Alice G. Gosfield has focused on health law and healthcare regulation since 1973, placing special emphasis on matters related to physician representation, managed care, and fraud and abuse. A graduate of New York University Law School, Gosfield is the first chairman of the board of PROMETHEUS Payment, Inc., a not-for-profit organization created to implement a new model for provider payment.
7 Questions with Alice G. Gosfield
How did you become interested in healthcare law?
I needed a job during the summer between my second and third year of New York University Law School, and there was an organization called the Health Law Project of the University of Pennsylvania that was looking for an office assistant.
It turned out to be a program funded as part of the War on Poverty to develop a consumer perspective on health law, which did not yet exist as a discipline. Because I grew up working in my father's cardiology practice, I was arguably more familiar with the practice of medicine than the practice of law.
The policy issues really resonated for me, and I could see how they applied to the real world. I thought it was so interesting that I might be able to sustain a career working on those issues, and so I have.
Tell us about your treatise, Health Law Handbook, 2009 Ed.
The Health Law Handbook is an entirely new book every year. I dragoon colleagues all around the country who are working on topics that are interesting, controversial, complex, or hot, and ask them to write substantive chapters. Their charge is to write something that might be didactic, analytical, polemical, or discursive, but it has to be usable by practicing lawyers in the field. I myself write a major substantive chapter every year.
You've also written a book on Medicare and Medicaid fraud and abuse. How has the focus on Medicare fraud changed in recent years?
It was not until the Supreme Court case of United States v. Greber in 1985 that the industry began to take fraud and abuse risks seriously. Now there is a vast armamentarium of fraud and abuse laws, and a growing army of fraud enforcers and auditors.
New amendments passed this year are expected to expand the bases for enforcement considerably. At the same time, because of the enormous drain on the federal budget that is represented by fraud and waste, new government task forces have been formed and have already garnered headlines.
What is your primary focus in the field of healthcare law?
My practice is heavily focused on transactions involving physicians and those who seek to do business with them. I provide guidance on compliance with the fraud and abuse laws including false claims, Stark, and anti-kickback. I don't litigate, although I have occasionally been engaged as an expert witness.
Healthcare spending continues to rise at a rapid rate. What are the solutions to this problem?
From the federal budget perspective, we will never be able to provide universal coverage and decent benefits if costs are not contained. Many believe that improved fraud enforcement will help contain costs. The range of auditors who are reviewing care has grown exponentially, although I can't say I think the "inspection-investigation" approach to containing costs will help over the long haul.
One of the primary dilemmas is that the provider payment models today contain incentives to either overuse or underuse. I think a better payment model that helps all providers do the right thing and get paid fairly for doing so – avoiding unnecessary and inappropriate care - will help a lot.
How is the care given by physicians affected by the fear of lawsuits?
The data shows that physicians overestimate their risk of being sued by about threefold what their real risk is. This leads them to engage in defensive medicine, where they order tests and services they don't need.
While this adds to costs, it is nowhere near as significant a cost elevator as many people think. Physicians, however, are so fearful of being sued, that they raise tort reform as an issue whenever payment reform is discussed.
Tell us about your work with PROMETHEUS Payment, Inc.
PROMETHEUS Payment, Inc. is a not-for-profit organization founded to test a new provider payment model. The model starts with paying providers to work together to deliver the care which good clinical practice guidelines say are the services patients need to treat their specific clinical conditions. It entails bundled budgets, not bundled payments, with a scorecard.
We are testing the program in pilot sites all around the country. It's quite remarkable how the concepts are being accepted.