Looming Legal Questions Of Payment Reform

If health care payment reform in Massachusetts proceeds as the Patrick administration plans, I predict a great many billable hours for lawyers helping medical providers figure out how to change to comply. In particular, everybody will be boning up on what an “Accountable Care Organization” is (see our initial guide here.)

Dr. Alice Coombs of the Massachusetts Medical Society conveys a sense of the looming legal complexities in the Massachusetts Medical Law Report here, including this barrage of perplexing legal questions:

Providers within an ACO accept responsibility for the overall care of a patient, agreeing to deliver all medically necessary services.
But who determines what is “medically necessary”? Will risk be adjusted for sicker patients, and who will make such adjustments? Will a set global payment influence what is “medically necessary” and thus present a significant risk of denial of medical service (which may lead to liability issues)? Will ACOs be required to carry reserves, as insurance companies do?
Professional liability
Legislative reforms are desperately needed to reduce and eliminate defensive medicine, a costly and widespread practice. This is integral to the entire payment reform and cost control debate. However, no such changes appear to be forthcoming.
In medical malpractice actions, how will the issue of joint and several liability apply to participants in an ACO? Will all members be responsible for the claims against one? In ACOs where hospitals are present, how will the charitable immunity statute apply?

The Mass. Medical Law Report includes some thoughts from lawyers here.