The Centers for Medicare & Medicaid Services (CMS) has revised the interpretive guidelines for anesthesia delivered in hospitals. The changes focus on the differences between anesthesia and analgesia services, where the patient does not lose consciousness.
The memo released by CMS provides hospitals with information on what practitioners may provide anesthesia services, what hospital policies should include regarding who is allowed to administer these services, guidelines on the supervision of anesthesiology assistants, and a list of information that must be included in a patient’s anesthesia record.
The Federal Trade Commission announced on May 28, 2010 that it will further delay enforcement of the identity theft “Red Flags” Rule through December 31, 2010. The Rule requires creditors and financial institutions that have certain accounts to develop and implement written identity theft prevention programs. The delay gives Congress time to consider legislation that would affect the scope of entities covered by the Rule. The FTC will begin enforcing the Rule at an earlier date if Congress enacts legislation to limit the scope of the Rule and provides an effective date earlier than December 31, 2010.
You may access the FTC’s announcement here and a von Briesen & Roper Health Law Bulletin on the Rule here.
CMS released a supplemental proposed rule on May 21, 2010 to implement changes in payments for inpatient services in general acute care hospitals and long term care hospitals (“LTCHS”). The changes are required by the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (collectively, “PPACA”). The proposed rule supplements the 2011 IPPS Proposed Rule described in a blog on April 22. CMS did not have time to address provisions relating to PPACA in the earlier proposed rule. The provisions in the supplemental proposed rule generally take effect for discharges occuring on or after October 1, 2010. As described by CMS, the supplemental proposed rule includes provisions relating to:
- Protection for hospitals in frontier states;
- Additional payments for hospitals with low per enrollee Medicare spending;
- Temporary improvements to the low-volume hospital adjustment;
- Revisions of certain market basket updates;
- Wage index improvement related to geographic reclassification;
- National budget neutrality in the calculation of the rural floor for the hospital wage index;
- Extension of Medicare-dependent hospitals;
- Technical correction related to critical access hospital services;
- Extension of certain payment rules for long term care services and of a moratorium on the establishment of certain hospitals and facilities; and
- Extension of the rural community hospital demonstration program.
You can review a summary of each of these provisions on CMS’S website here. A display copy of the supplemental proposed rule is available here. CMS will accept comments until June 21, 2010.
The May 25 issue of the Federal Register includes a notice of proposed changes to the Medicare and Medicaid Conditions of Participation (CoPs) regarding the credentialing and privileging of telemedicine providers.
The proposed rule would permit the governing body at a hospital where a patient is receiving telemedicine services to rely on information from a hospital where the provider is currently privileged (distant-site) when making its own privileging decisions. In order to rely on information from the distant-site, the hospital where services are being received must ensure that
- “the distant-site hospital providing the telemedicine services is a Medicare-participating hospital;
- the individual distant-site physician or practitioner is privileged at the distant-site hospital providing telemedicine services, and that this distant-site hospital provides a current list of the physician’s or practitioner’s privileges;
- the individual distant-site physician or practitioner holds a license issued or recognized by the State in which the hospital, whose patients are receiving the telemedicine services, is located; and
- with respect to a distant-site physician or practitioner granted privileges by the hospital, the hospital has evidence of an internal review of the distant-site physician’s or practitioner’s performance of these privileges and sends the distant-site hospital this information for use in its periodic appraisal of the individual distant-site physician or practitioner.”
The proposed rule would also require that the periodic review information submitted to the distant-site include adverse events and complaints received about the physician or practitioner.
The proposed rule was created to address the redundant collection of information at both the distant-site and the site where services are received.
CMS is collecting comments through July 26.
For more information, click here:
http://edocket.access.gpo.gov/2010/pdf/2010-12647.pdf
The House Office of the Legislative Counsel has created a consolidated version of the Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education Reconciliation Act of 2010 (“HCERA”). PPACA and HCERA form the recent health care reform legislation and must be read side-by-side. Specifically, PPACA was signed by the President on March 23, 2010, but a week later, HCERA was signed by the President and amended PPACA. While the consolidated version is not an official legal document, it is a useful tool for reviewing the health reform legislation. You may access the consolidated version here at the National Conference of State Legislature’s website.
The OIG recently published an advisory opinion relating to a proposal for several diagnostic imaging service providers (a clinic and a medical center) to provide free pre-authorization services to physicians and patients. Many insurers require pre-authorization for imaging services. This is a measure intended to prevent over utilization. In the proposed arrangement, the imaging providers would operate a call center that patients and physicians could contact to obtain pre-authorization services. The center would in turn submit necessary information to the insurers.
Before ultimately approving the arrangement, the OIG acknowledged that free pre-authorization services could implicate the federal anti-kickback statute if the intent to induce referrals was present. The OIG noted that free pre-authorization services could constitute prohibited “remuneration” if the physician’s contract with the insurance company required the referring physician to obtain the pre-authorizations. The imaging provider’s provision of the free pre-authorization services would relieve the physician of the burden and expense of obtaining pre-authorizations directly. Additionally, the OIG noted that free pre-authorization services could constitute prohibited “remuneration” even if the insurance contract placed the burden on the imaging provider or did not allocate the responsibility at all. The OIG provided an example in which the physician’s staff is devoting considerable time to obtaining the pre-authorizations and might realize significant savings. Nevertheless, the OIG determined that it would not impose sanctions for the arrangement at issue based on the following factors:
1. Low risk of fraud and Abuse. The arrangement would not target particular referring physicians, but would be available to all patients and physicians regardless of the volume or value of referrals.
2. Additional Safeguards to Reduce Risk of Fraud and Abuse. The imaging providers would not make any payments to the physicians or otherwise have any ancillary agreements with the physicians. Further, the imaging providers would not make assurances to the physicians that the pre-authorization requests would be approved. The imaging providers would only collect and provide documentation of medical necessity as received from the patients or physicians. The arrangement would also comply with all state and federal privacy laws.
3. Transparency. The call center’s staff would identify themselves as representatives of the imaging providers and would disclose the nature of the pre-authorization program. The call center would also provide the referring physicians with a copy of information provided to insurers.
4. Legitimate Business Purpose. The imaging providers have a legitimate business purpose that is wholly distinct from gaining favor with referral sources—that is, it is the imaging providers who have a financial interest at stake and desire to ensure that pre-authorizations are pursued.
The OIG’s advisory opinion only protects the actual requestors of the opinion and cannot be relied on by other entities. That said, it provides helpful guidance because it suggests factors to consider when constructing similar arrangement to reduce anti-kickback risk. You may review the OIG’s Advisory Opinion 10-04 here.
CMS recently issued Transmittal 327, which sets forth new and tougher signature requirements for medical records. The transmittal and the specific examples of acceptable and unacceptable signatures can be found at: www.cms.gov/transmittals/downloads/R327PI.pdf.
The Office for Civil Rights (OCR) published a request for information seeking comments to better inform upcoming rulemaking that will expand an individual’s right to receive an accounting of disclosures under the HIPAA Privacy Rule. Currently, the HIPAA Privacy Rule does not require a covered entity to list disclosures to carry out treatment, payment, and health care operations.
However, the Health Information Technology for Economic and Clinical Health (HITECH) Act provides that an individual has a right to receive information about disclosures made through a covered entity’s electronic health record for purposes of carrying out treatment, payment, and health care operations.
This request for information seeks comments so that OCR can learn more about the interests of individuals and the burden on covered entities with respect to accounting for disclosures for purposes of treatment, payment, and health care operations. The request for information is available at: http://edocket.access.gpo.gov/2010/pdf/2010-10054.pdf
In its semi-annual regulatory agenda in the Federal Register Monday, the Department of Health & Human Services (HHS) announced that modifications to the HIPAA privacy, security and enforcement rules will be coming in May.
HHS did not detail exactly which proposed rules would be released, but regulations expected to be issued include the following:
- Business associate (BA) liability
- New limitations on the sale of personal health information, marketing, and fundraising communications
- Stronger individual rights to access electronic medical records and restricting the disclosure of certain information
Watch the von Briesen Health Law Blog for further updates.
Wisconsin Governor Jim Doyle signed a bill on April 19, 2010 to establish an assessment on the gross patient revenues of critical access hospitals (“CAHs”). A portion of the revenue collected under the assessment will be used to increase payments to CAHs under the Medical Assistance Programs, including Medicaid, largely by producing additional federal matching funds. Consequently, the assessment will help offset a 10% cut in Medicaid payments implemented earlier this year, with payment increases beginning July 1, 2010. The assessment will also help fund a rural physician residency assistance program and a loan assistance program for physicians who agree to practice in a rural area. The specific amount of the assessment (a percentage of the gross patient revenues) is not set forth in the bill. A similar assessment was implemented in Wisconsin last year for non-CAHs. You can review the act establishing the assessment here.
