For example, he said that most young physicians know that if they give or receive, offer or solicit something of value in exchange for patient referrals, they’ve committed a crime. But then he showed how a physician could get into trouble by not understanding the Anti-Kickback Act (AKA): “What if you have a large Medicaid census in your practice, and out of sympathy for their financial situation, you consistently waive their copayments? Or, simply in an effort to make sure that they keep their regular appointments, you give them Uber or Lyft coupons to come to the practice? Even though your motivations may be good, those practices arguably violate the AKA.”
Another violation, he said, of the AKA could come if the physician is, say, an orthopedist and decides to invest in a small durable medical equipment business to which he/she already refers. Unless that contractual agreement was structured properly, Pomerantz said it is “likely a violation of the AKA.”
Pomerantz also talked about the Ethics in Patients Referral Act, which is also known as the Stark Law because it was introduced by California U.S. Rep. Pete Stark. Essentially, it means the government can sue a physician of a Medicare or Medicaid patient for referring to any entity in which the physician has a financial interest. No, Pomerantz said, you can’t put the ownership of a lab in which a physician has a financial interest in the name of a spouse or business partner. “The Stark law prohibits the referral if you or an immediate family member have a financial interest in the entity to which the referral is made,” Pomerantz noted.
Prescribing medications, particularly during the current opioid crisis, can also be a potential legal minefield for physicians if they’re not careful, Pomerantz said before giving an example:
“You prescribe a 30-day supply of Percocet (acetaminophen/hydrocodone blend). And 20 days in, your patient, a long standing patient of the practice, comes in and says, 'I accidentally dropped my pills down the sink' or 'I left my prescription at the hotel on vacation’ or 'My dog ate some pills.' As a new physician, I’m guessing you’re going to be very trusting. Your concern is going to be to want to ameliorate your patient’s pain, and you’re going to be inclined to write a new script. But what if the patient is taking the pills inconsistent with your prescription (4 a day instead of 2) and you’ve unwittingly contributed to your patient’s addiction? What if, unbeknownst to you, your patient is selling his Percocets. What safeguards do you have in place to make sure your prescribing practices are gold standard?”
Dr. Bhavana Bhaya, a senior resident in the internal medicine program, said she learned a lot from the presentation made by Pomerantz. “It is very important for medical personnel to understand the laws within which we have to practice medicine,” she said. “Many of today’s physicians are ill-equipped to handle the legal, regulatory and business realities of modern medicine."
Even Dr. Budda Dawn, the UNLV School of Medicine Department of Internal Medicine Chairman who has practiced medicine for decades, found Pomerantz’s remarks helpful.
“In this day and age, all doctors need a good lawyer,” he said.
What appear to be simple things -- manners and respect for others -- Pomerantz said, can keep physicians out of legal trouble:
“Who makes complaints to the Board of Medicine? Patients who feel like they haven’t been treated with respect...Know who causes doctors to lose their privileges at hospitals and with insurers? Other doctors and nurses who think you’re being greedy or rude or disrespectful...Know who files civil litigation and makes law enforcement referrals? Disgruntled business partners.”
Pomerantz told the residents that he knows that they’re going to have a million demands and a busy schedule and challenging cases. That said, he told them to remember to mind their manners if they don’t want to end up in trouble.
In his presentation, he said he’s been involved in “many hospital privilege hearings where my client is at risk of losing their privileges simply because they were rude to a charge nurse or had a personality conflict with another physician...So if you take nothing else out of this today, quote me on this: Play nice in the sandbox.”
