On December 30, 2009, CMS announced a proposed rule to implement provisions of the Recovery Act that provide incentive payments for the meaningful use of certified EHR technology. The proposed rule outlines provisions governing the EHR incentive programs, including defining the central concept of "meaningful use" of EHR technology. The text of the rule can be found here.
December 2009 Archives
Genesys Health System in Genesee County settled a claim by the U.S. Department of Justice that it violated the False Claims Act by billing Medicare at higher rates for evaluation and management services than were actually provided to cardiology patients. The fraud allegations, which were initiated by a whistleblower lawsuit, resulted in a nearly $670,000 settlement, though Genesys does not admit any wrongdoing.
In the new 2010 physician fee schedule, the Centers for Medicare and Medicaid Services (CMS) has replaced consultation codes with an increase in work relative value units (RVUs).
Effective January 1, 2010, CMS will no longer recognize consultation codes that reflect various places of service (with the exception of telehealth consultation G-codes), such as inpatient and office/outpatient codes. According to CMS, the RVUs have been increased for new and established office visits and for initial hospital and initial nursing facility visits. The increased use of these visits has also been incorporated into practice expense and malpractice calculations.
In a recent survey by the American College of Physician Executives, 97% of respondents--doctors and nurses--reported behavior problems between doctors and nurses. This disruptive behavior, which over 55% of respondents reported happens at least monthly, included degrading comments or insults, inappropriate joking, and refusing to speak to or work with each other.
The startling prevalence of disruptive behavior is clearly a widespread problem. The American Medical Association issued an ethical opinion (Opinion 9.045) on disruptive behavior in 2000, which states that, "Personal conduct, whether verbal or physical, that negatively affects or that potentially may negatively affect patient care constitutes disruptive behavior." The opinion goes on to recommend that every medical staff enact bylaw provisions that govern the appropriate interventions when disruptive behavior is identified.
The AMA also issued Opinion 9.05, which provides guidelines for fair and objective hearings whenever physician professional conduct is called into question.
Allegations of disruptive behavior can cause irreparable harm to staff privileges. Therefore, in any matter regarding physician behavior, it is essential that physicians retain experienced health care counsel at the earliest onset of any such issues/allegations to guide them through the events and to take proactive measures to avoid an adverse action against their privileges.
Those monitoring regulations effective January 1, 2010 related to CMS payment policy for teaching CRNAs involved in two (2) concurrent anesthesia cases with student nurse anesthetists were likely confused by a November 20, 2009 CMS MLN Matters article that appeared to contradict the new regulatory language and CMS Transmittal 1859. Specifically, although the federal register commentary, regulation text and CMS transmittal seemed clear that the new payment policy permits the teaching CRNA to bill full anesthesia time for each of the two cases (as opposed to face-to face time only) as long as the teaching CRNA devotes his or her time to the two concurrent anesthesia cases and is not involved in other services, the November 20, 2009 MLN Matters article advised that time should be billed based on the actual amount of time present with the student (i.e., face-to-face time). Importantly, CMS recognized the error in the November 20, 2009 article and revised the article on December 15, 2009 to make clear that face-to-face time is not required.
In summary, the teaching CRNA may bill for both full base and time (as opposed to face-to-face time only) in each of the two concurrent student cases as long as: (1) the teaching CRNA devotes his/her full time to the cases and is not involved in other services; and (2) the teaching CRNA must be present with each student nurse anesthetist during the pre and post anesthesia care.
Please also note that in the commentary to the final regulations, CMS commented that AANA standards of the Council on Accreditation of Nurse Anesthesia Programs with regard to supervision of students must be met. In particular, for periods of concurrency for two student nurse anesthetist cases, another qualified anesthesia provider (CRNA or anesthesiologist) must be available to fulfill the standards. For example, to be available for the student to summon for clinical assistance should it be required.
Sixth Circuit Affirms Conviction and Sentence of Anesthesiologist for Fraud and Endangering Patients
On December 1, 2009, the Sixth Circuit affirmed the conviction of Dr. Jorge A. Martinez, an anesthesiologist, who was charged with illegally distributing controlled substances, mail fraud, wire fraud, and healthcare fraud, including two counts that resulted in the death of patients.
In 2002, the FBI began investigating Dr. Martinez's pain-management clinic in Parma, OH in response to reimbursement and billing patterns placing him above his peers for certain procedures. At trial, the government alleged that from 1998 until 2004, Dr. Martinez engaged in fraud and endangered patients by administering far more injections than his peers and seeing more patients more day than other physicians in Ohio. The government also demonstrated that two patient deaths were reasonably foreseeable consequences of Dr. Martinez's fraudulent treatment.
In addition to upholding Dr. Martinez's conviction, the appeals court also upheld his sentence for life imprisonment and over $14 million in restitution.
The full text of the case can be read here: U.S. v. Martinez.pdf
Requirements for Medicare coverage of Inpatient Rehabilitation Services will undergo a number of changes, effective January 1, 2010. Centers for Medicare and Medicaid Services (CMS) released a transmittal on October 23, 2009 detailing these changes, which include several new requirements for the patient admission process and ongoing recordkeeping. Admission will only be considered "reasonable and necessary" by CMS if the new procedures are followed.
The new mandatory requirements are significant, and include preadmission screening, post-admission physician evaluation, individualized plans of care, and a definition of measurable improvement, along with many other requirements.
As hospitals are gearing up for the permanent RAC program activity, it will be important for IRFs to comply with the new IRF requirements.
These changes are reflected in modifications to Chapter 2, Section 110 of the Medicare Benefit Policy Manual.
The Health Law Partners, P.C. is growing. We recently exercised the option to expand into neighboring office space in our Southfield headquarters. We've also added staff, and are pleased to welcome attorney Adele Jorissen as a new associate. Adele has previous healthcare law experience, and will be practicing in all of HLP's specialty areas.
Oral arguments began on November 3, 2009 in a case that will test whether defendants in medical liability lawsuits are permitted under HIPAA to conduct informal interviews with plaintiffs' other treating doctors.
The federal Health Insurance Portability and Accountability Act (HIPAA) protects private health information and preserves patient confidentiality. In the case at issue, the plaintiff suing a physician for negligence has denied the physician access to informal interviews with other treating physicians, arguing that HIPAA only allows the disclosure of written medical records--not oral communications, where it is more difficult to predict what protected information might be disclosed. The trial court agreed with this argument, only to be reversed by the Michigan Court of Appeals in 2008. The Appeals Court ruled that, provided the patient was notified through a proper mechanism, such informal meetings were permissible.
Other states have split over whether HIPAA prohibits informal oral interviews in medical liability cases.
The Harris County Hospital District of Houston fired 16 employees last month for a major violation of the Health Insurance Portability and Accountability Act (HIPAA), which protects confidential patient information. The hospital district has not disclosed additional details about the violation, instead issuing a statement saying, "The Harris County Hospital District, in all circumstances, is guided by the best interests of our patients, especially in matters of patient's protected health information, and our policies that protect our patients privacy are always vigorously enforced. Actions by the hospital district were the result of steadfast diligence performed in the best interests of our patients."
However, the Houston Chronicle reports that the violation may have involved reviewing the medical records of a first-year resident at the Ben Taub General Hospital who had become a patient after a shooting.