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Recovery rooms for high paying patients

Compliance Monitor, August 4, 2006

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A: If the level of anesthesia provided is such that recovery time is medically necessary, then discrimination of this kind could lead to liability for injuries that occurred to patients discharged without adequate recovery time. It is possible that the Office of Inspector General of the Department of Health and Human Services (DHHS) could argue that not providing recovery to Medicare patients when it is provided to other classes of patients is poor quality care. Such claims could trigger false claims liability-under which any poor quality care that is billed to Medicare is a false claim.

In addition, the Office of Civil Rights DHHS might pursue discrimination claims. Under various state law theories, enforcers may argue that the additional care given to higher payers enables the physician to bill higher amounts to those payers, and that could be viewed as fraud if it is not medically necessary.

Finally, there is a general ethical problem with treating patients with the same medical problem differently. In light of these risks, your proposal sounds like a bad idea.

Thanks to John B. Reiss, Esq., a partner with the Philadelphia-based law firm Saul Ewing LLP, for this week's question on medical staff issues. This Q&A was originally published in Compliance Monitor's sister publication Medical Staff Legal Advisor.

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