Med Law Blog : Pennsylvania Health Care Lawyers & Attorneys : Tucker Arensberg Law Firm : Employee Benefits, HIPAA & HIT in Pittsburgh, PA

The 2009 Medicare Physician Fee Schedule made some changes regarding physician enrollment. The most significant change is the elimination of retroactive billing. Prior to the 2009 changes, Medicare permitted retroactive billing for up to 27 months following the effective date of a physician's Medicare enrollment, to allow physicians to bill for services that they provided while the application was pending. Although there were usually significant delays in physician approval, mostly due to simple time delays in a very inefficient system, that rarely reached 27 months.

The retroactive billing date has now been almost totally eliminated. Rather than 27 months, the physician is now permitted to bill as of the date of the application that was approved (which is interpreted to mean the last version of the application after any additional information submitted pursuant to CMS's request) or the date that services are actually provided, whichever is later. There are two exceptions allowing retroactive billing for just 30 days if the application could not be submitted for some good reason and the physician satisfied all requirements or 90 days in the event of a presidential declaration of disaster. 

A similar change has been made regarding the revocation of participation. In the event of certain enumerated serious events, i.e. conviction of the felony, the suspension/revocation of a license, or program debarment, in which case the billing rights are terminated immediately.

In all other termination circumstances, the physician will have 60 days to bill for services that were provided prior to the termination date, rather than the 27 months that was previously available.

Finally, physicians now must report changes in the ownership of the enrolled entity or the practice address of the enrolled entity, within 30 days of the change.

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The Court of Appeals for the State of California has overruled a trial court decision holding a summary suspension was not a formal proceeding entitled to Anti-SLAPP protection. In Arunasalam v. St. Mary Medical Center, Dr. Arunasalam was summarily suspended for disruptive conduct and sought a Medical Staff Hearing, but the Medical Staff Hearing was delayed because of the resignation of one of the hearing panel members during the proceedings. While proceedings were ongoing to convene a new panel, Dr. Arunasalam sought injunctive relief. 

The hospital moved to strike the petition for injunctive relief under the provisions of the Anti-SLAPP statute, which is California's statute protecting administrative proceedings from "strategic lawsuits against public participation." The intent of the statute is to prevent frivolous suits against formal governmental proceedings in order to allow the proceedings to follow the statutorily mandated course of action.

The trail court held that a summary suspension was not a formal proceeding under California law, and therefore the Anti-SLAPP did not apply.

On appeal, the appellate court reversed the trial court holding that a summary suspension was part of the formal proceedings included in the California statute regulating medical staff proceedings.

View a PDF of the case.

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In addition to the COBRA subsidy, the American Recovery and Reinvestment Act of 2009 (“ARRA”), enacted on February 17, 2009, made significant changes to HIPAA privacy and security obligations. Those changes affect covered entities, including group health plans, and also affect business associates.  Although most of the HIPAA changes are effective February 17, 2010, one change (regarding breach notifications) will become effective earlier.  A summary of the key provisions affecting group health plan covered entities and business associates is below.   

• Requirement to Notify Individuals of HIPAA Breaches. The law changes now require covered entities to notify eachindividual whose unsecured protected health information (“PHI”) has been breached. For a breach of PHI under the control of a business associate, the business associate is required to notify the covered entity. Notice of the breach has to be provided to the Secretary of the US Department of Health and Human Services (“HHS”) and in the case of a mass breach involving more than 500 individuals, to a prominent media outlet.  Unsecured PHI means PHI that is not secured through the use of a technology or methodology specified by the Secretary of the US Department of Health and Human Services. 
  The Secretary of HHS is required to issue guidance about acceptable technology within 60 days of February 17, 2009. The law contains a default description of acceptable technology in the event that HHS does not timely issue guidance. The ARRA directs the HHS to issue regulations within 180 days of February 17, 2009. Then, the new notification requirements will apply to breaches discovered on or after the date that is 30 days after the date the regulations are published.

• Additional Individual Rights. 

    - Accounting of Disclosures for Treatment, Payment and Health Care Operations.Under current law, individuals have the right to an accounting of disclosures of their PHI made in the previous six (6) years requiring covered entities to track the disclosures. There are certain exceptions to the accounting requirement such as disclosures that are made for treatment, payment, or health care operations. Now, a covered entity that uses or maintains an “electronic health record” with respect to PHI must account for disclosures for treatment, payment, and heath care operations. This accounting is limited to disclosures made in the previous three (3) years. HHS is required to promulgate regulations implementing this new requirement. 

There are two general effective dates: (1) with respect to electronic health records acquired by a covered entity on January 1, 2009, the effective date is January 1, 2014 and (2) with respect to electronic records acquired by a covered entity after January 1, 2009, the effective date is January 1, 2011 or, if later, the date the electronic record is acquired. 

-          Access to PHI in Electronic Form.  If a covered entity uses or maintains an electronic health record for PHI, the new law gives individuals the right to obtain a copy of the PHI in electronic format. The individual can also direct the covered entity to transmit an electronic copy directly to an entity or person designated by the individual. 
This requirement is effective as of February 17, 2010.   

-          Right to Restrict Disclosures for Payment & Health Care Operations. Under current law, individuals have the right to request that a covered entity not disclose their PHI for purposes of routine treatment, payment, or health care operations, although the covered entity is not required to agree to the restriction. Now, the covered entity must agree to the restriction for purposes of payment and health care operations (but not for purposes of treatment)  if the PHI pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full. This requirement is effective as of February 17, 2010.

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Today, the U.S. Department of Labor (“DOL”) issued model notices reflecting the recently enacted COBRA subsidy requirements and also issued updated FAQs on how the COBRA subsidy provisions are to work. View the model notices and FAQs. A summary of the different model notices (taken from the DOL’s descriptions) is below.

General Notice (Full version).  Plans subject to the federal COBRA provisions must send the general notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event. This full version includes information on the subsidy as well as information required in a COBRA election notice.

General Notice (Abbreviated version). The abbreviated version of the general notice includes the same information as the full version regarding the availability of the premium reduction and other rights under the recently enacted COBRA changes, but does not include the COBRA election information. The abbreviated notice may be sent in lieu of the full version to individuals who experienced a qualifying event on or after September 1, 2008, have already elected COBRA coverage, and still have it.

Alternative Notice. Insurance issuers that provide group health insurance coverage must send the alternative notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model alternative notice or the abbreviated model general notice appropriate for use in certain situations.

Notice in Connection with Extended Election Periods. Plans subject to the federal COBRA provisions must send this type of notice to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA election were in effect), which means anyone who is eligible for the COBRA subsidy, who:

1.          had a qualifying event at any time from September 1, 2008 through February 16, 2009; and

2.          either did not elect COBRA or who elected it but subsequently discontinued COBRA.

Note that this type of notice includes information on the recently enacted additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

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Although group health plan sponsors are busy focusing on the COBRA subsidy enacted this past February, there are a flurry of laws impacting group health plans that have compliance dates ranging from April 2009 to February 2010. One of the laws, “The Children’s Health Insurance Program Reauthorization Act of 2009”, also enacted in February 2009, imposes compliance obligations on group health plans that start as early as April 1, 2009. We will provide you with summaries of the other laws impacting group health plans in a series of Employee Benefits Law ALERTS.

The Children’s Health Insurance Program Reauthorization Act of 2009 extends and expands the state children’s health insurance program (CHIP). The following key provisions affect group health plans and note that some obligations must be complied with by April 1, 2009. 

• Premium Assistance Subsidy for Employer Coverage. States may elect to offer a premium assistance subsidy to help CHIP and Medicaid eligible children obtain “qualified employer-sponsored coverage”. The subsidy may be provided as a reimbursement directly to the employee or as a direct payment to the employer. Employers can opt out of direct payments.
• Notice of Premium Assistance Subsidy. Employer group health plans in states that provide Medicaid or CHIP premium assistance subsidies must give notice to employees of the availability of the subsidy. The Department of Health and Human Services is required to develop model notices by February 4, 2010. The notices can be provided with open enrollment materials or with the SPD. The notice requirement is effective for plan years beginning after the date the model notices are issued.
  
• Disclosure to States. Plan administrators of group health plans are required to disclose information about the plan to states upon request. The Departments of Labor and Health and Human Services are required to develop a model disclosure form for plan administrators. States may not request the disclosure until the first plan year beginning after the date the model disclosure form is issued.
• New Special Enrollment Rights. In addition to existing special enrollment rights, group health plans must now also allow employees and dependents who are eligible but not enrolled for coverage to enroll under the following additional circumstances. 

       - The dependent or employee loses eligibility for CHIP or Medicaid. If the dependent or employee loses eligibility for CHIP or Medicaid, enrollment must be requested within 60 days after the termination of the CHIP or Medicaid coverage. Note that the 60 day period is in contrast to other special enrollment rights which can be limited to 30 days. 

       - The employee or dependent becomes eligible for a premium assistance subsidy through Medicaid or CHIP. If the employee or dependent becomes eligible for premium assistance through Medicaid or CHIP, enrollment must be requested within 60 days after eligibility is determined. 

Plans must comply with the special enrollment right provisions as of April 1, 2009.

What Plans Need to Do. Plans, sponsors, and/or administrators will need to take the following actions:

• comply with the new special enrollment rules by April 1, 2009;
• update plan documents, SPDs, cafeteria plan change in election rules, health plan change in election rules, and special enrollment right notices, as soon as possible, to reflect the expanded special enrollment rights;
• determine whether the subsidy described above is available in states where employees reside;
• provide notice of the subsidy when the government issues the model notices; and
• disclose plan benefit information to states upon request after the government agencies issue model disclosure forms.

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On March 3, 2009, CMS published the "Decision Memo for Sleep Testing for Obstructive Sleep Apnea." A summary of the decision follows:

"CMS finds that the evidence is sufficient to determine that the results of the sleep tests identified below can be used by a beneficiary's treating physician to diagnose OSA, that the use of such sleep testing technologies demonstrates improved health outcomes in Medicare beneficiaries who have OSA and receive the appropriate treatment, and that these tests are thus reasonable and necessary under section 1862(a)(1)(A) of the Social Security Act.

Therefore:

      1.   Type I Polysomnography (PSG) is covered when used to aid the diagnosis of obstructive sleep apnea (OSA) in beneficiaries who have clinical signs and symptoms indicative of OSA if performed attended in a sleep lab facility.

      2.   A Type II or a Type III sleep testing devise is covered when used to aid the diagnosis of obstructive sleep apnea (OSA) in beneficiaries who have clinical signs and symptoms indicative of OSA if performed unattended in or out of a sleep lab facility or attended in a sleep lab facility.

      3.   A Type IV sleep testing devise measuring three or more channels, one of which is airflow, is covered when used to aid the diagnosis of obstructive sleep apnea (OSA) in beneficiaries who have signs and symptoms indicative of OSA if performed unattended in or out of a sleep lab facility or attended in a sleep lab facility.

      4.   A sleep testing device measuring three or more channels that include actigraphy, oximetry, and peripheral arterial tone is covered when used to aid the diagnosis of obstructive sleep apnea (OSA) if performed unattended in or out of a sleep lab facility or attended in a sleep lab facility."

Check out the complete decision memo and you can read a detailed explanation of sleep testing issues in the post "Medicare to Cover Sleep Disorder Treatments" in the PA Elder, the State and Fiduciary Law Blog.

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Today, David Sawyer of Tucker Arensberg, P.C. will be leading a call-in seminar for the Pennsylvania Bar Institute (PBI) regarding the recent COBRA changes. Register for the live seminar (which is from 12:30-1:30).

You also may register to listen to the seminar through the internet after its live broadcast by following the same link. Written materials are made available by the PBI for those who register. We hope that you tune in if possible.

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The trial court in Baptist Health vs. Murphy has issued a decision permanently enjoining Baptist Health from enforcing its economic credentialing policy, and finding that Baptist Health tortuously interfered with the plaintiff physician's contracts and engaged in deceptive trade practices under the Arkansas Deceptive Trade Practices Law. 

Attached below is a comment on the article by Michael Callahan and a link to the opinion. Watch for the teleconference on the case to be presented by the American Health Lawyers Association and moderated by Mike Callahan. 

There should be some very interesting content in this presentation, because the Arkansas trial court made some very provocative comments regarding the exceptional protection to the afforded physician/patient relationships, the anti-competitive and anti-public policy aspects of economic credentialing, the advantages of specialty hospitals and the role of marriage in this issue. You will have to read the opinion to discover the impact of marriage in this case.

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"In case you have not already seen this decision/order that was entered last Friday, attached is part of the long litigation saga in the ongoing Baptist v. Murphy litigation in Arkansas. I would strongly suggest that you all read this case because it is far ranging and addresses restraint of trade, public policy, tax exemption, fraud and deceptive business practices and even the sanctity of marriage as grounds to support the imposition of a permanent injunction to enjoin the implementation of an "economic credentialing policy" that would have required applicants and current medical staff members and any family member to divest themselves of their economic interest in a competing heart hospital. I assume you have all read the 2006 Arkansas Supreme Court decision which the trial court has based its order after a 10 day trial.

At a minimum, it is instructive as a road map for all hospitals to consider when contemplating a similar policy. There are many lessons learned and, at least in my opinion, mistakes the hospital made when developing the policy that others would have or will avoid. Also, had this dispute occurred in a different market where there were more hospital providers and managed care plans that would have given excluded providers other hospital options, I think the result could have been different. In addition, there are some unique public policy holdings in Arkansas along with other legal theories which exist in many other states which had no application here that also might have led to a different result.

The person who interviewed me did not know if an appeal was being contemplated or not. I have not compared this order to the 2006 Supreme Court decision to know whether the two are consistent or not. If so, it would seem that further appeals may be futile although that does not seem to have served as an obstacle in this ongoing dispute. Anyway, hope all is well with everyone."

MICHAEL R. CALLAHAN

michael.callahan@kattenlaw.com

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www.medlawblog.com/uploads/file/BaptistvMurphyInjunction0209(1).pdf

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Two physicians who complained to a professional organization about a fellow doctor who testified in a malpractice case are liable for defamation, a Minnesota jury has found.

The jury in Yancey v. Weis (Court File No. 27-CV-07-15651) found the defendants defamed plaintiff Charles Yancey, M.D. when they claimed to the American Academy of Ophthalmology (AAO) that his testimony against them was misleading. 
 

To read the full press release article, click here.

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