodologies for services provided through telehealth. Any contract provision that distinguishes between payment rates or payment methodologies for services provided through telehealth and the same services provided without the use of telehealth must be initialed by the telehealth provider.

 

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

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