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

Posted now are:

·         A CMS fact sheet and questions/answers pertaining to the incentive programs

·         Link to press release pertaining to the process of defining meaningful use (Comments are due June 26, 2009.)

·         Resources on Health IT and privacy & security (HIPAA)

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The Centers for Medicare & Medicaid Services (CMS) has become aware of a scam where perpetrators are sending faxes to physician offices posing as the Medicare carrier or Medicare Administrative Contractor (MAC).  The fax instructs physician staff to respond to a questionnaire to provide an account information update within 48 hours in order to prevent a gap in Medicare payments.  The fax may have the CMS logo and/or the contractor logo to enhance the appearance of authenticity.

Medicare FFS providers, including physicians, non-physician practitioners, should be wary of this type of request.  If you receive a request for information in the manner described above, please check with your contractor before submitting any information.  Medicare providers should only send information to a Medicare contractor using the address found in the download section of the CMS.gov website found at http://www.cms.hhs.gov/MLNGenInfo/ or http://www.cms.hhs.gov/MedicareProviderSupEnroll .

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Stratienko v. Chattanooga-Hamilton County Hospital Authority, has produced yet another important opinion from the HCQIA prospective. In its most recent ruling, the United States District Court for the Eastern District of Tennessee has dismissed a claim by physicians, named as defendants in the litigation arising out of Dr Stratienko's suspension, to recover attorney's fees against Dr. Stratienko. Furthermore, the denial of attorney's fees arises both under the Health Care Quality Improvement Act (HCQIA) and the Civil Rights Act, i.e. 42 U.S.C. § 1983. Both HCQIA and the Civil Rights Act condition the fee award in favor of prevailing defendants on a finding that the claims were frivolous, unreasonable, brought without foundation, or brought in bad faith.

HCQIA § 11113 states:

"In any suit brought against the defendant, to the extent that a defendant has met the standards set forth under section 412(a)[42 U.S.C. § 11112(a)] and the defendant substantially prevails, the Court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of suit attributable to such claim, including a reasonable attorney's fee, if the claim, or the claimant's conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith."

With respect to HCQIA, the Court indicated that it must: 

". . . carefully distinguish between claims it ultimately finds unmeritorious, and claims that are frivolous from the outset . . . Here, though the Court concluded plaintiff's claims lacked merit, plaintiff stated those claims by relying on existing precedent and references to the record . . . While the Court ultimately did not agree with plaintiff's characterization of the facts and legal arguments, this alone does not render his claim frivolous. For these reasons, an award of attorney's fees, under Section 11113 would be inappropriate."

One important aspect of the case is that, although defendants prevailed upon summary judgment and the Court concluded that they had substantially prevailed in accordance with the HCQIA requirements, the mere fact that they had substantially prevailed on summary judgment did not automatically or presumably indicate that the claim was frivolous, unreasonable, without foundation, or in bad faith.

Another significant aspect of the case is the analysis of the various HCQIA attorney's fees claims.

The analysis under the civil rights claim was substantially similar. 42 U.S.C. § 1988 allows attorneys fees for prevailing defendants only, upon a finding by the District Court that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. The Court found that "awarding attorney's fees against a losing civil rights plaintiff is an extreme sanction and must be limited to truly egregious cases of misconduct . . . While the Court rejected plaintiff's § 1983 claims as being legally deficient, they were not so wholly without foundation as to be egregious, affording plaintiff no basis on which to bring his suit."

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Is there a duty for a hospital to answer a credentialing inquiry from another institution? A hospital’s refusal to answer an inquiry presumably has the same impact as an employer’s refusal to answer a request for references: when the inquiring party receives no response, they presume, and usually rightly so, that the party to whom the question was directed is following their mother’s advice, i.e. if you don’t have anything good to say about somebody, don’t say anything at all. That usually results in the person seeking credentials being rejected.

Under these circumstances, is there a duty for a hospital to respond to these requests? The hospital certainly expects that institutions to which they submit questions will answer those requests. There is a duty to submit a report to the National Practitioners Data Bank (NPDB). Presumably, if the hospital has submitted such a report, it has satisfied whatever ethical or moral obligation it has to respond because that response is a public record which the querying hospital can obtain.

However, the Data Bank report is often just the trigger, precipitating a request for further information. The responding hospital presumably has adequate immunity.  HCQIA provides immunity for peer review actions. Must state laws provide immunity for responding truthfully, or at least not maliciously, to peer review inquiries. Most hospitals have an application process by which the applicant releases and immunizes those facilities to which their questions will be submitted.

I posted this question in a recent AHLA List Serve. Most responses indicated that nobody was aware of any Joint Commission or state statute imposing such a duty, although there may be some state licensing requirements that do impose that duty.

Kristen Miles, as assistant AG, in the University of Washington Division, did cite a recent case, Liu v. Board of Trustees of the University of Alabama, which holds: “Nothing in the HCQIA mandates that healthcare entities provide peer review information to credentialing authorities in other states in excess of the information required to be reported to the NPDB.”

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The Pittsburgh Regional Health Initiative has issued a press release and report describing its 10 years of efforts in reforming health care, commenting on the Obama Health Care Reform Initiatives, and describing the Federal Economic Stimulus Bill for health care technology improvements, plus other reports. All the reports are attached as links below and make interesting reading.

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http://www2.ftc.gov/opa/2009/06/altabates.shtm

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