Question: With tax day this week, I was reminded of a blurb I saw that the IRS just released new rules for nonprofit, tax-exempt hospitals regarding community health assessments.  What are they all about?

Answer:  A provision in the Affordable Care Act requires nonprofit, tax-exempt hospitals to conduct community health assessments.  Regulations to implement that provision were issued by the IRS earlier this month.  78 Fed. Reg. 20523 (April 5, 2013).  Although comments on these proposed regulations will be accepted for 90 days after the publication in the Federal Register, the regulations are in effect now.  The law and proposed regulations require that every three years, each nonprofit, tax?exempt hospital must:

1. conduct a community health needs assessment (CHNA) to identify unmet health needs in the community;
2. prioritize those needs;
3. adopt, by the end of the taxable year in which the hospital conducts the CHNA, an implementation strategy to meet the community health needs identified through the CHNA or explain why the hospital does not intend to address the need;
4. document its CHNA and implementation strategy in a report that is adopted by the hospital’s governing board or a committee of the board;
5. publicly publish its CHNA report on its website (which becomes the date the hospital “conducted” the CHNA and starts the clock on the implementation strategy)  and provide an opportunity for public feedback on it; and
6. report with its Form 990 a copy of its most recently adopted implementation strategy or the URL for it, the URL for its CHNA report and a description of “the actions taken during the taxable year to address the significant health needs identified through its most recently conducted CHNA…or, if no actions were taken with respect to one or more of these health needs, the reason(s) why no actions were taken.”

Failure to either conduct the required health care assessment or to implement strategies to address the identified needs can result in excise benefit taxes of $50,000 and, if the failure is “willful” or “egregious,” loss of the hospital’s tax-exempt status.  For a detailed explanation of these new rules, see the March/April issue of ACTION KIT for Hospital Trustees.

Question: At our hospital, we seemed to be getting more and more behaviorally difficult and noncompliant patients (and sometimes family members, too).  Patients like this can make providing treatment difficult at best, and they really wear down our staff.  But if we take determined action against them, we’re afraid that this could negatively impact our HCAHPS (Hospital Consumer Assessment of Healthcare Providers and Systems) scores.  What should we do?

Answer: This is a complicated one.  At Horty Springer, we seem to be writing more and more “we can no longer be your hospital/physician” letters and “how to deal with noncompliant patients” policies.  At the same time, we know that Medicare’s value-based purchasing (“VBP”) payments to come will use HCAHPS scores as a surprisingly high percentage of the VBP payment determination.  What is to be done?

Even with “patients with issues,” some of this can sometimes be addressed by good communication by the health care providers involved.  That not only includes being good “active listeners” and having the ability to put yourself in their shoes, it can also include working with patients to make better health choices.  As one of its Professional Issues pieces, the American Medical News recently ran an article entitled “Motivating Patients To Make Wise Choices.”  With the ongoing changes to reduce fee for service payments, expect to see more and more of these kinds of articles.

Can “health coaches” help?  If done right and well, a health coach can help patients make better health decisions.  So, if a health coach has established a relationship with a patient outside the hospital, could that health coach get through to a patient who is being noncompliant in the hospital?

One worry tied to the original question is that some health care providers might decide they will not take certain kinds of patients whom they believe will drive down their HCAHPS scores.  This is comparable to the concern that some health care providers might not accept “sicker patients” because this will affect their quality scores.

None of this is meant to disparage any health care provider in any manner.  These situations and the questions and concerns they raise are complicated and difficult.

Question: We’ve participated in Stage 1, and will participate in Stage 2, of the Electronic Health Record Incentive Program regarding meaningful use.  We’ve had registered nurses enter medication orders using Computerized Provider Order Entry in Stage 1 (“CPOE”), and plan on using them to enter orders in Stage 2.  However, there is a disagreement in the hospital about whether registered nurses are allowed to enter orders using CPOE.  Can you clear this up?

Answer: Registered nurses can enter orders using CPOE.

The American Recovery and Reinvestment Act of 2009 (“ARRA”) was enacted on February 17, 2009.  The ARRA contained provisions known as the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).  The HITECH Act established incentive payments to eligible professionals to promote the adoption of the meaningful use of health information technology (“HIT”) and qualified electronic health records (“EHR”).  The incentive payments are part of a broader effort under the HITECH Act to accelerate the adoption of HIT and the utilization of EHR.

The EHR incentive programs consist of three stages of meaningful use.  Each stage has its own set of requirements to meet in order to demonstrate meaningful use, with the objectives being known as Core Measures.  Stage 1 focused on providers capturing patient data and sharing that data either with the patient or with other health care professionals, and consisted of 15 Core Measures, including, as Measure 1, using CPOE for medication orders.  Stage 2, which becomes effective in 2014, will consist of 17 Core Measures, including, as Measure 1, using CPOE for medication, laboratory or radiology orders.  Stage 3 has yet to be released.

Whether registered nurses could enter orders using CPOE was a point of much confusion.  However, the Centers for Medicare & Medicaid Services (“CMS”) cleared up the confusion when it released the final regulations in the Federal Register on September 4, 2012:

Comment: We have received many comments on who can enter the order into CEHRT for it to count as CPOE.  Four possibilities received comment support.  First, only the ordering provider be able to enter the order into CEHRT.  Second, any licensed healthcare professional who can enter orders into the medical record per state, local and professional guidelines can enter the order into CEHRT.  This is the current policy which was proposed to continue.  Third, an expansion to any licensed, certified or appropriately credentialed healthcare professional (some commenters replaced medical assistant with healthcare professional) who can enter orders into the medical record per state, local and professional guidelines.  Fourth, an expansion to allow anyone, including those commonly referred to as scribes, enter the orders into the medical record per state, local and professional guidelines.  We also note that there was some confusion among commenters as to our current limitation and proposal of any licensed healthcare professional using CPOE to create the first entry of the order into the patient’s medical record as we received many comments suggesting that nurses should be able to enter the orders.  We clarify that nurses who are licensed and can enter orders into the medical record per state, local and professional guidelines may enter the order into CEHRT and have it count as CPOE.  (Emphasis added.)

The last sentence of the Comment makes clear that registered nurses can enter orders if permitted to in accordance with state, local and professional guidelines.

Question: One of our dentists recently experienced a number of unusual complications/outcomes with patients on whom he had performed minor surgical procedures, so we sent several of his cases for external review.  The report we received showed that each case was reviewed by two individuals:  a dentist and an oro-maxillofacial surgeon.  While we appreciate that the review agency was trying to be thorough, the reviewers unfortunately came to vastly different conclusions regarding the dentist’s care.  The dentist recognized only minor issues, finding most of the care to be appropriate or consistent with general dentistry practice.  The oro-maxillofacial surgeon, on the other hand, identified a number of lapses in judgment and clinical skill.  With conflicting opinions such as this, how do we proceed?

Answer: Your situation sounds like quite a pickle!  Most organizations use external reviews to help them resolve internal uncertainty or conflict regarding whether or what concerns exist with a practitioner whose care has been questionable.  It is no wonder, then, that you find yourselves without a clear path, in light of conflicting external reviews.  It seems that given your current situation, you have a couple of options available to you:

• The first option is to contact the review agency and ask for the reviewers to clarify the inconsistencies in their expert reviews.  While dentists and oro?maxillofacial surgeons are trained differently, the standard of care for any services provided by such practitioners is the same.  In other words, there is one standard of care for tooth extraction – regardless of whether that extraction is performed by a dentist or an oro-maxillofacial surgeon.

Since there is only one standard of care, it is quite unusual that two reviewers would come to such different conclusions regarding the care provided by your dentist.  If you ask for clarification, you may explain the problem and request that the reviewers, when responding, define more objectively the standard against which they are measuring the dentist’s care (rather than merely subjectively concluding that a problem did or did not exist in the care provided).

• A second option is to obtain another external review, this time specifying for the review agency the exact qualifications of the expert who will perform the review – and requiring hospital approval of the chosen expert in advance of any review.  Essentially, you are then “breaking the tie” with a third external review.

Of course, if things ultimately do not work out well for the dentist, nothing will prevent him from claiming at some future date that the singular favorable review was accurate while the others were misguided.  But no peer review will ever be enveloped in 100% certainty and, therefore, the hospital and medical staff leadership should feel comfortable proceeding once any inconsistencies have been worked out to their reasonable satisfaction.

• A third option is for the Medical Staff leadership to consider the external reviewers’ reports and then use their medical expertise, judgment, and discretion to determine which make more sense and/or are worthy of greater weight.

Of course, there are risks to this approach.  If an adverse professional review action is recommended for the dentist, the dentist may claim that the leadership should have given more weight to the dentist’s review.  On the other hand, if the leadership gives more weight to the dentist’s review and, in turn, takes minimal peer review action, any patient who is harmed during a future surgery of the dentist’s could potentially make a negligent credentialing claim (arguing that the leadership should have given more weight to the oro-maxillofacial surgeon’s opinion or taken further steps to assure patient safety before allowing the dentist to return to practice).

• Finally, a fourth option is for the leadership to determine that they simply cannot resolve the inconsistencies between the experts’ reviews – and to proceed in light of that uncertainty.  This could mean, for example, allowing the dentist to practice in the hospital, but implementing some form of focused professional practice evaluation (FPPE) to make sure that patients are safe and, at the same time, gather more information about the dentist’s practice.  Perhaps a period of proctoring or required consultations, followed by a period of 100% chart review?

Peer review can be complicated.  It’s not just a matter of going step-by-step through routine procedures.  Sometimes, even when you follow all of the rules, you end up with a conundrum!  We hope this Q&A helps.  If you are looking for even more detail on how to refine your peer review process, please join us at The Peer Review Clinic in New Orleans, May 2-4.

Question: Our organization employs an internist, whose contract is set to expire in two months.  We are planning on not renewing the contract per the terms of the agreement because of a long history of problems with the physician’s medical record0keeping, prescribing patterns, and compliance with employment policies. The physician uses a cane for mobility because of a disability, but this has nothing to do with our reasons for not renewing his contract.  Under the circumstances, are we protected from a lawsuit?

Answer: Unfortunately, nothing can stop someone from suing you.  In Ball v. Einstein Cmty. Health Assocs. Inc., an employed physician with a history of similar problems sued his employer claiming that his contract was not renewed in violation of the ADA and ADEA (the physician was 73 years old).  Ultimately, the court found in favor of the employer because the reasons it offered for not renewing the contract were not considered “pretextual,” or a cover for a real discriminatory reason.

However, the interesting aspect of this case is that the court seemed to equate not renewing the physician’s contract with an “adverse event.”  Under many federal laws prohibiting discrimination (including the ADA and ADEA), the employee has to show that he or she suffered an adverse event related to the employment, such as termination or demotion.

This is not the first time we have seen a court treating the non-renewal of a contract as an adverse event.  In another recent case, Skeete v. North American Partners in Anesthesia, LLP, a physician’s race discrimination suit made it all the way to the summary judgment stage before being dismissed, even though the agreement she had with the employer allowed the employer to terminate her agreement without cause or to not renew the agreement (which the employer did).

These early stages of litigation can be expensive and emotionally taxing.  Some of the time, there is simply no way to avoid a lawsuit.  Nonetheless, if you are sued, your best defense is a strong record outlining the legitimate (and legal) reasons you decided not to renew a contract.  This allows you to demonstrate that there was a legitimate, nondiscriminatory reason for the challenged action.  For more information on how to develop that record and other interesting topics related to employed physicians, join Henry Casale, Rachel Remaley, and Charles Chulack on October 3-5, 2013 in Chicago for the Institute on Employed Physicians and Their Impact on the Medical Staff.

Question: We have been working long and hard on our peer review process at the hospital and are pretty proud of the process we have established.   Then, we realized that as more care is provided on an outpatient basis, there is no peer review of that care.  Can we piggyback on our inpatient peer review process for care provided on an outpatient basis?

Answer:  As hospitals and health care systems mature, many are reaching the same realization – that it would be helpful to have some kind of peer review for care provided on an outpatient basis.  Assuming you are happy with the peer review process at the hospital, we think it is a great idea to start with that as a framework.  You will want to build on the principles of fairness, confidentiality, and collegiality that are part of the existing peer review process.

You may even involve some of the same individuals in the process.  That will help reduce the learning curve.

Obviously, the biggest difference will be the indicators that will trigger a review and the standards or benchmarks you use.   Don’t think you have to start from scratch.   There are a number of organizations that have already established indicators.

One thing to keep in mind is that while peer review information receives substantial protection under most state laws, some statutes limit the protection to peer review conducted in a hospital or other licensed entity.  You will want to know in advance if the documents you create for your outpatient peer review process will be protected from discovery and if the participants in that process will be entitled to immunity.

And don’t think the idea of outpatient peer review is limited to hospital-affiliated groups.  The same rationale for engaging in peer review applies for any group practice.

For more information about peer review for outpatient settings, join Susan Lapenta and Phil Zarone for the audio conference “Safety and Quality Across the Continuum” on March 5, 2013.

Question: At last week’s Credentialing Clinic, there was a great discussion on the importance (and difficulty) of identifying gaps in an applicant’s hospital affiliation history.  Part of that discussion focused on the new NAMSS PASS^TM tool from the National Association Medical Staff Services (“NAMSS”).  So, what is NAMSS PASS^TM?

Answer: We know from our experience in working with clients on reviewing “red flags” on applications that it can be difficult to verify and confirm an applicant’s affiliation history.  Especially when that applicant has a history of jumping from facility to facility.  NAMSS PASS^TM (which stands for “Practitioner Affiliation Sharing Source”) seeks to tackle this problem by offering medical staff professionals an on-line database of practitioners’ affiliation histories with hospitals, surgery centers, health plans, group medical practices, and other entities for the entirety of the practitioners’ careers.

NAMSS PASS^TM is currently accepting data from hospitals and other health care entities, but estimates that it will take approximately one to two years for a comprehensive database to be achieved.  Once the initial data is provided to NAMSS PASS^TM, contributing entities will be required to provide periodic electronic updates of practitioner affiliation information so that the information in the database remains current.  A date stamp documenting and verifying the exact date when the data was last updated by the contributing health care entity will be provided on all queries.

Check out the NAMSS website to learn more about NAMSS PASS^TM and the benefits it can provide.

Question: We are considering an arrangement in which independent physicians on the medical staff would be paid a performance bonus for implementing certain patient service, quality and cost-saving measures on hospital patients.  Is there any guidance on such an arrangement?

Answer: Yes.  On December 31, 2012, the OIG issued Advisory Opinion 12-22, in which the OIG gave a thumbs-up to a proposed transaction in which a hospital would compensate a group of cardiologists a “co-management” fee comprised of two components:  a fixed fee and a potential annual performance-based payment.

In the fixed-fee portion of the arrangement, the physicians were compensated for providing certain specified services.  It was fairly standard.  However, the performance-based payment was most instructive.

The OIG permitted the hospital to pay the group a performance bonus the amount of which depended on whether the group exceeded the base line developed by the hospital for each component of the bonus.  The components of this bonus were:  a hospital employee satisfaction component; a patient satisfaction component; a component for improved quality of care; and a cost-saving component.

As with any OIG Advisory Opinion, the OIG required the hospital to show how it determined that the compensation paid to the physician was fair market value but does not describe how that compensation was valued.  There were also a number of features that the OIG required be included in the program.  So, as with any transaction described in an OIG Advisory Opinion, the devil is in the details.  However, this advisory opinion provides valuable guidance on the elements of a quality-based compensation arrangement that the OIG will permit a hospital to use to compensate physicians to improve care to the hospital’s patients.

Want more details on this and other hospital-physician arrangements?  Join Henry Casale and Dan Mulholland in Las Vegas, March 7-9 for our seminar on Hospital-Physician Contracts:  Survival Strategies.

Question: New HIPAA privacy regulations were published last week.  I understand they include some changes that affect business associates.  Do we need to send new business associate agreements to all of our business associates?  Should we put a moratorium on any business associate agreements that are currently in production, to give us a chance to first make amendments?

Answer: The new HIPAA privacy regulations do, in fact, make some changes regarding business associates.  They add subcontractors of business associates to the definition of “business associate” (though they do not require covered entities to enter into business associate agreements with subcontractors).  The rule also expands the definition of business associate so that “health information organizations” and those that provide data transmission services with respect to PHI (if routine access to PHI will be required) and those that offer personal health records on behalf of covered entities will be covered.  The rule also clarifies that those that maintain (rather than transmit) PHI on behalf of a covered entity are business associates, regardless of whether they have routine access to the PHI in their possession.  Accordingly, since the rule provides some changes and clarification to the definition of “business associate,” it may require you to send out business associate agreements to current and new business partners who were previously not identified as business associates.  It is not as clear whether covered entities will need to revise the substance of their business associate agreements, but that largely depends on whether you have been diligent in amending your business associate agreements to comply with changes to the HIPAA rules over the past several years (for example, as the HITECH Act was passed).

Though slightly unrelated, you should be aware that the new rule requires some changes to your Notice of Privacy Practices (NPP), which means that once those changes are made, you will need to replace all of the NPPs posted in your facilities and on your website and make copies of the new NPP available to patients who request them.  Likewise, the new Notice will need to be distributed to new patients.

 

Question: Our hospital has a clinic located near a military base and we would like to approach the military physicians that are stationed at the base hospital to “moonlight” at the clinic.  Can the military physicians “moonlight” at the clinic?

Answer: It depends.  There is a federal law, 10 U.S.C. §1094(d) which in general states that a military physician is authorized to practice in any facility, civilian or military, located in any state, territory or possession of the United States, as long as the military physician (1) has a current license to practice from any state, and (2) is performing duties authorized by the Department of Defense.  Therefore, the key is for a hospital to enter into an agreement with the federal government and for the physicians to have orders issued that authorize them to perform duties at the clinic.