Category: Physicians Practice

Forest Park Medical Center (FPMC) in Dallas and other Texas cities was touted as a “Luxury” hospital with a “spa-like atmosphere,” which did not accept lower-paying Medicare, Medicaid, or “in-network” managed-care insurance rates, but did allow for physician ownership, . As such, it rapidly attracted the attention of physician investors and their referrals. A little too rapidly for some observers. Then came its money woes. Sabra, a real estate investment trust which had loaned $110 million to finance the Dallas campus of Forrest Park, began to fret over deferred rent payments and filed liens on all the equipment.

According to a 2015 D Magazine article, “Drs. Richard Toussaint, an anesthesiologist, and Wade Barker, a bariatric surgeon, were tired of the bureaucracy and inefficiencies they’d seen firsthand at other hospitals. So they decided to build their own.”

A year later, Forrest Park had filed for bankruptcy and Toussaint had been convicted of seven counts of healthcare fraud. The jury found Toussaint billed for procedures he could not possibly have performed, as he, himself was under general anesthesia, or out of the country at the time of the surgeries.

Last Thursday, the Department of Justice released a shocking press release that 21 surgeons, healthcare professionals, a referring personal injury attorney, and others had been indicted in a massive kickback conspiracy involving over $500 million in insurance claims.

According to prosecutors, “FPMC’s strategy was to maximize profit for physician investors by refusing to join the networks of insurance plans for a period of time after its formation, allowing its owners and managers to enrich themselves through out-of-network billing and reimbursement.” This strategy, isn’t actually illegal. No one can be forced to join an insurance network, including Medicare or Medicaid.

What would be illegal, if the prosecutors can make their case, is the alleged $40 million in bribes and kickbacks paid for referring certain patients to FPMC. For example, according to the indictment, hospital accepted the referral of patients with high reimbursing, out-of-network private insurance benefits, and benefits under certain non-Medicare and Medicaid federally-funded programs, such as Federal Employees Health Benefits Program or Federal Federal Employees’ Compensation Program also known as federal workers compensation. FPMC’s owners, managers, and employees then allegedly attempted to sell patients with lower reimbursing insurance coverage, namely unwitting Medicare and Medicaid beneficiaries to other facilities in exchange for cash.

Although the typical arrangement in Texas would call for the carve-out of Medicare and Medicaid programs, the intent being to avoid the possibility of running afoul of the Department of Health and Human Services Office of Inspector General, (“HHS OIG”), what many fail to appreciate is the manifold number of federal healthcare programs which could be implicated. Each federal department has its own OIG. Federal worker’s compensation and federal employees health insurance benefits are guarded by the United States Department of Labor OIG. Military plans, or TRICARE, is protected by the Department of Defense OIG.

That’s what initially triggered federal jurisdiction at Forest Park, according to the indictment. The bribes and kickbacks included more than $10 million to TRICARE, more than $25 million to the Department of Labor FECA healthcare program, and more than $60 million to the federal employees’ and retirees’ FEHBP healthcare program.

Each of the 21 defendants is charged with one count of conspiracy to pay and receive healthcare bribes and kickbacks; the maximum statutory penalty upon conviction is five years in federal prison and a $250,000 fine.

An indictment is not proof of guilt. All defendants are entitled to a presumption of innocence. Only where a unanimous jury finds, based upon the highest burden of proof beyond a reasonable doubt, or upon the entry of a plea of guilty, would a defendant be convicted of any crime.

Patients mislead physicians for all sorts of reasons, such as addiction, the need to conceal that an abusive relationship caused an injury, or malingering.  I asked Retired FBI Agent, Robert Bettes, currently with Behavioral Assessment Resource Group, LLC, to share some tips on when you can tell a patient is lying.

Martin Merritt: You are frequently retained by companies to employ your FBI training to detect dishonesty in the workplace, whether in a job application or after a loss, can you share some tips and techniques you use to detect dishonesty? 

Robert Bettes:  When individuals are being deceptive, they exhibit both verbal and non-verbal deceptive behaviors.  There are approximately 27 deceptive behaviors that we regard as reliable indicators of deception.  Some of the more common include:

1. Failure to answer the question: When posed a direct question, the interviewee fails to answer because a truthful answer may bring him consequences.

2. Attack Behavior: The deceptive person will attempt to discredit the interviewer to get them to abandon their line of questioning (i.e. You look to young to be a doctor. What medical school did you go to?)

3. Qualifiers: The deceptive person will qualify their answer with terms such as “basically,” “fundamentally,” “probably,” to carve out the bad information that may be detrimental to them.

4. Hiding the mouth/eyes: We tend to cover a lie. It is a way to shield the truth from the one being lied to.

5. Throat clearing before an answer: There is a natural tendency to improve the way a lie sounds. Anxiety triggers difficulty in speaking.  Clearing the throat attempts to counter this effect. 

6. Movement of major body parts in response to a question: Anxiety will cause a person to exhibit uncontrollable body movements.

7. Grooming gestures: A dishonest person may begin to fidget and begin to tidy up surroundings. In a physician’s office, the only thing to tidy up is one’s self. Adjusting a tie, shirt cuffs, straightening a skirt can be a way of dissipating anxiety.

8. Verbal disconnect with behavior: When the narrative answer adds up to a “no,” but head movement indicates the opposing, you may have a problem.

9. Repeating the question: Repeating the question can be an attempt to buy time to make the answer more believable.

10. Providing too much information or overly specific responses:  One way to hide a lie, is to bury it an avalanche of true details.  If a person appears completely open and honest, we believe them. A dishonest person will overdo it and is able to recount very specific details in which the lie is but one detail.

MM:  In an examining room, anxiety can be normal? 

RB: Indicators are a starting point. Sometimes a cigar is just a cigar, but that is why we look for deceptive behaviors to occur in “clusters.” A cluster is two or more deceptive behaviors that occur in response to a question.  If the patient displays a cluster of behaviors, then follow-up questions must be asked.  Active listening is required to identify a patient’s true motive.  Suppose there is a pain medication, the patient wants to keep taking, you suspect at any cost.  Ask the patient, “What is the most significant side effect you have experienced when taking this prescription?”  

This is a very good question. Suppose the patient answers, “This prescription really relieves my pain and basically has improved my quality of life. It is the only thing that works.” Notice the effect of the answer. The question was about side effects.  Talking about side effects takes the patient away from his goal. So the patient provides an answer which pivots the discussion back towards the target.  Further questions are warranted. If the medication always causes some side effects, dry mouth, drowsiness, or constipation, denying all side effects may be further indications of dishonestly.

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On June 16, 2016, the United States Supreme Court issued a unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar which upheld what is termed the “implied certification” theory of liability under the False Claims Act (“FCA”); while adopting a more rigorous materiality standard for determining liability in such cases. This is one of the most important FCA cases in years. Historically, the government and plaintiffs, without any authority, have argued that the federal FCA can be violated if a physician or other provider or supplier (“Provider”) submits a claim when the provider did not meet all compliance standards associated with that claim. This has been known as the “implied certification” theory of liability; that providers were impliedly certifying to compliance with laws associated with the claim when it was submitted.

The FCA imposes liability on anyone who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval to the federal government. The FCA also punishes whoever knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim. The statute does not, however, provide a definition of a “false” or “fraudulent” claim. One theory that has been adopted by some courts is the “implied certification theory.” Under the implied certification theory, a claim can be deemed false for purposes of liability under the FCA based on an implied representation that the provider or supplier who submitted the claim is in compliance with all applicable statutes, regulations, or government contract provisions.

As a hypothetical example, think of an ambulance company which has certified that it has complied with all applicable laws and regulations when it submitted a claim, but perhaps the entire fleet’s registration stickers had expired. Does that make the certification “false?” Could a whistleblower sue and the government recover every penny it paid to the ambulance company? That is the kind of thing litigants have been arguing about: A false certification of compliance regarding regulations that don’t seem to have anything to do with meeting conditions of payment.

Reasonable minds differ. Circuit courts of appeals across the county couldn’t agree. Some say there should not be an implied certification theory, others say there should. The Supreme Court did what it typically does, answer the question, then create a test which is more confusing than the original question.

What does Escobar mean for physicians and providers? The Supreme Court upholds the theory, but then it narrows its application with a new demanding “materiality” standard which will offer physicians and providers an additional defense in FCA cases going forward. I doubt the number of FCA cases based on the implied certification theory will increase after Escobar. Certainly, the case provides lower courts with a basis for granting summary judgment in favor of physicians because of the new test. It is also possible Congress will respond with changes to the statute to wipe out the new “materiality” test. This would likely result in a wave of new False Claims Act lawsuits.

The Supreme Court termed the materiality standard “rigorous” and “demanding,” finding that it is insufficient that the government merely would have had the option to decline payment had it known of noncompliance. It also emphasized that the FCA is not intended to punish “garden-variety breaches of contract or regulatory violations” or to impose “treble damages and other penalties for insignificant regulatory or contractual violations.”

It may be years before the full impact of this decision is known. As always, it is best to consult a healthcare attorney in your state, if you have any questions regarding your practice’s compliance.

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Increasingly, insurance plans are using the audit process to recoup payments for services which were preauthorized, on the grounds that the chart does not support the coding.  I asked Angela Miller of Dallas’ Medical Auditing Solutions LLC to share some her insights.

Martin Merritt:  What should physicians, dentists, psychologist, psychiatrist and others know about claims audits by payers?

Angela Miller: First and foremost, anything that is not documented, didn’t happen!  The documentation will either win the day or kill your chances of winning an audit.  Perception is key — for example, if the physician is reviewing and not the rendering provider, then the signature line should say “reviewed by,” not signed, as if to give the impression the physician rendered the service.

MM: Can you elaborate more on the examples, perhaps starting with E&M codes for office visits?

AM: Absolutely, the visit chart notes must contain all components used to determine the E&M: History, Exam, and Medical Decision Making.  “Chief complaint” must be the presenting symptoms and should not be “follow-up.”  If a physician reviews the history at each visit, it must be noted that he reviewed the history and there are no changes or this should be pulled from prior visit and noted.  The exam is based on “bullets or points” from each bodily system to count toward each level of complexity.  Every visit may not need to be a comprehensive physical exam.  The medical decision making is a compilation of the current and existing diagnosis, the tests or procedures performed, and what decisions the physician made regarding the patient based on the number of diagnosis, new or old, review of medications, etc.  Again, this all must be documented.  Every visit is not a level 4 or 5, just because the provider is a specialist.  If anything, it is more difficult to get to level 4 or 5 when specialists’ patients are stable. 

In an audit, the entire chart note must be printed and provided.  It is important to read it, double check to ensure all pages printed and pull any tests as well.

Keep in mind all paper and/or electronic chart notes must be signed by the rendering provider.  Medicare provided direction back in 2009 that providers must sign off within two weeks of the date of service.  If the physician does rounds in a hospital, there may have shorter periods required per the credentialing contract just like your commercial plans.

MM: How do tests and procedures affect the providers in an audit? Is there a way for the provider to know if those tests will be covered?

AM:  All tests and procedures must be medically indicated and ordered.   Providers need to not only verify the patient has benefits at each visit, but any special tests, I would recommend speaking to a person to verify they will be covered.    

MM: Where do you see audits going for the future?

AM:  Audits will only increase.  With the added patients onto insurance rolls due to the ACA and those patients receiving care for the first time in years, insurance payer costs are going up. Payers are intent upon cutting costs and that usually means at the expense of Physicians.

Friday the 13^th was a bad day for the Federal Trade Commission (FTC) and a very good day for the healthcare industry.   I covered the dispute in the LabMD case in Physicians Practice in February 2014, just after the FTC ruled in favor of itself and its own strained extension of HIPAA-type jurisdiction over beleaguered healthcare providers.  Opponents, including LabMD, argued that physicians and healthcare providers have enough to worry about in the context of patient privacy, security and breach notification under HIPAA, the Omnibus Rule, and HITECH, which is already adequately enforced by the United States Department of Health and Human Services’ Office of Civil Rights (“OCR”).

The FTC seemed to be jumping on the HIPAA bandwagon as well, but unlike the OCR, the FTC lacked a specific statute or rule granting it the authority to regulate healthcare patient privacy.  Thus, the FTC decided for itself last year that it had jurisdiction under Section 5 of the FTC Act. The agency said that a failure to institute reasonable and appropriate data security standards constituted an “unfair trade practice” under the FTC Act because the conduct “caused or is likely to cause substantial injury to consumers.”

On Nov. 17, Chief Administrative Law Judge D. Michael Chappell rejected the FTC’s theory in the LabMD case, holding that the “harm” required to bring a cause under Section 5 of the FTC Act required more than “hypothetical or theoretical harm” caused by the lab’s conduct and therefore insufficient to maintain the commission’s allegations.  In other words, the mere possibility that someone might be harmed was insufficient and the FTC incorrectly assumed the right to file a HIPPA-type action against LabMD.   

This ruling squares with the outcome of many state lawsuits seeking damages under state law, which are frequently tossed out of court because the cases are based upon the mere possibility of harm, rather than actual demonstrable injury.

The LabMD conflict started in August 2013, when the FTC filed a complaint against LabMD Inc., over a breach of 9,300 patients’ personal information, including names and social security numbers, on a public file-sharing network.   The Atlanta-based medical laboratory challenged the action, claiming the FTC has no authority to address private companies’ data security practices as “unfair … acts or practices” under Section 5 of the FTC Act’s unfairness prong.  The FTC ruled in January 2014 that it did have jurisdiction.  

Prior to Friday’s decision, the FTC had obtained consent decrees in 53 out of 55 cases brought against businesses in recent years – all of which were based merely upon the possibility of harm. 

“The reason that the decision was so shocking and important is that because the security standard imposed by the FTC has never been challenged in any court, the FTC has created an enormous castle of air in recent years that everyone has come to believe in,” Kilpatrick Townsend & Stockton LLP big data, privacy and information security practice co-leader Jon Neiditz told Law360 in a story reported earlier this week.  “But with this decision, that whole castle of air has been completely deflated.”  

The case is surely far from over. The ALJ decision can be appealed to the commissioner and then to the courts. Nevertheless, for an overregulated healthcare industry, Friday the 13^th was a good day.

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The issue of laboratory payments to physician practices surfaced again last week when the U.S. Department of Justice intervened in a whistleblower False Claims Act lawsuit. The suit seeks $11,000 per specimen penalty, treble (triple) damages, and attorney’s fees, claiming Berkeley Heartlab Inc., and its marketing company, BlueWave Healthcare Consultants Inc., paid $80 million in kickbacks, conducted unnecessary medical testing, and cheated the government in at least some of the $500 million in claims paid by Medicare and other government programs. The defendants are expected to deny all allegations.

The lawsuit alleges doctors were paid improper “processing and handling” fees to refer blood samples to Berkeley and other designated laboratories for expensive tests. BlueWave, the marketing arm, is accused of entering into illegal contracts calling for physicians to refer lab tests to certain companies.

The lawsuit alleges a form of “kickback” occurred in two principle ways: 1.) handling fees the lab paid to the physicians are alleged to be too high to constitute a fair market value payment; and 2.) the waiver of copayments for private insurance patients amounts to a kickback, essentially “steering” patients to the lab.

This week, we will discuss payments to you might be offered by an ancillary services provider; also the subject of a June 2014, OIG Special Fraud Alert entitled, “Laboratory Payments to Referring Physicians.” According to the Alert, “[w]hen a laboratory pays a physician more than fair market value for the physician’s services or for services the laboratory does not actually need or for which the physician is otherwise compensated, the federal Anti-Kickback Statute (AKS) is implicated.”  Labs can pay doctors for a service, and the doctors can make referrals under the AKS, as long as the Personal Services safe harbor rules are followed.

In the context of payments to you from a lab (or any ancillary service provider) for any type of service, the key is often “fair market value.” This could be a payment for processing samples, or a payment for medical director services. Fair market value is complicated, but essentially has two major components: 1.) Is the payment to you a fair value for the service actually performed?; and 2.) Did the lab or ancillary service provider legitimately need the service?

A lab could pay you for any service it actually needs. As an example including mowing the yard once a week. But the lab could not pay you for an hour of physician time to mow grass, because the job doesn’t call for a physician.Nor could the lab pay you and 50 other doctors, even at $15 an hour, to mow the yard every week. That would be 50 times more service than the lab actually needs.

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HHS’ Office of Inspector General (OIG) has long taken the position that routine waiver of patient responsible amounts can constitute a type of healthcare fraud. I recently discussed collection of copayments and coinsurance topic with Amanda Ward, president of Dallas’ business process outsourcing firm Best Receivables Management (BRM).

Martin Merritt: As early as 1994, the OIG published a Special Fraud Alert warning that routine waivers of copayments can constitute Medicare fraud. Why?

Amanda Ward: The OIG takes the position that a doctor who routinely waives Medicare copayments or deductibles is misstating the actual charge. The example cited in the alert states, if a doctor states that his charge for a visit is $100, but routinely waives the 20 percent copayment, the OIG feels the actual charge is $80. Medicare should be paying 80 percent of $80 (or $64), rather than 80 percent of $100 (or $80). As a result, the Medicare program is paying $16 more than it should for this item.

MM: Are private payers picking up on this as well?

AW: Insurance network contracts have long contained a provision that the physician will seek to collect the patient-responsible portion. As dollars become increasingly scarce, benefit managers or insurance auditors have begun to request evidence of attempts to collect coinsurance. More recently, manuals state that the physician must actually collect this payment. If the physician cannot provide proof, the insurance company may demand repayment of benefits or terminate the contract.  More troubling, the insurance company can pick and choose when to enforce this provision; often targeting physicians with the highest utilization rates.

MM: But a requirement that a physician can actually collect seems to run contrary to AMA Ethics Opinion 6.12 “Forgiveness or Waiver of Insurance Copayments”?; (which I’ve previously discussed). Do you agree?

AW: A March 2015 cover story in Money Magazine states that 39 percent of people earning $75,000 a year would not be able to cover a $1,000 unexpected expense from savings. It is frankly absurd to think that the average person can afford to pay the out-of-pocket annual limit, say $7,500 for an individual, or $15,000 per family, particularly where the illness occurs in December, and the new annual limit must be met beginning January of the next year.

MM: So what is your advice to physicians?

AW:  First, always read your network provider manual and check your state’s medical board rules. As AMA Opinion 6.12 states, it’s never a good idea to advertise that you waive copayments or are willing to accept what insurance will pay; writing off the rest. This can be considered insurance fraud or at least unfair competition. Advertising that you waive coinsurance may also violate your state board rules. Secondly, where an insurance plan goes too far, requiring actual collection of coinsurance, which is discussed in Opinion 6.12, this can act as a barrier to necessary care. This can be taken up with your state board of insurance.

In many cases, there simply is no clear rule. It is best to approach this with a common-sense plan which takes into account the various interests involved. While it is not possible to always actually collect the entire patient responsible amount, it is important that a physician make the attempt. At BRM, we take a sensible and compassionate approach. We contact patients to find out if they have the ability to pay some amount, and offer a payment plan. If they cannot, we document the attempt so that our physicians can demonstrate good faith. Sometimes, that makes all the difference.

The key is treating everyone with respect and that includes the insurance plan. We find insurance companies can be reasonable, if there is evidence that the physician’s office is attempting to respect the provisions of the insurance plan.

It is the failure to do anything, albeit with the best intentions, which can land physicians on the wrong side of a private payer audit or worse, on the wrong side of the OIG.

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Robert Lane, a CPA with the Dallas accounting firm of Lane Gorman Trubitt, PLLC, explains the U.S. Tax Court’s April 20, 2015, opinion on the tax treatment of relocation bonuses paid by hospitals to physicians and what happens if the physician does not remain for the entire length of the contract.

Lane is head of Lane Gorman Trubitt’s Healthcare Group, who has been in practice for more than 30 years. He is certified as a Personal Financial Specialist (PFS) by the American Institute of Public Accountants (AICPA) and holds a state of Texas CPA license. In addition, he holds both Texas and federal securities licenses.

Martin Merritt: What is the issue in Tax Court Summary Opinion 2015-31?

Robert Lane: Hospitals frequently guarantee payments to physicians in an underserved community as part of its efforts to recruit and retain physicians. Under the agreement, the physician isn’t required to repay … if he remains in the community. These are considered bona fide loans. The question is whether this is a forgiveness of debt for tax purposes?

MM: Can you summarize the tax rules relating to loans?

RL: Money received pursuant to a loan cannot be included in gross income at the time that it is lent because there is an obligation to repay it. However, if the obligation to repay is forgiven or canceled by the lender, gross income may arise.

In general, cancellation of debt (COD) produces income in an amount equal to the difference between the amount due on the obligation and the amount paid for the discharge. The rationale for this principle is that cancellation of indebtedness provides the debtor with an economic benefit … equivalent to income.

MM: So what happened in this case?

RL: Darrel Wyatt is a physician who moved to Putnam County, Florida — a medically underserved community — in 2006 after the local hospital recruited him to practice there. Wyatt and the hospital entered into a recruiting agreement (agreement) that provided, among other things, that he would practice medicine in Putnam County for a minimum of four years and that the hospital would provide certain assistance to help him establish his practice.

The hospital and Wyatt also entered into what was, in effect, an income guaranty with repayment forgiveness. A simultaneously executed addenda to the agreement provided that the hospital would advance Wyatt up to approximately $33,000 (the “guarantee amount”) per month for 12 months (the “guarantee period”).

During the guarantee period, Wyatt received $260,627 from the hospital pursuant to the agreement and addenda. Dr. Wyatt never left the area, so that amount was forgiven and cancelled over a 36-month period occurring from 2007 to 2010.

In the tax court, Wyatt argued that the amount he received from the hospital was a nonrecourse loan that he was not personally liable to repay, and therefore he didn’t receive income when the loan was forgiven.

The court concluded that the amount received by Wyatt from the hospital was a bona fide loan, the forgiveness or cancellation of debt of which gave rise to income.

The court stated that the absence of a promissory note isn’t dispositive as to personal liability, noting that if Wyatt failed to live up to his end of the agreement, the hospital could have sued him to recover the unpaid loan. Other rights that the hospital had under the agreement, including that it could ask Wyatt to grant it a perfected security interest under certain circumstances, were also inconsistent with his assertion that he wasn’t personally liable; and the fact that the hospital didn’t find it necessary to take these actions didn’t negate his liability.

In addition, the court noted that cancellation of indebtedness can potentially give rise to income even if a taxpayer isn’t personally liable for a debt.

MM: What should other physicians take away from this opinion?

RL: Physicians should recognize that any form of incentive, advance, loan, guarantee, or bonus structure can have tax consequences, especially if the repayment is forgiven. It is important, therefore, for physicians to consult with a CPA knowledgeable in the tax consequences involved in complex healthcare employment contracts and arrangements.

HHS’ Office of Inspector General recently released a guide, thought to be the first-of-its-kind, for hospital governing boards on how to detect and avoid overbilling, kickbacks, and privacy breaches that can lead to civil and criminal punishment.

The guide is also unique in that it represents collaboration among the OIG, the American Health Lawyers Association, the Association of Healthcare Internal Auditors, and the Health Care Compliance Association. The guide states it is “intended to assist governing boards of health care organizations (boards) to responsibly carry out their compliance plan oversight obligations under applicable laws.”

The guide is important not only to physicians serving on hospital boards, but also could indicate greater OIG scrutiny of hospital board oversight of physician relationships and physician-owners of hospitals.

The OIG outlines several areas of guidance, including:

• Expectations for Board Oversight of Compliance Program Functions
• Roles and Relationships
• Reporting to the Board
• Identifying and Auditing Potential Risk Areas
• Encouraging Accountability and Compliance

The guide addresses several specific areas of concern, including upcoding, billing for medically unnecessary or nonexistent care, and disclosure of protected health information. The guide also notes the potential for newer healthcare delivery schemes which can create fraud liability, and advises boards to scrutinize referral and compensation arrangements with physicians for possible violations of the Stark Law and the Anti-Kickback Statute.

The guide ominously warns that ignorance of the law or facts is no excuse:
“A board must act in good faith in the exercise of its oversight responsibility for its organization, including making inquiries to ensure: (1) a corporate information and reporting system exists and (2) the reporting system is adequate to assure the Board that appropriate information relating to compliance with applicable laws will come to its attention timely and as a matter of course.”

Couched as “Practical Guidance,” the OIG states:
“‘The Guidelines’ offer incentives to organizations to reduce and ultimately eliminate criminal conduct by providing a structural foundation from which an organization may self-police its own conduct through an effective compliance and ethics program.”

In reality, the publication could be more of a “warning,” as legal liability usually follows “duty.”

And this guide appears to me to look to be a clear statement of expected duty.  The OIG cautions, for example, “[a]lthough compliance program design is not a ‘one size fits all’ issue, boards are expected to put forth a meaningful effort.”

The OIG may very well be signaling its intention to hold boards, or even individual board members, responsible for failure put forth “meaningful effort” to act in good faith to exercise oversight responsibility for hospital operations, contracts, relationships, and privacy. In other words, according to the OIG, the duty is not merely to avoid participating in illegal activity, but to investigate and discover violations of healthcare statutes and regulations.

On the other hand, many board members serve as a matter of public service, and do not expect remuneration or financial gain. If the OIG were to hold individual board members liable, the result would likely be a mass exodus of qualified, civic-minded members, on a scale similar to the savings and loan crisis of the 1980s. Hopefully, it will not come to that; time will tell.

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“I am a doctor, and I play one on TV,” may replace the old slogan for Vicks 44, according to an April 15 press release from the Texas Medical Board entitled, “TMB Adopts Rules Expanding Telemedicine Opportunities.”

According to the Texas Medical Board, the rule represents “the best balance of convenience and safety by ensuring quality healthcare for the citizens of Texas. Essentially the only scenario prohibited in Texas is one in which a physician treats an unknown patient using telemedicine, without any objective diagnostic data, and no ability to follow up with the patient.”

Critics say the rule is specifically designed to devastate a growing number of businesses and entrepreneurs, whose business model competes with traditional brick-and-mortar doctors. One such company according to a report by the Dallas Business Journal, is freshbenies, a company that hawks health discount cards that include the ability to call a doctor 24/7 and get a prescription if needed via telephone without an in-person visit.

“It’s crazy that Texas would do this [ban telephonic prescribing] at a time when it’s growing so fast in other parts of the country,” freshbenies owner, Reid Rasmussen, told the publication.

The rules authorize the following types of telemedicine:

• Patients can interact with their physicians via telemedicine beyond the traditional office visit including receiving appropriate care from their homes, between multiple healthcare settings, and from other medical sites like a school nurse’s office, a fire station, or even an oil rig.

• Once a physician has made an initial diagnosis of a patient through a face-to face visit held either in person or via telemedicine, the physician can treat a patient for their preexisting condition, via telemedicine, for up to one year in their home. The presence of another medical provider to assist in communicating the patient’s diagnostic information to the physician is only required for the initial consultation.

• A physician can provide mental health services to a patient via telemedicine at the patient’s home, which can include a group or institutional setting where the patient is a resident. No other healthcare provider is required to be with the patient to present the patient’s symptoms to the physician unless there is a behavioral emergency.

The press release notes that the rules do not:

• limit a patient to an in-person visit to establish a physician-patient relationship before receiving treatment, the relationship can also be established via appropriate face-to-face telemedicine;

• change traditional on-call coverage used by many physicians’ offices (physicians, who are in the same medical specialty and provide reciprocal services, may provide on-call telemedicine medical services for each other’s active patients); or

• severely restrict the types of telemedicine scenarios authorized in Texas (the rules expand the scenarios already allowed to include greater access to treatment from a patient’s home and greater access to treatment for behavioral and mental health).

Dallas-based telemedicine provider Teledoc has been engaged in a long-running litigation battle with the Texas Medical Board after the board sent Teladoc a letter challenging its approximately 90 doctors’ ability to teleprescribe in Texas.

The board’s limits, well-meaning though it may be, could place it on the wrong side of history, which is often written by the larger financial interests. It is simply cheaper to treat patients by playing a doctor on TV, even if you’ve never seen that patient in-person before. But for now, the new rule stands.