On July 29, 2015 the Centers for Medicare & Medicaid Services ("CMS") announced that it is extending the temporary moratoria on the enrollment of new home health agencies, subunits, and branch locations ("HHA") and part B ambulance suppliers for an additional six months.
Section 6401(a) of the Affordable Care Act added section 1866(j)(7) to the Social Security Act (the "Act") to provide the Secretary with authority to impose a temporary moratorium on the enrollment of new Medicare, Medicaid, or CHIP providers and suppliers if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse under these programs.
Based on this authority CMS initially imposed a moratoria on the enrollment of new HHA and part B ambulance suppliers in a notice issued on July 31, 2013 (78 FR 46339). This was subsequently extended and expanded in a notice issued on February 4, 2014 (79 FR 6475). Additional extensions of the moratoria by notices issued on August 1, 2014 (79 FR 44702) and February 2, 2015 (80 FR 5551).
The initial July 31, 2013 moratoria applied to HHAs in Miami-Dade County, Florida and Cook County, Illinois, as well as surrounding counties, and part B ambulance suppliers in Harris County, Texas and surrounding counties. The February 4, 2014 notice expanded the HHA moratoria to Broward County, Florida; Dallas County, Texas; Harris County, Texas; and Wayne County, Michigan and surrounding counties. The moratoria on the enrollment of part B ambulance suppliers was also expanded in the February 4, 2014 notice to Philadelphia, Pennsylvania and surrounding counties.
In deciding to impose and extend the moratoria, CMS considered "qualitative and quantitative factors suggesting a high risk of fraud, waste, or abuse" within these geographic locations. CMS relied on law enforcement experience with "ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions." CMS also consulted with HHS-OIG regarding the extension of the moratoria. Prior to imposing the moratoria, CMS reviewed Medicare data and found no concerns related to beneficiaries accessing HHAs or ambulance suppliers within these geographic locations. State Medicaid agencies and other CMS state partners determined that the moratoria would not create issues related to access to care for Medicaid or Children's Health Insurance Program ("CHIP") beneficiaries.
CMS will determine whether to extend or lift the moratorium before extending the moratorium further. If the moratoria is extended or lifted, CMS will publish notice in the Federal Register. Once a moratorium is lifted, the providers or suppliers types that were unable to enroll because of the moratorium will be designated to CMS' high screening level for 6 months from the date the moratorium is lifted.
The attorneys at The Health Law Partners have a significant amount of experience counseling home health agencies, ambulance suppliers and other medical providers throughout the United States on moratoria and enrollment issues, as well as how to maintain compliance with applicable regulations once enrollment screening begins.
Recently in Health Law News Category
On July 29, 2015 the Centers for Medicare & Medicaid Services ("CMS") announced that it is extending the temporary moratoria on the enrollment of new home health agencies, subunits, and branch locations ("HHA") and part B ambulance suppliers for an additional six months.
The government does not like Physician-Owned Hospitals ("POH"). The government also does not like Physician-Owned Distributors ("POD"). The Centers for Medicare and Medicaid Services ("CMS") and the Office of Inspector General ("OIG") have taken several steps recently to crack down on what it views as abusive PODs and POHs. In a brand new memorandum report, the OIG reviewed twelve physician owned hospitals to determine the overlap between POHs and PODs of spinal devices. This study was completed as a follow up to the 2013 Spinal Devices Supplied by Physician-Owned Distributors: Overview of Prevalence and Use report. CMS expressed interest in the ownership overlap following discussion related to the 2013 report.
The OIG used publicly available information and information from CMS's Provider Enrollment Chain and Ownership System ("PECOS") to determine whether a physician had an ownership interest in both a hospital and a POD that sold spinal devices to the same hospital. The OIG found one physician who had an ownership interest in both a hospital and a POD selling spinal devices to the same hospital. The OIG admits to the possibility of more overlapping ownership than the one instance found, but they state that none were found using the methods applied here.
The limited information available to determine common ownership between hospitals and PODS purportedly raises concerns of transparency among Medicare providers and vendors who sell implantable devices to providers. The government wants transparency to make sure providers do not violate referral and billing prohibitions under the Physician Self-Referral Law (Stark). Transparency also contributes to ensuring providers comply with OIG exclusions and the Anti-Kickback Statute. The OIG states that transparency can also implicate patient safety and quality of care because ownership can impact the clinical decision making of a physician.
Surgical implants, such as the spinal devices manufactured by the PODS in this report, are most commonly physician preference items. Physician preference items are items where the choice of brand and type of device are determined, or strongly influenced, by the physician rather than the hospital where the surgery takes place.
In a March 26, 2013 Special Fraud Alert, the OIG, citing physicians as the gatekeeper as to the brand and type of device, stated that there is a "strong potential for improper inducements between and among the physician investors, entities, device vendors, and device purchasers." This issue was cited in the 2011 Congressional report titled,Physician Owned Distributors (PODs): An Overview of Key Issues and Potential Areas for Congressional Oversight which stated that "[t]he very nature of PODs seem to create financial incentives for physician investors to use those devices that give them the greatest financial return and that, in the process, patient treatment decisions may be based on personal financial gain."
In conclusion, the OIG believes that there is limited transparency as to the ownership of PODs and, to a lesser extent, hospitals. The OIG believes that CMS's Physician Payments Sunshine Act ("Sunshine Act") (42 CFR §§ 403.900 - 403.914) will increase the availability of information to permit the identification of POD owners. The Sunshine Act requires manufacturers and group purchasing organizations to report ownership and investment interests held by physicians to CMS.
The attorneys at The Health Law Partners have a significant amount of experience counseling physicians, hospitals and medical device manufacturers throughout the United States on the Physician Self-Referral Law, the Anti-Kickback Statute, and the Sunshine Act, among many other state and federal regulations applicable to the field of health care law. We have the experience and knowledge to ensure compliance with these sophisticated health care regulations so as to remedy any issues that may come from the common ownership examined in this OIG report.
In June, the Office of Inspector General ("OIG") issued two new reports on Medicare Part D titled: Ensuring the Integrity of Medicare Part D (available here) and Questionable Billing and Geographic Hotspots Point to Potential Fraud and Abuse in Medicare Part D (available here).
In the Ensuring the Integrity of Medicare Part D report, the OIG outlines the progress it has made in addressing - and the work still needed to protect against - fraud in the Medicare Part D program. According to the OIG, Part D fraud relates to two main issues: "1) the need to more effectively collect and analyze program data to proactively identify and resolve program vulnerabilities, and prevent fraud, waste, and abuse before it occurs; and (2) the need to more fully implement robust oversight to ensure appropriate payments, prevent fraud, and protect beneficiaries." The OIG recommends that CMS take the following steps to combat fraud and abuse:
(1) require plan sponsors to report all potential fraud and abuse to CMS and/or the MEDIC;
(2) require plan sponsors to report data on the inquiries and corrective actions they take in response to fraud and abuse;
(3) expand drug utilization review programs to include additional drugs susceptible to fraud, waste, and abuse;
(4) implement an edit to reject prescriptions written by excluded providers;
(5) exclude Schedule II drug refills when calculating final payments to plan sponsors at the end of each year;
(6) seek authority to restrict certain beneficiaries to a limited number of pharmacies or prescribers;
(7) develop and implement a mechanism to recover payments from plan sponsors when law enforcement agencies do not accept case referrals;
(8) determine the effectiveness of plan sponsors' fraud and abuse detection programs; and
(9) ensure that plan sponsors' compliance plans address all regulatory requirements and CMS guidance.
In the Questionable Billing and Geographic Hotspots Point to Potential Fraud and Abuse in Medicare Part D report, the OIG addresses drug abuse in the Part D Program, including controlled substance abuse and the diversion of non-controlled substances for illegal purposes. The OIG analyzed prescription drug event records from 2006-2014. The study found that:
• Since 2006, Medicare spending for commonly abused opioids has grown faster than spending for all Part D drugs;
• Pharmacies with questionable billing raise concerns about pharmacy-related fraud schemes; and
• Geographic hotspots for certain non-controlled drugs point to possible fraud and abuse.
The OIG recommends that the Centers for Medicare and Medicaid continue "to conduct investigations of pharmacies with questionable billing when warranted and to monitor pharmacy billing" and to fully implement OIG's previous recommendations."
The publication of these two reports highlights the government's continued scrutiny on pharmacies and prescribing physicians. Pharmacies and physicians should ensure that they have effective compliance programs in place to internally combat fraud and abuse.
OIG Issues New Advisory Opinion on Free Introductory Visits Offered to Patients by Home Health Providers
On August 6, 2015, the Office of Inspector General ("OIG") issued Advisory Opinion No. 15-12 (available here) regarding a home health provider (the "Requester") offering free introductory visits to patients who have chosen it for home health care. The OIG concluded that this arrangement does not violate the federal Anti-Kickback Statute ("AKS").
Under the proposed arrangement, the Requester does not have any involvement in the patient's home health selection process. Instead, a physician, another health care professional, or discharge planner/case manager presents the patient with a list of home health providers from which to choose. If the patient selects the Requester as its home health provider, then the Requester contacts the patient to schedule a free introductory visit with one of its liaisons. The purpose of the introductory visit is to provide the patient with: (1) an overview of the home health experience; (2) contact lists for the Requester's administrative and clinical staff; and (3) pictures of the patient's care team.
In reaching the conclusion that the arrangement does not generate prohibited remuneration under the AKS, the OIG considered the following facts:
• The Requester does not pay or offer any remuneration to the physicians or other individuals involved in the patient's provider selection process;
• The introductory visit does not involve any diagnostic or therapeutic services reimbursed by federal health care programs or by third-party payors, and the services provided by the liaison during the introductory visit do not require clinical training;
• The liaison does not contact the patient until after receiving notice that the patient has chosen the Requester as his or her home health provider; and
• The Requestor does not submit claims for or claim costs associated with the introductory visit.
The OIG reasoned that any benefits received by the patient during the introductory visit were for the primary purpose of facilitating the patient's transition to home health care, and the intangible worth to patients does not implicate the AKS. The OIG emphasized that when analyzing whether a service has economic value to patients, "the absence of a paying market for such service is not dispositive." According to the OIG, such an absence may be the result of factors other than the service having little or no value, including because: (1) the service is still new and emerging in the marketplace; or (2) the market has been distorted by the availability of free services. The key takeaway here is that AKS liability is not avoided simply because the service is not reimbursable.
June 25, 2015
On June 18, 2015, the United States Supreme Court decided the case of King, et al. v. Burwell, Secretary of Health and Human Services, et al., upholding federal subsidies for taxpayers who buy health insurance on the federal government's healthcare.gov webpage. The potential loss of the subsidies was seen by commentators as a significant threat to the Affordable Care Act.
Chief Justice John Roberts wrote for the 6-3 majority of the Court, finding that though the text of the law was ambiguous, the Affordable Care Act was passed "to improve health insurance markets, not destroy them." Thus, the Court found that the tax credits that are available to the state health insurance exchanges should also be available to insurance purchased on the federal government's healthcare.gov page, which is relied upon by as many as 37 states that do not have their own insurance exchanges. Chief Justice Roberts' opinion was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan. Justice Scalia dissented, and was joined by Justices Thomas and Alito.
The attorneys at The Health Law Partners have a significant amount of experience in providing guidance to healthcare stakeholders as to developments in healthcare law, regulation and policy throughout the United States. For more information regarding such matters, please call (248) 996-8510 or visit thehlp.com.
On June 18, 2015, the U.S. Department of Health and Human Services ("HHS") arrested 243 individuals for allegedly participating in Medicare/Medicaid fraud schemes. The government claims that combined, the cases involve $712 million in supposedly false billings. As part of the sweep, the Centers for Medicare and Medicaid ("CMS") also suspended a number of providers' ability to bill Medicare using the Affordable Care Act's suspension authority. 16 individuals in the Metro Detroit area were arrested as part of the sweep. The arrests were credited to the Health Care Fraud Prevention and Enforcement Action Team ("HEAT"), a joint initiative between HHS and the Justice Department. HEAT operates in regions of concern throughout the U.S., including the Baton Rouge, Brooklyn, Chicago, Dallas, Detroit, Houston, Los Angeles, Miami-Dade and Tampa Bay areas.
The government claims that the fraud occurred in various areas of healthcare, including home health care, psychotherapy, physical and occupational therapy, durable medical equipment ("DME") and pharmacy. Court documents claim that those charged were involved in billing Medicare and Medicaid for treatment that never occurred, treatment that was not medically necessary or for the payment of kickbacks in exchange for patient referrals.
PHARMACIES ARE RECEIVING LETTERS FROM THE DOJ REGARDING BILLING FRAUD AND FALSE CLAIMS ACT INVESTIGATIONS.
Recently, pharmacies (specifically compounding pharmacies) across the country have begun receiving letters from the U.S. Department of Justice (DOJ) notifying them that the pharmacy is being investigated for fraud under the False Claims Act for knowingly billing for drugs that were not medically necessary. Industry insiders have reported that, just yesterday (on 5/21/2015), at least four pharmacies received these investigation notices from the DOJ. The industry insiders also reported that the letters were hand-delivered on Thursday, May 21, 2015, by U.S. Navy CIS agents, were signed by the U.S. Attorney General, and demanded that the pharmacies respond to the billing fraud allegations within twenty (20) days.
Further, pharmacies are being investigated and receiving DOJ letters specifically related to their contacts with patients, and allegations of impropriety regarding the same. These actions/letters are, of course, somewhat related to major recent developments related to Tricare's scrutiny of compounding pharmacies. For more information, please see the Enhanced Compound Ingredient Screening Notice issued by the Department of Defense's Pharmacy Operations Division on May 11, 2015, which is available here.
Letters from the DOJ alleging billing fraud, False Claims Act violations, or referencing a DOJ investigation are extremely time-sensitive. False Claims Act fines and penalties can be crippling for a pharmacy. A pharmacy that receives such a letter must act quickly to engage experienced healthcare legal counsel to defend it against these allegations and to represent them during the investigation.
The Health Law Partners, P.C. (HLP), is a full-service healthcare law firm representing pharmacies and other healthcare entities across the country. Healthcare regulatory matters are extremely complex and frequently evolving, and healthcare investigations require representation by attorneys experienced in such matters. The attorneys at HLP specialize in healthcare fraud and abuse matters, including government investigations. HLP has experience defending pharmacies in DOJ investigations and understands the defenses available to fight allegations of billing fraud and False Claims Act violations.
If you received a letter from the DOJ regarding an investigation, or for more information, please contact Adrienne Dresevic, Esq., email@example.com, or Clinton Mikel, Esq., firstname.lastname@example.org, at (248) 996-8510.
PHYSICIANS AND HEALTHCARE ATTORNEYS: Join HLP at the ABA's Physicians Legal Issues Conference on June 10-12th in Chicago.
We invite you to join Adrienne Dresevic, Esq., and Clinton Mikel, Esq., at the American Bar Association's Physicians Legal Issues Conference on June 10-12th in Chicago, Illinois. This annual conference is attended by both attorneys and physicians and is held in conjunction with the Chicago Medical Society and the American Association for Physician Leadership.
This year's theme is "Thriving in a Time of Change". This unique program has been designed to bring physicians and legal experts, as well as government and payer representatives, together, from around the country, to provide perspectives and ideas directly to physicians and attorneys on ways for physicians to thrive, not just "survive" in these uncertain times. Ms. Dresevic and Mr. Clinton are both presenting at the conference, covering issues such as the Stark Law, Anti-Kickback Statute, and HIPAA. Whether you are a physician or entering the field of healthcare, this conference will provide valuable insight and strategies that can improve your practice.
For program details, please visit http://ow.ly/NbMz3.
Proposed Legislation Would change Michigan CRNA Supervision Requirements and Increase Access to Anesthesia Care
On May 7, 2015, Michigan Senator Mike Kowall (R-White Lake) introduced legislation that would allow hospitals more flexibility in determining the best anesthesia delivery model for their patient's needs. While certified registered nurse anesthetists ("CRNAs") provide the anesthesia care during most patient procedures - staying with the patient throughout the entire procedure - Michigan law still requires physician supervision of CRNAs. However, Michigan law does not even require the supervising physician to be an anesthesiologist or surgeon.
The proposed legislation would change this model and increase access to anesthesia care for Michigan patients in medically underserved rural and urban areas, while also containing anesthesia-related costs statewide. Under S.B. 320, Michigan hospitals could choose to keep the current physician-supervision model or move to a model that allows CRNAs to practice without mandatory physician supervision. If enacted, Michigan would join 40 other states that do not require physician supervision for CRNAs to administer anesthesia. The bill is currently in the Michigan Senate awaiting testimony before the Senate Health Policy Committee. More information on S.B. 320 may be found on the Michigan Legislature's website, available here.
Congratulations to Founding Shareholder, Adrienne Dresevic, nominated to once again serve on Council for the ABA Health Law Section. Nominations will be voted on by the membership at the Annual Meeting, August 2.
The AHA has taken its first steps to appeal a lower court's refusal to intervene to address the significant appeals backlog pending at the ALJ level of appeal.
On May 4, 2015, the AHA submitted its Opening Brief to the U.S. Court of Appeals for the D.C. Circuit, alleging that the District Court erred in its decision not to issue providers' and suppliers' mandamus relief. The AHA pressed the Circuit Court to overturn the District Court's ruling, which acknowledged the repercussions of the backlog but nonetheless concluded court intervention was inappropriate. http://www.aha.org/advocacy-issues/legal/litigation.shtml
More information regarding the ALJ appeals backlog is available here: http://www.thehealthlawpartners.com/docs/6.6.14.pdf
CMS Delays Finalizing Overpayment Regulations; But, Providers Still Must Return Medicare Overpayments Despite The Lack of Regulations
Section 1128J(d) of the Social Security Act (the "Act") requires providers and suppliers who have received an overpayment from the Federal health care programs to report and return the overpayment within 60 days of identifying the overpayment or by the date any corresponding cost report is due, whichever is later. The Centers for Medicare and Medicaid Services ("CMS") published a proposed rule on this statute way back in February 2012. Over three years later, CMS has not finalized the overpayment regulations for Medicare Parts A and B.
The Act requires notice to be provided in the Federal Register if there are exceptional circumstances that cause new regulations to be finalized more than three years after publishing the proposed rule. Therefore, in February 2015, CMS published a notice extending the deadline for CMS to finalize the regulations until February 16, 2016. The "exceptional circumstances" CMS cites in the notice are "the significant policy and operational issues that need to be resolved in order to address all of the issues raised by the comments to the proposed rule and to ensure appropriate coordination with other government agencies." The extension may indicate that the Medicare Parts A and B overpayment regulations will not closely mirror the regulations already published for Medicare Advantage and Medicare Part D overpayments. Additionally, the emphasis on a need for "coordination with other government agencies" may signal that the interested agencies (CMS, the DOJ, and the OIG) disagree on significant aspects of the final regulations.
For now, the most important takeaway from the notice is that "even without a final regulation [stakeholders] are subject to the statutory requirements found in section 1128J(d) of the Act and could face potential False Claims Act liability, Civil Monetary Penalties Law liability, and exclusion from Federal health care programs for failure to report and return an overpayment." In short, we will have to wait to see how restrictive the Medicare Parts A and B overpayment regulations will be and for clarification on issues such as when an overpayment is said to be "identified." But, for now, we know that the government will not hold back on enforcing the overpayment statute already on the books.
House Speaker John Boehner and Minority Leader Nancy Pelosi announced yesterday that they agreed to advance a bill to permanently fix the payment system for Medicare physicians. Details of the bill have yet to be released, but multiple news agencies are reporting that Boehner and Pelosi agreed to a $210 billion deal that would replace the Medicare Sustainable Growth Rate, which is the formula used to determine payments to Medicare physicians. Each year, this formula requires Congress to pass a "doc fix" or else Medicare physicians face a significant cut in reimbursement. The latest "doc fix" expires on March 31st. If the proposed bill is not agreed upon by the end of the month (and in lieu of the bill passing, another "doc fix" is not passed), then Medicare physicians could face 20% cuts in reimbursement.
In an effort to combat and draw attention to the seriousness of Bullying, OCMS partnered with Marlene Seltzer, MD, Director of the Beaumont Children's Hospital NoBLE Anti-Bullying Program and Rob Iwrey, Esq. (and staff) at The Health Law Partners, P.C., to develop informational materials that would assist physicians in recognizing the signs of bullying and the services available to victims and their families.
IMPORTANT FACTS ABOUT BULLYING
"Bullying" is defined as any unwanted, aggressive behavior(s) by another youth or group of youths that involves an observed or perceived power imbalance and is repeated multiple times or is highly likely to be repeated. Bullying may inflict harm or distress on the targeted youth including physical, psychological, social or educational harm.
Bullying behavior can start as early as pre-school, however it typically peaks in late elementary/early middle school and is known to continue into high school (can continue into higher education and the workplace also). It is estimated that approximately 28% of 6th-12th graders have reported being bullied, unfortunately, as children age, many do not report encounters to adults at all. It has been suggested that 160,000 students stay home from school, every day, for fear of being bullied and is also attributable for countless physical and mental injuries (including deaths) of children and young adults throughout the United States.
Types of bullying:
• Physical - causing bodily injury; also taking or destroying a person's belongings
• Verbal - making disparaging comments, taunting, threatening, or intimidating
• Social - sometimes referred to as indirect or relational: hurting someone's relationships or reputation through means such as gossip, rumors or exclusion
• Cyber - bullying via electronic communication including: emails, texts, websites, social media, embarrassing photos, rumors, and fake profiles
Symptoms of Bullying (not an exhaustive list):
• pain- headache, abdominal, musculoskeletal
• change in sleeping patterns
• change in eating patterns
• more frequent URI's
Youth at Higher Risk for Being Targeted:
• those who are overweight/obese
• decreased self-esteem
• substance use/abuse
• suicidal ideation/attempts
• those with autistic spectrum disorder or developmental disabilities
• those with disabilities (physical, learning, emotional)
What to do if a Youth has been EXPOSED?
• encourage dialogue and listen non-judgmentally
• validate their feelings and the seriousness of their situation
• evaluate for suicidal ideation
• provide a message of support and education
• both youth and parents may need support, education, and guidance
• witnesses are also at risk and need support and education
• youth may need a referral for counseling or psychiatric evaluation
• youth/parents may need information about Michigan's anti-bullying law
• treatment/evaluation of any medical problems, secondary to bullying
Recommendation(s) for Physicians:
• screen all youth for exposure to bullying, as part of medical history, screening for all roles (target, perpetrator, witness) and types
• consider screening older youth without family/friends present
• ask simple, age appropriate questions
• ask both general and specific questions (giving examples may be helpful)
• for younger children, ask questions like "what are lunch and recess like at your school?" or if they get teased at school (may yield more information than using the word "bullying")
• written questions can be used in addition to verbal questions
• bullied youth may feel ashamed, humiliated, and/or that they are at fault
• witnesses may feel decreased self-worth if they did nothing to intervene, or joined in
• youth who bully may not take responsibility for their actions, blame the victim, or have previously been a victim
• perpetrators may be well connected socially or may be isolated
• sibling bullying confers the same risks
What to do for a Patient who has been BULLIED?
If a patient has been bullied, physicians should consider referring the patient to one or more of the following:
• emergency room (for an acutely suicidal patient)
• mental health provider
• law enforcement
• school staff responsible for the implementation of bullying policy/enforcement pursuant to Matt's Safe School Law (discussed below)
• community, school and/or local health facility anti-bullying programs (e.g., Beaumont Children's Hospital anti-bullying program)
The patient and parents should be advised of Matt's Safe School Law:
"Matt's Safe School Law" was passed in 2011. Since June of 2012, the law (MCL 380.1310b) requires all public school districts in Michigan to implement policies and procedures prohibiting bullying and setting forth an appropriate response to incidents/complaints.
Added to Matt's Safe School Law in January 2015 was Senate Bill 74 which now includes cyberbullying as a prohibited type of bullying in Michigan schools. Schools will have to report any cyberbullying, assure confidentiality of people who report, and report any instances to the State Department of Education.
School bullying policies MUST include, at a minimum:
• a statement prohibiting bullying of a pupil
• a statement prohibiting retaliation or false accusation against a target of bullying, a witness, or another person with reliable information about an act of bullying
• a provision indicating that all pupils are protected under the policy and that bullying is equally prohibited, without regard to its subject matter
• a procedure for reporting an act of bullying
• a procedure for prompt investigation of a report of violation of the policy or a related complaint
• A procedure for each public school to document any prohibited incident that is reported and a procedure to report all verified incidents of bullying and the resulting consequences, including discipline and referrals
NOTE: The law also provides that parents and/or others who report bullying,
in good faith, are immune from potential liability arising out of a bullying incident.
Mandatory Reporting Requirements for Physicians:
Michigan law requires medical care providers and institutions to make police reports of all people who present suffering from violently-inflicted injury (MCL 750.411). This law applies regardless of the patient's relationship with the person who inflicted the injury (i.e., it applies to bullying, child abuse [which has additional reporting requirements not discussed here], domestic violence and violent injuries generally).
FAQ's Related to Filing a Report:
Under what circumstances must a report be made?
A report must be made immediately when any person suffering from any wound or other injury inflicted by a knife, gun, or other deadly weapon, or by other means of violence, comes or is brought to any hospital or pharmacy in Michigan, or is under the care of a physician or surgeon in Michigan. "Other means of violence" may include, but are not limited to, beating, biting, strangling, hitting, kicking, punching, and slapping.
Who must report? Any physician or surgeon who has a person under his or her care who is suffering from a wound or injury inflicted by any violent means MUST REPORT. Every person, firm, or corporation conducting any hospital or pharmacy in Michigan, or the person managing or in charge of the hospital or pharmacy, to which the person suffering from the wound or injury inflicted by any means of violence comes, or is brought MUST REPORT. All nursing personnel and staff are encouraged to notify a physician when such a situation exists. Failure to report is a criminal misdemeanor.
What about physician-patient privilege?
Michigan law states that the physician-patience privileges that exist under Michigan law do not apply to reports made pursuant to this law and are not valid reasons for a failure to comply with the reporting law. For this reason, reporting as required by the law is also exempt from HIPAA. Moreover, the physician-patient privilege is not a defense to a misdemeanor charge for failure to report injuries inflicted by violence.
Can a patient sue me?
The reporting law includes a specific grant of civil and criminal immunity for people who make good faith reports under this law. Any person who makes a report under this section is presumed to have acted in good faith. Of course, this immunity only applies to reporting and does not extend to any act of omission that amounts to professional malpractice.
To whom must the report be made?
The report must be made to the police department in the jurisdiction in which the hospital, pharmacy, physician, or surgeon is located. If there is no local police department, the report must be made to the county sheriff.
How must the report be made?
The report must be made by BOTH telephone and in writing.
What must be reported? The report must state the name and residence of the injured person, if known; the whereabouts of the injured person; the cause, character, and extent of the injuries; and may state the identification of the perpetrator, if known.
What may happen then?
Further investigation and prosecution, if any, will be handled by the police department and prosecutor where the violence causing the injury was committed. For this reason, in addition to the mandatory report, a patient may wish to report the violence directly to the police department in the jurisdiction where the violence occurred. The mandatory report does not ensure that arrest or prosecution will follow.
What must the patient be told?
Although the law does not require that the patient be informed about the mandatory reporting, it is recommended that the patient be informed for their personal safety and to get them involved in the process. If the patient requests that you do not report, you may explain that reporting is mandatory but limited to the information required by law.
What must be documented regarding the report? Document the fact that a report was made by phone and in writing, when the report was made, and to whom at what phone number and address. If an investigating officer is involved, note the name of the officer, badge number, report number, phone number, and any action taken. If a report to Adult or Child Protective Services is filed note this as well. Keep the original of this report in the file, and fax a copy to the local law enforcement agency. Retain the fax confirmation page with the original copy of the report.
A sample report is attached at the end of this pamphlet.
FOR MENTAL HEALTH PROFESSIONALS
Action to Protect a Patient from Harm to Self (or Others):
When a patient, who is the victim of bullying, expresses intent to harm him/herself, a mental health provider has discretion
to seek hospitalization of the patient, even if the patient is not amenable to referral.
Under Michigan law, a patient may be involuntarily hospitalized to protect the patient or others. The law requires that the patient be determined to be a "person requiring treatment," which, in relevant part is one of the following criteria:
1. An individual who has a mental illness, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself or another individual, and who has engaged in an act or acts or made significant threats that are substantially supportive of that expectation.
2. An individual who has mental illness, whose judgment is so impaired that he or she is unable to understand his or her need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent clinical opinion, to result in significant physical harm to himself, herself, or others.
If either of these criteria are met, involuntary admission into a psychiatric hospital can be pursued. A "Petition/Application for Hospitalization" must be completed by anyone with the requisite knowledge, however, to have a patient taken into protective custody, a
Clinical Certificate must also be signed by a psychologist or psychiatrist as well. Under Michigan law, a law enforcement officer who is provided with a completed Petition/Application for Hospitalization and a signed Clinical Certificate will take a patient into custody and take the patient to the appropriate pre-admission screening unit or hospital, however, when a patient expresses intent to harm others, a mandatory duty
can also be triggered. A template of the Petition/Application for Hospitalization and Clinical Certificate can be located and printed from the Oakland County Medical Society website at www.ocms-mi.org/web_ government.htm:
Duty to Report:
State law requires disclosure of mental health recipient's records to a public agency to prevent harm to other individuals, including harm that could result from bullying. Required Duty to Warn/Duty to Protect Others (MCL 330.1946)
FOR MENTAL HEALTH PROFESSIONALS
FAQ's by Mental Health Professionals on Reporting:
Who must report?
A "mental health professional," which includes psychiatrists, psychologists, certified social workers, social workers, social work technicians, licensed professional counselors, marriage and family therapists, and musical therapists treating a patient who communicates a threat of physical violence against a reasonably identifiable third person and has the apparent ability and intent to carry out the threat in the near future has a duty to take action. If a patient is being treated through a team in the hospital, the hospital shall designate a person to communicate the threat to necessary persons or agencies.
To whom must the action be directed?
One or more of the following must be done in a timely manner:
• hospitalize the patient or initiate proceedings to hospitalize the patients; and/or
• make a reasonable attempt to communicate the threat to the third person and to the local police or county sheriff's department where the third person lives or for the area where the patient lives, or the state police
• if the threatened party is a minor or otherwise declared incompetent, in addition to the steps above, the mental health professional must notify the Department of Social Services in the county where the minor lives and also notify the minor's custodial parent, non-custodial parent, or legal guardian, whoever is most appropriate.
How should the report be made?
The report should be made by telephone and in writing (letter, fax, email, etc.).
What must be reported?
The exact nature of the threat must be communicated.
Health care providers across the country are still adapting to the unprecedented disclosure of health care information that is associated with the government's effort create a more transparent health care system. As many providers recall, in April, 2014, the Centers for Medicare & Medicaid Services ("CMS"), which administers the Medicare program, publicly released detailed data itemizing and summarizing health care providers' and suppliers' charges and payment, based on National Provider Number ("NPI"). The data was readily available, for full searching and analysis, to any individual or entity that wanted to see how individuals and entities were billing Medicare.
Physicians should be mindful that their claim information will likely continue to be made publically available on a going-forward basis. Unfortunately for the provider community, the future disclosure of CMS' data will continue to allow scrutiny of the provider's claim information, and will continue to permit the public at large, news sources, competitors, and others to shed light on generalized data and allege that such data supports fraud, waste and abuse. Unfortunately, due to the release of such partial data without explanation, it forces physicians to defend their billings, even when such billings are otherwise appropriate. In fact, even CMS' website for disclosing the information notes the associated challenges with the pooled data: "While the Physician and Other Supplier PUF has a wealth of information on payment and utilization for Medicare Part B services, the dataset has a number of limitations. Of particular importance is the fact that the data may not be representative of a physician's entire practice as it only includes information on Medicare fee-for-service beneficiaries. In addition, the data are not intended to indicate the quality of care provided and are not risk-adjusted to account for differences in underlying severity of disease of patient populations."
Although the recent trend toward transparency--and the specific disclosure of data--is viewed with unease by many in the physician community, health care providers nonetheless should recognize that CMS and other private payors have always had this information at their disposal and were able to run internal analytics. The distinction, however, was that such information was not public. Given the future of health care, physicians should operate with the foreknowledge that each claim that they submit potentially is subject to scrutiny; however, in the future, it seems that providers will also be subject to scrutiny in the public arena.