Patients Challenging Medical Invoices and Bills

Root Cause is Money, Failure-to-Disclose and Frustration

[By Staff Reporters]

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Patients are challenging their medical bills with lawyers and lawsuits, out of frustration about the lack of up-front disclosure over costs by doctors and hospitals.

Involve More than a Few Cases

For example, after being charged $82,282 for a 23-hour stay in doctor-owned Westfield Hospital for two operations on her abdomen, a 56-year-old West Penn Township woman called the hospital and her insurer for an explanation.

Not satisfied with the response, she hired a lawyer and notified a reporter, after which Westfield officials said she was overcharged due to human error.

In another 2006 class-action Seattle lawsuit that was expected to have a ripple effect on consumers and hospitals, two patients of the Virginia Mason Medical Center filed suit against the center and won, after which Virginia Mason agreed to pay back an estimated $60 million to more than 3,200 patients who over six years had been charged ”overhead” for procedures performed in hospital-owned clinics – in some cases adding 60 percent to the price patients would have been charged for the same procedure performed by the same doctors in their offices.

Assessment

Although private legal action over medical bills is hard to track, the number of billing and coverage complaints filed with the Pennsylvania Attorney General’s health care unit has risen steadily, with the 2,000 or more complaints so far this year representing a five or six percent increase over last year; according to Morning Call, July 13, 2008.

Conclusion

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Physician Malpractice Liability Immunity

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Free Charity Medical Care?

[By Staff Reporters]insurance-book

Sen. Mike Enzi [R-Wyoming], the senior Republican on the Senate Health, Education, Labor and Pensions Committee [HELP], recently introduced legislation that would allow physicians and other medical professionals to volunteer their services at charity clinics and community health centers free from medical liability concerns.

Query

What is your opinion on this idea, given that there are more than 42 million uninsured Americans, in need? Please comment and explain? We are especially interested in hearing from doctors, lawyers, actuaries and health economists.

Conclusion

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Risk Management: It’s Not All About Medical Malpractice Anymore

Book Review

By Murray J. Goodman; MD

In the narrow world of our day-to-day practice, orthopaedic surgeons often think of risk management strictly in terms of avoiding exposure to medical liability lawsuits. But, in the book Insurance and Risk Management Strategies for Physicians and Advisors, author, physician, and healthcare economist David E. Marcinko has assembled a cadre of experts who address the broader issue of risk management.

Link: http://www.amazon.com/Insurance-Management-Strategies-Physicians-Advisors/dp/0763733423/ref=sr_1_3?ie=UTF8&s=books&qid=1217606361&sr=1-3

15 Chapter Overview

This book examines the many important risks that we, as physicians, face daily in the practice of medicine. You may not think of life insurance, sexual harassment, Medicare fraud, marital divorce, and privacy issues as part of a risk management plan, but they are. Dr. Marcinko has written a book that provides an initial reference point for these diverse issues.

Each of the 15 chapters covers a single area, providing a broad overview as well as specific information and recommendations. This book addresses the personal, professional and business risks physicians face on a daily basis.

Personal Insurance Matters

The personal side of insurance is first, beginning with a discussion on insuring the doctor’s life. The chapter explains the various types of policies available, as well as various permutations and combinations of policy provisions. It briefly discusses both health insurance and long-term care insurance. It includes the critical features to look for in selecting a long-term care policy for yourself and the necessary criteria for successfully filing a claim under such a policy.

Practice Insurance Matters

Many orthopaedic practices are also small businesses, so property insurance and the business uses of life insurance, such as in buy-out and succession planning, are covered. The author reviews the use of restrictive covenants and employment contracts, providing examples of what works and what does not. One of the questions this chapter addresses is the difference in applicability between a restrictive covenant with regard to a departing employed physician and a restrictive covenant included in the sale of a medical practice.

Compliance Topics and Medical Workplace Regulations

Recent actions by the Department of Justice [DOJ] and activities of the Office of the Inspector General [OIG] regarding Medicare have focused attention on compliance issues. The text provides a good overview on medical documentation and healthcare compliance, including a summary of record-keeping obligations.

In addition, the author includes pointers on how a medical practice can avoid running afoul of the federal False Claims Act, fraud and abuse statutes, Stark and safe harbor laws, and the “alphabet soup” of HIPAA, OSHA, and ERISA regulations. Risks involved with serving as an expert witness, doing peer review and taking call are also covered. The discussions are as timely as those sponsored by the AAOS. The chapter on medical malpractice even includes a discussion of physician self-regulation and expert witness discipline.

Sexual Harassment Issues

The section on sexual harassment explains what constitutes a hostile work environment and what the physician’s role should be in risk avoidance. Complimenting an employee’s dress or telling a slightly off-color joke may seem innocent enough, but not if they meet the two criteria that determine offensive behavior and can lead to a lawsuit. Violence in the workplace is discussed as it relates to patients and employees, both as perpetrators and as victims. The author recommends that every orthopaedic practice have a policy and a plan in place to deal with these issues should they arise.

Malpractice Liability and Going to Court

One-quarter of the book is devoted to medical liability risks. Although the discussion of the medical liability crisis might be a bit dated and only too familiar to many readers, the section on the anatomy and procedures of a medical liability trial and the physician defendant’s role in that process is excellent. From subpoena to verdict, the process is laid out. Written by a malpractice attorney who is also a physician, the chapter provides solid advice on how to respond to the subpoena, secure the medical record [make an exact copy and seal it], and find personal counsel.

Pre-Nuptial Agreements, Divorce and Asset Protection

The financial risks of divorce are rarely covered in books geared to medical professionals, but this text examines them in detail. It also discusses prenuptial agreements and the special circumstances surrounding older divorcing medical professionals. Final chapters cover asset protection principles and how to select insurance and financial advisers who specialize in serving medical professionals.

Recommended Reading

Each chapter is authored by an expert in that particular field, but the text has a uniform consistency and approach, listing basic principles and citing specific examples to illustrate the issues involved. Ample references are provided, including written texts and articles, case law, and Internet Web sites. The table of contents is functional, and the index is well-organized for quick reference.

Insurance and Risk Management Strategies for Physicians and Advisors[Jones and Bartlett Publishers, Sudbury, Mass] is a comprehensive examination of risk management strategies. It does not provide specific legal or financial advice, but it does provide a background in many areas germane to the practical aspects of maintaining a medical practice in this millennium. Although not a stand-alone text, it gives the reader the vocabulary and information necessary to take many of these issues to the next level.

Assessment

“This book is recommended reading for those about to enter the practice of medicine; those already in practice will find it a helpful reference when seeking resources on a particular issue”.

Personal

My wife tells me that because it also addresses the personal and emotional issues affecting physicians’ lives, it is suitable for spouses as well.

Note: Murray J. Goodman, MD, is a member of the Medical Liability Committee. He can be reached at mj-goodman@comcast.net June 2008 AAOS Now http://www.aaos.org/news/aaosnow/jun08/managing2.asp

From the article of the same title AAOS Now (06/08) Goodman, Murray J.

http://www.asoa.org/resources/practice-mgmt-news/practice-management-news.cfm

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Baby Boomers Financially Unprepared

Potential Medical Disability Survey

Staff Reporters

According to findings from a recent Harris Interactive survey conducted on behalf of America’s Health Insurance Plans (AHIP) between April 25 – 29, 2008, baby boomers are financially unprepared if they themselves, or the primary wage earner in their household, suffered a medical disability and was unable to work for an extended period of time.

Survey findings:

  • More than half (55 percent) of baby boomers said that they are either not at all or somewhat unprepared financially should they themselves or the primary wage earner in their household became disabled.
  • One in five (22 percent) say they are “not at all prepared” if a disability occurred.
  • Conversely, only 15 percent report that they are very or extremely prepared for a potential disability.
  • More than half (55 percent) say that it is at least somewhat likely that they would tap into their retirement savings in the event that they or the primary wage earner in their household became disabled and could not work for an extended period.
  • Nearly a third (32 percent) reported that it is extremely/very likely/likely that they would need to tap into retirement savings.
  • Nearly one in five boomers (19 percent) reports that it is not at all likely that they would tap into retirement savings.
  • 17 percent report that they do not have any retirement savings at all.

Source: Harris Interactive Inc.

Assessment

What does this survey reveal to doctors, hospitals, financial advisors and the entire health insurance industry?

Conclusion

Please opine and comment.

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“Loss of Chance” Liability

Judicial Court of Massachusetts

Staff Reporters

The Supreme Judicial Court of Massachusetts [JCM] recently ruled that doctors can be held liable for negligence that reduces a patient’s chance of survival, even if the patient’s prospect for recovery was already less than 50 percent.

“Loss of Chance”

The SJC recognized for the first time a legal doctrine known in medical malpractice cases as “loss of chance,”

Definition

LOC allows a patient whose odds of recovery are 50 percent or less to receive damages for any negligence that reduced those odds. The court also established a formula for juries to award damages proportionate to the reduced survival rate caused by the doctor’s negligence, according to the Boston Globe July 24, 2008.

Assessment

Some medical malpractice lawyers opine that the decision could help patients who previously had little chance of collecting damages from physicians.

Conclusion

Your thoughts and opinion are appreciated; please comment? 

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Marital Dissolution, Buy-Sell Agreements and Practice Value

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Doctors, Divorce and Medical Practice Worth

[By Mark P. Gross; JD]

Determining how to value the business interest of each medical partner is a critical element of the buy-sell agreement.

Family law courts, however, have broad discretion about whether to accept or reject the validity and binding effects of the formula stated in these agreements. When assessing whether the formula is binding in the dissolution proceeding, the courts consider, in general: (1) the proximity of the date of the agreement to the date of the marital separation to ensure that the agreement was not entered into while contemplating a marital dissolution; (2) the existence of an independent motive outside of divorce for entering into the buy-sell agreement, (e.g., the desire to protect all shareholders against the affects of a business dissolution); and (3) whether the value determined by the formula used in the agreement is similar to the value produced by other methodologies.

Case Law

For example, in one case [Nichols v Nichols (1994) 27 Cal. App.4th 661, 671-672], these factors were enunciated. The attorney-husband became a partner shareholder and signed a stock purchase and sales agreement under which the price of the stock was determined by a formula based on the book value of all the firm’s assets, except its accounts receivable, goodwill and work in progress, etc. When the husband and wife began divorce proceedings, the husband’s expert valued the community interest of the husband’s stock according to the stock purchase agreement.

The wife’s expert valued the interest by the book value of the firm’s net assets including accounts receivable, goodwill, and work in progress. The dispute went to the family law court and the court ruled in favor of the husband. The appellate court upheld the decision.

The appellate court noted that the agreement was entered into eight years prior to separation and thus did not appear to anticipate the divorce. The firm had an independent motive for entering into the stock purchase agreement, (i.e., avoiding a major economic impact on the firm when a partner leaves). More importantly, the court found no evidence that the stock purchase agreement was designed to deprive the wife of any rights.

A Marital Settlement Agreement

In drafting the buy-sell agreement, the principals of any medical practice or business should view it as a marital settlement agreement.

In a separate divorce case [Slater v Slater (1979) 100 Cal. App. 3d 241, 245, 160], the asset being divided was the husband’s interest in his medical practice partnership.

During the parties’ marriage, the husband and wife both signed the partnership agreement which specifically provided that the partnership could buy back the husband’s interest upon his death, withdrawal, or expulsion. Under the agreement, the purchase price was to be the husband’s interest in the capital account plus the total of the accounts receivable [ARs] less than six months old.

The agreement further stated that “the partners agree that a portion of the purchase price as determined above includes the sale of their interest in the goodwill of the partnership, and in the event of their withdrawal or expulsion from the partnership, that they will not enter into the practice of medicine in that portion of Alameda County for a period of three years.”

Trial Court Proceedings

The trial court proceedings, in determining the value of the husband’s medical practice according to the partnership agreement, found it had a goodwill factor of zero.

The wife appealed claiming the trial court erred in setting a value of zero on the goodwill of the husband’s practice, pursuant to the withdrawal provision of the partnership agreement. The appellate court reversed the trial court’s decision with directions to value of the husband’s interest in the partnership. It rejected the husband’s contention that his wife was bound by the terms of the agreement—even though she had signed it. It found that the agreement was irrelevant because the asset being divided in the dissolution of marriage was not the husband’s contractual withdrawal rights; rather it was his interest in the partnership.

Therefore, the wife was not bound by the terms of the withdrawal provision, and the trial court was not precluded from valuing the goodwill of the husband’s practice. This is a troubling decision and probably an incorrect one.

Fair Market Valuation [FMV] Factors are Key

In order for a buyout plan to better withstand rigorous examination in the family law court, the buyout price should be related to fair market factors of the business and should not be intended to deprive the non-shareholder spouse of any community interest.

A formula should be used based on profitability instead of a fixed price (as in the actuarial business example), and an explanation for the formula should be developed. Having the spouse sign the agreement is probably a good idea.

Fiduciary Duty

Other issues in drafting a buy-sell agreement include breach of fiduciary duty.

California Family Code Section 721(b), for example, states that transactions between a husband and wife are subject to the general rules governing fiduciary relationships. Because the buyout provision is tantamount to an agreement disposing of a community asset, the rules governing fiduciary duties may apply and render the provision voidable or chargeable to the principal spouse for greater value. Therefore, a buy-sell agreement that too heavily favors the principal spouse may not be of any value in a dissolution proceeding.

Community Interest

Finally, when both parties in a divorce agree to the disposition of the community interest in the stock of a company upon dissolution of marriage, the rules governing disclosure apply, including disclosure of valuation. Neither spouse may dispose of community personal property for less than fair and reasonable value [FMV] without the written consent of the other, and each part has an obligation to fully disclose proper valuations of assets. In equitable distribution states, similar disclosure rules are applicable.

Assessment

Buy-sell agreements should be created early in the family-owned business. Once accomplished, unpleasant issues can be discussed before the emotional baggage weighs upon the parties’ sensibilities. It is much easier and more prudent to include the divorce scenario in the agreement up front instead of waiting until it becomes an issue (the agreement already deals with death, disability, and business dissolution). To ensure proper wording of the marital dissolution portion of the buy-sell agreement, a draft of the document should be reviewed by a family attorney prior to execution. With a solid plan in place in the event of divorce, the family business will be better able to weather the stormy events that can sometimes occur within a family.

What are your thoughts and opinions on this often contentious topic, from the spouse, doctor, legal and medical partner perspective? Your comments are appreciated.

About the Author: Mark P. Gross Esq. is a shareholder in the Encino, Calif., law firm of Alpert, Barr & Gross.

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Post-Nuptial Agreements for Doctors

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Protecting Physician Business Assets

[By Dr. David E. Marcinko MBA]

Pre-nuptial agreements are becoming well known; but post-nuptial agreements are not so known.

Family Business Environment

Prenuptial agreements are increasingly common in family business environments. In some cases, the business owner or a shareholder’s agreement may require certain family members to enter into prenuptial agreements with their prospective spouses.

However, postnuptial agreements are becoming equally popular—and for the same reasons. They protect the family business if a family member divorces, becomes disabled, or dies.

State Laws Vary

Only a few states have laws governing the enforceability of postnuptial agreements.

For example, New York law makes no distinction between prenuptial and postnuptial agreements.

In other states, postnuptial agreements are valid only under specified conditions, which vary by state. In some cases, a postnuptial agreement is valid only if each spouse has a certain net worth. 

Another provision requires that each spouse be represented by counsel, while in some states couples must be married for two years before they can prepare a legally valid postnuptial agreement. Some states, such as North Carolina, require a court proceeding and a judge’s approval.

Where state law is silent, it is unclear whether postnuptial agreements will be enforced. New Jersey recently held that a postnuptial agreement was not valid because it was signed under duress. The spouse had said, “Either sign a postnuptial agreement, or there will be a divorce.”

Full Disclosure Needed

In the absence of duress, if there is full disclosure of financial assets and separate representation by counsel, postnuptial agreements should be valid.

For example, Donald Trump executed a postnuptial agreement with his first wife. She challenged it, but the court granted her the amount stipulated in the document ($25 million).

Assessment

Prenuptial agreements are a sensitive issue and can be difficult to propose; especially for physicians with other family business interests.

Postnuptial agreements can be equally problematic to discuss, but they too can offer some degree of protection for doctors with other family business interests.

Conclusion

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Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™8Comprehensive Financial Planning Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™

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Ensuring the Welfare of a Disabled Child

Special Financial Planning Techniques Required

By Roger J. Warrum

If a doctor or medical professional has a mentally or physically disabled child, special estate provisions are needed to ensure the continued care and comfort of that child after the parents’ deaths.

Estate Planning

When designing an estate plan for a doctor with a disabled child, it must provide not only financial security, but personal security as well—without jeopardizing the medical practice as a business entity. The plan must allow the child to continue functioning and making some sort of contribution, according to his or her abilities and lifestyle.

Direct Bequests

In some cases, funds left directly to the child at death may be attached and used by the government. Consequently, direct bequests may not be the best option.

If a doctor wishes to leave the child shares in a family business as a means of support, for example, the best way is to establish a trust that will define how the stock can be converted to cash and how that cash will be spent for the benefit of the child.

To represent the child’s best interests, the doctor might appoint a pair of trustees: one with the financial expertise to invest the trust or assets well -and- another individual who will look out for the child’s welfare to act as the child’s guardian.

Spendthrift Trust

A “discretionary” spend thrift trust is used to provide the trustee discretion to decide when the money will be spent and on what spent.

If the trust is set up solely for the “maintenance” of a disabled child, a state organization caring for the child can attempt to attach the funds.

However, if the trust document specifies the money is to be used for the “benefit and enjoyment” of the child, the state usually is unable to attach the assets.

The share of the estate provided for the disabled child may differ from the share of other children. In many cases, a disabled child requires more funds to care for his or her needs than his or her siblings might require.

Important Issues

When designing an estate plan for the parent(s) of a disabled child, a number of issues must be decided:

• To whom does the doctor want to entrust the care of the child?

• What is the doctor’s wishes regarding the child’s development?

• How should the trust be funded; for example the trust could use a life insurance policy or be funded with other assets?

Assessment

The key elements in planning for a disabled child include:

1. Establishing a trust to be used for the benefit and enjoyment of the child, which cannot be attached by a state or institution should the child need to be institutionalized;

2. Helping to select a guardian, specifying more than one in order of priority;

3. Helping to prepare a letter to the guardian stating desires and wishes for the child; and,

4. Planning to fund the trust and determining the amount to be placed in the trust.

Conclusion

Your thoughts, opinions and experiences with this limited-focus topic are appreciated; please comment? What other issues are involved?

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Physician Financial Planning: http://www.jbpub.com/catalog/0763745790

Medical Risk Management: http://www.jbpub.com/catalog/9780763733421

Healthcare Organizations: www.HealthcareFinancials.com

Health Administration Terms: www.HealthDictionarySeries.com

Physician Advisors: www.CertifiedMedicalPlanner.com

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The Uniform Prudent Investor’s Act

A Trust Primer for Physicians

By Charles L. Stanley; CFP™ ChFCfp-book1

Since inception, the Uniform Prudent Investor Act (UPIA) has changed the financial advisory landscape. Essentially, the act modified the legal criteria of “prudent investing” for trusts.

Now, all assets owned by a trust are considered “investments” for purposes of the Uniform Prudent Investor Act. Consequently, for example, if a trust owns a life insurance policy or an annuity, it is considered an investment for purposes of the UPIA. Anointed doctors, and other trustees and their advisors, are subject to the Act.

Background

The UPIA (California Probate Code Article 2.5) was adopted by the Uniform Conference of Commissioners on Uniform State Laws in 1994. When determining whether or not certain investing is “prudent,” the standard is applied to the whole portfolio rather than to individual investments.

Risk Analysis

The UPIA radically changes the analysis of risk. The UPIA considers risk as unavoidable. For example, fixed income instruments carry the risk of loss of purchasing power, even though the principal may not be reduced in terms of real numbers. Risk is often desirable so long as it is sufficiently compensated. The UPIA seeks to compel the trustees to analyze the trade-offs between risks and returns, taking into consideration the needs and objectives of the trust.

Restrictions Eliminated

The restrictions on what type of investments can be held in trust have been eliminated. The doctor trustee, or other, can invest in anything that plays an appropriate role in achieving the risk/return objectives of the trust and that meets the other requirements of prudent investment. The trustee’s duty to diversify trust assets is codified in the UPIA. It is now recognized that proper effective diversification may enhance returns and/or reduce risk at the same time.

Delegation of Duty Permitted

The UPIA rejected the traditional trust rule that generally prohibited “delegation of duty” by trustees, especially the duty of investment of trust assets. Delegation is now permitted, subject to safeguards. Agents are now made liable if they do not follow the new law.

What Must Trustees Do?

To comply with the UPIA, trustees must review trust assets (16049) and make and implement decisions to either keep or discard assets in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust. For example: 

  • The trustee must diversify the assets of the trust unless it is prudent not to do so (16048). Accordingly, it would not be acceptable for the trust to hold all cash, or all municipal bonds.
  • The trustee must either comply with the Act in full or have the trust amended to restrict the requirements to diversify trust assets.
  • The trustee must delegate if he or she believes that he or she doesn’t the expertise to perform certain functions, this is particularly anticipated in the area of investment management.
  • The trustee is expected to document all of the above and to be available for review either by beneficiaries and/or courts should they become involved. This includes a written Investment Policy Statement [IPS], as previously discussed in the Executive-Post. The act doesn’t specifically require this, but how would one prove they had been acting as a prudent trustee without documentation?
  • The trustee must periodically review the circumstances, assets, and any professional delegates whom he or she has retained to assist him or her.
  • The portfolio must be periodically rebalanced to maintain the established risk/reward characteristics identified in the Investment Policy Statement [IPS]. This is also not specifically stated, but is implied in 16047(b) and is a part of proper portfolio management according to Modern Portfolio Theory [MPT].
  • The act requires the costs of management to be “reasonable.”
  • The trustee must deal impartially with beneficiaries when there are two or more beneficiaries and must invest impartially, taking into account the differing interests of the beneficiaries.

Assessment

In most states, trust language can draft the trustee out of any and all requirements of the Uniform Prudent Investor Act. Some attorneys are doing this. So medical professionals and others should check trust language carefully. This article is not a “final answer” in regard to compliance with the Uniform Prudent Investor Act. But, we seek your thoughts, ideas, experiences, opinions and comments on the UPIA; especially from medically focused financial advisors and estate attorneys. For example, are there other compliance issues to consider?

Conclusion

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IRS Offers-in-Compromise

Understanding the IRS Tax Reform Act

By Staff Writers

In 1998, the IRS received 105,255 offers-in-compromise, but accepted only 25,052 offers—a mere 24%; and the exact number for medical professionals is unknown.

The IRS Reform Act

However, the IRS Reform Act later revamped the provisions for offers-in-compromise and the IRS, reacting to the changes, announced that it would be more flexible in considering offers-in-compromise in the future. In addition, under new rules, taxpayers can have up to two years to pay the accepted compromise amount.

Re-trained Staff

The IRS now trains staff specifically to handle such offers. In accordance with the Act, rejected offers will be reviewed to determine whether the action was in the best interest of the taxpayer. The IRS has updated Form 656 to process the offers.

Submitting the Offer

When submitting an offer-in-compromise, the offer must specify the maximum amount a taxpayer can pay after taking into account basic living expenses. Essentially, this means the IRS will consider each taxpayer’s financial situation individually. But, college education for children is an expense most people pay, yet the IRS generally does not factor in educational expenses when determining a taxpayer’s living expenses. .

In the past, the IRS relied on a standard cost-of-living formula to determine what taxpayers could afford, not on each taxpayer’s own expenses.

The IRS automatically can accept offers if: 1) there is doubt about the liability for the tax, and 2) there is doubt that the taxpayer can ever pay the full amount of the tax. If a taxpayer is claiming there is doubt about the liability, the taxpayer will need the help of a tax professional to spell out the rationale for his or her position. If the offer is based on inability to pay, the financial information in the worksheets to the IRS, Form 656, should be completed.

Quick-Sale Value

Remember, as a medical professional or other, the IRS can consider the taxpayer’s future income, as well as his or her current assets when evaluating an offer. Individuals can exclude certain minimum assets of household effects, and trade and business tools. The value of the taxpayer’s assets is based upon a “quick-sale” valuation. Again the taxpayer may need to help to justify his financial position.

The key is determining the full value of the assets and the discounts for quick sales, in addition to the taxpayer’s living expenses. An amount higher than the IRS standard generally cannot be permitted. Again, this will be based on the taxpayer’s documentation.

Collection Procedures

The IRS’s ability to begin collection procedures while an offer-in-compromise is under consideration has been sharply limited by the Act. This is true even if after an offer is rejected, but the taxpayer appeals the decision.

Cash offers must be paid within 90 days of acceptance. For deferrals, payments must be made within two years after the offer is accepted. Alternately, the taxpayer can pay the offer over the statutory period for collecting the tax.

Innocent Spouse Rule

The IRS also has added innocent spouse relief to offers-in-compromise, so now the IRS will not collect from a taxpayer’s spouse if the taxpayer defaults on his or her compromise agreement.

Assessment

As noted previously the taxpayer has a right to appeal rejected offers. In addition, he or she can submit another offer. But, in the end, only time will tell if the IRS remains taxpayer friendly.

Conclusion

Your thoughts and experiences are appreciated; please comment and opine. Is this a real or perceived new IRS OiC ploy? IOW: The gentler side of Uncle Sam? 

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Alimony versus Child Support

Tax Consequences for Physicians

[By Staff Writers]

Tax considerations are critical when preparing divorce agreements; and an understanding of the applicable sections of the Tax Code is essential for all medical professions in this situation.

In short, alimony is deductible for the payer while child support is not; so it is important for a separation agreement to stipulate that taxpayers report the payments in the same manner. If the person making the payment reports it as alimony, the recipient must include it in income.

The IRS Code Rules

However, when determining whether payments made to a former spouse are alimony or child support, the IRS looks not merely at the agreement, but at how the payments are used. The Code has specific rules for alimony. The payments must be: 

  • Made pursuant to a divorce decree or separation agreement,
  • Made by a payer who is not living in the same household as the recipient, and
  • Payments may not extend beyond the lifetime of either the payer or the recipient.

The last provision can be a trap under some divorce decrees. For example, a doctor makes monthly installments designated as alimony. However, lump-sum payments also designated as alimony are payable under the agreement. In some states, such payments must be made even if the former spouse dies. Alimony payments are not deductible when made to a former spouse after he or she has died.

Front Loaded Payments

In some divorce decrees, alimony payments are front-loaded. Large alimony payments are made in the early years, and then payments dwindle later on. The IRS sometimes challenges whether these arrangements actually are alimony. Property transferred during marriage that is incident to the divorce is not alimony. Such transfers have no tax consequences and should not be claimed as alimony.

Exceptions

While most physician-payers want support payments to be deductible, there are exceptions. In a recent case, the divorce decree ordered one spouse to pay alimony. However, the payer had very little taxable income. Most of his income was from tax-exempt bonds. After negotiations, it was agreed that the payer would not take the alimony deduction, and the recipient spouse would exclude the payment from income.

Child Support

Child support is not deductible for the payer, and the recipient may exclude it from income. However, the parent who has custody of the child or children receives the dependency exemption, but the parties can agree that the payer will receive the exemption(s), provided he or she contributes more than 50% to the costs of the child’s support.

For the non-custodial parent to claim the dependency exemption(s), IRS Form 8322 must be signed by the custodial parent and filed with the IRS. But, you may claim the exemption in alternating years, if you wish.

Assessment

In sum, when negotiating a divorce settlement, there are a number of tax traps to avoid. In some cases the payer may not want alimony payments to be deductible. In other cases payments designated as alimony may not qualify under the Code. The medical business advisor and attorney must determine what is best for his or her client.

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Second-to-Die Life Insurance

QUESTION: Why has second-to-die life insurance become so popular with medical professionals and others?

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Improving Patient Communications

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Managed Care Ethical Considerations

By Render S. Davis; MHA, CHE

In contemporary medicine, and managed care, ethical dilemmas in communications are increasingly common and may come in many different forms. For example:
  • Physician’s failing to communicate necessary clinical information to patients in terms and language the patients can truly understand;
  • Physicians’ offering only limited treatment choices to patients because alternatives may not be covered by the patient’s insurance plan;
  • Failures to disclose financial incentives and other payment arrangements that may influence the physician’s treatment recommendations;
  • Time constraints that limit opportunities for in-depth discussions between patients and their doctors; and,
  • The lack of a continuing relationship between the patient and physician that would foster open communications; etc.             

me-p

Assessment

Most so-called “gag clauses,” implemented by some managed care organizations to prohibit physicians from informing their patients about non-covered treatment alternatives have been declared illegal in most states. Nevertheless, does the physician’s duty to be fully truthful and informative in patient communications, remain under suspicion? Please opine with your experiences and how we might improve.    

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The “Risky Business” of Web 2.0 Doctor Bloggers

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A Mashed-Up Opinion

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chiefdem2]

Today, after personally reviewing far too many blogs, and according to www.NPR.org, there are more than120, 000 health care forums on the Internet with opinions ranging from pharmaceuticals, to sexual dysfunction, to acne.

The same goes for commercial doctor blogs that promote lotions, balms and potions, diets and vitamins, minerals, herbs, drinks and elixirs, or various other ingest-ants, digest-ants or pharmaceuticals, etc. Link: www.MyFootShop.com

And, to other doctors, the blogging craze is a new novelty where there are no rules, protocols, standards or precise figures on how many “medical-doctor” or related physician-blogs are “out there.” Unfortunately, too many recount gory ER scenes, or pictorially illustrate horrific medical conditions, or serious and traumatic injuries. www.physicianspractice.com/index/fuseaction/articles.details/articleID/1136.htm

Of course, others simply are medical practice websites, or those that entice patients into more lucrative plastic surgery or concierge medical practices. Some are from self-serving/credible plaintiff-seeking attorneys wishing to assist patients. Link: www.FootLaw.com

Disgruntled Doctors

But not all physician blogs are geared toward practice information, marketing or medical sensationalism. In fact, just the opposite seems to be the case in extremely candid blogs, like “Ranting Docs”, “White Coat Rants,” “Grunt Docs”, “Cancer Doc,” “The Happy Hospitalist,” “Mom MD”, “Cross-Over Health”, “Angry Docs” and “M.D.O.D.,” which bills itself as “Random Thoughts from a Few Cantankerous American Physicians.” Link: www.thehappyhospitalist.blogspot.com 

According to some of these, they are more like personal journals, or public diaries, where doctors vent about reimbursement rates, difficult cases, medical mistakes, declining medical prestige and control, and/or what a “bummer” it is to have so many patients die; not pay, or who are indigent, noncompliant, etc.www.CrossOverHealth.wordpress.com

We call these the “disgruntled doctor sites.” Some even talk about their own patients, coding issues, or various doctor-patient shenanigans.

Privacy Issues 

But, according to psychiatrist and blogger Dr. Deborah Peel and others, the problem with blogging about patients is the danger that one will be able to identify themselves – the doctor – or that others who know them will be able to identify them.”  Her affiliation, Patient Privacy Rights, rightly worries that patients might tracked back to the individual, and adversely affect their employment, health insurance or other aspects of life.

And, according to Dr. Charles F. Fenton; III, JD and Dr. Jay S. Grife; Esq., MA, both frequent posters to this Executive-Post blog forum, it is certainly true that if a doctor violates a patient’s privacy there could be legal consequences. Under HIPAA, physicians could face fines or even jail time. In some states, patients can file a civil lawsuit if they believe a doctor has violated their privacy. Still, internet privacy issues are an evolving gray-area that if not wrong, may still be morally and ethically questionable. Link: www.patientprivacyrights.org

Opinions May Vary

Our colleague Robert Wachter MD, author of a blog called “Wachter’s World,” says it’s important for doctors to be able to share cases, as long as they change the facts substantially. On the other hand, the author of “Wachter’s World” and a leading expert on patient safety alternately suggests “You might say we as doctors should never be talking about experiences with our patients online or in books or in articles.”

But, he says that “patients shouldn’t take all the information on blogs at face value. Taken for what they are — unedited opinions, and in some cases entertainment — blogs can give readers some useful insight into the good, the bad and the ugly of the medical profession”. Link: http://www.the-hospitalist.org/blogs

Assessment

Well, fair enough! But, the above caveats are a big “if” according to Gene Schmckler of the Institute of Medical Business Advisors, Inc. Link: www.MedicalBusinessAdvisors.com

Eugene Schmuckler, PhD is a behavioral psychologist and stress management expert who opines that “doctors unhappy with their current medical career choice, or its modern evolution, should probably consider counseling or even career change guidance, re-education and re-engineering.” It is very inappropriate to vent career frustrations in a public venue. It’s far better for the blog to be private and/or by invitation only; if at all. Link: www.healthcarefinancials.wordpress.com/2007/12/03/physician-career-development-essay

In My View – Risky Business

I believe that a hybrid mash-up of both views can be wholly appropriate, or grossly inappropriate in some cases. Of course the devil is in the details; linguistics and semantics aside. Nevertheless; what is not addressed in electronic physician “mea-culpas” are the professional liability risks and concerns that are evolving in this quasi-professional, quasi-lay, communication forum.

For example, we have seen medical mistakes, and liability admissions of all sorts, freely and glibly presented. In fact,

“some physicians find that the act of liability blogging as a professional confession that is useful in moving past their malpractice mistakes. And, it is also a useful way to begin a commitment to a better professional life of caring in the future. It helps eliminate the toxic residue and angst of professional liability and guilt. Moreover, as they are unburdened of past acts of omission or commission, doctors should remember to also forgive those who have wronged them. This helps greatly with the process and brings additional peace.”

However, although some may say that this electronic confession is good for the soul, it may not be good for your professional liability carrier, or you, when plaintiff’s attorneys release a legion of IT focused interns, or automated bots, searching online for your self-admissions and scouring for your self-incriminations.

Of course, a direct connection to a specific patient may still not be made and no HIPAA violation is involved. But, a vivid imagination is not need needed to envision this type of blind medical malpractice discovery deposition query even now. www.jbpub.com/detail.cfm?TemplateName=alliedhealth&bc=3342-3&ThisPage=Table%20of%20Contents

Q: “Doctor Smith, I noted all the medical errors admitted on your blog. What other mistakes did you make in the care and treatment of my client?”

And so, the question of plausible deniability, or culpability, is easily raised. 

If you must journalize your thoughts for sanity or stress release; do it in print. And, don’t tell anyone about it so the diary won’t be subpoenaed. Then tear it up and throw it away.

Remember, with risk management, “It is all about credibility.” Don’t trash yours!

These thoughts may be especially important if you covet a medical career as a researcher, editor, educator, medical expert or something other than a working-class or employed physician.

Link: https://healthcarefinancials.wordpress.com/2007/12/07/122

Assessment

Remember, there are all sorts of new fangled risks out-there for the modern medical practitioner to consider; so beware!

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On Physician Peer Review

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New Era Risks

By Dr. David Edward Marcinko; MBA, CMP™

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The Center for Peer Review Justice is a group of physicians, podiatrists, dentists and osteopaths who have witnessed the perversion of medical peer review by malice and bad faith.

Raison D’etre

Like the American Association of Neurological Surgeons [AANS], they have seen the statutory immunity, which is provided to “peers” for the purposes of quality assurance and credentialing, used as cover to allow those “peers” to ruin careers and reputations to further their own, usually monetary agenda of destroying the competition.

Cause and Goals

Therefore, the group is dedicated to the exposure, conviction, and sanction of doctors, and affiliated hospitals, HMOs, medical boards, and other such institutions, that would use peer review as a weapon to unfairly destroy other professionals.

Assessment

www.PeerReview.org is a rallying point and resource center for any medical professional that finds himself in the midst of an unfair and bad faith attack by unethical, malicious “peers”.

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Expert Witness Risks

A New Emerging Modern Peril

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

insurance-bookIn the past, a physician expert witness for the plaintiff was merely an opposing opinion by a learned and/or like colleague. Today, it is becoming a risk management minefield as the AMA and other groups are urging state medical licensing boards to police expert witnesses, which might require expert testimony be considered the practice of medicine.

The AANS

This seems especially true with the Rolling Meadows Illinois based American Association of Neurological Surgeons (AANS).

Feuding Members

Currently, a member of the AANS can file a complaint against any fellow member for testimony as either an expert witness for the plaintiff, or defense witness for the doctor. A committee of four then reviews the court records and requires the accuser to face the accused in a formal review. Sanctions range form three months to a year, to complete expulsion from the association. In the past twenty years, the program has reviewed 27 cases all involving plaintiff testimony. One led to expulsion and ten to suspension.

Assessment

Since 2001, the courts are beginning to take the AANS process seriously. After years of operations without strong legal backing, the program was upheld by the 7th Circuit Court of Appeals, in Chicago by a neurosurgeon whom the group suspended in 1997. So always remember, if you testify falsely, or too far from the norm, you may be at risk.

Conclusion

And so your thoughts, opinions and comments are appreciated?

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Failure 2 Rescue

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Attention “Condition H” 

[Staff Reporters]

For the fifth straight year, an analysis of errors in our nation’s hospitals found that the most reported patient safety risk is a little-known, but always-fatal, problem called “failure to rescue.”

Definition

The term Failure-To-Rescue [FTR] refers to cases where hospital doctors, nurses or caregivers fail to notice symptoms, or respond adequately or swiftly enough to clinical signs, when a patient is dying of preventable complications in a hospital.

The situation is not new. The term “failure to rescue” was first coined in the early 1990s by Dr. Jeffrey H. Silber, director of the Center for Health Outcomes and Policy Research [CHOPR]. He was looking for a way to characterize the matrix of institutional and individual errors that contribute to patient deaths.

Call ‘Condition H’

Today, to help mitigate the FTR problem, a growing numbers of hospitals across the country allow patients to speak up by activating ‘Condition H,’ a code that summons immediate help.

Assessment

In a Condition “H “alert, patients call the same emergency number that doctors and nurses use.

MORE: Before Code Blue: Who’s minding the patient? [Little-known ‘failure to rescue’ is most common hospital safety mistake.  www.msnbc.msn.com/id/24002334

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Emergency Room and On-Call Risks

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Next-Gen Doctors Opting-Out

Dr. David E. Marcinko MBA - MSLBy Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

Of course, it’s getting more expensive these days to take hospital call as physicians are electing not to take this responsibility because of decreased reimbursement rates. Others opt-out because of a desire to spend more time with family, and/or scheduling conflicts. And, let’s not forget the liability concerns.

Historical Review

But, back in the old days, I recall eagerly signing up for call to make a few extra bucks [it was a very competitive proposition back then], as I started my fledgling practice.  About a decade later, I didn’t make much on-call money any more, but continued my rotation and chalked it all up to societal “pro-bona care”. And, the increased service visibility still garnered me a few lucrative patient referrals. Then, it became a financial and out of office-time loss, and ultimately a great liability headache. Fortunately, I could afford not to do it any more; and quit. Let the younger guys and gals “pay their dues”, I reasoned.

Legal Issues

Now today, there is a growing revolt of specialists against hospital on-call duties that threatens to violate Federal law and lose status as trauma centers. Specialties most likely to refuse include plastic surgery, ENT, psychiatry, neuro-surgery, ophthalmology and orthopedics. And, refusing to respond to assigned call is a violation of Federal law and carries fines as much as $50,000 per case.

Opting –Out

In contrast, refusing to sign up for call does not violate the law, and more physicians are taking this option. The problem opting-out problem is especially acute in California where hospitals are combating the issues with compensation, reporting the miscreant docs to the authorities, or threatening to remove them from staff completely.

Assessment

In turn, doctors are fighting back with lawsuits.

Other Supporting Opinions

Essayist Jeff Goldsmith,President of Health Futures Inc, and Associate Professor of Public Health Sciences at the University of Virginia*recentlyopined that:

“We can expect intensified conflict with private physicians over the hospital’s 24-hour mission and service obligation, specifically providing physician coverage after hours and on weekends. Younger physicians have shown decreased willingness to trade their personal time to cover hospital call in exchange for hospital admitting privileges as their elders did. Those admitting privileges are either less essential or completely unnecessary in an increasingly ambulatory practice environment. The present solution is for hospitals to pay stipends to independent practitioners for call coverage or to contract with single specialty groups large enough to rotate call internally.” 

NOTE: * Goldsmith, Jeff: The Long Baby Boom, by Johns Hopkins University Press, May 2008.

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Hospital Acquired Conditions

Clarifying “Never-Events” Terminology

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

dr-david-marcinko1Did you know that “never-events” are also being called “hospital acquired conditions”; in some cases? 

Of Terms and Definitions 

Below is the list of conditions that the Centers for Medicare and Medicaid Services (CMS) selected in its FY 2008 final rule: 

  • Serious Preventable Event — Object Left in Surgery
  • Serious Preventable Event — Air Embolism
  • Serious Preventable Event — Blood Incompatibility
  • Catherther-associated Urinary Tract Infections
  • Pressure Ulcers (Decubitus Ulcers)
  • Vascular Catheter-Associated Infection
  • Surgical Site Infection — Mediastinitis After Coronary Artery Bypass Graft (CABG) Surgery
  • Hospital-Acquired Injuries — Fractures, Dislocations, Intracranial Injury, Crushing Injury, Burn and Other Unspecified Effects of External Causes

Assessment 

IOW: You might say “nosocomial”; but I may say “hospital-acquired” when it comes to infections? 

And so, is this a linguistic technique to take some of the legal-liability and “sting” out of “never-events” terminology?

Does a term-of-art really matter to the affected patient? Suppose you were the patient? 

Conclusion 

Please comment and opine? 

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Managed Care Contract De-Selection Risks

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Origins of Medical Practice Patient Flow

[By Dr. Charles F. Fenton III; Esq]

fentonIn the current medical environment a physician’s practice does not consist of a collection of individual patients, or even of the “charts.”  

Rather, a physician’s practice consists of a number of managed care contracts that allows the physician to be a member of a panel and listed in the individual subscriber’s insurance book-of-business.  

Practice Cash Flow 

Today, patients merely flow from managed care contracts. Without managed care contracts, there are few patients and little cash flow. 

Therefore, the physician may face the risk of being de-selected from an individual, or several, managed care panels as contractual issues change, morph or are otherwise altered during each enrollment period. 

Assessment 

Each de-selection will have an adverse effect on the physician’s practice.  In actuality, the revenue lost from de-selection will come disproportionally from the net revenue of the practice.

Often one de-selection will snowball into several de-selections, until the physician barely has a practice remaining. 

Conclusion

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Managed Medical Care Contract Risks

More than Malpractice Liability

By Dr. Charles F. Fenton III; Esq 

 

Attorneys are becoming more aggressive in suing HMOs and other managed care companies.  

A Review 

Historic bars to such suits are declining simultaneously with recent Federal ERISA protection erosion. The upshot is that more litigation against managed care companies, their affiliates, and their health care providers are likely.  

Doctor Awareness 

The health care provider needs to be aware of these trends, needs to evaluate his/her own situation, and may need to take certain steps to limit these new evolving risks and potential liabilities. 

For example, the usual method of protection for the practicing physician, the use of the corporate form of business, is usually no benefit when signing managed care contracts.

Most managed care companies credential the individual physician and hence require that the individual physician and not the professional corporation sign the contract.  

Assessment 

This may put all of the physician’s personal assets at risk! 

Conclusion 

Your comments are appreciated? 

More info: http://www.jbpub.com/catalog/9780763733421

Institutional: www.HealthcareFinancials.com 

Terms: www.HealthDictionarySeries.com

Lloyd M. Krieger; MD, MBA

FROM THE PREFACE

Risk Management, Liability Insurance and Asset Protection Strategies for Doctors and Advisors  

Insurance is an important part of all our lives. This is especially true for physicians, medical and healthcare executives.

For example, I currently have no fewer than 10 separate insurance policies associated with my plastic surgery practice. I understand very little about the policies other than that somebody at some point told me I needed each and every one of them, and each made sense when I bought it.   

  • Am I over-insured and thus wasting money? 
  • Am I under-insured and thus at risk for a liability disaster? 

I never really had the means of answering these questions, until now. 

Risk Management, Liability Insurance and Asset Protection Strategies for Doctors and Advisors is an essential textbook because it explains to physicians and insurance professionals the background, theory, and practicalities of medical risk management and insurance planning.  The insurance haze is lifted by-dual degreed editor, and Certified Medical PlannerDr. David Edward Marcinko MBA, and his team of contributing authors. 

Doctors, like most people, tend to experience losses more intensely than gains, and evaluate risks in isolation.  So it’s no surprise that goaded physicians might prefer vehicles like the guaranteed minimum death benefit of variable annuities, or the assurance that comes with disability or long term care insurance, or traditional cash value life insurance policies, despite their decidedly higher costs and commissions.  

Similarly, physicians may enter denial mode and eschew the potential business impact of HIPAA and Balanced Budget Act risks; self referral risks; OSHA, DEA, EPA, OCR, P&C or managed care risks; managed care contract capitulation risks; employee, expert witness, peer review and on-call risks; and even educational debt load risks, among so many others. 

For real insurance professionals on the other hand, this is an exciting time to be practicing medical risk management, because there is much research and creative enlightenment occurring in academic and practitioner communities.  

But, one must be willing to abandon ancient thoughts and remain open to new ideas that identify and provide solutions to the contemporaneous problems of physicians.  

As an example of this epiphany, the economist Christian Gollier revisits the raison detra’ of insurance, by asking: should one even buy insurance since the industry itself is so skilled at exploiting human foibles? Although this emerging work is descriptive, it is not yet time tested since some of it aspires to be normative, as developing modern models of savings and consumption hint that insurance may deserve a smaller role in personal risk management than previously believed.

Risk Management, Liability Insurance and Asset Protection Strategies for Doctors and Advisors  fulfill its promise as a peerless tool for physicians wanting to make good decisions about the risks they face.  

It is also ideal for financial planners, insurance agents and healthcare business advisors wishing to re-educate and help doctors by adding lasting value to their client relationships.  

With time at a premium for all, and so much information packed into one well-organized resource, this book should be on the desk of every physician, or financial advisor serving the healthcare space.   

Simply stated, if you read this compelling text with a mind focused on the future, the time you spend will be amply rewarded. 

Lloyd M. Krieger; MD, MBA

Rodeo Drive Plastic Surgery

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Patterns of Medical Practice Risks

Applied Statistics and Large Numbers

By Dr. Charles F. Fenton III; Esq  

One of the next big areas of medical practice risk management that will surface in the near future is the Pattern of Practice Risk.   

Pattern of Practice refers to the way that a particular physician practices medicine. With computers, standardized diagnosis and treatment codes – and the budgetary restraints inherent in medical practice – it is becoming easy to statistically analyze a physician’s method of practice. 

Outliers – Can Lie 

The treatment and diagnosis codes that a physician uses and submits to third party payers can be quantified and compared colleagues in the same or similar specialties. Statistical outliers can be identified.  

Assessment 

These outliers are then further audited and required to justify their treatments. If no rational basis exists for the statistical differences, the outlier may find himself the subject of a fraud investigation. 

Conclusion 

Have you ever been involved in a patterns-of-medical-practice audit? If so, please comment on your experience.

More info: http://www.jbpub.com/catalog/9780763733421/ 

Institutional: www.HealthcareFinancials.com 

Terms: www.HealthDictionarySeries.com

 

Civil Asset Forfeiture in Medicine

Understanding the Risks

fenton

[By Dr. Charles F. Fenton III; Esq.] 

We have all heard stories of civil asset forfeiture run amok and out-of-control.  

For example, the family that lost their home because a child had marijuana in his bedroom; or the man who lost his boat because a friend who (unknown to the owner) borrowed it and used it to smuggle drugs. 

Healthcare  

Unfortunately, these cases may pale in comparison to what can happen if civil asset forfeiture is applied to health care professions.  

Just like the drug dealer who has his Cessna plane seized because it was used to smuggle drugs, a health care provider may find that his practice was seized, because the office was the conduit for committing the crime.  

Furthermore, the practitioner’s house, furnishings, car, bank account, and retirement assets could likewise be seized. These assets could be seized because they constitute “fruits” of the illegal activities. 

“Seize now – Ask questions later 

Civil asset forfeiture is a “seize now, ask questions later” activity.  And, this appears on the surface to constitute punishment without due process.

However, in civil asset forfeiture there is due process, it just comes AFTER the seizure.  

Civil asset forfeiture is to property like an arrest is to the person. A warrant is issued stating in essence that the property did something wrong.  The property is “arrested” (i.e., seized) and then a hearing or trail will follow at some later date to determine the facts. 

Assessment

And so, what has been you experience with CAF, if any? 

Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, urls and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

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Credit Risk

Understanding Company Specific Risk

By Julia O’Neal; MA, CPA  

 

There are several kinds of investing risk, for example:

  • Credit or company specific risk refers to the firm’s business and financial risks.
  • Business risk is the risk inherent in the nature of the business.
  • Financial risks are those in addition to business risk that arise from financial leverage [credit or debt].  

Business Risk Example 

An example of high business risk would be a computer component manufacturer whose product demand is highly sensitive to macroeconomic activity and who has small profit margins.  

Assessment 

A company’s unique business risk would be increased by adding debt to an already unpredictable business. 

Conclusion 

Can you appreciate that credit risk is associated with a firm’s ability to meet financial obligations on the securities [bonds, notes and obligations, etc.] it issues?

More importantly, do you invest with this risk in mind? 

More info: http://www.springerpub.com/prod.aspx?prod_id=23759 

Individual: http://www.jbpub.com/catalog/0763745790/ 

Institutionalwww.HealthcareFinancials.com 

Terms: www.HealthDictionarySeries.com

New Health Insurance Compliance Issues

Implications of US Patriot and Bank Secrecy Acts on Hospitals

By Dr. David E. Marcinko; MBA, CMP™

By Hope R. Hetico; RN, MHA, CMP™  dave-and-hope4

With the recent popularity and growth of personal health insurance plans (PHIPs), health savings accounts (HSAs) and / or medical savings accounts (MSAs), compliance with the USA PATRIOT Act has become an important issue for these new health insurance products.  

These insurance plans place financial services organizations into relationships with shared information institutions like hospitals, healthcare organizations, medical clinics and patient clients.

The Online Connection 

This happens because many, perhaps even the majority of health insurance plans are opened online as patients and insurance company clients use Internet search engines to find the “best” policy type to meet their needs.  

Appropriately, banks, healthcare entities, and hospitals are working with insurance companies, trust companies, banks and broker-dealers to offer identity-compliant and integrated insurance plan products. 

Verifications that these clients are who they say they are, is as paramount as monitoring their activity. 

Example:  

Section 314(b) of the US Patriot Act permits financial institutions and health insurance companies – upon providing notice to the United States Department of the Treasury – to share patient and related information with one another in order to identify and report to the federal government activities that may involve money laundering or terrorist activity.  

The US Patriot Act 

The US Patriot Act aims to partially accomplish this through three critical goals:  

  1. First, it gives investigators familiar tools to use against a new threat.
  2. Second, it breaks down a wall that has prevented information sharing between agencies.
  3. Third, it updates U.S. laws to respond to the current Internet environment.  

Bank Secrecy Act, PHIPs, MSAs and HSAs 

For additional compliance security, The USA Patriot Act also amended the Bank Secrecy Act [BSA] to give the federal government enhanced authority to identify, deter and punish money laundering and related terrorist financing activities.  

Assessment 

Whatever the financial outlays required for insurance/financial organizational compliance, it may result in very large savings later if affected hospital assets and patient health insurance information is safeguarded against attacks of virtual or real assets. 

Conclusion 

And so, what is your opinion on the above health law and policy? 

Institutional information: www.HealthcareFinancials.com 

Terminology: www.HealthDictionarySeries.com 

Related reference: Marc B. Royo and David B. Nash.Sarbanes-Oxley and Not-for-Profit Hospitals: Current Issues and Future Prospects.” American Journal of Medical Quality: Vol. 23, No. 1, 70-72, February 2008.

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New Pilot Program to Audit Hospital Bills

Medicare Program Promotes Bounty-Hunter Zeitgeist” Mentality

[By Dr. David Edward Marcinko; MBA]

Publisher-in-Chief dem2

According to a recent report in the Wall Street Journal, hospital groups have launched a vigorous campaign against expanding a pilot program to audit Medicare claims. And, it seems the most onerous aspect of the program is a contingency fee-schedule that encourages auditors to be aggressive.

Evolving Program Details

The program initially launched in California, Florida and New York and soon to be expanded nationwide, recouped $247.4 million in overpayments in fiscal year 2007 alone. It relies on private-sector auditing firms to examine claims filed by hospitals and other medical providers and then pays them contingency fees based on how much the government saves. 

Outcomes-to-Date

As an example of its success, the WSJ reported that in FY 2007, auditors identified $357 million in overpayments [$17.8 million or 7.1% of which were overturned on appeal], according to the Centers for Medicare and Medicaid Services [CMS]. Payments for contingency fees and other administrative expenses totaled $77.7 million. Auditors also found $14.3 million in Medicare underpayments.

Support versus Criticism

While supporters of the program say the contingency fees serve as an incentive, critics say it encourages auditors to rely on a “‘bounty hunter’ payment mechanism.”  

Same old Economic Song

Of course, most long-time observes of the compliance and audit scene realize that this zealous zeitgeist mentality is not new.

For example, under the Health Insurance Portability Accountability Act [HIPAA], the Department of Health and Human Service [HHS] started an “Incentive Program for Fraud and Abuse Information” [IPFAI] almost a decade ago. 

In that January 1999 pilot program – which continues in modified form – HHS paid fees ranging from $100-1,000 to Medicare recipients who reported abuse. To assist patients in spotting fraud, HHS even published examples of physician potential fraud, which include: 

  • Medical services not provided
  • Duplicate services or procedures
  • More expenses services or procedures than provided (upcoding / billing)
  • Misused Medicare cards and numbers
  • Medical telemarketing scams
  • Non-medical necessity, etc. 

To discourage flagrant allegations regulations require that reported information needed to directly contribute to monetary recovery for activities not already under investigation. 

Assessment

Nevertheless, expect a further erosion of patient confidence, as CMS continues to view all healthcare providers – and now hospitals and related healthcare organizations – in the same light as “bounty- hunters”. 

Ironically, this precise same phenomenon was reported in both the first and second editions of the book “The Business of Medical Practice”. 

And so, please remember all medical colleagues – forewarned is forearmed. 

More information: http://www.springerpub.com/prod.aspx?prod_id=23759 

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“Wrong Profession” Insurance for Physicians

Framing Livelihood Insurance as a Risk Management Product [One Healthcare-Executive’s Experiential Opinion]

DEAN: Dr. David Edward Marcinko; MBA, CMP™

PROVOST: Hope R. Hetico; RN, MHA, CMP™

HOME:  www.CertifiedMedicalPlanner.org

Some might say that this is not a good time to be practicing medicine?  

Why? The reasons are TNTC.

But, increased tuition; decreased income, social and political standing; more paperwork and related scrutiny, and other  associated risks of all types make medicine a less attractive career choice than it was just a generation ago.  Most importantly perhaps – is the fact that for many – Abraham Maslow’s concept of self-actualization is just not happing for us.

What a pity? What a shame? What a loss? 

Of course, doctors like most people, tend to experience loss and risk more intensely than gains, and evaluate associated risks in isolation rather than conglomeration.  While unfortunate, it comes as no surprise for example that goaded physicians might prefer insurance vehicles like the “guaranteed” minimum death benefit of variable annuities – or the “assurance” that comes with disability or long term care insurance – or a traditional and “safe” cash value life insurance policy despite their decidedly higher operating costs and sales commissions, etc.

All human beings tend to seek the “peace-of-mind and safety” of guarantees, assurances, promises and the like. Most of us docs are no different.

The Insurance Mindset 

As an example of this insurance mindset, the economist Christian Gollier PhD revisited the very raison detra’ of the insurance sector by asking the simply question:  “Should one buy any insurance at all since the industry itself is so very skilled at exploiting human fears and foibles on many levels?”

Although this emerging work is descriptive and it is not yet time tested – since some of it aspires to be normative – developing modern economic models of savings and consumption hint that insurance may deserve a smaller role in our personal risk management profile than previously believed.

As a former Certified Financial Planner™ – this is anathema – or is it?  Of course, it may be especially true for medical professionals; or not!

Doctors in Personal Risk-Denial Mode

Amazingly, some physicians – unafraid of the patient death experience they encounter almost daily in their professional lives – enter into a personal risk-denial mode of sorts, when it comes to potential liability impact of professional and political machinations like HIPAA, the US PATRIOT Act, Sarbanes-Oxley and the Balanced Budget Act; etc.

Similarly, they might eschew the new Stark I, II and III self-referral risks, OSHA, DEA, EPA, OCR and the myriad managed care contract and capitation risks that are incumbent to medical practice in 2008.

Moreover, some doctors may disregard new-wave employee, expert witness, peer-review and on-call risks, or even their educational debt load risks. 

There are many liability risks assumed while practicing medicine today; aren’t there?  Of course, we have not mentioned medical malpractice liability risks at all – far too boring and de-rigueur.

The Insurance Industry Visionary Boom

As a former insurance agent, on the other hand, this is an exciting time to be practicing medical risk management and insurance planning.

Why? There is much research and creative enlightenment occurring for the academic and practitioner communities in the insurance industry.

But – and here is the rub – one must be willing to abandon ancient thoughts and remain open to new ideas that identify and provide solutions to the contemporaneous problems of physicians, and enlightened others. 

Allow us to repeat again – as in some areas of medicine today – one must be willing to abandon ancient thoughts and remain open to new ideas that identify and provide solutions to the contemporaneous problems of physicians, and the entire healthcare industrial complex, today.  

Nevertheless, with the acceleration of private, state and federal healthcare reform care initiatives, physicians may face the ultimate personal contingent liability crisis of all – by selecting the wrong profession [or medical specialty].

Thought-Leaders and Fast Followers

First suggested by Yale University economist Robert J Shiller PhD in his new book, The New Financial Order: Risk in the 21st Century, he opines that a new risk-sharing paradigm to protect ourselves from “gratuitous random and painful inequality” may be required.

His solution for laymen – and our own solution for medical professionals – Why, let’s all purchase “livelihood insurance” and frame it as a risk management contract! 

Assessment

Reassuringly, the risks and perils identified on this blog and/or in our related textbooks, dictionaries and online educational courses are not quite as philosophically thought-provoking and new-wave as Shiller’s ideas.

Although, we believe they are equally compelling, more effective, and most applicable to solo practices, small group medical practices, clinics and related healthcare entities.  They are also more pragmatic than this personal diatribe, and we are certain that our products and services will help you recognize and reduce personal and medical practice risks; but only if appreciated, integrated and executed with a trusted and knowledgeable professional.

Conclusion

So, what are your thoughts on this new insurance product to mitigate professional risk; please comment? Are you a visionary thought leader – a fast follower – a slow adopter – or a plodder; please opine?

Invite Dr. Marcinko

Speaker: If you need a moderator or a speaker for an upcoming event, Dr. David Edward Marcinko; MBA is available for speaking engagements. Contact him at: MarcinkoAdvisors@msn.com

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The Malpractice Insurance Capitation-Liability Theory

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A New Litigation-Equation Philosophy of Liability

[One Healthcare-Executive’s Experiential Opinion] 

[By Dr. David Edward Marcinko; MBA, CMP™]insurance-book

Developed by iMBA Inc, the factors that comprise the so-called “litigation-equation” include: (1) patient communication factors, (2) provider healthcare delivery systems and reimbursement factors, (3) payer factors and, (4) revised liability legislation and patient encounter data factors. All are briefly reviewed below:

Communication Factors

Patient communication factors for the CLT include; reduced economic and financial fear, consideration of cultural barriers, improved medical awareness through continuing education, concern for geographic access, focused primary and specialty care availability, management information systems, and the frequency and duration of utilization.

Reimbursement Factors

Provider reimbursement factors and healthcare delivery systems include both soft and hard varieties.

Soft CLT provider factors include increased patient availability to services, accessibility to timely appointments, office and quality care satisfaction surveys, communication assessments, known fixed costs and technical information interchanges.

Hard CLT factors include managed operational procedures, illness severity, defined treatment options, clinical variations, outcomes measurements and quality monitoring, performance quotas, aligned financial incentives, and predictable reimbursements.

Payer Factors

Payer factors of the CLT include practitioner screening and shifting, quality assessment, behavioral modification and team care, provider discipline, complaint management, cost and call economic considerations, and adequate capitalization rates.

Liability Factors

Finally, liability factors of the CLT include allegation frequency and severity, standards of care, defensibility, risk management, premium pricing, loss adjustment, legislation, settlement losses, and administrative costs.

WHITE-PAPER: ACOs VBC Capitation SAMPLE DEM

Assessment

To fully understand the CLT, all four parts of the litigation-equation must be recognized. These factors, when integrated with underwriter data and experience, may help determine the level of liability risk and the ultimate cost of malpractice coverage.

For example, if capitated medical care is deemed to involve less risk than in the traditional indemnity environment, then the cost of liability coverage should gradually decrease as the percent of capitated managed care increases, in any particular office setting.

In actual terms, the CLT suggests that capitated insurance and patient care risk are inversely, but not necessarily proportionally, related since experiential data will determine the percentages.

Conclusion

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Medical Errors and Hospital Safety

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A “Speak-Up” Prevention Program

[By Staff Writers]

According to research by Harvard School of Public Health, about 34 percent of patients say they or their families have been affected by medical errors.  

For people with chronic illnesses, the percentage rises to a frightening 50 percent. This may be, in part, because doctors aren’t spending time listening to patients; interrupting after only 23 seconds.

Realistically, it also comes from the inevitable process errors that occur during routine care, including “never-event” like wrong-site surgery. 

Therefore, experts are increasingly suggesting that patients stay on guard in medical settings, and in particular, play a larger role in hospital medical safety. To get this done, it will take a cultural change, as patients typically assume they should blindly follow medial orders, according to Dennis O’Leary, JCAHO’s president.

And so, to promote patient participation in hospital safety, JCAHO has launched a new program called “Speak Up” to encourage the reporting of safety concerns. 

Now that patient advocates are also placing an emphasis on getting family members to keep their eyes open for hospital care errors – what do you think about this program – dismayed, dismissed or empowered?

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Kindred Hospital Liability Policy

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The Medical Waiver Issue

[By Staff Writers] 

Recently, Kindred Hospital of Wyoming Valley, PA has come under fire from two attorneys who fear patients may be signing away their rights to seek a jury trial if they are injured through malpractice.  

Introduction 

Kindred Hospital, a long term acute care facility, is asking patients to sign a waiver that would mandate any claim for injuries go through mediation or binding arbitration. These are alternative legal processes utilized in lieu of filing a lawsuit.

According to the hospital, such voluntary waivers benefit the patient by allowing for faster resolution of malpractice claims. 

Not so Fast! 

But, lawyers who reviewed the document say they are concerned that it is being presented to patients who, because they are under duress due to their illness, might not understand its implications. 

Enter the Guidance Counselors 

Upon investigation, Kindred said that admissions counselors review documents to ensure patients understand it, and do not attempt to pressure them in any way. Patients also have the right to revoke the document within five days of signing it, according to the Times Leader; in February 2007.  

Assessment

Kindred Healthcare operates various types of health care facilities nationwide where the form is used. Is anyone familiar with these folks who can make an informed opinion on this tactic?

Hospital with paper MRs

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Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com

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Medical Practice Business Insurance

More Needed than Just Medical Malpractice Insurance

 By Staff Writers

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There are several insurance, risk management and related liability mattes that physicians face today. These include, but are not limited to the following issues:  

1. New Thoughts on Malpractice Liability Insurance: 

The Capitation Liability Theory of malpractice views liability management and premium costs in light of the managed care revolution.  For example, although the indemnity reimbursement model was the bedrock of healthcare financing, the incidence of litigation is believed to be the most frequent in this system.

Similarly, errors of commission, which may be more likely in a fee-based system, are easier to prove than errors of omission in a fixed system.  

Conversely, a capitated reimbursement system suggests the level of malpractice risk, and associated litigation, decreases as the volume of capitated care increases.  

 Therefore, since the future is unknown, choose a malpractice insurance company rated “A” or better by AM Best (http://www.ambest.com). True indications of a strong company are often reflected in the firm’s net premium to surplus ratio, where a lower ratio is better and the industry average is about .81; net liability to surplus ratio, which the industry average is 4.1; net average ratio, where the industry average is 4.9; and reserve-to-surplus ratio, in which the industry average is about 3.6-4.1. (Physicians Insurers Association of America) 

2. Fire, Theft and Liability Insurance: 

Fire and theft insurance is used to cover office equipment and contents, while leasehold insurance protects against loss due to the termination of a favorable lease caused by the insured perils. 

3. Worker’s Compensation Insurance:  

Worker’s compensation is mandatory to cover a loss of income, medical expenses, and rehabilitation. Most states also have established second-injury funds which are designed to compensate employee’s who suffer a second disability injury and thus shield the employer physician from the increased costs associated with a second injury.

4. Business Interruption / Loss of Income Protection Insurance: 

This covers the ongoing medical offices expenses and income loss, because of office damage, and continues during the Period of Restoration.  Most business interruption is written on an indemnity basis, and consists of two broad types: Business Income Coverage Form (Add Extra Expense) and Business Income Coverage Form (Without Extra Expense).  

Either type requires co-insurance and both require a choice of three income coverage forms: (1) business income including rental value, (2) business income excluding rental value, and (3) rental value only. Consideration should also be made for man / woman insurance and account’s receivable insurance.  

5. Dishonesty Insurance: 

A Fidelity Insurance Bond protects the doctor employer against employee dishonesty and covers the loss of money, securities or other property resulting from acts by the bonded person.

In a Surety bond, one party (surety) agrees to be responsible to a second party (obligee) for the obligations of a third party (the principal).

In medicine, surety bonds are used in situations in which one of the parties insists on a guarantee of indemnity if the second party fails to perform a specific act. Such a requirement may arise in connection with professional medical employment contracts or other situations in which there may be doubt concerning the ability to perform medical or office related business tasks.

6. Billing Errors & Omissions Insurance

This coverage protects you against liability for unintentional billing errors when you bill a third party, including Medicare/Medicaid, or managed care organizations. This is usually a separate policy that provides limits of liability from $100,000/$100,000, up to $1 million/$1 million to cover both defense and indemnity costs. 

Other endorsements may also be obtained to pay civil fines, penalties, judgments and settlements, or increased limits of liability, up to $1 million/$1 million. All terms, conditions and limitations are outlined in the actual policy form

Conclusion

What other types of medical practice risks are out there, and how do you mitigate them; if at all?

For more related information:Risk Management and Insurance for Physicians and Advisors” http://www.jbpub.com/catalog/9780763733421

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Risk Retention Groups

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RRGs and Medical Malpractice Insurance Companies

[By Dr. David Edward Marcinko; FACFAS, MBA, CMP™]

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Definition

Risk Retention Groups are owner-controlled insurance companies authorized by the Federal Risk Retention Act of 1986.  An RRG provides liability Insurance to members who engage in similar or related business or activities for all or any portion of the exposures of group members, excluding first party coverage’s, such as property, workers’ compensation and personal lines.  Authorization under the federal statute allows a group to be chartered in one state, but able to engage in the business of insurance in all states, subject to certain specific and limited restrictions.  The Federal Act preempts state law in many significant ways.

RRG Advantages:

Medical RRGs

  • Avoidance of multiple state filing and licensing requirements;
  • Member control over risk and litigation management issues;
  • Establishment of stable market for coverage and rates;
  • Elimination of market residuals;
  • Exemption from countersignature laws for agents and brokers;
  • No expense for fronting fees;
  • Unbundling of services.

Of 130 new medical malpractice liability insurance companies that entered the market between 2002 and 2006, 65 percent were risk-retention groups, according to a study conducted for the National Risk Retention Association by the actuarial consulting company Milliman Inc.

Statistics from the Risk Retention Reporter, a journal that tracks the industry, showed that through September, 43 percent of the 23 risk-retention groups formed this year across various sectors are doctor-owned, while in 2001, no new physician risk-retention groups joined the market.

RRG Disadvantages

Some doctors and industry experts warn about drawbacks of risk-retention groups and question whether the physician-run companies – most of them relatively young – can survive future claims payouts and tough market cycles, while doctors do not have access to state guaranty funds to back up their coverage if a risk-retention group struggles financially or goes out of business. The Risk Retention Reporter noted that, anecdotally, physician self-insurance companies have failed at no greater rate than traditional carriers in recent years. 

Conclusion

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Reporting Healthcare Fraud and Abuse

Patient Bounty Hunters 

By Dr. David Edward Marcinko; MBA, CMP™

Publisher-in-Chief 

Fraud and Abuse Reporting Incentives 

Under the Health Insurance Portability Accountability Act, the Department of Health and Human Service (HHS) has operated an “Incentive Program for Fraud and Abuse Information”, since January 1999. 

In this program, HHS pays $100-$1,000 to Medicare recipients who report abuse in the program. To assist patients in spotting fraud, CMS has published examples of potential fraud, which include: 

  • Medical services not provided
  • Duplicate services or procedures
  • More expenses services or procedures than provided (upcoding/billing).
  • Misused Medicare cards and numbers
  • Medical telemarketing scams
  • Non-medical necessity.

And, there is no question that real fraud exists.

For example, the Office of Inspector General of the Department of Health and Human Services (HHS) saved American taxpayers a record $21 billion in Fiscal-Year 2003-04, according to former Inspector General Janet Rehnquist. 

Savings were achieved through an intensive and continuing crackdown on waste, fraud and abuse in Medicare and over 300 other programs for which the Office of Inspector General. (OIG) had oversight responsibility.

At last report, the agency performed or oversaw 2,372 audits, conducted 70 evaluations of department programs, and opened 1,654 new civil and criminal cases, bringing to more than 2,700 the number of active OIG investigations. 

Additionally, the OIG excluded 3,448 individuals and entities from participation in Medicare, Medicaid and other federally sponsored health care programs, and its enforcement efforts resulted in 517 criminal convictions and 236 successful civil actions. 

To discourage flagrant allegations, regulations require that reported information must directly contribute to monetary recovery for activities not already under investigation.

Nevertheless, expect a further erosion of patient confidence, as they begin to view healthcare providers in the same light as “bounty hunters”. 

Doctors – has a patient “turned-you-in” needlessly – yet?

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A Brief Overview of Annuities for Physicians

[By Gary A. Cook, MSFS, CFP®, CLU, ChFC, RHU, LUTCF, CMP™ (Hon)]

[By Kathy D. Belteau, CFP®, CLU, ChFC, FLMI]

[By Philip E. Taylor, CLU, ChFC, FLMI]fp-book1

 Introduction

Annuities were reportedly first used by Babylonian landowners to set aside income from a specific piece of farmland to reward soldiers or loyal assistants for the rest of their lives.

Today’s annuities substitute cash for farmland; however the concept is the same. In 1770, the first annuities were sold in the United States and were issued by church corporations for the benefit of ministers and their families. Annuities have grown on a tax-deferred basis since enactment of the Federal Income Tax Code in 1913.  They began to gain widespread acceptance in the early 1980s when interest rates credited exceeded 10%.  During the last two decades, annuities have been the fastest growing sector of premiums for life insurance companies.

Nevertheless, are they actually “needed” by contemporary physicians – – or merely “sold” to them? 

An annuity is a legal contract between an insurance company and the owner of the contract. The insurance company makes specific guarantees in consideration of money being deposited with the company.

Annuities are generally classified as fixed or variable – deferred or immediate.  As their names indicate, deferred annuities are designed as saving funds to accumulate for future use.They are growth-oriented products where the tax on the interest earned is deferred until the money is withdrawn.  An immediate annuity is used for systematically withdrawing money without concern for the money lasting until the end.  The insurance company assumes this risk.

Deferred Annuities

The deferred annuity contract, like a permanent life insurance policy, has been found by some to be a convenient method of accumulating wealth.  Funds can be placed in deferred annuities in a lump sum, called Single Premium Deferred Annuities, or periodically over time, called Flexible Premium Deferred Annuities.  Either way, the funds placed in a deferred annuity grow without current taxation (tax-deferred).  .

Fixed Deferred Annuity

Fixed deferred annuities provide a guaranteed minimum return of return (usually around 3 percent per year) and typically credit a higher, competitive rate based on the current economic conditions.

Fixed annuities are usually considered conservative investments as the principal (premium) is guaranteed not to vary in value. Insurance companies are required by state insurance laws to maintain a reserve fund equal to the total value of fixed annuities.  Fixed annuities are also protected by State Guaranty Fund Laws. 

Example: 

Dr. Park, a retired physician, desires a safe financial vehicle for $100,000 of her excess savings.  She doesn’t need the earnings of this investment for current income and also wants to reduce her income tax liability.  She decides to purchase a fixed deferred annuity with her $100,000.  The annuity guarantees a 3 percent annual return and the current rate is 6 percent. 

After the first year, $6,000 of interest is credited to the annuity and Dr. Park has no current income taxes as a result.  If the 6 percent interest rate does not change, after 3 years, the annuity will have $119,102 of value.

Variable Deferred Annuity

Recently, variable deferred annuities have become very popular.  Like fixed annuities, variable deferred annuities offer tax-deferred growth, but this is where the similarities end.  Variable annuities are not guaranteed.  The appreciation or depreciation in value is totally dependent on market conditions.

Variable deferred annuities assets are maintained in separate accounts (similar to mutual funds) that provide different investment opportunities.  Most of the separate accounts have stock market exposure, and therefore, variable annuities do not offer a guaranteed rate of return.

But, the upside potential is typically much greater than that of a fixed annuity. The value of a variable deferred annuity will fluctuate with the values of the investments within the chosen separate accounts.  Although similar to mutual funds, there are some key differences.  These include:

·  A variable annuity provides tax deferral whereas a regular mutual fund does not

·  If a variable annuity loses money because of poor separate account performance, and the owner dies, most annuities guarantee at least a return of principal to the heirs.  This guarantee of principal only applies if the annuity owner dies.  If the annuity value decreases below the amount paid in, and the annuity is surrendered while the owner is alive, the actual cash value is all that is available.

·  When money is eventually withdrawn from a deferred annuity, it is taxable at ordinary income tax rates.  With taxable mutual funds, they can be liquidated and taxed at lower, capital gains rates.

·  There is also a 10 percent penalty if the annuity owner is under 59½ when money is withdrawn.  There is no such charge for withdrawals from a mutual fund.

· The fees charged inside of a variable annuity (called mortality and expense charges) are typically more than the fees charged by a regular mutual fund. 

Assessment

Variable deferred annuities are sensible for physicians who want stock market exposure while minimizing taxes.  Most financial advisors and Certified Medical Planners™ [CMP™] recommend regular mutual funds when the investment time horizon is under 10 years.  But if the time horizon is more than 10 years, variable annuities may occasionally become more attractive because of the additional earnings from tax-deferral. 

Both types of deferred annuities are subject to surrender charges.  Surrender charges are applied if the annuity owner surrenders the policy during the surrender period, which typically run for 5 to 10 years from the purchase date.  The charge usually decreases each year until it reaches zero.  The purpose of the charge is to discourage early surrender of the annuity. 

Equity Index Annuity 

The equity index annuity combines the basic elements of both the variable and the fixed annuity. The credited interest earnings are generally linked to a percent of increase in an index, such as the Standard & Poor’s 500 Composite Stock Price Index (S&P 500). This percentage is called the Participation Rate and may be guaranteed for a specified period of up to 10 years or adjusted annually. Thus, the physician annuity owner is able to participate in a portion of market gains while limiting the risk of loss. 

Typically, the indexed annuity has a fixed principal, with the insurance company and contract owner sharing the investment risk.  If the S&P 500 Index goes up, so do interest earnings.  If it declines, the insurance company guarantees the principal.   

So, the physician contract owner accepts the risk of an unknown interest yield based on the growth or decline of the S&P 500.  Medical professionals and healthcare practitioners should pay particular attention to surrender penalties, asset management fees and any monthly caps on appreciation. 

Immediate Annuities

Immediate annuities provide a guaranteed income stream.  An immediate annuity can be purchased with a single deposit of funds, possibly from savings or a pension distribution, or it can be the end result of the deferred annuity, commonly referred to as annuitization.  Just like deferred annuities, immediate annuities can also be fixed or variable.  

Immediate annuities can be set up to provide periodic payments to the policy owner annually, semiannually, quarterly or monthly.  The annuity payments can be paid over life or for a finite number of years.  They can also be paid over the life of a single individual or over two lives. 

Insurance Agent Commissions

Immediate Fixed Annuity

Immediate fixed annuities typically pay a specified amount of money for as long as the annuitant lives.They may also be arranged to only pay for a specified period of time, i.e., 20 years.  They often contain a guaranteed payout period, such that, if the annuitant lives less than the guaranteed number of years, the heirs will receive the remainder of the guaranteed payments. 

A note of caution here, as the selection of an immediate annuity is an irrevocable decision! 

Example: 

Dr. Jones is 70 years old and retired.  He is only of average wealth, but is concerned that if he lives too long, he could deplete his savings.  He decides to use $100,000 and purchase a lifetime immediate annuity with 20 years certain.  The insurance company promises to pay him $7,000 per year as long as he lives. If Dr. Jones dies four years after purchase, he would only have received $28,000 out of a $100,000 investment.  However, his heirs will receive $7,000 for the next 16 years.  If Dr. Jones survives to the age of 98, he would have received $196,000 (or 28 years of $7,000).

Immediate Variable Annuity

Immediate variable annuities provide income payments to the annuitant that fluctuates with the returns of the separate accounts chosen.  The theory is that since the stock market has historically risen over time, the annuity payments will rise over time and keep pace with inflation.   If this is indeed what happens, it is a good purchase, but it cannot be guaranteed. 

Some companies will, at a minimum, provide a guarantee of a low minimum monthly payment no matter how poorly the separate accounts perform.

Split annuities

A popular method of adding income and yet still accumulating savings is through the use of two separate annuity policies.  Part of the funds is placed in an immediate annuity to provide monthly income.  The balance is placed in a deferred annuity grows to the total value of the premium paid for both annuities.  

The income that is received from the Immediate Annuity includes a portion of the initial premium, as well as the taxable interest earned.   Only the portion of income that is interest is taxable. The ratio between the annuity principal and interest being paid out is called an Exclusion Ratio. 

Example:

Dr. Jeanne Jones has put $100,000 into a 5-year non-tax deferred vehicle at 5%. The earnings to supplement Jeanne’s retirement is $25,000.  With a combined federal and state tax of 33%, the net after tax income would be $16,750. Jeanne takes the same $100,000 using the split annuity concept she would receive $24,444 over the 5 years.  Based on an exclusion ration of 89%, her total taxable amount is $2,797.  This would yield $923 in taxes at the same 33% tax rate.  Jeanne would have $23,521 of spendable income with the split annuity compared to the $16,750.

Qualified Annuities

The term qualified refers to those annuities which permit tax-deductible contributions under one of the Internal Revenue Code (IRC) sections, i.e., § 408 Individual Retirement Accounts (IRA), § 403(b) Tax Sheltered Annuities, § 401(k) Voluntary Profit Savings Plans.  Qualified annuities can also result from a rollover from such a plan.  

Assessment

Currently, there is much lively debate in the industry as to whether an annuity, which is tax-deferred by nature, should be used as a funding vehicle within a tax-qualified plan, i.e., a tax-shelter within a tax-shelter.  Since the investment options within the annuity are also generally available to the plan participant without the additional management expenses of the annuity policy, it is felt this could be a breach of fiduciary responsibility. And, most insurance agents are not fiduciaries. 

Both the National Association of Securities Dealers (NASD) and the Securities and Exchange Commission (SEC) have gone on record as criticizing these sales.  

However, there are numerous examples of deferred annuities that have outperformed similar investment-category mutual funds, even after taking the annuity expenses into account. 

Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com

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MARCINKO’s New Risk Management and Asset Protection Textbook for MDs and Financial Advisors

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Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors [Best Practices from Leading Consultants and Certified Medical Planners]

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Book Reviews

“Physicians who don’t understand modern risk management, insurance, business and asset protection principles are sitting ducks waiting to be taken advantage of by unscrupulous insurance agents and financial advisors; and even their own prospective employers or partners. This comprehensive volume from Dr. David Marcinko, and his co-authors, will go a long way toward educating physicians on these critical subjects that were never taught in medical school or residency training.”
—Dr. James M. Dahle, MD, FACEP, Editor of The White Coat Investor, Salt Lake City, Utah, USA

“With time at a premium, and so much vital information packed into one well organized resource, this comprehensive textbook should be on the desk of everyone serving in the healthcare ecosystem. The time you spend reading this frank and compelling book will be richly rewarded.”
—Dr. J. Wesley Boyd, MD, PhD, MA, Harvard Medical School, Boston, Massachusetts, USA

“Physicians have more complex liability challenges to overcome in their lifetime, and less time to do it, than other professionals. Combined with a focus on practicing their discipline, many sadly fail to plan for their own future. They need trustworthy advice on how to effectively protect themselves, families and practice, from the many overt and covert risks that could potentially disrupt years of hard work.
Fortunately, this advice is contained within ‘Risk Management, Liability Insurance, And Asset Protection Strategies For Doctors And Advisors: Best Practices From Leading Consultants And Certified Medical Planners™’. Written by Dr. David Edward Marcinko, Nurse Hope Rachel Hetico and their team of risk managers, accountants, insurance agents, attorneys and physicians, it is uniquely positioned as an integration of applied, academic and peer-reviewed strategies and research, with case studies, from top consultants and Certified Medical Planners™. It contains the latest principles of risk management and asset protection strategies for the specific challenges of modern physicians. My belief is that any doctor who reads and applies even just a portion of this collective wisdom will be fiscally rewarded. The Institute of Medical Business Advisors has produced another outstanding reference for physicians that provide peace of mind in this unique marketplace! In my opinion, it is a mandatory read for all medical professionals.”
—David K. Luke, MS-PFP, MIM, CMP™, Net Worth Advisory Group, Inc., Sandy, Utah, USA

“This book is a well-constructed, comprehensive and experiential view of risk management throughout the entire medical practice life-cycle. It is organized in an accessible, high-yield style that is familiar to doctors. Each chapter has case models, examples and insider tips and useful pearls. I was pleased to see multi-degreed physicians sharing their professional experiences in a textbook on something other than clinical medicine. I can’t decide if this book is right on – over the top – or just plain prescient. Now, after a re-read, I conclude it is all of the above; and much more.”
—Dr. Peter P. Sidoriak, Pottsville, Pennsylvania, USA

“When a practicing physician thinks about their risk exposure resulting from providing patient care, medical malpractice risk immediately comes to mind. But; malpractice and liability risk is barely the tip of the iceberg, and likely not even the biggest risk in the daily practice of medicine. There are risks from having medical records to keep private, risks related to proper billing and collections, risks from patients tripping on your office steps, risks from medical board actions, risk arising from divorce, and the list goes on and on. These liabilities put a doctor’s hard earned assets and career in a very vulnerable position. This new book from Dr. David Marcinko and Prof. Hope Hetico shows doctors the multiple types of risk they face and provides examples of steps to take to minimize them. It is written clearly and to the point, and is a valuable reference for any well-managed practice. Every doctor who wants to take preventive action against the risks coming at them from all sides needs to read this book.”
—Richard Berning, MD, FACC, New Haven, Connecticut, USA

“This is an excellent companion book to Dr. Marcinko’s Comprehensive Financial Planning Strategies For Doctors And Advisors: Best Practices from Leading Consultants and Certified Medical Planners™. It is all inclusive yet easy to read with current citations, references and much frightening information. I highly recommend this text. It is a fine educational and risk management tool for all doctors and medical professionals.”
—Dr. David B. Lumsden, MD, MS, MA, Orthopedic Surgeon, Baltimore, Maryland, USA

“This comprehensive text book provides an in-depth presentation of the cyber security and real risk management, asset protection and insurance issues facing all medical profession today. It is far beyond the mere medical malpractice concerns I faced when originally entering practice decades ago.”
—Dr. Barbara s. Schlefman, DPM, MS, Family Foot Care, PA, Tucker, Georgia, USA

“Am I over-insured and thus wasting money? Am I under-insured and thus at risk for a liability or other disaster? I never really had the means of answering these questions; until now.”
—Dr. Lloyd M. Krieger, MD, MBA, Rodeo Drive Plastic Surgery, Beverly Hills, California, USA

“I read and use this book, and several others, from Dr. David Edward Marcinko and his team of advisors.”
—Dr. John Kelley, DO, Orthopedic Surgeon, Tucker, Georgia, USA

“An important step in the risk management, insurance planning and asset protection process is the assessment of needs. One can create a strong foundation for success only after all needs have been analyzed so that a plan can be constructed and then implemented. This book does an excellent job of recognizing those needs and addressing strategies to reduce them.
—Shikha Mittra, MBA, CFP®, CRPS®, CMFC®, AIF®, President – Retire Smart Consulting LLC, Princeton, New Jersey, USA

“The Certified Medical Planner™ professional designation and education program was created by the Institute of Medical Business Advisors Inc., and Dr. David Edward Marcinko and his team (who wrote this book). It is intended for financial advisors who aim specifically to serve physicians and the medical community. Content focuses not only on the insurance and professional liability issues relevant to physicians, but also provides an understanding of the risky business of medical practice so advisors can help work more successfully with their doctor-clients.”
—Michael E. Kitces, MSFS, MTAX, CFP®, CLU, ChFC, RHU, REBC, CASL, http://www.Kitecs.com, Reston, Virginia, USA

“I have read this text and used consulting services from the Institute of Medical Business of Advisors, Inc. on several occasions.”
—Dr. Marsha Lee, DO, Radiologists, Norcross, Georgia, USA

“The medical education system is grueling and designed to produce excellence in medical knowledge and patient care. What it doesn’t prepare us for is the slings and arrows that come our way once we actually start practicing medicine. Successfully avoiding these land mines can make all the difference in the world when it comes to having a fulfilling practice. Given the importance of risk management and mitigation, you would think these subjects would be front and center in both medical school and residency – ‘they aren’t.’ Thankfully, the brain trust over at iMBA Inc., has compiled this comprehensive guide designed to help you navigate these mine fields so that you can focus on what really matters – patient care.”
—Dennis Bethel, MD, Emergency Medicine Physician

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