On Dec. 9, Medical Protective and ASC Communications presented a Webinar titled, "Ambulatory Surgery Centers — 2 Key Topics: 1. Medical Malpractice Industry Trends and 2. Key ASC Business and Legal Trends," that highlighted several trends in medical malpractice and business and legal issues currently affecting ASCs. Note: Links to download a video recording of the Webinar and a copy of the presentation can be found at the end of this story.
The first presenter was Bruce Whitmore, Healthcare Facilities and Wholesale Distribution Leader at Medical Protective, a member of the Berkshire Hathaway Group. Mr. Whitmore highlighted several trends which may affect the medical malpractice industry, and ASCs including:
- Unemployment, loss of insurance or COBRA benefits, foreclosure and personal bankruptcy may contribute to an increase in malpractice claims frequency;
- Tort reform on a national level appears unlikely at this time, and some existing tort reform is under challenge; and
- If claim frequency increases, some malpractice insurers may react by increasing deductibles, reducing coverage, or pulling out of some markets.
Mr. Whitmore outlined ways ASCs can reduce exposure to malpractice claims including taking advantage of risk management programs offered by their insurance companies, reviewing medical records for completeness and defensibility, keeping detailed records of incidents and screening out claims-prone physicians.
He noted that finding the right malpractice insurer depends on more than just financial ratings. Some areas he suggested considering include the insurance carrier’s commitment to medical malpractice, its understanding of ASC medical malpractice, understanding of the ASC business and availability of risk management tools specific to ASCs.
Mr. Whitmore concluded his presentation by reviewing key ASCs' medical malpractice coverages. He advised ASCs to consider what type of coverage they had and highlighted the following areas:
- Occurrence form coverage vs. claims-made form coverage — is the carrier at the time of the incident or at the time of the claim responsible for handling the claim?
- Defense costs — are the costs to defend a claim paid over and above the limits of liability?
- Deductibles — does the deductible apply to defense costs, or does it only apply to indemnity payments to the patient?
- Does the ASC have the right to refuse settlement of a claim? Does the insurer have a Hammer Clause to override this decision?
- Does the coverage apply to Medical Directors?
Scott Becker, JD, CPA, of McGuireWoods was the second presenter. He discussed several key business and legal issues currently affecting ASCs. He began by reaffirming some of the comments made by Mr. Whitmore and encouraging ASCs to be cautious when considering litigation.
Healthcare reform remains a hot topic for ASCs, and Mr. Becker outlined some of the current developments, including efforts by Senate Democrats to attain 60 votes in support of the healthcare reform bill and problems with a potential single-payor system, including the possibility of patients covered under commercial payors migrating to federal options.
Mr. Becker touched on the decrease of lucrative reimbursement agreements that ASCs had relied on in the past. In spite of reduced rates, Mr. Becker said that because of increases in smart management practices, ASCs remain solid.
Out-of-network reimbursement is another topic of much discussion and recent lawsuits have brought the practice to the attention of the media. Mr. Becker noted some common practices that ASCs engage in when it comes to handling out-of-network patients. He said that if ASCs chose to match in-network copayments and deductibles for out-of-network patients, they should notify the insurer of the practice. He advised ASCs against completely waiving these fees.
Mr. Becker concluded by discussing recent safe harbor and antikickback issues, including the government's increased effort to recoup fraud monies in order to decrease the federal healthcare deficit. He noted that ASCs need to ensure when looking to remove underperforming physicians that the concerns are driven by true compliance issues as opposed to failure to bring cases to the ASC.
Download the Webinar presentation here. You will find a "Certificate of Participation" at the end.
View the Webinar here (wmv). We suggest you download the video to your computer before viewing to ensure better quality. If you have problems viewing the video, which is in Windows Media Video format, you can use a program like VLC media player, free for download here.
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