On April 29, 2011, CMS issued its Final Rule on Changes Affecting Hospital and Critical Access Hospital Conditions of Participation: Credentialing and Privileging of Telemedicine Physicians and Practitioners. As promised in its proposed rule, CMS revised 42 C.F.R. sections 482.12(a)(2), 482.22(a)(2) and 485.616(b) to allow hospitals or critical access hospitals that provide telemedicine services to patients via an agreement with a distant hospital or telemedicine entity to rely on information from that distant hospital or telemedicine entity in making credentialing and privileging decisions. This revision not only brings Medicare regulations in line with The Joint Commission’s approved “privileging by proxy” process, but also relieves providers from a duplicative and burdensome process. To review this new rule, click here. For further comment on this rule, see our February 18, 2011 post. The new rule takes effect in 60 days.
von Briesen Health Law Blog
May 3, 2011
March 25, 2011
Peer Review Protections Broadened Under New Law
Wisconsin recently expanded its peer review protection through the enactment of the Wisconsin Health Care Quality Improvement Act (WHCQIA). This new legislation is part of Wisconsin’s tort reform bill and revises Wisconsin’s current peer review statutes, Wis. Stat. §§ 146.37 & .38. In particular, WHCQIA broadens peer review protections for health care providers by, among other things, allowing related entities to share peer review information and explicitly protecting incident reports created as part of an organization’s peer review process. These helpful additions to state peer review protections not only ensure that related entities can work together in monitoring quality patient care, but also add comfort to peer review processes.
The revised statute will apply to disclosures and releases made on or after February 1, 2011, even if the peer review sessions took place prior to that date.
February 25, 2011
Second Major HIPAA Enforcement Action
Federal authorities continue to move forward with unprecedented enforcement of HIPAA violations. Massachusetts General Hospital entered into a $1 million settlement, plus corrective actions, in response to an employee’s loss of scheduling documents that included information on patients with HIV/AIDS. The employee reportedly left the documents on a subway train. For more information, click here.
February 22, 2011
Department Issues First CMP for HIPAA Privacy Violation
The U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) has issued a Notice of Final Determination finding that Cignet Health of Prince George’s County, Md., (Cignet) violated the Privacy Rule of the Health
Insurance Portability and Accountability Act of 1996 (HIPAA). HHS imposed a civil money penalty (CMP) of $4.3 million for the violations — the first CMP issued for a covered entity’s violations of the HIPAA Privacy Rule.
For more information or to read the entire article, visit the Morningstar.com web link.
February 7, 2011
Here We Go Again – DOJ Investigating ICD Implants
If you were involved with a kyphoplasty audit, this may sound familiar. A number of hospitals and health systems have recently been served with subpoenas by the United States Department of Justice regarding Medicare billing for implantable cardioverter defibrillators (“ICDs”). The DOJ is investigating whether hospitals billed Medicare for ICDs for patients who did not satisfy coverage National Coverage Determination criteria. For example, NCD criteria provides that Medicare does not cover implantation of ICDs in patients who lack a history of arrhythmia, even if their heart function indicates that they are at an elevated risk of sudden death due to arrhythmia, if the implantation occurred within 40 days of an acute myocardial infraction or within three months of a bypass surgery or angioplasty. The DOJ also is investigating the three largest ICD manufacturers regarding their communication with providers regarding Medicare billing – much like the DOJ’s past investigation of Kyphon as part of their kyphoplasty investigation.
The National Coverage Determination criteria can be found in the NCD Manual Section 20.4. If you have any questions about your ICD billing practices, please contact our Compliance Team.
February 3, 2011
Mid-Level Providers May Now Order Respiratory Therapy in Hospitals Under State Law
The Centers for Medicare and Medicaid Services revised its Hospital Conditions of Participation this past summer to permit a qualified and licensed practitioner who is responsible for the care of the patient to order respiratory care, provided the practitioner is acting within his/her scope of practice under state law. See 42 CFR 482.57(3). The hospital’s medical staff must also authorize the practitioner to order respiratory care services. See id. Because of this revision, Medicare now allows nurse practitioners, physician assistants and others to order respiratory care without a physician’s countersignature if state law permits such practitioners to issue respiratory care orders.
Until January 28, 2011, however, Wisconsin law still required that a physician order all respiratory care services. See Wis. Admin. Code DHS §124.22(4). The physician may then delegate the task of ordering respiratory services to mid-levels, who then write the orders for the respiratory care, as long as a physician counter-signs the order. See http://www.dhs.wisconsin.gov/rl_DSL/Hospital/frequentAskQs.pdf (question 30). The DQA changed this discrepancy through the issuance of DQA Memo 11-004/Respiratory Therapy Orders in Hospitals, a statewide variance for DHS 124.22(4) to allow licensed practitioners, who are authorized via their practice act and are granted privileges by the medical staff of the hospital, to order respiratory care services. Effective immediately, this variance provides more flexibility for providers when it comes to respiratory care and can be found at http://www.dhs.wisconsin.gov/rl_dsl/Publications/11-004.htm.
January 24, 2011
Announcement on Health Care Fraud Prevention and Enforcement
Today the U.S. Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Associate Attorney General Thomas J. Perrelli issued a report showing that the government’s health care fraud prevention and enforcement efforts recovered more than $4 billion in taxpayer dollars in Fiscal Year (FY) 2010. This is the highest annual amount ever recovered from people who attempted to defraud seniors and taxpayers. The complete news release is available here.
The annual Health Care Fraud and Abuse Control Program Report for Fiscal Year 2010 referred to in the HHS/DOJ news release is now available at http://go.usa.gov/Y1f.
January 19, 2011
TJC Looking at Medical Record Documentation
For the first half of 2010, The Joint Commission lists medical record documentation as one of the top ten standards in noncompliance. Citing RC.01.01.01 (complete and accurate medical records) as the standard with the highest noncompliance, TJC suggests conducting concurrent chart audits to ensure compliance. Additionally, providers should check compliance with verbal order standard RC.01.03.07 and assessment/reassessment standard PC.01.02.03. Contact our Medical Staff team members for questions regarding these standards.
A Peer Review Reminder
Last month, the U.S. District Court for the Western District of Pennsylvania ruled that a handwritten nurse’s note was not protected by the peer review privilege. The court specifically denied peer review protection because the note was not part of the proceedings or record of a peer review committee, nor was it derived from a peer review committee’s evaluation or incident review. Instead, the court compared the note to an unprotected incident report or recording log. See Ellison v. Women & Children’s Hosp., W.D. Pa., No. 08-313 (12/10/10) at http://op.bna.com/hl.nsf/r?Open=mapi-8c5lj. Although this case was not decided under Wisconsin state law, the applicable peer review law is similar – reminding providers to take caution with documentation as it relates to peer review issues. If you have any questions regarding Wisconsin peer review law, please contact our Medical Staff team members.
January 12, 2011
Supreme Court Rules That Medical Residents Subject to FICA
Just yesterday the United States Supreme Court handed down a decision subjecting wages earned by medical residents working 40+ hours a week to FICA taxes. The Court decidedly applied Chevron’s two-part framework for evaluating the Treasury Department regulations and concluded that the full-time employee rule was not inconsistent with the student FICA exception, as provided under IRC § 3121. Although the Internal Revenue Service conceded in March 2010 that wages earned by medical residents before the effective date of the full time employee rule are not subject to FICA taxes, this decision now subjects wages earned by medical residents since April 1, 2005 to FICA taxes. Click here for the full-text opinion: http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=10.