QUESTION:
I see that you have a new podcast that somehow the Stark and Anti-Kickback Statute (“AKS”) have been amended to address how a hospital can assist a physician suffering from burnout.  What do Stark and the AKS have to do with how a hospital and its medical staff can assist a physician in distress, and how did that happen?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Thank you for the opportunity to plug our new podcast entitled “Don’t Get Burnout from Your Wellness Program.”  While the podcast will provide more detail, here are the highlights.

The Consolidated Appropriations Act of 2023, which raised the debt limit, added a number of other provisions including a new Stark exception and a new Anti-kickback safe harbor on Physician Wellness Programs.  These new sections of the Social Security Act will allow hospitals and the other named types of facilities to incur the expenses required to send physicians on their medical staff to a Physician Wellness Program as defined in the statute under the conditions stated in the new exception/safe harbor.

We should also mention that a separate section of the Consolidated Appropriations Act directed the OIG to consider a new safe harbor, but don’t be thrown off by the title of this section which references something called “contingency management interventions.”  If you look beyond the title of this Section to its text, you will find that Congress is directing the OIG to consider adopting a new safe harbor on “contingency management compensation.”  There is no guarantee that the OIG will do anything other than consider a new safe harbor.  However, if adopted and if reasonable (which is a BIG IF) this new safe harbor may be helpful in a number of settings.

But I digress, with regard to the Physician Wellness Stark Exception/AKS safe harbor, it is helpful to see Congressional recognition that physicians are suffering from burnout and other behavioral health problems and that a hospital can provide the assistance described in the exception/safe harbor without violating the Stark law or the AKS.  However, as discussed in the podcast, that assistance must be provided in the manner described in the statute, which is not onerous, but does require a certain amount of process, such as having a written policy adopted in advance by the board.

On the other hand – who would have thought that a hospital providing this type of assistance to a member of its medical staff in need of Wellness services raises a concern under Stark or the AKS???

The fact that Congress felt the need to adopt this exception in order for a hospital to provide this type of assistance could be used to raise a question as to whether it violates Stark or the AKS if a hospital pays to send a member of the medical staff away for training or for a medical condition that is not expressly covered by the exception.  Should that occur, it will not be difficult to find another exception that applies – nevertheless don’t be surprised if medical staff practices that were taken for granted in the past are now questioned.

Also keep in mind that there is a broad exception under both laws for an employment relationship.  While the new Stark exception/AKS Safe Harbor could be used for an employed physician, it is not needed in that situation – you could rely on the employment exception to Stark and the AKS bone fide employment statutory exception and safe harbor.

For more insights on what is, and what is not, covered by this new law, check out the podcast referenced below.  If you still have any questions about this issue, please feel free to e-mail me or Dan at Hcasale@hortyspringer.com or Dmulholland@hortyspringer.com.

If you want more detail on compliance with the False Claims Act, AKS, the Stark law, the intersection of medical staff and employment law, and much more, consider joining Dan Mulholland, Henry Casale and our newest faculty member – Hala Mouzaffar – in Phoenix November 16-18, 2023, for our next seminar. 

QUESTION:
Our Leadership Council is developing a Performance Improvement Plan (“PIP”) for a practitioner at our hospital who does not play well with others.  One member of our leadership team suggested that we send the practitioner out for a mental health evaluation before finalizing the PIP.  Is this advisable?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
As a rule of thumb, we recommend that you stay away from requesting mental health evaluations from practitioners who have failed to meet your Medical Staff’s standards regarding professionalism.  In our experience, such an evaluation only tends to cloud the Leadership Council’s thinking on how best to address the inappropriate behavior that has been identified.  Additionally, a request for an evaluation might give the practitioner a basis for claiming that he or she was discriminated against under the ADA if disciplinary action is ultimately taken.  That is why we believe it is better to focus on the behavior at issue rather than spending too much time and energy trying to identify its cause.

Of course, impairment and “burnout” are real concerns.  So, if there is compelling evidence that suggests that the practitioner is dealing with a legitimate health issue, then an evaluation may be appropriate.  But that should be managed through your process on practitioner impairment, not your Professionalism Policy or Code of Conduct.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

QUESTION:
We have been reviewing our Rules and Regulations and are having trouble sorting out why there are different rules for verbal orders given by a physician speaking to a nurse practitioner while visiting a patient during rounds, versus a verbal order the physician gives to a floor nurse over the phone, versus verbal orders spoken as part of a dictation by the physician.  Can you help us sort out the rules surrounding the verbal passage of information concerning patient care to other members of the care team?  It seems like some of the rules are more stringent than others and we want to make sure we have got it right.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
The rules surrounding the oral giving, taking, documenting, and authenticating of medical orders in hospitals are so confusing!  You are not alone if you are baffled by the number of rules and white papers and clarifications that are out there speaking to these issues.  As you continue with your Rules and Regulations review and try to sort these things out, we find it is helpful to consider the following factors, as this tends to help clarify why and how different verbal information is treated differently, depending on the circumstance:

• Whether the verbal information is being recorded by another individual verbatim, exactly as spoken by the physician/privileged practitioner; and

• Whether the verbal information is going to be acted upon immediately, before the physician/privileged practitioner has had a chance to review and authenticate the written note.

With those factors in mind, our observation has been that verbal ordering can be divided into three types:

Dictating/Transcribing – With dictation and transcription, an individual or piece of software (though this is generally considered risky due to speech recognition technology errors) takes verbal information from the physician or other privileged practitioner (usually a recording) and transcribes it into a written document, verbatim.  The task is often not contemporaneous with the care provided by the physician (the transcription occurs later, after the physician has dictated the notes and orders).  Further, the note is generally not considered final until the practitioner has reviewed the transcription, made any necessary corrections, and authenticated the document.  There are few formal requirements governing the training of transcriptionists, though most hospitals require a certificate or associate’s degree.

Scribes – With the recording of medical information by scribes, a qualified individual (the scribe) generally listens to verbal information given by the privileged practitioner, decides which pieces of information are most pertinent, and then, contemporaneously with that patient encounter, records the information in the EMR, to assist the privileged practitioner in generating a complete record for medical and billing purposes.  Note that scribes are not transcribing verbatim information but, rather, are listening and recording information so that they can accurately fill in necessary EMR data points (e.g., diagnosis, medications, orders for diagnostic tests, requests for consultation, prescriptions to be given at discharge).  Therefore, after the scribe records the relevant information, it is expected that the privileged practitioner will review and authenticate the relevant note.  The Joint Commission requires scribes working in hospitals to have a certain level of training (to ensure they are familiar with the EMR, understand HIPAA, are familiar with medical and billing information, etc.).  But scribes are not required to be licensed or certified health care practitioners (though hospitals often establish such requirements for scribes and, in addition, establish specified procedures for vetting the qualifications of scribes prior to providing them authorization to provide scribe services in the hospital setting).

Verbal Orders – Finally, we come to verbal orders.  Like scribes, those who take verbal orders are recording the information contemporaneously with when the physician or licensed practitioner is speaking.  However, unlike scribes, when a verbal order is being recorded, it is generally expected that the order will be recorded exactly as spoken (verbatim).  That is because the order is generally expected to be acted upon immediately and, in turn, it is essential that the order be correct when recorded.  It is for this same reason that there is usually a limited, defined subset of individuals who are authorized to take verbal orders (as outlined by hospital policy) and the process of taking a verbal order is subject to greater regulation (the read-back requirement and expedited authentication – usually 24-72 hours after the verbal order is given, depending on state law).  Hospitals have some discretion to determine who may accept verbal orders.  Many allow other physicians, PAs, NPs, and nurses to accept verbal orders related to any matter related to their patient’s care.  More limited practitioners (respiratory therapists, clinical pharmacists, etc.) are often limited to taking verbal orders within their specific medical area of practice.

As you can see, there really are a variety of ways that information is generated orally, but ultimately reduced to writing, in the hospital setting.  Hopefully, this brief explanation helps to make sense of why particular rules, regulations, and policies may treat different types of verbal information differently. Good luck!

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.