The American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute in New Orleans focused on the legal challenges faced by physicians and hospitals. Here are the Jackson Lewis Healthcare Industry Team’s “Top 7” takeaways from the attorneys who attended the conference:
- Healthcare and labor & employment law are hot. According to Law360, Labor & Employment, Data Privacy & Cybersecurity, and Health Care are three of the top four hottest practice areas for 2018. For the first time in history, healthcare has surpassed manufacturing and retail to become the largest source of jobs in the U.S.
- Hospital and health care system transactions and partnerships are on the rise. The U.S. Department of Health & Human Services’ Agency for Healthcare Research and Quality reports at least 69.7 percent of U.S. hospitals are part of health care systems. Consolidations continue to draw great scrutiny from the Federal Trade Commission.
- Qui tam cases are on the rise and companies are starting to use the False Claims Act to gain competitive edge. According to the Department of Justice, $2.4 billion of the $3.7 billion in settlements and judgments it recovered from False Claims Act cases in fiscal year 2017 involved the health care industry, including drug companies, hospitals, pharmacies, laboratories, and physicians. This is the eighth consecutive year that the Department’s civil health care fraud settlements and judgments have exceeded $2 billion. In at least one recent lawsuit, the relator was a competitor medical supply manufacture.
- The use of Advanced Practitioner Professionals to supplement direct physician involvement is on the rise in hospital and ambulatory settings. This has created legal and ethical issues, particularly for hospitals and health care facilities that must comply with the laws of multiple states.
- HIPAA compliance and enforcement is getting more expensive, but now healthcare providers also have to worry about attacks on internet-connected devices. Ransomware attacks on healthcare providers are on the rise. As a result, the Food & Drug Administration has issued guidance and webinars to address the management of cybersecurity in medical devices.
- The number of practicing physicians older than 55 is increasing. Some hospitals require doctors over a certain age to undergo periodic physical and cognitive exams, which can lead to age and disability discrimination claims. These exams address only some of the issues presented by the aging physician population. For example, an 84-year-old New Hampshire physician recently lost her license to practice medicine because she did not know how to use a computer and kept handwritten patient records instead.
- The law is catching up with telemedicine. According to the Center for Connected Health Policy, in the 2017 legislative session, 44 states introduced more than 200 telehealth-related pieces of legislation. No two states are alike in how telehealth is defined and regulated, which has created a confusing environment for Medicaid reimbursement, licensing and prescribing, among other issues.