There have been a number of recent significant changes to the laws affecting Florida physicians and hospitals. This newsletter provides an update on those changes to Florida Statutes and recent court decisions affecting health care providers.

PATIENT NOTIFICATION

A significant change to existing law is that a patient or a patient's representative will be notified any time an investigation into their medical care is being conducted - previously privileged information. Before July 1, the patient was notified of an Agency for Health Care Administration (AHCA) investigation only if the patient was the one to file the complaint. Now, for example, if an AHCA investigation is opened after a hospital or medical facility files a required adverse incident report with the state (commonly known as a Code 15 report), the patient will be notified that an investigation has been initiated regarding the care he or she was provided in the hospital. This change may lead to an increase in malpractice cases, although in many cases where an incident report is filed, there is no violation of the standard of care.

STATUTE OF LIMITATIONS

Previously, there was no statute of limitations for the prosecution of an administrative complaint brought by the Board of Medicine and AHCA against a physician. Effective July 1, 2001, however, AHCA must file a formal complaint against a physician within six years of the date of the incident. This statute of limitations does not apply to cases involving criminal activity, diversion of controlled substances, sexual misconduct or impairment. In addition, if it is determined that a physician engaged in fraud, concealment or intentional misrepresentation to prevent discovery of a violation, the time limits are extended to twelve years. If you have a pending investigation which is based on an incident that occurred more than six years ago, you can contact us to discuss whether this change affects your case. 

INCREASED PENALTIES

The legislature has now mandated that in disciplinary cases involving fraud or false representations, the Board is required to impose a $10,000 fine per violation. This statute may be applied, for example, in cases of fraudulent billing, as well as providing incorrect information on a licensure application, practitioner profile or credentialing applications for hospitals or HMOs. Each incident is considered separately, so fines could be significant. Another crucial change is to allow health care boards to impose as a penalty in disciplinary cases a requirement that practitioners refund fees that have been billed and collected from patients or third parties, including HMOs, insurance carriers and Medicare/Medicaid. The Board can require money be refunded not only in cases of fraud or intentional misconduct, but in any case where the physician is found to have committed negligence. In addition, the legislature has now made it a requirement that when the Board disciplines a physician, the costs of the investigation/prosecution of the physician must be assessed as part of the penalty. In some circumstances, these costs can be substantial and are usually not covered by insurance.

SEXUAL MISCONDUCT

All health care providers must now report all allegations of sexual misconduct to AHCA regardless of whether the allegation can be substantiated, or the allegation is found to be false. This applies to accusations of sexual misconduct made against any licensed health care provider in any practice setting. In a hospital setting, risk managers are also required to report all allegations of sexual misconduct made against health care providers to AHCA. 

WRONG SITE SURGERY 

Over the past several years wrong site surgery has been an important and often discussed issue by the Board. In the past, a wrong site or wrong patient surgery violation was charged as a deviation from the acceptable standard of care. The legislature now has designated a specific violation for wrong site surgery, including prepping the wrong site or wrong patient for surgery. 

RETAINED FOREIGN BODIES

The legislature has modified the law regarding foreign bodies left in patients by adding a legal presumption that leaving a foreign body inside a patient is not within the standard of care. Previously, physicians could defend these actions by arguing that they relied on sponge or instrument counts performed by nurses, and cases could frequently be won when it was shown that the surgeon was not directly responsible for the incorrect count. This new statute may make it easier for the Board to take action against physicians when a patient has a retained foreign body. As part of the effort to reduce the number of medical errors, there also is a new requirement that physicians complete a two hour course every two years on the prevention of medical errors. 

MEDICARE/MEDICAID OVERPAYMENT AUDITS

There has been significant scrutiny of physicians and pharmacies by Medicare/Medicaid regarding alleged overpayments. These overpayment determinations are based upon an audit of charts or patient records. Once an audit is completed, a statistical analysis is frequently performed and an overpayment determination is made. While Medicare/Medicaid is permitted to perform a statistical sampling to determine potential overpayment, the overpayment determinations may be challenged on several fronts including: medical necessity, failure of Medicare/Medicaid to follow its own guidelines in the audit or the statistical analysis, and failure of Medicare to follow generally accepted statistical principles. After the audit, the provider is given an opportunity to challenge the Medicare/Medicaid overpayment determination. The provider is then entitled to a fair hearing and can defend the billing before a Medicare Hearing Officer. After the fair hearing, an appeal to an Administrative Law Judge may be necessary. The next appellate level is before the Medicare Appeals Council and, after all these avenues are exhausted, the provider is finally entitled to an appeal in federal court. 

INVESTIGATIONS FOR FAILING TO DISCLOSE MINOR CRIMINAL CONVICTIONS

Another regulatory issue which has recently caught many Florida physicians off guard concerns the requirement to answer a question advising the Board of Medicine of any past criminal convictions on the "physician profiling" form sent to all physicians in 1999. Approximately 2,000 physicians are under investigation for answering "no" on the physician profiling form when the question asked have you ever been convicted of any crime. Many physicians are finding themselves the subject of investigations not realizing that 20 year old DUI convictions and misdemeanor convictions for student pranks during college required a "yes" answer to this question. If you are being investigated as a result of answers provided on your profile, you can contact us to discuss whether your answers constitute a statutory violation. Under current law, all new misdemeanor or felony convictions must be reported to the Department of Health within thirty days of the conviction. However, physicians can assert that the conviction was not related to the practice of medicine or the ability to practice medicine to avoid some types of convictions from being published on their profile form on the internet. 

PEER REVIEW PRIVILEGE NOT RECOGNIZED BY A FEDERAL APPEALS COURT

A recent federal court of appeals decision from North Carolina permitted a physician who alleged the termination of his hospital privileges was discriminatory because of his race or national origin to obtain peer review records of other physicians to establish that they had been given less severe punishment. The court stated the federal court’s interest in eliminating discrimination against physicians by hospital medical staff was a more important federal interest than protecting the strict confidentiality of peer review proceedings concerning other physicians. The court recognized that an appropriate protective order could be issued to protect the identity of patients and other physicians who were the subjects of prior peer reviews.

OIG IS RECOMMENDING MORE STRINGENT ENFORCEMENT OF PATIENT COMPLAINTS BY THE MEDICARE PEER REVIEW ORGANIZATION 

The Department of Health and Human Services, Office of Inspector General, issued a report on August 13, 2001, stating that past enforcement by the Medicare Peer Review Organization (PRO) has been ineffective in identifying instances of substandard care involving Medicare patients, and the PRO has been too lenient towards physicians. The OIG is recommending that Medicare provide patients with a more effective complaint process by fixing the current PRO system or creating a new system.

FEDERAL COURT REQUIRES DISCLOSURE OF MEDICARE PEER REVIEW FINDINGS 

A recent federal decision in a case filed by Public Citizen, Inc., in the Washington D.C. District Court held that HCFA (now known as CMS) regulations which prohibited the disclosure of the results of Medicare PRO investigations to complaining patients and their families was invalid. Under this decision, the Medicare PRO is now required to disclose the results of PRO investigations of physicians when Medicare patients or their families make complaints of substandard care. This change may also lead to an increase in malpractice cases.

JOINT COMMISSION 

In addition to the recent changes to Florida and federal law, there is a significant change to the Joint Commission (JCAHO) regulations, effective July 1, 2001. This new regulation requires physicians providing care in accredited hospitals to advise patients of significant medical errors. Physicians should document in the patient’s chart that a discussion regarding an unanticipated outcome occurred.