By Kim Stanger
The Idaho Board of Medicine’s recent disavowal of the corporate practice of medicine doctrine has made it easier for corporations and non-physician individuals to invest in or own medical practices in Idaho.
The Corporate Practice of Medicine. For decades, the Idaho Board of Medicine took the position that, with limited exceptions, the Idaho Medical Practice Act “prohibits unlicensed corporations and entities from hiring physicians as employees to provide medical services to patients.” (Memo from J. Uranga to Idaho State Bd. of Medicine dated 2/26/07). This “corporate practice of medicine” doctrine (“CPOM”) had its foundation in a 1952 Idaho Supreme Court case which held that:
[n]o unlicensed person or entity may engage in the practice of the medical profession though licensed employees; nor may a licensed physician practice as an employee of an unlicensed person or entity. Such practices are contrary to public policy.
(Worlton v. Davis, 73 Idaho 217, 221 (1952)). The Board of Medicine warned that violations of the doctrine may result in disciplinary action against physicians and, more recently, physician assistants. Entities that improperly employed physicians or physician assistants risked the possibility of criminal action for the unauthorized practice of medicine. Continue reading
by Kim Stanger
A new Idaho statute confirms that physician assistants and advanced practice nurses may admit patients to hospitals and other healthcare facilities if allowed by the facility’s bylaws.
Background. Historically, admitting privileges were usually reserved to physicians; however, such a limitation (whether real or imagined) seems to have become somewhat outdated given the expanding role of physician assistants and advanced practice nurses, whose licensure allows them to perform services traditionally performed by physicians. Many hospitals increasingly rely on midlevel practitioners to care for patients, especially in rural areas where physicians are in short supply or decline to participate in call coverage. The new statute resolves regulatory ambiguity concerning the authority of midlevels to admit patients. Continue reading
by Kim Stanger
Recent amendments will allow guardians and those treating developmentally disabled persons greater discretion in withholding or withdrawing artificial life-sustaining treatment, thereby avoiding situations in which developmentally disabled persons were forced to suffer painful, extended procedures which may be considered inhumane.
The Former Standard. Under Idaho law, the guardian or personal representative of an incompetent person may generally authorize the medically appropriate withdrawal of treatment for the patient. (I.C. §§ 39-4504(1) and 39-4514(3)). In the case of developmentally disabled persons, however, the former law prohibited guardians and physicians of developmentally disabled persons from withholding or withdrawing artificial life-sustaining treatment unless the treating physician and one other physician certified that the person had a terminal condition such that the application of artificial life-sustaining treatment would only serve to prolong death for a period of hours, days or weeks, and that death was imminent regardless of the life-sustaining procedures. (I.C. § 66-405(7)-(8)). Unfortunately, this standard looked only at the length of the patient’s life without considering the pain that the patient may be forced to endure in the meantime. Because of advances in medicine, healthcare providers are often able to keep persons alive for months or years, but at a terrible cost in suffering to the patient and their loved ones. Application of the former standard sometimes resulted in heartbreaking situations in which developmentally disabled persons—often with little or no cognition—were relegated to an existence that offered nothing more than perpetual pain or discomfort instead of allowing the medically appropriate withdrawal treatment. By so doing, the standard deprived developmentally disabled persons of rights that were offered to others. Continue reading
By Rob Low, Holland & Hart LLP
On October 24, 2016 a federal judge approved a preliminary settlement between the Idaho Department of Health and Welfare and developmentally disabled Idaho residents. The settlement, if finalized, will end a class action lawsuit brought against the Department in 2012 by the Idaho American Civil Liberties Union (ACLU) of Idaho on behalf of 12 Idaho residents with severe disabilities.
The lawsuit alleged that the Department cut the residents’ benefits provided through Idaho’s developmentally disabled Medicaid waiver program by as much as 40 percent, and refused to disclose how it calculated such reduction in benefits (claiming the calculation formula was a state “trade secret”), which made it nearly impossible for the residents to appeal the benefit cuts. Judge B. Lynn Winmill, enjoined the cuts, which resulted in the restoration of approximately $30 million in Medicaid assistance annually. The Department appealed, but the injunction was upheld by the federal Ninth Circuit Court of Appeals. According to the ACLU of Idaho website, the settlement will impact about 4,000 people across Idaho, plus all future program participants. Continue reading
by Kim C. Stanger, Holland & Hart LLP
Hospitals and other entities that offer incentives to recruit physicians must ensure their arrangements comply with federal and state laws governing financial relationships with physicians, including the the Ethics in Patient Referrals Act (“Stark”), Anti-Kickback Statute (“AKS”), and the IRS’s 501(c)(3) requirements. Recruitment arrangements usually need to fit within one of the following safe harbors:
1. Employment Arrangements. If you are going to hire the physician as an employee and pay him or her no more than fair market value, you can structure the deal to fit within Stark’s bona fide employment safe harbor, which requires the following:
- The employment must be for identifiable services.
- The compensation (including benefits, housing, relocation reimbursement, stipends, and anything else of value given to the physician) must be consistent with fair market value.
- The compensation may not take into account the volume or value of referrals. For example, you may not compensate the physician based on, or give the physician a percentage of, services performed by other persons or ancillary tests ordered by the physician. You may, however, compensate the physician based on services the physician personally performs.
(42 CFR 411.357(c)). Under the employment safe harbor, you are not required to have a written agreement or establish the compensation formula in advance, but it is generally a good idea to do so to avoid misunderstandings. Complying with the foregoing Stark parameters should also satisfy the AKS and 501(c)(3) rules. (See 42 CFR 1001.952(i); IRS Healthcare Provider Reference Guide, 2004 EO CPE Text at p.18). If you need to pay more than fair market value or provide additional incentives to recruit the physician, you will likely need to structure the deal to satisfy the Stark recruitment safe harbor described below. Continue reading
by Melissa Starry, Holland & Hart LLP
Direct Primary Care (“DPC”) is increasing in popularity in the United States as an alternative payment model for primary care medical services. Instead of fee-for-service insurance billing, typically a DPC medical provider enters into an agreement with its patients and charges its patients a monthly, quarterly, or annual fee that covers all or most primary care services. Given the fact that a DPC medical provider takes on a certain amount of risk in agreeing to provide primary care services to patients for a fixed amount (regardless of how often a patient is seen by the provider), there were concerns that such an arrangement could be interpreted under Idaho law as the provision of insurance. With the passage of the Idaho Direct Medical Care Act1 (the “Act”), and subsequent signing by Governor Butch Otter, Idaho is now the ninth state in the country to pass legislation to ensure that DPC medical providers are not treated as insurance products by state regulators. Continue reading
by Kim C. Stanger, Holland & Hart LLP
Idaho law allows hospitals and other healthcare providers to file a lien to help secure payment of treatment to persons who have been involved in an accident or who might otherwise be entitled to recovery from a third party for injuries the patient suffers. The lien statute is, however, limited in scope and must be strictly followed to enforce the lien.
Medical Liens. Idaho’s medical lien statutes allow hospitals,1 nursing care providers,2 and other entities licensed to practice medicine3 to file a lien “for the reasonable charges for … care, treatment and maintenance of an injured person, … or to the legal representative of such person, on account of injuries” caused by another person.4 Significantly, the lien statutes do not apply charges for care rendered to all patients; instead, they only apply to charges for care rendered to patients who were injured by the actions of another person (e.g., auto accidents, personal injury cases, assault and battery, etc.). Also, the lien statutes do not enable the healthcare provider to file or enforce a lien against the patient’s own property; instead, the lien gives the healthcare provider a right to recover against the person or entity causing the patient’s injuries (the “tortfeasor”). The net effect is that the tortfeasor (or their insurer) will want to ensure that the provider is paid as part of any personal injury settlement, or the tortfeasor may remain directly liable to the provider for the cost of the provider’s care. The lien does not apply to accidents or injuries that are covered by workers compensation.5
by Melissa Starry
As has been widely reported, the Idaho Board of Medicine recently sanctioned a physician for prescribing a common antibiotic over the phone without a prior examination or established patient relationship. This short alert will, hopefully, clear up some of the misunderstanding caused by the media reports.
General Prohibition. Idaho Code § 54-1733 states:
a prescription drug order for a legend drug is not valid unless it is issued for a legitimate medical purpose arising from a prescriber-patient relationship which includes a documented patient evaluation adequate to establish diagnoses and identify underlying conditions and/or contraindications to the treatment. Treatment, including issuing a prescription drug order, based solely on an online questionnaire or consultation outside of an ongoing clinical relationship does not constitute a legitimate medical purpose.
(Idaho Code § 54-1733(1)). As in other states, the Idaho statute was passed to address standard of care concerns resulting from internet pharmacies and “tel-a-doctor” companies. A violation of the statute constitutes unprofessional conduct which may subject the practitioner to adverse licensure action. (Id. at § 54-1733(5)). Continue reading
by Kim Stanger, Holland & Hart LLP
I am frequently asked how an Idaho health care provider may determine whether a person is competent to consent to their own healthcare. Idaho Code § 39-4503 establishes the general standard for medical consents:
Persons who may consent to their own care. Any person who comprehends the need for, the nature of and the significant risks ordinarily inherent in any contemplated hospital, medical, dental, surgical or other health care, treatment or procedure is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care and services in reliance upon such a consent if the consenting person appears to the health care provider securing the consent to possess such requisite comprehension at the time of giving the consent.
(Emphasis added). If the health care provider believes that an adult patient currently lacks the requisite comprehension, the provider should determine whether the patient executed an advance directive or otherwise conveyed his or her wishes while competent. (See I.C. § 39-4509). If there is no such prior direction from the patient or if the patient is an unemancipated minor, the healthcare provider should generally obtain consent from one of the persons identified in Idaho Code § 39-4504(1), i.e., in decreasing order of priority: a court-appointed guardian; person with durable power of attorney for healthcare; spouse; adult child; parent; person identified in delegation of parental authority; other appropriate relative; or other person who is responsible for the patient’s care. With limited statutory exceptions, the general rule is that unemancipated minors probably lack capacity to consent to their own health care. (See I.C. § 39-4504(1)). Idaho Code § 39-4504(3) generally protects providers who, in good faith, obtain consent from a person who appears to have the requisite authority to give consent.