What Is Health Care Law?
Breaking down the immense regulation of the medical care industryBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on February 1, 2023
Use these links to jump to different sections:
- An Overview of Health Care Law – What You Need to Know
- Health Care Fraud & Abuse
- Health Care Audits
- Health Care Compliance
- Patient Privacy
- Professional Licensing & Credentialing
- Health Care Litigation
- Common Questions to Ask a Health Care Attorney
- Finding the Right Attorney for Your Needs
The health care industry is one of the most heavily regulated in the country. In order to provide health care services, medical providers and hospitals must follow various highly detailed regulations, including federal and state laws, designed to protect patient safety and privacy. Any violation can result in stiff penalties and possibly losing a business or professional license. Other providers will lose the ability to participate in public health care programs like Medicare and Medicaid.
A health care attorney is a terrific asset for any health care company to have. They can provide guidance for complying with existing regulations and legal aspects of the healthcare industry. They can also represent you in a licensing or other health care system-related issue.
An Overview of Health Care Law – What You Need to Know
- The health care industry is one of the most regulated industries in the United States, and for good reason.
- Legislators have passed numerous laws designed to protect patient wellbeing and privacy.
- Violating these laws can lead to punishments such as fines, license revocation, and jail time.
- Many practitioners turn to health care lawyers to help create compliance programs for their practices.
Health Care Fraud & Abuse
According to estimates, health care fraud costs the government tens of billions of dollars each year. Since the government is the largest health insurance provider, any fraud can drain the public treasury. Consequently, the government has passed numerous laws to protect against fraud and abuse.
False Claims Act
It is against the law to submit a false claim to the federal government for reimbursement. Many prosecutions are brought under the False Claims Act for various activities, such as submitting a fraudulent bill to Medicare or keeping overpayments.
A civil penalty is assessed for each false claim, and they can rack up. Adjusted for inflation, each penalty is approximately $25,000. You will also need to pay back the amount you obtained from the government illegally—and then multiply this amount by three. For example, if you submit $500,000 in false claims, you will have to pay back $1.5 million.
The federal Anti-Kickback Statute prohibits offering or accepting anything of value in exchange for a referral for a service paid by the government. Kickbacks take many forms. The most obvious is someone offering you a fee for referring one of your patients to them. Kickback investigations involve doctors, hospitals, nursing homes, hospice services, ambulance services, and at-home health care providers.
Any violation can result in severe criminal penalties: up to 5 years in prison and fines up to $25,000. You might also face civil fines and loss of your license.
The Stark Law prohibits doctors from referring patients on Medicare or Medicaid to an entity that the doctor (or immediate family member) is an owner of. For example, a doctor cannot refer a patient to a nursing home he partially owns. The Stark Law is designed to remove the incentives for making unnecessary referrals. A health care attorney can help you analyze if a referral would violate the law. The Stark Law also has some exceptions which might apply, so meeting with an attorney can help immensely.
An experienced health care attorney provides essential representation to any medical provider facing civil or criminal sanctions for violations.
Health Care Audits
To uncover fraud, government regulators and private payors increasingly rely on audits. Very few health care providers will escape an audit, which is time-consuming and potentially invasive. Many investigators will request more documents than they are entitled to. A health care attorney can protect your business by negotiating the scope of the audit and reviewing documents before you hand them over. An attorney can also defend you and your practice in a hearing or in court.
The audit process is burdensome, and the appeals process is confusing. They require attorneys with the experience to marshal evidence, coordinate expert witnesses, and streamline the audit process. If you accidentally submitted inaccurate bills, an attorney could defend you against any allegation of fraud.
Health Care Compliance
Compliance and regulatory violations are serious risks that hospitals and other health care providers face. To manage that risk, you should hire a health care attorney to help create a compliance program for your practice. These programs are essential because they create a general culture of compliance and inform your employees of what steps they must take. Compliance programs also show your hospital or practice is making a good faith effort to follow all regulations, which matters if the government investigates you.
If you suspect your practice has committed compliance violations, an internal investigation can help you get ahead of any regulatory or criminal proceedings. A health care attorney can perform a confidential investigation to help you root out the source of regulatory violations.
Numerous laws protect patient privacy and severely penalize doctors for violations. The Health Insurance Portability and Accountability Act (HIPAA) is the primary federal law in this space. HIPAA led to national standards to protect sensitive health information from disclosure unless a patient gave consent. HIPAA also led to the creation of security rules which require that covered healthcare develop safeguards for patient privacy. A company cannot comply with HIPAA unless it makes serious efforts to train employees to handle sensitive patient information.
The Department of Health and Human Services (HHS) Office for Civil Rights reviews HIPAA violations. Penalties are steep. The severity will depend on whether you knew of the violation and whether you could have prevented it with due diligence. The most severe offenses are for willful neglect of the rules. Adjusted for inflation, minor violations currently carry a $127 fine as a minimum, up to an approximately $64,00 maximum for severe offenses. It’s also possible to receive multiple violations per year, up to a certain limit. Criminal penalties are also possible, with serious violations resulting in 10 years in prison.
If you are a healthcare provider or other covered entity, you should hire a health care attorney to ensure your practice complies with HIPAA. This compliance can help you avoid potentially devastating fines.
Professional Licensing & Credentialing
Medical boards in each state regulate medical professionals such as doctors and dentists. They investigate complaints and impose discipline in the form of suspension or permanent debarment. If you are a health care professional, you’ll need a license from your state before accepting patients and providing medical treatment. Any prior criminal convictions or malpractice claims can slow down the process.
A health care attorney can advise you on the application process or defend you in front of the licensing board if you are facing a complaint.
Health Care Litigation
Lawsuits are common in the health care industry. Many high-stakes disputes could potentially force your practice into liquidation, and even minor disputes can damage your reputation in the community. A seasoned health care attorney can represent you in various sorts of litigation:
- Government investigations
- HIPAA violations
- Insurance laws and private insurance company litigation
- False Claims Acts
- Facility construction disputes
- Commercial disputes
- Medical malpractice claims
- Investor and partnership disputes
- Intellectual property litigation
- Shareholder lawsuits
- Breach of contracts
- Unfair competition claims
- Mergers and acquisitions of health care organizations
- Bioethics disputes
Reputation management is a key part of all health care representation. To protect a company’s reputation, health care attorneys can launch internal investigations which show that you are taking allegations of misconduct seriously and have taken steps to ensure they don’t happen again.
A health care attorney can help reduce the costs of litigation. Disputes brought as class actions can cost millions of dollars. In some situations, settling early can save you money and avoid admitting to liability. An attorney should carefully review all possible resolutions and help you identify which is best for your situation.
Common Questions to Ask a Health Care Attorney
When meeting with health care lawyers, ask any question you have in mind, such as:
- Should I talk to government agencies without an attorney?
- Should I automatically turn over any patient or billing records, or are there situations where I can limit what I disclose?
- What kinds of penalties do you think I face?
- If my practice is sued, will I need a different attorney to represent me? Or do you represent both me and my practice?
Finding the Right Attorney for Your Needs
It is essential to approach the right type of attorney—someone from a reputable law firm who can help you through your entire case. To do so, you can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for a lawyer who practices health care law.
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