Volume 1, Issue No. 5
December 5, 2003
A PUBLICATION OF THE HEALTH LAW
SECTION OF THE NEW MEXICO STATE BAR
Health -E- News
THE ANNUAL MEETING WAS A GREAT SUCCESS!
The Annual Meeting of the Section was very well attended, with members coming from Las Cruces
and Santa Fe. The featured speaker, Mary Higgins, the Head of the White Collar Crime Division of
the U.S. Attorney’s Office, kicked off the first in a series of CLEs on Fraud and Abuse. Kathy
Hessler, the out going Chair, turned over the gavel to Jennifer Stone, the new Chair for 2004.
The Section Budget Officer reported that the Section estimates that it will have a budget of $3,168.63
for 2004, and the Board is planning a major half day or full day CLE, along with the continuation of
the very successful luncheon CLEs. The Board is also considering holding luncheon CLEs in other
sections of the state, and if you are interested in participating or offering a conference room, please
contact Jennifer Stone or Susan Sullivan, who chairs the program committee. The Board approved a
$500 contribution from the 2003 Budget to the UNM Law School Library for the purchase of health
law related texts.
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Medicare Improper Payment Rate Was 5.8% For Fiscal Year 2003
CMS announced the Medicare improper payment rate for fiscal year 2003 is an estimated 5.8% or
$11.6 billion. The improper payment rate was determined using a new and expanded survey program, which CMS says is more accurate and will help prevent future errors. The 2003 error rate was
adjusted to reflect a high number of non-responses. From 1996 to 2002, the Department of Health
and Human Services (DHHS) Office of Inspector General (OIG) conducted a survey for claims that
were medically unnecessary, inadequately documented, or improperly coded. The improper payment
rate was 13.8% in 1996 and declined to 6.3% in 2001 and 2002.
To read CMS' press release on the report go to
http://cms.hhs.gov/media/press/release.asp?Counter=905
To read a summary of the report go to
http://www.cms.hhs.gov/providers/psc/cert.asp
[Editor’s Note: This report identifies the provider groups with the highest error in reporting claims. If
you have clients in one of these groups they may become targets for audits. Physical Therapists had
the most errors in FY 2003 at 18.2%, Internists had 13.5% and chiropractors followed at 11.3%.
The Editor thanks Barbara Mathis, HLS Board member and associate counsel at the UNM Health Science Center for this contribution.]
CMS Proposes New Payment System For Inpatient Psychiatric Facilities
The Centers for Medicare and Medicaid Services (CMS) announced November 19 a proposed new
Medicare prospective payment system (PPS) for inpatient psychiatric facilities. The proposed PPS
would replace the current cost-based payment system. CMS is proposing a per diem PPS that would
cover nearly all labor and non-labor costs for providing inpatient psychiatric services. The proposed system is intended to insure appropriate payment for services while providing incentives for more efficient
care of Medicare beneficiaries. The proposed rule will be published in the November 28 Federal Register. Comments are due by January 27, 2004.
To read CMS' press release on the proposed rule, go to
http://cms.hhs.gov/media/press/release.asp?Counter=911
California Appeals Court Says Contract Provision Limiting Liability For Violation
Of Law Was Invalid
Parties to a contract may not include a provision in the contract that exempts a party from responsibility
for an injury, held the California Court of Appeal in a decision issued November 12.
To read the case, Health Net of Calif., Inc. v. Department of Health Servs., No. C041197, (Cal. Ct. App.
Nov. 12, 2003), click here
Florida Appeals Court Finds Questions Of Fact As To Hospital's Vicarious
Liability For Radiologist's Alleged Negligence Under Apparent Agency Theory
A hospital failed to show that it was entitled to summary judgment on a claim of vicarious liability for a
radiologist's alleged negligence, a Florida appeals court held November 7. Although the radiologist was
an independent contractor and not a hospital employee, issues of fact remained as to whether the radiologist acted with the apparent authority of the hospital, the appeals court said.
To read Roessler v. Novak, No. 2D02-1670 (Fla. Dist. Ct. App. Nov. 7, 2003), click here
New HIPAA Website for Lawyers
This new non-commercial (for the time being) website may help you answer questions regarding HIPAA.
The author, a lawyer, believes that HIPAA jurisprudence will develop as rulings are made in collateral
issues in litigation. He says he will track these developments.
http://www.lawyersandhipaa.com/
Congress Passes Landmark Medicare Bill
The House and Senate have cleared landmark Medicare legislation that gives seniors a prescription
drug benefit and institutes the most extensive changes to the program since its inception thirty-eight
years ago. The House passed the measure (H.R. 1) in the early morning hours of November 22 by a
slim 220-215 margin following a marathon three-hour roll call vote. After overcoming last-minute
roadblocks attempted by Democratic opponents of the bill, the Senate followed suit November 25 with a
vote of 54-44 in favor of the measure. President George Bush, who has made Medicare modernization a
key focus of his domestic agenda, has pledged to sign the $395 billion measure.
For more information on the bill, go to
http://waysandmeans.house.gov/
Senate Reauthorizes Mental Health Parity Legislation
The Senate passed by unanimous consent a bill (S. 1929) to reauthorize mental health parity provisions for an additional year. The bill was passed by the House earlier last week. The Mental Health Parity Act is a 1996 law that requires employer sponsored health benefit plans to provide similar coverage
for mental health benefits as for other medical benefits.
To read the bill, go to
http://thomas.loc.gov/ and search on S. 1929.
What’s In A Name?
Try and Imagine the HIPAA complications that could arise out of this story from Illinois. What's in a
name? If you're the former Raymond Allen Gray Jr., only one word - Bubba. The 39-year-old Springfield
native legally changed his name last month to reflect his childhood nickname. His new first name?
Bubba. His new middle name? Bubba. One can guess what his new last name is.
http://news.findlaw.com/ap/o/fe/1120/12-1-2003/20031201044502_13.html
Medical Errors - Comments from the Editor
The AHLA just sent its members the published results of an AHLA sponsor Colloquium on Medical Errors. It is a “must read” document for all hospital administrators and lawyers who handle medical malpractice or represent hospitals. One of the panel members was a risk manager for a corporation with a
horrible record for job related injuries. The company reduced its rate of injury to the point that the panelist noted that his company’s employees were safer at work that they were in the local hospital!
On a personal note, a family member of a lawyer in our firm was diagnosed with leukemia and immediately began treatment. (This happened at a facility on the East coast). The prognosis was not good.
The news had a significant impact on the emotional well being of the family and a number of people in
our firm. Fortunately, there was a nurse in the family who insisted on reviewing the medical record, and
in the course of doing so she discovered that one of the doctors had either misread or totally missed a
very important test report. Because of this report, the prognosis went from poor to very good. Here an
error was made, and there was no “harm” to the patient – the treatment would have been the same. But
who knows what might have happened.
If you belong to the AHLA, the report was included with this month’s copy of the Health News. Members
can order a free copy in PDF format at
http://www.healthlawyers.org/Ecommerce/ProductDisplay.cfm?ProductId=50233
Get one for yourself and your clients.
The Board of Directors of your Health Law Section wishes
each of you a HAPPY HOLIDAY and a prosperous NEW
YEAR. You will receive the next edition of the HEALTHE-NEWS next year.
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The “DISCLAIMER”
This Email Newsletter is a publication for the members of the Health Law Section of the New
Mexico State Bar Association. Its contents may be time dated, and references to Internet sites
may change. The Content of this Newsletter does not reflect the opinions of the Members of the
Board of Directors of the Health Law Section of the State Bar. This Newsletter is informational
only, does not constitute legal advice. Members of the Health Law Section may submits topics
for the newsletter by emailing them, or the internet site at which they can be located, to
JAB@NMCounsel.com