CMS Issues Hospital Price Transparency Rules

As part of the 2019 Medicare annual inpatient prospective payment system (PPS) fee schedule update, CMS has added a “rule” requiring hospitals to publish a list of standard charges beginning January 2019.

CMS explained this initiative under the “Transparency” and “Request for Information” topics in the following link:  https://www.cms.gov/newsroom/fact-sheets/fiscal-year-fy-2019-medicare-hospital-inpatient-prospective-payment-system-ipps-and-long-term-acute-0

CMS subsequently issued two sets of Frequently Asked Questions (FAQs) regarding this rule.

Essentially, the guidance states as follows:

  • Hospitals are free to choose whatever format they prefer as long as the information represents the hospitals’ current standard charges as reflected in their charge masters in a machine readable format.
  • The transparency requirements apply to all items and services provided by the hospitals, including medical services, drugs, biologicals, etc.
  • The transparency requirements do not transplant, replace or restrict hospitals from posting any other quality information or additional price transparency information on their websites.
  • Although CMS is fully supportive of all state online price transparency initiatives, those initiatives do not satisfy the federal requirement and do not exempt hospitals from the CMS requirements.

It is not difficult to envision why just a list of the charges might not be all that helpful.  The “charge master” is just a collection of the hospital’s list prices or fee schedule, which is what is charged for any service or product and has little relation to what the hospital actually collects from insured individuals.  Any person who has received an explanation of benefits (EOB) from a health insurance carrier indicating that the hospital or physician charges were some astronomical amount but the payment was just a fraction thereof, knows the difference between the list prices and the actual prices.  This has traditionally been a significant problem for self-pay or uninsured individuals, since the hospitals’ standard position has been that the charges, or the list price, is the appropriate fee.

One step that will make this more meaningful is disclosure of the typical Medicare payments for those services.  CMS has released an online tool called “Procedure Price Lookup” which may provide some useful price comparisons.  https://www.cms.gov/newsroom/press-releases/new-online-tool-displays-cost-differences-certain-surgical-procedures

Colorado Hospital Pays $111,400 HIPAA Settlement For Failing To Stop Former Employee From Having Access To Patient Protected Health Information

The U.S. Department of Health and Human Services, Office for Civil Rights (“HHS”) just announced an $111,400 settlement and substantial corrective action plan for a Colorado hospital whose former employee still had access to electronic patient protected health information (“PHI”).

In 2013, Pagosa Springs Medical Center failed to de-activate a former employee’s username and password for a web-based scheduling calendar, which included patients’ electronic PHI.  Further, the hospital failed to have a business associate agreement in place with the web-based scheduling calendar vendor, as required by HIPAA.

In the Corrective Action Plan, the hospital will update its security management and business associate agreements (and associated policies and procedures) and provide additional training to its workforce about those matters.

You can read the HHS Press Release and the Resolution Agreement here: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/pagosasprings/index.html

If your office would like guidance on how it can prevent HIPAA violations from occurring, please contact our firm.

Danielle Dietrich is a healthcare and litigation attorney in Tucker Arensberg’s Long Term Care Practice Group. She is licensed to practice law in Pennsylvania, Ohio and West Virginia.  Danielle can be reached via email: ddietrich@tuckerlaw.com, telephone: 412-594-5605 or on Twitter at @DLDietrich.

New Federal Kick-Back Laws Regarding Opioid Treatment

“Eliminating Kick-Backs and Recovery Act of 2018” (EKRA) is a part of a group of laws recently passed by Congress to expand the law enforcement spectrum available to fight the opioid epidemic. EKRA is part of approximately 70 separate actions referred to as the SUPPORT Act, i.e. Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients in Communities Act.

EKRA adds a new Anti-Kickback rule to the existing healthcare fraud enforcement spectrum. It expands the Anti-Kickback scope to all healthcare programs, rather than just the classic federal programs (Medicare, Medicaid and TriCare), and essentially eliminates Safe Harbor protection by statutorily narrowing the available protections.

EKRA states that “whoever” (which is an unlimited category not limited to just providers or doctors, such as the Stark Act) with respect to a “healthcare benefit program” (which is defined as any healthcare program that affects interstate commerce):

• Solicits or receives remuneration in return for referring a patient or patron to a recovery home, clinical treatment facility or laboratory, or
• Pays or offers any remuneration directly or indirectly to induce referrals of an individual to a recovery home, clinical treatment facility or laboratory or in exchange for any individual using such services

Shall be fined not more than $200,000, imprisoned not more than 10 years, or both for each occurrence.

The only exceptions, which thereby eliminates the application of other Safe Harbors, is that the act shall not apply to

1. A discount or other reduction in price obtained by a provider or other entity under a healthcare program if the reduction is properly disclosed and appropriately reflected in cost or charges.

2. A payment made by an employer to an employee or an independent contractor (who have “bonafide” relationships with the employers) if the payment is not determined by or does not vary by

• The number of individuals referred to a particular recovery home, clinical treatment facility or laboratory,
• The number of tests or procedures performed, or
• The amount billed to or receipt from the healthcare benefit program from the individuals referred to a particular recovery home, clinical treatment facility or laboratory.

3. Bonafide drug discounts.

4. Payments made as compensation for services under the personal services and management contract Safe Harbor provisions of 42 CFR 1001.952(d).

5. Waivers or discounts defined in 42 CFR 1001.952(h)(5) or other co-insurance or co-payments of the healthcare program.

 

 

2018 National Practitioner Data Bank Guidebook

In October 2018, the National Practitioner Data Bank (NPDB) published the third edition of the NPDB Guidebook.

NPDB publishes monthly “NPDB insights”.  I could not send the link to that, but I have attached a copy of the page announcing the new Guidebook here:  NPDB Insights.

I am also attaching a link to the Guidebook.  https://www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp

You can also obtain all of these by logging on to the NPDB homepage:  https://www.npdb.hrsa.gov/

 

Allergy Practice Pays $125,000 HIPAA Settlement for Disclosing Patient Protected Health Information to Reporter

The U.S. Department of Health and Human Services, Office for Civil Rights (“HHS”) just announced a $125,000 settlement for a disclosure of patient protected health information (“PHI”) to a reporter.

In 2015, a patient of Allergy Associates of Hartford, P.C. (“Allergy Associates”) contacted a local TV station about a dispute that the patient had with Allergy Associates regarding her use of a service animal.  A reporter for the TV station contacted Allergy Associates for comment, and Allergy Associates disclosed the patient’s PHI to the reporter.

After the disclosure, HHS initiated an investigation and notified Allergy Associates.  Even after it was notified of the investigation, Allergy Associates failed to discipline the individual who had disclosed the patient’s PHI.

To settle the matter, Allergy Associates has agreed to pay HHS $125,000 and enter into a Corrective Action Plan.

You can read the HHS Press Release and the Resolution Agreement here: https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/agreements/allergyassociates/index.html

If your office would like guidance on how it can prevent HIPAA violations from occurring, please contact Danielle Dietrich via email,telephone: 412-594-5605 or on Twitter at @DLDietrich, or any of our other attorneys at the firm.

2019 Medicare Physician Fee Schedule Provides Future “Telehealth” or “Communication-Based” Billing Opportunities

The final Medicare 2019 Physician Fee Schedule https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/PhysicianFeeSched/index.html rule was posted on November 1, 2019, to be effective January 1, 2019.  It includes Section II(D) entitled “Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services”, with several subsections.

  1. Brief communication technology-based services (EG Virtual Check-In) (HCPCS Code G2012)
  2. Remote evaluation of prerecorded patient information (HCPCS Code G2010)
  3. Interprofessional Internet Consultations (CPT Codes 99451, 99452, 99446, 99447, 99448 and 99449)
  4. Additional Medicare Telehealth Services
  5. Expanded Telehealth Home Dialysis
  6. Telehealth Substance Abuse Disorder Prevention and Treatment

This post will be devoted to the Communication-Based Codes and Virtual Check-In.  CMS has proposed to allow certain “modernized” services, as distinguished from the traditional established Medicare Telehealth rules which have specific technology and location requirements.

Starting January 1, 2019, Physicians or NPPs who are authorized to bill for E/M services may report time-based codes for services to existing patients for specified consults and referrals that do not involve or require a face-to-face patient encounter.  These are identified as interprofessional “telephone/internet/electronic” health record assessment and health management services provided by a consulting physician based upon time devoted, as follows:

  • 99446 (5-10 minutes)
  • 99447 (11-20 minutes)
  • 99448 (21-30 minutes)
  • 99449 (31 minutes or more)

 These services include verbal or written reports to other physicians or qualified health care professionals treating the patient.  Furthermore, CPT codes 99451 and 99452 include time devoted to preparing written reports.

CMS has also introduced two codes for non-face-to-face evaluations of patients used to determine whether the patient requires an office visit (i.e. a Virtual Check-In).

  • G2010 (Remote evaluation of recorded video and/or images submitted by an established patient [e.g., store and forward], including interpretation with follow-up with the patient within 24 business hours, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment).
  • G2012 (Brief communication technology-based service, e.g. virtual check-in, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment; 5-10 minutes of medical discussion).

 

Opioid Update: New Federal Law

Opioid Update: New Federal Law – The Substance Use-Disorder Prevention That Promotes Opioid Recovery and Treatment for Patients and Communities Act

On October 24, 2018, President Trump signed into law the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT for Patients and Communities Act (H.R. 6).  According to the White House, this Act “addresses the opioid crisis by reducing access to and the supply of opioids and by expanding access to prevention, treatment and recovery services.” [i]

The Act itself is quite long (250 pages) and the full text can be found here: https://www.congress.gov/bill/115th-congress/house-bill/6.  It contains a number of provisions including increased access to telehealth services, increased Medicare coverage for women and children, stiff penalties for illegal kickbacks in return for patient referrals for recovery treatment and loan repayment for those providing substance use disorder treatment in underserved areas.

An upcoming issue of the Allegheny County Medical Society’s Bulletin will contain an article by this author, providing a more extensive summary of the SUPPORT for Patients and Communities Act.

If you have questions or concerns about how these new laws will affect you or your practice, please contact our firm.

Danielle Dietrich is a healthcare and litigation attorney in Tucker Arensberg’s Health Care Practice Group. She is licensed to practice law in Pennsylvania, Ohio and West Virginia.  Danielle can be reached via email; telephone: 412-594-5605 or on Twitter at @DLDietrich.

                       

[i] https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-signed-h-r-6-law/

2019 Proposed Medicare Fee Schedule

The 2019 proposed Medicare Fee Schedule was published on July 27, 2018 by CMS at https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-14985.pdf.

Pages 61 through 91 of the Executive Summary are devoted to: Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services.  Click here to read: Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services.

This subsection is devoted to explaining both additions to the existing list of covered Medicare Telehealth Services and an identification of and an explanation for covering those additional services by Medicare.

CMS is careful to distinguish its process for simply adding services to the existing list of covered Medicare Telehealth Services and the addition of new types of services outside of the existing telehealth structure.  CMS believes that simply adding services to the existing list of Medicare telehealth services would require those additional services to be subject to the limitations on Medicare telehealth services as established in Section 1834(m) of the Social Security Act, which CMS do not intend to do.

Following is a list of discrete technology base services which CMS proposed to add as separately identifiable physician services payable under the Medicare Physician Fee Schedule, and for which CMS is seeking comment:

  1. Brief Communication Technology-Based Service, e.g. virtual check-in (HCPCS Code GVCI1)
  2. Remote Evaluation of Pre-Recorded Patient Information (HCPCS Code GRAS1)
  3. Interprofessional Internet Consultation (CPT Codes 994×6, 994×0, 99446, 99447, 99448 and 99449)

The attached pages of the Executive Summary go into great detail regarding the explanation of these types of services, and explaining in the blog post would occupy too much space but you can refer directly to the attached executive summary.

On page 74 of the attached summary, CMS provides an additional list of services they propose to expand under Section 1834(m) of the Social Security Act.  You should refer to the Executive Summary for that as well.

 

 

Medicare Telehealth Services

Just as a point of providing information, please note that CMS has revised its Medicare Learning Network (MLN) booklet for telehealth services.  The February 2018 edition is included in this link.  https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/TelehealthSrvcsfctsht.pdf

The 2019 proposed Medicare Physician Fee Schedule Rule also seeks comments on proposed expansion of telehealth services.  That will be the subject of the next Blog post.

 

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