By Dan Clifford, publisher
Medicare is going to quit paying hospitals for what it sees as preventable conditions that should never happen, yet do, and the medical-legal community is abuzz with concerns about what it all might mean for them.
The new no-pay rules go into effect in October 2008 and were mandated by the Medicare Modernization Act of 2003, according to the JAMA, The New York Times and Modern Healthcare.
According to these news sources, eight conditions are slated to be denied payments in 2008, and nine more are being considered for 2009. The 2008 conditions are three types of hospital-acquired infections (vascular catheter, surgical site and urinary tract), pressure ulcers (bed sores), left-behind surgical objects, blood-type mix-ups, hospital-acquired injures and air embolisms. Common staph infections are not on the list.
Plaintiff and defense attorneys, and their medical experts, note that questions remain unanswered: Who decides what was preventable? How will this change coding? If Medicare pays, then was a bad outcome faultless, and therefore defensible? If Medicare does not pay, then was their fault? What will nonpayment mean to subrogation? What about providers who are not paid by Medicare?
Attorney Kevin P. Weiss, with the Goldberg & Simpson law firm, analyzed it in more detail: “The injured person will owe a bill for services provided regardless of the reason for the bill, at least when the bill is from someone other than the at-fault party.”
“If Medicare pays the bill and the victim recovers money, then the victim can claim the full value of the bill as damages (collateral source rule), but only has to reimburse Medicare a small percentage of the total charges as Medicare pays at a discounted rate and reduces its interest for attorney fees and case costs.”
“However, if Medicare refuses to pay the bills, the bills are still owed to the treating providers, at least to those who did not negligently cause the injuries, and those other providers can now seek the full value of their services. So even if the victim recovers in [a] tort, he will have to pay the provider the full value of the services, thus losing the “windfall” that having Medicare make payment can provide.”
A nurse consultant and expert witness in Florida mused, “I am wondering how this will work. Who decides who is at fault? And this is assuming the hospital would code it as their fault. So will Medicare now be investigating… cases to see who will pay for them? Also with the number of bad outcome in hospitals, I would think most hospitals would be put in dire straights if they had to pay the bill.”
According to Modern Healthcare, 48 states do not have coding systems in place to document “present on admission” conditions, putting a huge coding burden on most hospitals.
Michael D. Grabhorn of the Grabhorn Law Office, added, “I… have serious questions as to how a Medicare recipient will be treated (both medically and financially) in the wake of this provision. The enforcement will be a nightmare. So long as the Medicare recipient does not have to pony up the money when Medicare refuses to pay, it would seem innocent enough. However, it strikes me that for those doing med-mal work, this could become a real pain. Can you envision the doctor or hospital raising the defense that if Medicare paid for it, they must have done the procedure correctly?
Medicare beneficiary patients cannot be charged by hospitals when Medicare cites an erroneous event and refuses to pay, according to Newark, N.J.’s The Star-Ledger.