Under a mandate by the Affordable Care Act, the Centers for Medicare and Medicaid Services (CMS) has issued a new rule: Medicaid will no longer reimburse doctors, hospitals and other health care providers for treatment in clear cases of medical malpractice. The rule lists 26 types of preventable, hospital-acquired conditions that will now disqualify health care providers from receiving Medicaid payments.

Under the federal Medicaid program, states pay for the treatment of Medicaid-eligible patients, most of whom are people with very low incomes and people with disabilities. The federal government reimburses states for the cost of that care. Until the passage of the Affordable Care Act, states had full authority to determine whether providers should be reimbursed in cases of hospital-acquired conditions.

The “never events” that the CMS considers clear cases of medical malpractice or hospital negligence include items such as:

• Leaving objects in the patient’s body after surgery
• Bed sores caused by failure to shift patients regularly
• Infections due to improper cleaning of surgical incisions and catheters
• Joint dislocations or bone fractures from slip-and-fall accidents on hospital premises
• Transfusions involving incompatible blood types

Only 31 states currently have rules prohibiting payment in cases of clear medical malpractice, and 17 of them used a different list of “never events” than the one promulgated by the Centers for Medicare and Medicaid Services.

The new rule not only prohibits states from reimbursing health care providers when such events have occurred, it also disallows the use of Medicaid funds to cover the cost of implementing the new policy. States are also forbidden to use the new policy as an excuse to reduce treatment for Medicaid recipients.

“Never events” is the term used in the health care industry to refer to conditions caused by clear negligence. In legal circles, these events are called per se medical malpractice, meaning that the very fact that the event happened indicates that negligence occurred. There is no excuse for these events to occur. We can only hope that the CMS’s new non-payment policy will result in a significant reduction in “never events” for patients who are among the most vulnerable in our society.

Source: Courthouse News Service, “Medicaid Gets Tough on Hospital-Caused Injuries,” Travis Sanford, June 7, 2011