October 7, 2021

Posted on October 7, 2021October 7, 2021 by Courtney Patterson

QUESTION:
In June, a federal court dismissed claims brought by employees of Houston Methodist Hospital who alleged the hospital’s vaccination requirement was illegal. In this past week, another federal judge dismissed a similar lawsuit brought by employees of St. Elizabeth Medical Center. How many hospitals/health systems have a mandatory vaccination requirement?

ANSWER:
As of September, approximately 2,600 hospitals and health systems put in place a mandatory vaccination requirement. There were also over a dozen states, and even several cities, that imposed the requirement on health care workers. There were some requirements that had exemptions for medical or religious reasons, and the penalties for not being vaccinated ranged from suspension to termination to weekly testing, among other things. So, the requirement is on the upswing, and we’re staying alert for any updates.

September 23, 2021

Posted on September 23, 2021 by Courtney Patterson

QUESTION:
We are involved in an overhaul of our medical staff governance documents. We put together a task force of system leaders to guide us through the process, including an advanced practice professional (APP). Historically, our documents only referenced APPs in a single article.

The task force is being challenged to be more inclusive and integrate APPs throughout the documents, including as members of the medical staff, and as members of key committees like the Credentials Committee, Medical Executive Committee and the Peer Review Committee. What are you seeing around the country?

ANSWER:
We are seeing change – you might even say a transformation – with respect to how APPs are addressed in medical staff governance documents. As you suggest, historically, APPs were mentioned in a separate article of the bylaws or perhaps there was a separate policy to address how to credential and privilege them.

As licensing statutes have changed and, as the role of APPs in providing care in hospitals has continued to expand, questions about their involvement in the Medical Staff are now routinely being discussed and debated. As is often the case, there is no single right answer. Each organization has flexibility and discretion to decide whether, when and how to incorporate APPs into their bylaws, with some exceptions.

Let’s start with the exception which is the requirement that APPs (including advance practice nurses and physician assistants), who provide a medical level of care, must be credentialed and privileged through the medical staff process. Additionally, since APPs are granted privileges, their performance must be evaluated through the peer review process.

These requirements lend support for integrating APPs into your medical staff governance documents so you don’t need companion documents to address requirements pertaining to them. However, whether they are members of the Medical Staff and what role they play on the Medical Staff is another question.

In our experience, many Medical Staffs are including an APP category in the Bylaws for “convenient reference” but clearly state: “The APP Staff is not a category of the Medical Staff.” More recently, we have seen Medical Staffs add an APP category (akin to the Courtesy or Consulting Staff) to the Bylaws. This would afford APPs membership status but their rights and prerogatives would be very limited (e.g., no right to vote at the Medical Staff or department level, no ability to serve in a leadership position).

A few Medical Staffs are going a step further and identifying APPs as members of each category of the Medical Staff as long as they meet the patient contact or other criteria. In these situations, to ensure compliance with the Conditions of Participation and accreditation standards, the Bylaw typically note that APPs are not eligible to serve as an officer or department chairperson. The rules are different at critical access hospitals.

As you suggest, other key issues are whether to include APPs on committees like the Credentials Committee, Medical Executive Committee, and the Peer Review Committee. While we won’t say there is a national consensus, we are definitely seeing a movement in this direction including a designated spot on these committees for an APP (usually appointed by the Chief of Staff or Medical Executive Committee). Some Medical Staffs still want to clarify that the APPs are present to address APP issues but must leave when there is a credentialing or peer review issue pertaining to a physician, but most are not this restrictive. And my personal bias is if you make an APP a member of a committee and expect them to show up and participate, they should have a right to vote.

And these are the easy issues. The much tougher issues involving APPs are around required training, clinical privileges, and changes in practice. We’ll leave these for another day.

September 9, 2021

Posted on September 9, 2021 by Courtney Patterson

QUESTION:
I heard that the Government might delay the implementation of the Surprise Billing Rules that are scheduled to go into effect on January 1, 2022. Is that so?

ANSWER:
Partially. On July 13, 2021, the Departments of Health and Human Services, Labor, and Treasury published an Interim Final Rule implementing certain provisions of the No Surprises Act, which was enacted as part of the Consolidated Provisions Act of 2021. Effective January 1, 2022, the Interim Final Rule:

affords patients protection against balance billing and cost sharing for certain out-of-network services;

prohibits out-of-network providers and health care facilities from balance billing patients under specific circumstances absent notice and consent;

requires providers to disclose federal and state patient protections against balance billing; and

describes complaint and dispute resolution processes for patients, payers and providers to address potential violations.

In an FAQ published on August 20, 2021, HHS said it will defer enforcement of the requirements to (1) make public the machine-readable files for in-network rates and out-of-network allowed amounts and billed charges, (2) provide good faith estimate of expected charges, and (3) provide an Advanced Explanation of Benefits at least until July 1, 2022. https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-49.pdf

So, the bottom line is that the regulations are still scheduled to go into effect on January 1, 2022, but certain parts will not be enforced right away.

In the meantime, hospitals should begin to check their physician contracts, especially those with hospital-based providers like radiology, pathology, anesthesia and emergency medicine, to make sure they require the physicians to comply with the surprise billing rules and preferably require them to participate in any third-party payor programs in which the hospital participates.

Horty Springer and its partner LegalSifter will soon be announcing a new AI-empowered tool to make it easier to review your contracts for Surprise Billing compliance. Be sure to watch for it!

April 21, 2016

Posted on April 21, 2016April 21, 2016 by hortyspringer

QUESTION: We received a HIPAA authorization form via e-mail, requesting a copy of the patient’s medical record for life insurance verification purposes. There is no signature on the form – just a typewritten name and some information regarding when the electronic signature occurred. Does this type of signature satisfy HIPAA’s requirement that authorization forms be “signed” by the patient?

ANSWER: Yes. The Health Insurance Portability and Accountability Act (“HIPAA”) does not require the signature on an authorization form to be physically placed there by the patient, signing with a pen. Rather, so long as the applicable state (the state where the patient is located and/or the state where the hospital is located) recognizes an electronic signature as legally binding and valid, it is fine for the authorization form to be signed electronically. In our experience, most states recognize electronic signatures as valid equivalents to signatures, for most purposes. But, you should check with counsel and have them research the applicable state law, to be sure.

Note the following FAQ from the Department of Health and Human Services Office of Civil Rights’ web page at http://www.hhs.gov/hipaa/for-professionals/faq/554/how-do-hipaa-authorizations-apply-to-electronic-health-information/:

How do HIPAA authorizations apply to an electronic health information exchange environment?

The HIPAA Privacy Rule requires the individual’s written authorization for any use or disclosure of protected health information (PHI) not otherwise expressly permitted or required by the Privacy Rule. For example, authorizations are not generally required to disclose PHI for treatment, payment, or health care operations purposes because covered entities are permitted to use and disclose PHI for such purposes, with few exceptions. Thus, to the extent the primary purpose of any electronic health information exchange is to exchange clinical information among health care providers for treatment, HIPAA authorizations are unlikely to be a common method of effectuating individual choice for the exchange. However, if the purpose of a covered entity sharing PHI through a health information organization is for a purpose not otherwise permitted by the Privacy Rule, then a HIPAA authorization would be required. In such cases, the Privacy Rule would allow covered entities to disclose PHI pursuant to an electronic copy of a valid and signed authorization. Further, the Privacy Rule allows HIPAA authorizations to be obtained electronically from individuals, provided any electronic signature is valid under applicable law.
Created 12/15/08

April 7, 2016

Posted on April 7, 2016April 7, 2016 by hortyspringer

QUESTION: Our physician practice is a separate entity that employs both physicians and non-physician practitioners (“NPPs”). Many of the physicians bill the NPPs’ services as “incident-to” services. Our compliance officer wants to audit the “incident-to” billing and wants to know if there is a simple, straightforward way to conduct such an audit.

ANSWER: Unfortunately, the answer is no.

Medicare does not require that a physician use any type of identifier or modifier in order to identify “incident-to” services. This became an issue for the OIG in its report entitled “Prevalence and Qualifications of Non-Physicians Who Performed Medicare Physician Services,” OEI-09-06-00430 (August 2009).

The OIG began this report by conceding that “little is known about Medicare services that are performed ‘incident-to’ the professional services of a physician.” The OIG noted in several places that it has no simple means to determine what services NPPs are providing to Medicare beneficiaries or the qualifications of those NPPs when the services are billed under the “incident-to” rule.

The OIG also recognized that there are a number of limitations to its study and cautioned against extrapolating the conclusions reached in this Report to the Medicare program as a whole. Nonetheless, it is clear that the Report’s description of what NPPs do, their credentials and how they provide services is instructive to both the OIG and to practices that utilize NPPs.

But before we discuss the OIG Report, let us examine the Medicare “incident-to” rule. This rule permits a physician to bill Medicare Part B at the full physician fee schedule amount for the services that are performed by an NPP, if the services are: (i) furnished to beneficiaries who are not inpatients of a hospital or SNF; (ii) commonly provided in a physician’s office; (iii) an integral though incidental part of the services provided by the physician; (iv) included in a treatment plan for an injury or illness where the physician performs an initial service and is involved actively in the course of treatment; (v) commonly furnished without charge or included in the physician’s bill; and (vi) provided under the “direct supervision” of the physician (i.e., the physician must be present in the office suite while the services are being provided and immediately available to provide assistance).

In this report, the OIG wanted to audit exactly what Medicare was paying for when the program reimbursed claims for services that were billed under the Medicare “incident-to” rules. However, because “incident-to” claims cannot be identified on the face of the claim, the OIG had no simple or direct means to identify “incident-to” claims.

As a result, the OIG had to formulate a means to identify “incident-to” billing. In order to do so, the OIG looked at all the physician claims submitted to the program during the first quarter of 2007 and converted the E and M codes billed to a period of time using the Medicare Fee Schedule average time associated with each service. The OIG then identified physicians who billed more than 24 hours in a single day, reasoning that the only ways to do so were either fraud or using NPPs.

Using this methodology, the OIG identified over 200 physicians who had billed more than 24 hours of services in a single day. The OIG excluded a few physicians who were being investigated for billing fraud. However, the OIG then determined that billing more than 24 hours in a day was not a concern to the OIG so long as the physicians complied with the “incident-to” rule.

The OIG then sent an audit request to the physicians who were part of the study, requesting that they identify the services that were being provided by the non-physician practitioners and the qualifications of those non-physician practitioners.

While the OIG found that most services billed using the “incident-to” rules were appropriate and most non-physicians involved in the care of those services were authorized to provide the service under state law, the OIG expressed the concern that a significant percentage of “incident-to” services may be performed by unqualified non-physician practitioners, concluding:

Unqualified non-physicians performed 21 percent of the services that physicians did not perform personally. In the first 3 months of 2007, Medicare allowed $12.6 million for approximately 210,000 services performed by unqualified non-physicians. These non-physicians did not possess the necessary licenses or certifications, had no verifiable credentials, or lacked the training to perform the services. Non-physicians with inappropriate qualifications performed 7 percent of the invasive services that physicians did not perform.

The OIG study shows that “incident-to” billing is an area that your compliance program should review. However, the study also shows the difficulty involved in conducting such an audit.

While you could use the OIG’s methodology, it is probably easier to visit each practice to observe whether the physicians who bill under the “incident-to” rules are following the requirements of the rules and to make sure that the services provided by the NPPs are within the scope of their state license.

January 7, 2016

Posted on January 7, 2016January 7, 2016 by hortyspringer

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.

Opening Microsoft Word files with Internet Explorer 8

Posted on March 18, 2014August 4, 2020 by hortyspringer

Internet Explorer 8 struggles to open Microsoft Word 2010 files (those that have a .DOCX file extension). If you’re using IE8 and attempt to open documents in DOCX format, IE may try to open it as an XML file, resulting in a screen full of code like this:

There are three potential workarounds for this:

Use a different browser (Firefox, Chrome, Safari)
Manually type in the correct file extension
Change a setting in IE

How to manually type in the correct file extension

Right click the document you want to save, and choose “Save Target As.”
Change the file type to “All Files.” And, change the file extension at the end of the file name so it ends in “.DOCX” This will trick your computer into saving the document as a Word file.

Please call us at 412.687.7677 if you would like assistance.

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