The Medicare fiscal intermediary for California defines co-management as the “planned transfer of care during the global period from the operating surgeon to another qualified provider.” Optometrists and ophthalmologists have long engaged in the practice of co-managing cataract patients undergoing surgery. Typically, optometrists refer their patient out to an ophthalmologist for surgery, and the ophthalmologist in turn refers the patient back to the optometrist for his or her post-operative care.

This type of co-management arrangement can be hugely beneficial for the patient. Patients are able to receive the specialty surgical services they require from an ophthalmologist, while retaining access to their regular optometrist – who may be more geographically convenient to the patient and who often have provided years of consistent optometric care to the patient – for post-operative care. When these circumstances are present, and when the patient provides valid and informed consent, co-management can be a vital tool for providing optimal care to cataract surgery patients.

Because of some ostensibly conflicting language in federal laws and regulations, however, confusion has sometimes arisen about the precise circumstances under which co-management is permissible. The federal anti-kickback statute provides civil and criminal penalties for giving or receiving “remuneration” in exchange for referrals. Because the law is so broad, the federal government outlined many “safe harbors” which, while potentially covered by the anti-kickback statute, would not be prosecuted. One of these safe harbors specifically exempts co-management from the anti-kickback prohibition, so long as certain conditions are met. Although the safe harbor language prohibited the sharing or splitting of a Medicare global fee, the government later clarified that “we do not mean to suggest that all specialty referral arrangements involving splitting of global fees are illegal under the anti-kickback statute.” Rather, making this determination requires a “case-by-case analysis” of factors such as whether the services are medically necessary, whether the timing of referrals is clinically appropriate, and whether the services performed are commensurate with the portion of the global fee received.

The American Optometric Association (AOA) later set forth a bulletin that echoed and expanded on the above factors. AOA’s seven factors to be considered when determining whether co-management in a given instance is appropriate are:

1. The selection of an operating surgeon for patient referral should be based on providing the best potential outcomes for that patient. Financial relationships between providers should not be a factor.
2. The patient’s right to choose the method of postoperative care should be recognized consistent with the best medical interest of the patient.
3. Co-management of post-operative care should be determined on a case-by-case analysis and not prearranged. For example, agreements to refer all patients back on a date certain should be avoided. The patient should be advised prior to surgery of potential postoperative management options.
4. The transfer of post-operative care must be clinically appropriate and depend on the particular facts and circumstances of the surgical event.
5. Following surgery, transfer of care from the operating surgeon to an optometrist should occur when clinically appropriate at a mutually agreed upon time or circumstance; and such time should be clearly documented via correspondence and be included in the patient’s medical record. For example, Section 4822 of the Medicare Carriers’ manual states that “Both the surgeon and the physician providing the postoperative care must keep a written transfer agreement in the beneficiary’s record.” This may be accomplished by including the appropriate information in the referral letter from the ophthalmic surgeon to the optometrist at the time of transfer of care.
6. The operating surgeon and the co-managing optometrist should communicate during the post-operative period to assure the best possible outcome for the patient.
7. Compensation for care should be commensurate with the services provided. Cases involving care for Medicare beneficiaries should reflect proper use of modifiers and other Medicare billing instructions.
Similarly, the American Academy of Ophthalmology (AAO) has also published an advisory opinion clarifying that co-management is perfectly appropriate under certain circumstances, specifically where the postoperative care can be provided by a qualified non-ophthalmologic physician.

Medical providers must of course tread very carefully when contemplating the co-management of patients so as not to encroach on the type of arrangements prohibited by the federal anti-kickback statute. Most importantly, all decisions should be based on the best potential outcome for the patient, not on any financial arrangement between providers. Blanket contracts to refer patients should especially be avoided, since such an arrangement would preclude the type of case-by-case analysis proscribed by the federal government. However, when the factors discussed above are present, and when the patient provides valid and informed consent, co-management has historically been a vital tool to providing optimal care for cataract surgery patients. There have been no recent changes in the law to preclude the future practice of co-management by optometrists and ophthalmologists when the appropriate circumstances are present.

Wilke Fleury attorney Natalie Johnston has been elected to the UC Davis School of Law Alumni Association Board for a three-year term. Through the Board, King Hall alumni support and promote their alma mater by working with current students and staff. Natalie is excited to take on this new challenge, and looks forward to the opportunity to give back to the UC Davis Law community.

Wilke Fleury partner Megan Lewis will be serving as the President of Women Lawyers of Sacramento ("WLS") for 2012. Ms. Lewis has been a member of WLS since 2002 and has served on the executive committee since 2009. As WLS’s Vice President in 2011, Ms. Lewis spearheaded the Unity Bar Dinner, which celebrated various diversity organizations within the Sacramento County Bar Association. Megan has an exciting and challenging year ahead of her as President, as 2012 marks WLS’s 50th anniversary.

Wilke Fleury is proud of Megan’s continuing leadership in the Sacramento legal community.

Wilke Fleury Names Ron Lamb as Managing Partner Wilke Fleury is pleased to announce that Ron Lamb has been named as the firm’s managing partner. A longstanding and well-respected fixture in the Sacramento area medical malpractice defense community, Ron joined Wilke Fleury in April of 2005, and immediately showed himself to be a highly competent lawyer and administrator. Under Ron’s leadership, Wilke Fleury will continue to deliver the efficient, high-quality legal services its clients have come to expect.

Prior to coming on board with Wilke Fleury, Ron was the managing shareholder of the Sacramento law firm of Rust, Armenis, Schwartz, Lamb & Bills. Ron is also a retired Lieutenant Colonel in the United States Air Force, where he served as a Weapons Systems Officer and, later, an Air Intelligence Officer.

Congratulations, Ron!

Wilke Fleury associate Sarah Scott recently joined the Advisory Committee for the Voluntary Legal Services Program of Northern California (VLSP). VLSP is a volunteer-based legal aid program that provides free assistance with civil legal matters to low income clients living in the Sacramento region. The organization is celebrating its 30th anniversary this year.

Wilke Fleury is delighted to welcome Bianca Watts as the firm’s newest associate. Ms. Watts joins Wilke Fleury in a full-time capacity after a successful clerkship with the firm during the summer of 2010. Ms. Watts is an alumnus of Pacific McGeorge School of Law, graduating with distinction in May 2011. While at Pacific McGeorge, Ms. Watts participated in the Sacramento County Bar Association Diversity Fellowship Program. She also served as Vice President of the Black Law Students Association and was a Staff Writer for the Pacific McGeorge Global Business and Development Law Journal (“the Globe”). Her article titled “Better Than a Thousand Hollow Words is One Word That Brings Peace: Enforcing Article 49(6) of the Fourth Geneva Convention Against Israeli Settlements in the Occupied Palestinian Territory” will be published this month in the Globe’s Volume 24. Welcome aboard, Bianca!

Six of Wilke Fleury’s attorneys have recently been named either “Super Lawyers” or “Rising Stars” by the 2011 Northern California Super Lawyers Magazine. Phil Birney, Tom Redmon, Ron Lamb,  and Dan Egan were named “Super Lawyers.” It was Mr. Birney’s fifth year to receive this honor, Mr. Redmon’s fourth year, and the second year for Mr. Lamb and Mr. Egan. Dan Baxter and Megan Lewis were named “Rising Stars” for the third year in a row. The list of honorees is compiled through a multi-phase process of peer nominations and evaluations, as well as third party research. Just five percent of the lawyers in California are selected for the “Super Lawyers” designation, and no more than 2.5 percent are named “Rising Stars.” Wilke Fleury congratulates these seven outstanding lawyers on their achievement.

Wilke Fleury is again participating in the Sacramento County Bar Association’s Diversity Fellowship program and welcomes Neha Mac for the summer. Ms. Mac received her bachelors degree from University of San Francisco and is currently an evening student at University of the Pacific, McGeorge School of Law, where she recently finished her second year. She is involved with the South Asian Bar Association of Sacramento and the McGeorge Orientation and Mentorship committees and looks forward to gaining invaluable experience over the summer.

Wilke Fleury partner Dan Baxter was recently elected to serve as Chairman of the Board of Directors for Teaching Everyone Animals Matter ("TEAM"), a non-profit organization formed to assist Sacramento County Animal Care and Regulation in caring for the lost, abandoned, abused, and neglected animals in Sacramento County. Dan has been involved with TEAM for several years, and Wilke Fleury itself has also sponsored TEAM through Wilke Fleury’s "Jeans Friday" program, in which employees contribute $5 to selected non-profit organizations for the privilege of wearing jeans on Fridays.

Dan’s duties as TEAM’s Chairman will consist of, among other things, overseeing Board meetings, writing letters on behalf of the organization, appearing at events, and ensuring that TEAM’s mission continues to be fulfilled.

Wilke Fleury congratulates Dan on his new position!

Wilke Fleury Partner Jim Krtil was recently awarded lifetime membership in the Sacramento Estate Planning Council. The Sacramento Estate Planning Council is a non-profit, professional association which serves as an educational and networking resource for over 140 regional members in matters of estate planning. The Sacramento Estate Planning Council provides a forum where trust officers, private fiduciaries, attorneys, certified public accountants, chartered life underwriters, chartered financial consultants, certified financial planners, chartered financial analysts, educators, planned giving professionals, and accredited valuation experts in the Sacramento Valley can meet and share information about new developments in the estate planning, a constantly changing field. Mr. Krtil joined the Sacramento Estate Planning Council in 1980 and was president in 2000-2001.

Wilke Fleury’s own Dan Baxter has been named as a finalist for the Sacramento Business Journal’s “40 Under 40” awards, which honors Sacramento’s up-and-coming professionals for their business success and community contributions. Dan is one of 100 finalists selected from a group of nominees spanning Sacramento’s business spectrum, including physicians, accountants, developers, lawyers, entrepreneurs, and public employees. Dan’s notable successes over the last year include a multi-million dollar jury verdict against the California Correctional Peace Officers’ Association, and a successful arbitration regarding the value of the Downtown Railyards property sold to the City of Sacramento, which Dan handled with colleague Tom Redmon. Dan and his fellow “40 Under 40” finalists are listed in the March 18 edition of the Business Journal. Congratulations, Dan!

The Institute of Governmental Advocates (IGA), California’s professional association of lobbyists and government relations specialists, has announced the election of Wilke Fleury Partner, John Valencia, to its Board of Directors.

Founded in 1974, IGA’s mission is to protect and defend the First Amendment rights of lobbyists and government relations professionals to advocate on behalf of their clients before California’s Legislature and the Executive Branch of state government. The Institute of Governmental Advocates (IGA) is a voluntary, non-partisan association representing the leading professional lobbyists and lobbying firms in California’s Capitol.

IGA members subscribe to a voluntary code of conduct and professional ethics that go beyond what is required under the Fair Political Practices Act. IGA also works instill core values of integrity, honesty, and professionalism among the members of the “Third House” and pass along those values to the next generation of lobbyists.

In 2010, Wilke Fleury raised $2,890 for Teaching Everyone Animals Matter (TEAM) through its “Jeans Friday” program. Jeans Friday is an initiative that allows Wilke Fleury employees to wear jeans on Friday if they contribute $5 toward a charity that has been selected by employee vote. The charity selected for 2010 was TEAM, a non-profit organization that works with Sacramento County Department of Animal Care and Regulation to help provide for the care and treatment of the animals at the Sacramento County Animal Shelter. Dan Baxter, a Wilke Fleury partner, is a member of the Board and Secretary of TEAM. Wilke Fleury is proud to support TEAM’s efforts in our community.

Robert F. Tyler of the firm’s litigation department recently prevailed in a major complex medical malpractice case brought against one of the firm’s longstanding clients. The case involved a 48 year old man who was brought into the client’s hospital with a severe brain bleed after falling as the result of an apparent loss of consciousness. Various tests done shortly after admission disclosed cardiac abnormalities, which were ultimately felt to have been caused by the injuries resulting from the fall, rather than being the cause of the loss of consciousness and fall itself. Twenty months later, the patient died in his sleep.

At the time of his death, the patient was 50 years old and earning between $150,000 and $350,000 per year. Both before and after his hospital stay, the patient never complained of any significant medical problems and never took any sick leave. On autopsy, it was found that he had suffered a major heart attack at some point in the past, and that all of his cardiac arteries were severely clogged, with the cause of death stated as untreated cardiac problems.

The wife and the two minor daughters of the patient brought a wrongful death claim, contending that the events leading up to the fall were caused by cardiac problems, which they claimed should have been found and worked up by the hospital. The plaintiffs contended that had that taken place, the patient’s severe underlying cardiac disease would have been demonstrated, and steps would have been taken to avert the patient’s untimely death.

The trial itself involved 32 witnesses, with strongly conflicting testimony from experts in cardiology, intensive care, neurology, clinical laboratory operations, and emergency room care. Plaintiffs postulated an earnings loss of $3.9 million, and ultimately requested a total award in excess of $11.7 million. After a six week trial, the jury returned a 9-3 verdict in favor of the defense, finding that the defendant hospital had correctly interpreted the abnormalities shown on the test in question as being due to the injury caused by the fall (rather than causing the fall), and that the hospital’s workup of the patient was correct and complete. While those conclusions were and are medically correct, they were complex and were very vigorously contested by well-credentialed experts on both sides. Therefore, the fact that the jury ultimately came to appreciate the defendant’s position despite their obvious sympathy for the plaintiffs, clearly constituted a very successful result for the client.

Wilke Fleury associate Samson R. Elsbernd recently became a member of the District of Columbia Bar.  Mr. Elsbernd was sworn in on December 6, 2010 by a three-judge panel of the District of Columbia Court of Appeals, the highest court in Washington, D.C. Mr. Elsbernd is now eligible to practice before the courts of the District of Columbia, in addition to all California courts and the U.S. Court of Appeals for the Ninth Circuit.