Legal News Archive

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2008

11.21.08 BCBS billing dispute review board now available

The Blue Cross Blue Shield Settlement Billing Dispute External Review Board (BDERB) is now operational and available to M.D.s and D.O.s who are class members (and did not opt out) of the Love, et al v. BCBSA, et al. settlement dated April 27, 2007.

Physicians and physician groups may file billing disputes with BDERB either online or via fax/mail by visiting www.hmosettlements.com/pages/bluecross.html. Attached are the hard copy versions of the BDERB billing dispute instructions and the billing dispute form. If you have any comments or concerns, please contact Donald Palmisano at dpalmisano@mag.org.

BDERB billing dispute instructions
BDERB billing dispute form

11.17.08 State high court limits physicians' access to plaintiffs' prior treating physicians

The Supreme Court of Georgia, in a November 3, 2008 opinion, ruled that HIPAA preempts state law governing ex parte communications between defense counsel and a plaintiff’s prior treating physicians in medical malpractice cases.

In Moreland et al. v. Austin, et al., the Court determined that because HIPAA afforded patients more control over their medical records regarding informal contact between defendant-physicians and prior treating physicians, HIPAA was more stringent than, and therefore preempts, Georgia law governing such contact.

Under the rule announced by the Court, prior to engaging in ex parte contact with a patient’s prior treating physicians, defense counsel must obtain a valid authorization from the patient, a protective order from the court prohibiting the use or disclosure of protected health information for non-litigation purposes, or ensure the patient has been provided notice and an opportunity to object to the ex parte contact, all in compliance with HIPAA.

The Medical Association of Georgia submitted an amicus curiae brief in support of the defendant-physician.

11.06.08 MAG urges Georgia Supreme Court to revisit informed consent

The Medical Association of Georgia (MAG) has submitted a friend of the court brief urging the Georgia Supreme Court to grant certiorari in the case of Blotner, D.C. v. Doreika to overrule the precedent relied on by the Court of Appeals and reverse its opinion in the present case.

In 2000, contrary to existing caselaw in Georgia, the Court of Appeals created a common law doctrine of informed consent in Ketchup v. Howard thereby exposing physicians to a greater risk of liability. In the present case, the first opportunity for MAG to challenge the Court of Appeals’ holding in Ketchup, the court extended the common law doctrine of informed consent to chiropractors.

In its brief, MAG argues the Court of Appeals holding in Ketchup should be overruled because the court lacked the authority to establish the common law doctrine of informed consent, allowing the Ketchup holding to stand would render most of Georgia’s informed consent statute meaningless, and the court’s basis for recognizing the common law doctrine of informed consent was misplaced.

11.03.08 Parks v. Wellstar case settles

On October 31, MAG was notified that the case of Parks v. Wellstar, which involved the constitutionality of Georgia’s cap on non-economic damages, has settled. This is a clear victory for Georgia doctors as it leaves Georgia's $350,000 cap in tact.

As I reported to you a few months ago, a Fulton County trial court issued a ruling that the medical malpractice cap on non-economic damages was unconstitutional. The defendants asked the Georgia Supreme Court to reverse the trial court’s ruling. The Georgia Supreme Court accepted the case for appeal to decide whether the cornerstone of the 2005 Tort Reform law (cap on non-economic damages) was constitutional.

This issue is highly important to the doctors of Georgia. MAG’s General Counsel Donald Palmisano Jr. prepared a friend of the court brief in coordination with the American Medical Association and the American Tort Reform Association. The Texas Alliance for Patient Access had also prepared a separate brief. The Georgia Supreme Court scheduled oral argument for Monday, November 3, 2008. Following oral argument, the Georgia Supreme Court would issue an opinion on the constitutionality of the cap. However, since the case settled, Georgia’s high court will not be considering the issue.

We are sure to see more challenges to the caps and other parts of tort reform continue. MAG remains committed to protecting Georgia’s tort reform laws and want to extend our sincere thanks to all who have helped in this effort.

- David A. Cook, Executive Director/CEO
Medical Association of Georgia

10.21.08 WellPoint to automatically reprocess Modifier 57 claims

WellPoint says that it will automatically reprocess the claims that were affected by a widespread computer error related to Modifier 57 claims. WellPoint says that physicians do not have to contact Blue Cross Blue Shield of Georgia to reconcile the claims. Failing to properly pay this modifier would have been a violation of a settlement agreement with WellPoint (i.e., no global periods for surgical procedures shall be longer than the period designated by CMS). The issue was first raised by a number of MAG physician members and the American Medical Association. MAG was instrumental in reconciling the error.

09.26.08 Georgia Supreme Court deals physicians a blow; Reaffirms 'New Injury' exception

On September 22, 2008, in Cleaveland v. Gannon, et al. the Georgia Supreme Court reaffirmed the “new injury” exception to the general rule that the statute of limitations for medical malpractice claims based on a negligent misdiagnosis begins to run immediately on the date of the misdiagnosis.

Under Georgia law, the statute of limitations runs from the date of the "injury." Generally, in misdiagnosis cases, the date of the injury is the date of the misdiagnosis. The "new injury" exception applies in cases where the injury arising from the misdiagnosis occurs after the negligent act because, due to the misdiagnosis, a treatable condition leads to a less treatable condition, or "new injury," for which the statute of limitations runs separately.

The continued viability of the "new injury" exception was questioned after the court in Kaminer v. Canas rejected the argument that increased symptoms of AIDS constituted a "new injury" because the disease was no less treatable when the suit was filed than when the misdiagnosis occurred. In the present case, the physician allegedly failed to diagnose treatable kidney cancer. The cancer metastasized constituting the "new injury" of untreatable cancer no longer confined to the kidney.

The Medical Association of Georgia filed an amicus curiae brief on behalf of physicians in Cleaveland v. Gannon, et al.

09.23.08 Rule 205 inquiry by MAG's General Counsel

Under Georgia’s workers’ compensation system, national insurers and third party administrators may not use “managed care” devices, such as precertification requirements inconsistent with Rule 205 or utilization review, in traditional panel claims. Have you experienced an insurer failing to controvert within 21 days after submission of a form WC-205 to only later have that insurer deny payment on the basis of the treatment not being medically necessary? If so, please contact Donald J. Palmisano Jr., General Counsel, at dpalmisano@mag.org.

08.19.08 MAG becomes a plaintiff in Rivell, et al v. PHCS, et al

MAG is a plaintiff in a class action filed against Private Health Care Systems, Inc., (PHCS) and the Capella Group, Inc., (Capella) doing business as Care Entree. The class action is brought against PHCS and Capella on behalf of physicians whose agreements to participate in provider networks and charge patients discounted fees to be paid by third party payers were unlawfully sold, rented or leased by PHCS to Capella and other discount card companies that have not contracted to pay for such medical services.

MAG alleges the defendants have been wrongfully enriched by this practice at the expense and to the detriment of William Andrew Rivell, M.D., Alan B. Whitehouse, M.D., and other physicians similarly situated throughout Georgia. The physicians neither gave their consent nor authorized the transactions complained of herein.

If you should have any questions, please do not hesitate to call MAG General Counsel Donald J. Palmisano Jr., at dpalmisano@mag.org or 678.303.9271.

Read court order
Read second amended class action complaint

08.15.08 District court rules state cannot cut hours of skilled nursing care

In Moore v. Medows, the district court held that the State had no discretion under the Medicaid Act to cut the number of hours of skilled private duty nursing care deemed necessary by the child’s physician. The district court found the State may not deny or reduce the hours of skilled nursing care that is deemed medically necessary based upon the cost or lack of a secondary caregiver.

Read court's opinion for more details

08.08.08 Blue Cross Blue Shield compliance dispute resolution to benefit 12,000 physicians

The Medical Association of Georgia (MAG) has resolved a compliance dispute with Blue Cross Blue Shield of Georgia, Inc. and Blue Cross Blue Shield Healthcare of Georgia, Inc. (subsidiaries of WellPoint, Inc.) that's related to a settlement agreement that will benefit the 12,000 physicians who are under contract with Blue Cross Blue Shield in the state.

MAG used the compliance dispute process that was included in the settlement agreement that was the result of a managed care lawsuit settled in 2005 that involved WellPoint Inc. That settlement included generally-accepted medical standards, increased transparency in paying claims, streamlined communications between Blue Cross Blue Shield and its contract physicians, and a less complex claims payment system.

Read press release
Read alert to members

07.28.08 DCH has new reporting requirements for facilities operating under an exemption or letter of nonreviewability

Beginning July 1, 2008, all facilities operating under a previously granted exemption or letter of nonreviewability as provided at O.C.G.A. 31-6-40(c)(2)(A) will be required to provide notice to the department by August 15, 2008, of the following:

Name
Ownership
Location
Single Specialty
Services provided in the exempt facility

For purposes of complying with this requirement, notice may be sent through the mail, by facsimile, or e-mail.

Read full notice

07.15.08 Georgia Supreme Court agrees with MAG in Medicaid reimbursement dispute

On July 11, the Georgia Supreme Court agreed with MAG that DCH’s interpretation of terms contained in a policy manual that is incorporated into provider contracts is not entitled to judicial deference, but is subject to the rules of contract construction.

In Pruitt Corp. et al. v. Georgia Department of Community Health et al., a nursing facility and DCH disputed the meaning of a reimbursement formula-related term contained in the policy manual. The Georgia Court of Appeals held DCH’s interpretation was supported by evidence and reasonable and therefore entitled to judicial deference. In vacating the decision of the Court of Appeals, the Supreme Court determined that because the policy manual was incorporated into a contract, its terms are governed by the rules of contract construction. Additionally, because the policy manual is not subject to the same scrutiny as a statute during the legislative process or a rule during the adoption process, DCH’s interpretation was not entitled to the same deference.

Read the Supreme Court decision
Read MAG's amicus brief

07.09.08 MAG fights to prevent expansion of physician liability

On June 17, 2008, MAG urged the Supreme Court of Georgia to accept an appeal from, and reverse the decision of, the Georgia Court of Appeals. The rule announced by the Court of Appeals in Lyon v. Schramm created an exception to the statute of repose in “failure to warn” cases under which a physician committed a new negligent act or omission each time the physician failed to warn a patient of risks associated with previous treatment by a different physician.

In Schramm v. Lyon, the plaintiff filed a medical malpractice suit arising from overwhelming post splenectomy infection (OPSI) 22 years after having her spleen removed. Plaintiff alleged none of the physicians that treated her within the previous five years warned her of the risk of OPSI or recommended treatment against OPSI. Although the trial court dismissed the claims against three physicians that began treating plaintiff more than five years before the suit was filed, the Court of Appeals reversed, finding each time the physicians failed to warn constituted a new negligent act or omission.

In its amicus curiae brief, MAG urged the Supreme Court to hear the appeal and reverse the Court of Appeals decision on the basis failure to warn cases should be treated the same as misdiagnosis cases because both require the physician to exercise the same professional judgment, the Court of Appeals decision is contrary to the intent of the legislature in enacting the statute of repose, and the Court of Appeals decision is akin to adopting the “continuous treatment doctrine” previously rejected by the Supreme Court.

Read MAG's Amicus Brief

07.06.08 MAG General Counsel flags assignment of benefits payment issue

The MAG Office of the General Counsel says that physicians are reporting that insurance companies are not recognizing valid patient assignment-of-benefits forms. Physicians are consequently having to go through the additional step of recouping the payments that the insurance companies send directly to the patients from the patients.

According to MAG General Counsel Donald Palmisano Jr., this is a common tactic that insurance companies use as leverage to force physicians to become network providers. However, he adds, state law (O.C.G.A. 33-24-54) requires that insurance companies recognize a valid assignment of benefits signed by the patient for a non-participating physician.

Physicians who have had an insurance company refuse to recognize a valid assignment of benefits signed by the patient or have had an insurance company pay Medicare rates instead the pre-approved network payments should contact Palmisano at 678.0303.9271 or dpalmisano@mag.org.

06.25.08 MAG Defends Physicians' Right to Equal Access to Evidence

On June 16, 2008 the Medical Association of Georgia (MAG) filed an amicus curiae brief in the Georgia Supreme Court urging the court to uphold a Court of Appeals decision holding the HIPAA privacy rule does not prohibit ex parte communications between a medical malpractice defendant and the patient’s prior treating physicians as permitted under state law.

In Moreland v. Austin, the trial court ruled HIPAA prohibited such communications. The Georgia Court of Appeals, finding Georgia law had more stringent privacy protections than HIPAA, reversed the trial court. In its brief, MAG argues HIPAA does not preempt such ex parte communications as permitted under Georgia law and it is unjust to use HIPAA to disrupt the fair and reasonable discovery procedures allowed under Georgia law.

The case is currently pending before the Georgia Supreme Court.

Read MAG's Amicus Brief

06.10.08 MAG Attacks Plaintiff-Friendly, Judicially-Created Exception to Georgia Law in Medical Malpractice Cases

MAG has filed an amicus curiae brief with the Georgia Supreme Court urging the Court to overturn a judicially-created exception to the statute of limitations in medical malpractice cases.

In Amu v. Barnes, Plaintiff alleges Dr. Amu negligently misdiagnosed colon cancer as hemorrhoids in 2000. Plaintiff was subsequently diagnosed in 2004 with stage IV colon cancer and filed suit against Dr. Amu. The jury returned a plaintiff’s verdict and Dr. Amu appealed to the Georgia Court of Appeals. On appeal, Dr. Amu argued, among other things, the suit was time barred under Georgia’s two-year statute of limitations in medical malpractice cases. Applying a judicially-created exception to the statute of limitations in medical malpractice cases, known as the subsequent injury rule, the Court affirmed the jury’s verdict reasoning that because the statute of limitations runs from the date of injury and the metastasis of plaintiff’s cancer constituted a new injury, the suit was not time barred by the statute of limitations.

On appeal to the Georgia Supreme Court, MAG argues application of the subsequent injury rule in cancer cases is, in effect, an application of the discovery rule, under which the statute of limitation runs from the date an injury is discovered, and has been rejected in Georgia. MAG also argues the subsequent injury rule defeats the purpose of the statute of limitations, divests the legislature of its control over public policy, misconstrues how physicians diagnose disease, and misconstrues the disease process itself. As such, the Court should abandon the rule.

On June 2, the Supreme Court of Georgia affirmed the opinion of the Georgia Court of Appeals. The Georgia Supreme Court found the “new injury” exception is entirely consistent with the statutory requirement that the statute of limitation commences on the date of the injury, even if the patient is not aware of either the cause of the pain or the connection between the symptoms and the negligent act or omission. The court stated for the “new injury” exception to apply, there must be evidence that the plaintiff develop a new injury from the time period of the original misdiagnosis and the plaintiff must have been asymptomatic for a period of time following the original misdiagnosis. The Georgia Supreme Court’s opinion affirms the Whitaker line of cases decided nearly two decades ago as an exception to the statute of limitations.

Read MAG's Amicus Brief
Read Supreme Court's June 2 Ruling

05.15.08 MAG Supports Joint Commission's Efforts to Adopt MS 1.20

MAG commends the Joint Commission for its efforts in drafting and adopting the final version of MS 1.20. MS 1.20 helps ensure quality patient care by establishing a much needed standard for the elements of medical staff bylaws and by reinforcing the Joint Commission's existing standards requiring a self-governing medical staff.

Read Full Letter to the Joint Commission

05.14.08 RICO Lawsuit Compliance Dispute Leads CIGNA to Making Payment Policy Change for Developmental Screening

Effective May 1, 2008, CIGNA began paying physicians who bill CPT® 96110 (developmental screening) with an Evaluation and Management Code appended with a modifier 25. This welcome payment change came as a result of compliance disputes filed by several pediatricians under the Settlement Agreement reached between several state and county medical associations, including the Medical Association of Georgia and CIGNA in the RICO litigation. The physicians and medical societies argued that the Settlement Agreement required CIGNA to pay this code combination. Although the settlement has ended, CIGNA has agreed to make this payment change on a going forward basis.

Settlement agreements with Aetna, HealthNet, Humana, WellPoint, and the Blue Cross/Blue Shield Association remain in effect. For more information about your rights under the settlement agreements and/or if you believe that any of these companies is violating the settlement terms, please contact MAG General Counsel Donald Palmisano Jr. at 678.303.9271 or dpalmisano@mag.org or go to www.hmosettlements.com.

05.02.08 Judge Strikes Down Medical Malpractice Caps

Three years after the General Assembly enacted SB 3 to place a cap on non-economic damages in Georgia, a trial court judge has ruled the cap unconstitutional. MAG believes that the court’s arguments are flawed in several ways and will continue to manage this priority issue on behalf of its members so the people who live in Georgia have access to quality health care and increased peace of mind.

Read Statement from President Jack M. Chapman Jr., M.D.
Read Fulton Co. Superior Court Ruling

04.22.08 AMA to Begin Enforcement of BCBS Settlement

The AMA today issued a news release announcing that it will begin enforcement of the national Blue Cross and Blue Shield (BCBS) settlement as a signatory medical society to the agreement.

Read AMA Press Release

03.26.08 MAG Alert: Court Ruling Allows Workers' Compensation Board to Regulate Medical Copy Charges, Not Health Records Act

On March 24, the Georgia Court of Appeals made the following decision:

    "The Workers' Compensation Board regulates the medical photocopying charges in a Workers' Compensation proceeding rather than the Health Records Act (O.C.G.A. 31-33-3). This decision answers a question on whether the Health Records Act applies to workers' compensation cases."

Read the Court's Opinion

02.28.08 MAG Alert for CMS: Filing Site for 990-N Up and Running

The Internal Revenue Service (IRS) launched its electronic filing system this week for small tax-exempt organizations now required to file an annual return. In the past, small tax-exempt groups with annual gross receipts of $25,000 or less were not required to file a return. But a provision in the Pension Protection Act of 2006 stipulates that these organizations must start filing an electronic Form 990-N, or e-Postcard.

The form is brief, and asks for a few basic pieces of information, including: the organization’s employer ID number; its tax year, legal name and mailing address; other names used; web address; the name and address of a principal officer; and a statement confirming the organization’s annual gross receipts.

The e-Postcard must be filed electronically, both to facilitate timely filing and because the IRS intends the information to be accessible by the public.

“The information on the form, which will be available to the public, will help ensure that potential donors have the basic information they need about the organization,” said Lois Lerner, director of the IRS Exempt Organizations Division.

The due date for filing Form 990-N is the 15th day of the 5th month after the close of the tax year. For example, an organization whose most recent tax year ended on Dec. 31, 2007 must file a Form 990-N by May 15 of this year. The new law provides that organizations that fail to file Form 990-N for three consecutive years will lose their tax-exempt status.

01.22.08 MAG Spearheads National Advocacy in CON Lawsuit

The Medical Association of Georgia escalated the state’s ongoing Certificate of Need (CON) debate to the national forefront today with the filing of a motion to intervene in the Superior Court of Dougherty County. The intervention comes in response to a suit filed in December by the Georgia Alliance of Community Hospitals which challenges the Department of Community Health Board vote to make general surgery a single specialty. In an effort to fight this troublesome development, MAG has created the Legal Defense Fund to support our involvement in this legal battle. Please read the President's letter to Members for details.

Read MAG President's Letter to Members
Read Executive Director's Message
View Full Press Release
View MAG's Motion to Intervene
View Georgia Alliance of Community Hospitals' Lawsuit

01.18.08 MAG Advocates for Member Awareness of Physician Tiering Programs in Georgia

As insurance companies roll out physician tiering programs in Georgia, it is important for you to be aware of the programs’ existence and to know that MAG is fighting to assure that these programs are based on meaningful data and do not disparage physicians or interfere with the physician-patient contract.

Click here for more information including:

  • MAG Executive Director's Letter to Members
  • MAG's Initial Letter to Aetna
  • New York Attorney General's Letter
  • MAG Issue Brief: Physician Tiering Programs in Georgia
  • Physician Tiering Guide Developed for the American Medical Association
  • Template of Letter to Distribute to Patients

2007

12.13.07 MAG Takes On BCBS In “Any Willing Provider” Dispute

MAG’s Office of the General Counsel has filed an amicus curiae brief in opposition to providing HMOs an exemption from Georgia’s “Any Willing Provider” law. Northeast Georgia Cancer Care filed suit against Blue Cross Blue Shield of Georgia alleging the insurance giant’s refusal to allow its medical oncologists to participate in BCBS’s HMO network violates Georgia’s “Any Willing Provider” law.

BCBS has requested the Court dismiss the physicians’ suit, in part, on the theory Georgia’s “Any Willing Provider” law does not apply to HMOs. In its brief, MAG argued exempting HMOs from Georgia’s “Any Willing Provider” law is contrary to the public policy of the State of Georgia and the intent of the legislature to grant patients the right to continuity of care and to choose their own physicians.

Download the Full Brief

12.12.07 Tiered and Narrow Physician Networks: How to Challenge your Profile or Placement

MAG's offices of the General Counsel and Third Party Payer Advocacy have teamed up with the AMA to disseminate a flyer giving tips on ways to challenge and improve your profile or placement.

Download Tiered Network Flyer

12.05.07 MAG Legal Victory Protects Physicians:
State’s High Court Agrees With MAG, Upholds the Constitutionality of Georgia’s Statute Of Repose

Fending off yet another attempt by plaintiffs’ lawyers to reduce physicians’ legal protections, MAG persuaded the Supreme Court of Georgia, in a unanimous opinion, to reject a constitutional challenge to Georgia’s statute of repose.

Under Georgia’s statute of repose, a lawsuit for medical malpractice may not be brought more than five years after the date on which the negligent act occurred. In Nichols v. Gross, et al., the plaintiff filed a medical malpractice lawsuit almost seven years after the date of the alleged negligent act. Finding the suit was barred by the statute of repose, the trial court granted the physician summary judgment. On appeal, the plaintiff argued Georgia’s statute of repose violates the equal protection provisions of the United States and Georgia constitutions because it treated medical malpractice claims differently than other claims for professional malpractice.

Citing precedent and noting the differences between the practice of medicine and other professions, the Court determined the purpose of the statute of repose was rational and therefore the statute was constitutional.

12.03.07 BCBS Settlement Party Information for Georgia on AMA's Web site

The AMA has gathered information on the Blue Cross Blue Shield Parties' Settlement and posted it on their Web site at www.ama-assn.org/go/settlements. In an attempt to simplify the complex BCBS parties settlement, the AMA has created an interactive map through which physicians and their staff can view state-specific information, including which health insurers have or have not settled under this settlement.

View the Map and Information for Georgia
View Party-Specific Provisions

11.07.07 MAG Requesting Physician Reports on Health Plan Tiering:
Aetna Aexcel Designation; United Health Premium and Cigna Care

During recent months, many physicians have received letters from Aetna and United Health Care informing them whether they passed certain quality of care and efficiency measures for special designation under new or revised “Tiering” programs. These reports are often placed on the health plans’ Web site for viewing by patients and, reportedly, for health plans to move patients to higher quality and more efficient physicians.

MAG has received several reports from physicians about inaccuracies in these reports, including the addition of hospital charges in the physician profile. MAG is concerned about the misrepresentation of physician’s profiles based on inaccurate data and would like to hear from you. If you have noticed improper or incorrect data included, please send MAG copies of your designation report and background data. The information can be e-mailed, faxed or sent to:

Donald Palmisano, General Counsel, dpalmisano@mag.org
Cam Grayson, Director, Third Party Payer Advocacy, cgrayson@mag.org
Medical Association of Georgia
1849 The Exchange
Suite 200
Atlanta, GA 30339
Fax: 678.303.3732

If you have any questions, please contact Donald or Cam at 1.800.282.0224 or 678.303.9290.

10.29.07 Supreme Court Rules in Favor of Physicians; MAG Filed Amicus Brief in Case

Protecting the rights of physicians, MAG filed an Amicus Brief before the Georgia Supreme Court in a case in which the Georgia Court of Appeals extended the new injury doctrine. The Georgia Supreme Court reversed the Georgia Court of Appeals and found in favor of the physicians stating the statute of limitations begins at the time of the original misdiagnosis. The court found that a continued misdiagnosis causing more severe symptoms cannot be considered a new negligent act.

Read Georgia Supreme Court's Opinion

09.14.07 STARK Legal Alert from Powell Goldstein LLP and MAG's Office of the General Counsel

On August 27, 2007, the Centers for Medicare and Medicaid Services (CMS) released the third phase of rulemaking to amend the regulations implementing the Ethics in Patient Referrals Act, commonly known as “Stark.” This Phase III Final Rule (Phase III) was published on September 5, 2007 and will become effective 90 days later, on December 5, 2007. In publishing Phase III, CMS both responds to public comments on Phase II and addresses the entire regulatory scheme.

Although CMS states that Phase III “addresses many of the industry’s primary concerns,” Phase III is not the last we will experience in the world of Stark change. CMS states in Phase III that further rulemaking will be undertaken in several areas discussed in this rulemaking. Recent agency proposals include significant provisions affecting physician ownership of hospitals and various terms of Stark compensation exceptions. CMS has yet to address (as promised in Stark II) the applicability of Stark to Medicaid. Other pending proposals address reassignment of Medicare payments and the structuring of independent diagnostic laboratory testing (“IDTF”) facilities, which likely will impact Stark. While further change is likely, this article will focus on the most important changes wrought through Phase III.

Read Legal Alert on Phase III

09.17.07 Physician Education on Advance Directives

As you make use of the new Advance Directives, it may be helpful for you to read some of the most current materials on the topic in order to properly advise your patient. If you are looking for some general overview education programs and some more specific to Georgia law, we recommend the following:

  • The AMA has produced several excellent papers and programs on Decisions About End-Of-Life care. AMA policy and JAMA articles on End-of-Life care can be found at the AMA Ethics Resource Center and under AMA's Virtual Mentor program on End-of-Life Care .
  • State-specific advance directives can be downloaded on the National Hospice and Palliative Care Organization site. The NHPCO provides examples of advance directives - living wills and power of health care attorney appointment forms - for each state on the Web.
  • In Georgia, Georgia Health Decisions, located at Georgia State Univeristy has produced patient and clinician materials which can be found at www.critical-conditions.org or by calling toll free at 877.633.2433. That office is presently updating their materials based on recent Georgia legislation and MAG is working with them in obtaining possible CME credits.

09.05.07 Joint Commission Releases Revision Pertaining to Hospital Safety Concerns

Physicians and medical staff members who have concerns about the safety and quality of care at their hospital may report those concerns with the understanding that retaliatory disciplinary action is prohibited, according to explicit new rules announced by The Joint Commission. The accreditation participation requirement previously referred generally to hospital staff, although it has always been intended that physicians and medical staff be included as part of 'Good Faith Participation' in the accreditation policy.

The revised requirement, which will become effective January 1, 2008, means that accredited hospitals must educate staff and medical staff that any employee or any physician who has concerns about the safety or quality of care provided in the hospital may report these concerns to The Joint Commission. Hospitals also are expected to inform staff and medical staff that no disciplinary action will be taken if concerns are shared with The Joint Commission, and hospitals should demonstrate this commitment by refraining from taking action against employees or physicians who report their concerns to The Joint Commission.

Read The Joint Commission News Release

08.22.07MAG Victorious in Court Ruling Against UnitedHealthcare

The Superior Court of Fulton County determined that the physician fee schedules and provider contracts with UnitedHealthcare, as part of the State Health Benefits Plan (SHBP), were subject to the Open Records Act. This ruling was a result of MAG’s Office of the General Counsel filing an Open Records request with United and the Department of Community Health (DCH) in June 2006.

The State holds a contract with United for claims administration, care management and maintenance of a state and national provider network for the SHBP. United’s role as a SHBP third party administrator allows them to act as an agent and negotiate contracts for the state. United and DCH were ordered by the Court to turn over the physician fee schedules and provider contracts to MAG. United has filed a Notice of Appeal. As a result, MAG will not be able to obtain these documents until the appeal is heard.

Read the Superior Court Motion

08.06.07 Humana Distributes Settlement Payments to Georgia Physicians

Your MAG membership continues to work hard for you! As part of the MDL RICO settlements, Georgia physicians will begin receiving disbursements in the Humana and HealthNet settlements, because payments were mailed on August 6. The base share for the Humana settlement is $78.91 and the retired share is $84.21. These cash payments have been expedited by the strong involvement of MAG and several other state medical societies. Please call the Office of the General Counsel at 678.303.9271 with any questions.

07.27.07 BCBS Claims Now Being Accepted; Deadline Oct. 19

In May, Judge Moreno approved the Blue Cross Blue Shield settlement, in the Multidistrict Litigation RICO case. The national class action lawsuit was settled in late April with over 90 percent of all Blue Cross and Blue Shield (BCBS) Plans in the country and the Blue Cross and Blue Shield (BCBS) Association. The deadline for submitted claims is October 19, 2007. For questions about this or any of the MDL RICO settlements, please contact MAG’s Office of the General Counsel at 678.303.9271 or e-mail Donald Palmisano.

MAG was the first state medical society to bring a class action lawsuit against the insurance industry alleging improper payment practices. MAG’s lawsuit and subsequent lawsuits brought by other state medical societies were combined in a massive multi-state litigation alleging a conspiracy to defraud physicians out of payments by inappropriately bundling and downcoding claims.

The practice changes the Blues plans have agreed to include commitments to do the following:

  • Implement a definition of medical necessity that ensures that patients are entitled to receive medically necessary care as determined by a physician exercising clinically prudent judgment in accordance with generally accepted standards of medical practice;
  • Use clinical guidelines that are based on credible scientific evidence published in peer-reviewed medical literature (taking into account Physician Specialty Society recommendations, the views of physicians practicing in the relevant clinical areas, and other relevant factors) when making medical necessity determinations;
  • Provide physicians with access to an independent medical necessity external review process;
  • Establish an independent external review board for resolving disputes with physicians concerning many common billing disputes;
  • Pay for the cost of recommended vaccines and injectibles and for the administration of such vaccines and injectibles;
  • Not automatically reduce the intensity coding of evaluation and management codes billed for covered services;
  • Ensure the payment of valid clean claims within 15 days for electronically-submitted claims and 30 days for paper claims;
  • Provide fee schedules to physicians;
  • Establish a compliance dispute mechanism to address disputes regarding the Blues’ compliance with the agreement;
  • Establish and/or maintain physician advisory committees; and
  • Provide 90 days’ notice of changes in practices and policies and annual changes to fee schedules.

07.18.07 MAG Reminds Physicians of Proper Record Disposal Requirements

The Governor’s Office of Consumer Affairs (OCA) has been notified of several incidences of businesses discarding medical records containing personal patient information without first obscuring or obliterating the confidential information contained therein. OCA wishes to remind those in the medical industry about Georgia’s Business Administration Act (BAA), which regulates the proper disposal of customer records that contain sensitive information about a customer’s medical condition or certain financial data relating to a customer’s account or transaction with a business. According to the BAA, once such records are no longer needed, a business must do one of the following before discarding them:

  • Shred the record;
  • Erase the personal information contained in the record;
  • Modify the record so that the personal information is unreadable; or
  • Take actions that will ensure that no unauthorized person will have access to the personal information contained in the records.

Read Governor's OCA Press Release

07.01.07 MAG's Legislative Priority on Advanced Directives Takes Effect

In 2006, MAG identified updating Georgia’s law on advanced directives as a top legislative priority. About one-fourth of Medicare costs are for the last year of life, unchanged from 20 years ago. These high costs reflect care for multiple severe illnesses typically present near death. Doing a better job of managing end-of-life care is a crucial component of real health care reform. That is why MAG spearheaded the effort, which successfully culminated in passage of a modern advanced directives statute.

Following two years of preparation, Georgia’s new law regarding advanced directives took effect July 1, 2007. Under the new law, there is one statutory form that can be utilized to execute a living will, durable power of attorney for health care and/or a guardianship. A patient may choose to execute just one or all three of the aforementioned provisions. The form contains simple, easy-to-understand instructions.

Download New Advanced Directive Form

06.06.07 MAG files Amicus Curiae Brief in case concerning Georgia’s Statute of Repose

MAG’s Office of the General Counsel filed an Amicus Curiae Brief with the Georgia Supreme Court in support of the Court’s well-established position that the Statute of Repose in medical malpractice claims is constitutional and does not violate the principles of equal protection.

View Amicus Curiae Brief

06.01.07 CIGNA Accepting Previously Denied CAD Mammography Claims

Due to the efforts of MAG and other medical societies involved with the Physicians Advocacy Institute (PAI), physicians may resubmit their previously denied CAD mammography claims to CIGNA. This opportunity to resubmit claims is another victory resulting from the settlements in the national MDL class action lawsuits against the nation’s for-profit health plans. MAG and PAI used the formal compliance dispute resolution process that was part of the CIGNA Settlement Agreement to force CIGNA to pay these claims. Eligible claims must:

  • Involve CPT® Codes 76082 or 76082 as add-on codes with 76090, 76091, or 76092 and
  • Have been submitted between Jan. 1, 2004, when the CAD Mammography add-on codes became effective, and Oct. 10, 2004, when CIGNA began paying the claims.

Resubmitting claims is simple. Complete the spreadsheet that is available on below. It is also on www.hmosettlements.com or www.CIGNA.com. Completed spreadsheets and questions should be E-mailed to CADMammoRebsubmit@CIGNA.com. Physicians without access to E-mail can send their completed spreadsheets to:

CIGNA R&R Department P&C
P.O. Box 9018
Sherman, TX 75091-9018

Claims can be resubmitted beginning June 1, 2007 through Dec. 1, 2007.

For questions or if you believe that Aetna, CIGNA, HealthNet, Humana or Anthem/Wellpoint are violating the terms of their settlement agreements, please contact MAG’s Office of the General Counsel at 678.303.9271 or dpalmisano@mag.org.

Download CIGNA Spreadsheet

05.11.07 On behalf of physicians, the Medical Association of Georgia files Amicus Curiae Brief to the Georgia Supreme Court on the Court of Appeals’ decision to extend the “new injury” doctrine.

MAG’s Office of the General Counsel filed an Amicus Curiae Brief with the Georgia Supreme Court requesting that they reverse the Georgia Court of Appeals decision holding that if a plaintiff in a misdiagnosis case presents with additional or significantly increased symptoms of the same misdiagnosed disease, the medical malpractice statute of limitation and statute of repose do not bar the plaintiff’s claims.

MAG, along with the Georgia Hospital Association, are justifiably concerned with issues related to a physician’s liability and believe the Court of Appeals’ decision impermissibly extends the “new injury” doctrine beyond actual new injuries to those injuries, which are merely symptoms of the same underlying disease.

View Amicus Curiae Brief

05.02.07 Medical Association of Georgia files Amicus Curiae Brief

MAG’s Office of the General Counsel filed an Amicus Curiae Brief with the Georgia Supreme Court in support of the Old Capitol Inn Nursing Home against the Georgia Department of Community Health. The case centers on DCH’s “policies and procedures” manuals, which set forth terms and conditions of reimbursement for health care providers who contract with Medicaid. The Court of Appeals has ruled that policies and procedures manuals are to be interpreted in the same manner as regulations, rather than as contracts. The Court of Appeals ruling is a radical departure from judicial precedent that applies contract principles to reimbursement disputes between health care providers and DCH.

MAG, along with the Georgia Hospital Association, Georgia Health Care Association, Georgia Pharmacy Association, Georgia Dental Association and Georgia Psychological Association, believes this decision treats providers who voluntarily participate in the Medicaid program unfairly as it gives a heightened standard of deference to DCH in interpreting its own rules and regulations in matters of reimbursement.

View Amicus Curiae Brief

02.01.07 Timely Completion of Certificates of Death

The Medical Association of Georgia would like to take the opportunity to remind our members of the importance of timely completing certificates of death. Except in limited circumstances, only a physician authorized to practice medicine is permitted to complete death certificates.

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01.11.07 Medical Staff Bylaws

The "Medical Staff Bylaws-'Basics in Georgia Law'" was produced by the Office of the General Counsel. This document is presented in a question/answer format in an attempt to answer the most commonly asked questions regarding medical staff bylaws. It is an educational and informational tool which is simply illustrative of the issues facing medical staffs. Please note issues such as peer review are not discussed in detail. This document does not constitute legal advice and you are encouraged to consult with an independent medical staff attorney when confronted with issues regarding medical staff bylaws.

In the very near future, the MAG Model Medical Staff Bylaws will be complete. Libby Snelson, the attorney preparing the document, is completing the second draft of the bylaws. When this document is complete, you will be notified.

View PDF

2006

08.01.06 MAG files Amicus Curiae brief

The Medical Association of Georgia has filed an Amicus Curiae brief in the Georgia Supreme Court case of Satilla Health Services dba Satilla Regional Medical Center v. Willie Bell, M.D. and Joel Ferree, M.D.

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05.26.06 Modifier –25 Dispute with Aetna Resolved

As part of MAG’s landmark settlement with Aetna in the MDL RICO litigation, Aetna was required to pay physicians for both a procedure code and an evaluation and management code, appended with a modifier –25 when billed together.

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05.26.06 Final order in the compliance dispute

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05.26.06 Codes to be reprocessed when billed with an E&M code appended with a -25 modifier

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04.06 BCBSGA RICO Contract Addendum Received

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04.06 Aetna Agrees to E&M Payments with Modifiers

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04.06 What to Do When Submitting Your Aetna Claims

Submit impacted claims with a cover letter that includes a subject line that reads "Rework Request for E&M Codes" or call the Aetna Provider Service Center to verbally request rework of the impacted claims.

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04.17.06 MAG Instrumental in Settling Dispute Over “Add-On Codes”

MAG and several other state medical societies have reached an agreement with Aetna in regards to the resubmission of claims, after their failure to pay for certain add-on codes as required by the lawsuit settlement in May 2003.

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04.17.06 Aetna Add On Code Claims Payment

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*Some of the documents listed here are available in PDF format and can be viewed using Adobe Acrobat Reader®. This free software can be downloaded from the Adobe® site, http://www.adobe.com.