Tech Partnerships Bring Help, Potential Trouble to Docs

February 21, 2017

Old government regulations need to adapt to new healthcare technologies, advises a former DOJ attorney.

Technological advances in healthcare happen quickly. So quickly, in fact, that the federal government often can’t work fast enough to adapt its rules and regulations, resulting in stifled advancement and innovation as fear of a violation - most likely an unintentional one - looms for physicians.

Scott Grubman, Esq., an attorney with Atlanta-based law firm Chilivis, Cochran, Larkins & Bever LLP, says that fraud and abuse enforcement has been one of the government’s top priorities over the past several years and that likely won’t change with a new administration. So physicians and practices need to be keenly aware of what possibilities sound technologically beneficial, but could be harmful.

“The government has recovered billions of dollars to date [from fraud and abuse investigations],” Grubman recently told Physicians Practice. “Technology can be used to help providers avoid getting into trouble, but unfortunately, at the same time, technology can also be used to create problems.”

At this year’s Health Information and Management Systems Society conference (HIMSS17) in Orlando, Florida, Grubman, a former Assistant U.S. Attorney and trial attorney for the U.S. Department of Justice, will further explore the benefits and possible detriments of enhanced technology in healthcare.

His session, “Round Peg, Square Hole: Old Regulations Meet New Technology,” is scheduled for Thursday, February 23, from 10:30-11:30 a.m. He recently spoke with Physicians Practice regarding the fine line physicians face each day.

Q. What are some areas of technology use where small practices can get into trouble with the federal government?

With the opportunity that comes with technology, there are also some challenges and some regulatory concerns that a physician and practice need to look out for.

For example, a hospital with a relationship with a physician group providing certain technology to that physician group that helps facilitate communication between [the two entities] or helps facilitate referrals from the group to the hospital. That would be something that would be very positive from a technology standpoint, as it would contribute to efficiency and the provision of care, etc. However, while the devil is in the details, such an arrangement could potentially implicate some very serious federal healthcare enforcement statutes like the Anti-Kickback Statute and Stark Law.

Labs are another example. Physicians are often approached by laboratory companies who have various technologies they want to place in physician offices to facilitate the referral of lab services from the physician office to the laboratory. Again, [this is] something that’s extremely positive from a patient care and efficiency perspective, but something for which you have to be really careful when it comes to the Anti-Kickback Statute and Stark Law.

Unfortunately, as the name of the session implies, some of the rules were put into place before this explosion of technology in healthcare. So while the government entities in charge of enforcement are trying to embrace technology and encourage technological advancement, there are some issues where old rules are being applied.  It does become a challenge for healthcare providers and healthcare attorneys to figure out how those old rules apply when it comes to emerging technologies. But it is something the providers really need to be aware of.

Q. What should small practices do to figure out what is technologically beneficial and what is a potential violation?

No one likes to spend money on lawyers … just like no one likes to spend money on doctors. But when you need a doctor, you spend money on the doctor. When you need a lawyer, you spend money on a lawyer. There’s an analogy to medicine where they say an ounce of prevention is worth a pound of cure. It’s similar here, because when the government comes knocking with a subpoena… because you potentially, even unintentionally, violated one of these statutes, there’s no question you’ll have to go hire an attorney. Trust me, that’s very expensive … and when you are in really hot water and don’t have a choice.

But instead of getting to that point, to hire a healthcare compliance lawyer to look at arrangements and give proactive legal advice based on the guidance that is out there is important. [This can] not only [help you] avoid getting into that situation but also, if the government does come knocking later, it’s an important fact to say ‘we sought the advice of legal counsel and acted upon that advice and tried to get it right.’ That will be an important factor if you have to defend an investigation or case later on.

Q.So is it time for regulations to change / adapt to technology and other advancements in healthcare?

We are talking about technology here, but … this is really a broader issue. Healthcare does not follow the same rules that apply in other industries. In almost any other industry that I’m aware of, if two willing people or parties want to enter into an arrangement, and they agree to the terms of that arrangement, they can do that. If they make money off of it, great.

Healthcare is different because, from a public policy perspective, the government has decided that money should not influence the provision of care and that patients should be assured that they are getting what they truly need and not simply what is in the provider’s best financial interest.

Unfortunately, often times, the government … lags behind private industry in a lot of respects and eventually, I think, it will be on the industry to go to the government and lobby for change in existing, sometimes antiquated rules, that are stifling technological innovation in healthcare.