Question Of The Week

March 3, 2016

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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

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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

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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

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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.

January 21, 2016

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QUESTION:        We have an e-mail exchange with a referring physician that clearly describes the services that the physician is to perform and the amount that the hospital is to pay the physician for those services. However, we cannot locate a written agreement. Do we have a Stark problem?

ANSWER:           No, thanks to the new Stark Regulations that went into effect on January 1, 2016. These regulations were promulgated as part of Medicare’s 2016 Physicians’ Fee Schedule. In these regulations, CMS stated that, based in large part on what CMS has learned from voluntary self-disclosures, CMS wanted to clarify the terms that are required in order to satisfy the Stark writing requirement that is included in many of the compensation arrangement exceptions.

CMS first stated that “in most instances, a single written document memorializing the key facts of an arrangement provides the surest and most straightforward means of establishing compliance with the applicable exception.” However, CMS then made it clear that this is not the only means of complying with the Stark writing requirement, stating: “CMS’ existing policy is that a collection of documents, including contemporaneous documents evidencing the course of conduct between the parties, may satisfy the writing requirement of the exceptions for compensation arrangements that require a writing.”

CMS then listed a number of examples that will comply with the writing requirement that included, but are not limited to: board minutes or other documents authorizing payment for specified services; written communications between the parties “including hard copy and electronic communication”; time sheets; fee schedules for specified services; check requests or invoices identifying items or services provided and the rate of compensation; or accounts payable or receivable records documenting the date and rate of payment and the reason for the payment.

Therefore, your e-mail exchange will satisfy the Stark writing requirement and the electronic signatures in the e-mail will satisfy that the arrangement must be signed by both parties (see the Federal Electronic Records and Signatures in Commerce Act).

The new rules are not intended to undo hospital compliance efforts and an effective compliance process remains an essential component of any health care organization. However, the new Stark rules will allow the parties to place substance over form when determining compliance with an applicable Stark exception.

January 14, 2016

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QUESTION:        We have an applicant who has been sued for medical malpractice ten times during the past ten 10 years and seven of those cases have resulted in medical malpractice payments being made on behalf of the applicant. The payments range from pretty significant ($850,000) to nominal ($12,000). What should we do?

ANSWER:            A single malpractice claim, standing alone, does not necessarily indicate a quality problem or even a lapse in the standard of care. However, frequent malpractice actions, even without any accompanying liability, often reflect an underlying issue with behavior, communication, or clinical practice.

Hopefully your Credentials Policy (or Medical Staff Bylaws) clearly states that the applicant has the burden of producing information deemed adequate by the hospital for the proper evaluation of current competence, character, ethics, and other qualifications and that the applicant must also resolve any and all doubts about his or her suitability as a candidate.

With reference to this language, the applicant should be informed that in order for the hospital to move forward with the application, the applicant must resolve the concerns raised by his or her malpractice history and that this will be accomplished by some (or all) of the malpractice claims being evaluated through the peer review process.

Given the large number of claims at issue, the hospital could decide to retain an external expert to assist in the review of the cases. And, since the burden is on the applicant to resolve all questions and concerns, the hospital could decide that the applicant will be responsible for the costs associated with the review by the external expert. The report of the expert could then be considered in reviewing the application.

January 7, 2016

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QUESTION:        Our hospital is interested in using an electronic application that allows individuals to schedule a time to come to our Emergency Department by picking a time slot through our website. Is that going to get us in trouble under the Emergency Medical Treatment and Active Labor Act (“EMTALA”)?

ANSWER:            It’s a good question. The CMS EMTALA Central Office says that simply using such an electronic application is not in and of itself an EMTALA violation. The key point is how patients are treated when they arrive at the ED.

Per the Central Office, the use is not an EMTALA violation because the potential for an EMTALA violation is interpreted as beginning when the patient presents to the ED or is on the hospital’s property. Once a person arrives at the ED or is on the hospital’s property, EMTALA obligations begin equally for everyone, regardless of any prior contact or communication made. So long as the hospital maintains the obligation to perform an appropriate medical screening examination and stabilizing treatment to everyone equally once a person presents for ED care, any other arrangement is irrelevant to EMTALA compliance.

This means that how the electronic application is used is a key to EMTALA compliance. If it’s used so potential patients can see how crowded the ED might be at any given time and plan an arrival time, and if patients are then triaged and screened according to standard procedure, there should not be an EMTALA problem. If, however, the application is used to allow a patient to move to the front of the line when he or she arrives at the ED or on hospital property regardless of what the hospital’s triage and screening processes say, then there would be an EMTALA concern, and so the potential for a violation.

The bottom line, all must be treated equally when they arrive at the ED.

December 17, 2015

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QUESTION:        One of our surgeons has been preparing operative reports over the weekend for his upcoming surgeries on Monday or Tuesday. He explained that he has more time over the weekend, so he copies and pastes op reports from prior, similar surgeries into the record for the upcoming surgery, then revises them after the surgery as needed. Should we be concerned with this practice?

ANSWER:          Medicare and other payors recognize the efficiencies that can result from the copy and paste feature of EMR technology. At the same time, those payors are also concerned that such technology will be used improperly in a way that is bad for patient care and leads to inflated payments.

On September 24, 2012, the federal Department of Justice (“DOJ”) and Department of Health and Human Services (“HHS”) issued a letter regarding the fraud and abuse concerns about certain EMR documentation practices. DOJ and HHS stated “[a] patient’s care information must be verified individually to ensure accuracy; it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments.” The letter spoke generally about the willingness of DOJ and HHS to prosecute health care fraud based on improper EMR documentation practices. A copy of the letter is available at: http://www.modernhealthcare.com/Assets/pdf/CH82990924.PDF.

In December 2013, the HHS Office of Inspector General followed up with a report titled “Not All Recommended Fraud Safeguards Have Been Implemented in Hospital EHR Technology.” http://oig.hhs.gov/oei/reports/oei-01-11-00570.pdf. The report discusses risks and benefits of the copy and paste feature in EMR technology.

Following the lead of DOJ and HHS, National Government Services (a Medicare Administrative Contractor) discussed the overpayment risks of “cloned” documentation as follows:

Documentation is considered cloned when it is worded exactly like or similar to previous entries. It can also occur when the documentation is exactly the same from patient to patient. Individualized patient notes for each patient encounter are required.

* * *

Whether the documentation was the result of an Electronic Health Record, or the use of a pre-printed template, or handwritten documentation, cloned documentation will be considered misrepresentation of the medical necessity requirement for coverage of services due to the lack of specific individual information for each unique patient. Identification of this type of documentation will lead to denial of services for lack of medical necessity and the recoupment of all overpayments made.

EMR technology can improve the content and consistency of documentation, and make it less burdensome to produce. However, using a template to prepare documentation in the EMR before the procedure is actually performed increases the risk of allegations of “cloned documentation” and “fraud and abuse” by the government or third-party payors.