Health law changes but remains the same

As part of our celebration of the 20th anniversary of Ocular Surgery News, our Section Editors look at how things have changed. This month, Alan Reider, JD, on health law.

Issue: April 1, 2002

ByAlan E. Reider, JD, MPH

Plus ça change, plus c‘est la même chose. For those of you who, like me, barely got through high school French, this expression translates roughly to mean, “The more things change, the more they remain the same.” As I prepared to write this article looking back at 20 years of health law, I realized that this axiom applies to many issues in ophthalmology. Each of the following examples illustrates the expression in some way.

The demise of the PPMC

In preparation for this 20-year review celebrating the 20th anniversary of Ocular Surgery News, I looked back at a review I had written for this publication 5 years ago. The last sentence of that article read as follows:

“Today, with the constant reduction in fee-for-service reimbursement and the significant impact of managed care, many practices are looking to the PPMC as a solution to provide more cost-efficient operational expertise as well as access to managed care contracts.”

As many physicians and investors are painfully aware, physician practice management companies (PPMCs) have gone the way of the dinosaur, only with a significantly shorter half-life. What seemed like a great idea at the time turned into a financial and operational mistake.

For the past few years, ophthalmologists have spent their time and money unwinding their relationships with PPMCs and returning to the practices that they once controlled.

Shifting perspectives

In the past 5 years the practice of refractive surgery has undergone significant evolution. In order to offset ever-decreasing reimbursements for cataract surgery, many ophthalmic surgeons shifted to refractive surgery, where the effect of constant reductions in Medicare reimbursement would no longer be an issue. The free market, however, attracted discounters and national corporations that could offer more efficient services and more sophisticated marketing. These forces pushed prices to levels at which cataract surgery under Medicare was once again looking good.

Indeed, many surgeons have now come back to the provision of cataract surgery as the mainstay for their practices.

Malpractice litigation

Years ago, the only litigation faced by physicians was for malpractice. Beginning about 20 years ago, however, the federal government began to be concerned about its spending on health care. Throughout the 1990s, federal enforcement increasingly became a threat to physician practices, particularly to ophthalmology.

While the federal government remains an ever-present threat to investigate and even challenge the practices of ophthalmologists trying to navigate the uncertain waters of federal regulations, malpractice litigation has suddenly become a threat again, particularly as a result of aggressive marketing of refractive surgery and unrealistic expectations from patients.

Intra-ophthalmic disagreement

One of the first cases in which I represented an ophthalmologist involved defense of an allegation that my client had violated the American Academy of Ophthalmology’s code of ethics. Needless to say, the allegation was frivolous and my client was completely exonerated.

I soon learned that this situation was common, and that many of ophthalmology’s battles are internal. Philosophical differences about a variety of issues seem to cast ophthalmologists into two or more camps. Perhaps the most significant of these issues is that surrounding comanagement, an issue that began in 1986 when the Medicare program expanded the definition of physician to include optometrists.

In 2002, it appears that comanagement is once again a focal point for disagreement.

Constancy and change

From the legal perspective, the issues presented in ophthalmology are a constant challenge. There are changes in federal laws and state laws, and new regulations are written. Concerns of ophthalmic practices go from marketing to operations to enforcement and compliance. There is constant change, and only one constant: The work is fascinating, as are the clients.

What the future will hold is anyone’s guess. I never would have expected the developments I have seen over the past 20 years.

The more things change, the more they stay the same.

For Your Information:

Alan E. Reider, JD, can be reached at Arent Fox Kintner Plotkin & Kahn, PLLC, 1050 Connecticut Ave. NW, Washington, DC 20036; (202) 857-6462; fax: (202) 857-6395; e-mail: reidera@arentfox.com.