Author: hortyspringer

March 31, 2016

Posted on by hortyspringer


QUESTION:        Some Medical Staff members have asked to add the following disclaimer to their medical records:

Please note that this dictation was completed with computer voice?recognition software.  Quite often unanticipated grammatical, syntax, homophones, and other interpretive errors are inadvertently transcribed by the computer software.  Please disregard these errors.  Please excuse any errors that have escaped final proofreading.

Is this a good idea?

ANSWER:            No.  Such disclaimers probably increase a physician’s risk of liability.

This specific issue was addressed recently by WPS GHA, a Medicare contractor.  It provided the following guidance:

Disclaimers Used as Part of Physician’s Signature

WPS GHA has recently been informed of a new trend in medical record documentation – that of using some type of disclaimer.  Examples include the following:  ‘Due to possible errors in transcription, there may be errors in documentation’; ‘Due to voice recognition software, sound alike and misspelled words may be contained in the documentation’; and ‘I am not responsible for errors due to transcription.’ Providers are responsible for the medical record documentation.  Disclaimers such as those above do not remove that responsibility.  The provider should verify the information is complete and accurate prior to attaching his/her signature.[1]  (Emphasis added.)

We agree that a disclaimer will not shield a physician from liability for errors in the medical record.  It does not matter if the error is caused by voice recognition software or a transcriptionist.  The physician’s signature on the record is the physician’s confirmation that the information is accurate and complete.  A disclaimer cannot be used to evade that responsibility.

The guidance from WPS GHA makes clear that disclaimers cannot help physicians.  In fact, there is also reason to believe that such disclaimers will actually harm physicians.  If a disclaimer is used, an injured patient may claim in a malpractice suit that the physician was too busy to review the accuracy of the entry, or simply was unconcerned.

All health care professionals know that transcription errors in the medical record can harm patients.  This may explain why juries have no sympathy or tolerance for physicians who would attempt to use a disclaimer to avoid responsibility for closely reviewing the medical record before signing it.

Not only are juries offended by these disclaimers, but they offer an easy target for malpractice attorneys.  The following comment was posted on a message board regarding this issue:

I called some attorney contacts I have on BOTH sides of the courtroom (just to get THEIR take on the situation).  The defense attorneys I contacted DON’T want the disclaimer anywhere on the note.  The plaintiff attorneys I contacted LOVED the idea and then proceeded to tell me how they would ‘rip the author of those notes to shreds’ EVEN IF NO ERRORS WERE FOUND IN THE NOTE! They had some rather interesting approaches on how to discredit the author simply due to the presence of a disclaimer on a medical note.[2]

______________________

[1]               http://wpsmedicare.com/j8macpartb/departments/cert/signature-guidance.shtml

[2]               http://sci.med.transcription.narkive.com/9N0C52Rt/inserting-a-disclaimer-in-a-medical-report

March 24, 2016

Posted on by hortyspringer

QUESTION:       What’s all this I hear about HIPAA Phase 2 audits?

ANSWER:           The HHS Office of Civil Rights (“OCR”) announced this past Monday that it would soon be commencing HIPAA Phase 2 audits of selected HIPAA covered entities and their business associates. In its 2016 Phase 2 HIPAA Audit Program, OCR will review the policies and procedures adopted and employed by covered entities and their business associates to meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules.  These audits will primarily be desk audits, although some on-site audits will be conducted.

Information about the audits can be found at http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/audit/phase2announcement/index.html.

Here are some things you should do right now to get ready in case you are one of the lucky ones who get audited:

  1. Make sure your hospital’s spam blocker will not block any e-mails from the following e-mail address: OSOCRAudit@hhs.gov  You will only be notified by e-mail if you are selected to be audited and then you will only have 10 business days to provide the information requested by OCR.  If the e-mail from OCR is blocked, you might get a call saying you failed to respond as required.
  1. Make sure all your privacy and security policies and procedures are up to date. They will almost certainly be requested if you are selected.
  1. Compile a list of all your business associates and their contact information. This will be requested as well.  Furthermore, you might want to notify your business associates that they may be contacted by OCR to be audited and, if they are, request that they let you know and fully cooperate with the auditors.  And while you’re at it, make sure your business associate agreements are properly executed and up to date.
  1. Conduct a mock audit. At the very least, your medical records, I.T., and compliance departments should be involved along with your Privacy Officer, senior management and legal counsel.  While the Phase 2 audit protocols have not been released yet, the Phase 1 protocols are available and can be helpful to prepare.

March 17, 2016

Posted on by hortyspringer

QUESTION:        Occasionally, a physician on our medical staff will want to treat a family member.   Medical staff leadership does not think this is a good idea, but we have not expressly addressed this in any of our documents.  If we allow it, can the physician bill for the services he provides to a family member?

ANSWER:           The American Medical Association (“AMA”) has taken a strong stance against the treatment of family members by a physician.  The AMA’s Opinions on Practice Matters, E-8.19 Self?Treatment or Treatment of Immediate Family Members, includes the following statement:

Physicians generally should not treat themselves or members of their immediate families. Professional objectivity may be compromised when an immediate family member … is the patient; the physician’s personal feelings may unduly influence his or her professional medical judgment, thereby interfering with the care being delivered. Physicians may fail to probe sensitive areas when taking the medical history or may fail to perform intimate parts of the physical examination. Similarly, patients may feel uncomfortable disclosing sensitive information or undergoing an intimate examination when the physician is an immediate family member…. If tensions develop in a physician’s professional relationship with a family member, perhaps as a result of a negative medical outcome, such difficulties may be carried over into the family member’s personal relationship with the physician….

Since this issue has come up, or even if it hasn’t, we recommend that you add language to your rules and regulations to address it.

With respect to your second question, it is important for physicians to know that they cannot bill Medicare for services provided to family members. Medicare policy clearly states that the treatment of certain family members is not to be reimbursed by Medicare or any Medicare Advantage program.  The following relationships are included in the definition of family members:

  • Husband and wife;
  • Natural or adoptive parent, child, and sibling;
  • Stepparent, stepchild, stepbrother, and stepsister;
  • Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, and sister-in-law;
  • Grandparent and grandchild; and
  • Spouse of grandparent and grandchild.

While this is a Medicare policy, many other insurance companies have adopted this as part of their contractual policies with providers.

March 10, 2016

Posted on by hortyspringer

QUESTION:        There is a lot of confusion among our medical staff leaders about the relationship between medical staff appointment and clinical privileges.  For example, it is common to hear members refer to “Active Staff Privileges.” How can we help educate them on the distinction between medical staff membership and clinical privileges?

ANSWER:            Many medical staff members confuse or intertwine these two important concepts, even though they are entirely separate.  A lot of this confusion likely originates from the fact that many medical staff bylaws define staff categories by referring to the clinical practice of the individuals who fall within those categories.  For example, it is quite common for the “Active Staff” to be defined to include those individuals who conduct at least 24 patient contacts annually.

As such, it is important that your bylaws speak to membership and clinical privileges as distinct concepts.  Membership relates to an individual’s participation in the hospital’s or medical staff’s functions (e.g., committee membership, the conduct of peer review and other leadership functions, etc.).  The staff category that an individual requests – and is assigned to – relates largely to how involved the individual will be in such functions.  Those categories associated with more active involvement come with greater rights (such as voting and holding office).

On the other hand, clinical privileges relate solely to the individual’s provision of clinical services at the hospital. They do not relate to an individual’s involvement in hospital and medical staff affairs and, in turn, are not tied to the individual’s staff category.  Accordingly, an individual may be a member of the medical staff, but have no privileges.  Conversely, an individual may have privileges, but not be a member of the active staff or even the medical staff (e.g., telemedicine providers).

Ensuring your bylaws documents make this distinction is a good first step in educating your medical staff on this issue.

March 3, 2016

Posted on by hortyspringer

QUESTION:          Our hospital is located in one of the Metropolitan Statistical Areas identified in the Medicare Comprehensive Care for Joint Replacement (“CJR”) model and has, thus, been selected for participation. Could you tell us about the quality measures involved in the CJR model and how they will affect our payment?

ANSWER:             There are two quality measures which will be used in the CJR model: (1) hospital-level risk-standardized complication rates following hip and knee replacements; and (2) the Hospital Consumer Assessment of Healthcare Providers and Systems (“HCAHPS”) Survey. A composite quality score will be calculated based on the sum of quality performance points based on these measures. The quality performance points are given based on various percentiles which measure a participant hospital’s performance percentile relative to the national distribution of all hospitals’ performance on that measure. For example, if your hospital is at or above the 90th percentile for the complication rate measure, your hospital will be given 10 points. If your hospital is at or above the 90th percentile for the HCAHPS measure, your hospital will be given eight points. You can also earn “quality improvement points,” if there is an increase in either of the quality measures from the previous performance year. An additional two points may be earned for submitting certain “voluntary” data on patient-reported outcomes. Hospitals will then be assigned to quality categories based on their composite scores. Hospitals that have a composite quality score of greater than or equal to six and less than or equal to 13.2 will be assigned to the “Good” quality category. Hospitals with a composite quality score of greater than 13.2 will be assigned to the “Excellent” quality category. This is important because hospitals assigned to either the “Good” quality category or “Excellent” quality category are eligible for, among other things, enhancements to their reconciliation payments under the CJR model. For example, hospitals in the “Excellent” quality category are eligible for a quality incentive payment at reconciliation that equals 1.5 percent of the hospital’s benchmark price in performance year one. This changes the hospital’s effective discount percentage included in the target price at reconciliation, resulting in an opportunity for higher payments at reconciliation.

February 25, 2016

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QUESTION:        The new, final, Stark regulations permit a hospital to provide financial assistance to a physician or physician group to employ or contract with non-physician practitioners (physician assistants, nurse practitioners, clinical nurse specialists, certified nurse midwives, clinical social workers, and clinical psychologists) (“NPP”). Is the amount of the assistance capped? How long can a hospital provide such financial assistance?

ANSWER:            The financial assistance may not exceed 50 percent of the actual compensation, signing bonus, and benefits paid by the physician or physician group to the NPP. Compensation must be at fair market value and may not take into account referrals or business generated between the parties. As far as duration of the assistance, hospitals may provide financial assistance only for the first two consecutive years of the compensation arrangement between the NPP and the physician.

February 18, 2016

Posted on by hortyspringer

QUESTION:        A registrant at our recent Complete Course for Medical Staff Leaders in Naples asked: Can you change the bylaws AFTER someone’s already credentialed, even if it might make that physician ineligible at recredentialing (e.g., thresholds)? If ineligible, is that reportable to the NPDB?

ANSWER:          Yes and No. An organization can decide to revise its eligibility criteria; it may choose to “grandfather” current staff members (upheld by several courts in cases involving board certification, when potential applicants alleged disparate treatment). However, grandfathering is not required. An organization can decide to apply the new criteria uniformly.  It is fair to provide advance notice and an opportunity for those affected to be heard (and to become eligible, if possible).

Leaders should carefully assess the need to apply the standard to current members and to articulate the quality rationale. A determination of ineligibility is not an adverse professional review action and is not reportable to the National Practitioner Data Bank.

February 11, 2016

Posted on by hortyspringer

QUESTION:        Our hospital has never gotten around to adopting a Practitioner Health Policy. Instead, we just have our MEC deal with health issues as they arise. Is this ok?

ANSWER:            No. If your hospital is accredited by the Joint Commission, standard MS.11.01.01 requires the medical staff to implement a process to identify and manage practitioner health issues which is separate from the disciplinary process. The elements of performance for standard MS.11.01.01 describe what such a process must include. For example, the process must educate staff on impairment recognition, evaluate the credibility of a complaint regarding health, monitor practitioners until rehabilitation is complete, and maintain confidentiality. Having the MEC (which is the one committee that can “discipline” practitioners) handle health issues on an ad hoc basis, without a written policy, is inconsistent with these standards.

Even if your hospital is not accredited by the Joint Commission, we think a separate Practitioner Health Policy makes a lot of sense. Such a policy is your chance to make clear that the process for addressing health issues is not punitive, but is instead designed to help the practitioner recover while protecting patients. The policy can also set forth modern best practices for identifying and resolving health issues.

For more information on what should be in a Practitioner Health Policy and how it should be implemented, we hope you can attend The Peer Review Clinic in San Antonio, Texas on April 14-16, 2016.

Posted on by hortyspringer

QUESTION:        I’ve been on vacation and just got back. What’s all this I hear about new Provider-based Billing Rules?

ANSWER:            Section 603 of the Bipartisan Budget Act of 2015 ended “provider-based” Medicare reimbursement for off-campus outpatient departments of hospitals starting January 1, 2017, unless the department in question was billing Medicare for those services as of November 2, 2015, the date the President signed the Act into law. While existing provider-based departments will not be affected, the law will have considerable impact on future activities, including facilities that are currently planned or under construction which were counting on provider-based treatment.

Provider-based billing refers to the long-standing Medicare practice of treating facilities away from the “main campus” of a hospital as part of the hospital for reimbursement purposes. This enabled a hospital to get paid a “facility fee” or technical component reimbursement for services furnished at such locations, in addition to any other reimbursement that might be paid in connection with those services, such as physician professional fees. Many hospitals took advantage of this to get paid both a technical and professional fee from Medicare for what otherwise would be physician office visits. While the physician fee under such circumstances would be lower than what the physician would be paid in a free-standing office, the combined technical and professional fee would be greater, making provider-based treatment financially attractive in many situations. Hospitals also could benefit by having outpatient surgery and diagnostic services treated as provider-based, since payments under the Medicare hospital outpatient fee schedule rather than what Medicare paid to ambulatory surgery centers (“ASCs”) or independent diagnostic testing facilities (“IDTFs”).

This eventually got on the radar screen of Congress and the Administration due to the amount of money involved. The Congressional Budget Office estimated that the new rule would save Medicare approximately $3.6 billion over the next four years. Given the scope of the proposed savings, it is surprising that the bill didn’t go further and end provider-based reimbursement for existing arrangements.

The new law only affects “off-campus” outpatient departments, which are located more than 250 yards from the campus of a provider such as a hospital, that is, the physical area immediately adjacent to the hospital’s main buildings. Such facilities cannot be reimbursed under the hospital fee schedule but can be reimbursed under the physician, ASC or IDTF payment systems, as applicable. The law does NOT affect reimbursement of off?campus facilities that provide inpatient services, such as remote locations of the hospital (another hospital operating under the same provider number) or satellite facilities (an off?campus location that shares a facility with another hospital). And, of course, the new law does not affect “on-campus” facilities, i.e., those within 250 yards of the hospital’s main buildings.

There is an exception that allows off-campus outpatient departments that are “dedicated emergency departments” as that term is defined in the EMTALA regulations to continue provider?based billing. A dedicated emergency department is a facility that is either (1) licensed by the state as a free-standing emergency department; (2) holds itself out to the public as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or (3) provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment. Such facilities can apparently have any services they provide treated as provider?based services. An earlier version of the bill had limited the services that could be treated as provider?based to only emergency department visits for the evaluation and management of patients (HCPCS codes 99281?99285) but this was changed at the 11th hour. However, any off-campus facility which qualifies as a dedicated emergency department would be subject to the same EMTALA rules as a hospital emergency department located on campus, including the requirement to provide for a medical screening examination and stabilizing treatment and/or appropriate transfer for any patient who presents at the facility.

There will be rules that implement the new law forthcoming from CMS. Those rules could place even more limits on provider-based billing. But for the time being, subject to the exceptions discussed above, unless an off-campus outpatient department was billing Medicare as provider?based as of November 2, 2015, it won’t be able to do so after January 1, 2017.

 

January 28, 2016

Posted on by hortyspringer

QUESTION:        Our MEC voted at its last meeting to make a contribution to the political campaign of Ben Carson, from the Medical Staff fund. There was some talk about how great it would be to see a doctor leading the country. The Medical Staff fund is comprised solely of dues paid by Medical Staff members. The Chief of Staff and the Secretary/Treasurer are the only signatories to the account. The money is held in an account associated with the hospital’s Employer Identification Number (“EIN”), but the hospital has never spent any money from the account and does not intend to exercise any control over the money. We consider the money to belong to the Medical Staff. So, is the donation okay?

ANSWER:          As a general rule, physicians can spend their money however they see fit. The same is not necessarily true of a Medical Staff. Because the Medical Staff is an integral part of the Hospital, rather than a separate legal entity, when the Medical Staff controls and spends money, it is the legal equivalent of the hospital controlling and spending that money. So, any use of the Medical Staff fund must be consistent with the way the hospital could and would use the money. That does not mean the hospital has to be involved in each decision to spend from the Medical Staff fund (which is why the leaders are signatories to the account). But, it does mean that the hospital should step in to prevent spending that is inconsistent with the hospital’s mission or legal compliance.

In the case of your Medical Staff, a donation to the campaign of Ben Carson would be prohibited if your hospital is a 501(c)(3) nonprofit since the federal tax code which exempts such organizations from taxation prohibits nonprofits from participating in any campaign activity for or against political candidates.

If the physicians on your Medical Staff feel very strongly about supporting Ben Carson, they are of course welcome to pool their resources and submit a campaign contribution together, as a group. But, that money cannot be pulled from the Medical Staff fund without running afoul of the tax code.

If your hospital is a for-profit hospital, you are not subject to the same prohibitions on spending as nonprofits. Even if a campaign contribution would not put you at risk of violating federal law, however, be aware that it may not be consistent with the goals of the organization. In what way does Ben Carson’s success as a presidential candidate matter for the hospital and its patients’ quality? Or its physicians’ ability to provide quality care to hospital patients? If there are identifiable benefits, then perhaps a contribution makes sense. But, if not, then the contribution is a questionable spending of dues.

To avoid any confusion in the future, we suggest adopting a policy governing Medical Staff dues, which specifies who will be the signatories, the authority of the signatories (for example, “any spending over $500 per transaction requires the signatory to obtain the consent of the MEC or Board”), and the types of spending that are and are not appropriate and authorized.