Question Of The Week

September 29, 2016

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws include a process whereby an individual who does not satisfy one of our threshold eligibility criteria for appointment and privileges can request a waiver.  Only if a waiver is granted by the Board is the individual’s application then processed.  When we write to individuals to inform them that they do not satisfy our criteria — and that their applications cannot be processed — should we also be informing them of the option to apply for a waiver and the process for doing so?

ANSWER:            Your question is a good one because it illustrates the tendency to want to point out additional avenues that individuals could pursue to achieve their goals (in this case, requesting a waiver).  And most MSSPs and Medical Staff leaders want to help individuals and want to make the process easier for everyone.  So, it seems natural to proactively offer up the waiver process in the very letter that informs the individual that they are ineligible for appointment pursuant to the threshold criteria set forth in the Medical Staff Bylaws or Credentials Policy.

What is important to keep in mind, however, is that the waiver process is one that should be used rarely — when exceptional circumstances exist and the individual has shown that he or she is at least as (if not more) qualified than applicants who do satisfy all of the threshold criteria.  To preserve the objective nature of the eligibility process — and the hospital’s and medical staff’s reliance on objective threshold criteria as the bare minimum level of qualification for appointment and — it is important that the threshold criteria be applied consistently to applicants.

While there is nothing patently wrong about informing all ineligible individuals of the fact that a waiver process exists, in our experience, institutions that do so are more likely to routinely grant waivers and to infuse the eligibility process with subjectivity.

Therefore, it is our recommendation that letters informing individuals of their ineligibility not routinely inform individuals of the waiver process.  This does not deny any particular individual the ability to request a waiver (if he or she inquires further about any avenues he or she may have to appeal your decision regarding his or her ineligibility).  But, it also does not invite every ineligible individual to request subjective consideration of their qualifications in lieu of the routine application of the objective threshold criteria.

If the hospital occasionally finds itself with an application from an individual who is ineligible, but who has revealed sufficient facts about the situation which rendered him or her ineligible to indicate that truly exceptional circumstances exist and a waiver might be appropriate — in that case, it may make sense to proactively inform the individual of the availability of a waiver process.

September 22, 2016

Posted on by hortyspringer

QUESTION:        We have just determined that several of our compensation arrangements have failed to comply with a Stark Law exception and that we need to make a Self-Disclosure to CMS.  Is there anything new with this process?

ANSWER:            Yes.  Please see the “Government at Work” section of this week’s HLE for a link to CMS’s proposed Stark Voluntary Self-Referral Disclosure Protocol (the “Proposed SRDP”).  While it is only proposed and has not been adopted in final form, since CMS’s Proposed SRDP is based on CMS’s February 12, 2016 overpayment rule, we recommend you follow the Proposed SRDP.

The Proposed SRDP is much more structured than the former protocol and requires a provider to utilize CMS’s mandated forms and format.  One helpful feature of the Proposed SRDP is that it provides several illustrative examples as to how CMS expects a provider to determine the amount of the overpayment.

The Proposed SRDP also makes it clear that if conduct raises concerns under the Anti-Kickback statute and the Stark Law, then you are to use the OIG Self-Disclosure Protocol, not the Proposed SRDP.  The Proposed SRDP then states “Disclosing parties should not disclose the same conduct under both the SRDP and OIG’s Self-Disclosure Protocol.”

The Proposed SRDP also states that you must look back six years.  Again, this is now required by CMS’s Overpayment Rule.  CMS wants the six-year look-back summary to be by calendar year.  If no overpayments were made in one or more calendar years during that six-year look-back period, the year must be included, but the amount of the overpayment for that year is to be left blank.  A provider must also identify the overpayment by physician using the physician’s NPI Number.

CMS provided this chart as an example of the format they expect a provider to provide.

SAMPLE FINANCIAL ANALYSIS WORKSHEET:

Physician

Name
NPI		 Date

Over-

Payment

Identified
CY 2010
 CY 2011
 CY 2012
 CY 2013
 CY 2014
 CY 2015
 CY 2016
 TOTAL
Dr. A xxxxxxxxxx 2/18/16 $100,000.00 $100,000.00 $100,000.00 $300,000.00
Dr. B xxxxxxxxxx 3/24/16 $25,000.00 $10,000.00 $75,000.00 $  50,000.00 $  50,000.00 $  50,000.00 $10,000.00 $270,000.00
Dr. C xxxxxxxxxx 4/5/16 $  5,000.00 $25,000.00 $  20,000.00 $  20,000.00 $  20,000.00 $  90,000.00
                                                                                                                                                                                                                 TOTAL:       $660,000.00

Want more information on the Proposed SRDP, the February 12, 2016 Overpayment Rule, recent False Claims Settlements, and new cutting edge issues like how to implement MACRA and CJR Gainsharing?  Then join Henry and Dan in Las Vegas on October 13-15 for HortySpringer’s Physician-Hospital Contracts Clinic.

September 15, 2016

Posted on by hortyspringer

QUESTION:        If we inform an applicant that his or her application for appointment or privileges cannot be processed due to the applicant’s failure to satisfy our threshold eligibility criteria, do we need to refund the application fee (since we won’t be processing the application and incurring the costs associated with doing so)?

ANSWER:           As a general rule, application fees do not need to be returned to applicants, no matter whether the application that is submitted is fully processed and appointment and privileges granted or the application is “tabled” at the earliest phase of processing.  The fact is, even when an application is processed very little – such as when the applicant is determined to be ineligible by the Medical Staff Office – there are still costs incurred in processing the application.  To illustrate:

  • if the application is not publically available in electronic form, the time spent by the Medical Staff Office to accept the request for an application and, if applicable, send a copy of the application to the requestor;
  • the time for the Medical Staff Office to review the application after it is submitted, to determine whether it is complete (all questions have been answered, all gaps filled, all explanations provided, all supporting documents submitted);
  • the time for the Medical Staff Office to log in the application to any databases where information regarding applicants and appointees is kept;
  • the time and money to consult with legal counsel, if applicable, regarding the individual’s satisfaction of the criteria set forth in the Medical Staff Bylaws; and
  • the time to prepare a letter to the applicant informing him or her of ineligibility to apply.

In all fairness, some practitioners may feel cheated if they pay a several hundred dollar application fee only to find out that they are ineligible to have an application processed fully because of an objective threshold criterion (for example, lack of board recertification, conviction of a particular crime, etc.).  Much of this can be prevented by posting the Medical Staff Bylaws online or sending an electronic copy to anyone who requests an application for appointment or privileges.  That way, the individual will have full access to information about eligibility prior to sending in an application (and prior to paying your non-refundable fee).  Some hospitals also send, along with the application form, a checklist of the threshold eligibility criteria, along with a note informing the requestor that failure to satisfy the criteria on the checklist will result in an application not being processed.  That’s ample notice!

Another way to avoid any confusion, debate, or dispute over the topic of refundability or application fees is to simply adopt Bylaws or Credentials Policy language stating that a non-refundable application fee must be paid prior to any consideration or processing of an application.  The specific use of nonrefundable language makes it clear that no matter how little or how much processing of the application occurs, the fee is the hospital’s to keep.

September 8, 2016

Posted on by hortyspringer

QUESTION:         An HMO that our hospital is negotiating a contract with is insisting on language that would require all of our board members and employees to receive specific “fraud, waste and abuse” training applicable to Medicare Parts C and D. Do we have to agree to this?

ANSWER:            Not if you are a hospital. Federal regulations at 42 C.F.R. §§422.503 and 423.504 specify the requirements for Medicare Advantage Organizations and Prescription Drug Plan Sponsors to implement an effective compliance program. This includes a requirement that so-called “first tier, downstream and related entities” (“FDRs”) satisfy general compliance program training requirements, as well as fraud, waste, and abuse training.

However, FDRs enrolled in Medicare Part A or B (like hospitals) or accredited as suppliers of DMEPOS are exempt from FWA training and education certification requirements, but not the general compliance training requirement.

For more information, see the CMS website, at https://www.cms.gov/Medicare/Compliance-and-Audits/Part-C-and-Part-D-Compliance-and-Audits/ComplianceProgramPolicyandGuidance.html

September 1, 2016

Posted on by hortyspringer

QUESTION:         We have several clinical departments that have either weak chairs or chairs who are there entirely by “default.” These individuals are relied upon to perform a really important role. How can we get stronger leaders interested?

ANSWER:             In many hospitals, it has been traditional to rotate the department chairmanship so that everyone gets his or her turn. However, not every physician, quite frankly, has an aptitude for, or interest in, medical staff leadership. One answer might be to develop stronger qualifications for serving in medical staff leadership roles, including officers and departmental chairs, and to provide for compensation for department chairs. Another question to ask is if there are too many departments. Consider consolidating departments. By having fewer positions to fill, you then have a larger pool of qualified people who want to serve.

That said, one of the biggest changes that we have seen in medical staff leadership in the recent past (and one which we now recommend strongly!) is to eliminate the use of “ad hoc” nomination committees for identifying medical staff leaders – whether they be officers, department chairs, or committee chairs – and the movement toward a standing committee dedicated to leadership development and succession planning that meets throughout the year.  Having a standing committee in place allows the leadership to take a more comprehensive look at the medical staff, identifying new members who might make good leaders in the future – giving them time for training, education, and development.

August 25, 2016

Posted on by hortyspringer

QUESTION:        A department chair instructed our Medical Staff office to provide an application to someone who was formerly on our staff but who has not practiced in a hospital setting for several years.  The application contained no recent peer references. This applicant was persistent, and has now asked for temporary privileges.  What should we do?

ANSWER:            This application is incomplete!  So, temporary privileges cannot be provided!  (Many applicants do not recognize this.) Hospitals are required to verify from primary sources information regarding every applicant’s education, training, practice history and current competence for all privileges requested.  These requirements are found in accreditation standards, the Medicare Conditions of Participation and, in many states, hospital licensing requirements.

The courts in most states have adopted the doctrine of negligent credentialing/hospital corporate negligence.  Hospitals must, in order to meet the standard of care in credentialing, obtain relevant information related to an applicant’s satisfaction of all qualifications. You must confirm practice history following the applicant’s tenure on your staff, as well as current competence.

Every applicant has the burden of demonstrating satisfaction of all qualifications and of resolving any doubts.  Incomplete applications cannot be processed.  (If you don’t have language to this effect in your Bylaws or Credentialing Policy, add it soon!)  So you should write a letter stating that the application is incomplete and that it cannot be processed unless and until complete information is provided and verified, demonstrating current competence for all privileges requested.  If your bylaws have a time frame for the provision of this information or else the application is deemed to be withdrawn, add that as well. (No NPDB report is required for withdrawal of an incomplete application.)  Assume that this letter is aimed at multiple audiences, so it makes sense to provide some education about accreditation, regulatory and legal standards.

And — finally — it would make sense to have a process whereby applications are provided only by the Medical Staff Office in response to a written request, and then on authorization of the Medical Staff professional and the CMO/VPMA.  That way, if an applicant pressures a department chair, the chair can state that the standard process requires a written request to the Medical Staff Office. (The once-common practice of using a pre-application eligibility questionnaire has declined for many reasons, but every application should be scrutinized for eligibility before it is processed.)

August 18, 2016

Posted on by hortyspringer

QUESTION:          Our hospital wants to enter into an exclusive contract and we were told that it should include an “incident to and coterminous” provision.  What is it and why should we include it?

ANSWER:             The provision basically states that the appointment and clinical privileges of the physicians who provide services under the exclusive contract are “incident to and coterminous” with the contract.  What this means is that if the contract is terminated or not renewed, the appointment and clinical privileges of the physicians in the physician group that was awarded the contract automatically expire.  The same holds true if a physician leaves the group that was awarded the contract – the appointment and clinical privileges of that particular physician automatically expire.  Also, this provision states that the physicians have no right to the hearing procedures in the medical staff bylaws or credentials policy.

The rationale for this provision is that in order for an exclusive contract to be legally valid under the antitrust laws (as well as the laws pertaining to tax-exempt hospitals, if hospital facilities have been financed through tax-exempt bonds), the hospital needs to be able to demonstrate that the contract is pro-competitive.  In order for a contract to be considered pro-competitive, the hospital must have the ability to replace the group under contract with a new group if referring physicians and hospital management become dissatisfied with the quality of services, timeliness of reports, etc.

As for having no right to hearing procedures, the due process provisions in the bylaws or credentials policy are intended to handle situations that are different from those involving business questions or a situation when a physician leaves a group that was awarded an exclusive contract.  The due process provisions handle situations where the physician’s professional conduct or professional competence is the basis for an adverse action that is reportable to the National Practitioner Data Bank – not when a hospital decides to terminate or not renew an exclusive contract, or when a physician leaves the physician group that was awarded the contract.

August 11, 2016

Posted on by hortyspringer

QUESTION:          Does the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule protect individually identifiable health information of deceased individuals?

ANSWER:              Yes, for a certain period of time.  The Privacy Rule protects a deceased’s individually identifiable health information for 50 years following the date of death of the individual.  It does this by specifically excluding from the definition of “protected health information” individually identifiable health information of an individual who has been deceased for over 50 years (45 C.F.R. §160.103).

As the U.S. Department of Health & Human Services (“HHS”) explains on its website “This period of protection for decedent health information balances the privacy interests of surviving relatives and other individuals with a relationship to the decedent, with the need for archivists, biographers, historians, and others to access old or ancient records on deceased individuals for historical purposes.”

August 4, 2016

Posted on by jwilbert

QUESTION:       We are a small, rural hospital and do not have the capabilities (e.g., lifts, reinforced toilets, etc.) to accommodate morbidly obese patients.  Are we permitted to implement a policy on transferring these patients to another hospital that can?

ANSWER:           The answer to this question isn’t entirely clear but a couple of laws which you should consider in implementing this type of policy include the Americans with Disabilities Act (“ADA”) and EMTALA.

Even though there is not widespread consensus on whether morbid obesity is a disability under the ADA, there appears to be a recent trend concluding that it is, following the amendment of the ADA which gave a broader definition to the term “disability.”  In fact, the Equal Employment Opportunity Commission (“EEOC”) has been involved in at least one suit alleging that an individual was discriminated against in violation of the ADA because of his morbid obesity.

Under Title III of the ADA, hospitals are places of public accommodation.  Thus, the mandates of Title III apply.  Title III requires places of public accommodation to make reasonable modifications unless such modifications would fundamentally alter the nature of the services.  The regulations permit hospitals and other medical service providers to refer an individual with a disability to another medical service provider for specialized services that the referring medical service does not provide.

If one of the concerns a hospital has with respect to treating morbidly obese patients is that these patients do not fit into some of the hospital’s imaging equipment, this would seemingly permit the hospital to transfer the patient without violating the ADA since it does not provide certain specialized services (here, imaging equipment that accommodates morbidly obese patients).

Title III of the ADA also requires hospitals to remove architectural barriers when the removal is readily achievable.  Readily achievable means that it is easily accomplishable and able to be carried out without much difficulty or expense.  In determining whether a removal is readily achievable, several factors must be considered, including the nature and cost of the removal and the overall financial resources of the hospital.

If a hospital does wish to move forward with a policy on transferring morbidly obese patients, it would be wise to do an assessment of exactly how much it would cost to accommodate these patients through architectural/equipment modifications and balance this cost against the finances of the hospital.

Another law which should be taken into consideration is EMTALA.  Even though there is nothing in EMTALA, the EMTALA regulations, interpretive guidelines, or case law directly on point, EMTALA does not appear to restrict the transferring of morbidly obese patients that a hospital cannot accommodate.  EMTALA only requires hospitals with dedicated emergency rooms to provide medical screening examinations and stabilizing treatment for those who come to the hospital’s emergency room within the hospital’s capabilities and capacity.  The Interpretive Guidelines for the EMTALA regulations state that a hospital “must provide screening and stabilizing treatment within the scope of its abilities.”  Thus, as long as a hospital complies with the EMTALA requirements for transferring patients and provides a screening and stabilizing treatment within the scope of its abilities, it should not run afoul of EMTALA.

July 28, 2016

Posted on by hortyspringer

QUESTION:        What’s the current timetable for the proposed changes in physician reimbursement required by MACRA?

ANSWER:            No one is really sure yet, but right now it is supposed to go into effect on January 1, 2017. The Medicare Access & CHIP Reauthorization Act of 2015 (“MACRA”) was signed by the President on April 16, 2015.  CMS issued proposed regulations on April 27, 2016. According to CMS, MACRA makes three important changes to how Medicare pays physicians:

  • Ends the Sustainable Growth Rate (“SGR”) formula for determining Medicare payments.
  • Establishes a new framework for rewarding health care providers for giving better care, not just more care.
  • Combines existing quality reporting programs into one new system.

Final rules are expected by November, but there is a lot of talk that they might be delayed.  During a July 13 U.S. Senate Committee on Finance hearing on MACRA, CMS Acting Administrator, Andy Slavitt, left open the possibility that it could be pushed back from the intended start date of January 1, 2017.

Once MACRA does go into effect, physicians will have to choose between two different reimbursement models:  the Merit-based Incentive Payment System (“MIPS”) – the default system – or the Quality Payment Program (“QPP”), which requires participation in an Alternative Payment Model (“APM”).  Depending on which program is selected and how the physician performs, Medicare reimbursement can go up or down by a significant amount.  CMS has published a handy timeline to show how this will play out over the next several years.

The details of MACRA are far too intricate to describe in this short piece.  Suffice to say that it will radically change how physicians practice, whether they are on their own, in an independent group or employed by a hospital or health system.

If you want to know more about MACRA, come to Horty Springer’s Physician-Hospital Contracts Clinic in Las Vegas on October 13-15, 2016.  We’ll be discussing how MACRA will work and what you might want to consider changing with respect to physician employment contracts and compensation models, and how MACRA will change the relationship between physicians and hospitals in the future.  Click here to register.