Getting Insurance To Pay For Preventive Health Under The ACA

The Affordable Care Act (ACA) mandates that health insurance companies pay for preventive health visits. However, that term is somewhat deceptive, as consumers may feel they can visit the doctor for just a general checkup, talk about anything, and the visit will be paid 100% with no copay. In fact, some, and perhaps most, health insurance companies only cover the A and B recommendations of the U.S. Preventive Services Task Force. These recommendations cover such topics as providing counseling on smoking cessation, alcohol abuse, obesity, and tests for blood pressure, cholesterol, and diabetes (for at risk patients), and some cancer screening physical exams. BUT if a patient mentions casually that he or she is feeling generally fatigued, the doctor could write down a diagnosis related to that fatigue and effectively transform the “wellness visit” into a “sick visit.” The same is true if the patient mentions occasional sleeplessness, upset stomach, stress, headaches, or any other medical condition. In order to get the “free preventive health” visit paid for 100%, the visit needs to be confined to a very narrow group of topics that most people will find vert constrained.

Similarly, the ACA calls for insurance companies to pay for preventive colonoscopy screenings for colon cancer. However, once again there is a catch. If the doctor finds any kind of problem during the colonoscopy and writes down a diagnosis code other than “routine preventive health screening,” the insurance company may not, and probably will not, pay for the colonoscopy directly. Instead, the costs would be applied to the annual deductible, which means most patients would get stuck paying for the cost of the screening.

This latter possibility frustrates the intention of the ACA. The law was written to encourage everyone – those at risk as well as those facing no known risk – to get checked. But if people go into the procedure expecting insurance to pay the cost, and then a week later receive a surprise letter indicating they are responsible for the $2,000 – $2,500 cost, it will give people a strong financial disincentive to getting tested.

As an attorney, I wonder how the law could get twisted around to this extent. The purpose of a colonoscopy is determined at the moment an appointment is made, not ex post facto during or after the colonoscopy. If the patient has no symptoms and is simply getting a colonoscopy to screen for colon cancer because the patient has reached age 45 or 50 or 55, then that purpose or intent cannot be negated by subsequent findings of any condition. What if the doctor finds a minor noncancerous infection and notes that on the claim form? Will that diagnosis void the 100% payment for preventive service? If so, it gives patients a strong incentive to tell their GI doctors that they are only to note on the claim form “yes or no” in response to colon cancer and nothing else. Normally, we would want to encourage doctors to share all information with patients, and the patients would want that as well. But securing payment for preventive services requires the doctor code up the entire procedure as routine preventive screening.

The question is how do consumers inform the government of the need for a special coding or otherwise provide guidance on preventive screening based on intent at time of service, not on subsequent findings? I could write my local congressman, but he is a newly elected conservative Republican who opposes health care and everything else proposed by Obama. If I wrote him on the need for clarification of preventive health visits, he would interpret that as a letter advising him to vote against health care reform at every opportunity. I doubt my two conservative Republican senators would be any different. They have stand pat reply letters on health care reform that they send to all constituents who write in regarding health care matters.

To my knowledge, there is no way to make effective suggestions to the Obama administration. Perhaps the only solution is to publicize the problem in articles and raise these issues in discussion forums

There is a clear and absolute need for government to get involved in the health care sector. You seem to forget how upset people were with the non-government, pure private sector-based health care system that left 49 million Americans uninsured. When those facts are mentioned to people abroad, they think of America as having a Third World type health care system. Few Japanese, Canadians, or Europeans would trade their existing health care coverage for what they perceive as the gross inequities in the US Health Care System.

The Affordable Care Act, I agree, completely fails to address the fundamental cost driver of health care. For example, it perpetuates and even exacerbates the tendency of consumers to purchase health services without any regard to price. Efficiency in private markets requires cost-conscious consumers; we don’t have that in health care.

I am glad the ACA was passed. It is a step in the right direction. As noted, there are problems with the ACA including the “preventive health visits” to the doctor, which are supposed to be covered 100% by insurance but may not be if any diagnostic code is entered on the claim form.

Congress is so polarized on health care that the only way to get changes is with a groundswell of popular support. I don’t think a letter writing campaign is the correct way to reform payment for the “preventive health visits.” If enough consumers advise their doctors that this particular visit is to be treated solely as a preventive health visit, and they will not pay for any service in the event the doctor’s office miscodes the visit with anything else, then the medical establishment will take notice and use its lobbying arm to make Congress aware of the problem.

COMMENT: Should there not be an agreement up front between both parties on what actions that will be taken if said item is found or said event should be seen or occur? Should their be a box on the pre-surgical form giving the patient the right to denying the doctor to take proper action (deemed by whom?) if they see a need to? Checking this box would save the patient the cost of the procedure, and give them time for a consult. If there is not a box to check, why isn’t there one?

There are two separate questions posed by the checkbox election for procedures. First, does a patient have a legal right to check such a box or instruct a physician/surgeon orally or in writing that he does not give consent for that procedure to be performed? The answer to that question is yes.

The second question is does it serve the economic interest of the patient to check that box? For the colonoscopy, in theory the patient would get his or her free preventive screening, but then be told the patient needs to schedule a second colonoscopy for removal of a suspicious polyp. In that case, the patient would eventually have to pay for a colonoscopy out of pocket (unless he had already met his yearly deductible), so there is no clear economic rationale for denying the physician the right to remove the polyp during the screening colonoscopy.

But we are using the much less common colonoscopy example. Instead, let’s return to preventive care with a primary care doctor. Should a patient have the right to check a box and say “I want this visit to cover routine preventive care and nothing more”? Certainly. There is way too much discretion afforded physicians to code up whatever they want on claim forms such that two physicians seeing the exact same patient might code up different procedures and diagnostics for the exact same preventive health screening visit.

When I expect to receive a “zero cost to me” preventive screening, I do not imply that I am willing to accept a “bait and switch” change of procedure and payment due to the doctor from me. The “zero cost to me” induces consumers to go to the office visit; it is actually paid for out of the profits earned by the health insurance firms to whom consumers pay monthly premiums. Consumers need to hold doctors financially accountable for their claim billing practices. If you are quoted a “zero price” for a visit, the doctor’s office better honor that price, or it amounts to fraud.

It is all too easy to find any little old thing to justify billing a patient for a sick visit instead of a wellness visit. However, it is up to the patient to prevent that kind of profiteering at his or her expense.

It would be wonderful if HHS would give carriers the proper code or specify that other diagnostic codes cannot negate the preventive screening code used for a wellness visit. That is not happening now. DHS has been bombarded with so many questions and suggestions for health care reform that the department has a fortress like mentality. So realistically, consumers cannot expect DHS to address the coding issue for preventive health screenings any time soon. That leaves the full burden to fall on each consumer to ensure the doctor’s billing practices match the patient’s expectations for a free preventive health office visit.

Patient Abandonment – Home Health Care

Elements of the Cause of Action for Abandonment

Each of the following five elements must be present for a patient to have a proper civil cause of action for the tort of abandonment:

1. Health care treatment was unreasonably discontinued.

2. The termination of health care was contrary to the patient’s will or without the patient’s knowledge.

3. The health care provider failed to arrange for care by another appropriate skilled health care provider.

4. The health care provider should have reasonably foreseen that harm to the patient would arise from the termination of the care (proximate cause).

5. The patient actually suffered harm or loss as a result of the discontinuance of care.

Physicians, nurses, and other health care professionals have an ethical, as well as a legal, duty to avoid abandonment of patients. The health care professional has a duty to give his or her patient all necessary attention as long as the case required it and should not leave the patient in a critical stage without giving reasonable notice or making suitable arrangements for the attendance of another. [2]

Abandonment by the Physician

When a physician undertakes treatment of a patient, treatment must continue until the patient’s circumstances no longer warrant the treatment, the physician and the patient mutually consent to end the treatment by that physician, or the patient discharges the physician. Moreover, the physician may unilaterally terminate the relationship and withdraw from treating that patient only if he or she provides the patient proper notice of his or her intent to withdraw and an opportunity to obtain proper substitute care.

In the home health setting, the physician-patient relationship does not terminate merely because a patient’s care shifts in its location from the hospital to the home. If the patient continues to need medical services, supervised health care, therapy, or other home health services, the attending physician should ensure that he or she was properly discharged his or her-duties to the patient. Virtually every situation ‘in which home care is approved by Medicare, Medicaid, or an insurer will be one in which the patient’s ‘needs for care have continued. The physician-patient relationship that existed in the hospital will continue unless it has been formally terminated by notice to the patient and a reasonable attempt to refer the patient to another appropriate physician. Otherwise, the physician will retain his or her duty toward the patient when the patient is discharged from the hospital to the home. Failure to follow through on the part of the physician will constitute the tort of abandonment if the patient is injured as a result. This abandonment may expose the physician, the hospital, and the home health agency to liability for the tort of abandonment.

The attending physician in the hospital should ensure that a proper referral is made to a physician who will be responsible for the home health patient’s care while it is being delivered by the home health provider, unless the physician intends to continue to supervise that home care personally. Even more important, if the hospital-based physician arranges to have the patient’s care assumed by another physician, the patient must fully understand this change, and it should be carefully documented.

As supported by case law, the types of actions that will lead to liability for abandonment of a patient will include:

• premature discharge of the patient by the physician

• failure of the physician to provide proper instructions before discharging the patient

• the statement by the physician to the patient that the physician will no longer treat the patient

• refusal of the physician to respond to calls or to further attend the patient

• the physician’s leaving the patient after surgery or failing to follow up on postsurgical care. [3]

Generally, abandonment does not occur if the physician responsible for the patient arranges for a substitute physician to take his or her place. This change may occur because of vacations, relocation of the physician, illness, distance from the patient’s home, or retirement of the physician. As long as care by an appropriately trained physician, sufficiently knowledgeable of the patient’s special conditions, if any, has been arranged, the courts will usually not find that abandonment has occurred. [4] Even where a patient refuses to pay for the care or is unable to pay for the care, the physician is not at liberty to terminate the relationship unilaterally. The physician must still take steps to have the patient’s care assumed by another [5] or to give a sufficiently reasonable period of time to locate another prior to ceasing to provide care.

Although most of the cases discussed concern the physician-patient relationship, as pointed out previously, the same principles apply to all health care providers. Furthermore, because the care rendered by the home health agency is provided pursuant to a physician’s plan of care, even if the patient sued the physician for abandonment because of the actions (or inactions of the home health agency’s staff), the physician may seek indemnification from the home health provider. [6]

ABANDONMENT BY THE NURSE OR HOME HEALTH AGENCY

Similar principles to those that apply to physicians apply to the home health professional and the home health provider. A home health agency, as the direct provider of care to the homebound patient, may be held to the same legal obligation and duty to deliver care that addresses the patient’s needs as is the physician. Furthermore, there may be both a legal and an ethical obligation to continue delivering care, if the patient has no alternatives. An ethical obligation may still exist to the patient even though the home health provider has fulfilled all legal obligations. [7]

When a home health provider furnishes treatment to a patient, the duty to continue providing care to the patient is a duty owed by the agency itself and not by the individual professional who may be the employee or the contractor of the agency. The home health provider does not have a duty to continue providing the same nurse, therapist, or aide to the patient throughout the course of treatment, so long as the provider continues to use appropriate, competent personnel to administer the course of treatment consistently with the plan of care. From the perspective of patient satisfaction and continuity of care, it may be in the best interests of the home health provider to attempt to provide the same individual practitioner to the patient. The development of a personal relationship with the provider’s personnel may improve communications and a greater degree of trust and compliance on the part of the patient. It should help to alleviate many of the problems that arise in the health care’ setting.

If the patient requests replacement of a particular nurse, therapist, technician, or home health aide, the home health provider still has a duty to provide care to the patient, unless the patient also specifically states he or she no longer desires the provider’s service. Home health agency supervisors should always follow up on such patient requests to determine the reasons regarding the dismissal, to detect “problem” employees, and to ensure no incident has taken place that might give rise to liability. The home health agency should continue providing care to the patient until definitively told not to do so by the patient.

COPING WITH THE ABUSIVE PATIENT

Home health provider personnel may occasionally encounter an abusive patient. This abuse mayor may not be a result of the medical condition for which the care is being provided. Personal safety of the individual health care provider should be paramount. Should the patient pose a physical danger to the individual, he or she should leave the premises immediately. The provider should document in the medical record the facts surrounding the inability to complete the treatment for that visit as objectively as possible. Management personnel should inform supervisory personnel at the home health provider and should complete an internal incident report. If it appears that a criminal act has taken place, such as a physical assault, attempted rape, or other such act, this act should be reported immediately to local law enforcement agencies. The home care provider should also immediately notify both the patient and the physician that the provider will terminate its relationship with the patient and that an alternative provider for these services should be obtained.

Other less serious circumstances may, nevertheless, lead the home health provider to determine that it should terminate its relationship with a particular patient. Examples may include particularly abusive patients, patients who solicit -the home health provider professional to break the law (for example, by providing illegal drugs or providing non-covered services and equipment and billing them as something else), or consistently noncompliant patients. Once treatment is undertaken, however, the home health provider is usually obliged to continue providing services until the patient has had a reasonable opportunity to obtain a substitute provider. The same principles apply to failure of a patient to pay for the services or equipment provided.

As health care professionals, HHA personnel should have training on how to handle the difficult patient responsibly. Arguments or emotional comments should be avoided. If it becomes clear that a certain provider and patient are not likely to be compatible, a substitute provider should be tried. Should it appear that the problem lies with the patient and that it is necessary for the HHA to terminate its relationship with the patient, the following seven steps should be taken:

1. The circumstances should be documented in the patient’s record.

2. The home health provider should give or send a letter to the patient explaining the circumstances surrounding the termination of care.

3. The letter should be sent by certified mail, return receipt requested, or other measures to document patient receipt of the letter. A copy of the letter should be placed in the patient’s record.

4. If possible, the patient should be given a certain period of time to obtain replacement care. Usually 30 days is sufficient.

5. If the patient has a life-threatening condition or a medical condition that might deteriorate in the absence of continuing care, this condition should be clearly stated in the letter. The necessity of the patient’s obtaining replacement home health care should be emphasized.

6. The patient should be informed of the location of the nearest hospital emergency department. The patient should be told to either go to the nearest hospital emergency department in case of a medical emergency or to call the local emergency number for ambulance transportation.

7. A copy of the letter should be sent to the patient’s attending physician via certified mail, return receipt requested.

These steps should not be undertaken lightly. Before such steps are taken, the patient’s case should be thoroughly discussed with the home health provider’s risk manager, legal counsel, medical director, and the patient’s attending physician.

The inappropriate discharge of a patient from health care coverage by the home health provider, whether because of termination of entitlement, inability to pay, or other reasons, may also lead to liability for the tort of abandonment. [8]

Nurses who passively stand by and observe negligence by a physician or anyone else will personally become accountable to the patient who is injured as a result of that negligence… [H]ealthcare facilities and their nursing staff owe an independent duty to patients beyond the duty owed by physicians. When a physician’s order to discharge is inappropriate, the nurses will be help liable for following an order that they knew or should know is below the standard of care. [9]

Similar principles may apply to make the home health provider vicariously liable, as well.

Liability to the patient for the tort of abandonment may also result from the home health care professional’s failure to observe, examine, assess, or monitor a patient’s condition. [10] Liability for abandonment may arise from failing to take timely action, as well as failing to summon a physician when a physician is needed. [11] Failing to provide adequate staff to meet the patient’s needs may also constitute abandonment on the part of the HHA. [12] Ignoring a patient’s complaints and failing to follow a physician’s orders may likewise constitute a tort of abandonment for a nurse or other professional staff member.

1. Lee v. Dewbre, 362 S.W.2d 900 (Tex. Civ. App. 7th Dist. 1962).

2. Kattsetos v. Nolan, 368 A.2d 172 (Conn. 1976).

3. 61 AM. Jur. 2d, Physicians and Surgeons § 237 (1981).

4. See, e.g., Tripp v. Pate, 271 S.E.2d 407 (N.C. App. 1980).

5. Ricks v. Budge, 64 P.2d 208 (Utah 1937).

6. M.D. Nathanson, Home Healthcare Answer Book: Legal Issues for Providers 212 (1995).

7. See, generally, E.P. Burnzeig, The Nurse’s Liability for Malpractice (1981).

8. Sheryl Feutz-Harter, Nursing Caselaw Update: In appropriate Discharging of Patients, 2 J. Nursing L. 49 (1995).

9. Id., 53.

10. See, e.g., Pisel v. Stamford Hosp., 430 A.2d1 (Conn. 1980) (nurses were held liable for failing to monitor the condition of a patient).

11. See, e.g., Sanchez v. Bay General Hosp., 172 Cal. Rptr. 342 (Cal. App. 1981); Valdez v. Lyman-Roberts Hosp., Inc. 638 S.W. 2d 111 (Tex. 1982).

12. Czubinsky v. Doctors Hosp., 188 CAl. Rptr. 685 (1983).