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DFW Hospital Council Foundation Among 26 Organizations Selected To Lead Quality Effort

December 15, 2011

Affordable Care Act funding seeks to help health providers identify and spread local ideas to improve care, reduce preventable healthcare acquired conditions

The Dallas-Fort Worth Hospital Council Foundation, the Texas Center for Quality & Patient Safety Hospitals and Lifepoint Hospitals, Inc. are three of the 26 state, regional, national, or hospital system organizations selected as Hospital Engagement Networks by the U.S. Department of Health and Human Services (HHS).

As part of the Partnership for Patients initiative, a nationwide public-private collaboration to improve the quality, safety, and affordability of health care for all Americans, the selected entities will share in $218 million in funding to help find solutions already working to reduce healthcare acquired conditions, and work to spread them to other hospitals and health care providers across the country.

Learn more at http://wp.me/psDUd-3B.

For More Information Or Assistance

If you need assistance reviewing or responding to health care related policy, risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters.

Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see here.

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Posted by Cynthia Marcotte Stamer

Former Houston Texas Physician Gets 70 Month Prison Sentence For Fraud Conviction

November 27, 2011

A Federal court on November 14, 2011 sentenced Armando Chavez, 42, a former physician and owner of the Chavez Medical Group in East Houston to 60 months for the conspiracy charge and to 70 months for each of the three mail fraud charges. In addition to the prison sentences, which will run concurrently, Chavez was also ordered to pay $3,821,082 in restitution.

The prosecution and sentencing of Chavez highlights the heightened risk that physicians and others engaging in aggressive health care billings risk if Federal officials view their actions as crossing the line. The Chavez case is particularly notable as it primarily stemmed from claims submitted to private health care payers.

The Chavez sentence resulted from Chavez’ guilty plea to one count of conspiracy and three counts of mail fraud in connection with billings made at the Chavez Medical Group.

The charges brought in April, 2011 stem from improper billing at the Chavez Medical Group between 2005 and 2007. Federal prosecutors charged that Chavez billed for services he did not perform through a process of “unbundling” medical codes used on claims he filed to increase the amount he was paid by insurance companies. While most health care providers recognize potential exposures to health care fraud prosecution for making false claims to Medicare, Medicaid or other federal programs, many providers fail to recognize this same exposure also can result from false billings to private health plans and insurers.

Following the initiation of the investigation, Chavez voluntarily surrendered his medical license to the Texas Board of Medicine. Filing false health care claims is one of many types of personal misconduct that justifies loss of licensure or other discipline under Texas Medical Board rules.

According to the documents filed of record in the case, Chavez was board certified in internal medicine, licensed by the Texas Board of Medicine in 1997. He started his medical practice in family medicine and in 2005, began to perform endovenous laser ablation, a procedure used to repair varicose veins in the legs.

For purposes of billing, the medical insurance industry provides certain billing codes for the laser ablation procedure, which include a group of procedures billed under one code for the entire procedure. Chavez instructed his staff to “unbundle” or separate the codes for this procedure and to bill for individual steps in the procedure, resulting in greater reimbursement and payment for each patient. Additionally, Chavez submitted claims alleging he repaired all six veins for each patient, when in fact – in most cases – he repaired fewer than six veins. By alleging he repaired all six veins, Chavez alleged he performed six procedures over a period of six days, another aspect of the fraudulent billing which he used to justify the unbundling of codes and allowed him to be reimbursed at the highest possible rate.

Federal prosecutors claimed The typical patient whose billing was submitted as “bundled” into one code resulted in payment of approximately $6000, while the patient whose billing codes were “unbundled” typically resulted in payment of approximately $14,000. Based on these figures, Federal prosecutors claim that Chavez billed insurance companies and programs, including Medicare and Medicaid, a total of $14.1 million for which he collected $3.8 million between 2005 and 2007.

The investigation of this case was conducted by the FBI and the Texas Attorney General’s Medicaid Fraud Control Unit. Assistant United States Attorney Cedric L. Joubert prosecuted the case. According to the Justice Department, the case is being investigated by the Dallas Health Care Fraud Prevention and Enforcement Action Team (HEAT) Strike Force, which includes the U.S. Department of Health and Human Services Office of Inspector General, the FBI and the Texas Attorney General’s Medicaid Fraud Control Unit. Since their inception in March 2007, Strike Force operations in nine locations have charged more than 1,140 defendants who collectively have falsely billed the Medicare program for more than $2.9 billion.

While health care fraud enforcement remains a lead Federal priority, health care providers in Texas and other HEAT Strike Force targeted regions face heightened exposures to HEAT task force scrutiny and prosecution. In response to these and other investigation and oversight activities, health care providers should strengthen their compliance practices and oversight and take other special care to position themselves and their billings to defend against possible challenge.

For Help With Compliance, Investigations Or Other Needs

If you need assistance providing compliance or other training, reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Euless Healthcare Corporation Owner, Associates Face Conspiracy And Health Care Fraud Charges For Alleged Submission Of $700,000+ In Fraudulent Health Care Claims

November 27, 2011

Three defendants indicted for engaging in various Federal health care fraud offenses related to their involvement in the operation of a North Texas based health care company, Euless Healthcare Corporation, were arrested on November 17, 2011. The charges highlight the health care fraud risks that health care providers, their owners and leaders face for engaging in activities that Federal officials view as prohibited under health care fraud laws.

According to the Justice Department, a 10-count indictment unsealed against Ovsanna Agopian, aka “Joanna Ovsanna,” “Joanna Smbatyan,” and “Ovsanna Agopian,” Boghos Babadjanian and Tolulope Labeodan charges each defendant wit one count of conspiracy to commit health care fraud and nine substantive counts of health care fraud.

According to the indictment, Agopian was the principal operator of Euless Healthcare Corporation (EHC), located at 222 West Bedford Euless Road in Hurst. Babadjanian was the owner of EHC and Labeodan was an employee of EHC. The indictment alleges that the three defendants ran a conspiracy to defraud Medicare by submitting claims for office visits and diagnostic tests that were never performed. The indictment alleges that Agopian recruited doctors to work for EHC by telling them that they would treat beneficiaries in the beneficiaries’ homes. However, the doctors that Agopian recruited never saw beneficiaries at the EHC clinic or beneficiaries’ homes. Prosecutors claim Agopian directed Labeodan, who is not a medical professional and does not have a Medicare provider number, to take beneficiary files from the EHC clinic and purportedly see beneficiaries. However, many beneficiaries, in whose names EHC submitted claims for reimbursement, have never heard of EHC or any of the doctors Agopian recruited.

Federal prosecutors claim that EHC used those doctors’ Medicare provider numbers to falsely bill Medicare more than $700,000 for office visits and diagnostic test for which the defendants allegedly collected Medicare reimbursement checks totaling more than $370,000.

According to the Justice Department, the case is being investigated by the Dallas Health Care Fraud Prevention and Enforcement Action Team (HEAT) Strike Force, which includes the U.S. Department of Health and Human Services Office of Inspector General, the FBI and the Texas Attorney General’s Medicaid Fraud Control Unit. Since their inception in March 2007, Strike Force operations in nine locations have charged more than 1,140 defendants who collectively have falsely billed the Medicare program for more than $2.9 billion.

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Posted by Cynthia Marcotte Stamer

Medical Identity Theft/Fraud Convictions Highlight Need For Health Care Providers To Safeguard Health Information, Guard Against Fraud Schemes

November 27, 2011

Convictions Highlight Health Care Data Bases Attractive, Vulnerable Target For Medicare Fraud Schemers

A Federal judge sentenced 25 year old Miami resident Yenky Sanchez, 25 to serve more than 5 years in Federal prison for his role in the theft of Medicare numbers and other information of elderly and disabled Florida residents as part of a plan to defraud Medicare, Medicaid and other federal programs. Coming on the heels of a November 3 conviction in West Virginia of Sargis Tadevosyan in a separate identity theft for Medicare fraud scheme, the convictions highlight the growing commitment and effectiveness of Federal and state investigators in investigating and prosecuting individuals who seek to use identity theft schemes to defraud Medicare or other federal programs.

Sanchez Conviction & Sentencing

The sentence arises from criminal charges brought by the U.S. Department of Justice (DOJ) in conjunction with other federal and state agencies, which charged Sanchez considered to commit health care fraud, authentication feature fraud and aggravated identity theft. According to DOJ documents, Sanchez, participated in a scheme with Raul Diaz-Perera, to steal and sell Medicare numbers and other data about clients of their employer, the Florida Department of Children and Families’ (DCF). Diaz-Perera previously was employed with DCF. According to the evidence at trial against Sanchez and a factual proffer filed with the court during the plea hearing for co-defendant Diaz-Perera, Sanchez used his position as employees at a DCF call center in downtown Miami to steal Medicare numbers and other personal information for purposes of committing health care fraud and identity theft. The intent of Sanchez and his co-conspirator was for those numbers to be used to fraudulently bill Medicare for services that were never provided to the DCF beneficiaries. Sanchez was convicted of conspiring to commit health care fraud, in violation of Title 18, United States Code, Section 1349; conspiring to commit authentication feature fraud, in violation of Title 18, United States Code, Sections 1028(a)(3) and (f); and aggravated identity theft, in violation of Title 18, United States Code, Section 1028A(a)(1). Based on these convictions, U.S. District Judge Cecilia M. Altonaga sentenced Sanchez on November 21, 2011 to 65 months in prison, followed by three years of supervised release. Judge Altonaga also imposed a $5,000.00 fine on Sanchez.

Tadevosyan Conviction

Federal officials previously also had scored another Medicare fraud/identity theft prosecution victory just a few short weeks earlier in West Virginia. On November 3, 2011, a federal jury convicted Armenia citizen Sargis Tadevosyan in connection with a health care fraud scheme that intended to defraud millions of dollars from Medicare. Tadevosyan was found guilty of two felony counts: conspiracy to commit health care fraud and wire fraud and aggravated identity theft. Tadevosyan faces up to 20 years in prison for the conspiracy conviction and a mandatory consecutive sentence of two years for aggravated identity theft and a $250,000 fine when he is sentenced on January 26, 2012.

In contrast to the small scale conspiracy that apparently occurred in the Sanchez case, the Tadovosyn scheme apparently was orchestrated by organized crime. Department of Health and Human Resources Office of Inspector General (HHS-OIG) uncovered the activities of Tadovosyn as part of its investigation of fraud schemes involving false front providers, whereby a company posed as a Medicare health care provider, and unlawfully billed Medicare as if they were providing legitimate services. Ultimately, investigators discovered that Tadevosyn and others were involved in defrauding Medicare and other health care payers as part of a scheme that used false front provider companies. In total, more than $4 million in Medicare claims were submitted by the false front providers. To co-conspirators of Tadevosyn pleaded guilty in September to aiding and abetting aggravated identity theft in connection to the health care fraud plot. Those two co-defendants are scheduled to be sentenced on December 1, 2011.

In announcing the Tadevosyan conviction, federal officials affirmed their commitment to finding and prosecuting identity theft targeting Medicare and other health insurance programs. “This investigation revealed that organized criminal groups are still brazenly attempting to steal taxpayer money from our national health insurance programs,” said Nicholas DiGiulio, Special Agent in Charge for the Inspector General’s Office of the United States Department of Health and Human Services. “Today’s results demonstrate that we will do whatever it takes to catch these individuals in the act before they receive a penny of taxpayers’ money.”

Federal Laws, Investigations & Prosecutions of Medical Identity Theft Schemes Tightening

Whether from deliberate schemes to misappropriate data or other less sinister compromises of personal health information or other sensitive data, health care providers, health plans and other businesses face rising responsibilities to protect data and increasing exposures for failing to do so.

Federal law imposes stiff sanctions against organizations and individuals that engage in theft of personal or other sensitive information, health or other federal program fraud or both. In an effort to stem the tide of health care and identity theft fraud, federal and state legislators and regulators have tightened federal and state laws to strengthen laws prohibiting health care fraud and identity theft, to require that health care providers, health plans, federal and state agencies and others that collect, possess or access sensitive personal health information, personal financial information or other sensitive date safeguard and protect sensitive information against improper access or misuse, to increase the penalties for violation of these federal and state laws and to provide law enforcement with expanded tools to investigate and prosecute violations of these laws. See e.g., Cybercrime and Identity Theft: Health Information Security Beyond HIPAA.

As a result of these new and expanded mandates, health care providers, health plans, financial organizations and a broad range of other businesses and governmental agencies face a host of complicated mandates to protect personal health information, personal financial information and other sensitive data under laws such as the Health Information Portability & Accountability Act (HIPAA), the Fair & Accurate Credit Transactions Act (FACTA), state and federal identity theft and data security and other laws and significant liability for failing to fulfill these responsibilities.

Health care providers, health insurers and others handling protected health information are particularly at risk when their data is compromised. Recent amendments to HIPAA require these entities and their business associates to tighten their data privacy and security safeguards and to monitor and timely report data breaches, as well as significantly expand their potential liability exposure for failing to comply with HIPAA’s requirements. See e.g., UCLA Health Systems Payment of $865,500 To Settle HIPAA Charges Shows Rising HIPAA Risk; CVS Settles Privacy Charges; Rite Aid Agrees to Pay $1 Million to Settle HIPAA Privacy Case As Office of Civil Rights Proposes Tighter HIPAA Privacy & Security Regulations; 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information; President Signs Long-Sought Red Flag Rule Exemption Into Law. As part of its ongoing implementation of stepped up enforcement responsibility and powers enacted as part of these recent amendments, the HHS Office of Civil Rights (OCR) announced on November 8, 2011 its kickoff of a new compliance audit effort. These developments send a forceful message that all businesses generally and health care providers, health plans, healthcare clearinghouses and their business associates specifically must get serious about compliance with the privacy, security and data breach requirements of HIPAA and other applicable law by implementing and administering the policies, procedures, training and oversight necessary to comply with these and other federal and state mandates regarding the protection of personal health information and other sensitive data. Learn more about the recent convictions and related data breach exposures here.

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Posted by Cynthia Marcotte Stamer

Detroit-Area Foot Doctor Pleads Guilty to Medicare Fraud Scheme

November 27, 2011

A Detroit-area foot doctor pleaded guilty to health care fraud on November 22 for his participation in a Medicare fraud scheme. The guilty plea highlights the expanding reach of the heightened health care fraud detection and enforcment emphasis of Federal officials and the resulting need for heightened care by physicians and other health care providers in their health care billing and other operations to guard against getting caught in this expanding net.

According to the Department of Justice (DOJ), Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS), podiatrist Errol Sherman pleaded guilty in the Eastern District of Michigan to one count of health care fraud. At sentencing, Sherman faces a maximum penalty of 10 years in prison and a $250,000 fine

According to the plea documents, between January 2003 and December 2006, Sherman billed Medicare and Blue Cross Blue Shield of Michigan for a procedure known as an “avulsion of the nail plate” or “nail avulsion” procedure thousands of times with respect to hundreds of beneficiaries. According to court documents, Sherman billed Medicare for nail avulsion procedures never rendered.

Since their start in March 2007, the Medicare Fraud Strike Force operations in nine districts have charged thousands of individuals with falsely billing Medicare or more than $2.9 billion.

The rising emphasis of DOJ, HHS and other federal and state officials on health care fraud detection and enforcement requires that health care providers tighten their billing, medical record keeping, training and other compliance efforts to guard against false claims and other health care fraud charges.

For Help With Compliance, Investigations Or Other Needs

If you need help providing compliance or other training, reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to set up and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

Leave a Comment » | Corporate Compliance, DME, Doctor, false claims act, Federal Sentencing Guidelines, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Plan, Home Health, Hospital, Hospital, Indian Health, Medicaid, Medicare, Money Laundering, OIG, Physician, Physician Licensing, Reimbursement | Tagged: Department of Justice, false claims act, Health Care, health care billing, Health Care Fraud, Health Care Reimbursement, Health claims, HHS, Medicare, Physician | Permalink
Posted by Cynthia Marcotte Stamer

Texas Medical Board Suspends Child Psychiatrist For Sexual Misconduct

November 22, 2011

Personal Misconduct By Physicians Or Other Health Care Workers Common Cause of Discipline

On November 22, 2011, a disciplinary panel of the Texas Medical Board temporarily suspended, without notice, the medical license of Charles Henry Fischer, M.D., after determining that Dr. Fischer, a child psychiatrist at the Austin State Hospital in Austin, has demonstrated a pattern of sexually abusing teenage boys in his care for inpatient psychiatric treatment over a period of nearly 20 years. The discipline highlights again that personal misconduct remains a key reason for discipline of medical professionals.

Dr. Fischer, 59, was employed at Austin State Hospital from December 1990 until his termination on November 14, 2011. He also was employed as a psychiatrist at the Waco Center for Youth, the Southwest Neuropsychiatric Institute in San Antonio, Lutheran Social Services Residential Treatment Center for Girls and Central Counties Mental Health and Mental Retardation. The Board imposed the suspension based on information that as many as nine patients had alleged sexual abuse by Dr. Fischer since the first patient report in 1992.

Unprofessional personal misconduct presenting a right to public health and safety is a common trigger for discipline by the Texas Medical Board and other licensing boards. See, e.g. Quality, Recordkeeping & Unprofessional Conduct Lead Reasons For Medical Board Discipline of Physicians. Although complaints based on sexual misconduct occur much less frequently than substance abuse or other types of personal misconduct, the Texas Medical Board and other medical licensing bodies view sexual misconduct as among the most serious types of violations. The prevalence rate of sexual misconduct in physicians is estimated at 6-10 percent but this phenomenon is likely under-reported in physician surveys and by patients. It is believed that the number of false claims made by patients is very low. A 1992 study indicates that only 4-8 percent of patients report a doctor’s sexual misconduct. Physicians found guilty of engaging in prohibited sexual misconduct typically are male, have a mean age of 53, practice in private practice, and have a history of substance abuse, are in the midst of a divorce, separation or other life crisis and tend to engage in higher than typical nonsexual patient touch with patients.

Because of their special role and responsibility with respect to patients and the community, the law, the profession and the public impose high expectations upon physicians and other health care professionals in relation to their sexual conduct toward patients and others. State medical practices and other medical licensure bodies, the American Medical Association Code of Conduct, the Joint Commission, peer review and other disciplinary boards and other regulatory and administrative policies and bodies generally prohibit both sexual assault, sexual harassment, and a broad range of other conduct of a sexual nature considered to be inconsistent with the special relationship of trust occupied by the health care professional.

Sexual misconduct charges that can result in discipline can include clear atrocities such as rape or other sexual assaults, as well as engagement in inappropriate sexual relationships or overtures to current or former patients, as well as sexual harassment and certain other types of sexual relationships or conduct involving staff or others. See, e.g., Ringer v. Texas State Bd. of Med. Examiners, 1999 Tex. App. LEXIS 8214 (Tex. App. 1999); Texas State Board of Medical Examiners v. Haynes, 388 S.W.2d 258, 261 (Tex. App. 1965); Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479 (Tex. 1959). In addition discipline by the Board of Medicine, physicians or other health care providers typically also face other consequences such as medical malpractice, sexual harassment or other similar claims or charges, peer review discipline, data bank reports, employment termination or discipline, practice expulsion, and criminal prosecution. Even if a physician or other heath care provider dodges formal discipline, accusations of sexual misconduct by a physician or other health care provider tends to permanently damage the practice and reputation of the health care.

Sexual misconduct by a physician or other health care provider or workforce member also can create significant exposures for hospitals, clinics, affiliated physicians and health care professionals associated with a physician or health care provider found to have engaged in sexual misconduct. Among other things, the failure of these third parties to take adequate steps to prevent, investigate, report or redress another health care provider’s sexual misconduct or harassment may result in malpractice or other civil litigation, licensure or other professional investigation or discipline, reputational damages and other consequences.

To guard against these exposures, physicians and other health care providers should exercise care to avoid engaging in actions that might expose them to charges of sexual assault, harassment or other inappropriate sexual conduct and should adopt policies, adopt procedures and practices to prohibit and provide training and other oversight to encourage other health care providers and staff to avoid such conduct. If a physician or other health care provider or organization observes, receives a report or charge or otherwise becomes aware of information indicating that a potential sexual assault or other inappropriate sexual conduct may have occurred, it should act promptly and appropriately to investigate and redress the conduct or suspected conduct in a manner designed to strengthen their defenses against possible disciplinary action or other liabilities and risks. Because of the legal sensitivity and risk associated with the allegations of sexual misconduct and the investigation of those charges, physicians and other health care providers and organizations involved in these concerns generally should engage competent legal counsel as soon as possible when these concerns come to light for assistance in responding to the concerns, as well as the ability to use attorney-client privilege and work product, peer review, quality, and other legal privileges and other legal rules and safeguards to help promote confidentiality and defensibility of sensitive communications and conduct in connection with the investigation and response to these concerns.

For Help With Compliance, Investigations Or Other Needs

If you need assistance providing compliance or other training, reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others including highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others.. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

Leave a Comment » | Doctor, Employment, Health Care, Health Care Provider, Health Care Quality, Hospital, Medical Licensure, Medical Malpractice, Mental Heatlh, Peer Review, Physician, Physician Licensing | Tagged: discipline, Health Care, Medical Licensure, Physician, Sexual Misconduct | Permalink
Posted by Cynthia Marcotte Stamer

Joint Commission Equal Visitation Rules & Guidance Supplement New Medicare Equal Visitation Requirements

November 13, 2011

Following on recently finalized Medicare regulations dictating that hospitals allow patients to control individuals who will be allowed to visit or exercise other patient representative rights , the Joint Commission of the Accreditation recently has released the following new guidance concerning its expectations concerning the responsibilities of hospitals and other accredited entities to create inclusive care enviromentments for lesbian, gay, bisexual and transgender (LGBT) patients and their families:

Joint Commission focuses on improving care for LGBT patients – A new field guide posted November 8, 2011- from The Joint Commission urges U.S. hospitals to create a more welcoming, safe and inclusive environment that contributes to improved health care quality for LGBT patients and their families.
Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community – A new field guide from the Joint Commission urges US hospitals to create a more welcoming, safe, and inclusive environment that contributes to improved health care quality for lesbian, gay, bisexual, and transgender (LGBT) patients and their families.

Hospitals and others impacted by these rules should review and update visitation, patient representative, privacy, patient notification and consent and other policies and practices to comply with the new Medicare mandates and the applicable requirements of the new Joint Commission standards.

Learn more about these new requirements in the recent Modern Healthcare article Bumpy road for equal visitation.

For More Information Or Assistance

If you need assistance reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Ms. Stamer’s insights on the new Medicare visitation rules recently were quoted in Modern Healthcare. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on OCR Civil Rights rules and enforcement actions. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

OCR Audit Program Kickoff Further Heats HIPAA Privacy Risks

November 9, 2011

The kickoff of a new compliance audit pilot program provides another reason for health care providers, health plans, healthcare clearinghouses and their business associates to get serious about compliance with the privacy, security and data breach requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

OCR Pilot Audit Program Begins

On November 8, 2011, the Office of Civil Rights (OCR) of the Department of Health & Human Services (HHS) announced that it will begin auditing HIPAA compliance this month under a new pilot program.

As amended by the American Recovery and Reinvestment Act of 2009 in Section 13411 of the HITECH Act, requires HHS to provide for periodic audits to make sure covered entities and business associates are complying with the HIPAA Privacy and Security Rules and Breach Notification standards. To carry out this mandate, OCR is piloting a program to perform up to 150 audits of covered entities to assess privacy and security compliance between November 2011 and December 2012.

The commencement of OCR HIPAA compliance audits is yet another sign that covered entities and their business associates should get serious about HIPAA compliance. The audit program serves as a new part of OCR’s health information privacy and security compliance program. While OCR says that it presently views the pilot audits as primarily a compliance improvement tool, this does not mean violators should expect a free walk.

Even before the impending audits, HIPAA Privacy exposures of covered entities for failing to comply with HIPAA already had risen significantly. Earlier this year, OCR imposed a $4.3 Million Civil Money Penalty (CMP) against Cignet Health of Prince George’s County (Cignet) for violating HIPAA. Meanwhile, the Department of Justice has secured several criminal convictions or pleas under HIPAA’s criminal provisions. Under amendments made by the HITECH Act, state attorneys general also now are empowered to bring civil lawsuits against covered entities and business associates that commit HIPAA violations that injure citizens in their state under certain circumstances. Eventually, individuals injured by HIPAA violations also will get the right to share in a portion of certain HIPAA recoveries.

These and other audit and enforcement activities send a strong message that covered entities and their business associates need to get serious about HIPAA compliance. As stated by OCR Director Georgina Verdugo when announcing the Mass General Resolution Agreement, “To avoid enforcement penalties, covered entities must ensure they are always in compliance with the HIPAA Privacy and Security Rules,” Verdugo added, “A robust compliance program includes employee training, vigilant implementation of policies and procedures, regular internal audits, and a prompt action plan to respond to incidents.” Learn more here.

For Help With Monitoring Developments, Compliance, Investigations Or Other Needs

Vice President of the North Texas Health Care Compliance Professionals Association, a member of the American College of Employee Benefit Counsel, Past Chair of the ABA RPTE Employee Benefits & Other Compensation Arrangements Group, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies. Ms. Stamer also regularly helps clients deal with OCR and other agencies, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. Her insights on the required “culture of compliance” with HIPAA are frequently included in medical privacy related publications of the Atlantic Information Service, Modern Health Care, HealthLeaders and many others. Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here or may contact her at (469) 767-8872 or via e-mail here.

You can review other selected publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here.

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Posted by Cynthia Marcotte Stamer

Houston Doctor Gets 135 Month Health Care Fraud Sentence

November 6, 2011

Conviction Highlights Growing Fraud Enforcement Risks Reach Broadly

A Houston Federal Court recently sentenced Houston doctor Christina Joy Clardy to 135 months in federal prison for her conviction on charges arising from a health care fraud conspiracy that federal officials charged resulted in false billings to Medicare and Texas Medicaid programs for $45,039,230 over a 2 ½-year-period. Clardy, who was found guilty of one count of conspiracy to commit health care fraud, 14 counts of health care fraud and three counts of mail fraud on May 27, 2011, after an 18-day trial in front of U.S. District Judge Melinda Harmon, also was ordered to pay $15,626,084.01 in restitution to Medicare and Medicaid.

Federal prosecutors had charged that Clardy was a key player in a massive federal health care fraud scheme under which City Nursing Services of Texas, Inc (City Nursing Services) billed more than $25 million worth of physical therapy services under Clardy’s physician provider numbers between January 2007 and August 2008.

Clardy is the third defendant to be sentenced in this matter.

The charges against Clardy and others convicted in the City Nursing Services action are one of a growing number of health care fraud prosecutions resulting from the actions of the Medicare Fraud Strike Force that are conducted as part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT). HEAT is a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country. The joint Department of Justice-HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of Medicare data analysis techniques and an increased focus on community policing. Since its announcement, the Strike Force has used the combined resources of agents from the FBI, HHS-Office of Inspector General (HHS-OIG), multiple Medicaid Fraud Control Units, and other state and local law enforcement agencies to investigate and prosecute a rising number of organizations and individuals throughout the industry for alleged violations of Federal health care fraud prohibitions. In their September 7, 2011 announcement, HHS and DOJ credited Strike Force Operations in nine locations with resulting in charges against more than 1,140 defendants who the government charged collectively falsely billed the Medicare program for more than $2.9 billion. Learn more here.,

The effectiveness of these Federal efforts to deter, find and prosecute false claims and other perceived abuses of Federal health care law has been significantly strengthened since Congress passed the Patient Protection & Affordable Care Act (Affordable Care Act). Among other things, ACA empowered HHS to:

Suspend payments to providers and suppliers based on credible allegations of fraud in Medicare and Medicaid;
Impose a temporary moratorium on Medicare, Medicaid, and CHIP enrollment on providers and suppliers when necessary to help prevent or fight fraud, waste, and abuse without impeding beneficiaries’ access to care.
Strengthen and build on current provider enrollment and screening procedures to more accurately assure that fraudulent providers are not gaming the system and that only qualified health care providers and suppliers are allowed to enroll in and bill Medicare, Medicaid and CHIP;
Terminate providers from Medicaid and CHIP when they have been terminated by Medicare or by another state Medicaid program or CHIP;
Require provider compliance programs, now required under the Affordable Care Act, that will ensure providers are aware of and comply with CMS program requirements.

Act To Manage Risks

In response to the growing emphasis and effectiveness of Federal officials in investigating and taking action against health care providers and organizations, health care providers covered by federal false claims, referral, kickback and other health care fraud laws should consider auditing the adequacy of existing practices, tightening training, oversight and controls on billing and other regulated conduct, reaffirming their commitment to compliance to workforce members and constituents and taking other appropriate steps to help prevent, detect and timely redress health care fraud exposures within their organization and to position their organization to respond and defend against potential investigations or charges.

For More Information Or Assistance

If you need assistance reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Bill Extending Funding For Certain Veteran Medical and Other Projects Heads To President

November 4, 2011

Guidance For 2012 Branded Prescription Drug Fee Filings Released

The Internal Revenue Service (IRS) has released guidance about the branded prescription drug fee applicable to covered entities engaged in manufacturing or importing branded prescription drugs for the 2012 fee year.

Notice 2011-92 provides guidance on related to (1) the submission of Form 8947, “Report of Branded Prescription Drug Information,” (2) the time and manner for notifying covered entities of their preliminary fee calculation, (3) the time and manner for submitting error reports for the dispute resolution process, and (4) the time for notifying covered entities of their final fee calculation. It is scheduled for publication in Internal Revenue Bulletin 2011-48 on November 28, 2011. Learn more about the branded prescription drug fee and the 2012 deadlines here

Notice 2011-92 sets December 15, 2011 as the deadline for submitting the Form 8947 for the 2012 fee year and sets the deadline for filing any error report challenging the preliminary calculation of the fee calculation as May 16, 2012.

Notice 2011-92 affirms that in accordance with § 51.8T(a), the IRS will notify each covered entity of its final fee calculation for 2012 by August 31, 2012. In accordance with §51.8T(c), each covered entity must pay this fee by September 30, 2012.

For Assistance or Additional Information

Nationally and internationally known for her knowledge and work on health and other employee benefit matters and engaging and informative presentations, attorney, author and policy advocate Cynthia Marcotte Stamer will help you prepare your plan and organization to cope with these and other challenges of understanding and coping with health care reform.

Chair of the American Bar Association (ABA) RPPT Employee Benefits & Other Compensation Arrangements, an ABA Joint Committee on Employee Benefits Council Representative, incoming ABA TIPS Employee Benefit Plan Committee Vice Chair, former ABA Health Law Section Managed Care & Insurance Interest Group Chair, past Southwest Benefits Association Board Member, Employee Benefit News Editorial Advisory Board Member, Board Certified in Labor and Employment Law and a widely published speaker and author, Ms. Stamer has more than 24 years experience advising businesses, plans, fiduciaries, insurers and governments on health care, retirement, employment, insurance, :and tax program design, administration, defense and policy and related employment, insurance and health care matters. Her experience includes extensive experience advising insured and self-insured ERISA group medical and other plans, Medicare and Medicaid Advantage plans, mini-med, high-deductible and other consumer driven medical, long-term care, occupational injury, ex-pat, association, fraternal benefit and other managed care and medical benefit plans and insurers, their service providers, insurers, sponsors, fiduciaries, technology providers and others. A primary drafter of the Bolivian pension law, Ms. Stamer also has more than 30 years experience working on legislative and regulatory health care, pension, workforce, education and immigration reform matters including extensive work on the Pension Protection & Affordable Care Act, HIPAA, COBRA, state managed care and other insurance and other laws. In addition to her experience advising governments and others internationally about these matters, she regularly advises and represents employers, employee benefit plans, insurers, health care and managed care providers and others about evolving laws and regulations and assists them in dealing with Congress, the Internal Revenue Service, the Department of Labor, Immigration and Customs, OCR, OIG, CMS and other HHS agenices, the FTC, the Justice Department, state insruance and health departments, and others.

A widely published author and popular speaker, Ms. also regularly publishes and speaks for a broad range of organizations including American Bar Association, Aspen Publishers, World At Work, Benefits Magazine, Employee Benefit News, Spencer Publications, SHRM, the International Foundation, Solutions Law Press and many others. She currently or previously has served on the editorial advisory board of Employee Benefits News, BNA Employee Benefits CDRolm and a wide range of other highly regarded publications. Her insights on these and other matters have appeared in Managed Care Executive, Health Leaders, Private Payers News, the Wall Street Journal, various publications of the Bureau of National Affairs, Aspen, Atlantic Information Serices, the Wall Street Journal, and many other industry and news publications. In recognition of this extensive record of employee benefit experience and involvement, Ms. Stamer recently was selected to be inducted as a Fellow in the American College of Employee Benefits Counsel.

You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here. For important information concerning this communication click here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

OCR Settlements Show Health Care & Disabled Housing Providers Face Growing Disability Discrimination Risks

October 19, 2011

A continuing series of federal investigations and enforcement actions highlight the need for health care providers and other health industry organizations to strengthen their disability discrimination management practices to defend against rising exposures to actions by the U.S. Department of Health & Human Services Office of Civil Rights (OCR) and other agencies as well as private law suits.

As part of a broader emphasis on the enforcement of disability and other federal discrimination laws by the Obama Administration, OCR is making investigation and prosecution of suspected disability discrimination by health industry organizations a priority. OCR recently has announced several settlement agreements and issued letters of findings as part of its ongoing efforts to ensure compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA) as well as various other federal nondiscrimination and civil rights laws.

Defending or paying to settle a disability discrimination charge brought by a private plaintiff, OCR or another agency, or others tends to be financially, operationally and politically costly for a health care organization or public housing provider. In addition to the expanding readiness of OCR and other agencies to pursue investigations and enforcement of disability discrimination and other laws, the failure of health care organizations to effectively maintain processes to appropriately include and care for disabled other patients or constituents with special needs also can increase negligence exposure, undermine Joint Commission and other quality ratings, undermine efforts to qualify for public or private grant, partnerships or other similar arrangements, and create negative perceptions in the community.

Federal Disability & Other Laws Prohibit Health Care Provider Discrimination

Public and private health care and housing providers may face discrimination exposures under various federal laws such as the public accommodation and other disability discrimination prohibitions of the ADA, Section 504, the Civil Rights Act and various other laws. Section 504 requires recipients of Medicare, Medicaid, HUD, Department of Education, welfare and most other federal assistance programs funds including health care, education, housing services providers, state and local governments to ensure that qualified individuals with disabilities have equal access to programs, services, or activities receiving federal financial assistance. The ADA extends the prohibition against disability discrimination to private providers and other businesses as well as state and local governments including but not limited to health care providers reimbursed by Medicare, Medicaid or various other federal programs The ADA requirements extend most federal disability discrimination prohibits to health care and other businesses even if they do not receive federal financial assistance to ensure that qualified individuals with disabilities have equal access to their programs, services or activities. In many instances, these federal discrimination laws both prohibit discrimination and require health care and other regulated businesses to put in place reasonable accommodations needed to ensure that their services are accessible and available to persons with disabilities. Meanwhile the Civil Rights Act and other laws prohibit discrimination based on national origin, race, sex, age, religion and various other grounds. These federal rules impact virtually all public and private health care providers as well as a broad range housing and related service providers.

As a result of its stepped up enforcement of the ADA, Section 504 and other civil rights and nondiscrimination rules, OCR is racking up an impressive list of settlements with health care providers, housing and other businesses for violating the ADA, Section 504 or other related civil rights rules enforced by OCR. While OCR continues to wage this enforcement battle in the programs it administers, the Departments of Justice, Housing & Urban Development, Education, Labor and other federal agencies also are waging war against what the Obama Administration perceives as illegal discrimination in other areas. Along side their own enforcement activities, OCR and other federal agencies are maintaining a vigorous public outreach to disabled and other individuals protected by federal disabilities and other civil rights laws intended to make them aware of and to encourage them to act to enforce these rights. To be prepared to defend against the resulting risk of claims and other enforcement actions created by these activities, health care, housing and other U.S. providers and businesses need to tighten compliance and risk management procedures and take other steps to prepare themselves to respond to potential charges and investigations.

Recent Settlements Highlight Risk

Within recent settlement agreements, entities agreed to take steps to come into compliance with Section 504 and ADA, including: review and revision of policies and procedures; training staff on their non-discrimination obligations; providing a grievance procedure for patients; and other corrective actions specific to each entity’s violations. To learn more details about these actions and settlements, see https://www.cynthiastamer.com/documents/articles/20111019%20OCR%20Disability%20Enforcement%20CMSPC.pdf.

Enforcement of Discrimination & Other Civil Rights Laws Obama Administration Priority Putting Public & Private Providers At Risk

These and other enforcement actions by OCR and other agencies demonstrate the significant increased federal emphasis on the enforcement of federal discrimination laws against private and public health care and housing providers, state and local governments and other businesses under the Obama Administration. In keeping with this renewed emphasis, the DCF settlement is the latest in a series of federal disability, national origin and other discrimination charges and settlements OCR, has brought over the past year against physicians, public and private hospitals, insurers, federally financed housing providers and other parties providing services financed under programs administered by OCR. As the Department of Housing and Urban Development (HUD), the Equal Employment Opportunity Commission (EEOC) and other federal agencies also similarly have increased emphasis in federal discrimination law enforcement during this period, health care providers and other federal program service providers need to be prepared to defend their programs and practices to withstand federal discrimination charges or other investigations by federal agencies, private plaintiffs or both.

As for employment discrimination, violators of these and other federal discrimination prohibitions applicable to the offering and delivery of services and products also face exposure to large civil damage awards to private plaintiffs as well as federal program disqualification, penalties and other federal agency enforcement. Unfortunately, while most businesses and governmental leaders generally are sensitive to the need to maintain effective compliance programs to prevent and redress employment discrimination, the awareness of the applicability and non-employment related disability and other discrimination risk management and compliance lags far behind.

Many private health care organizations assume that OCR’s enforcement actions are mostly a problem for state and local government agencies because state and local agencies and service providers frequently have been the target of OCR discrimination charges. However the record shows OCR enforcement risks are high for both public and private providers.

OCR can and does investigate and brings actions against a wide variety of public and private physicians, hospitals, insurers and other private health care and other federal program participants. In October, 2009, for instance, OCR announced that an Austin, Texas orthopedic surgeon whose practice group sees an average of 200 patients per week, had entered into a settlement agreement to resolve OCR charges that he violated Section 504 of the Rehabilitation Act by denying medically appropriate treatment from patients solely because they are HIV-positive.

Invest in Prevention To Minimize Liability Risks

In light of the expanding readiness of OCR to investigate and take action against health care providers for potential violations of the ADA, Section 504 and other federal discrimination and civil rights laws, health care organizations and their leaders should review and tighten their policies, practices, training, documentation, investigation, redress, discipline and other nondiscrimination policies and procedures. In carrying out these activities, organizations and their leaders should keep in mind the critical role of training and oversight of staff and contractors plays in promoting and maintaining required operational compliance with these requirements. Reported settlements reflect that the liability trigger often is discriminatory conduct by staff, contractors, or landlords in violation of both the law and the organization’s own policies.

To achieve and maintain the necessary operational compliance with these requirements, organizations should both adopt and policies against prohibited discrimination and take the necessary steps to institutionalize compliance with these policies by providing ongoing staff and vendor training and oversight, contracting for and monitoring vendor compliance and other actions. Organizations also should take advantage of opportunities to identify and resolve potential compliance concerns by revising patient and other processes and procedures to enhance the ability of the organization to learn about and redress potential charges without government intervention.

For More Information Or Assistance

If you need assistance reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see here. About Solutions Law Press

Leave a Comment » | ADA, DME, Doctor, Durable Medical Equipment, Employer, Employment, Genetic Information, Health Care, Health Care Finance, Health Care Provider, Health Care Quality, Home Health, Hospital, Hospital, Licensing, Medicaid, Medical Licensure, Medical Malpractice, Medicare, Medicare Advantage, OCR, OIG, Physician, Physician Licensing, Real Estate, Rehabilitation Act, Substance Abuse | Tagged: ADA, controlled substance, DEA, Discrimination, Drug Testing, drugs, Health Care, HHS, Hospital, licensure, Medical Board, Medical Practice, OCR, Office of Civil Rights, pain management, pharmacist, pharmacy, Physician, Prescription Drugs | Permalink
Posted by Cynthia Marcotte Stamer

Bill Extending Funding For Certain Veteran Medical and Other Projects Heads To President

September 25, 2011

H.R.2646

Extended funding for various veterans health facilities and programs and audits of private payers providing certain services to veterans provided for under the Veterans Health Care Facilities Capital Improvement Act of 2011, H.R. 2646 are about to become law. Congress has passed and sent H.R. 2646 to President Obama for signature.

Among other things, H.R. 2646:

Designates the VA telehealth clinic in Craig, Colorado, as the “Major William Edward Adams Department of Veterans Affairs Clinic.”
Extends to December 31, 2018, specified authority for: (1) treatment, rehabilitation, and added services for seriously mentally ill and homeless veterans; (2) housing assistance for homeless veterans; and (3) the Advisory Committee on Homeless Veterans and (4) transfers of real property under the Secretary’s jurisdiction or control.
Extends to September 30, 2020, the recovery audit program for certain fee basis and other medical services contracts concerning non-VA care and services for veterans and beneficiaries
Eextends funding for construction at Department of Veterans Affairs (VA) medical centers in Seattle, Washington and West Lost Angeles, California; and leases at various outpatient and community-based outpatient clinics.
Changes authorizations for certain previously authorized construction projects in Fayetteville, Arkansas, the Orlando, Florida area, Palo Alto, California, San Juan, Puerto Rico, and St. Louis, Missouri.
Along with these funding extensions, H.R. 2646 also requires that requests for funding of veteran medical facilities projects and leases sent to Congress include: (1) a detailed estimate of the total costs of the medical facility including the number of personnel and itemized costs for construction, activation, special purpose alteration, ancillary services, and equipment; and (2) data concerning demographics, workload, utilization, and operating costs over a 5-, 10-, and 20-year period. For a proposed new or replacement facility, funding requests also must include a detailed: (1) report of the consideration given to acquiring an existing facility by lease or purchase and to the sharing of health-care resources with the Department of Defense (DOD); and (2) total cost estimate and a cost-benefit comparison for each considered alternative to construction of the facility and an explanation of why the preferred alternative is the most effective means to achieve the stated project goals.

For Assistance or Additional Information

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Posted by Cynthia Marcotte Stamer

UCLA Health Systems Payment of $865,500 To Settle HIPAA Charges Shows Rising HIPAA Risk

September 15, 2011

Health care providers, health plans, health care clearinghouses and their business associates got another wake up call about the growing importance of strengthening their policies, practices and safeguards of medical information and records that are “protected health information” under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules with the announcement on July 7 that the University of California at Los Angeles Health System (UCLAHS) has reached an agreement with the U.S. Department of Health & Human Services Office of Civil Rights (OCR) to pay $865,500 and act to strengthen its health information privacy and security practices to settle charges of HIPAA violations.

The latest in a series of recently announced high-dollar Resolution Agreements, the UCLAHS Resolution Agreement highlights the growing risks that covered entities and their business associates run by failing to adequately adopt and administer the policies, systems and other management controls and training necessary to ensure that their organizations and their employees and other members of their workforce actually operationally comply with HIPAA.

Increased penalties, tighter rules and recent enforcement actions by OCR make it more important than ever that covered entities tighten their compliance and risk management policies and procedures.

As a result of amendments enacted as part of the HITECH Act, Congress modified and expanded the HIPAA audit and enforcement obligations of OCR, amended and expanded the potential penalties, made business associates liable for violation of the privacy rules like covered entities, added an obligation for covered entities and business associates to provide notification of breaches of unsecured PHI and tightened other HIPAA obligations. The HITECH Act also gave state attorneys general to bring civil lawsuits against covered entities and business associates that commit HIPAA violations that injure citizens in their state under certain circumstances. Eventually, individuals injured by HIPAA violations will get the right to share in a portion of certain HIPAA recoveries. See HIPAA Heats Up: HITECH Act Changes Take Effect & OCR Begins Posting Names, Other Details Of Unsecured PHI Breach Reports On　Website.

OCR enforcement actions and statistics make clear that OCR is serious about investigation and enforcement of HIPAA violations. This Spring, OCR assessed its first civil monetary penalty (CMP) under HIPAA – a $4.3 million against Cignet Health of Prince George’s County, Md. (Cignet) and entered into a series of Resolution Agreements under which CVS Pharmacy, Inc., General Hospital Corporation and Massachusetts General Physicians Organization Inc., Rite Aid and others paid a million or more dollars as part of the required terms of settlement. See e.g., Rite Aid Pays $1 Million HIPAA Privacy Settlement As OCR Tightens HIPAA Regulations; HIPAA Risks Soar As CVS Agrees To Pay $2.25 Million To Resolve HIPAA Charges & Stimulus Bill Amends HIPAA; Providence To Pay $100,000 & Implement Other Safeguards To Settle HIPAA Penalty Exposures Under HIPAA. Meanwhile, as of January 1, 2011, OCR reported that it had referred more than 484 Privacy Rule breach investigations to the Department of Justice for consideration for potential criminal prosecution and required changes in privacy practices and other corrective actions as part of the requirements for resolution of an additional 12,781 of cases investigated. In addition to these civil enforcement actions by OCR, the Department of Justice has secured several criminal convictions or pleas under HIPAA’s criminal provisions. OCR data confirms that the covered entities involved in these actions included health care providers, health plans, and others. See, e.g., 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health　Information

Lax HIPAA and other practices for protection of medical and other confidential personal information also increasingly exposes covered entities and other organizations to liability under state laws. State courts allow individual plaintiffs to rely on violations of HIPAA as the basis for bringing state privacy, retaliation or other actions. See, e.g. Sorensen v. Barbuto, 143 P.3d 295 (Utah Ct. App. 2006), Acosta v. Byrum, 638 S.E. 2d 246 (N.C. Ct. App. 2006). Private plaintiffs employed by covered entities also claim HIPAA related misconduct as the basis for their retaliation claims. See, e.g.,　 Retaliation For Filing HIPAA Complaint Recognized As Basis For State Retaliatory Discharge Claim.

HIPAA-specific exposures, wrongful use, access or disclosure of medical information also can expose covered entities, members of their workforce and others improperly using, accessing or disclosing protected health information to liability under other federal or state laws. See, Cybercrime & Identity Theft: Health Information Security Beyond HIPAA; NY AG Cuomo Announcement of 1st Settlement For Violation of NY Security Breach Notification Law; Woman Who Revealed AIDs Info Gets A Year.

These and other developments make clear that covered entities and their business associates must get serious about HIPAA compliance and risk management. These organizations should review and tighten privacy policies, breach and other monitoring, training and other practices to mitigate against exposures in light of recently tightened requirements and new enforcement risks.

For More Details Or Help With HIPAA & Other Risk Management & Compliance Needs

To learn more about the UCLAHS Resolution Agreement and other risk management tips, see UCLA Health Systems Payment of $865,000 To Settle HIPAA Charges Shows Rising HIPAA Risk.

Ms. Stamer also regularly works with OCR and other agencies, publishes and speaks extensively on medical and other privacy and data security, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.　 For instance, On May 3, 2011, Ms. Stamer served as the appointed scribe for the ABA Joint Committee on Employee Benefits Agency meeting with OCR and will moderate a teleconference featuring comments by OCR’s Susan McAndrew for the Joint Committee on Employee Benefits scheduled for May 16. Her insights on the required “culture of compliance” with HIPAA also recently were quoted in medical privacy related publications of the Atlantic Information Service. Among others, she has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, employee benefit and other clients, trade and professional associations and others. You can get more information about her HIPAA and other experience here. To ask for legal help with these or other compliance concerns, inquire about arranging for compliance audit or training, or matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here. You can review other publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here and register to receive future updates about developments on these and other concerns from Ms. Stamer here. For important information concerning this communication click here.Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.

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Posted by Cynthia Marcotte Stamer

Indictment of 91 Shows Growing Health Care Fraud Enforcement Risk

September 8, 2011

A nationwide takedown by Medicare Fraud Strike Force operations in eight cities resulted in the Department of Justice filing criminal charges against 91 defendants, including doctors, nurses, and other medical professionals, for their alleged participation in Medicare fraud schemes involving approximately $295 million in false billing, Attorney General Eric Holder and Health and Human Services (HHS) Secretary Kathleen Sebelius jointly announced the charges on September 7, 2011.

The charges are provide yet another powerful reminder to health care providers, leaders and organizations of the advisability of tightening compliance practices and taking other steps to guard against ever expanding health care fraud exposures. Already a lead federal enforcement priority for more than a decade, HHS recently established the Center for Program Integrity within the Centers for Medicare & Medicaid Services (CMS) to focus on identifying and stopping fraud and acting swiftly to protect beneficiaries.

Charges Announced September 7 Show Strike Force Targeting Fraud Industry Wide

In announcing the most sweeping joint action to date, HHS and Justice Department officials warned that the latest charges demonstrate the willingness and commitment of federal officials to find and prosecute health care fraud throughout the health care industry. The actions are the latest in a series of strong reminders to providers, leaders and others in the health care industry of the need to tighten compliance and risk management to minimize the risk of getting caught up in the Federal government’s ever-tightening health care fraud investigation and enforcement net.

The charges made against the 91 defendants in the indictments announced cover nearly the entire spectrum of healthcare providers for a variety alleged fraudulent schemes. The defendants charged are accused of various health care fraud-related crimes, including conspiracy to defraud the Medicare program, health care fraud, violations of the anti-kickback statutes and money laundering. The charges are based on a variety of alleged fraud schemes involving various medical treatments and services such as home health care, physical and occupational therapy, mental health services, psychotherapy and durable medical equipment (DME). HHS and Justice Department Officials warned these latest sweeping charges clearly signal the resolve of the federal government to find and prosecute health care fraud throughout the industry. Learn more details about September here.

According to the Justice Department and HHS, 70 individuals were charged by Strike Force prosecutors in indictments unsealed on September 6 and September 7, 2011 in six cities. The indictments allege a variety of Medicare fraud schemes involving approximately $263.6 million in false billings. As part of takedown operations last week, 18 additional defendants were charged in Detroit and one defendant was charged in Miami in cases unsealed on September 1, 2011, for their alleged roles in Medicare fraud schemes involving approximately $29.4 million in fraudulent claims. Additionally, two individuals are scheduled to appear in court on September 7, 2011 on charges filed on August. 24, 2011, for their roles in a separate $2 million health care fraud scheme. According to the September 7 announcement, this coordinated takedown involved the highest amount of false Medicare billings in a single takedown in Strike Force history.

According to court documents, the defendants located in Miami, Houston, Baton Rouge, Los Angeles and Detroit allegedly participated in a diverse array of schemes to submit claims to Medicare for treatments that were medically unnecessary and oftentimes never provided. In many cases, indictments and complaints allege that patient recruiters, Medicare beneficiaries and other co-conspirators were paid cash kickbacks in return for supplying beneficiary information to providers, so that the providers could submit fraudulent billing to Medicare for services that were medically unnecessary or never provided. Collectively, the doctors, nurses, medical professionals, health care company owners and others charged in the indictments and complaints are accused of conspiring to submit a total of approximately $295 million in fraudulent billing. If convicted, the defendants face a broad range of criminal, civil and administrative sanctions including imprisonment, criminal penalties, civil sanctions, federal program disqualification, state licensing board disciplinary action and other consequences.

Charges Part of Ongoing National Anti-Health Care Fraud Campaign

The Medicare Fraud Strike Force operations are part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country. The joint Department of Justice-HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of Medicare data analysis techniques and an increased focus on community policing. Since its announcement, the Strike Force has used the combined resources of agents from the FBI, HHS-Office of Inspector General (HHS-OIG), multiple Medicaid Fraud Control Units, and other state and local law enforcement agencies to investigate and prosecute a rising number of organizations and individuals throughout the industry for alleged violations of Federal health care fraud prohibitions. In their September 7, 2011 announcement, HHS and DOJ credited Strike Force Operations in nine locations with resulting in charges against more than 1,140 defendants who the government charged collectively falsely billed the Medicare program for more than $2.9 billion.

In addition, the HHS Centers for Medicare and Medicaid Services, working in conjunction with the HHS-OIG, are using a wide range of new and old tools in their campaign against what they perceive as fraudulent providers and to deter other perceived aggressiveness by health care providers and organizations. See e.g., U.S. to use software to crack down on Medicare, Medicaid, CHIP fraud; Health Care Fraud Enforcement Packs New Heat; OIG Shares Key Insights On When Owners, Officers & Managers Face OIG Program Exclusion Based On Health Care Entity Misconduct; OIG Launch of Health Care Fraud “Most Wanted” List Sign of Enforcement Risks; CMS Delegated Lead Responsibility For Development of New Affordable Care Act-Required Medicare Self-Referral Disclosure Protocol; HHS announces Rules Implementing Tools Added By Affordable Care Act to Prevent Federal Health Program Fraud.

Suspend payments to providers and suppliers based on credible allegations of fraud in Medicare and Medicaid;
Impose a temporary moratorium on Medicare, Medicaid, and CHIP enrollment on providers and suppliers when necessary to help prevent or fight fraud, waste, and abuse without impeding beneficiaries’ access to care.
Strengthen and build on current provider enrollment and screening procedures to more accurately assure that fraudulent providers are not gaming the system and that only qualified health care providers and suppliers are allowed to enroll in and bill Medicare, Medicaid and CHIP;
Terminate providers from Medicaid and CHIP when they have been terminated by Medicare or by another state Medicaid program or CHIP;
Require provider compliance programs, now required under the Affordable Care Act, that will ensure providers are aware of and comply with CMS program requirements.

Act To Manage Risks

For More Information Or Assistance

If you need assistance reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on OCR Civil Rights rules and enforcement actions. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Unions Get New Tool As NLRB Changes Bargaing Units Certification Rules For Non-Acute Health Care Facilities

September 1, 2011

Non-acute health care facility employers take note. The National Labor Relations Board has changed its approach for deciding what makes up an appropriate bargaining unit in nursing homes and other health care facilities which are not acute care hospitals. In addition, the Board clarified the criteria used in cases where a party argues that a proposed bargaining unit is inappropriate because it excludes certain employees for health care employees in these facilities. The newly announced position comes as unions feeling empowered by the union support of the Obama Administration increasingly are stepping up their organizing, bargaining, regulatory and other muscles against health industry and other employers. Non-acute health care facility and other health industry employers should take steps to manage these rising exposures.

Announcing the policy shift in its 3-to-1 decision in Specialty Healthcare and Rehabilitation Center of Mobile, the Board ruled that Certified Nursing Assistants (CNAs) at a nursing home may form an appropriate unit without including all other nonprofessional employees. The finding overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities.

Under the new criteria for deciding when healthcare workers in facilities other than acute care hospitals constitute an appropriate bargaining unit, employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces. The Board majority found that the 53 CNAs who sought an election in Specialty Healthcare constituted an appropriate unit, and remanded the case to the region to schedule an election.

In explaining its position change, the majority – Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce – wrote “We have concluded that the Park Manor approach to determining if a proposed bargaining unit in a nursing home is an appropriate unit has become obsolete, is not consistent with our statutory charge, and has not provided clear guidance to interested parties or the Board,”.

The decision also clarified that where an employer argues that a proposed unit inappropriately excludes certain employees, the employer will be required to prove that the excluded employees share “an overwhelming community of interest” with employees in the proposed unit. The Board majority write that test is drawn from Board precedent endorsed by the United States Court of Appeals for the District of Columbia Circuit, the decision noted.

Not all of the members of the Board agree with the new position. In dissent, Member Brian Hayes stated that he would adhere to Park Manor. “which established a balanced legal standard maintained in non-acute care health care unit cases without controversy for 20 years (and without any objection from the party seeking review in this case).”

He also disagreed that the majority’s statement of the community of interest test was consistent with precedent. In his view, “the majority accepts as the definitive standard for unit determinations in all industries an ‘overwhelming community of interest’ test that will make the relationship between petitioned-for unit employees and excluded co-workers irrelevant in all but the most exceptional circumstances. The wording of the test may be different, but in practical effect this is the standard espoused by the dissent and rejected by a Board majority in Wheeling Island Gaming, Inc. [355 NLRB No. 127 (2010)].”

Encouraged by the strong union support of the Obama Administration, unions increasingly are testing health industry and other employers. The Obama Administration has made pro-union legislation and regulation a priority. While health care and budget concerns thus far have slowed efforts by the Administration and Democratic Party supporters in Congress to adopt many legislative proposals intended to strengthen union power, the Administration is using its appointments to the National Labor Relations Board and regulatory and enforcement powers to support unions in other ways. This Administration support coupled with a series of recent National Labor Relations Board and court decisions extending protections both to union workers and those employees engaged in traditional organizing activities, as well as to unorganized workers in the context of certain disciplinary or other common workplace contexts are creating new responsibilities and challenges for employers in recognizing and managing liabilities arising under the National Labor Relations Act and other federal labor laws. Health industry and other employers should familiarize themselves with these changing standards and update their policies, practices and management training to promote their labor-management goals and avoid unintentionally triggering liability by violating these evolving standards.

For Help With Compliance, Investigations Or Other Needs

If you need help monitoring these or other labor-management relations, or other human resources, health care or related concerns developments, or to review or respond to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health industry clients and other businesses with labor-management, human resources, medical staff and peer review and other workforce matters, as well as a broad range of other health industry risk management and compliance concern as well as helping health industry claims with investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others including highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others.. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Health Care Employers Beat National Average When Offering Health Benefits To Workers

July 29, 2011

A new 2011 U.S. Department of Labor Bureau of Labor Statistics Study of employee benefits offered shares key insights into the availability of employer-provided health and other coverage.

With regard to health benefits, the report reveals that practices vary significantly among employers, on average, medical care benefits were available to 69 percent of private industry workers. 1/2 private industry workers participated in a medical plan. For single coverage, private sector employers paid 80 percent of the medical care premiums for full-time workers and 69 percent of medical care premiums for full-time workers in private industry. Data shows employees often elect not to take offered coverage.

The study shows that health and other benefits offered by employers and utilized by employees varies widely varied by whether the employer is a government or private sector employer, the industry, size and other characteristics of the employer and the income, profession, education and other characteristics of the employee. It is no surprise that government employers that can pass along costs to taxpayers provide coverage more broadly and subsidize more of the cost.

The report reveals that most health care employers offer health coverage and significantly subsidize the cost of this coverage for their workers. According to the report:

73 percent of private sector health care workers are offered health coverage by their employers;
52 percent of health care workers participate in employer provided health care coverage;
The take up rate by private sector health industry workers for employer provided coverage is 72 percent.

The report also shows that private sector health care employers on average paid 81 percent of single coverage health coverage costs, and only required employees to contribute an average of 19 percent of the cost for their single coverage.

In addition to data on medical benefits, the study also reports that paid leave remains the most commonly provided benefit nationally and includes data on other benefits.

The DOL highlights 1st time reporting of domestic partner status for 1st time in its announcement. Data also provided on paid vacation and other leave.

Read report summary and access report at http://www.bls.gov/news.release/ebs2.nr0.htm.

For Help or More Information

If you have questions or need help understanding or responding to the Regulations, with other health benefit design, administration or operations concerns, or with other employee benefits, compensation, labor or employment or other workforce management concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.

Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, and a council member of the ABA Joint Committee on Employee Benefits, Vice President of the North Texas Healthcare Compliance Professionals Association, Exempt Organizations Coordinator of the Gulf States Area TEGE Council, and Executive Director of the Project COPE: Coalition On Patient Empowerment, Ms. Stamer is nationally recognized for her more than 23 years pragmatic and innovative health program work.

Board certified in labor and employment law by the Texas Board of Legal Specialization with extensive leading edge health care, human resources and employee benefits experience.

For more than 24 years, Ms. Stamer has worked with health care providers, payers, government and charitable agencies, policymakers and others on managing health, insurance and employee benefits, practices, people, performance, costs, performance and policy. In the health care industry, Ms. Stamer works extensively with hospitals, physician practices, skilled nursing, hospice, and other health care providers to manage their people, compliance, quality and operations. Along side this work, Ms. Stamer also has worked extensively in the payor community on product design, administration, quality, contracting, compliance, public policy and other concerns. As part of this work, she has worked continuously throughout her career helping self-insured and insured, public and private health plan sponsors, fiduciaries, administrators, insurers and others design, administer and defend health and other employee benefit and insurance programs domestically and internationally. She is widely recognized for her experience helping design and implement legally compliant self-insured and insured health reimbursement, mini-med, high-deductible health plans, limited benefit plans, 24-hour and occupational medicine, Medicare and Medicaid Advantage, ex-pat and medical tourism, deductible reimbursement and other creative health benefit programs to solve a wide range of financial and other challenges while coping with changing regulatory and market realities. Her work includes both working with clients to design, document, implement and administer these and other arrangements, as well as the development of wellness and disease management, claims administration and appeals, eligibility, and other administrative services, processes and technologies. Ms. Stamer regularly represents and defends these and other clients in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Internal Revenue Service, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of health care, insurance, labor and employment, employee benefit, human resources, internal controls, privacy and data security, board governance and other related risk management matters. Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association,the American Bar Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, Modern Healthcare, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, World At Work, the ICEBS, SHRM and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

For assistance with assessing or defending your current worker classification, wage and hour or other health care and human resources policies and controls, please contact Cynthia Marcotte Stamer at cstamer@solutionslawyer.net, 972-419-7188..

For More Information or Assistance

Board Certified in Labor and Employment Law, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising physicians, hospitals and other health industry, assisted living, educational and other clients about human resources, employee benefits and compensation, regulatory compliance and enforcement, quality assurance, peer review, licensing and discipline, and other medical staff performance matters. She continuously advises health industry clients about the use of technology, process and other mechanisms to promote compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational needs. As part of this experience, she has worked extensively with health care providers, payers, health care technology and consulting and other health industry clients, as well as other businesses, on privacy, data security, trade secret and related matters. A popular lecturer and widely published author on health industry concerns, Ms. Stamer also publishes and speaks extensively on health care compliance, staffing and human resources, compensation and benefits, technology, medical staff, public policy, reimbursement, privacy, technology, and other health and managed care industry regulatory, and other operations and risk management concerns for medical societies and staffs, hospitals, the HCCA, American Bar Association, American Health Lawyers Association and many other health industry groups and symposia. Her highly popular and information packed programs include many highly regarded publications on HIPAA, FACTA, medical confidentiality, state identity theft and privacy and other many other related matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. To review some of her many publications and presentations, or for additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

Other Recent Developments

If you found this information of interest, you also may be interested in reviewing some of the following recent Updates available online by clicking on the article title:

For More Information

We hope that this information is useful to you. You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

Texas Doctor, Pharmacy Suspension Reminder of Pain Management Prescribing Risks

May 17, 2011

On January 14, 2011, a disciplinary panel of the Texas Medical Board (TMB) temporarily suspended the medical license of Julia Renee Ward, M.D. of Houston, after determining that Dr. Ward’s continuation in the practice of medicine presents a continuing threat to the public welfare. Physicians, pharmacists and others involved in pain treatment should resist the temptation to allow the allegations of extreme misconduct by Ward, others to blind them to the need for special precautions when prescribing or administering pain management or other controlled substance treatments.

Ward Pain Management Suspension

According to a January 18, 2011 TMB Press Release, TMB issued the Order of Temporary Suspension (Without Notice of Hearing) based on Dr. Ward’s operation of a pain management clinic, Tejas Urgent Care Clinic, without the certification required by law; failure to practice medicine in an acceptable, professional manner; inappropriate prescribing of controlled substances; and unprofessional or dishonorable conduct. The suspension took immediate effect. Previously, the medical board denied certification of Tejas Clinic in Houston, based on the clinic’s partial ownership by a non-physician.

According to the Press Release, TMB and Texas State Board of Pharmacy investigators staked out the clinic and observed several vehicles, some with out-of-state license plates, dropping off and picking up small groups of patients throughout the day. TMB says investigators observed four men who appeared to be patrolling the parking lot, directing patients to Tejas Clinic and H&W Pharmacy. Investigators reported the dropped-off patients would enter the clinic, exit about 20 minutes later, and then go to the pharmacy next door, H&W Pharmacy, to fill their prescriptions. Most of the prescriptions written by Dr. Ward were for hydrocodone, and a large number of prescriptions were for Xanax and Soma as well. The three drugs are a well-known combination commonly abused and diverted for sale to addicts.

According to the TMB Press Release, H&W Pharmacy’s license has since been suspended by the Texas State Board of Pharmacy, as has the license of H&W pharmacist Victor Egbulefu.

The Temporary Suspension Hearing Without Notice took place under the Board’s authority, granted by the Medical Practice Act, to suspend or restrict a physician’s license without notice when it determines the physician’s continuation in practice would constitute a continuing threat to the public welfare. Under TMB procedures, Ward has the opportunity to have a Temporary Suspension Hearing With Notice at least 10 days after notice of the suspension.

Physician Precautions Recommended For Pain Management Activities

Physicians and other health care providers should not allow the egregiousness of allegations underlying suspensions like those alleged committed by Ward to blind them to the importance of exercising special care when engaging in pain management activities. While medical practitioners, medical boards, the Drug Enforcement Agency, accreditation agencies and others increasingly recognize the appropriateness and need for legitimate pain management, physicians, pharmacies and others prescribing and delivering pain management must conduct these activities in a defensible manner. Physicians prescribing pain management remain accountable for demonstrating and documenting the therapeutic appropriateness of prescribed management including appropriate procedures to monitor and redress potential concerns about patient medication abuse or addition. See Texas Medical Board Rules §§ 170.1-170.3. As many pain management medications both are controlled substances, physicians prescribing these medications often must comply with special prescribing, documentation and other requirements under DEA, state medical board and other rules and ethical standards. See, e.g, DEA Cautions Practitioners Must Restrict Delegation of Controlled Substance Prescribing.

Missteps by providers in the prescription, documentation, or administration of pain management or other controlled substance prescriptions and treatment are frequently the basis of medical board and other disciplinary actions and civil, criminal and administrative enforcement actions by the Justice Department, DEA, Department of Health & Human Services and others. See e.g., Quality, Recordkeeping & Unprofessional Conduct Lead Reasons For Medical Board Discipline of Physicians; Texas Pain Management Physician and Psychiatrist Arrested on Federal Health Care Fraud Inditement; Pain and The Law.

To defend against these and other exposures, physicians and practices, pharmacies and pharmacists, and the hospitals and other organizations involved in the operation or management of physicians or pharmacists prescribing or dispensing pain management treatments should implement written delegation policies and other procedures to facilitate their ability to withstand DEA, medical board and other scrutiny and defend against a claim of improper conduct. As part of these efforts, prescribing practitioners should consider include:

Carefully and fully document the therapeutic need and appropriateness of the prescribed treatment including the medical justification, patient counseling, adherence to DEA and other standards and procedures, and monitoring for effectiveness, patient compliance and potential patient abuse.
Strictly complying with DEA requirements when prescribing controlled substances;
Ensure appropriate and well-documented physician assessment of patient pain and pain management treatment;
Abstain from or restrict delegation of pain management assessments or prescription of controlled substance except in strict and clearly documented compliance with DEA rules and all otherwise applicable regulations and care standards;
Adopting and following written policies and procedures governing the prescription and handling of pain management and other controlled substances including the scope of allowable delegation of communication functions;
Requiring physicians, pharmacists and others participating in pain management or other controlled substance ordering or treatment to participate in specific, documented training and enter into signed written agreements acknowledging knowledge of and agreement to comply with pain management, controlled substance and other relevant policies and requirements;
Monitoring of prescribing and other dealings with controlled substances for potential noncompliance;
Careful documentation of all activities involved with the prescription and handling of controlled substances or their prescriptions;
Carefully restricting the individuals that with or without authorization could participate in the prescription or handling of controlled substance;
Requiring drug and alcohol testing of physicians and other staff with involvement in the prescription or handling of controlled substance or who otherwise might be in a position to access the materials used in this process;
Conducting appropriate training of DEA-authorized practitioners and their support staff regarding the appropriate procedures for handling and prescribing controlled substances;
Conducting periodic background checks of physicians, pharmacists, staff and others who might participate in the prescription of or otherwise be in a position to access controlled substances or the tools for their access or prescription pursuant to written authorizations designed to comply with applicable Federal Trade Commission credit check and other relevant laws;
Avoiding relationships and dealings involving prescribers, pharmacies, investors or others with questionable backgrounds or involving relationships that might create heightened exposures or appearances of impropriety; and
Investigating and promptly redressing any known or suspected violation of DEA mandated or other policies regarding the prescription or handling of controlled substances.

For Help With Compliance, Investigations Or Other Needs

IIf you need assistance reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including her highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

5/18 Deadline to Register For 5/19 CMS Provider Call on Medicare and Medicaid EHR Meaningful Use Incentive Programs

May 17, 2011

Wish you knew more about how to use electronic health records (EHRs) to earn incentive payments from the Centers for Medicare & Medicaid Services (CMS)? CMS plans to host a national provider education call to help you learn more about meaningful use on Thursday, May 19 at 2:30 p.m. EDT. During the call, CMS plans to discuss:

The definition of meaningful use
The requirements for Stage 1 of meaningful use (2011 and 2012)
How to attest to having met meaningful use
Overview of the meaningful use objectives specification sheets
- Stage 1 EHR Meaningful Use Specification Sheets for Eligible Professionals
- Stage 1 EHR Meaningful Use Specification Sheets for Eligible Hospitals
Q&A about meaningful use

In order to receive the call-in information, you must register for the call. It is important to note that if you are planning to sit in with a group, only one person needs to register to receive the call-in data. This registration is solely to reserve a phone line, NOT to allow participation. Registration will close at 2:30 p.m. EDT on May 18, 2011, or when available space has been filled. No exceptions will be made, so please be sure to register prior to this time. In order to register, you should:

Visit the registration page.
Fill in all required information and click “Register.”
You will be taken to the “Thank you for registering” page and will receive a confirmation email shortly thereafter. Please save this page in case your server blocks the confirmation emails. (If you do not receive the confirmation email, check your spam/junk mail filter as it may have been directed there.)
If assistance for hearing impaired services is needed, please email medicare.ttt@palmettogba.com no later than three business days before the call.

Prior to the call, presentation materials will be made available in the “Upcoming Events” section of the Spotlight page on the CMS EHR website.

Want more information about the EHR Incentive Programs?
Make sure to visit the EHR Incentive Programs website for the latest news and updates on the EHR Incentive Programs.

Sixty-two Regional Extension Centers (RECs) across the nation are prepared to offer customized, on-the-ground assistance for eligible professionals and hospitals registering for the CMS EHR Incentive Programs. To locate an REC near you, visit http://www.healthit.

In addition to the May 10 call, recordings of various other recent health information privacy and data security training offered by agencies within the Department of Health and Human Services also now is avaialble on the web. For instance, the National Institute of Standards and Technology (NIST) and the Office for Civil Rights (OCR) are making presentations from the 4th annual conference on “Safeguarding Health Information: Building Assurance through HIPAA Security” co-hosted in Washington, D.C. on May 10 & 11, 2011 available on line for review. The training is part of a series of continuing efforts by the agencies to outreach to various parties on the Privacy and Security Rules of the Health Insurance Portability & Accountability Act of 1996, as amended (HIPAA). Meanwhile, OCR’s Susan McAndrew on Monday shared insights on OCR’s HIPAA regulatory and enforcement agenda at a teleconference to be hosted by the American Bar Association Joint Committee on Employee Benefits at Noon Central on May 16, 2011. Recordings of these presentations are or will be accessible on the sponsoring organizations from their websites. For details about reviewing the May 10-11 presentations, see the 2011 HIPAA Conference website here. For details about the May 16 teleconference, see here.

For Help With Monitoring Developments, Compliance, Investigations Or Other Needs

If you need assistance monitoring federal health reform, policy or enforcement developments, or to review or respond to these or other health care or health IT related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. On May 3, 2011, Ms. Stamer served as the appointed scribe for the ABA Joint Commitee on Employee Benefits Agency meeting with OCR and will moderate a teleconference featuring comments by OCR’s Susan McAndrew for the Joint Committee on Employee Benefits scheduled for May 16. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others including highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others.. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

Leave a Comment » | Academic medicine, ASC, DEA, Disease Management, DME, Doctor, Electronic Health Records, Electronic Medical Records, Employer, Genetic Information, GINA, Health Care Provider, Health IT, Health Plan, HIPAA, HITECH Act, Hospital, Medicaid, Medicare, Medicare Advantage, Medicare Fee Schedule, Mental Heatlh, OCR, Physician | Tagged: Health Care, HIPAA, Medical Confidentiality, OCR< Privacy, Security | Permalink
Posted by Cynthia Marcotte Stamer

OCR/NIST Share Training Online, OCR’s McAndrew To Speak On May 16 Teleconference

May 10, 2011

The National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (HHS), Office for Civil Rights (OCR) are making presentations from the 4th annual conference on “Safeguarding Health Information: Building Assurance through HIPAA Security” co-hosted in Washington, D.C. on May 10 & 11, 2011 available on line for review. The training is part of a series of continuing efforts by the agencies to outreach to various parties on the Privacy and Security Rules of the Health Insurance Portability & Accountability Act of 1996, as amended (HIPAA). Meanwhile, OCR’s Susan McAndrew is scheduled to share insights on OCR’s HIPAA regulatory and enforcement agenda at a teleconference to be hosted by the American Bar Association Joint Committee on Employee Benefits at Noon Central on May 16, 2011.

The Security Rule sets federal standards to protect the confidentiality, integrity and availability of electronic protected health information by requiring HIPAA covered entities and their business associates to implement and maintain administrative, physical and technical safeguards. Presentations cover a variety of current topics including updates on HHS health information privacy and security initiatives, OCR’s enforcement of health information privacy and security activities, integrating security safeguards into health IT and security automation, insider threat trends and safeguards, and more.

The conference is designed to explore the current health information technology security landscape and the Health Insurance Portability and Accountability Act (HIPAA) Security Rule, the agencies share their practical strategies, tips and techniques for implementing the HIPAA Security Rule.

For details about reviewing the May 10-11 presentations, see the 2011 HIPAA Conference website here. For details about the May 16 teleconference, see here.

For Help With Monitoring Developments, Compliance, Investigations Or Other Needs

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ONC Touts Research On Health IT Benefits In Health Affairs Article

March 20, 2011

Researchers from the Office of the National Coordinator for Health Information Technology (ONC) and other Department of Health & Human Services (HHS) leaders are touting new studies they say show the benefits of investing in health information technology (health IT).

Under the Health Information Technology for Economic and Clinical Health Act (HITECH), part of the American Recovery and Reinvestment Act of 2009, as much as $27 billion Medicare and Medicaid incentive payments will be available to eligible professionals, eligible hospitals, and critical access hospitals when they adopt certified EHR technology and successfully demonstrate “meaningful use” of the technology in ways that improve quality, safety, and effectiveness of patient-centered care.

On March 8, 2011, ONC researches reported results of a comprehensive review of recent studies it says show the effects of health IT on key aspects of health care on the ONC website and in Health Affairs.

According to Donald Berwick, M.D., administrator of the Centers for Medicare & Medicaid Services, the study supports the investments that the HITECH Act makes in health IT. “These new findings are very significant in helping to confirm that our Nation has made the right choice in moving aggressively toward adoption of health information technology,” said Dr. Berwick. “These new findings are very significant in helping to confirm that our Nation has made the right choice in moving aggressively toward adoption of health information technology.”

The review included articles published from July 2007 up to February 2010, following up on earlier reviews of articles from 1995 to 2004 and from 2004 to 2007. This latest review initially surveyed more than 4,000 peer-reviewed articles, of which 154 were found qualified for the parameters of the study, a number similar to the previous efforts. In addition to quality and efficiency of care, the authors categorized additional outcomes including access to care, preventive care, care process, patient safety, and provider or patient satisfaction.

According to the authors, a current review of 154 peer-reviewed studies from July 2007 to February 2010 found:

More than 92 percent reached positive overall conclusions on the effects of health IT;
30 percent found mixed but predominantly positive results; and
Ten articles were found to have negative or mixed-negative results.

ONC reports that the review also reflected a new balance of evidence between HIT “leader” organizations and other entities, especially smaller medical practices. In previous years, much evidence has come from the “leaders.” The current review shows increased evidence of benefits for others as well.

Examples of positive results highlighted by ONC in its reports include:

One study found that at three New York City dialysis centers, patient mortality decreased by as much as 48 percent while nurse staffing decreased by 25 percent in the three years following implementation of electronic health records (EHRs).
In an inpatient study, a clinical decision support tool designed to decrease unnecessary red blood cell transfusions reduced both transfusions and costs, with no increase in patient length-of-stay or mortality.
Another study addressing HIT in 41 Texas hospitals found that hospitals with more advanced HIT had fewer complications, lower mortality and lower costs than hospitals with less advanced HIT.

ONC researchers report that negative findings in the study were most often associated with provider or staff satisfaction related to difficulties in the process of transitioning from paper-based to electronic-based records and care. The researchers conclude these findings “highlight the need for studies that document the challenging aspects of implementing HIT more specifically and how these challenges might be addressed,” such as through strong leadership or staff participation when adopting and implementing HIT.

Reflecting on the findings, Surgeon General Regina Benjamin, M.D., said, “My own personal experience in switching my practice from paper to EHRs showed that the change requires some initial effort; however, it did not interrupt work flow in the clinic. The results are better care for patients and new opportunities for the physician and staff to improve quality outcomes.” Dr. Benjamin switched to EHRs in her Gulf Coast Alabama family practice after two hurricanes and a fire destroyed the clinic’s paper records.

At the Agency for Healthcare Research and Quality, where research into health informatics has been supported since 1968, agency Director Carolyn Clancy, M.D., called attention to the importance of rapid information feedback and current evidence as the Nation pursues HIT implementation. “As we have known, and this new review of the available literature shows, HIT holds tremendous potential to improve health care quality. It is important that we continue to use experience from the field and scientific evidence to guide our efforts to improve the quality and safety of health care for all Americans.”

For Help With Monitoring Developments, Compliance, Investigations Or Other Needs

If you need assistance monitoring federal health reform, policy or enforcement developments, or to review or respond to these or other health care or health IT related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others including highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others.. Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

Leave a Comment » | DME, Doctor, E-Prescribing, Electronic Health Records, Electronic Medical Records, Federal Health Center, Health Care, Health Care Fraud, Health Care Provider, Health Care Quality, Health Care Reform, Health IT, Health Plan, Health Plans, HITECH Act, Hospital, Hospital, Laws, Meaningful Use, Medicaid, Medicare, Medicare Advantage, Physician, Public Policy, Reimbursement | Tagged: EHR, Electronic Health Records, Electronic Medical Records, EMR, Health Care, Health IT, Health Technology, Heatlh Care Reform, HITECH Act, ONC | Permalink
Posted by Cynthia Marcotte Stamer

States Get More Info On Affordable Care Act Medicaid Eligibility Maintenance Of Effort; Payers & Providers Must Monitor

March 7, 2011

On February 27, 2011, Department of Health and Human Services Secretary Kathleen Sebelius issued a new letter and a frequently asked questions (FAQ) document that explain Medicaid and Children’s Health Insurance Program (CHIP) provisions in the Affordable Care Act in ways that afford greater flexibility to States. The new guidance clarifies aspects of the maintenance of effort (MOE) rules for Medicaid and CHIP. According to HHS, added guidance will follow. In these turbulent financial times, states are likely to welcome guidance that allows them more flexibility. While HHS and the states work out the detaails of these rules, health care providers and health plans also must keep a close eye out for developments that may require changes in enrollment or coverage coordination procedures to ensure their ability to comply with these evolving requirements.

The Medicaid MOE provision in the Affordable Care Act generally ensures that States’ eligibility rules for adults under the Medicaid program remain in place pending implementation of eligibility rules changes that become effective in January 2014. The MOE provision for children extends to 2019.

The letter and supporting FAQ document released February 27, 2011 address three aspects of the MOE provisions:

The MOE exemption for higher-income adult populations in States that are experiencing budget deficits. Under the Affordable Care Act, if a State has or projects a budget deficit, the MOE provision does not apply to adults who are not eligible for coverage on the basis of pregnancy or disability and whose incomes are above 133 percent of the Federal poverty level. The FAQ document explains State options and how States can seek this exemption.
The implication of the MOE provision on Section 1115 demonstration projects. Some States cover groups of people under Medicaid through a Section 1115 demonstration. As explained in the FAQ document, the MOE provision generally applies to these waivers and demonstrations. However, waivers and demonstration are, by their terms, time limited. The guidance clarifies that the MOE provision does not require States to seek a new or renewed waiver after the expiration of their waiver or demonstration.
How premiums are treated under the MOE requirements. Because premiums and premium increases have an impact on eligibility, previous guidance under the Recovery Act explained that new or increased premiums were considered to be a violation of the Recovery Act MOE requirement. Because the period during which the Affordable Care Act MOE provisions apply is considerably longer than the MOE period under the Recovery Act, this new guidance offers States additional flexibility relating to premiums and the MOE requirements under the Affordable Care Act. This will help a number of States that have been requesting the ability to adjust premiums for populations such as children in CHIP with family incomes above 150 percent of the Federal poverty line.

For Help With Compliance, Investigations Or Other Needs

If you need assistance responding to or monitoring changes in Medicaid, CHIP or other federal or state health program eligibility rules or dealing with other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies and to respond to OCR, FTC, medical board and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on Medicare quality and other compliance concerns. Her publications and insights on HIPAA and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Health Care Providers Brace For New HIPAA Enforcement As OCR Announces Hospital Resolution Agreement Requiring $1 Million Settlement Payment

February 25, 2011

Announcement Made 2 Days After OCR Announces $4.3 Million HIPAA Civil Penalty Against Cignet

General Hospital Corporation and Massachusetts General Physicians Organization Inc. (Mass General) has agreed to pay the U.S. government $1,000,000 to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. The incident giving rise to the agreement involved the loss of protected health information (PHI) of 192 patients of Mass General’s Infectious Disease Associates outpatient practice The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) announced the Resolution Agreement two days after announcing that its first official assessment of a civil monetary penalty CMP under HIPAA – a $4.3 million against Cignet Health of Prince George’s County, Md., (Cignet). Read more details here

HIPAA Privacy Rule restricts the use, access and disclosure by covered entities of PHI and other individually identifiable health care information to those outlined within the Rules. Under HIPAA covered entities also are responsible for establishing and enforcing policies and procedures that safeguard PHI against improper use, access or disclosure by employees, business associates, and other third parties. Noncompliance with the Privacy and Security Rules exposes a covered entity to criminal prosecution and penalties, civil penalties or both. The Privacy Rule requires health plans, health care clearinghouses and most health care providers (covered entities) to safeguard the privacy of patient information, including such information during its disposal. Under amendments to HIPAA enacted under the HITECH Act, business associates now also are accountable and subject to direct liability for failing to comply with HIPAA’s requirements. Amendments to HIPAA under the HITECH Act, further expand the risks and responsibilities of health care providers and other covered entities.

Announced just two days before the Mass General Resolution Agreement, the Cignet CMP announced February 22, 2011 is the first CMP ever assessed by OCR under the HIPAA Privacy Rule. The assessment resulted after OCR found Cignet violated 41 patients’ HIPAA rights and committed other HIPAA violations. The $4.3 million CMP against Cignet applies the expanded HIPAA violation categories and increased HIPAA civil monetary penalty amounts authorized by HIPAA amendments made by Section 13410(d) of the Health Information Technology for Economic and Clinical Health (HITECH) Act. Read more details.

Even before the Mass General Resolution Agreement and Cignet CMP announcements, HIPAA Privacy exposures of covered entities for failing to comply with HIPAA already had risen significantly. While OCR had not assessed any civil monetary penalties against any covered entity for violation of HIPAA before Cignet, OCR’s collection of $1 Million from Rite Aid in a 2010 Resolution Agreement, $2.25 million from CVS Pharmacy, Inc. under a 2009 Resolution Agreement and $100,000 from Providence Health & Services under a 2008 Resolution Agreement demonstrated that covered entities could face significant civil liability for willful violations of the Privacy Rules. In addition to these civil enforcement actions by OCR, the Department of Justice has secured several criminal convictions or pleas under HIPAA’s criminal provisions. OCR data confirms that the covered entities involved in these actions included health care providers, health plans, and others. Coupled with the HITECH Act changes, these and other enforcement actions signal growing potential hazards for covered entities and their business associates that fail to properly manage their HIPAA compliance obligations and risks.

The Mass General and Cignet announcements and other enforcement actions demonstrate that OCR is moving forward on its announced plans to hold health plans, health care providers, health care clearinghouses (covered entities) and their business associates that violate HIPAA accountable. Added to other recent developments, the Mass General and Cignet enforcement actions demonstrate that OCR’s commitment to enforcing HIPAA and illustrate the significant exposures that covered entities and business associates risk by disregarding their HIPAA obligations.

As stated by OCR Director Georgina Verdugo when announcing the Mass General Resolution Agreement, stating, “We hope the health care industry will take a close look at this agreement and recognize that OCR is serious about HIPAA enforcement. It is a covered entity’s responsibility to protect its patients’ health information.”

“To avoid enforcement penalties, covered entities must ensure they are always in compliance with the HIPAA Privacy and Security Rules,” Verdugo added, “A robust compliance program includes employee training, vigilant implementation of policies and procedures, regular internal audits, and a prompt action plan to respond to incidents.”

Covered entities are urged to heed these warning by strengthening their HIPAA compliance and adopting other suitable safeguards to minimize HIPAA exposures. Health plans and other covered entities as well as their business associates should tighten privacy policies, breach and other monitoring, training and other practices to mitigate against exposures in light of recently tightened requirements and new enforcement risks. To minimize the potential that the health plan’s sharing of information with the employer will create or spread HIPAA or other privacy risks to the employer or members of its workforce, employers and other plan sponsors and members of their workforce also should take steps to ensure not only that their health plan documents, policies and procedures, as well as those policies and practices applicable to the employer, its human resources, and benefits advisors when accessing or handling health plan or other medical information on behalf of the employer, rather than the plan, are appropriately designed and administered.

Act To Manage HIPAA Exposures

In response to these expanding exposures, covered entities and their business associates should review the adequacy of their current HIPAA Privacy and Security compliance policies, monitoring, training, breach notification and other practices taking into consideration the Cignet, Rite Aid, Provident and CVS enforcement actions, emerging litigation and other enforcement data; their own and reports of other security and privacy breaches and near misses, and other developments to determine if additional steps are necessary or advisable. As part of these compliance and risk management efforts, most covered entities and their business associates will find it advisable to devote significant attention to the business associate relationship and its associated business associate agreements.

For Help With Investigations, Policy Review & Updates Or Other Needs

If you need assistance in auditing or assessing, updating or defending your HIPAA, or other health or other employee benefit, labor and employment, compensation, privacy and data security, or other internal controls and practices, please contact the author of this update, attorney Cynthia Marcotte Stamer at cstamer@solutionslawyer.net or at (469)767-8872.

The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on HIPAA and other privacy and data security, health plan, health care and other human resources and workforce, employee benefits, compensation, internal controls and related matters.

For more than 23 years, Ms. Stamer has counseled, represented and trained employers and other employee benefit plan sponsors, plan administrators and fiduciaries, insurers and financial services providers, third party administrators, human resources and employee benefit information technology vendors and others privacy and data security, fiduciary responsibility, plan design and administration and other compliance, risk management and operations matters. She also is recognized for her publications, industry leadership, workshops and presentations on privacy and data security and other human resources, employee benefits and health care concerns. Her many highly regarded publications on privacy and data security concerns include “Privacy Invasions of Medical Care-An Emerging Perspective.” ERISA Litigation Manual. BNA, 2003-2009; “Privacy & Securities Standards-A Brief Nutshell.” BNA Tax Management and Compliance Journal. February 4, 2005; “Cybercrime and Identity Theft: Health Information Security beyond HIPAA.” ABA Health eSource. May, 2005 and many others. She also regularly conducts training on HIPAA and other privacy and data security compliance and other risk management matters for a broad range of organizations including the Association of State and Territorial Healthcare Organizations (ASTHO), the Los Angeles County Health Department, a multitude of health plans and their sponsors, health care providers, the American Bar Association, SHRM, the Society for Professional Benefits Administrators and many others. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see www.CynthiaStamer.com or contact Ms. Stamer directly.

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Leave a Comment » | Academic medicine, ASC, Childrens Health Insurance Program, Doctor, Electronic Medical Records, Employment, Federal Health Center, Federal Sentencing Guidelines, Genetic Information, GINA, Health Care, Health Care Provider, Health Plan, Health Plans, HIPAA, HITECH Act, Hospital, Hospital, Indian Health, Medicare Advantage, Mental Heatlh, OCR, Pharmacy, Physician, Privacy, Rural Health Care | Tagged: Civil Monetary Penalties, HIPAA, Mass General, OCR, PHI, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

HHS Imposes 1st HIPAA Privacy Civil Penalty of $4.3 million

February 22, 2011

Health Care Providers Should Strengthen HIPAA Compliance & Defenses As Risks Rise

$4.3 million is the amount of the civil monetary penalty (CMP) that the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) has ordered Cignet Health of Prince George’s County, Md., (Cignet) to pay for violating the Health Insurance Portability & Accountability Act (HIPAA) Privacy Rule.

The first CMP ever assessed by OCR under the HIPAA Privacy Rule, the Cignet CMP assessment is the latest in a series of developments documenting the rising risks that health care providers, health plans, health care clearinghouses and their business associates (“covered entities”) face for violations of HIPAA. Covered entities and their business associates should tighten privacy policies, breach and other monitoring, training and other practices to mitigate against exposures in light of recently tightened requirements and new enforcement risks. Read more details.

Even before the announcement of the Cignet CMP, the HIPAA Privacy exposures of covered entities for failing to comply with HIPAA already had risen significantly. As of January 1, 2011, OCR reports that 12,781 of the cases it has investigated have been resolved by requiring changes in privacy practices and other corrective actions by the covered entities and has referred more than 484 Privacy Rule breach investigations to the Department of Justice for consideration for potential criminal prosecution.

While OCR had not assessed any civil monetary penalties against any covered entity for violation of HIPAA before Cignet, OCR’s collection of $2.25 million from CVS Pharmacy, Inc. under a 2009 Resolution Agreement and $100,000 from Providence Health & Services under a 2008 Resolution Agreement demonstrated the willingness of OCR to pursue significant civil remedies against covered entities that it determined willfully violated the Privacy Rules.

For Help With Compliance, Investigations Or Other Needs

If you need assistance auditing or tightening your existing HIPAA and other confidentiality practices or addressing other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer medical privacy and other compliance and risk management policies and to respond to OCR, FTC, medical board and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on Medicare quality and other compliance concerns. Her publications and insights on HIPAA and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

ONC Giving Small Critical Access And Rural Hospitals Added Electronic Health Records Funds

February 9, 2011

Dr. David Blumenthal, MD, MPP, national coordinator for health information technology in the Office of the National Coordinator for Health Information Technology (ONC) announced that ONC’s Regional Extension Center (REC) program will make available an additional $12 million in new technical support assistance to help critical access hospitals (CAHs) and rural hospitals adopt and become meaningful users of certified health information technology to provide a wide range of support services.

The new funds are intended to help the 1,777 critical access and rural hospitals in 41 states and the nationwide Indian Country, headquartered in the District of Columbia qualify for substantial EHR incentive payments from Medicare and Medicaid. For a listing of the award recipients for the grants announced today, see here. The intent of this supplement is to provide additional technical support to critical access and rural hospitals with fewer than 50 beds in selecting and implementing EHR systems primarily within the outpatient setting. This funding is in addition to the $20 million provided to RECs in September 2010 to provide technical assistance to the CAHs and Rural Hospitals.

The new funding is provided under the Health Information Technology Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009. The HITECH Act created the Medicare and Medicaid EHR incentive programs, which will provide incentive payments to eligible professionals, eligible hospitals, and CAHs that adopt and demonstrate meaningful use of certified EHR technology. Incentives totaling as much as $27.4 billion over 10 years could be expended under the program, which is administered by the Centers for Medicare & Medicaid Services. In addition, the HITECH Act provided $2 billion through ONC to support technical assistance, training, and demonstration projects to assist in the nation’s transition to EHRs.

The additional CAHs and rural hospital funding will be administered through ONC’s Regional Extension Center (REC) program. The RECs are specifically designed to offer a wide range of hands-on technical assistance, guidance, and information on best practices to support and accelerate health care providers’ efforts to become meaningful users of certified EHRs under the Medicare and Medicaid incentives programs. A total of 62 RECs are located throughout the country. This additional funding is being awarded 48 RECs serving CAH and rural hospitals provides in 41 states and the nationwide Indian Country.

Today’s $12 million round of awards will result in a total of approximately $32 million of funding provided to the RECs to support CAH health IT adoption.

A complete listing of REC grant recipients and additional information about the Health Information Technology Regional Extension Centers, see here.

For information about the Medicare and Medicaid EHR Incentive Programs, see here.

For More Information Or Assistance

If you need assistance with meaningful use or other EMR or other health technology, risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on Medicare quality and other compliance concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Health Care Employer’s NLRB Settlement Shows Care Necessary When Using Social Networking & Other Policies Restricting Employee Communications

February 7, 2011

Health care and other employers should exercise caution when drafting and applying policies regulating employee Facebook or other social networking site, e-mail, or other communications to avoid violating Federal labor laws protecting worker organization rights, as illustrated by a February 7, 2011 settlement agreement reached between a Connecticut ambulance service operator and the National Labor Relations Board (NLRB).

According to the NLRB, Connecticut ambulance service provider American Medical Response (AMR) and the NLRB have agreed to settle a complaint filed on October 27, 2010 that charged AMI with violating the National Labor Relations Act (NLRA) by firing an employee for making derogatory comments about her supervisor on Facebook.

In its complaint against AMR, the NLRB charged that AMR’s termination of an employee for making derogatory statements about her supervisor on Facebook violated the NLRA because the employee was engaged in protected activity under the NLRA when she posted the comments about her supervisor, and responded to further comments from her co-workers. The NLRB complaint also charged AMR maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of AMI’s settlement with the NLRB[i] approved February 7, 2011, AMI agreed:

To revise its employee handbook rules to avoid improperly restricting employees from discussing their wages, hours and working conditions with co-workers and others while not at work in violation of the NLRA;
Not to discipline or discharge employees for engaging in such discussions; and
Not to deny employee requests for union representation or threaten employees for requesting union representation in the future.

Federal labor law requires that employers tread carefully when dealing with communications by employees concerning terms and conditions of employment and other union or other organizational activity. Existing federal law limits the actions that employers can take to deter or influence employee choices about whether to support or oppose a union certification campaign, to influence the certification of one union representative over another and to deter or penalize employees for communicating about terms and conditions of employment.

Under the NLRA, for instance, employees generally may discuss the terms and conditions of their employment with coworkers. The protections afforded by the NLRB to employee communications about terms and conditions of employment can apply to both unionized and non-unionized employees and workforces. Subject to certain reasonable restrictions on communications within the workplace allowed by the NLRA, the NLRA generally restricts the ability of an employer to prohibit employees from communicating about terms and conditions of employment.

Worker awareness of these protections has grown in many workplaces as a result of a new policy requiring employers that are government contractors to post notification of NLRA rights in the workplace implemented by the Obama Administration in May, 2010, aggressive union organization efforts in the health care and certain other industries and other developments. As a consequence, health industry and other employers need to exercise care to avoid violating the NLRA and other federal labor laws when designing, communicating and applying social networking, e-mail, internet, and other policies that regulate on or off-duty communications by employees.

To minimize liability risks under the NLRA, health industry and other employers should consult with qualified labor and employment counsel before discussing or taking other action in response to these activities to minimize risks of unintentionally running afoul of these requirements. Employers should exercise care even if the communication restraint adopted to comply with legally mandated restrictions on communications such as those required by the privacy and security mandates of laws such as the Health Insurance Portability & Accountability Act (HIPAA). While the NLRA generally permits restrictions on communications required to comply with law, health industry and other employers should be prepared to demonstrate the legitimacy of the legal need and their tailoring of restrictions on employee communications to meet that need.

For Advice or Other Information

If your organization needs advice or assistance in responding to labor and employment issues in your health care organization or other health care matters, consider contacting the author of this article, Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is nationally known for her more work, training and presentations, and publications on health industry and other staffing and employment, compensation, regulatory, and other operations, risk management and compliance matters.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on health care, human resources, employee benefits, data security and privacy, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

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Posted by Cynthia Marcotte Stamer

Medicare Proposes To Require Providers To Notify Patients Of Quality Of Care Complaint Rights

February 7, 2011

The Centers for Medicare & Medicaid Services (CMS) is proposing to require most Medicare-participating providers and suppliers to give Medicare beneficiaries written notice about their right to contact a Medicare Quality Improvement Organization (QIO) with concerns about the quality of care they receive under the Medicare program.

Under current CMS rules, only beneficiaries admitted to hospitals as inpatients are required to receive information about contacting their state QIO regarding quality of care issues. The proposed rule published February 2, 2011 would significantly broaden the providers and suppliers that would be required to inform beneficiaries of their right to complain to a QIO about quality of care, as well as how to contact their local QIO as a condition of provider participation in the program.

For a list of the providers that CMS proposes to require to provide patient notification and other information, see here.

For More Information Or Assistance

If you need assistance reviewing or responding to these proposed rules or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on Medicare quality and other compliance concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Texas Doctor, Pharmacy Suspension Reminder of Pain Management Prescribing Risks

January 18, 2011

rd Pain Management Suspension

According to the TMB Press Release, H&W Pharmacy’s license has since been suspended by the Texas State Board of Pharmacy, as has the license of H&W pharmacist Victor Egbulefu.

Physician Precautions Recommended For Pain Management Activities

Carefully and fully document the therapeutic need and appropriateness of the prescribed treatment including the medical justification, patient counseling, adherence to DEA and other standards and procedures, and monitoring for effectiveness, patient compliance and potential patient abuse.
Strictly complying with DEA requirements when prescribing controlled substances;
Ensure appropriate and well-documented physician assessment of patient pain and pain management treatment;
Abstain from or restrict delegation of pain management assessments or prescription of controlled substance except in strict and clearly documented compliance with DEA rules and all otherwise applicable regulations and care standards;
Adopting and following written policies and procedures governing the prescription and handling of pain management and other controlled substances including the scope of allowable delegation of communication functions;
Requiring physicians, pharmacists and others participating in pain management or other controlled substance ordering or treatment to participate in specific, documented training and enter into signed written agreements acknowledging knowledge of and agreement to comply with pain management, controlled substance and other relevant policies and requirements;
Monitoring of prescribing and other dealings with controlled substances for potential noncompliance;
Careful documentation of all activities involved with the prescription and handling of controlled substances or their prescriptions;
Carefully restricting the individuals that with or without authorization could participate in the prescription or handling of controlled substance;
Requiring drug and alcohol testing of physicians and other staff with involvement in the prescription or handling of controlled substance or who otherwise might be in a position to access the materials used in this process;
Conducting appropriate training of DEA-authorized practitioners and their support staff regarding the appropriate procedures for handling and prescribing controlled substances;
Conducting periodic background checks of physicians, pharmacists, staff and others who might participate in the prescription of or otherwise be in a position to access controlled substances or the tools for their access or prescription pursuant to written authorizations designed to comply with applicable Federal Trade Commission credit check and other relevant laws;
Avoiding relationships and dealings involving prescribers, pharmacies, investors or others with questionable backgrounds or involving relationships that might create heightened exposures or appearances of impropriety; and
Investigating and promptly redressing any known or suspected violation of DEA mandated or other policies regarding the prescription or handling of controlled substances.

For Help With Compliance, Investigations Or Other Needs

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Posted by Cynthia Marcotte Stamer

Supreme Court Ruling Medical Resident Stipend Are Wages Highlights Advisability of Compliance Review

January 12, 2011

Stipends paid to medical residents to provide on patient care and other medical services for 40 or more hours per week as part of an accredited graduate medical education program are wages paid to employees for Federal Insurance Contributions Act (FICA) payroll taxes purposes and do not qualify as exempt from FICA tax or withholding as student stipends according to January 11, 201 U.S. Supreme Court ruling in Mayo Foundation v. U.S. Joining a growing series of rulings enforcing changing treatment of doctors and other healthcare workers, the decision is the latest reminder to health care providers and others of the need to critically review and update as necessary their organizations existing worker and wage characterization in light of evolving interpretations and the growing success of regulators and private plaintiffs in challenging these classifications.

In Mayo Foundation, the U.S. Supreme Court denied the plea of Mayo Foundation For Medical Education And Research (Mayo) that it overrule an Internal Revenue Service (IRS) Regulation that provides that medical students or others providing full-time services as part of their course of instruction do not qualify as “students” for purposes of the “student” exemption of Code § 3121(b)(10) regardless of whether “the services performed . . . may have an educational, instructional, or training aspect.” See Treas. Reg. §31.3121(b)(10)–2(d)(3)(iii). Mayo Foundation, the Supreme Court ruled against Mayo Foundation. It ruled the IRS’ regulation construing Code § 3121(b)(1) as inapplicable to medical students or other workers providing full-time services as part of a residency or other educational program should stand as Congress has not directly spoken to foreclose that interpretation and because the Treasury Department’s rule is a reasonable construction of what Congress has said.

Beyond its specific holding, the Mayo Foundation decision also serves as another reminder that health industry and other employers should not take the defensibility of their worker classification and associated income and payroll tax, employee benefit, employment and other practices for granted.

Recent developments send a clear message that health industry and other employers must remain constantly diligent about confirming and documenting the defensibility of their worker classifications and other associated practices in light of evolving rules and standards, enforcement, the growing frequency and success of regulators and private plaintiff challenges, and changing workforce practices of workers generally, and health care employers specifically. See e.g. Review of Worker Classification Needed As Classification Scrutiny Rises;Minimum Wage, Overtime Risks Highlighted By Labor Department Strike Force Targeting Residential Care & Group Homes; Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny; 250 New Investigators, Renewed DOL Enforcement Emphasis Signal Rising Wage & Hour Risks For Employers; Quest Diagnostics, Inc. To Pay $688,000 In Overtime Backpay.

The IRS, Department of Labor and other federal and state regulators are stepping up scrutiny of and enforcement of worker classifications and claims of exemption from applicable employment, tax and other requirements. In light of these and other developments, health industry and other employers should take reasonable steps to guard against these and other growing risks of worker misclassification and associated non-compliance. Health industry practices have been specifically targeted as part of many of these regulatory initiatives.

To minimize their potential exposure, health industry and other employers should consult with qualified legal counsel for advice within the scope of attorney-client privilege concerning the need to audit or otherwise act to strengthen the defensibility of their existing worker classification, employee benefit, fringe benefit, employment, wage and hour, and other workforce policies to mitigate exposures to potential IRS, Labor Department or other risks of worker misclassification or the handling of associated payroll, employment or other responsibilities.

For Help With Investigations, Policy Updates Or Other Needs

If you need assistance in conducting a risk assessment of or responding to IRS, Labor Department or other legal challenges to your health care organization’s existing workforce classification or other health care related risk management or compliance concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer.

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, the former Board Compliance Chair of the National Kidney Foundation of North Texas, and Board Certified In Labor & Employment Law, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

Minimum Wage, Overtime Risks Highlighted By Labor Department Strike Force Targeting Residential Care & Group Homes

December 16, 2010

The U.S. Department of Labor’s Wage and Hour Division has appointed a strike force to investigate violations of federal minimum wage, overtime, recordkeeping and child labor law by residential care and group homes in North Carolina. The announced strike force targeting violations in the Charlotte and Raleigh areas with the intention to expand the strike force actions statewide over the next 10 months highlights the growing risks that health and other caregivers face for wage and hour and other employment law violations.

Group homes, including those providing adult resident care, family care, assisted housing and special care, employ more than 7,000 workers in North Carolina. Wage and Hour Division officials project the strike force investigations will affect more than 1,700 workers in the Charlotte area and more than 400 workers in the Raleigh-Cary area.

In cases where a staffing or other middle-layer management company provides services to a residential care facility, Wage and Hour Division investigators will focus on determining whether both companies may be held jointly liable for violations. With multi-establishment enterprises, investigators will be looking to enter into enterprise-wide agreements that affect all operations of the parent corporation.

Misclassification of workers and inappropriate compensation time practices are common compliance concerns among employers generally and for health and caregiver industry employers particularly. As in other industries, these employers often overestimate the scope and applicability of the exempt classification, misclassify workers as independent contractors who are actually common law employees, overestimate their ability to provide “comp time” in lieu of overtime, misapply “on-call” policies, or misunderstand other FLSA requirements.

Wage & Hour Division Fact Sheets and other enforcement actions reflect that many health and other caregiver employers incur overtime and minimum wage violations because improperly classify workers as exempt or contractors, fail to properly count and pay for all hours that an employee works in accordance with the FLSA, fail to properly credit time spent traveling or on call, fail to credit time spent for required attendance at lectures, meetings, training programs, recordkeeping and similar activities, improperly deduct time for breaks, fail to properly credit on call time, and fail to pay for unauthorized hours worked. Enforcement of these requirements against health and other caregiver employers also is rising since the Wage & Hour Division has included employers in these industries among the industry groups targeted for special compliance monitoring under the FLSA and the highly-publicized implementation of updated FLSA regulations regarding the classification of workers a few years ago has peaked the interest of plaintiffs’ attorneys .

These mistakes can be very costly. Health industry and other employers that fail to properly pay employees under Federal and state wage and hour regulations face substantial risk. Violation of wage and hour mandates carries substantial civil – and in the case of willful violations, even criminal- liability exposure. Civil awards commonly include back pay, punitive damages and attorneys’ fees. As a consequence, health care and other employers should review and document the defensibility of their existing practices for classifying and compensating workers under existing Federal and state wage and hour laws and take appropriate steps to minimize their potential liability under applicable wages and hour laws.

Under the FLSA, an employer generally must pay an employee in accordance with the minimum wage and overtime requirements of the FSLA unless the employer can prove that the employee qualifies as “exempt” as a white collar employee under the DOL’s FLSA regulations. The FLSA mandates that the base hourly rate of pay of each “non-exempt” employee of not less than the current Federally-established minimum wage for each of the up to initial 40 hours of work performed by the employee in any workweek. Subject to certain limited exceptions, the FLSA’s overtime rules generally also mandate that “non-exempt” employees be paid overtime pay at a rate of not less than one and one-half times the regular rate of pay for hours in excess of 40 hours of work performed in a given work week. The regulations also provide guidance for determining when leased, contract or other non-traditionally employed workers will be treated as employees, for determining when an employer must treat “on-call” time, travel time, meal and break times, and certain other time periods as compensable hours worked by a non-exempt employee, when “comp time” in lieu of the payment of wages is permitted, various alternative methods for calculating overtime under certain special circumstances, and various other rules applicable to various special circumstances. In addition to these federal wage and hour requirements, employers also generally must comply with various state-imposed minimum wage, overtime, compensable time, paid break, and other rules governing the calculation and payment of wages to employees employed within the particular state in which the employee renders the services.

Under the FSLA and applicable state wage and hour laws, employers generally bear the burden of proving that they have properly paid their employees in accordance with the FLSA. Additionally, the FLSA and most applicable state wage and hour laws mandate that employers maintain records of the hours worked by employees by non-exempt employees, documentation of the employer’s proper payment of its non-exempt employees in accordance with the minimum wage and overtime mandates of the FLSA, and certain other records. Since the burden of proof of compliance generally rests upon the employer, health industry employers should take steps to ensure their ability to demonstrate that they have properly paid non-exempt employees in accordance with applicable FLSA and state wage and hour mandates and that employees not paid in accordance with these mandates qualify as exempt from coverage under the FLSA.

To minimize exposure under the FLSA, health care employers should review and document the defensibility of their existing practices for classifying and compensating workers under existing Federal and state wage and hour laws and take appropriate steps to minimize their potential liability under applicable wages and hour laws. Steps advisable as part of this process include, but are not necessarily limited to:

Conducting and audit of each worker current classified as exempt or a non-employee worker to assess its continued sustainability and to develop documentation justifying that characterization;
Update policies and procedures;
Review of existing practices for tracking compensable hours and paying non-exempt employees for compliance with applicable regulations and to identify opportunities to minimize costs and liabilities arising out of the regulatory mandates;
If the audit raises questions about the appropriateness of the classification of an employee as exempt, self-initiation of appropriate corrective action after consultation with qualified legal counsel;
Review of existing documentation and recordkeeping practices for hourly employees;
Explore available options and alternatives for calculating required wage payments to non-exempt employees;
Reengineer of work rules and other practices to minimize costs and liabilities as appropriate in light of the regulations;
Confirm the adequacy of recordkeeping and other documentation;
Audit and secure appropriate contractual assurance of the adequacy of wage and hour and other practices of staffing, leasing and other organizations providing supplemental workers to provide services; and
Verify the appropriateness or worker classification and compliance practices of workers providing services through a staffing, leasing or other arrangement where the worker is not treated as an employee of the employer.

Because of the potentially significant liability exposure, employers generally will want to consult with qualified legal counsel prior to the commencement of their assessment and to conduct the assessment within the scope of attorney-client privilege to minimize risks that might arise out of communications made in the course of conducting this sensitive investigation.

For More Information or Assistance

Other Recent Developments

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Posted by Cynthia Marcotte Stamer

Health Care Fraud Enforcement Packs New Heat

December 16, 2010

As part of ongoing efforts to prevent and fight health care fraud, US Department of Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder today announced that the Centers for Medicare and Medicaid Services (CMS) plans to acquire and new state-of-the-art predictive modeling fraud fighting analytic tools to prevent wasteful and fraudulent payments in Medicare, Medicaid and the Children’s Health Insurance Program before they occur As Sebelius and Holder made the announcement at a Fraud Prevention Summit held at the University of Massachusetts in Boston, CMS issued a solicitation for state-of-the-art fraud fighting analytic tools to help the agency predict and prevent potentially wasteful, abusive or fraudulent payments before they occur. These actions come as CMS and the Justice Department are touting record recoveries from already ongoing enforcement actions.

CMS intends to use these new tools into the National Fraud Prevention Program and to complement and expand fraud detection and enforcement work and practices utilized by the joint HHS and Department of Justice Health Care Fraud Prevention and Enforcement Action Team (HEAT) in recent years.

CMS is already starting to take administrative action to stop payments in various pilot programs or other anti-fraud initiatives. The move to acquire and use additional predictive model tools comes as CMS is implementing new and expanded health care fraud detection and enforcement authority provided in the Patient Protection and Affordable Care Act (Affordable Care Act). CMS and the Justice Department are moving aggressively to take advantage of these new powers and resources. In recent months HHS founded the new Center for Program Integrity within CMS would focus on identifying and stopping fraud and acting swiftly to protect beneficiaries. It also proposed new rules implementing enhanced health care fraud investigation and enforcement powers enacted as part of the Affordable Care Act.

Meanwhile, CMS and the Justice Department have continued to aggressively investigate and prosecute suspected health care fraud. Already, stepped up fraud enforcement efforts have produced significant recoveries. In Fiscal Year 2010, the Department of Justice obtained settlements and judgments of more than $2.5 billion in False Claims Act matters alleging health care fraud. This is more than ever before obtained in a single year, up from $1.68 billion in Fiscal Year 2009.

In light of these developments, health care providers should tighten billing and other compliance practices and monitoring of enforcement and other oversight activities by CMS and the Justice Department. Get more details here.

For Assistance

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising physicians, hospitals and other health industry clients about regulatory compliance and enforcement, quality assurance, peer review, licensing and discipline, and other medical staff performance matters. She continuously advises health industry clients about the use of technology, process and other mechanisms to promote compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational needs. As part of this experience, she has worked extensively with health care providers, payers, health care technology and consulting and other health industry clients, as well as other businesses, on privacy, data security, trade secret and related matters. A popular lecturer and widely published author on health industry concerns, Ms. Stamer also publishes and speaks extensively on health care compliance, staffing and human resources, compensation and benefits, technology, medical staff, public policy, reimbursement, privacy, technology, and other health and managed care industry regulatory, and other operations and risk management concerns for medical societies and staffs, hospitals, the HCCA, American Bar Association, American Health Lawyers Association and many other health industry groups and symposia. Her highly popular and information packed programs include many highly regarded publications on HIPAA, FACTA, medical confidentiality, state identity theft and privacy and other many other related matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. To review some of her many publications and presentations, or for additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

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Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

President Signs Long-Sought Red Flag Rule Exemption Into Law

December 9, 2010

Allowing customers or clients to pay for services and supplies over time will not cause doctors, dentists, hospitals, veterinarians, and other health care providers, lawyers, accountants, consultants and other service providers to be required to comply with the burdensome “Red Flag Rules” of the Fair and Accurate Credit Transactions Act of 2003 (FACTA) after all. President Obama earlier today (December 9, 2010) signed into law the “Red Flag Program Clarification Act of 2010 (S. 3987/H.R. 6420) (Act), which exempts businesses engaging in these limited financing transactions from the obligation to comply with the Red Flag Rule’s identity theft monitoring and prevention requirements.

FACTA’s Red Flag Rules generally require “creditors” to comply with burdensome identity theft prevention and monitoring rules issued by the Federal Trade Commission (FTC). Before the Act became law today, FTC regulations set to take effect December 31, 2010 construed health care providers, attorneys, consultants or other service providers as covered creditors simply if they allowed customers finance and pay charges to the service provider over time. Despite widespread outcry over this interpretation, efforts to overturn this interpretation had proven unsuccessful until recent weeks.

The Act intended by Congress to make clear that doctors, dentists, orthodontists, pharmacists, veterinarians, accountants, nurse practitioners, social workers, other types of health care providers, lawyers and other service providers will no longer be classified as ‘creditors’’ for the purposes of the Red Flags Rules just because they do not receive payment in full from their clients at the time they provide their services, when they don’t offer or maintain accounts that pose a reasonably foreseeable risk of identity theft.

As amended by the Act, the Red Flag Rule’s definition of “creditor” generally will continue to apply to a person who obtains or uses consumer reports in connection with a credit transaction, furnishes information to consumer reporting agencies in connection with credit transactions, or advances funds based on the recipients obligation to repay (or permit the funds to be repaid through specific property of the recipient), or otherwise is a creditor that the Federal Trade Commission (FTC) by rule determines should be covered as a creditor that offers or maintains accounts subject to a reasonably foreseeable risk of identity theft. However, a person that only “advances funds on behalf of a person for expenses incidental to a service provided by the creditor to that person” now is expressly excluded from the definition of “creditor” for purposes of the Red Flag Rules.

The Act’s passage follows a multi-year battle by health care providers and other professional services providers to reverse the FTC’s interpretation of the Red Flag Rules as applicable to service providers that allow customers and clients to pay for services and supplies over time. The outcry about the FTC’s interpretation of the scope of the rules and the perceived cost and complexity of their provisions lead the FTC to delay implementation several times. See e.g., Health Care Red Flag Rule Compliance Deadline Extended To August 1; Prompt Action Still Required.

Congressional action to overturn the interpretation took wings beginning in November. After the Senate passed S. 3987, on November 30, 2010, the House of Representatives acted quickly to send the Act to the President for signature by approving H.R. 6420 on December 7.

The relief provided under the Act is particularly welcomed by health care providers, who already face significant civil and criminal liability exposures under the health-industry specific privacy and data security requirements of the Health Insurance Portability & Accountability Act (HIPAA). See CVS Settles Privacy Charges; Rite Aid Agrees to Pay $1 Million to Settle HIPAA Privacy Case As Office of Civil Rights Proposes Tighter HIPAA Privacy & Security Regulations; 2 New HIPAA Criminal Actions Highlight Risks From Wrongful Use/Access of Health Information.

While the Act exempts these limited transactions from the Red Flag Rules, businesses should avoid underestimating the scope of relief provided. Even with the new exemption, these and other businesses generally face significant responsibilities and risk under other federal electronic crimes, and other federal and state data security, identity theft and other laws and precedent, as well as pursuant to contractual commitments incorporated into a broad range of agreements in response to FACTA, HIPAA and other risk management concerns. Unless they take action to reform contracts and policies, health industry and other services covered by the new exemption generally may face contractual obligations to continue to comply with many of the Red Flag Rule mandates under contractual commitments incorporated into various agreements in anticipation of the effective date of the Red Flag Rule requirements. Health industry and other businesses expecting to enjoy relief from the Red Flag Rules as a result the Act should review contractual and other obligations to properly understand their continuing legal responsibilities and, where warranted, consider revising contracts and policies to remove or adjust provisions incorporated solely in anticipation of Red Flag Rules mandates. Health care providers and other businesses that fail to take these and other appropriate steps to clean up their contracts and procedures risks unnecessarily obligating themselves to continue to comply with rules despite their exemption from these legal mandates.

For More Information or Assistance

If you need assistance evaluating or responding the health industry or other privacy and data security concerns or other technology and process, compliance, risk management, transactional, operational, enforcement or public policy concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (469) 767-8872, cstamer@Solutionslawyer.net.

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising physicians, hospitals and other health industry clients about quality assurance, peer review, licensing and discipline, and other medical staff performance matters. She continuously advises health industry clients about the use of technology, process and other mechanisms to promote compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational needs. As part of this experience, she has worked extensively with health care providers, payers, health care technology and consulting and other health industry clients, as well as other businesses, on privacy, data security, trade secret and related matters. A popular lecturer and widely published author on health industry concerns, Ms. Stamer also publishes and speaks extensively on health care staffing and human resources, compensation and benefits, technology, medical staff, public policy, reimbursement, privacy, technology, and other health and managed care industry regulatory, and other operations and risk management concerns for medical societies and staffs, hospitals, the HCCA, American Bar Association, American Health Lawyers Association and many other health industry groups and symposia. Her highly popular and information packed programs include many highly regarded publications on HIPAA, FACTA, medical confidentiality, state identity theft and privacy and other many other related matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. To review some of her many publications and presentations, or for additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

For More Information

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

Quality, Recordkeeping & Unprofessional Conduct Lead Reasons For Medical Board Discipline of Physicians

December 2, 2010

Quality, unprofessional conduct and recordkeeping issues were the most common reason for discipline among the 77 physicians disciplined by the Texas Medical Board (TMB) since August. The reported actions highlight the need for physicians and the hospitals, practices and other entities dealing with them to take appropriate steps to manage these and other related risks.

Data recently disclosed by the TMB reveals that among the 77 licensed physicians disciplined, the violations included:

11 violations based on quality of care;
10 based on inadequate medical records
9 violations based on unprofessional conduct;
4 based on other states’ action;
1 based on inadequate supervision
1 based on peer review actions;
1 based on criminal convictions; and
10 orders for minor statutory violations.

The disciplinary actions imposed varied based on the nature and circumstances of the offense. It included 8 voluntary surrenders; 1 suspension; 3 revocations; 18 corrective orders and one cease and desist order.

A review of the TMB statistics and reports about these actions demonstrates the continuing need for physicians and the practices, hospitals, insurers, and others with liability or responsibility for monitoring, reporting or insuring their conduct to provide and administer effective training, quality and performance management and oversight to monitor and promote appropriate physician performance in these and other performance areas that may give rise to discipline or disciplinary reporting obligations. Additionally, a review of the circumstances of the reported circumstances also highlights the advisability of strengthening stress and substance abuse monitoring, education and intervention processes and procedures to head off or minimize potential licensing board and other risks.

For More Information or Assistance

If you need help evaluating or responding to this development of other health care reimbursement, technology and process, compliance, risk management, transactional, operational, enforcement or public policy concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (469) 767-8872, or via e-mail to cstamer@solutionslawyer.net.

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising physicians, hospitals and other health industry clients about quality assurance, peer review, licensing and discipline, and other medical staff performance matters. She continuously advises health industry clients about the use of technology, process and other mechanisms to promote compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational needs. As part of this experience, she has worked extensively with health care providers, payers, health care technology and consulting and other health industry clients to investigate, address and defend physician and other health care workforce conduct, quality, communication and other concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer also publishes and speaks extensively on health care staffing and human resources, compensation and benefits, technology, medical staff, public policy, reimbursement, privacy, technology, and other health and managed care industry regulatory, and other operations and risk management concerns for medical societies and staffs, hospitals, the HCCA, American Bar Association, American Health Lawyers Association and many other health industry groups and symposia. Her highly popular and information packed programs include specific training for physicians and other health industry leaders on “Sex, Drugs & Rock ‘N Role: Personal Misconduct In Health Care,” “Managing Physician Performance,” “Physician Gainsharing,” improving health care communication and collaboration and many other related matters. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. To review some of her many publications and presentations, or for more information about Ms. Stamer, her experience, involvements, programs or publications, see here.

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Posted by Cynthia Marcotte Stamer

12/15 Deadline For Input on New Joint Commission Heart Failure Certification

December 2, 2010

December 15, 2010 is the deadline to share your comments with the Joint Commission on proposed requirements for Advanced Certification in Heart Failure from health care professionals who care for individuals with heart failure.
The Joint Commission drives much of how hospitals and a growing number of health care providers are judged and ultimately paid. Since the cost of meeting these standards ultimately will be passed on in the charges made by health care providers, health plans and employers should evaluate these credentials and provide appropriate comments when the demonstrated benefits of added conditions or paperwork drive up costs unnecessarily, divert resources from more important patient care goals, or promote other inefficiencies.

The Joint Commission is a leading quality accreditation agency, whose reach now extends to almost all health care organizations and providers. While acknowledging that the Joint Commission has and continues to do much to promote health care quality, health care providers increasingly complain the Joint Commission requirements increasingly are becoming overkill that unnecessarily adds costs and recordkeeping burden in a way that puts measurement before patient care, but feel pressure to comply. Supporters say the standards are necessary to maintain and demonstrate quality.

Striking the proper balance between quality and cost is at the heart of much of the current national initiative to control costs, as well as the efforts of almost all health care providers and payers. To promote proper standards, share comments before the standards are adopted. In the meanwhile, what is your experience about the Joint Commission and the impact of their growing involvement in health care?

The Joint Commission is expanding its Advanced Heart Failure Certification program to encompass the care provided to individuals with heart failure in outpatient settings. The Joint Commission and the American Heart Association (AHA) have established a strategic alliance to recognize programs that demonstrate excellence in the care of individuals with heart failure in both inpatient and outpatient care settings. To receive this certification, an organization must demonstrate compliance with Joint Commission standards, including use of the American Heart Association’s Get With The Guidelines®, and ongoing performance improvement. This new advanced certification is projected to launch in July 2011.

For More Information or Assistance

For a link to the proposed standards or other information, see here. If you need help evaluating or responding to this development of other health care reimbursement, technology and process, compliance, risk management, transactional, operational, enforcement or public policy concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (469) 767-8872, cstamer@Solutionslawyer.net.
Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. She continuously advises health industry clients about the use of technology, process and other mechanisms to promote compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational needs. As part of this experience, she has worked extensively with health care providers, payers, health care technology and consulting and other health industry clients on the design and use of health information systems, technology, privacy and other related. A popular lecturer and widely published author on health industry concerns, Ms. Stamer also publishes and speaks extensively on health care privacy, technology, and other health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. To review some of her many publications and presentations, or for additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.

About Solutions Law Press

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Posted by Cynthia Marcotte Stamer

DEA Cautions Practitioners Must Restrict Delegation of Controlled Substance Prescribing Functions, Urges Adoption of Written Policies & Agreements

November 2, 2010

Physicians, dentists, veterinarians, hospitals, and other persons prescribing or managing practitioners that prescribe controlled substances should require written agreements with staff and others communicating controlled substance prescriptions on their behalf and implement other suitable controls to ensure compliance with Drug Enforcement Administration requirements for prescribing controlled substances according to a new DEA Statement of Policy On Role of Authorized Agents in Communicating Controlled Substance Prescriptions To Pharmacies (Statement) published by the Department of Justice Drug Enforcement Administration (DEA) on October 6, 2010.

The Statement reflects that the DEA is concerned that about practitioners improperly delegating medical need determinations and other responsibilities for prescribing controlled substances. The Statement indicates that practitioners using agents to communicate controlled substance prescriptions should ensure that their delegations are appropriately documented by written agreements with the agents detailing the scope of their authority and implement background checks, monitoring, written and operational policies and procedures governing delegations and other controlled substance prescribing and other controls to appropriately comply with DEA controlled substance prescription mandates.

Under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (CSA) and the Controlled Substances Import and Export Act (CSIEA) (21 U.S.C. 801-971), a valid prescription issued by a DEA-registered practitioner is required for dispensing a controlled substance. Existing rules prohibit DEA-registered practitioners from delegating their authority to prescribe controlled substances. To be effective (i.e., valid), a DEA-registered practitioner must issue the required prescription for a controlled substance for a legitimate medical purpose as determined by the practitioner acting in the usual course of professional practice. The registered practitioner actually must make the required determination of legitimate medical purpose underlying a controlled substance prescription. He cannot delegate responsibility for determining the legitimacy of the medical purpose for a controlled substance prescription or other core responsibilities.

While DEA rules prohibit a registered practitioner from delegating his core responsibilities pertaining to prescribing controlled substances to anyone else, DEA rules allow an individual practitioner to authorize an agent to perform a limited role in communicating controlled substance prescriptions to a pharmacy in order to make the prescription process more efficient. The ability to delegate these communication responsibilities is very restricted and requires that the practitioners apply appropriate controls to prevent delegation of core prescribing responsibilities.

In the Statement, the DEA cautions that DEA requires that DEA registered practitioners must be prepared to demonstrate that the registered practitioner alone makes all required medical determinations to prescribe the communicated controlled substances when delegating responsibility to communicate controlled substance prescriptions to pharmacies on their behalf to nurse or other person acting as the practitioner’s agent. The Statement warns that delegation must be limited to participation in the communication of the prescription in accordance with DEA requirements. The Statement urges practitioners allowing agents to participate in the communication of controlled substance prescriptions to make those delegations pursuant to written agreements with t he agent and to adopt other safeguards to maintain compliance with DEA rules. To learn more, see here

For More Information Or Assistance

If you need assistance reviewing or responding to the DEA prescribing guidance contained in the Statement or addressing other health care related risk management or compliance concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 23 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer compliance and risk management policies and to respond to DEA and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here

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We hope that this information is useful to you. If you need assistance evaluating or responding to the Health Care Reform Law or health care compliance, risk management, transactional, operational, reimbursement, or public policy concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (469) 767-8872, cstamer@Solutionslawyer.net.

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here. To unsubscribe, e-mail here.

Leave a Comment » | Controlled Substances, Corporate Compliance, DEA, Doctor, Electronic Medical Records, Health Care, Health Care Provider, Health Care Quality, Hospital, Licensing, Medical Licensure, Medical Malpractice, Physician, Physician Licensing, Prescription Drugs, Substance Abuse | Tagged: Controlled Substances, DEA, Health Care, Physicians, practitioners, prescribing, prescriptions | Permalink
Posted by Cynthia Marcotte Stamer

OIG Shares Key Insights On When Owners, Officers & Managers Face OIG Program Exclusion Based On Health Care Entity Misconduct

October 21, 2010

The Department of Health & Human Services Office of Inspector General (OIG) this morning (October 21, 2010) posted to its website key guidance about when OIG will exercise its authority under the permissive exclusion rules of Social Security Act (Act) § 1128(b)(15)(A)(ii) to exclude from Federal health program participation owners, officers or managing employees of health care organizations based on their role, involvement or ownership interest in a health industry company convicted of certain offenses or excluded from Federal health program participation.

The Guidance For Implementing Permissive Exclusion of Authority under Section 1128(b)(15) of the Social Security Act (Guidance) provides valuable insights for health care organizations, their owners, officers and managers about how OIG expects them to act and the evidence that OIG likely will require should OIG bring an OIG exclusion action against them personally following the conviction or OIG exclusion of their health care organization for misconduct. To position themselves to survive OIG or related exclusion or prosecution, health care organizations and their owners, officers and management use the Guidance as a guide to help strengthen the defensibility of their daily actions against potential OIG scrutiny and consider the advisability of updating their personal and organizational practices, policies and leadership training in response to this Guidance.

The Guidance discusses the guiding principles and core factors and presumptions that OIG generally will apply to decide if the OIG will should exclude an individual from Federal health program participation based on the involvement of the individual as an owner, officer or manager of company that has been excluded from Federal program participation or convicted of certain health care crimes.. Because these OIG has identified these factors as core considerations in its exclusion analysis, the Guidance provides invaluable guidance for health care entities, their owners, officers and management employees about opportunities position their conduct for defensibility against OIG enforcement exposures. Consequently, owners, officers and managers alike concerned about their exposure to Federal program exclusion or other personal liability under Federal health care fraud laws should use the Guidance to help strengthen their ability to avoid personal exclusion or other prosecution by the OIG as a result of their involvement with a health care organization excluded from Federal program participation or convicted of other crimes. For a more detailed discussion of the Guidance, see here

For More Information or Assistance

If you need assistance evaluating or responding to this development of other health care compliance, risk management, transactional, operational, reimbursement, enforcement or public policy concerns, please contact the author of this update, Cynthia Marcotte Stamer, at (469) 767-8872, cstamer@Solutionslawyer.net.

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Posted by Cynthia Marcotte Stamer

HHS to Host Regional 11/18 Meeting in LA as Part of HITECH Act Psychotherapy Notes &Testing Data Study

October 19, 2010

The Substance Abuse and Mental Health Services Administration (SAMHSA) in cooperation with the Office for Civil Rights (OCR) is conducting a Confidentiality and Privacy Issues Related to Psychological Testing Data study pursuant to section 13424 of the Health Information Technology for Economic and Clinical Health (HITECH) Act, a component of the American Recovery and Reinvestment Act (ARRA) (P.L. 111-5) to assess whether the HIPAA Privacy Rule’s special protections relating to the use and disclosure of psychotherapy notes should also be applied to “test data that is related to direct responses, scores, items, forms, protocols, manuals or other materials that are part of a mental health evaluation.”

As part of this study, SAMHSA is hosting public meetings to bring together professionals in the areas of mental health and privacy protection to discuss current practices and the policy implications surrounding this very important issue. The next regional public meeting will be held at the Sheraton Los Angeles Gateway Hotel in Los Angeles, California on November 18, 2010. The details of this meeting, as well as the project staff contact information, are contained in the embedded brochure below.

You can register for this meeting directly: here , or via the same announcement on OCR’s website here.

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Posted by Cynthia Marcotte Stamer

CMS Delegated Lead Responsibility For Development of New Affordable Care Act-Required Medicare Self-Referral Disclosure Protocol

October 15, 2010

The Centers for Medicare & Medicaid Services (CMS) has been assigned responsibility for the development of the Medicare self-referral disclosure protocol required by Section 6409(a) and (b) of the Patient Protection and Affordable Care Act (ACA), Public Law 111–148, and the rules governing when HHS will exercise its discretion under Section 1877(g) of the Social Security Act to reduce sanction otherwise due and owing by provider for engaging in self-referral violations. Health & Human Services (HHS) Secretary Kathleen Sebelius announced her delegation of responsibility for the development of these new programs to the Administrator of CMS in the October 15, 2010 Federal Register here.

Under ACA Section 6402, Medicare providers and suppliers generally must report and return Medicare overpayments by the later of:

60 days after the date on which the overpayment was identified; or
The date any corresponding cost report is due, if applicable.

To encourage providers to self-disclose self-referral violations, however, Section 6409 of ACA dictates that HHS in cooperation with its Inspector General establish a Medicare self-referral disclosure protocol (SRDP) that Medicare providers may use to self-disclose actual or potential violations of the physician self-referral prohibitions of Section 1877 of the Social Security Act. Where a Medicare provider or supplier electronically submits a disclosure in accordance with the SRDP and receives email confirmation of receipt of the disclosure from CMS, the provider’s otherwise applicable obligation to return a potential overpayment within 60 days under ACA Section 6402 will be tolled until:

CMS and the provider enter into a settlement agreement;
The provider withdraws from the SRDP, or
CMS removes the provider of services or supplier from the SRDP.

In addition to delaying the deadline for returning overpayments, ACA also includes timely self-disclosure as one of the criteria that HHS can take into account when deciding whether to exercise its discretion to abate sanctions for violation of the self-referral prohibition. Unfortunately, Section 6409(a)(3) of ACA also expressly requires that the SRDP be distinct and separate from the advisory opinion process under 42 C.F.R. §§ 411.370 through 411.389. As a consequence, Medicare providers concerned about potential exposure under the self-referral rules generally should not expect to be allowed to seek protection under the SRDP while simultaneously seeking an advisory opinion for conduct underlying the same arrangement.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients to respond to these and other health care industry enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also regularly speaks and conducts training on and other health industry compliance, management and operations matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

Meanwhile, Section 6409(b) of the ACA grants HHS authority to reduce the amount of sanctions owing for all violations of the physician self-referral statute. In establishing the amount by which an overpayment resulting from an actual or potential violation(s) may be reduced, the Secretary may consider: the nature and extent of the improper or illegal practice; the timeliness of such disclosure; the cooperation in providing additional information related to the disclosure; and such other factors as the Secretary considers appropriate.

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Posted by Cynthia Marcotte Stamer

Initial EHR Certification Bodies Named

August 30, 2010

The Office of the National Coordinator for Health Information Technology (ONC) today (August 30, 2010) named Certification Commission for Health Information Technology (CCHIT), Chicago, Ill. and the Drummond Group Inc. (DGI), Austin, Texas as the first technology review bodies authorized to test and certify electronic health record (EHR) systems for compliance with the standards and certification criteria that were issued by the U.S. Department of Health and Human Services earlier this year. The announcement comes less than two months after issuance of final meaningful use rules. Read more here.

For More Information or Assistance

If you need assistance responding to the EHR meaningful use, HITECH and other privacy, or other health industry regulatory, reimbursement or other operational or compliance concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients with licensure, contracting, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also regularly publishes and conducts training on these and other compliance, management and operations matters. You can contact Ms. Stamer to inquire about engaging her services or for information about training or other resources that she provides at (469) 767-8872 or via e-mail here. To get more information about Ms. Stamer and her health industry experience, see here.

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Solutions Law Press™ provides health industry and other risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

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Posted by Cynthia Marcotte Stamer

CMS Publishes Corrections To Proposed 2011 Physician Fee Schedule Rules

August 26, 2010

Physicians and others likely to be affected by the proposed payment and other Medicare policy changes set forth in the “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011” (“2011 Physician Fee Schedule”) proposed by the Centers for Medicare & Medicaid Services (CMS) on July 13, 2010 Federal Register should review and consider the potential implications, if any, of a series of corrections to the proposed 2011 Physician Fee Schedule (“Corrections”) published by CMS today (August 26, 2010) when evaluating the implications of the 2011 Physician Fee Schedule on their reimbursement and other operations.

The 2011 Physician Fee Schedule previously published in the Federal Register here on July 13, 2010 outlines a detailed series of proposed changes to the physician fee schedule and other Medicare Part B payment policies that CMS is proposing to implement in 2011. Among other things, the proposed 2011 Physician Fee Schedule would:

Change Medicare reimbursement rules and amounts to reflect changes in medical practice and the relative value of services;
Interprets and implements certain provisions of both the Affordable Care Act and the Medicare Improvements for Patients and Providers Act of 2008;;
Discusses payments under the Ambulance Fee Schedule, Clinical Laboratory Fee Schedule, payments to ESRD facilities, and payments for Part B drugs; and
Discusses rules regarding the Chiropractic Services Demonstration program, the Competitive Bidding Program for Durable Medical Equipment and Provider and Supplier Enrollment Issues associated with Air Ambulances.

The Corrections published in the August 26, 2010 Federal Register here list a series of corrections to specific provisions of the 2011 Physician Fee Schedule that CMS has identified as necessary to address technical or typographical errors in the 2011 Physician Fee Schedule as originally published in July. Physicians and others evaluating the potential implications of the previously proposed 2011 Physician Fee Schedule should review and take into account these proposed edits as part of their analysis and response.

For More Information or Assistance

If you need assistance with these or other health industry regulatory, reimbursement or other operational or compliance concerns, please contact the author of this update, attorney Cynthia Marcotte Stamer. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients with licensure, contracting, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also regularly publishes and conducts training on these and other compliance, management and operations matters. You can contact Ms. Stamer to inquire about engaging her services or for information about training or other resources that she provides at (469) 767-8872 or via e-mail here. To get more information about Ms. Stamer and her health industry experience, see here.

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Posted by Cynthia Marcotte Stamer

Rite Aid Agrees to Pay $1 Million to Settle HIPAA Privacy Case As OCR Moves To Tighten Privacy Rules

August 3, 2010

One of the nation’s largest drug store chains, Rite Aid Corporation and its 40 affiliated entities (Rite Aid) will pay $1 million to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. The U.S. Department of Health and Human Services (HHS) Office of Civil Rights announcement of the HIPAA resolution agreement with Rite Aid and the concurrent negotiation of a separate consent order of potential FTC Act violations between Rite Aid and the Federal Trade Commission (FTC) follows HHS’ announcement of proposed changes to its HIPAA Privacy Rules and associated penalties in response to changes enacted under the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act). The Rite Aid settlement and the proposed Privacy Rule changes illustrate the growing penalty risks that health care providers, health plans, healthcare clearinghouses and their business associates (Covered Entities) face for violating the Privacy Rules.

Rite Aid Resolution Agreement

The Rite Aid resolution agreements settle charges that Rite Aid failed to appropriately safeguard the privacy of its customers when disposing of identifying information on pill bottle labels and other health information. The settlements apply to all of Rite Aid’s nearly 4,800 retail pharmacies and follow an extensive joint investigation by the HHS Office for Civil Rights (OCR) and the FTC.

OCR opened its investigation of Rite Aid after television media videotaped incidents in which pharmacies were shown to have disposed of prescriptions and labeled pill bottles containing individuals’ identifiable information in industrial trash containers that were accessible to the public in a variety of Rite Aid locations in cities across the United States. OCR and FTC previously settled a similar case involving the national drug store chain CVS in February 2009.

The HIPAA Privacy Rule requires covered entities to safeguard the privacy of patient information and other “protected health information” including during its disposal. In addition to the detailed requirements for protection and safeguarding of protected health information and electronic protected health information under the Privacy Rules, breach notification rules added to HIPAA under the HITECH Act also generally require that Covered Entities investigate and provide timely notification of breach to patients, OCR and in some cases the media when “unsecured protected heath information” is breached. Meanwhile, the FTC Act and associated regulations require those retailers and certain other parties receiving personal financial information to comply with certain requirements for the protection and use of that information and to provide certain notifications of their privacy polices for protecting personal financial information.

The joint OCR and the FTC investigations raised concerns that:

Rite Aid failed to implement adequate policies and procedures to appropriately safeguard patient information during the disposal process;
Rite Aid failed to adequately train employees on how to dispose of such information properly; and
Rite Aid did not maintain a sanctions policy for members of its workforce who failed to properly dispose of patient information.

Under the HHS resolution agreement, Rite Aid agreed to pay a $1 million resolution amount to HHS and must implement a strong corrective action program under which Rite Aid agreed to:

Revise and distribute its policies and procedures regarding disposal of protected health information and sanctioning workers who do not follow them;
Train workforce members on these new requirements;
Conduct internal monitoring; and
Engage a qualified, independent third-party assessor to conduct compliance reviews and render reports to HHS.

In addition, under its FTC consent order, Rite Aid separately agreed to external, independent assessments of its pharmacy stores’ compliance with the FTC consent order.

The HHS corrective action plan will be in place for three years; the FTC order will be in place for 20 years.

Proposed Privacy Rule Changes

The Rite Aid resolution agreement and consent order follows the July 8, 2010 publication by OCR of proposed changes to its existing HIPAA Privacy, Security, and Enforcement Rules in response to amendments enacted under the HITECH Act. Because of the lead time required to implement needed changes in policies, technology and training, Covered Entities need to begin preparations to adjust their health information privacy and data security policies and practices in anticipation of the finalization and implementation of these rules as well as to act quickly to submit their comments about the proposed changes. .

The more than 220 page Notice of Proposed Rulemaking (NPRM) proposes to revise the existing Standards for Privacy of Individually Identifiable Health Information (Privacy Rule); the Security Standards for the Protection of Electronic Protected Health Information (Security Rule); and the rules pertaining to Compliance and Investigations, Imposition of Civil Money Penalties, and Procedures for Hearings (Enforcement Rule) issued under HIPAA.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients with HIPAA and other privacy and data security, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also is regularly conducts training on HIPAA and other health industry compliance, management and operations matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

HHS Invites Input On Medicaid Changes To Promote Children’s Health Quality

August 2, 2010

August 30, 2010 is the deadline for interested persons to provide input to Health & Human Services about legislation to improve the quality of care provided to children under Medicaid and the Children’s Health Insurance Program, including recommendations for quality reporting by the States. The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) requires the Secretary of Health and Human Services to provide to Congress recommendations for legislative changes to improve the quality of care provided to children under Medicaid and the Children’s Health Insurance Program. HHS invited public input for use in preparing these recommendations on July 30, 2010 here.

For More Information or Assistance

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients with licensure, contracting, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also regularly publishes and conducts training on these and other compliance, management and operations matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here. To review the regulations, see here. For a summary, see here.

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Leave a Comment » | Childrens Health Insurance Program, Health Care, Health Care Finance, Health Care Quality, Health Care Reform, Health Plan, Health Plans, Hospital, Indian Health, Medicaid, Physician, Uncategorized | Tagged: children's health, CHIPRA, Health Care, health care quality, HHS, Hospital, Medicaid, Physician, quality reporting, Reimbursement | Permalink
Posted by Cynthia Marcotte Stamer

CMS Adopts ESRD Facility Prospective Payment System & Proposes New Quality Incentive Program

August 1, 2010

The Centers for Medicare & Medicaid Services (CMS) on July 26 issued a final rule that will change how Medicare pays for dialysis services for Medicare beneficiaries who have end-stage renal disease (ESRD). Concurrently, CMS also proposed new rules that would establish a new quality incentive program (QIP) to promote high quality services in dialysis facilities by linking a facility’ s payments to performance standards. The QIP is the first pay-for-performance program in a Medicare fee-for-service payment system. Read on here .

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Posted by Cynthia Marcotte Stamer

CMS Rule Clarifies When Outpatient Services Subject to 3-Day Rule & Finalizes FY 2011 Inpatient Payment Rates

August 1, 2010

Regulations published July 30^th by the Centers for Medicare & Medicaid Services (CMS) clarify when non-diagnostic services provided on an outpatient basis will be treated as inpatient services under the “3-Day Rule” in light of the clarifications made by the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (“Preservation of Access to Care Act”). The regulations also finalize Medicare payment rates for inpatient services furnished to people with Medicare by acute care hospitals, long-term care hospitals (LTCHs), and certain excluded hospitals. Get more details here.

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Posted by Cynthia Marcotte Stamer

CMS & ONC To Co-Host 7/22 ONC Certification & Medicare/Medicaid EHR Incentive Program Audio Training

July 20, 2010

The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) will co-host an Audio Training on the Final Rules for ONC Certification and Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs on July 22, 2010 from 2:00-3:30 pm EST.

During the training, the Agencies plan to discuss:

Benefits of HIT
Summary of the final rules
ONC temporary certification process
ONC initial set of standards and implementation specifications
Medicare and Medicaid EHR Incentives Programs including the initial definition of meaningful Use

To join the audio training, dial 1-877-251-0301 and enter the Conference ID pass code: 87841621

Materials will be made available prior to the training at the following web address here.

For more information about CMS EMR incentives, see here.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers, health plans and insurers, and other health and insurance industry clients with HIPAA, EMR and other privacy and data security, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. Ms. Stamer also regularly conducts training on these and other health industry technology, compliance, management and operations matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Leave a Comment » | Affordable Care Act, ARRA, Doctor, E-Prescribing, Electronic Health Records, Genetic Information, GINA, Health Care, Health Care Provider, Health Care Reform, Health IT, Health Plan, Health Plans, HIPAA, HITECH Act, Hospital, Hospital, Meaningful Use, Medicaid, Medicare, Medicare Advantage, OCR, Privacy, Technology, Telemedicine | Tagged: Data Security, EHR, Electronic Health Records, EMR, Health Information Technology, Health IT, Hi-TECH Act, HIPAA, HITECH Act, IT, ONC, ONC Certification, Privacy | Permalink
Posted by Cynthia Marcotte Stamer

Office of Civil Rights Proposes Changes To HIPAA Privacy, Security & Civil Sanctions Rules

July 9, 2010

Stay Tuned To Solutions Law Press For More Details

Get ready for even tighter privacy and security rules and more enforcement! The U.S. Department of Health & Human Services Office for Civil Rights (OCR) on July 8, 2010 proposed changes to its existing Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy, Security, and Enforcement Rules in response to amendments enacted under the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. Because of the lead time required to implement needed changes in policies, technology and training, health care providers, health plans, healthcare clearinghouses and their business associates should evaluate and begin preparations to adjust their health information privacy and data security policies and practices in anticipation of the finalization and implementation of these rules.

Solutions Law Press is finalizing arrangements to host a briefing on the proposed changes in August and planning more detailed updates on these developments. Stay tuned to Solutions Law Press for additional updates and details about a future briefing on these proposed HIPAA changes and other developments affecting HIPAA and other health plan and human resources matters. In the meanwhile, you may want to check out other existing Solutions Law Press updates and resources about HITECH Act and other HIPAA developments such as HIPAA Heats Up: HITECH Act Changes Take Effect & OCR Begins Posting Names, Other Details Of Unsecured PHI Breach Reports On Website.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients with HIPAA and other privacy and data security, reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Leave a Comment » | Corporate Compliance, Doctor, Electronic Health Records, Electronic Medical Records, Employer, FACTA, Federal Sentencing Guidelines, Genetic Information, GINA, Health Care, Health IT, Health Plan, Health Plans, HIPAA, HITECH Act, Hospital, Hospital, Indian Health, OCR, Physician, Technology | Tagged: Data Breach, Data Securty, Health Care Provider, Health Plans, Healthcare Clearinghouse, HIPAA, OCR, Protected Health Information | Permalink
Posted by Cynthia Marcotte Stamer

Stamer Speaks On “Sex, Drugs & Rock ‘N Role: Personal Misconduct In Health Care” July 21, 2010 In Dallas

July 5, 2010

From substance abuse to stress, medical staff and other health care workforce personal misconduct creates major liability and management challenges for health care organizations and their licensed providers. Cynthia Marcotte Stamer will speak about “Sex Drugs & Rock ‘N Role: Personal Misconduct in Health Care” at the Wednesday, July 21, 2010 monthly meeting of the Dallas Bar Association Health Law Section.

Former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, attorney and author Cynthia Marcotte Stamer is nationally and internationally recognized for her legal work, publications and programs, and advocacy on health industry performance management and other health industry matters. Ms. Stamer works extensively with health care organizations, managed care and health insurance organizations, governments and others to manage performance and legal risks. Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer combines her more than 23 years of health industry regulatory and risk management experience with an in-depth knowledge of workforce management and regulation to help clients manage performance and legal and operational risks. Her experience includes advising public and private health industry clients domestically and internationally on a wide range of matters. A widely published author and popular speaker, Ms. Stamer’s insights on health industry matters also are quoted in HealthLeaders, Managed Care Executive, the Wall Street Journal and many other national popular, business and industry publications. She also conducts continuing medical education and other health industry compliance and risk management training for many organizations on a wide range of topics.

The program will be held from Noon to 1:00 p.m. Central Time at the Dallas Bar Association Belo Mansion located at 2101 Ross Avenue, Dallas Texas. For additional information, visit www.dallasbar.org.

For additional information, call the Dallas Bar Association at 214-220-7400 or see http://www.dallasbar.org.

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We hope that this information is useful to you. If you need assistance with medical staff credentialing or discipline, employment, benefits and compensation, reimbursement, health care fraud or other health care compliance, risk management, transaction or operations concerns, please contact Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail to here.

You can review other recent health care and internal controls resources and get additional information about the health industry and other experience of Cynthia Marcotte Stamer, P.C. here. If you or someone else you know would like to receive future updates about developments on these and other concerns, register or update your profile – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information to here.

Leave a Comment » | Employment, Health Care, Health Care Provider, Hospital, Hospital, Medical Malpractice, Peer Review, Physician, Physician Licensing, Substance Abuse | Tagged: Credentialing, Disruptive Physician, Drug Testing, Employment, Medical Staff, Peer Review | Permalink
Posted by Cynthia Marcotte Stamer

New Law Clarifies Medicare 3-Day Payment Window Rule

July 3, 2010

The “Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010” (Act) signed into law on June 25, 2010, clarifies Medicare’s policy for payment of services provided in hospital outpatient departments on either the day of or during the three days before an inpatient admission (“3-day payment window”). Read more about the clarifications made by the Act to the three-day rule here.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients with reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. You can get more information about her health industry experience here. If you need help with these or other compliance concerns, wish to ask about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

HHS Invites Comments On Health Center Program Federal Tort Claims Policy Manual

July 1, 2010

The Federal Tort Claims Act (FTCA) Policy Manual (Manual) posted here that the Department of Health & Human Services intends to serve as the primary policy source for information on FTCA for Health Center Program grantees funded under section 330 (Section 330) of the Public Health Service (PHS) Act. August 6, 2010 is the deadline to share feedback on the Manual in response to an invitation from HHS published in the July 1, 2010 Federal Register. See here.

The Manual is intended to consolidate, update and replace a variety of guidance previously issued by HHS about the FTCA Medical Malpractice program for participating Health Center Program grantees. HHS previously has issued numerous Program Information Notices (PINs) and Program Assistance Letters (PALs) related to the Health Center FTCA Medical Malpractice Program. HHS consolidated these PINs and PALs to create the Manual. HHS intends for the Manual to convey guidance about existing policy and current processes, and to serve as the principal policy resource on FTCA matters for Health Center Program grantees and related stakeholders. HHS going forward plans to update the Manual as it issues new policy and program guidance.

The Health Center Program supports more than 1,100 organizations operating almost 8,000 health care delivery sites, including community health centers, migrant health centers, health care for the homeless centers, and public housing primary care centers. Health centers serve medically underserved communities delivering preventive and primary care services to patients regardless of their ability to pay.

Health Center Program grantees funded under section 330 of the PHS Act, including Community Health Centers, Migrant Health Centers, Health Care for the Homeless Health Centers, and Public Housing Primary Care Health Centers, have access to medical malpractice coverage under the FTCA. FTCA is the legal mechanism for compensating people who have suffered personal injury due to the negligent or wrongful action of employees of the U.S. Government.

Under section 224 of the PHS Act, as amended by the Federally Supported Health Centers Assistance Act (FSHCAA) of 1992 and 1995, a section 330-funded health center, as well as its officers, directors, employees, and certain contractors, may be considered deemed to be Federal employees for the purpose of medical malpractice coverage under the FTCA. Accordingly, they are immune from personal liability for claims of medical malpractice arising from their deemed employment, contract for services, or duties as an officer or director of the deemed health center. FSHCAA requires health centers to apply for deemed status in order for FTCA coverage to be effective.

The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting health care providers and other health industry clients with reimbursement, compliance, public policy, regulatory, staffing, and other operations and risk management matters. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

NCPDP SCRIPT 10.6 Approved As Medicare Part D/Advantage E-Prescribing Option

July 1, 2010

The Centers for Medicare & Medicaid Services (CMS) today (July 1, 2010) issued an interim final rule (Rule) that permits the voluntary use of the National Council for the Prescription Drug Programs (NCPDP) Prescriber/Pharmacist Interface SCRIPT standard, Implementation Guide, Version 10, Release 6 (Version 10.6) (NCPDP SCRIPT 10.6) for conducting certain e-prescribing transactions for the Medicare Part D electronic prescription drug program. Review the Rule here.

Prior to the adoption the Rule, only NCPDP SCRIPT 8.1 was authorized for use in communicating Medicare Part D medication history among sponsors, prescribers and dispensers. The Rule revises Regulation §423.160(b)(4) to specify that entities now may use either NCPDP SCRIPT 10.6 or 8.1 for the communication of Medicare Part D medication history among sponsors, prescribers, and dispensers.

Along with the rule, CMS issued a request for comments on the Rule. The deadline for interested parties to comment is 5 p.m. Eastern Daylight Time on August 30, 2010.

Section 101 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) requires that Prescription Drug Plan (PDP) sponsors, Medicare Advantage (MA) organizations offering Medicare Advantage-Prescription Drug Plans and other Medicare Part D sponsors (Plans) provide for electronic transmittal the prescribing provider, dispensing pharmacy and the dispenser of information about:

Eligibility,
Benefits (including drugs included in the applicable formulary, any tiered formulary structure and any requirements for prior authorization),
The drug being prescribed or dispensed and other drugs listed in the medication history,
The availability of lower cost, therapeutically appropriate alternatives (if any) for the drug prescribed, and
Certain other information.

Before the Rule, CMS had approved NCPDP SCRIPT 8.1 for conducting these electronic transmittals.

As a consequence of the Rule, Plans, prescribers and dispensers now may use either NCPDP SCRIPT 10.6 or 8.1 when conducting e-Prescribing to conduct:

Get message transaction.
Status response transaction.
Error response transaction.
New prescription transaction.
Prescription change request transaction.
Prescription change response transaction.
Refill prescription request transaction.
Refill prescription response transaction.
Verification transaction.
Password change transaction.
Cancel prescription request transaction.
Cancel prescription response transaction.
Fill status notification transaction.
For the communication of Medicare Part D medication history among sponsors, prescribers, and dispensers.

The MMD does not require that prescribers or dispensers implement e-Prescribing, prescribers and dispensers who electronically transmit prescription and certain other prescription-related information for Medicare Part D covered drugs prescribed for Medicare Part D eligible individuals, directly or through an intermediary, must comply with any applicable final standards that are in effect. The Rule provides new choices on how to accomplish this.

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Leave a Comment » | Controlled Substances, DEA, Doctor, Electronic Health Records, Electronic Medical Records, Health Care, Health Care Provider, Health IT, Health Plan, Health Plans, Hospital, Hospital, Meaningful Use, Medicare, Medicare Advantage, Pharmacy, Physician, Prescription Drugs, Privacy, Reimbursement, Telemedicine | Tagged: E-Prescribing, Health Care, Health Plans, Medicare Advantage, Medicare Part D NCPDP SCRIPTI, Payers, Physicians, Providers | Permalink
Posted by Cynthia Marcotte Stamer

Proposed Medicare Rules Will Require Hospitals Honor Patient Visitation Preferences

June 23, 2010

A new Condition of Participation rule proposed by the Centers for Medicare & Medicaid Services (CMS) would require hospitals to protect and honor patients’ rights to choose their own visitors during a hospital stay. The new proposed rule will implement an April 15, 2010, Presidential memorandum directing HHS to develop standards requiring Medicare- and Medicaid-participating hospitals (including critical access hospitals) to allow patients to choose who may visit them when they are inpatients of a facility.

The proposed rule would add the new requirement as an addition Condition of Participation for Medicare- and Medicaid-participating hospitals and critical access hospitals. To meet the Condition, the proposed rules would require every hospital to have written policies and procedures detailing patients’ visitation rights, as well as instances when the hospital may restrict patient access to visitors based on reasonable clinical needs. Among other things, the proposed rule specifically would require:

Visitors chosen by the patient (or his or her representative) be able to enjoy visitation privileges that are no more restrictive than those for immediate family members; and
Require hospitals and critical access hospitals to explain to all patients their right to choose who may visit them during their inpatient stay, regardless of whether the visitor is a family member, a spouse, or a domestic partner (including a same-sex domestic partner), as well as the right to withdraw such consent at any time.

The proposed rules expected to be published in the Federal Register this week will be available for public comment for 60 days. CMS plans to finalize the proposed rule after CMS has read and considered the comments. More information about the proposed rule see CMS’ website here and here.

The proposed new requirement would add to the already existing safety and other Conditions of Participation that hospitals must meet to participate in Medicare and would operate in addition to otherwise applicable patient’s visitation rights standards imposed by Joint Commission and other rules. The author of this update, attorney Cynthia Marcotte Stamer, has extensive experience advising and assisting hospitals and other health care providers to estalish and administer patient’s rights and other policies to comply with Conditions of Participation and other applicable laws, regulations and standards. You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

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