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

  Thanks to the commenters of the linkedIn Health Innovations Group for highlighting the Harvard study concluding that hospital computing modestly improves processes, juxtaposed with CMS announcement of intent to publish EMR incentive payment  and meaningful use regs in early January.

http://www.federalregister.gov/OFRUpload/OFRData/2009-31217_PI.pdf

http://www.amjmed.com/webfiles/images/journals/ajm/AJM10662S200.pdf

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The Pennsylvania Supreme Court issued a majority opinion yesterday, December 29, 2009, vacating the Superior Court’s Bowmaster holding and reinstating the Order of the Court of Common Pleas of Centre County dated November 6, 2006.  E.D.B., v. Gerald Clair and Centre Community Hospital, No. 78 MAP 2008 (December 29, 2009), available at J-42-2009mo.pdf. 

The Supreme Court’sE.D.B. opinion settles the “incompatible--indeed opposite—holdings” reached by the Superior Court in Bowmaster, 933 A.2d 86 (Pa.Super. 2007), and the Commonwealth Court in Shaffer-Doan v. Department of Public Welfare, 960 A.2d 500 (Pa.Cmwlth. 2008). 

The Supreme Court majority sided with the Commonwealth Court by holding that a minor Medical Assistance (Medicaid) recipient has a cause of action against a third party tortfeasor to recover and reimburse the Department of Public Welfare for Medical Assistance benefits received during minority.  Specifically, the Court majority found interpreted subsection 1409(b) of the Pennsylvania Fraud Abuse and Control Act to supersede, according to the dissent, “centuries’ worth of Pennsylvania jurisprudence which places the responsibility to raise a child upon her parents”.  The Court majority favored the public interest of protecting taxpayers and the public fisc in the provision Medical Assistance benefits historically not considered in common law parental support principles.

Notably, the Supreme Court recognized that the General Assembly enacted subsection 1409(b), conferring upon the Department of Public Welfare a statutory right to reimbursement from the “entire amount of any settlement” “notwithstanding any other provision of law”, prior to the United States Supreme Court’s monumental Ahlborn decision.  547 U.S. 268 (2006).  Because the operative facts of E.D.B.’s case arose pre-Ahlborn, the Court leaves the door open for post Ahlborn challenges to claims for reimbursement by the Department when the a beneficiary’s complaint unequivocally fails to assert damages for medical expenses incurred during minority.  Notably, the Department of Public Welfare appears to be proactively preempting the opportunity for any such argument by actively intervening in minors’ actions that do not seek recovery for medical expenses during minority, as contemplated in 62 P.S. 1409(b). 

Note: Thanks to Nora E. Gieg, Esq., of Tucker Arensberg, P.C., for contributing to this article, edited and expanded by Neil E. Hendershot, Esq. for this Blog.

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Money in Politics, a Congressional watchdog, presents a study at the link below tracking almost $400 million of healthcare lobbying dollars over the last 6 years.

http://www.followthemoney.org/press/ReportView.phtml?r=408&ext=1&PHPSESSID=8032c24f7bbb277ec941378124fa9154

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American Health Lawyers Assocaition has reported:

President Obama Signs into Law a Temporary Fix to Physicians' Medicare Reimbursement
By Jeffrey Moore , Phelps Dunbar LLP

On December 19, 2009, President Barack Obama signed the Department
of Defense Appropriations Act, 2010 (H.R. 3326), into law, which freezes Medicare physician payments for two months, avoiding a 21% payment cut to physicians' Medicare reimbursement scheduled to go into effect on January 1, 2010. The House previously approved H.R. 3326 on December 16, 2009, while the United States Senate passed H.R. 3326 on December 19, 2009.

Because the Department of Defense Appropriations Act, 2010, is only a temporary fix to the Medicare physician payment issue, Congress will be forced to address this payment issue in early 2010, as the Medicare physician payment cuts are set to go back into effect on March 1, 2010.

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MedLawBlog was recently recognized in the ‘Best of Law Blogs’ for Mike Cassidy’s ‘New Year’s Predictions for Health Care’ posting.  Kevin OKeefe named the MedLawBlog, for the health care industry, among a list of law blogs containing predictions for 2010. 

Please click here to see the full list of blogs named and stay posted to the MedLawBlog for the latest information on health care law. 

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 Contributed by Paul Welk, Esquire

412.594.5536, pwelk@tuckerlaw.com

In Liss & Marion PC v. Recordex Acquisition Corp., the Pennsylvania Supreme Court examined whether a class of law firms who requested medical records could recover alleged overcharges from a copying services company hired by medical care providers to fulfill their record requests. The Supreme Court's opinion affirmed the lower court's finding of summary judgment in favor of the class and against the copying services company. 

Among its allegations, the law firms asserted that the copying services company was in breach of the contract because it improperly charged the rate for microfilm copies for copies of electronic records. As to the breach of contract claim, the Court sided with the law firms in finding that this claim was based in contract and not under the Pennsylvania Medical Records Act (MRA), which does not provide a statutory remedy to recover the overages. In addition to establishing that a proper contract claim had been filed, the Court examined whether charging Rate M (microfilm) rather than Rate D (the default rate) for copies of electronic records was a breach of underlying contract. The copying services company argued that the language of the MRA which states that prices "for paper copies" shall not exceed Rate D should be read to mean "from paper records" only. Therefore, the copying services company argued, the MRA does not provide a specific rate for copies from electronic records, thus allowing copying services companies to charge a "reasonable" rate. In rejecting this argument, the court noted that the statutory language was clear and that when providing paper copies from any medium, the rate should be Rate D, with the only exception being copies from microfilm. 

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The Kaiser Foundation has updated it's interactive comparison of the various healthcare reform proposals. Easy way to keep informed. Click the link.

http://www.kff.org/healthreform/sidebyside.cfm#

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December is always a timely month for making New Year’s predictions, but especially so for health care, given the national debate on health care reform. A recent article by the Medical Group Management Association (MGMA) contained five health care predictions, which not surprisingly form the core of the various health care reform proposals:

1.   Health care insurance coverage will be expanded for the uninsured;

2.   Providers will be paid less for their services;

3.   Business and personal income taxes will increase;

4.   The use of health care information technology (HIT) in the form of e-prescribing, electronic medical records (EMR) or electronic health records (EHR) will expand, first through payment incentives and then through mandates;

5.   Providers (i.e., hospitals, physicians) will continue to integrate to cope with reimbursement changes such as medical homes, accountable care organizations, bundled payments and global payments (all of which could just be new names for capitated payment systems).

I thought it would be helpful to expound on some of these predictions and relate them to the general health care reform proposals.

More coverage

All reform proposals include provisions for expanding coverage. However, the issue is more complex than simply expanding coverage for the public assistance component of the population, because it includes provisions that both encourage and require more employer-sponsored health coverage (play or pay) and more individually purchased health coverage (individual mandates) for healthy individuals who can afford the coverage, but who chose not to buy into an insurance pool. On a theoretical basis, this defeats the concept of insurance, which is to spread the risk. For example, state law requires all vehicle owners to purchase insurance; individual mandates are a move toward that concept and an obvious benefit to health insurance companies.

On an individual basis, increased coverage is facilitated either by discouraging insurance company practices that limit availability (i.e., pre-existing conditions, benefit cap) or by providing financial assistance (through premium assistance, tax credits or premium credits) for individuals who cannot afford individual insurance, and by imposing excess taxes on the individuals who can afford insurance but decline to purchase it. On the employer side and the insurance company side, increased coverage is provided either by the “public option” or by requiring the creation of structures intended to make insurance more available and more affordable, such as insurance pools and regional insurance exchanges. The chief opponents of the public option are the more affluent taxpayers who believe they will be taxed to provide for additional benefits and health insurance companies that object to government establishing another competitive insurance entity. The commercial health insurance industry would much prefer the public option to be limited to the Medicaid type programs, but require employers and healthy individuals to purchase insurance from existing providers. As a matter of fact, the healthy individuals who currently decline to purchase insurance would be the absolute best new customers (i.e., premium payers with little in the way of medical expenses).

Industry opponents of the public option claim that competition among the insurance companies will provide the most cost-effective mechanism for increasing coverage and restraining costs. However, health insurance is not like auto insurance. An individual can buy auto insurance online from almost any auto insurance company in the country; when an accident happens, there will be plenty of auto collision repair shops vying for the chance to fix your car and accept the insurance payment from whomever. We in Western Pennsylvania know that won’t work here. All of the major hospitals and many of the regional hospitals are controlled by two systems—UPMC and WPAHS—with UPMC controlling a significant majority of the beds in certain markets. Similarly, thousands of physicians are employed by both institutions. Without the participation of UPMC and WPAHS in a regional insurance exchange, there would simply not be sufficient hospitals or physicians available to other insurance plans to provide medical care on a cost-effective basis. Sure these networks might participate at “charge levels,” but that would not enhance competition. Perhaps, if participation in the regional insurance exchange products was mandatory for all institutions that are either non-profit or that participate in federal health care programs, then the regional insurance exchange idea might work.

A recent article by the Kaiser Foundation indicated that the health care competition is not much more effective in many other states. In nine states, one insurer controlled more than 75 percent of the market. In 39 other states, two insurers controlled at least 50 percent of the market. With concentration of economic power to that extent, solving the health care insurance problem with increased competition would seem unlikely.

Taxes will increase

The current Medicare system is not paying for itself in terms of the premiums covering expenses. It is not difficult to understand why we cannot both increase coverage and decrease costs. Therefore, all of the proposals that provide public options and premium subsidies to increase coverage also contain tax increases on employers and individuals to pay for that coverage.

From the employer’s perspective there would be taxes on excess benefits or Cadillac-type plans, excise taxes on individuals who do not purchase coverage, and limitations on deductions for high benefit health insurance plan premiums.

On an individual basis, marginal income tax rates in the upper brackets would increase, health insurance in excess of certain thresholds would be taxed, funding of flexible spending accounts would be limited and the benefit distributions taxed. In addition, some proposals include fees or excise taxes on pharmaceutical companies, health insurance companies and medical device companies.

Providers will be paid less

All of the plans are chock full of programs to reduce fraud, eliminate waste, increase efficiency and pay for performance. There is a plethora of new commissions, task forces, research centers, pilot programs, national strategies and incentives for compliance effectiveness, all of which are intended to reduce costs and improve efficiency. However, none of these suggestions seriously contemplates that the efficiency increases and cost reductions will offset the contemplated benefit increases.

The Medicare Fee Schedule proposed by CMS for 2010 already contemplates a 21.5 percent decrease in Medicare payments to physicians, which is the statutorily mandated increase imposed by the Sustainable Growth Rate (SGR) formula adopted when RB-RVS was adopted in the early ’90s. I would expect that everybody understands the arithmetic of the contemplated SGR reductions, because this has been an issue for the last six years. SGR is a formula intended to neutralize volume or intensity increases over the intensity that was originally projected as part of the budget process for designing RB-RVS. CMS projected utilization and budgeted to pay for that projected utilization over the period of years. SGR was intended to automatically reduce the Medicare conversion factor if the volume or intensity exceeded those projections. Since intensity has routinely exceeded expectations and the SGR reduction intended to offset those increases has been statutorily waived by Congress for each of the last five or six years, the gap simply continues to grow. Congress is working on a response to this issue independently of the various health care reform proposals, but no solution was in sight at the time of this article. One of the primary reasons the AMA is supporting “reform” is the expectation of a permanent SGR fix, but that issue is still unresolved.

Several things we do know for sure about physician reimbursement in 2010 are as follows:

1.   CMS has eliminated the consult billing codes and slightly increased the work relative value units for evaluation and management codes;

2.   Starting in January 2012, accreditation will be required for the suppliers of the technical component of advanced diagnostic imaging services, which are currently defined as MRI, CT, nuclear medicine and PET, although CMS retains authority to expand that category;

3.   Technical component reimbursement for diagnostic imaging equipment costing more than 1 million dollars will be reduced by almost 50 percent by changing the assumed equipment utilization rate from 50 percent to 95 percent, meaning that the budgeted amount for the technical component will be distributed over almost twice as many procedures, thereby effectively reducing the TC by almost 50 percent;

4.   Primary care, ophthalmology, dermatology and geriatrics will see an increase in relative value units for their services, while imaging specialties such as radiology and cardiology will see significant reductions, with nuclear medicine facing a cut of approximately 18 percent.

Tort reform

No discussion of health care reform would be complete without the inclusion of tort reform as an issue. However, we need to remember that these issues are politically linked, but not necessarily financially linked. Tort reform clearly has an impact on the cost of malpractice insurance premiums, as amply demonstrated in the states that have enacted tort reform through some combination of caps on non-economic damages and limitation of plaintiffs’ attorneys fees. However, most studies regarding utilization, including a recent study by the Congressional Budget Office, conclude that tort reform has only a .002 or .003 (.2-.3 percent) impact on utilization. Therefore, although tort reform may indeed be a just concept, it has very little to do with the cost of health care. Note that one health care reform proposal offers federal dollars to states to develop alternative resolution mechanisms so long as they do not adopt damage caps, a concept unlikely to survive constitutional scrutiny pursuant to the Equal Protection Amendment.

Furthermore, it may actually be too late for tort reform to have much impact on the cost of medical malpractice insurance in states such as Pennsylvania. Ironically, that is not because Pennsylvania has managed its malpractice program so adeptly. Conversely, it is because malpractice insurance reforming efforts and protections in Pennsylvania have failed so miserably that almost all major health care systems provide captive insurance programs or risk pools for their own institutional insurance and for the physicians who are employed or otherwise affiliated with those hospitals. The need to manage malpractice costs was driven by the wide fluctuations and malpractice premium costs arising out of the mismanagement of the CAT fund. Although the CAT fund was ultimately abandoned and replaced with a similar but heretofore better managed Mcare program, by the time that happened so many institutions and physicians had become self-insured that the attractiveness of Pennsylvania as a malpractice insurance market was so reduced that any improvements in the existing commercial malpractice insurance practices and programs would have little impact on the statewide cost of malpractice insurance or the medical practices of those insured by the captive groups.

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To the extent possible and in consideration of possible legislative changes, the Centers for Medicare & Medicaid Services (CMS) is working with Congress, health care providers, and the beneficiary community to avoid disruption in the delivery of health care services and payment of claims for physicians, non-physician practitioners, and other providers of services paid under the Medicare physician fee schedule, beginning January 1, 2010.  In this regard, CMS has instructed its contractors to hold claims containing services paid under the Medicare Physician Fee Schedule (MPFS) for the first 10 business days of January (January 1 through January 15) for 2010 dates of service. This should have minimum impact on provider cash flow because, under current law, clean electronic claims are not paid any sooner than 14 calendar days (29 days for paper claims) after the date of receipt.  Meanwhile, all claims for services delivered on or before December 31, 2009, will be processed and paid under normal procedures.

After 10 business days, contractors will begin releasing held claims into processing under the fee schedule which implements current law.  This, of course, could result in claims being processed with the negative 21.2percent update.  If a new law is enacted which changes the negative update effective January 1, CMS will correctly process claims under the new law and, if necessary, CMS is prepared to automatically reprocess most of those claims which have already been processed at the lower rate. 

Under the Medicare statute, Medicare payments to physicians and other affected providers are based upon the lesser of the actual charge or the MPFS amount.   Providers who submit charges that are greater than the negative 2010 MPFS will automatically have their claims reprocessed.  Physicians who submit charges that are equal to or less than the 2010 MPFS amount will need to request an adjustment.  Submitted charges on claims cannot be altered without a request from the physician/provider.

To the extent possible, providers may hold claims in-house until it becomes clearer as to whether new legislation will be enacted or until cash flow becomes problematic.  This will reduce the need for providers to reconcile two payments (i.e., the initial claim and the reprocessed claim), and it will simplify provider billings of beneficiary coinsurance and payment calculations for payers which are secondary to Medicare.

CMS has extended the 2010 Annual Participation Enrollment Program end date from January 31, 2010, to March 17, 2010– therefore, the enrollment period now runs from November 13, 2009, through March 17, 2010.

The effective date for any Participation status change during the extension, however, remains January 1, 2010, and will be in force for the entire year.

Contractors will accept and process any Participation elections or withdrawals, made during the extended enrollment period that are received or post-marked on or before March 17, 2010.

In addition, be on the alert for more information about other legislative provisions which may affect you.

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In Kentucky, common law president permits discovery of peer review documents. Ohio Rev. Code § 2305.252 protects peer review discovery.

In Saleba v. Schrand, the estate of a Kentucky resident sued an Ohio physician and Good Samaritan Hospital, located in Cincinnati, Ohio, in Kentucky based upon the results of medical services performed in Ohio. The Kentucky Supreme Court affirmed an appeals court ruling that, under Kentucky’s choice of law rules, documents that would have been protected by Ohio’s peer review privilege were discoverable in a medical malpractice action brought in Kentucky.

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NYT reports that there are numerous hidden benefits in the healthcare reform bill designed to "attract" support from various Senators.

http://www.nytimes.com/2009/12/21/health/policy/21healthcare.html?_r=2&pagewanted=2&partner=rss&emc=rss

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The Montana Supreme Court held in John Doe, M.D. v. Community Medical Center that the Health Care Quality Improvement Act (HCQIA) does not preempt state law regarding injunction and breach of contract, thereby allowing the lower court to issue an injunction against Community Medical Center prohibiting it from issuing a Data Bank report regarding the physician summary suspension. 

The basic facts of this case are that a physician was investigated for ordering tests for family members. During the hospital’s investigation regarding this issue, the investigating committee concluded that the physician’s “demeanor and refusal or inability to coherently answer routine and legitimate questions regarding the volume and nature of the tests caused me to have serious and legitimate concerns regarding his mental health and ability to exercise good judgment,” upon which the committee summarily suspended the physician’s clinical privileges. As with most medical staff bylaws, the bylaws in the current case require a finding that the physician’s continued practice posed “the substantial likelihood of imminent impairment of the health or safety of any patient, prospective patent, employee or other person present in the hospital.” 

The physician’s contention was that the hospital had not proven just cause for a summary suspension, and therefore breached its bylaws and accordingly could not issue a report to the National Practitioner’s Data Bank regarding the suspension. The hospital argued that HCQIA preempted state law and required the hospital report.

The Montana Court held that HCQIA did not specifically preempt the state rules regarding breach of contract and injunctions, and that, since the state presumably retained authority to regulate physician conduct and protect its citizens, there was therefore a presumption against preemption. The dissenting opinion stated that this holding would eviscerate HCQIA, and protect physicians rather than patients, contrary to the intent of the statute. 

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This article pertains to Change Request (CR) 6740, which alerts physicians and non-physician practitioners that effective January 1, 2010, the Current Procedural Terminology (CPT) consultation codes (ranges 99241-99245 and 99251-99255) are no longer recognized for Medicare Part B payment. Effective for services furnished on or after January 1, 2010, physicians and non-physician practitioners should code a patient evaluation and management visit with E/M codes that represent where the visit occurs and that identify the complexity of the visit performed. For more information, please view the article located at: http://www.cms.hhs.gov/MLNMattersArticles/downloads/MM6740.pdf on the CMS website.

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http://namss.blogspot.com/

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Effective January 1, 2010, CPT Consultation Codes ranges 99241-99245 and 99251-99255 will no longer be recognized for Medicare Part B Payment. For services furnished after January 1, 2010, physicians and non-physician practitioners should code patient evaluation and management visits with E/M codes that represent where the visit occurs and identifies the complexity. CMS has published MLN Matters Article No. MM6740 for guidance on the subject. It deals with the following:

• Section of level of evaluation and management services
• Payment for hospital observation services
• Payment for initial hospital care services
• Consultation services
• Emergency department visits
• Nursing facility services
• Prolonged services with direct fact to fact patient contact

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Contributed by Piyush Seth, Esquire

pseth@tuckerlaw.com or 412.594.5640

Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 (H.R. 4321) has been introduced by Rep. Gutierrez (D-IL) on December 15, 2009 along with 87 other members of the House of Representatives.  The proposed legislation covers comprehensive immigration issues that include, enforcement, legalization process, employment visa backlogs and temporary work visa reform.  A summary of the legislation has been posted by the American Immigration Lawyers Association at AILA InfoNet Doc. No. 09121568 on December 15, 2009.  Please click here to see the summary.

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Contributed by Lee Kim, Esquire

lkim@tuckerlaw.com or 412.594.3915

1)  Access control under 45 C.F.R. §312(a).

Policies and procedures must be implemented for information systems that maintain ePHI to ensure that only those persons or software programs that have been granted access rights.

In particular, a unique user identification must be assigned to each user for the purpose of identifying and tracking that user.

Policies and procedures must also be established and implemented as needed for obtaining necessary ePHI during an emergency (e.g., natural or manmade disaster). Key considerations include what situations would require emergency access to ePHI and which people would require emergency access to ePHI in an emergency situation.

* Automatic logoff after a period of inactivity and encryption/decryption of ePHI may be addressed and implemented to ensure access control.

1)      Access control vis-a-vis individuals and software programs for access to electronic protected health information (“ePHI”) under 45 C.F.R. §312(a).

2)      Audits on access to electronic protected health information (“ePHI”) under 45 C.F.R. §312(b).

a.      The audits may be manual or automated. The purpose of the audits is to ensure that authorized individuals or entities are accessing the ePHI.

3)      Person/entity authentication under 45 C.F.R. §312(d).

a.      Procedures must be implemented to ensure that the individual or entity accessing the ePHI is authorized to do so (e.g., passwords, swipe cards, etc.).

4)      Integrity of ePHI under 45 C.F.R. §312(c)(1).*

a.      Electronic mechanisms should be implemented to ensure that ePHI has not been altered or destroyed in an unauthorized manner.

                                                               i.      Regardless of whether the ePHI is being retrieved, transmitted, or stored, technical safeguards must be in place to ensure that there is no alteration nor destruction of the data (e.g., digitally signed ePHI, checksum or other error correction technology to ensure that ePHI is stored properly, etc.).

5)      Secure transmission of ePHI under 45 C.F.R. §312(e)(1).*

a.      A technical security measure must be implemented to guard against unauthorized access to ePHI that is being transmitted over an electronic communications network (e.g., VPN, SSL, encryption, etc.).

5)      Encryption of ePHI under 45 C.F.R. §312(e)(2)(ii).*

* The entity should assess whether the technical safeguard is reasonable and appropriate in the operating environment and whether it is likely to contribute to protecting the entity’s ePHI. If the safeguard is reasonable and appropriate, then it should be implemented. If not, the entity should document why it would not be reasonable and appropriate and implement an equivalent alternative measure, if deemed to be reasonable and appropriate.

Please feel free to contact me if you would like assistance in applying the HIPAA security rules to your current situation as a covered entity or a business associate. I may be reached at <lkim@tuckerlaw.com> or by calling 412-594-3915.

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Contributed by Nora E. Gieg, Esquire

ngieg@tuckerlaw.com or 412.594.3940 

Pennsylvania's Health Care Facilities Act, as amended, requires the Pennsylvania Department of Health to license home care agencies and home care registries. Home care agencies and registries respectively employ and refer direct care workers who provide home care services. Home care services include assistance with bathing, dressing, feeding, housekeeping, shopping, meal planning/preparation and transportation, as well as companionship, respite and specialized care services. The Department recently amended Title 28 of Pennsylvania Code by adding Subpart H, Chapter 611 (relating to home care agencies and home care registries) to set forth final regulations adopting minimum standards for the operation of home care agencies and home care registries. The final regulations are published in the Pennsylvania Bulletin, 39 Pa.B. 6958, viewable here.

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MedLawBlog has been selected as one of the "Top 50 Blogs to Learn About Medicine" by Masters In Nursing Online in the category of Industry Insiders. Masters in Nursing Online selected these blogs as a helpful tool for individuals who are seeking more resources about medicine or as a supplement to learning.

Please click here to see the full list of blogs.

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The Governor’s Office of Health Care Reform ("GOHCR") has announced a proposed strategic plan for the Pennsylvania Health Information Exchange ("PHIX"). The plan proposes a strategy for transitioning to electronic health records to promote efficiency, cut costs, and provide better quality of care. The deadline for submitting comments to GOHCR is December 20, 2009.

Further information about the strategic plan and also submitting comments may be found by clicking here.

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 The Equal Employment Opportunity Commission (EEOC) has revised its "Equal Employment Opportunity is the Law" poster. The new workplace notice is for use by employers covered by federal civil rights and anti-discrimination laws. The new poster incorporates the requirements of the Genetic Information Nondiscrimination Act (GINA) and changes made by the Americans with Disabilities Act Amendments Act (ADAAA).

The revised notice includes information regarding GINA's ban on employment discrimination based on an individual's genetic information, which tookeffect on November 21, 2009, and changes made to the ADAAA.

Employers can comply with the posting requirement by printing the "EEO is the Law" poster supplement and posting that alongside EEOC's September 2002 poster, or by printing and posting the EEOC's November 2009 version of the poster which you can find here.

If you have any questions about the required employment law posters, please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com.

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In Feller v. Miriam Hospital, the Rhode Island Superior Court provides additional guidance regarding immunity protection pursuant to the Health Care Quality Improvement Act (HCQIA). 

In that case, Dr. Joseph Feller was practicing at Miriam Hospital in Rhode Island. He encountered some disciplinary issues in 2002 and agreed to both monitoring by a hospital appointed panel (Peer Review Panel) and that such panel could institute future adverse credentialing actions (including the termination of his medical staff privileges) without the right of appeal pursuant to the medical staff bylaws. When Dr. Feller encountered additional problems in 2007, the Peer Review Panel investigated the issues and unanimously decided to terminate his privileges.

There were a variety of issues decided by the Rhode Island Superior Court, and the following two provides specific guidance in the HCQIA area.

First, the Rhode Island Court decided that an ad hoc panel was a “professional review body” as defined by HCQIA, in which the definition states “Any committee of a health care entity which conducts professional review activity,” and the definition of professional review activity included the actions taken by the Peer Review Panel. 

Second, the Court decided that physicians could waive provisions of HCQIA by specific agreement, and that HCQIA immunity would still be available if the four elements of HCQIA immunity were present, or were specifically waived by the physician. In this case, Dr. Feller waived his due process and appeal rights by specific consent agreement, which the Court found to be valid. The Court concluded that the provision allowing due process procedures that were “otherwise fair” obviously protected consent agreements of the type entered into by Miriam Hospital and Dr. Feller.

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From the Department of Health  and Human Services, Office of Inspector General

Please click here to view the notice on OIG Supplemental Compliance Program Guidance for Nursing Facilities.

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