The Florida Bar

Florida Bar Journal

Health Insurance and Other Health-Related Expenses in Family Law: An Overview

Family Law

In March 1984, The Florida Bar Journal published its first issue devoted to health law issues. The comments in the introduction referred to the vast size of the health care industry and its prevalence in Florida. Florida has a large elderly population, and most health care is delivered in the last years of life.

Other comments were that Congress and state legislatures were struggling to address issues emerging from the dynamic health care industry, including reconciliation of cost control with delivery of quality of care. The 1984 introduction mentioned that health law attorneys also were struggling to respond to rapidly changing industry conditions and to digest the pervasive and ever changing legislative and regulatory requirements.

The more things change, the more they stay the same. Today, legislative and regulatory activity is prolific. Industry change and development are profound. The authors in this issue of the Bar Journal have endeavored to address some of the prevalent, current issues which confront health care lawyers in this last decade of the 20th century. The breadth of the topics reflects the diversity of the health care specialty. We congratulate the authors who have provided an excellent survey of complex issues, despite stringent page limitations.

In this regard, some consider provider consolidation to be the prevalent movement in the health care industry today. Stuart Lockman and Tracy Silverman discuss some of the creative methodologies health care attorneys have devised to satisfy client needs in this area in “Formation of Hybrid-Type Organizations: Virtual Mergers of Healthcare Systems.” This article acknowledges that “hybrid type organizations” (HTOs) such as “joint operating agreements” are complex and challenging to structure. It discusses ways to accomplish appropriate structures and mentions the benefits such HTOs offer health care systems as attractive alternatives to more traditional forms of consolidation.

Steve Siegel writes about affiliations among individual providers in “Consolidation of Physicians and Other Noninstitutional Providers.” Among other issues,
Attorney Siegel discusses motivations for consolidation and the providers’ concerns (such as loss of autonomy) and ways to resolve the concerns. His article surveys the forms of consolidation in the affiliation continuum, including independent practice associations, management services organizations, and group practices.

In their article “Managed Care 101,” Dan Burton and Michael Popok write about the payment methodology which commentators predict will soon be the dominant if not the exclusive health care payment methodology. Attorneys Burton and Popok discuss different methods of payment in the managed care arena such as capitation and discounted fee for service. The authors also survey different types of managed care organizations, address utilization review and credentialing issues, and mention ERISA preemption developments. After considering liability issues, the article concludes with a list of “hot” topics in managed care arenas.

Most health care lawyers acknowledge that governmental enforcement will be a focus in this practice area as we move into the 21st century. Enforcement efforts have escalated recently, at both the federal and state levels. The government is recouping more dollars each year and increased funding has allowed expansion of enforcement personnel.

In this regard, Adelaide Few and Jay Trezevant have contributed an article about the federal perspective, entitled “Fighting the Battle Against Health Care Fraud.” This article surveys the various statutes federal attorneys may use in criminal and civil enforcement efforts and discusses parallel proceedings. In addition to other topics, the authors address double jeopardy and fraud investigations and investigators.

From her perspective as assistant director of the Florida Agency for Health Care Administration, Elizabeth Dudek has written “Medicaid Fraud and Abuse in Florida: A New Approach to an Old Problem.” Ms. Dudek sets forth an explanation of historic practice and describes motivation and resources available for the current investigative efforts. Ms. Dudek also explains the negative effect of fraud and abuse on both the taxpayer and on Medicaid beneficiaries.

James Howell, MD, MPH, recently assumed the position of secretary of the newly established Florida Department of Health (DOH). In “Practitioner Profiling,” Dr. Howell describes how the DOH intends to implement 1997 legislation. The new law provides for increased consumer access to information about physicians, osteopathic physicians, podiatrists, and chiropractors. Dr. Howell describes generally the creation and mission of the DOH. In particular, he describes the professional profile information that the DOH will publish on and after July 1, 1999.

Dr. Howell also mentions that the medical boards exist to protect the public’s health. In another article in this issue, Allen Grossman and Andrew Rock have written about recent statements the Board of Medicine (BOM) has issued. Their article is entitled “Fee Splitting and the Management of Medical Practices: A History of Board of Medicine Declaratory Statements.”

This article focuses on the controversial BOM final order filed November 17, 1997, in response to Dr. Bakarania’s request for a declaratory statement. There, the BOM determined that the Florida prohibitions on fee splitting prohibit a physician practice management company (PPM) from charging a management fee based on a percent of revenues derived, at least in part, from referrals the PPM helped to generate. The BOM commented that a flat fee would be appropriate. Attorneys Grossman and Rock discuss the possible impact of the Bakarania order if it is upheld on appeal. They also discuss some of the precedents upon which the BOM based its recent decision.

One of the issues which has been a focal point of regulatory and legislative debate is the provision of health care to the medically indigent. In “Florida’s Hidden Problem,” Attorney Bill Bell discusses ways to resolve the very troublesome issue of delivery of health care services to the uninsured patient, and he gives a current and historical explanation of the problem and mentions some solutions that the Florida Legislature is examining.

No health law issue would be complete without a discussion of individual rights. In this regard, Jim Kennedy has submitted “Patient or Consumer? The Evolving Role of the Purchaser of Health Care Services.” He mentions the expanded role of the patient/consumer as background explanation and surveys “patchwork” legislation enacted in Florida in 1997. Among other things, the purpose of this legislation was to increase the patient’s access to health care in the managed care environment. Attorney Kennedy also surveys current federal initiatives, including action in process to protect patient privacy.

The breadth of the articles in this special issue is representative of the impact health law has on attorneys, both as professionals and as individuals. We hope that the wide range of topics will be helpful to the specialist and the generalist; and that the dissemination of current information will promote awareness and assist in the on-going debate about reform in the vast and essential health care industry.

Barbara R. Pankau received her B.A. degree ( cum laude ) from Tufts University in 1972 and her J.D. degree ( cum laude ) from the University of Florida School of Law in 1975. She is a board certified health law attorney and has over 20 years’ experience in health care law representing physicians, hospitals, and other health care providers. She is a member of The Florida Bar, the American and Hillsborough County bar associations, and the Florida Hospital Association, Healthcare Financial Management Association, and National Health Lawyers Association/American Academy of Healthcare Attorneys. Ms. Pankau is a partner with Shumaker, Loop & Kendrick, LLP, Tampa.

Family Law