MEDICAL MALPRACTICE EXPERT DISCUSSIONS

PVWLaw has asked a variety of medical malpractice experts to respond to a series of questions on medical malpractice.  The questions focus on what physicians can do proactively to prevent medical malpractice lawsuits as well as on some aspects of tort reform.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

CMS Proposes Medicare Payment Increase for ASCs in 2010

CMS recently issued a notice of proposed rulemaking that includes proposals for policy changes and payment rates for services in ambulatory surgical centers (“ASCs”), which would continue the expansion of surgical procedures that Medicare would cover for services performed in ASCs. The proposed rule seeks to make sure that beneficiaries have access to outpatient services in all appropriate settings, while improving the quality and efficiency of service delivery.

Since January 1, 2008, ASCs have been paid under a revised payment system that aligns ASC payment rates with the rates paid for similar services when provided in hospital outpatient departments. The revised system also increases the number and types of surgical services that are covered by Medicare when performed in ASCs.  Calendar year 2010 is the third year of a four-year phase-in of the ASC payment rates calculated under the standard rate-setting methodology and the first year in which CMS is authorized to apply an update to the conversion factor.  CMS is projecting the percentage increase in the Consumer Price Index for All Urban Consumers that would update the ASC conversion factor to be 0.6 percent. Total 2010 payments to ASCs are estimated to be $3.4 billion.

CMS will accept comments on the proposed rule until August 31, 2009, and will respond to comments in a final rule to be issued by November 1, 2009.

To review the proposed rule and for instructions about how to submit comments, go to: http://edocket.access.gpo.gov/2009/E9-15882.htm

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

FTC Extends the “Red Flag” Rules Deadline Again

The Federal Trade Commission (“FTC”) has now announced that it will postpone the enforcement of the red flag rules until November 1, 2009.  The red flag rules require creditors, including physicians and hospitals, to adopt written plans for tracking and responding to indicators of identity theft in their billing operations.  The move to extend the August 1, 2009 deadline is the third time the FTC has changed the enforcement date.  The agency is again promising additional resources and guidance.  Initially, the rules were intended to be enforced beginning in November 2008, but the agency offered a reprieve in response to significant confusion about the rules.  The FTC continues to maintain that hospitals and physicians are creditors for the purposes of the red flag rules because they accept deferred payment for their services.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Red Flag Rules Effective August 1, 2009

Just a reminder that the red flag rules will be enforced beginning August 1, 2009.  The red flag rules require creditors to implement a formal policy for detecting and preventing identity theft.  The rules were authorized under the 2003 Fair and Accurate Credit Transitions Act, which covers entities that regularly extend credit, or defer payment for services.  The FTC is still taking the position that health care providers are considered creditors under the rules.

The red flag rules require health care practices to identify red flags, or warning signs, of potential identity theft events, to develop a corporate policy for responding to such risks, and to train employees on the new policy.

Health care providers should consider the following when developing and implementing their identity theft prevention policies:

1. Identify warning signs of potential identity theft that may occur in day-to-day operations. Such red flags may include bills for services not provided, inconsistent medical records, insurance claims denials or exhaustion of patient benefits.
2. Outline clear procedures for detecting red flags, such as verifying patient identities, educating patients and training staff.
3. Establish procedures for responding to red flags, such as gathering pertinent documentation, notifying patients or canceling transactions.
4. Incorporate specified administrative requirements in the written policy, including seeking management approval, identifying a specific staff member to oversee implementation and conducting staff training.
5. Review and update the identity theft prevention policy at least annually.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

MGMA Releases Proposed 2010 Medicare Physician Fee Schedule Analysis –

The Centers for Medicare & Medicaid Services (“CMS”) recently released the 2010 Medicare proposed physician fee schedule along with a related press release and fact sheet. The regulation includes provisions that confirm a 21.5 percent reduction in 2010 Medicare physician payments unless Congress enacts legislation to reverse this cut.  The regulation also proposes to “remove physician-administered drugs from the definition of “physician services” for purposes of computing the physician update formula in anticipation of enactment of legislation to provide fundamental reforms to Medicare physician payments,” a move that has been advocated by the Medical Group Management Association (“MGMA”) for a long time.

MGMA analyzed the regulation’s impact on medical group practices and is making its analysis available only to members at mgma.com. The proposed fee schedule includes provisions that would affect physician practices as follows:

• Start implementation of the congressionally-mandated requirement that suppliers of advanced diagnostic imaging services become accredited
• Notably change the practice expense relative value units for many covered services
• Increase the equipment usage assumption for equipment costing greater than $1 million
• Transfer responsibility from the patient to the Medicare program for co-payments for covered outpatient mental health services
• Add a group practice reporting option to both the Physician Quality Reporting Initiative and the E-Prescribing Incentive Program

 The member-only analysis can be accessed here: http://www.mgma.com/policy/default.aspx?id=5802.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Good Doctors Get Sued for Medical Malpractice: Physician Asset Protection Planning As a Way of Life

Medical Malpractice suits result in significant distress.  We preach regularly about all of the actions that physicians should take to avoid getting sued but the fact is “good doctors” get sued.  In addition to giving consideration to state laws, structure of practice, patient safety, practice standards (all covered in other blog topics), a physician should make asset protection planning a way of life from the day the physician commences practice.

We preach regularly about asset protection planning but given that we have seen a rise in lawsuits on questionable claims, we are going to revisit both strategies to avoid malpractice claims and steps that all physicians should be taking on a regular basis to protect themselves in the event the physician or a partner is sued. 

We will cover a variety of topics in detail in other blogs or on our website but here is a quick list in the area of asset protection planning.

*Put your estate plan in order before your first day of practice.  Good estate planners develop a plan that considers where you are now (which might be a lot of student loan debt) to where you are going.. You will have a retirement plan, a house and assets to protect. Start right away.  If you wait until a claim gets made some day, in most states, you are too late.   If you are many years into practice without a solid estate plan, do one now.  Include asset protection planning discussions as part of your plan.

*Know your state’s laws regarding malpractice insurance.  Understand your exposure.  Understand your exposure for the acts of others.  Get a personal attorney who reports to you and who has expertise in health care law and personal planning.

*Understand your malpractice insurance.  Go over the policy line by line and be clear about what is covered and where coverage ends.

*Take your personal insurance seriously.  Consider all types of potential liability.  Professional liability is not the only risk to your assets.   Consider the employee who gets in an automobile accident while driving to the hospital and kills a carload of engineers.

*If you choose private practice, spend time with a knowledgeable lawyer discussing the benefits of professional corporations as compared to the other options.  Serious consideration should be given to maximum liability protection.  Tax benefits can be achieved in most entity forms in the current climate.

*Asset protection planning has become a term of art for those of us who do health care law and estate planning.  There are numerous ways to achieve asset protection.  All of them require that asset protection planning be a way of life.  Again, planning after a claim is made is too late.

More detailed articles will be available here and at our website over the next few months.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

AMA ANNOUNCES ENHANCED ELECTRONIC PRESCRIBING LEARNING CENTER

Earlier this year, the American Medical Association (“AMA”) established a new online learning center to provide physicians with the information and tools that they need to make well-informed decisions about electronic prescribing (“ePrescribing”).  Now, the AMA has introduced additional enhanced tools for ePrescribing. 

The learning center offers many tools and resources to help physicians, including calculators to estimate time savings and eligibility for incentive payments as well as planning devices to help assess practice readiness for and ease implementation of new technologies.  Examples of some of the new tools include:

• A system finder tool that picks three systems for a user based on the user’s response to a brief survey
• Side-by-side comparisons of up to three sPrescribing vendors at one time
• The ability to view vendor feedback and ratings from other users, and the ability to provide one’s own feedback
• Automated capability to contact a vendor when a decision is reached

The site and its resources can be accessed by physicians and others at http://www.ama-assn.org/ama/pub/eprescribing/home.shtml.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

RECOVERY AUDIT CONTRACTORS TO OPERATE NATIONWIDE

The Centers for Medicare & Medicaid Services (“CMS”) recently confirmed that the Recovery Audit Contractors (“RACs”) will operate in all 50 states by the end of 2009.  RACs identify overpayments and underpayments by CMS to Medicare providers.

The permanent RAC program began with a three-year RAC demonstration project established under the Medicare Modernization Act of 2003. The Tax Relief and Health Care Act of 2006 made the RAC program permanent and authorized CMS to expand it to all 50 states by 2010.

Unlike the demonstration project, the permanent RAC program limits the medical-record review period to three years and prohibits audits on claims paid before October 1, 2007. The program also requires RACs to have a physician medical director and certified coders available to discuss denials with providers.  

 Here are some practical steps that providers should take to ensure that submitted claims meet the Medicare rules:

• Identify where improper payments have been persistent by reviewing the RACs’ Web-sites and identifying any patterns of denied claims within their own practice or facility.
• Implement procedures to promptly respond to RAC requests for medical records.
• If the provider disagrees with the RAC determination, file an appeal before the 120-day deadline.
• Keep track of denied claims and correct these previous errors.
• Determine what corrective actions need to be taken to ensure compliance with Medicare’s requirements and to avoid submitting incorrect claims in the future.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

What is the Difference Between Consent & Authorization Under the HIPAA Privacy Rule?

The HIPAA Privacy Rule permits, but does not require, a covered entity to voluntarily obtain patient consent for uses and disclosures of protected health information (“PHI”) for treatment, payment, and health care operations. Covered entities that obtain patient consent have complete discretion to design a process that best suits their needs.

On the other hand, an authorization under the HIPAA Privacy Rule is a detailed document that gives covered entities permission to use PHI for specified purposes, which are usually other than treatment, payment, or health care operations, or to disclose PHI to a third party designated by the individual.  An authorization must specify a number of elements, including a description of the PHI to be used and disclosed, the person authorized to make the use or disclosure, the person to whom the covered entity may make the disclosure, an expiration date, and, in some instances, the purpose for which the information may be used or disclosed.

The Privacy Rule requires authorization for uses and disclosures of PHI not otherwise allowed under HIPAA. Where the Privacy Rule requires patient authorization, voluntary consent is not sufficient to permit a use or disclosure of PHI unless it also satisfies the requirements of a valid authorization.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Bill Seeks to Strengthen the False Claims Act

The federal False Claims Act permits a person with knowledge of fraud against the United States Government, referred to as the “qui tam plaintiff,” to file a lawsuit on behalf of the Government against the person or business that committed the fraud.  For example, an employee that learns from a colleague of fraud by his or her employer at work may bring a qui tam action against the employer.  If the action is successful,  the qui tam plaintiff is rewarded with a percentage of the recovery.

The House and Senate have approved a final version of the Fraud Enforcement and Recovery Act, which includes provisions to strengthen the False Claims Act.  President Obama is expected to sign the measure.

The changes to the False Claims Act are due to a perception among some lawmakers that recent federal court decisions may have restrained the law from achieving its intended goals.  False claims lawsuits often target hospitals, physicians and pharmaceutical companies because their businesses receive massive sums of federal dollars.

Under the new legislation, the attorney general would be required to submit an annual report to Congress about settlements made under the FCA.  This would help to assess whether the Department of Justice is using the act as it is intended and ensure that qui tam plaintiffs are protected in bringing an action.

 

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com