Michael Cassidy was recently appointed as counsel for the Allegheny County Medical Society (ACMS). More information can be found at the below link.
In Kates v. Doylestown Hospital, the Pennsylvania Superior Court, in a non-precedential decision, held back the Pennsylvania Peer Review Protection Act does not provide confidentiality protection for certain records, stating:
Peer review necessarily involves evaluating the quality of care provided by medical professionals or evaluating the qualifications of medical care providers. 0045cept for those portions that we held could be redacted, the documents/communications at issue were not used or made for the determination of staff privileges or for credentialing purposes. These documents/communications were not used exclusively for quality assurance purposes by the Stroke Committee and are not incorporated exclusively within a physician’s credentialing file. See Dodson, supra. Furthermore, Doylestown Hospital cannot point to a definitive action initiating the peer review process prior to the time these documents were created. See Mazzucca [v. Methodist Hospital], 47 D. & C. 3d , 60 [(Phila.Cty. 1985)]. Quite simply, the emails, agenda and minutes we ordered discoverable are non-peer review business records and communications that are neither used, nor generated by the Stroke Committee for peer review purposes.
CMS has announced its concern regarding the level of compliance for documenting the face-to-face elements necessary for home health care certification.
Attached is an educational piece published by Novitas Solutions on its Part B website.
It lists the qualification criteria for home health benefits:
- Be confined to a home;
- Under the care of a physician;
- Receiving services under a plan of care established and periodically reviewed by a physician;
- Be in need of skilled nursing care on an intermittent basis or physical therapy or speech-language pathology; or
- Have a continuing need for occupational therapy.
The article then proceeds to list the major documentation errors:
- The encounter was related to the primary reason for home care;
- How the patient’s condition supports the patient’s homebound status; or
- How the patient’s condition supports the need for skilled services.
Finally, the article provides examples of appropriate documentation, which are contained in the article itself.
It should come as no surprise there are cases in which hospitals seek to and actually do recover income guarantee payments made to physicians whom, either through termination of employment or loss of hospital privileges, fail to fulfill the repayment requirements existing in most of those contractual arrangements.
They typical hospital guarantee arrangement provides advances to physicians to pay expenses and salary for some period of time, coupled with an agreement both to repay any excess amounts provided by the hospital and to forgive those amounts if the physician completes some guaranteed community service requirements.
In Alzadon v. Highlands Hospital Corporation, the physician lost both his hospital privileges and was disciplined by the Kentucky Board of Medical Licensure.
In this case, the trial court entered summary judgment on behalf of the hospital, and the Appellate Court agreed with the lower court that there were no genuine issues of material facts regarding the contract, the termination of the physician’s privileges, or the alleged obstruction by the hospital of the physician’s performance of the agreement. The physician had alleged that the hospital engaged in bad faith and interfered with this employment, but that argument was rejected by the courts.
In OIG Advisory Opinion 14-06, the Office of Inspector General (OIG) concluded that payment by a specialty pharmacy to a retail pharmacy on a “per-fill” basis for services provided by the retail pharmacy could violate the Anti Kickback Statute and Civil Money Penalty provisions.
The specialty pharmacy, as the requestor, proposed to pay retail pharmacies a “fair market value” “per-fill” payment for services provided to patients by the retail pharmacy for specialty prescriptions that the retail pharmacy could not fill but instead referred to the specialty pharmacy. Those services would include recording patient specific medication history, gathering patient and prescriber demographic information, counseling patients on appropriate use of medications, informing patients about specialty drug access, obtaining patient consent to forward the prescription to the specialty pharmacy, transferring the prescription information, and providing ongoing assessments for subsequent refills. In other words, the retail pharmacy would basically be providing information that it would provide anyway.
The OIG concluded that the “proposed arrangement could potentially generate prohibited remuneration under the Anti Kickback Statute and the OIG could potentially impose administrative sanctions”. They also stated in the Opinion:
There is a significant risk that the per-fill fees would represent compensation for the local pharmacies generating business, including federal healthcare program business, rather than solely compensation for bona fide commercially reasonable services.
This seems like the type of request submitted by someone who is looking for a negative response in order to justify its refusal to pay these “per-fill” fees. It is hard to imagine the OIG condoning any proposed practice that would specifically pay a fixed fee, fair market value or otherwise, only for patients that were referred to the specialty pharmacy.
Community Health Systems announced today, August 18th, that hackers broke into its computers and stole data on 4.5 million patients. The information included names, Social Security numbers, physical addresses, birthdays and telephone numbers. More information on the breach is available at http://money.cnn.com/2014/08/18/technology/security/hospital-chs-hack/index.html
It is ironic to learn the Office of Inspector General (OIG) believes the Office of the National Coordinator for Health Information Technology (ONC) essentially has an insufficient compliance program to maintain the privacy and security of the protected health information (PHI) hosted by electronic health records (EHR).
In an August 2014 report (A-06-11-00063), OIG concluded that the process ONC uses to certify EHR is not sufficient to ensure the privacy and security of the EHR PHI.
I have attached a link to the OIG report and included regarding the findings and recommendations of the OIG.
WHAT WE FOUND
ONC’s oversight of the ATCBs did not fully ensure that test procedures and standards could adequately secure and protect electronic patient information contained in EHRs. Specifically, ONC did not ensure that the ATCBs:
- developed procedures to periodically evaluate whether certified EHRs continued to meet Federal standards and
- developed a training program to ensure that their personnel were competent to test and certify EHRs and to secure proprietary or sensitive EHR information.
The ATCBs’ standards and procedures for testing and certifying EHRs met all NIST test procedure requirements that ONC approved. However, those NIST test procedures were not sufficient to ensure that EHRs would adequately secure and protect patient health information; in particular, the procedures allowed ATCBs to certify EHRs that demonstrated the use of a single-character password during testing. In addition, the NIST test procedures did not address common security issues, such as, but not limited to, password complexity and/or logging emergency access or user privilege changes.
WHAT WE RECOMMEND
To ensure that each patient’s health information in EHRs is secure and protected, we recommend that ONC require the ATCBs to:
- develop procedures to periodically evaluate whether certified EHRs continue to meet Federal standards and
- develop a training program to ensure that their personnel are competent to test and certify EHRs and to secure proprietary or sensitive EHR information.
We also recommend that ONC work with NIST to strengthen EHR test procedure requirements so that ATCBs can ensure during testing that EHR vendors incorporate a baseline set of security and privacy features into the development of EHRs to address common security issues.
Mike Cassidy was published in the July 2014 edition of the Allegheny County Medical Society Legal Bulletin regarding Highmark and UPMC Consent Decree. You can read the article, here.
In the proposed 2015 Medicare Physician Fee Schedule, CMS is seeking comments regarding expanding coverage for secondary interpretation of diagnostic imaging.
I’m enclosing pages 40370 and 40371 of the proposed Medicare Physician Fee Schedule. The enclosed material sites the Medicare Claims Processing Manual provisions which make is clear that a professional component interpretation service should only be billing for the forward interpretation and report, and then Medicare pays for only one interpretation of an EKG or x-ray service to an emergency room patient.
CMS is acknowledging that technological advances such as the integration of picture and archiving communication systems across health systems and the growth of image sharing networks and health exchange platforms, make it possible for providers to share images, and that covering payment for second interpretations would contribute to improve care and potentially reduce costs by eliminating the need to perform the full professional and technical component of additional images. Specifically, CMS is seeking comment on the following questions:
- For which radiology services are physicians currently conducting secondary interpretations, and what, if any, institutional policies are in place to determine when existing images are utilized? To what extent are physicians seeking payment for these secondary interpretations from Medicare or other payers?
- Should routine payment for secondary interpretations be restricted to certain high-cost advanced diagnostic imaging services, such as those defined as such under section 1834(e)(1)(B) of the Act, for example, diagnostic magnetic resonance imaging, computed tomography, and nuclear medicine (including positron emission tomography)?
- How should the value of routine secondary interpretations be determined? Is it appropriate to apply a modifier to current codes or are new HCPCS codes for secondary interpretations necessary?
- We believe most secondary interpretations would be likely to take place in the hospital setting. Are there other setting in which claims for secondary interpretations would be likely to reduce duplicative imagine services?
- Is there a limited time period within which an existing image should be considered adequate to support a secondary interpretation?
- Would allowing for more routine payment for secondary interpretations be likely to generate cost savings to Medicare by avoiding potentially duplicative imaging studies?
- What operational steps could Medicare take to ensure that any routine payment for secondary interpretations is limited to cases where a new imaging study has been averted while minimizing undue burden on providers or Part B contractors? For instance, steps might include restricting physicians’ ability to refer multiple interpretations to another physician that is part of their network or group practice, requiring that physicians attach a physician’s order for an averted imaging study to a claim for a secondary interpretation, or requiring physicians to identify the technical component of the existing image supporting the claim.
In the recently proposed 2015 Physician Fee Schedule, CMS devoted significant resources to discussing potentially misvalued services, which I believe is code for places where CMS would like to reduce reimbursement. One of the areas is global surgery fees.
CMS has concerns with the 10 and 90 day global surgery fees because these global packages were designed several decades ago when care was “more homogenous”, as described by CMS. CMS is now concerned that the resource utilization assumptions made for valuing these codes and establishing reimbursement rates are no longer valid, for such reasons as there are not as many follow-up visits, care is provided by different individuals in specialties which may or may not be included in the global surgery fee, and the span of time for the services has decreased.
CMS has stated the following expected benefits:
We believe that transitioning all 10- and 90-day global codes to 0-day global codes would:
- Increase the accuracy of PFS payment by setting payment rates for individual services based more closely upon the typical resources used in furnishing the procedures;
- Avoid potentially duplicative or unwarranted payments when a beneficiary receives post-operative care from a different practitioner during the global period;
- Eliminate disparities between the payment for E/M services in global periods and those furnished individually;
- Maintain the same-day packaging of pre- and post-operative physicians’ services in the 0-day global; and
- Facilitate availability of more accurate data for new payment models and quality research.
Therefore, CMS is proposing to eliminate the 10 and 90 day global surgery reimbursement models in 2017 and 2018 respectively, and simply pay separately for the surgical services and for follow-up visits and services that are provided by section of the global surgery payments will result in lower surgery payments, because CMS will now be assuming that other resources are going to be billed separately.
I have attached pages 40341 – 40348 of the Federal Register publication on July 11, 2014 regarding the 2015 proposed Medicare physician fee schedule for your review.