After a long wait, CMS has published the “meaningful use” rules on electronic health record technology. Click here to review the final rule (276 pages) or view a quick summary in a CMS fact sheet. CMS has relaxed the final rules in some respects from its rules proposed in January.
von Briesen Health Law Blog
July 30, 2010
July 26, 2010
Labor and Employment Law Update – July 2010
One topic that continues to have the most decisions and expensive settlements are class action wage and hour lawsuits. Millions of dollars are being awarded against employers or employers are paying such sums to settle these class action lawsuits.
The major issues involved in these lawsuits are the following:
- employees not getting their uninterrupted 30-minute meal break and not being compensated when they do not;
- automatic meal break deduction;
- misclassification of employees as exempt;
- unauthorized hours worked;
- failure to record work time as required for telecommuting employees;
- donning and doffing activities;
- on-call time; and
- travel time.
July 15, 2010
HIPAA Revisions Officially Published for Comment
With a grace period for implementing Business Associate Agreements and lots of proposed revisions, it looks like its going to be a while before we know the “real” impacts of HITECH on HIPAA. Stay tuned. Here’s a link to the new, proposed regulations. Let us know if you have comments!
July 11, 2010
HHS Releases Proposed Rule to Modify HIPAA Rules
On July 8, the Department of Health and Human Services (HHS) released a proposed rule to modify the HIPAA privacy, security, and enforcement rules, extending HIPAA compliance requirements to subcontractors of business associates (BA) and strengthening patient rights to health information privacy.
According to the Office for Civil Rights (OCR), which enforces the HIPAA privacy and security rules for HHS, the proposed ‘significant’ modifications include:
- A requirement that BAs of HIPAA-covered entities be under most of the same rules as the covered entities
- New limitations on the use and disclosure of protected health information (PHI) for marketing and fundraising purposes
- Prohibition of the sale of PHI without an authorization
- Expansion of individuals’ rights to access their information and to restrict certain types of disclosures of PHI to health plans
- Provisions that strengthen and expand HIPAA’s enforcement rule
HHS will receive comments for up to 60 days after the proposed rule’s July 14 publication in the Federal Register, after which it will release an interim final rule. According to HHS, it will give covered entities and BAs 180 days after the final rule becomes effective to comply with most of the provisions.
July 8, 2010
CMS Releases its CY 2011 Proposed Rules for HOPDs and ASCs
CMS released its CY 2011 proposed rules for hospital outpatient departments and ambulatory surgery centers on July 2, 2010. The proposed rules update payment policies and rates for hospital outpatient departments and ambulatory surgery centers. Some of the proposed provisions implement portions of the health reform legislation signed into law in March. As described by CMS, notable provisions of the proposed rule include:
Hospital Outpatient Departments
- Waiver of the deductible and copayment for certain preventive services.
- Additional quality measures to report in CY 2011 (six additional measures, including a health information technology measure), CY 2012 (seven additional measures) and CY 2013 (six additional measures).
- Validation of quality reporting, including review of randomly selected cases from each hospital.
- Changes to the supervision requirements for certain non-surgical extended duration services to require direct supervision for the initiation period of such services, followed by general supervision.
- Payment for the acquisition and pharmacy overhead costs of separately payable drugs and biologicals at an amount equal to the average sales price plus six percent.
- Removal of CPT codes 21193, 21395 and 25909 from the inpatient-only list.
Ambulatory Surgical Centers
- Waiver of the deductible and coinsurance for certain preventive services.
- The addition of five surgical procedures to the list of Medicare-covered ASC procedures.
Other Proposed Rules
- Reduced availability of the physician self-referral exceptions for ownership or investment interests in a “whole hospital” or “rural provider” for new physician-owned hospitals and those looking to expand capacity.
- Changes relating to graduate medical education payment.
You can review a summary of most of these provisions on CMS’s website here. A display copy of the proposed rule is available here. CMS will accept comment until August 31, 2010.
CMS Releases its CY 2011 MPFS Proposed Rule
CMS recently released its CY 2011 Medicare Physician Fee Schedule Proposed Rule. Among updated payment policies and rates for services paid under the Medicare Physician Fee Schedule, the proposed rule includes provisions to implement portions of the health reform legislation signed into law in March. As described by CMS, the proposed rule includes provisions, among others, relating to the following:
- Elimination of the deductible and coinsurance that would otherwise apply for most preventive services.
- Coverage of annual wellness visits in which the beneficiary receives personalized prevention plan services.
- Quarterly incentive payments for primary care services furnished by primary care practitioners.
- Quarterly incentive payments for major surgical procedures provided by general surgeons in health professional shortage areas.
- Permission for physician assistants to order post-hospital extended care services.
- An increase in the Medicare payment for certified nurse-midwife services so that it equals 100% of the MPFS.
- Extension of Medicare reasonable cost payments for certain clinical diagnostic laboratory tests performed by hospitals with fewer than 50 beds that are located in certain rural areas as part of their outpatient services.
- An amendment to the in-office ancillary services exception for self-referrals.
- Adjustments to the DMEPOS competitive bidding program (to add 21 metropolitan statistical areas to round 2).
- Modification to the equipment utilization rate assumption for expensive diagnostic imaging equipment used in diagnostic computed tomography and magnetic resonance imaging services.
- Payment revisions for power-driven wheelchairs.
- Reduction of the maximum period for submission of Medicare fee-for-service claims to not more than 12 months.
You can review a summary of each of these provisions on CMS’s website here. A display copy of the proposed rule is available here. CMS will accept comments until August 24, 2010.
June 18, 2010
ONC Issues Final Rule to Establish the Temporary Certification Program for Electronic Health Record Technology
The HHS Office of the National Coordinator for Health Information Technology (ONC) released a final rule June 18 establishing a certification program for health information technology. The rule describes the temporary certification program for EHRs, and what organizations need to do to be authorized to test and certify EHR technology.
“[EHR technology certification] assures healthcare providers that the EHR technology they adopt has been tested and includes the required capabilities they need in order to use the technology in a meaningful way to improve the quality of care provided to their patients,” according to the June 18 HHS press release.
The rule specifically establishes a temporary certification program that will help ensure the availability of certified technology prior to October, when some providers become eligible for EHR meaningful use incentive payments. It also states that a permanent program that will eventually replace the temporary one, according to the ONC.
To qualify for incentive payments organizations must use certified technology per the Medicare and Medicaid EHR Incentive Programs provisions. The program was authorized in the 2009 Health Information Technology for Economic and Clinical Health Act enacted as part of the American Recovery and Reinvestment Act.
The final rule takes effect June 24, when it will be published in the Federal Register. The ONC expects to release the permanent certification program final rule later this fall, according to the press release.
June 14, 2010
New Wisconsin Law Creates Reporting Obligations for Physicians – And Concerns for Peer Reviewers, Managers, and Treatment Providers for Physicians
On June 2, 2010, a new Wisconsin law became effective that expands reporting obligations for providers licensed by the Medical Examining Board (”MEB”). 2009 Wisconsin Act 382 created a new statute under Wisconsin Chapter 448 (”Medical Practices”) requiring a person licensed by the MEB to “promptly” submit a report to the MEB when the person has reason to believe any of the following about another physician:
Read more…
June 8, 2010
New Home Health Services and DME Restriction To Take Effect Soon
Effective July 6, 2010, physicians who have not enrolled in PECOS or opted out of Medicare will not be able to order or refer Medicare patients for home health services or DME. PECOS is the electronic database of Medicare providers and suppliers. If a physician did not file an 855I enrollment form since November 2003, it is likely that the physician is not enrolled in PECOS. Having an NPI does not mean that the physician is enrolled in PECOS.
The National Association for Home Care and Hospice recently issued a reminder of this new restriction, and noted that physicians should be receiving a letter from his/her Medicare contractor regarding this new requirement in a few weeks. However, the enrollment process is not quick, so physicians who are not now enrolled in PECOS should submit the relevant enrollment applications as soon as possible.
- To determine if a physician is enrolled in PECOS or as an opt-out physician, check the Medicare Ordering/Referring database. If the physician filed an 855I after November 2003, but is not in this database, follow-up with the physician’s Medicare enrollment contractor. Click here for a list of contacts.
- If you need to submit an enrollment application, follow the directions on the CMS website. If you want to enroll electronically, follow the directions for Internet-based PECOS. You will need to register before you use the electronic enrollment.
- If a physician wants to reassign his or her right to bill Medicare and receive payments, he or she must enroll first on the 855I, and then file an 855R for the reassignment.
Background: This new Medicare requirement implements a provision in Health Reform, and is contained in a Medicare Interim Final Rule at http://frwebgate4.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=014643292835+0+2+0&WAISaction=retrieve The comment period is open until July 6, 2010, if you want to comment on the proposed rule.
June 3, 2010
New Wisconsin Law Creates Reporting Obligations for Physicians – And Concerns for Peer Reviewers, Managers, and Treatment Providers for Physicians
On June 2, 2010, a new Wisconsin law became effective that expands reporting obligations for providers licensed by the Medical Examining Board (“MEB”). 2009 Wisconsin Act 382 created a new statute under Wisconsin Chapter 448 (“Medical Practices”) requiring a person licensed by the MEB to “promptly” submit a report to the MEB when the person has reason to believe any of the following about another physician:
1. The other physician is engaged in acts that constitute a pattern of unprofessional conduct.
2. The other physician is engaged in an act that creates an immediate or continuing danger to one or more patients or to the public.
3. The other physician is or may be medically incompetent.
4. The other physician is or may be mentally or physically unable to engage in the practice of medicine or surgery.
The law further expands the definition of “unprofessional conduct” under Wisconsin Stat. § 448.014(4) to include failure by a physician to make such a report. Previously, Wisconsin physicians had only an ethical, not legal, duty to make such reports under the American Medical Association’s and Wisconsin Medical Society’s codes of ethics. The new Wisconsin law further provides that physicians who make such reports to the MEB “in good faith” may not be held civilly or criminally liable or guilty of unprofessional conduct.
This law raises several serious questions for physicians who have dual roles as peer reviewers, medical managers, and providers for physicians, since failure to report can lead to discipline for unprofessional conduct by the MEB. Unfortunately, the new law does not address the dual role certain physicians play as managers of medical staff and employed physicians. It also does not address the scenario of a physician treating another physician, for example, for mental health or substance abuse issues. Finally, and perhaps most importantly, there is the issue of how this law will interact with the privileges, immunities, and obligations of the Wisconsin peer review law as well as the federal Health Care Quality Improvement Act. We are told that guidance on these issues from the MEB is forthcoming, perhaps in the form of regulations.
Other provisions of 2009 Wisconsin Act 382 grant the Chair of the MEB or his or her designee and two other MEB members the power to summarily suspend a credential without the previous 30-day and 72-hour limitation. The law also includes a provision allowing physicians holding a temporary educational permit to practice medicine and surgery the ability to prescribe narcotics, as well as a provision allowing the MEB to change Continuing Medical Education (CME) requirements by rule rather than by legislation.
To read the entire Act, click here.
von Briesen’s medical staff lawyers will provide updates on these issues as the MEB’s interpretation of the law is developed.