January 20, 2016

In Remembering MLK, A Twist on Discrimination

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EDITOR’S NOTE: The following is a transcript of David Glaser’s segment on Monitor Mondays, Jan. 18 broadcast, in recognition of MLK Day.

The Martin Luther King Memorial in Washington, D.C. is moving for many reasons, one being that it includes several powerful quotes from Dr. King. 

Perhaps my favorite such quote is "injustice anywhere is a threat to justice everywhere.”

“We are caught in an inescapable network of mutuality, tied in a single garment of destiny,” King said. “Whatever affects one directly, affects all indirectly." 
 

You cannot overstate the importance of standing up when you see others being treated unfairly. That statement should serve as the foundation of all compliance. When you see problematic billing, speak out. When you see auditors incorrectly and overzealously denying claims, fight back. 

There is another quote that doesn’t appear on the wall, but that fits well with this e-newsletter: “The function of education is to teach one to think intensively and to think critically. Intelligence plus character: that is the goal of true education.” 

Obviously, Dr. King wasn’t thinking about healthcare when he said those words, but one of the goals of this publication is to encourage you to think critically about compliance so you can challenge those who make baseless assertions that something is (or is not) legal.

So let’s think critically about discrimination. Martin Luther King worked to fight discrimination based on race, religion, and other insidious reasons. 

But Dr. King wouldn’t have asserted that all discrimination is bad. Some discrimination is essential. For example, we should discriminate against bad ideas. In the context of healthcare delivery, you may legally choose to (and in some cases, be required to) treat patients differently. For example, if you have a surgery center and an insurer refuses to credential it, you may send one patient to the center but tell another that they will have to have their surgery in the hospital. Is that a form of “discrimination?” Technically, perhaps. But it’s legal. In fact, it is contractually required. 

In other cases, discrimination may not be required, but it’s allowed. A physician generally may opt to close his or her practice to patients, but make exceptions for certain patients. As long as the exceptions are not made on an illegal basis such as race or gender and don’t violate any contract, they are permissible. (Some contracts require a physician to accept an insurer’s patients under the same terms as other patients. In that case, the physician can’t selectively stop seeing that insurer’s patients, but the physician could generally refuse to see all new patients, and if the exceptions were not payor-specific, it would be difficult for the insurer to complain.)  

If you offer a service that Medicare does not cover, you may opt to provide the service to private-payment patients while refusing to do so for Medicare patients. The bottom line is that in a highly regulated environment, consistency can be an impossibility. Some “discrimination” will be inevitable. 

As long as you are careful to make sure that any discrimination is based on a permissible basis, you can comply with the law – and with the philosophy of MLK. 

 

About the Author

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

Contact the Author 

dglaser@fredlaw.com 

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editor@racmonitor.com 

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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