Med Law Blog

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.

| Posted By Michael Cassidy In Long Term Care | 0 Comments | Permalink

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.

| Posted By Michael Cassidy In Long Term Care | 0 Comments | Permalink

The following is the Med Law Blog's Top 10 List for Areas of Interest in the OIG 2010 Work Plan for physicians and providers, which will draw particular scrutiny next year:

1.         Medicare Incentive Payment for E-Prescribing

2.         Practice Expense Components of Diagnostic Imaging

3.         Outpatient Physical Therapy Services by Independent Therapists

4.         Place of Service

5.         Evaluation and Management Services During Global Surgery Period

6.         Independent Diagnostic Testing Facility Utilization and Enrollment Standards

7.         Accuracy of Home Health Agency Coding

8.         DME Payments for Power Wheelchairs

9.         Physician Reassignment Compliance

10.       Payment for Referrals by Excluded Providers

| Posted By Michael Cassidy In Compliance , Long Term Care | 0 Comments | Permalink

With cases of the H1N1 Virus continuing to increase, employers' concerns about the H1N1 virus and seasonal flu are mounting.  Employers are facing workplace and leave issues and many are developing written H1N1 and contagious disease policies to help minimize the negative effects an influenza outbreak could have on their business. Anticipating many questions from employers, the Centers for Disease Control released Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Flu Season.

The H1N1 virus and other contagious diseases present a multitude of legal issues. Employers should begin to take proactive measures in anticipation of H1N1 or other temporary contagious diseases and pandemics such as:

• Conduct a comprehensive review of employment policies, particularly those that pertain to employee leave, sick leave, paid time off and/or unpaid leave. 
• Consider implementing policies such as an Influenza in the Work Place Policy, a Contagious Temporary Disease Policy, a Quarantine Policy and/or a Communicable Disease Policy. 
• Develop and review with employees a best practices policy to avoid the spread of contagious diseases, such as H1N1.
• Consider if it is necessary to mandate that employees, particularly in the health care field, provide proof of H1N1 vaccination for the 2009-2010 influenza season.

Perhaps the most important issue is ensuring that the employer is compliant with the Family Medical Leave Act when responding to an employee who has exhausted their paid leave and requests FMLA leave for an H1N1 illness. Employers need to be aware of and recognize that, in some cases, the H1N1 virus may be sufficiently serious to qualify for FMLA leave. Employers that have a blanket policy declaring H1N1 or other influenza illnesses as not qualifying for FMLA leave may be putting themselves at risk. 

As always, if you have any questions regarding this or any issues involving employment or labor matters, please contact Albert S. Lee at 412.594.5611 or alee@tuckerlaw.com, Katherine E. Koop, at 412.594.5508 or kkoop@tuckerlaw.com or any of the other Labor and Employment attorneys at Tucker Arensberg. 

The Labor & Employment Law Group at Tucker Arensberg, P.C. has a diverse client base of private and public employers. Some of the services offered by the Labor & Employment Law Group include advising employers on discharge and discipline of employees, unemployment compensation, wage and hour employment and separation/severance agreements, non-competition and confidentiality clauses, employment litigation, etc.

| Posted By Michael Cassidy In Long Term Care | 0 Comments | Permalink

The Kaiser Foundation has recently updated its website: www.statehealthfacts.org. The site has an amazing collection of state health facts, including Medicare reimbursement rates and Medicare participation rates, which are often the subject of significant speculation. The site has been added as a link on the Med Law Blog and I recommend you peruse it.

| Posted By Michael Cassidy In Legal News , Long Term Care | 0 Comments | Permalink

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)

| Posted By Michael Cassidy In HIPAA and HIT , Long Term Care | 0 Comments | Permalink

The Federal Trade Commission issue the Red Flag Rules on November 9, 2007. The effective date of the Red Flag Rules is August 1, 2009. Under the Red Flag Rules, a "creditor" that offers or maintains "covered accounts" must develop and implement and identity theft protection program to detect, prevent and mitigate identity theft. To learn more about the Red Flag Rules and their requirements, see The Red Flag Rules: New Requirements May Affect Private Practice Collection Policies as published in the January 2009 issue of Impact Magazine. (Note that the FTC delayed enforcement of the Rules to August 1, 2009 after this article was published.)

| Posted By Paul Welk In Long Term Care , Physical Therapy | 0 Comments | Permalink

The revised Anti-Markup Final Rules were published by CMS on November 19, 2008 in the Federal Register, as part of the Medicare 2009 Physician Fee Schedule. The entire text of the 2009 Medicare Physician Fee Schedule and the related rules, i.e. Anti-Markup, Independent Diagnostic Testing Facility, physician referral issues, etc. were posted by the Med Law Blog on November 21, 2008. The 2009 Anti-Markup Rules are a simpler version of the 2008 and 2007 proposals. Rather than defining the details of purchased technical components and purchased professional components, based upon the location and employment status of the physicians and technicians, CMS has stated that the Anti-Markup Rules will apply to diagnostic tests [as defined in Social Security §1861(s)(3),] ordered by the billing physician or supplier, or by a related party [as defined by CFR §413.17] unless the test is performed by a physician who shares the practice with the billing physician or supplier.

2009 Anti-Markup Rules

The financial provisions of the 2009 Anti-Markup Rules provide that compliant arrangements may bill globally for the full physician fee schedule amount but noncompliant transactions will be paid the lowest of the following:

(a) the billing physician or suppliers net cost to purchase the diagnostic test;

(b) the actual charge to the patient/beneficiary; or

(c) the Physician Fee Schedule amount.

The technical components of the tests are deemed to be performed by the physician who supervises the performance of the technical components (as defined in 42 CFR §410.32) and the professional component is performed by the interpreting physician. Note that the supervision requirements of §410.32 are independent of the supervision requirements imposed upon Independent Diagnostic Testing Facilities (IDTFs) and that CMS has decided that physician entities and organizations performing diagnostic tests need not register as Independent Diagnostic Testing Facilities in 2009.

There are two categories of shared practice, i.e. substantial services and same office.

First, CMS defines a shared practices as a situation in which a performing physician furnishes substantially all of his professional services (which is defined as at least 75% of the total professional services provided by that physician to coincide with the substantially all definitions of the physicians self-referral regulations) through the billing physician or other supplier. This "substantially all" test can be measured either prospectively or retrospectively, so that it will be satisfied if the billing physician or other supplier has a reasonable belief that either:

(a) for the twelve months prior to and including the month in which the service was performed, the performing physician furnished substantially all of his or her professional services through the billing physician or supplier; or

(b) the performing physician will furnish substantially all of his or her professional services through the billing physician or other supplier for the next twelve months, including the month in which the service is performed.

Note that this arrangement will not prohibit temporary or locum tenens arrangements, because under locum tenens arrangements the services of the substitute physician will be billed in the name of the billing physician whom that substitute physician is replacing.

Second, a physician will also be deemed to share a practice with the billing physician or other supplier if the physician i s an owner, employee or independent contractor of the billing physician or other supplier and the technical component or the professional component is performed in the office of the billing physician or other supplier. The "office of the billing physician" is any medical office space, regardless of number of locations, in which the ordering physician regularly furnishes patient care, it includes space where the billing physician furnishes diagnostic testing if the space in located in the same building in which the ordering physician regularly furnishes patient care. Note that the "same building" is defined by §411.351 of the Physician's Self-Referral Regulations.

The same office requirement eliminates the need to measure the relative professional services of the performing physician. The performing physician could provide services to multiple physician practices, without regard to the substantially all test, so long as the performed services are performed in the office of the billing physician. Although this would eliminate the use of a centralized building to provide diagnostic tests, it would not eliminate arrangements known as "pod laboratories" for multiple practices, provided all of the pod laboratories are located in the same building in which those other practices regularly perform patient services.

The effective date of the 2009 Anti-Markup Provisions will be January 1, 2009.

Shared Practices

General Rules

| Posted By Michael Cassidy In Long Term Care , Medicare & Reimbursement | 2 Comments | Permalink