“Contracts and Antitrust Protocols Based on the Criminal Aspects of Health Care” Please respond to the following: •* From the scenario, differentiate between the concepts of criminal law, antitrust, and health care as they apply to U.S. health law in the

HSA515 Week 3 Scenario Script: Health Care Policy, Law, and Ethics – Criminal Aspects of Health Care and Antitrust

Slide #

Scene/Interaction

Narration

Slide 1

Scene 1

Professor Charles enters classroom and introduces the topics for today’s lesson and begins the lecture.

Prof Charles: Hello everyone….welcome back to class. Today, we are going to discuss criminal law, antitrust, and health care….

In an effort to provide you a review of criminal law as it relates to the healthcare industry, I will begin with the procedural aspects of criminal law as well as a an overview of cases that have occurred in health care facilities.

A crime is any social harm defined and made punishable by law. The objectives of criminal law are to maintain public order and safety. Crimes are generally classified as misdemeanors or felonies. A misdemeanor is an offense punishable by less than one year in jail and/or a fine ( for example, petty larceny). A felony is a much more serious crime (for example, rape and murder) and is generally punishable by imprisonment.

Let’s first discuss criminal procedure which regulates the process for addressing violations of criminal law. Who can describe the process of arrest and arraignment?

Casey: Prosecution usually begins with a police arrest or a warrant for an arrest. The arraignment is a formal reading of the accusatory instrument, a document which accuses the defendant of an offense and includes the setting of bail.

Donald: I would agree, but I would add that after the charges are read the defendant pleads guilty or not guilty. Then the court sets bail, if any, and the judge sets a date for the defendant to return to court.

Prof. Charles: Absolutely.  What happens after the arraignment?

Casey: I would say there is a conference and then the criminal trial.

Prof. Charles: Excellent Casey. What occurs in the conference?

Donald: The conference occurs if the defendant does not plead guilty. Plea bargaining commences with the goal of an agreed-upon disposition. If no disposition can be reached, the case is adjourned, motions are made, and further plea bargaining takes place. After several adjournments, a case may be assigned to a trial court.

Prof. Charles: Great job, Donald! Now let’s take a look at the criminal trial.

Slide 2

Check Your Understanding

Which of the following best represents the defense attorney?

A. Defends the rights of the prosecutor.

B. Protects the rights of the defendant.

C. Represents the interests of the law

Correct Feedback:

B. In protecting the rights of the defendant, the defense attorney is often not very popular and usually sits in the proverbial “hot seat.”

Incorrect Feedback:

A. Defends the rights of the prosecutor.

C. Represents the interest of the law.

Slide 3

Scene 2

Discussion between Prof Charles and students. 

Prof. Charles: Let’s discuss the False Claim Act of 1986 which prohibits knowingly presenting or causing a false claim for payment to be presented to the government.  Also, knowingly making, using or causing to be made or used a false record or statement to get a false claim paid or approved by the government is in the act.  Conspiring to defraud the government by getting a false claim allowed or paid is also included in the False Claim Act of 1986.

As a means of reducing fraud and abuses in federal health care programs, the Office of Inspector General (OIG) can impose monetary penalties as well as exclude providers from the participation in Medicare and Medicaid.

.

The federal government requires providers to implement an effective corporate integrity agreement (CIA). Let’s explain the seven core elements of an effective compliance program.

Casey: So, Professor Charles…how is this evidence of complying with the Act?

Prof. Charles: Good question, Casey. The Inspector General says that best evidence that a provider is operating effectively occurs when the provider, through its compliance program, identifies problematic conduct, takes appropriate steps to remedy the conduct and prevents it from recurring, and makes a full and timely disclosure of the misconduct to the appropriate authorities.

Donald: Just to be clear, the seven core elements are as follows:

1. leadership by corporate counsel or a chief compliance officer.  written standards
2. Education and training
3. Internal lines of communication
4. Responding to potential violations
5. Corrective action procedures.[Pat1] 

Prof. Charles: Excellent Donald… There is also the Medicare and Medicaid Patient Protection Act 1987, the “Anti-Kickback Statute.”

The Act provides for criminal penalties for certain acts impacting Medicare and Medicaid.  The statute penalizes anyone who induces, solicits, or pays anything of value to influence another person to use these federal programs. The OIG targets four billing practices: claims for services not provided, claims for beneficiaries not homebound, claims for visits not made, and claims for visits not authorized by a physician.

Casey: I am still not quite clear on this idea of a kickback

Prof. Charles: Sure….Imagine a private laboratory who does laboratory work for a private hospital of which it is part owner. The independent Lab company could be convicted of receiving money from the private hospital in exchange for referring Medicare patients to the hospital.

Slide 4

Check Your Understanding

Health care fraud involves an unlawful act, generally _______  for personal gain:

A. Deception

B. Irregularities

Correct Feedback:

A. Deception is correct. It is intentional and healthcare fraud continues to be a major financial drain in the healthcare system.

Incorrect Feedback:

B.  Fraud incorporates not only irregularities but also illegal acts characterized by intentional deception.

Slide 5

Check Your Understanding

Behind every act of fraud lies a lapse in ________:

A. Intuition

B. Belief

C. Ethics

D. Memory lapse

Correct Feedback:

C. Ethical lapses often occur when physicians make referrals based on a financial interest the physician has in the provider to which the patient has been referred.

Incorrect Feedback:

A. Incorrect.  Financial self interest is the motivating factor in the ethical lapse.

B. Incorrect.  Please try again.  The illegal act was based on financial factors not a belief system.

D. Incorrect.  Please try again.  The physician did not forget right from wrong but did remember his/her illegal self-interests

Slide 6

Scene 3

Discussion of contracts and antitrust

Prof. Charles: Now let’s discuss corporate contracts before we talk about restraint of trade.

Can anyone tell the class about the different types of contracts?

Casey:  I think I can. An express contract is one in which the parties to a contract have an oral or written agreement. An implied contract is one that is inferred by law. It is based on the conduct of the parties, such as a handshake or similar conduct.

Prof. Charles:  Very good, Casey! 

Donald: Prof. Charles…What is a violation of a contract?

Prof. Charles: Donald, that is a great question…It is called a breach of contract and occurs when there is a violation of one or more terms of the contract. The basic elements that a plaintiff must establish in order to be successful in a breach of contract lawsuit include the following:

A valid contract, the plaintiff performed as specified in the contract, the defendant failed to perform as specified in the contract, and the plaintiff suffered an economic loss as a result of the defendant’s breach of contract.

Casey: So is it safe to say a breach of contract occurs when there is a violation of one or more of the terms?

Prof. Charles: Yes, Casey….I think that is a pretty good distinction.

Casey: So medical staff bylaws can be considered a contract?

Prof. Charles: Well, that is a great lead-in to the next topic, which is due process and medical staff bylaws.

Slide 7

Scene 4

Discussion on medical staff bylaws: A contract and Antitrust

Prof. Charles: The medical staff bylaws state that they provide the rules that govern the physicians and dentists practicing at the hospital. Also, members of the medical staff of the hospital must continuously meet the qualifications, standards, and requirements set forth in the bylaws. An appointment to the medical staff confers only those privileges provided by the letter of appointment and the bylaws. A signed signature of the physician or dentist to the hospital bylaws acknowledging the requirement to familiarize themselves with the bylaws.

What do you think the bylaws entitle a suspended hospital physician?

Casey: I would say that a physician who was subject to the hospital bylaws has a due process right to a hearing before the medical staff and the hospital Board of Trustees/Directors.  

Prof. Charles: Exactly…It is also important to remember that a physician whose privileges are suspended or terminated must exhaust all remedies provided in a facility’s bylaws, rules, and regulations before commencing court action.  

Donald: Professor, in our discussion, you have provided us significant information.

I would like to know how illegal restraint of trade figures into alternative health care delivery systems.  

Prof. Charles: The emphasis on free enterprise and a competitive marketplace has resulted in careful scrutiny by the Federal Trade Commission (FTC), the federal agency responsible for monitoring the marketplace and enforcing federal antitrust laws.

The Sherman Antitrust Act states that any entity or trust that interferes with fair trade or competition by forming a monopoly can be guilty of a felony.  Physicians can bring action for denial of hospital medical staff privileges based on the allegation that the hospital in conspiracy with other physicians is illegally denying competition among physicians.

Casey:  So, hospital staff privileges are both professionally and economically important to healthcare professionals?

Prof. Charles: Hospital staff privileges must maintain quality standards, but every effort must be made to prevent anticompetitive abuses.

Slide 8

Scene 5

Summary

Picture of Casey and Donald as they speak.

Prof Charles: We are just about out of time.  Let’s go over what we learned in this lesson.

We studied one of the many branches of law that affects healthcare providers, contracts and restraint of trade. The purpose here was to give you an introduction to contracts, antitrust, and their elements and importance as they pertain to healthcare organizations and professionals.

Before we adjourn, are there any questions?

Donald: I have no questions; I think that the information was clearly presented, Professor.

Casey: No questions for me, thank you Professor.

Professor Charles: Excellent.  I hope you enjoyed today’s lesson.  I look forward to next year.  Until then, take care.