Question Of The Week

December 3, 2015

Posted on by hortyspringer

QUESTION:         The new, final, Stark regulations permit a hospital to provide financial assistance to a physician or physician group to employ or contract with certain non-physician practitioners. What types of non-physician practitioners are covered under the new regulations?

ANSWER:            Hospitals may provide financial assistance to help physicians or a physician group hire or contract with physician assistants, nurse practitioners, clinical nurse specialists, certified nurse-midwives, clinical social workers, or clinical psychologists. Financial assistance for other types of non-physician practitioners, such as nurse anesthetists, physical therapists, and dietitians, is not covered by the new exception.

November 19, 2015

Posted on by hortyspringer

QUESTION:        We are currently in the process of adopting new Medical Staff Bylaws. A member of the Medical Staff questioned whether language that was included in the draft Credentials Policy indicating that the appropriateness of utilization patterns would be considered when granting privileges would constitute “economic credentialing.” Does it?

ANSWER:           Not in our experience. This type of language is often included in medical staff documents to allow for consideration of patterns related to comparative lengths of stay, medical necessity issues, and similar matters. The purpose is not to exclude someone from the medical staff; rather, it is intended to allow for performance improvement. For example, if someone was an outlier in length of stay, as compared to his or her peers, that variance would be something that could be addressed as a part of the Ongoing Professional Practice Evaluation (“OPPE”) process. Such a scenario would only result in “economic credentialing” if the data was used to serve as the basis for revoking that physician’s clinical privileges.

Interestingly, the Final Rule related to the new Comprehensive Care for Joint Replacement (“CJR”) bundled payment model highlighted in this week’s Government at Work includes a question about the effect such programs might have on credentialing, being that they encourage hospitals to use only the most “efficient” or “cost-effective” physicians. While CMS indicates that existing antitrust laws may limit a hospital’s ability to keep privileges from a non-compliant or high-cost physician, it does not include any restrictions that would specifically prohibit a hospital from doing so.

Please join LeeAnne Mitchell and Ian Donaldson at an upcoming Credentialing Clinic to learn more about the new wave of credentialing matters facing Medical Staff leaders. You can join us for this interactive course by clicking here.

November 12, 2015

Posted on by hortyspringer

QUESTION:         Our hospital recently received a discovery request (a request for production of documents) in a malpractice suit brought against one of the physicians practicing at our hospital. The request seeks documents which contain protected health information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act (“HIPAA”). Should we respond by producing the documents?

ANSWER:           This is a question that can best be answered by your attorneys and should be referred to them for an answer because the answer may depend on a number of variables, such as whether the information is protected by your state’s peer review privilege or some other evidentiary privilege. Nonetheless, assuming no privilege applies and that the information is otherwise discoverable, PHI under HIPAA may only be disclosed under certain circumstances. In litigation, disclosures of PHI are often made pursuant to a “qualified protective order.” A covered entity may disclose PHI if it “receives satisfactory assurance…from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order….” At a minimum, the qualified protective order must prohibit the parties from using or disclosing the PHI for any purpose other than the litigation and require the return to the covered entity or destruction of the PHI, and any copies made, at the end of the litigation. If a qualified protective order that meets HIPAA requirements is in place and the documents are not otherwise privileged or protected, it may be appropriate to provide the documents.  Of course, your hospital may also provide PHI that is sought in discovery after it is de-identified according to the requirements of HIPAA. Disclosure of de-identified health information may be appropriate if the discovery request does not seek health information that is tied to a particular individual and does not cover a large number of documents.

November 5, 2015

Posted on by hortyspringer

QUESTION:        In response to a credentials verification inquiry about a former staff member, one of our newest department chiefs disclosed that this former staff member had been subject to a performance improvement plan. Now a lawyer for that former staff member has demanded a retraction and threatened to sue for defamation. What should we do?

 

ANSWER:           Refer the letter to counsel, who can send a response educating the lawyer about custom and practice in credentialing and about the immunity for provision of accurate information. There is nothing to retract if the response was true, nor would a defamation claim succeed. (More importantly, such a letter can help with other potential audiences, in case a suit is filed.) Credentialing would break down if no one responded truthfully to verification inquiries. The Health Care Quality Improvement Act provides for immunity in favor of those who provide information to other hospitals. 42 U.S.C. Section 11111(a)(2). However, even meritless suits are a drain on resources and may have a chilling effect on future leaders.

Immunity helps if there is a suit, but are there ways to minimize the likelihood of a suit? If there were issues with a former staff member, it may be prudent for all inquiries to be referred to a central place, such as a VPMA/CMO, who can guide a new Chief. Your Medical Staff Services Professional can also be a great help in fielding such inquiries and helping new leaders who have never faced such an issue. In the future, you might consider, as a policy matter, developing a standard communication for use when inquiries relate to a practitioner who experienced concerns, advising inquiring hospitals that no response to any credentialing inquiry will be provided without a signed specific release. That will send a message without revealing anything.

Be sure you have excellent and strong release and immunity language in your Bylaws or Credentials Policy. And – be sure your new Chiefs attend our Credentialing Clinic or Complete Course for Medical Staff Leaders! The first step to an excellent medical staff is careful credentialing!

October 29, 2015

Posted on by hortyspringer

QUESTION:        We had a nurse practitioner apply for privileges at our hospital, but the application didn’t identify a collaborating physician, which is required under our hospital policy. When we followed up with the applicant, he responded that he didn’t need a collaborating physician because our state now allows nurse practitioners to practice independently. Is this true?

ANSWER:           It depends, but probably not. A state’s decision (through modification of the professional licensing statutes and regulations) to expand the scope of practice for an advance practice nurse, and to allow such practitioners to practice independently in that state, does not generally supersede the policy decision of a hospital that such practitioners must still work in collaboration with a physician appointed to the medical staff in that hospital setting. The only exception would be if the statute “mandated” that such practitioners be permitted to practice independently – in all clinical settings – which most of the statutory changes have not done. While it may be a question that the medical staff and board wish to consider further, there is a significant difference between a statute that permits independent practice and one that mandates independent practice. If the hospital policy continues to require a collaborative relationship, the applicant should be informed that he or she is ineligible to apply unless he or she can supply evidence of a collaboration agreement with a physician.

 

October 22, 2015

Posted on by hortyspringer

QUESTION:        Our health system is comprised of multiple entities, including several hospitals and a large physician group practice. We wanted to know how we can promote consistency and economies of scale by coordinating our efforts to comply with the Health Insurance Portability and Accountability Act (“HIPAA”). We also wanted to know whether we could share protected health information amongst and between the multiple entities.

ANSWER:           Yes, you can. The easiest way to do this is under the HIPAA regulations, at 45 C.F.R. §164.105(b)(1), governing affiliated covered entities. Per this section, “legally separate entities that are affiliated” may designate themselves as a single covered entity for purposes of the security and privacy requirements of the HIPAA regulations. However, all of the covered entities in the system must be under common ownership and control and the designation must be documented. The designation documentation must be maintained in written or electronic form and for a period of six years from the date of its creation or the date when it last was in effect, whichever is greater. Often, this designation can be accomplished with a brief board resolution. The practical effect of the affiliated covered entities designation is that all of the covered entities in your system which are under common ownership and control are treated as one covered entity for HIPAA privacy and security purposes. Thus, they can share a single set of privacy policies and can freely share protected health information as if they were a single entity. This may result in significant efficiencies when navigating the regulatory complexity of the HIPAA rules.

October 15, 2015

Posted on by hortyspringer

QUESTION:        It’s the flu season, again, and we know that we can require employed physicians to have a flu shot, but what about physicians who aren’t employed? What’s the easiest way to do this?

ANSWER:           Yes, a hospital can require non-employed physicians to get a flu shot. The easiest way to implement the policy for non-employed physicians is to include it as part of the eligibility criteria in the medical staff bylaws or credentials policy. The criteria could require every applicant and medical staff member to provide evidence of an annual flu shot. Of course, with every rule, there are exceptions. For example, a physician may have a medical condition that prevents him/her from receiving a flu shot. In those cases, the physician could be required to wear a mask at all times in the hospital.

October 8, 2015

Posted on by hortyspringer

Question:        When do we have to be in compliance with the new requirements for financial assistance policies and emergency care policies?

Answer:         The Patient Protection and Affordable Care Act (“ACA”) added §501(r) to the Internal Revenue Code, imposing new requirements, financial assistance policies, and emergency care policies, on 501(c)(3), “nonprofit” organizations. Last December, the IRS published the final regulations, giving some hospitals just one year to comply with the final regulations.

The date on which a hospital must be in compliance depends on when its tax year begins. A hospital must be in compliance with the Section 501(r) final regulations beginning on the first day of its first tax year after December 29, 2015.

So, if a hospital’s year ends on December 31, 2015, it must be in compliance by January 1, 2016. If it ends on June 30, 2016, it must be in compliance by July 1, 2016. If it ends on September 30, 2016, it must be in compliance by October 1, 2016.

 

October 1, 2015

Posted on by hortyspringer

QUESTION:        We have a Mental Health Unit (“MHU”) in our hospital. Sometimes, inmates from a local prison become inpatients on the MHU. Until recently, we have not required prison security to be on the MHU with the patient/inmate; we were concerned that would damage the treatment milieu. Now we’ve decided it’s necessary to have a prison security officer because of the real potential for violence from the patient/inmate, with possible harm to our other patients and MHU personnel. If the prison will not provide a security officer, will we have EMTALA-compliance problems if we say we cannot take the patient/inmate on our MHU?

ANSWER:          That’s a very good question, and for any individual hospital, the best answer probably comes from its CMS Regional Office (“RO”). Each RO has EMTALA “jurisdiction” over its region. It’s the RO that determines whether there has been an EMTALA violation or not.

Here’s the EMTALA side to the question. The inmate becomes a patient once he is brought to the hospital’s Emergency Department (“ED”). As required by EMTALA, the patient is given a medical screening examination to determine if the patient has an emergency medical condition (“EMC”). The definition of EMC under EMTALA includes a psychiatric EMC.

If the patient has a psychiatric EMC, the EMTALA duty upon the hospital is to stabilize that EMC if the hospital has the capacity and the capability to do so. Because this hospital has an MHU, it has the services and resources to stabilize a psychiatric EMC. (That’s assuming the MHU has an available bed. Here, it does.) So the hospital must proceed with the MHU inpatient process under EMTALA, correct?

Here’s the problem: The MHU is not a “forensic unit” which is meant to be able to handle prison inmates as a patient population. While every MHU has to be able to manage a certain level of violence – that comes with the regular mental health patient population – it’s not meant to manage an inmate population that brings significant concerns of safety and security. That’s the reason why this MHU has told the prison it can no longer take inmates as psychiatric inpatients unless there is a prison security officer on the MHU floor to guard them, as well.

The MHU’s EMTALA argument: It does not have the EMTALA capacity to care for the patient in the MHU without that prison security officer. As the MHU is not a forensic unit, when there are legitimate concerns about violent behavior by a prison inmate/patient, it does not have the capacity to take that patient without the prison security officer.

We have had conversations with different CMS RO EMTALA officials about this knotty problem, one quite recently. That EMTALA official was very sympathetic to the MHU’s plight, and agreed with the capacity analysis. Another RO EMTALA official with whom we once talked this through was not as sympathetic.

And, that’s not to criticize the ROs or their EMTALA officials. It’s a difficult problem, one also further complicated by the fact that EMTALA and state mental health laws and services are often a bad fit, and because there are simply not enough MHU beds in any region or in any state. These two underlying complications make a difficult problem even more difficult.

 

September 24, 2015

Posted on by hortyspringer

QUESTION:        One of the few remaining independent physician groups whose physicians are members of our medical staff desperately needs help. They have been unable to find a physician who is willing to relocate, but have found several qualified non-physician practitioners who are. The group has approached the hospital requesting the same type of net income guarantee recruitment assistance agreement that the hospital would offer to the group if they had located a physician. Since it will be less costly to provide the recruitment assistance needed to recruit a non-physician practitioner, this seems like a simple decision. However, our attorney is telling us that the proposed arrangement violates the Stark law. How?

ANSWER:          Unfortunately, your legal counsel is correct. The Stark law only applies to physicians. A PA, CRNP, CRNA, or other non-physician practitioner (“NP”) is not a “physician” as defined by the Stark law. So the Stark law would not apply to a direct compensation arrangement between the NP and the hospital.

However, that is of little practical benefit if the request is for an income guarantee. By definition, the hospital must, directly or indirectly, pay the guarantee payment to the physician group. This creates a compensation arrangement between the hospital and the group and so in order to comply with the Stark law, this arrangement must satisfy an exception. Unfortunately, in the Preamble to the Stark Phase 3 Rules, in response to a comment asking whether recruitment assistance could be provided to a group to recruit an NP, CMS responded by stating that the physician recruitment exception is limited to the recruitment of a physician. CMS then stated that any recruitment payments made by a hospital to a physician group to assist the group to recruit an NP would constitute a compensation arrangement “to which no exception would apply.”

We have never understood CMS’s position and now it appears that CMS has seen the error of its ways. In the July 15, 2015 Federal Register, CMS proposed creating a new exception to the Stark law that would specifically permit a hospital to provide recruitment assistance to a physician group to employ an NP.

While a positive step, there are a number of concerns with the proposed exception. As proposed, the new exception is much more limited than the physician recruitment exception. For example, it limits the exception to PAs, CRNPs and certified nurse midwives who are employed by a physician group to provide primary care services. It also limits the type of recruitment assistance that may be provided.

In comments that we submitted to CMS, we requested that CMS revise this exception to make it less restrictive and more in line with the physician recruitment exception. Whether CMS will agree with our comments remains to be seen when it publishes final regulations.

Therefore, the safest course of action right now is to provide the recruitment assistance directly to the NP. However, current law does not permit a guarantee-type arrangement with a physician group to recruit an NP. As a result, we have found the types of recruitment assistance that are currently permitted to be used with an NP to be very limited. If you have the luxury of time, a better approach would be to wait and see if CMS publishes the proposed NP recruitment exception in final form and then follow that exception.

The $115,000,000 settlement described in the “Your Government at Work” section of this week’s HLE was, for the most part, due to the compensation paid to employed physicians. Want to learn more about the types of compensation that can be paid to employed physicians? Join Henry, Rachel and Charlie in Las Vegas on October 15-17 at the Physician Employment Institute.