Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
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Pierce & Mandell Participated in Yankee Dental Congress 2016

Tuesday, February 02, 2016

For the seventh consecutive year, Pierce & Mandell, P.C. was proud to be part of the Yankee Dental Congress, held January 28th through January 30th at the Boston Convention & Exhibition Center.

Yankee Dental Congress is a trade show and convention that draws thousands of dental professionals each year.  Pierce & Mandell attorneys William M. Mandell, Michael C. Fee, Hannah Schindler Spinelli and Karen Rabinovici met with dental professionals who were interested in legal advice on all dental law and ethics, including dental practice transitions and sales, associate buy-ins, leases, employment and service agreements, and staff employment issues.

Click here for more information on Yankee Dental Congress. For more information on Dental Law contact Pierce & Mandell, P.C.

Bill Mandell Will be a Featured Panelist at the Boston Bar Association Seminar

Thursday, December 24, 2015

Health Law Practice leader, Bill Mandell, will be a featured panelist on Thursday, January 7, 2016 at the Boston Bar Association’s seminar entitled “Accountable Care Organizations: How They Work, Do They Work?”

More Substance Abuse Treatment Beds Needed to Take on Opioid Crisis - Boston, MA

Wednesday, November 18, 2015

By Thomas Kenney and Brandon Saunders

If the image of the crumbling state hospital in the Leonardo DiCaprio film Shutter Island seems eerily familiar, it may be because the building used in the film was the former Medfield State Hospital, itself shuttered along with most state hospitals as the Commonwealth moved away from institutional care in favor of a community-based treatment model several decades ago.

While that image might spark a debate about the wisdom of deinstitutionalization, it also may provoke dialogue about how these facilities could be restored to productive use as addiction treatment centers to grapple with a rising opioid crisis that will likely get worse before it gets better.

Much of the current debate over a comprehensive legislative proposal by Governor Charlie Baker focuses on limiting prescriptions physicians may write for these highly addictive drugs, and a measure that emergency room medical staff be permitted (or even required) to place a 72-hour hold on an addict who appears in the ER if the treating physician judges that person to be a danger to him or herself or others.

What hasn’t received as much attention is what occurs after that patient is released – whether it is the same day they appeared in the ER or 72 hours later. What happens next?

There is much that should be done on the front end of the addiction crisis, but little will change unless we also expand treatment beds in a system that is already beyond capacity.

What is also undermining the effort to get addicts into treatment, according to Health Policy Briefs, is a pattern of insurer denials of mental health and substance abuse treatment claims as compared to other medical claims, despite efforts by Congress to close that inequity.

The drug addiction crisis in Massachusetts goes beyond the 1,200 accidental opioid deaths reported in 2014. The state’s Bureau of Substance Abuse Services (BSAS) reports that 107,358 people in Massachusetts were admitted into an alcohol or drug substance abuse program in fiscal year 2014.

Under existing Massachusetts law, those suffering from severe drug or alcohol addiction can be involuntarily committed to a treatment program for up to 90 days by a district court judge when all other efforts have failed.  The state’s highest court has recently ruled that hearings on these so-called “Section 35” commitments require a lower burden of proof, with hearsay evidence allowed, and a “clear and convincing” standard applied, as opposed to the stricter “beyond a reasonable doubt” standard utilized in criminal proceedings.

As attorneys who obtain and enforce involuntary commitments of those with alcohol and drug addictions, we see the impact of an acute shortage of treatment beds. We have successfully petitioned the courts for the involuntary commitment of those so afflicted with a drug or alcohol addiction that they are in danger of significant harm to themselves or others, only to see them leave the treatment facility within a few weeks and then reappear at hospital emergency rooms. Local emergency medical leaders are rightfully concerned that short stays in ERs after commitments may do more harm than good to access to care in many instances.

The state’s two facilities for treating addicts are chronically overcrowded and underfunded and can barely cope with alcohol addiction, never mind a rising narcotic and opioid addiction crisis. Those in treatment under an involuntary commitment are typically discharged after as little as 20 days in what amounts to a “spin dry” detox that has little chance of curing the addiction.

In our opinion, the Commonwealth’s plan to open new secure treatment facilities at Taunton State Hospital and Lemuel Shattuck Hospital in early 2016 will not be nearly enough to handle the overwhelming increase in the demand for substance abuse treatment beds.

One promising approach, developed by Beth Israel Deaconess in Plymouth and other key local stakeholders, is broader in scope. BID Plymouth CEO Peter Holden recently argued that this pandemic needs to be addressed with a community-based approach that includes local hospitals, police and the courts, in a coordinated approach and doesn’t just rely on hospitals treating the opioid crisis simply as a medical issue.

There is no panacea, and none of these well-meaning measures alone will change the arc of this crisis unless they are pursued together with longer-term substance treatment resources - inpatient beds, residential programs and specialty treatment centers to treat addicted patients and keep them long enough to provide meaningful treatment and a reasonable chance for recovery.

Thomas Kenney and Brandon Saunders are attorneys at Pierce & Mandell, P.C., Boston, who specialize in involuntary commitment proceedings.

Bill Mandell was Quoted in ED Legal Letter – Boston, MA

Wednesday, October 14, 2015

Bill Mandell was quoted in the attached article Are ED Policies Inflexible? featured in the publication ED Legal Letter (November 2015), discussing the importance of having good EMTALA policies for hospitals and their medical staffs. To see the article click here.

 

 

Quality Metrics and Physician Guidelines in Malpractice – Boston, MA

Tuesday, June 02, 2015

Bill Mandell, Head of Pierce & Mandell’s Health Law Practice, was recently quoted in an article appearing in the publication, ED Legal Letter, on the use of quality metrics and physician guidelines in malpractice suits. To see the article click here.

 

 

Direct Primary Care: A New Form of Primary Care Delivery for Massachusetts and the US?

Wednesday, May 27, 2015

One of the great pleasures we have as health lawyers is the opportunity to work with caring and innovative professionals who are constantly striving to re-engineer and improve our system of health care delivery for their patients.

One such new innovation taking root here in Massachusetts, and growing around the country, is direct primary care (DPC), a new model of primary care that offers affordable access to primary physicians.

DPC is rendered by primary care physicians who have opted to withdraw from all government programs and health insurance plans and alternatively charge a set amount for a defined scope of services, including both standard preventive and diagnostic services generally covered by health insurance, as well as additional personalized features associated with concierge type practices. Unlike concierge medicine, however, part of the established fee covers medically necessary services.

Patients who sign up with a DPC primary care physician will pay out of pocket, but it may well become a bargain if they are enrolled in an increasingly prevalent high-deductible health insurance plan.

A Boston public radio station, WBUR, just did a story focused on DPC in Massachusetts and interviewed our client, Jeff Gold, M.D. Dr. Gold shared his experiences so far as one of the first DPC practices operating in Massachusetts. The story can be found at http://commonhealth.wbur.org/2015/05/direct-primary-care-doctor-availability.

As Dr. Gold states in the story, Massachusetts should permit DPC practices to render services for a fixed fee without requiring regulation as a form of insurance. DPC is recognized under the federal Affordable Care Act as one of many options that should be available to consumers looking to secure more affordable access to health care. If DPC encourages medical students to choose internal and family medicine as their specialties and encourages 50 and 60 something primary care physicians to remain in active practice longer, it could actually help solve - and not exacerbate -- the current national primary care physician shortage.

Dr. Gold is a pioneer in a rapidly changing health care market, but he will hardly be the last physician who looked at the current system and decided he could do better for his patients while realizing his own aspirations of spending more time with patients and less time on insurance claims, pre-approvals and other paperwork.

William M. Mandell is the leader of Pierce & Mandell’s health law practice and can be reached at 617-720-2444 or bill@piercemandell.com.

Addiction Treatment Centers in Massachusetts Being Overrun By Epidemic

Tuesday, May 05, 2015

By Brandon Saunders

Governor Charlie Baker’s recent description of drug addiction in Massachusetts as a “public health emergency” is a welcome acknowledgement of a crisis that is swamping treatment centers, hospitals and the criminal justice system. The Governor is asking a task force he assembled to come back with strategies for dealing with addiction, treatment and recovery. Those recommendations are expected soon.

Governor Baker’s Secretary of Health and Human Services, Marylou Sudders, describes the problem in stark terms: "The costs associated with treating opioid addiction are great, however inaction or not labeling it for what it is - which is an epidemic - is actually much greater," Secretary Sudders said, as the Baker task force held public meetings to better understand the threat. "I recognize that there are no quick fixes and that we have lots to do."

The scale of this crisis is unprecedented. In 2014, there were more than 1,000 accidental opiod-based drug overdoses in Massachusetts, and 868 confirmed opiod overdoses the year before that. The state Department of Public Health’s Bureau of Substance Abuse Services (BSAS) reports that 107,358 people in Massachusetts were admitted into a substance abuse program in fiscal year 2014, 44 percent of whom reported prior mental health treatment, and nearly 60 percent self-reported heroin use. Those numbers reflect only those who were admitted to rehabilitation centers.  A large number of addicts refuse treatment.

These individuals repeatedly present themselves to the emergency department of acute care hospitals, putting an even greater strain on an already overrun system.  Once their acute conditions are treated, physicians at the facilities prescribe substance-abuse treatment, but often to no avail.  In my representation of a large, Boston-based acute care hospital, I have dealt with individuals who had presented themselves to the ER more than a hundred times in one year for substance-abuse related conditions.

Under existing Massachusetts law, those suffering from severe drug or alcohol addiction can be involuntarily committed to a treatment program for up to 90 days. The law that enables interested parties to commit someone to a treatment center (Chapter 123, Section 35) establishes a process by which family members, a physician, or legal guardian can petition a district court judge to order that commitment when all other efforts have failed.

The reality, however, is that Section 35 cannot cope with the rising tide of addiction, particularly for the uninsured or MassHealth recipients who are invariably sent to the Massachusetts Alcohol and Substance Abuse Center (MASAC) at the Bridgewater State Hospital for men, and MCI Framingham for women under an involuntary commitment. Both of those facilities are chronically overcrowded and underfunded, resulting in a “spin dry” detox that often sends them out on the streets after just 10 days without a real opportunity for a meaningful change or lasting sobriety that the 90-day commitment might have afforded. And then the cycle repeats itself.

Acute care hospitals are not the only system choking under the pressure of untreated addiction.  The systemic failure to successfully treat addiction is also swamping our criminal justice system. Those who continue down the path of addiction are often arrested and prosecuted for drug- or alcohol-related offenses, contributing to overcrowded conditions in state and county correction facilities when they might have been more successfully, and more appropriately, treated in a substance abuse or mental health facility.

Governor Baker is to be commended for taking this issue on, but it will take the leaders of our healthcare and legal systems, together with our elected officials, to get ahead of what is still a rising tide of needless deaths and hopeless addiction. We need to solve the ineffective and often wasteful ways we handle substance abuse and addictions in the Commonwealth and hopefully these most recent initiatives will move us in the right direction.

Brandon Saunders is an associate attorney at Pierce & Mandell LLC in Boston and specializes in guardianships, incapacitated adults and civil commitments

Medicare Physician Payment: A Brave New MACRA and MIPS World

Thursday, April 30, 2015

By William Mandell, Esq. and Karen Rabinovici, Esq.

The Medicare Access and CHIP Reauthorization Act of 2015 (“MACRA”)  --  passed this month in an unusual bipartisan effort  -- permanently repealed the Medicare Part B Sustained Growth Rate formula that would have resulted in a 21.2% cut to physician reimbursement scheduled to take effect on  April 1, 2015. It also notably establishes a new Medicare Part B performance driven payment system.

Under MACRA – which became effective on April 1, 2015 -- the Medicare Part B payment system for physicians has undergone perhaps its most dramatic change since the enactment of Medicare in 1965 or certainly since the adoption of the RBRVS fee system. MACRA gradually increases Medicare Part B rates over the next 4 ½ years and will then reward or penalize physicians financially based on measures of their performance. During this initial 4 ½  year period, Medicare participating doctors will receive a 0.5% increase each year as Medicare transitions away from a primarily fee-for-service system to one designed to reward physicians based on the quality of the care that they provide.  The first increase takes effect on July 1, 2015, followed by annual 0.5% increases going into effect each January 1 through 2018.  From January 2020 through 2025, there are no increases to rates but physician will be subject to performance based adjustments. For 2026 and beyond, physicians who are participating in alternative payments systems will be eligible for an annual update of 0.75% with all others receiving a 0.25% increase.

Between this year and 2018 the Physician Quality Reporting System, Meaningful Use, and the Value-Based Payment Modifier programs continue in their current form. Beginning in 2019, these program will end and elements of each will be included in a new Merit-based Incentive Payment System.

The MIPS Medicare Part B reimbursement system goes into effect in 2019 and is intended to move physician and other professional Part B reimbursement from a fee-for-service to a quality and performance driven system. Under MIPS physicians, and other practitioners such as physician assistants, nurse practitioners, clinical nurse specialists and certified registered nurse anesthetists, participating in the Medicare program will be evaluated via a composite score based on four factors: quality, resource use, meaningful use, and clinical practice improvement activities. Each doctor’s composite score will result in positive or negative adjustments to Medicare reimbursement based on the doctor’s performance on these factors. Physicians may receive a bonus or be assessed a penalty that will be calculated using a sliding scale based on whether the doctor is above or below performance thresholds.

MACRA requires the United States Department of Health and Human Services to establish an annual list of quality measures from which doctors and other MIPS-eligible professionals may choose for purposes of assessing the quality factor. HHS is also required to establish MIPS performance standards that consider historical performance, improvement and the opportunity for continued improvement.

Under MACRA there is a provision that prohibits plaintiffs from using a physician's performance on federal quality measures, including MIPS as well as the remainder of the Meaningful Use, Physician Quality Reporting System and Value-Based Payment Modifier programs, as the sole basis to prove negligence in a medical malpractice lawsuit.

Before the passage of MACRA the medical community was very concerned about the use of quality metrics as evidence by plaintiffs as a basis to assert that a doctor committed negligence. Now medical malpractice plaintiffs may not assert a negligence claim against a doctor on the sole basis that he or she did not earn an incentive or was penalized under any federal health care guideline or standard, used in the MU, PQRS, VBPM or MIPS programs. Furthermore, the fact that a physician did not render a service covered under the Affordable Care Act may not be the sole fact to assert that a physician breached his or her duty of care to a patient.

The MACRA liability protections, however, do not totally prevent the introduction of these facts into evidence in a medical malpractice case. And, it certainly does not go as far as legislation that has been sought by many medical associations that would have provided immunity from liability and other civil suit protections for doctors who are sued and can prove they followed any evidence-based clinical guidelines.

MACRA provides $100 million in funding -- $20,000,000 for each of the fiscal years 2016 through 2020 --   to underwrite technical support to small medical practices with 15 or fewer professionals that desire to participate in the new alternative payment models.  HHS is to work with quality improvement organizations and other regional entities certified by the federal government to provide guidance to such small practices on how to prepare for and transition to quality driven reimbursement, with priority given to rural practices, locations with provider shortages, and medically underserved areas.

In order to devise alternative payment models, develop measures to judge the quality of care provided, and determine how physicians will be rewarded or penalized based on their performance, MACRA mandates the establishment of a 11 person technical advisory committee This committee is charged with reviewing and recommending physician-developed alternative payment models based on criteria developed through an open comment process. Not later than July 2016, HHS is required to submit to Congress a study on the feasibility of integrating alternative payment models in the Medicare Advantage payment system.

MACRA also establishes Medicare payment for chronic care management when performed by a physician, physician assistant, nurse practitioner, clinical nurse specialist, or certified nurse midwife.

Alternatively, physicians who choose to participate in ongoing and future new payment models such as accountable care organizations (ACOs), patient-centered medical homes, and initiatives under Medicaid waivers can receive annual bonuses of 5 percent for services in 2019-2024 and not be subject to MIPS requirements.

As with any major federal health reform legislation many more details will be forthcoming in agency rules and other implementation actions required under the law. So while much has yet to be seen, what is clear is that all medical practices and other Part B providers must begin to prepare now for adapting to a substantially overhauled Medicare reimbursement system where performance measures will drive payments and the infrastructure needed to capture and utilize performance data effectively will be essential to maximizing revenues and fulfilling patient expectations and payer requirements.

If you would like more information about any part of MACRA, please do not hesitate to contact us.

William Mandell is a shareholder and health law practice leader, and Karen Rabinovici is an associate, at Pierce & Mandell, P.C, of Boston. 

Obama Administration Announces “Next Generation ACOs”

Thursday, March 19, 2015

by Curtis Dooling

On March 10th, the Centers for Medicare and Medicaid Services launched a new Accountable Care Organization (ACO) program called the Next Generation ACO. The Next Generation ACO builds on earlier ACO models. ACOs were established under the Affordable Care Act to provide high-quality care to Medicare beneficiaries through coordination of doctors, hospitals, and other health care providers. ACOs differ from Medicare Advantage plans in that beneficiaries can retain their choice of providers, whereas in Medicare Advantage plans beneficiaries are confined within a network.

The Next Generation ACO will differ from existing ACOs in several ways. First, they will be permitted to take on greater financial risk while also qualifying for a greater portion of shared savings. Next Generation ACOs will also be encouraged to coordinate care by enhancing and expanding services to beneficiaries, including skilled nursing care and post-discharge home services. Next Generation ACOs will also be able to offer reward payments to beneficiaries.

ACOs traditionally created care and performance benchmarks based on an ACO’s historical expenditures. Thus, some high performing health care providers were reluctant to joint ACOs. Next Generation ACOs are changing benchmarking methods to transition away from comparisons to past performance. By making this change, high performing health care systems will have a greater incentive to join the ACO program because they won’t be penalized for past quality and cost containment success.

Next Generation ACOs represent a bold move toward population-based payment and greater care coordination. They also allow for greater engagement of beneficiaries, a more predictable financial model and greater tools to coordinate care for beneficiaries. For further information on Next Generation ACOs, visit: innovation.cms.gov/initiatives/Next-Generation-ACO-Model/.

William M. Mandell was quoted in the July 2014 Physician Risk Management

Thursday, July 24, 2014

William M. Mandell was quoted in the July 2014 Physician Risk Management article entitled: “Sunshine Act reporting has implications for malpractice litigation”.

 


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