AHS318_Sp11_u02_01_13_11_PDF-1 - Criminal Aspects of Health...

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Unformatted text preview: Criminal Aspects of Health Care Law for Health Care Professionals Class 2 January 13, 2011 1 2 Criminal Procedure Criminal Law is that aspect of the law that deals with punishment for behavior Criminal law regulates behavior of groups Ci Civil law deals with matters such as breach of contract; it deals with individual rights and relationships among parties Criminal Statutes Specific as to what constitutes a crime Outlines elements that must be present Must prove all elements to be found guilty Must prove all elements to be found guilty 3 4 Criminal Procedure Criminal Procedure Elements Mens Rea – guilty mind Actus Rea – the act itself Grand Jury 5 Constitutional Issue Grand Jury not used in all cases Secret proceeding proceeding Indictment Formal act of charging someone with crime 6 1 Criminal Procedure Criminal Procedure Arraignment The formal reading of the accusatory instrument (the charges) and includes the setting sett setting of bail ail Defendant will enter a plea of either guilty or not guilty Trial is similar to that of civil trial Differences include: Discovery process – rules of evidence Burden of proof beyond reasonable doubt vs. Burden of proof – beyond a reasonable doubt vs. preponderance preponderance of the evidence in a civil trial 7 8 Criminal Procedure Criminal Procedure A healthcare facility can be a party to a matter than involves both criminal and civil components. False Claims Act of 1986 prohibits Criminal general is handled first Example – a patient could have a filed a suit alleging against a hospital alleging sexual misconduct on the part of an employee of the hospital and she could have contemporaneously filed a criminal case against the individual accused of the misconduct. knowingly presenting or causing to be presented to the government a false claim for payment Knowingly making, using or causing to be made or used, a false record or statement to get a false claim paid or approved by the government Conspiring to defraud the government by getting a false claim allowed or paid, and Knowingly making using or causing to be made or used a false record to avoid or decrease an obligation to pay or transmit property to the government. 9 10 Criminal Procedure False Claims Act (con’t.) False Claim Act (con’t.) Role of Office of Inspector General OIG Exclusion List Penalties for doing business with excluded Penalties for doing business with excluded individuals individuals Civil Monetary Penalties (“CMP”) Qui Tam Suits 11 Corporate Integrity Agreement (“CIA”) Elements of a Corporate Compliance Program Leadership and structure including Corporate Compliance Officer written standards education and Compliance Officer, written standards, education and training, training, internal communication, auditing and monitoring, responding to potential violations, correction action plans Target areas – billing for services not provided, billing for homebound patients that are not homebound, claims for visits not made and visits not authorized by physicians 12 2 Criminal Procedure Criminal Procedure FCA Potential Areas of Concern for Healthcare Providers Coding and Medical Record Documentation and Medical Record Documentation Discrepancies between what is on the bill and what is coded - the question becomes is it: Kickbacks Human error ? Medical Necessity Issue? Fraud? Medicare and Medicaid Patient Protection Act of 1987 – 42 U.S.C. § 1320a-7b 1320aKnown as the Antikick-back Statute as the Antikick Statute Prohibits certain solicitations or receipt of remuneration Provides for criminal penalties 13 14 Criminal Procedure Criminal Procedure Health Insurance Portability and Accountability Act (“HIPAA”) HIPAA (cont.) Where to find information regarding HIPAA CMS website Office of Civil Rights (“OCR”) Acts dictates specific measures to ensure the confidentially maintenance and disclosure of confidentially maintenance and disclosure of protection protection health information Has added to new measures to combat healthcare fraud and abuse Criminal and civil penalties Review website website Review website 15 16 Criminal Procedure Criminal Procedure Theft Theft of Drugs Drug Diversion Theft of Property of Property Regulatory Reporting Issue Patient Abuse Potential Neglect and Abuse Issues 17 The mistreatment or neglect of individual who are under the care of a health care organization Civil and criminal issue Could be allegation of physical, verbal, or sexual abuse Patient safety issue 18 3 Criminal Procedure Criminal Procedure Abuse (con’t) Policies and Procedures are imperative Investigation is key State Reportable issue Reportable issue Need to determine if it is patient to patient, staff to patient, visitor to patient Abuse (con’t) Abuse Registry Employee references prior to hire date 19 20 Criminal Procedure Criminal Procedure Misdemeanor vs. Felony Statute Elements of crime Length of confinement Year or more generally a felony Assault Battery Theft – larceny crimes Murder 21 22 Criminal Procedure Tort Law What Should A Healthcare Provider Do? Establish a culture of integrity and ethical behavior Employ a strong management team strong management team Educate and train Have a strong Compliance Program – standards of conduct Engage staff Support and expectations from Governing Board 23 Torts A Tort is a civil wrong Negligence Intentional Torts Torts Invasion of Privacy Defamation Fraud Intentional Interference with Business Relationships 24 4 Torts Torts Burden of Proof Damages Compensatory – restore the injured person back to her financial situation prior to the injury to the injury Incidental – occurred because of the injury Punitive - punishment A preponderance of the evidence 25 26 Torts Torts Negligence Forms of Negligence Negligence is the unintentional omission or commission of an act that a reasonably prudent person would or would not have done in the same or similar circumstances Negligence is the failure to exercise reasonable care under the circumstances Malfeasance – performance of an unlawful or improper act – ie, performing an act that is prohibited by law; textbook cites example of by te abortion in 3rd trimester Misfeasance – improper performance of an act resulting in injury – ie, wrong sided surgery Nonfeasance – failure to act – should have ordered diagnostic tests and just did not do so 27 28 Torts Torts Four (4) Elements of Negligence 1. 2. 3. 4. Duty to care Breach of duty Injury Causation 29 Negligence Duty to Care Must establish there was a duty to act A duty is a legal obligation to care, perform, act or observe imposed on one to safeguard the rights of other. 30 5 Torts Torts Negligence Duty to Care Arises from: Special relationship (parent/child; physician/patient), or Statutory, or Contractual, or Voluntarily assume duty 31 Negligence - Duty to Care If you voluntarily assume a duty when there is not a duty to act, then you must act as reasonably prudent person would act as a reasonably prudent person would under under the circumstances. 32 Torts Negligence – Standard of Care Reasonable care under the circumstances Generally, medical malpractices cases require an expert witness Expert witness must have been employed in the same type of position, and performing the same type of job duties as the person accused of negligence 33 6 ...
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