Question Of The Week

December 17, 2015

Posted on by hortyspringer

QUESTION:        One of our surgeons has been preparing operative reports over the weekend for his upcoming surgeries on Monday or Tuesday. He explained that he has more time over the weekend, so he copies and pastes op reports from prior, similar surgeries into the record for the upcoming surgery, then revises them after the surgery as needed. Should we be concerned with this practice?

ANSWER:          Medicare and other payors recognize the efficiencies that can result from the copy and paste feature of EMR technology. At the same time, those payors are also concerned that such technology will be used improperly in a way that is bad for patient care and leads to inflated payments.

On September 24, 2012, the federal Department of Justice (“DOJ”) and Department of Health and Human Services (“HHS”) issued a letter regarding the fraud and abuse concerns about certain EMR documentation practices. DOJ and HHS stated “[a] patient’s care information must be verified individually to ensure accuracy; it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments.” The letter spoke generally about the willingness of DOJ and HHS to prosecute health care fraud based on improper EMR documentation practices. A copy of the letter is available at: http://www.modernhealthcare.com/Assets/pdf/CH82990924.PDF.

In December 2013, the HHS Office of Inspector General followed up with a report titled “Not All Recommended Fraud Safeguards Have Been Implemented in Hospital EHR Technology.” http://oig.hhs.gov/oei/reports/oei-01-11-00570.pdf. The report discusses risks and benefits of the copy and paste feature in EMR technology.

Following the lead of DOJ and HHS, National Government Services (a Medicare Administrative Contractor) discussed the overpayment risks of “cloned” documentation as follows:

Documentation is considered cloned when it is worded exactly like or similar to previous entries. It can also occur when the documentation is exactly the same from patient to patient. Individualized patient notes for each patient encounter are required.

* * *

Whether the documentation was the result of an Electronic Health Record, or the use of a pre-printed template, or handwritten documentation, cloned documentation will be considered misrepresentation of the medical necessity requirement for coverage of services due to the lack of specific individual information for each unique patient. Identification of this type of documentation will lead to denial of services for lack of medical necessity and the recoupment of all overpayments made.

EMR technology can improve the content and consistency of documentation, and make it less burdensome to produce. However, using a template to prepare documentation in the EMR before the procedure is actually performed increases the risk of allegations of “cloned documentation” and “fraud and abuse” by the government or third-party payors.

 

 

December 10, 2015

Posted on by hortyspringer

QUESTION:        We employ physicians through a corporation affiliated with the hospital. One of our employed physicians recently submitted a request to the Chief of Staff, his friend, requesting that he be excepted from taking nighttime and weekend call due to “seniority” and years of service. The request was approved at the last MEC meeting. The physician now claims that he is exempt from covering the medical practice too, since an exception was granted. Is he right?

ANSWER:            The question you raise is not uncommon. The answer is that the physician is not right, but it is best to be clear in your employment contracts about the difference between ED call and practice call so there is no confusion or dispute.

The obligation to serve on the Emergency Department’s on-call roster arises from the Medical Staff Bylaws, Credentials Policy, and related documents (for example, the hospital’s on-call policy or EMTALA policy). Accordingly, any physician who wishes to be a member of the medical staff or exercise clinical privileges must agree to serve on the ED call roster that is developed in accordance with hospital policy (often by the department chairs, subject to approval of the MEC and Board). In your case, the physician in question has made arrangements through the medical staff leadership to obtain an exemption from the requirement in the Bylaws.

The obligation to “take call” for the practice is separate and aside from any obligations that a physician may have to the hospital or its ED. All physicians have to cover their practice, whether they are affiliated with the hospital or not. It is through this coverage that the practice’s patients are able to obtain after-hours consultation and advice regarding emergencies. The obligation to be on call for the practice does not arise through the hospital’s Medical Staff Bylaws or related documents. Rather, it is an obligation associated with employment. In turn, the medical staff leadership has no authority over whether your employed physician takes call for the practice and cannot grant the physician an exemption from such duties.

So there is no confusion or dispute, we recommend that your employment contract language state that the physician will be required to be on call for the practice, along with other practice physicians, according to the schedules established by the employer. The language should go on to state that, in addition, the physician must fulfill any obligations of medical staff membership or clinical privileges at all hospitals with which he or she is affiliated, including service on the hospitals’ ED call rosters.

December 3, 2015

Posted on by hortyspringer

QUESTION:         The new, final, Stark regulations permit a hospital to provide financial assistance to a physician or physician group to employ or contract with certain non-physician practitioners. What types of non-physician practitioners are covered under the new regulations?

ANSWER:            Hospitals may provide financial assistance to help physicians or a physician group hire or contract with physician assistants, nurse practitioners, clinical nurse specialists, certified nurse-midwives, clinical social workers, or clinical psychologists. Financial assistance for other types of non-physician practitioners, such as nurse anesthetists, physical therapists, and dietitians, is not covered by the new exception.

November 19, 2015

Posted on by hortyspringer

QUESTION:        We are currently in the process of adopting new Medical Staff Bylaws. A member of the Medical Staff questioned whether language that was included in the draft Credentials Policy indicating that the appropriateness of utilization patterns would be considered when granting privileges would constitute “economic credentialing.” Does it?

ANSWER:           Not in our experience. This type of language is often included in medical staff documents to allow for consideration of patterns related to comparative lengths of stay, medical necessity issues, and similar matters. The purpose is not to exclude someone from the medical staff; rather, it is intended to allow for performance improvement. For example, if someone was an outlier in length of stay, as compared to his or her peers, that variance would be something that could be addressed as a part of the Ongoing Professional Practice Evaluation (“OPPE”) process. Such a scenario would only result in “economic credentialing” if the data was used to serve as the basis for revoking that physician’s clinical privileges.

Interestingly, the Final Rule related to the new Comprehensive Care for Joint Replacement (“CJR”) bundled payment model highlighted in this week’s Government at Work includes a question about the effect such programs might have on credentialing, being that they encourage hospitals to use only the most “efficient” or “cost-effective” physicians. While CMS indicates that existing antitrust laws may limit a hospital’s ability to keep privileges from a non-compliant or high-cost physician, it does not include any restrictions that would specifically prohibit a hospital from doing so.

Please join LeeAnne Mitchell and Ian Donaldson at an upcoming Credentialing Clinic to learn more about the new wave of credentialing matters facing Medical Staff leaders. You can join us for this interactive course by clicking here.

November 12, 2015

Posted on by hortyspringer

QUESTION:         Our hospital recently received a discovery request (a request for production of documents) in a malpractice suit brought against one of the physicians practicing at our hospital. The request seeks documents which contain protected health information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act (“HIPAA”). Should we respond by producing the documents?

ANSWER:           This is a question that can best be answered by your attorneys and should be referred to them for an answer because the answer may depend on a number of variables, such as whether the information is protected by your state’s peer review privilege or some other evidentiary privilege. Nonetheless, assuming no privilege applies and that the information is otherwise discoverable, PHI under HIPAA may only be disclosed under certain circumstances. In litigation, disclosures of PHI are often made pursuant to a “qualified protective order.” A covered entity may disclose PHI if it “receives satisfactory assurance…from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order….” At a minimum, the qualified protective order must prohibit the parties from using or disclosing the PHI for any purpose other than the litigation and require the return to the covered entity or destruction of the PHI, and any copies made, at the end of the litigation. If a qualified protective order that meets HIPAA requirements is in place and the documents are not otherwise privileged or protected, it may be appropriate to provide the documents.  Of course, your hospital may also provide PHI that is sought in discovery after it is de-identified according to the requirements of HIPAA. Disclosure of de-identified health information may be appropriate if the discovery request does not seek health information that is tied to a particular individual and does not cover a large number of documents.

November 5, 2015

Posted on by hortyspringer

QUESTION:        In response to a credentials verification inquiry about a former staff member, one of our newest department chiefs disclosed that this former staff member had been subject to a performance improvement plan. Now a lawyer for that former staff member has demanded a retraction and threatened to sue for defamation. What should we do?

 

ANSWER:           Refer the letter to counsel, who can send a response educating the lawyer about custom and practice in credentialing and about the immunity for provision of accurate information. There is nothing to retract if the response was true, nor would a defamation claim succeed. (More importantly, such a letter can help with other potential audiences, in case a suit is filed.) Credentialing would break down if no one responded truthfully to verification inquiries. The Health Care Quality Improvement Act provides for immunity in favor of those who provide information to other hospitals. 42 U.S.C. Section 11111(a)(2). However, even meritless suits are a drain on resources and may have a chilling effect on future leaders.

Immunity helps if there is a suit, but are there ways to minimize the likelihood of a suit? If there were issues with a former staff member, it may be prudent for all inquiries to be referred to a central place, such as a VPMA/CMO, who can guide a new Chief. Your Medical Staff Services Professional can also be a great help in fielding such inquiries and helping new leaders who have never faced such an issue. In the future, you might consider, as a policy matter, developing a standard communication for use when inquiries relate to a practitioner who experienced concerns, advising inquiring hospitals that no response to any credentialing inquiry will be provided without a signed specific release. That will send a message without revealing anything.

Be sure you have excellent and strong release and immunity language in your Bylaws or Credentials Policy. And – be sure your new Chiefs attend our Credentialing Clinic or Complete Course for Medical Staff Leaders! The first step to an excellent medical staff is careful credentialing!

October 29, 2015

Posted on by hortyspringer

QUESTION:        We had a nurse practitioner apply for privileges at our hospital, but the application didn’t identify a collaborating physician, which is required under our hospital policy. When we followed up with the applicant, he responded that he didn’t need a collaborating physician because our state now allows nurse practitioners to practice independently. Is this true?

ANSWER:           It depends, but probably not. A state’s decision (through modification of the professional licensing statutes and regulations) to expand the scope of practice for an advance practice nurse, and to allow such practitioners to practice independently in that state, does not generally supersede the policy decision of a hospital that such practitioners must still work in collaboration with a physician appointed to the medical staff in that hospital setting. The only exception would be if the statute “mandated” that such practitioners be permitted to practice independently – in all clinical settings – which most of the statutory changes have not done. While it may be a question that the medical staff and board wish to consider further, there is a significant difference between a statute that permits independent practice and one that mandates independent practice. If the hospital policy continues to require a collaborative relationship, the applicant should be informed that he or she is ineligible to apply unless he or she can supply evidence of a collaboration agreement with a physician.

 

October 22, 2015

Posted on by hortyspringer

QUESTION:        Our health system is comprised of multiple entities, including several hospitals and a large physician group practice. We wanted to know how we can promote consistency and economies of scale by coordinating our efforts to comply with the Health Insurance Portability and Accountability Act (“HIPAA”). We also wanted to know whether we could share protected health information amongst and between the multiple entities.

ANSWER:           Yes, you can. The easiest way to do this is under the HIPAA regulations, at 45 C.F.R. §164.105(b)(1), governing affiliated covered entities. Per this section, “legally separate entities that are affiliated” may designate themselves as a single covered entity for purposes of the security and privacy requirements of the HIPAA regulations. However, all of the covered entities in the system must be under common ownership and control and the designation must be documented. The designation documentation must be maintained in written or electronic form and for a period of six years from the date of its creation or the date when it last was in effect, whichever is greater. Often, this designation can be accomplished with a brief board resolution. The practical effect of the affiliated covered entities designation is that all of the covered entities in your system which are under common ownership and control are treated as one covered entity for HIPAA privacy and security purposes. Thus, they can share a single set of privacy policies and can freely share protected health information as if they were a single entity. This may result in significant efficiencies when navigating the regulatory complexity of the HIPAA rules.

October 15, 2015

Posted on by hortyspringer

QUESTION:        It’s the flu season, again, and we know that we can require employed physicians to have a flu shot, but what about physicians who aren’t employed? What’s the easiest way to do this?

ANSWER:           Yes, a hospital can require non-employed physicians to get a flu shot. The easiest way to implement the policy for non-employed physicians is to include it as part of the eligibility criteria in the medical staff bylaws or credentials policy. The criteria could require every applicant and medical staff member to provide evidence of an annual flu shot. Of course, with every rule, there are exceptions. For example, a physician may have a medical condition that prevents him/her from receiving a flu shot. In those cases, the physician could be required to wear a mask at all times in the hospital.

October 8, 2015

Posted on by hortyspringer

Question:        When do we have to be in compliance with the new requirements for financial assistance policies and emergency care policies?

Answer:         The Patient Protection and Affordable Care Act (“ACA”) added §501(r) to the Internal Revenue Code, imposing new requirements, financial assistance policies, and emergency care policies, on 501(c)(3), “nonprofit” organizations. Last December, the IRS published the final regulations, giving some hospitals just one year to comply with the final regulations.

The date on which a hospital must be in compliance depends on when its tax year begins. A hospital must be in compliance with the Section 501(r) final regulations beginning on the first day of its first tax year after December 29, 2015.

So, if a hospital’s year ends on December 31, 2015, it must be in compliance by January 1, 2016. If it ends on June 30, 2016, it must be in compliance by July 1, 2016. If it ends on September 30, 2016, it must be in compliance by October 1, 2016.