Publication

Health Speak

THE FIRST STEP TO UNDERSTANDING HEALTH LAW As any health lawyer can attest, the first order of business when starting in the field of health law is to unlock the vernacular of health lawyers, that is, to understand their otherwise indecipherable language. Comprehending the language, which I have coined “health speak,” is a key first step towards solving the underlying substantive legal issue. After all, if you cannot understand the question, how can you provide an effective answer? Health speak is comprised largely of assorted abbreviations and acronyms, specialized lingo, and terms of art but also contains many examples of that are traditionally nouns or other parts of speech that have been turned into verbs, adverbs, and adjectives in health law circles. Foe example, one could easily find one health lawyer speaking to another about the following: Today my client was notified of an OIG investigation into its gainsharing program because the incentivization of its providers may violate the anti-Kickback statute and Stark law. Plus, because the program doesn’t meet a safe harbor, the notice claims that the remuneration arrangement contains self-referrals for Medicare and Medicaid patients and may subject my client to CMPs and exclusion. Granted the dialogue is a little embellished, but it is a lot closer to reality than many health lawyers might care to admit. Health law is a product of the technical field of medicine and a combination of other legal disciplines such as insurance, employment, corporate, antitrust and contracts. Consequently, health lawyers, to simplify and ease communication, have unwittingly developed their own lingo of acronyms, terms, words and other jargon that, when combined, forms the basis for health speak. A prime example is that health lawyers and the health industry have managed to make acceptable in daily usage the combination of the two separate words of “health” and “care” into the single word of healthcare. Like other areas of the law, health law is highly specialized and highly regulated. As such, health lawyers must be versed in a number of areas of substantive law while also possessing the skills to navigate their clients through the maze of administrative, regulatory and compliance legal frameworks put forth by a myriad of governmental and quasi-governmental entities. Many of the full names of federal and state statutes and regulations are long and cumberson. As such, many of the relevant statutes are simply known by their acronyms. For example, few people would reference the Health Insurance Portability and Accountability Act of 19996 in conversation. Rather, the statute is simply known as HIPAA. Likewise, for example, the same can be said for other statutes such as the Emergency Medical Treatment And Active Labor Act or EMEALA. Further, a number of laws have been abbreviated or simplified for ease such as the Stark law, the federal self-referral statute named after Rep. Pete Stark (D-CA) who introduced the legislation, or the Anti-Kickback Statute, which is part of the Social Security Act prohibiting kickbacks, bribes and rebates. Health lawyers must also be distinguish between OBRA (Omnibus Budget Reconciliation Act) and COBRA (Consolidated Budget Reconciliation Act); and between FEHBP (Federal Employee Health Benefit Program) and CHAMPUS (Civilian Health and Medical Program of the Uniformed Services). Similarly, many government bodies and other entities that regulate the industry are more commonly known by their acronyms than by their proper names. For example CMS is the Centers for Medicare and Medicaid Services; OIG refers to the United States Department of Health and Human Services, Office of Inspector General, JCAHO instead of the Joint Commission on Accreditation of Healthcare Organization (also known as the American Accreditation Healthcare Commission). As much of health law is derived from medicine, a health lawyer needs to know that a DRG stand for a diagnosis related group and DME for durable medical equipment. Furthermore, many of the health players and facilities are commonly known by their acronyms such as PCP (primary care physician), a SNF (skilled nursing facility) or ASC (ambulatory surgical center). In addition, when drafting and reviewing contracts, health lawyers must be familiar with “any willing provider” laws and “hold harmless” laws. The same health lawyer must be familiar with “spend-downs,” “carve-outs,” “upcoding,” and “cold claims.” Moreover, the health lawyer must understand utilization review and quality assurance (UR/QA), “par” providers versus “non-par” providers, and “unbundling” of services, “wraparound plans” as well as “global caps.” The ever-changing structure of the health industry had fueled its own explosion of acronyms. Consequently, a health lawyer must master the volumes of health industry acronyms such as HMO (health maintenance organization), PPO (preferred provider organization), UCR (usual, customary and reasonable), MCO (managed care organization), IDS (integrated delivery system), CON (certificate of need), COC (certificate of coverage), PMPM (per member, permouth) as opposed to PMPY (per member, per month), CMP (civil monetary penalties) and PSN (provider sponsored network) as well M+C for Medicare+Choice. In addition, to the health speak used for regulatory bodies and laws as well as unique lingo, health lawyers and the health industry have created new words to fit a particular situation and/or modified existing words to describe a circumstance. For example, the health industry typically refers to insurers as “payors” instead of “payers.” Also health lawyers have created a number of new words associated with the credentialing process of physicians by health plans such as”recredentialing” or “decredentialing” of providers. Some other examples of words created or modified by health lawyers include “incentivize” and “incentivization,” “hospitalist” and “telemedicine.” In closing, as medicine and the healthcare industry further advance, the language of health speak will continue to grow as health lawyers master the myriad of new laws, healthcare delivery models and reimbursement arrangements in the year to come.