CMS has issued interpretive guidelines regarding informed consent relating to the conditions of participation requirements for patient rights, informed consent for surgical services, and the appropriate contents of medical records. The guidelines were released on April 13, 2007 and can be found at the following link:
http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter07-17.pdfTEN TOP PHYSICIAN BILLING ERRORS
Highmark Medicare Services recently presented a teleconference on the ten top reasons for rejections and most common billing errors. The list is as follows:
1. No performing PIN
2. No verification HIC/entitlement
3. Invalid procedure code
4. Incomplete physical exam information for chiropractic services
5. Missing or incomplete modifiers
6. Missing CLIA information
7. Missing facility address
8. No referring UPIN
9. NOC Code without description
10. Incomplete address elements for patients, insured patient representative or service/supplier
For complete information about this program, go to the following link:
http://www.highmarkmedicareservices.com/calendar/partb/teleconferences.html
TEN TOP PHYSICIAN BILLING ERRORS
Highmark Medicare Services recently presented a teleconference on the ten top reasons for rejections and most common billing errors. The list is as follows:
1. No performing PIN
2. No verification HIC/entitlement
3. Invalid procedure code
4. Incomplete physical exam information for chiropractic services
5. Missing or incomplete modifiers
6. Missing CLIA information
7. Missing facility address
8. No referring UPIN
9. NOC Code without description
10. Incomplete address elements for patients, insured patient representative or service/supplier
For complete information about this program, go to the following link:
http://www.highmarkmedicareservices.com/calendar/partb/teleconferences.html
My last MedLaw Blog post described four rules for making the peer review process fair. Here are four rules physicians should follow to protect themselves regardless of the peer review process.
1. Recognize peer review when it is happening to you. There is no doubt that peer review is occurring when you get a letter proposing adverse peer review actions. The more problematic cases are the peer review processes that begin with collegial counseling or intervention.
There are two types of collegial intervention, but both can be traps. The first is the meaning discussion with a well-meaning colleague who serves on the relevant peer review committee. Since most colleagues desire to avoid conflict among themselves, it is sometimes difficult to identify these conversations as actual peer review. However, these conversations can show up later as recorded attempts to correct perceived misconduct.
The second and more obvious collegial intervention is an actual meeting with somebody that is less of a colleague and more of a peer review officer. Even though these interventions are clearly peer review, physicians often perceive these somewhat informed meetings as officious intrusions and either disregard the meetings or respond inappropriately.
It is important to recognize that both of these interventions can have future consequences if they are not recognized as harbingers of precursors to potential peer review problems.
2. Request access to peer review records. Whenever physicians are advised that someone perceives a problem with their performance or their conduct, that physician should request a copy of the complaint or record precipitating the peer review contact, even if the hospital insists upon maintaining anonymity at that point. It is important to know how many complaints there may have been and what those complaints say. It is also important that physicians create a record of this process, preferably a record that includes at least neutral and perhaps partial witnesses. Third-party witnesses are important to prevent later distortions of the facts.
3. Resist the urge to counterattack. Most accomplished individuals, and doctors include themselves in this category, resent disparaging comments about their conduct or competence. Resist the urge to be overly defensive. Threatening whistleblower disclosures and accusing the other physicians involved in the peer review process of competitive conspiracies and jealousies polarizes the peer review process. The other physicians resent the attacks just as much the target physician resents the intrusion. The precipitous counter attack rarely reads the mutually acceptable results.
4. Retain experienced counsel. It is amazing that physicians who seek a medical consult at the first sign of a medical problem outside the scope of their particular sub-specialty nevertheless believe they can represent themselves in the peer review process or of that counsel is not necessary until the end of the process, when the physician as legal-patient now requires emergency surgery. Seeking experienced counsel is not an indication of lack intelligence; the issue is not intelligence, but training, experience and detached analysis.
Sham peer review is created and perpetuated by secrecy. Charles Mackay wrote in “Eternal Justice”:
“But the sunshine aye shall light the sky,
As round and round we run;
And the truth shall ever come uppermost,
And justice shall be done.”
Physicians do not need voluminous due process protections in medical staff bylaws in order to protect their interests; they merely need the opportunity to assure that the truth will come out. Here are four suggestions to let the truth be told.
1. Notice. Physicians should receive notice and/or copies of all complaints filed against them, whether they are mere incident reports or formal complaints requesting investigation by the medical staff. Notice provide the physicians an opportunity to respond to the complaint at the time it was made, rather than allowing them to accumulate until a more serious dispute arises. Hospitals respond that effective peer review requires confidentiality and immunity. However, the confidentiality provisions were never intended to allow anonymous complaints; they were intended to prevent third parties from discovering peer review documents as part of a tort or malpractice complaint. Those people submitting valid complaints are protected by the immunity provisions of state peer review laws, so confidentiality should not be an issue.
Hospitals defended their position by arguing that they are concerned about retaliation. Retaliation should not be permitted. Retaliation should be punishable by suspension, which may or may not be reportable to the Data Bank. Once physicians understand that they cannot retaliate against hospital employees who are just trying to do their job, retaliation should not be an issue.
Physicians should receive notice of ongoing investigations. There is nothing worst than being on the “watch list” or being on “double secret probation” in an environment in which incident reports and case review are being invited.
2. Cross examination of witnesses. All individuals who submit reports should be included within the definition of the term “witnesses” and their reports should not be accepted as true or relied upon by the medical staff hearing committee unless the physician has had the opportunity to cross examine those individuals about those complaints. Cross examination does need to be integration under harsh lights; it is simply intended to give the physician the right to question and point out errors, inconsistencies and inaccuracies in written complaints. The immunity provisions of the state peer review laws should protect those witnesses from good faith disclosures.
3. Premature suspensions: Clinical privileges should not be suspended unless the physician has had the opportunity to respond or to explain the situation which has thought to be the problem. Medical staff bylaws should allow suspension in those situations in which patient’s safety is an immediate and significant concern. When deciding whether patient’s safety gets protected or the physician’s right to practice gets protected, obviously the hospitals must come down on the side of patient safety. However, except in those situations, which exception will always give the hospital the most leverage or upper hand in these proceedings, suspension should not be imposed before the physician has had the opportunity to defend himself.
4. Participation in the hearing panel: The due process procedures of the medical staff peer hearing process should allow the physician to appoint a member of the hearing panel. The hospital may retain the right to appoint the majority of the members; this safeguard is not intended to deadlock the process. It is merely intended to bring the light of day into the deliberations.
The first criminal HIPAA verdict was entered in January of 2007, and HIPAA privacy rule enforcement statistics were reported at the 14th National HIPPA Summit.
In U.S. v. Ferrer, in the Cleveland Clinic case, a Florida jury found the Defendant, Mr. Fernando Ferrer, Jr. guilty of one count of wrongful disclosure of individually identifiable health information, five counts of aggravated identity theft, one count of computer fraud and one count of conspiring to defraud the United States. Mr. Ferrer was the owner of a healthcare claims administration company at the time and misappropriated the personal data of more than 1,100 patients of the Cleveland Clinic, using a cousin who was an employee of Cleveland Clinic to assist him in this effort. The misappropriated information was used to submit more than $7,000,000 of fraudulent Medicare claims, which netted about $2,500,000 in payments to providers and suppliers.
The following is a summary of the enforcement activities reported at the National HIPAA Summit, listing total complaints, closed cases and cases in which corrective action was taken or which were referred to the Department of Justice for prosecution.
|
Complaints Complaints Concluded: |
24,360 |
100% |
|
Closed: Preliminary Review |
12,542 |
|
|
Closed: Investigation |
1,972 |
|
|
Corrective Action |
4,015 |
|
|
18,529 |
18,529 77% |
|
|
Open Cases |
5,469 |
22% |
|
Referred to DOJ |
362 |
1% |
|
Prosecuted |
(39) |
|
|
24,360 |
The United States District Court for the District of Iowa held that Mercy Medical Center-Sioux City was not immune from liability under the Federal Health Care Quality Improvement Act. The Court entered summary judgment to the estate of Dr. Horst G. Blume on the basis of Mercy’s breach of contract and awarded damages to Dr. Blume in the amount of $146,000.
The District Court found that Mercy was not immune under the Federal Health Care Quality Improvement Act (HCQIA) because it breached its bylaws by never providing Dr. Blume the hearing to which he was entitled under the bylaws and that it failed to conduct a reasonable investigation as required by one of the elements of the HCQIA. The key facts regarding the failure to conduct a reasonable investigation were that Dr. Blume was never provided access to incident reports allegedly supporting the hospital’s action, that there was no reasonable effort by the hospital to obtain any facts in contrast to those incident reports, and that Dr. Blume was not given a meaningful opportunity to rebut those charges.
The hospital asserted in its defense that the HCQIA merely required a procedure which was fair to the physician under the circumstances. The Court acknowledged the existence of that language, but concluded it was not applicable to the present case.
In granting summary judgment on breach of contract issues, the Iowa Court followed the majority position with regard to medical staff bylaws, finding that the medical staff bylaws constituted a contract between the hospital and the individual members of the medical staff.
The full text of the case is available at http://op.bna.com/hl.nsf/r?Open=psts-6zpr5q.Highmark Blue Shield has expanded its list of procedures requiring pre-authorization. The full list of procedures is available on the Highmark Resource Center website:
https://www.highmarkblueshield.com/pdf_file/rc-hbs-auth-code-update-april-2007.pdf
It includes a significant number of home health and DME services, prosthetic devices and other services.
Highmark has also removed two procedures from the list, i.e., pharmacologic management (90862) and the new technology intraocular lens Category 3 (Q1003).
These changes will be effective April 1, 2007 and will apply to members enrolled in Select Blue, Direct Blue and Freedom Blue.
Med Law Blog is published by Michael Cassidy
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