Laureen shows you her proprietary “Bubbling and Highlighting Technique”
Download your Free copy of my "Medical Coding From Home Ebook" at the top right corner of this page
What are the latest code changes? Get the facts, fast. This month, there’s new billing guidance for a COVID-19 vaccine; there are three new HCPCS Level II codes for COVID-19 therapeutic injections; and Medicare payment allowances for the 2021-22 influenza vaccine codes have been released. FDA Approves COVID-19 Vaccine Pfizer’s COVID-19 vaccine received the green […]
The post Take 5 – Medical Coding News – August 2021 appeared first on AAPC Knowledge Center.
This is actually a week later than it’s typically held so please make a note. The time will be at noon ET as usual. We will discuss timely topics and give updates on any changes. With this in mind, we invite you to write down those questions that come up during your officer meetings or […]
The post Local Chapter Q&A Session to be Held August 23rd appeared first on AAPC Knowledge Center.
CMS puts short-stay audits on hold
Learning objective
At the completion of this educational activity, the learner will be able to:
There’s good news and bad news on the 2-midnight rule front.
The good news: CMS has put short-stay inpatient audits related to the 2-midnight rule on hold as of May 4.
The bad news: This isn’t a free pass, and it isn’t going to last.
"Response at hospitals should be to do nothing different," says Ronald Hirsch, MD, FACP, CHCQM, vice president of the Regulations and Education Group at Accretive Physician Advisory Services at Accretive Health in Chicago. "Follow the rules on every case. This is not a three-year delay; the audits will resume soon, and we have no idea if the look-back period will be altered to account for this delay."
The May announcement
Livanta, one of the two Beneficiary and Family Centered Care Quality Improvement Organizations (BFCC-QIO) charged with conducting 2-midnight rule compliance audits, posted a notification about the audit suspension on its website: http://bfccqioarea5.com/twomidnight.html. The announcement stated:
On May 4, 2016, CMS notified the BFCC-QIOs of a temporary pause of Two-Midnight Reviews in order to improve standardization across the program. During this period, Livanta will be collaborating with CMS and the other BFCC-QIO to ensure consistency in how the rule is applied to QIO case review. If your facility has submitted Livanta requested medical records, they will remain in the pipeline for review upon further direction from CMS. Going forward it is CMS’ intention that providers will have at least six weeks to implement changes prior to the next round of BFCC-QIO reviews.
"It seems that inconsistencies had resulted in many complaints, which is what prompted the suspension," says Stefani Daniels, RN, MSNA, CMAC, ACM, president and managing partner at Phoenix Medical Management, Inc., in Pompano Beach, Florida.
This suspension marks the second time CMS auditors have apparently fumbled 2-midnight rule interpretation. Medicare Administrative Contractors who conducted the initial probe and educate audits of the 2-midnight rule were also accused by hospitals of misinterpreting the standard?and hospitals had hoped that having BFCC-QIOs take over the task would solve the problem, says Hirsch. Unfortunately, it appears BFCC-QIOs are running into the same challenge.
When the BFCC-QIO audits first began back in October 2015, they brought some unwelcome surprises. Many hospitals anticipated that the reviews would only look at records from October 2015 forward. But hospitals soon began reporting that BFCC-QIOs were requesting records for cases as far back as May 2015, according to Hirsch. That wasn’t the only issue?BFCC-QIOs were also missing deadlines. Audit results were late, and the BFCC-QIOs were slowing the scheduled education for providers.
This created two problems for hospitals. First, the late BFCC-QIO audit results meant that hospitals with denied claims were poised to miss the filing deadline to rebill denied claims to Part B. Because of the delays in scheduling education related to the first round of claim denials, hospitals didn’t have an opportunity to understand their mistakes and fix them before the next set of audits began.
In addition, there was also some online buzz that BFCC-QIOs were misinterpreting the rule, says Hirsch. The main problem: benchmark admissions. Some hospitals reported that BFCC-QIOs were routinely denying inpatient admissions when patients spent one night as an outpatient in the emergency room or in observation services before they were admitted. This was the case even though these patients then spent a second night in the hospital as an inpatient that the physicians documented as medically necessary. This is a clear misinterpretation of the rule, says Hirsch. In other cases, the BFCC-QIOs were also denying the second midnight due to a lack of medical necessity, essentially overruling the judgment of hospital physicians.
Moving forward
As of presstime, it was unclear when the audits were going to resume or what the outcome of the suspension would be. In the meantime, though, hospitals should continue with business as usual?after all, it’s always good practice to assume claims will be audited and to be prepared for such a situation.
Best practices to follow to prepare for audits include those listed below:
In addition, it’s important to understand how audits work and be aware of any changes that will occur when they resume. KEPRO said before the audit suspension that auditors of short-stay claims need to see the following two components:
1.Documentation of medical necessity
2.Application of the 2-midnight rule
Reviewers also were charged with looking for quality-of-care issues and will validate coding associated with the claims. Before the suspension, a nonphysician using InterQual® would perform the first BFCC-QIO audit. If the case fails the initial review, a physician review would then follow, which is based on the physician’s medical judgment
Specifically, the physician reviewer would look at:
Another concurrent review was designed to look at physician documentation to ensure patients needed hospital-level care and that their admission was not for social, custodial, or convenience reasons.
Ultimately, when it comes to BFCC-QIO reviews, the advice remains the same despite the temporary suspension: Stay on top of this issue, make sure physicians are assigning patients to the proper status, and ensure docs have the documentation to back up their decisions.
Ask the expert
Navigating the skilled nursing benefit for Medicare
Learning objective
At the completion of this educational activity, the learner will be able to:
Assigning the correct patient status is important not only to ensure that the hospital gets accurate payment for a patient stay, but also to ensure that the patient receives access to the postacute benefits to which he or she is entitled. One of the more problematic topics in this arena is the three-day inpatient stay required by Medicare for a patient to qualify for a covered postacute stay in a SNF. One reader submitted the question below on this topic, and we asked Janet L. Blondo, MSW, LCSW-C, LICSW, CMAC, ACM, CCM, the manager of case management at Washington Adventist Hospital in Takoma Park, Maryland, to supply an answer.
Q: As a case manager, I already know that my patients placed in observation don’t qualify to use their Medicare SNF benefits after a hospital stay. However, family members often oppose a patient’s discharge date, citing safety concerns and demanding that the patient be admitted as an inpatient for three days so that he or she can be transferred to a SNF to use the patient’s Medicare SNF benefit to pay for nursing home care. What do I do when the patient’s family members resist the plan of discharging their loved one home?
A: Family members often become concerned about how their loved one will manage when there is a change in the patient’s ability to provide self-care. An injury or illness that results in a hospital stay?even a short one?can prompt a temporary or permanent loss of function. Patients and families may have some knowledge that insurance could pay for some rehabilitation services.
Beginning in August 2016, the Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act requires all hospitals to explain to patients?both verbally and in writing?what it means when they are placed in observation. The NOTICE Act also compels the hospital to inform patients that they do not qualify to use their Medicare SNF benefits to recover from a hospital stay. This may result in more patients demanding that they be admitted for inpatient care.
Despite the current emphasis on population health, few patients have long-term care plans in place. This means that seniors are caught unprepared after a short stay in hospital observation care. They may not be able to return to a home that lacks a 24-hour caregiver or that has stairs they can no longer negotiate.
Patients and family members often believe that their insurance, Medicare, will pay the entire cost for care in a nursing home. They don’t fully understand the difference between skilled versus custodial care, or that if Medicare does provide coverage, it won’t pay the entire cost of care and will cover costs only for a short time.
Since explaining the above information to patients can be challenging, the smart case manager should get busy and assess what options are available to the patient. First, review the situation and determine that the patient truly does not meet inpatient criteria. When in doubt, refer the case to your physician advisor without delay.
The 2016 OPPS final rule, CMS-1633-F, effective January 1, 2016, allows the physician to document the need for inpatient care based on a set of "complex medical factors," which include:
Qualifying for inpatient care does not mean a patient must require hospitalization that extends for more than two midnights. If the patient truly does not meet inpatient criteria, next determine if he or she is a candidate for acute rehab. Acute rehab does not require a prior three-day or greater hospital stay. Does your patient have Medicare Part C? A managed Medicare plan does not require an inpatient stay of three days or more, although it does require an authorization for a SNF benefit.
Some secondary payers will cover a rehab stay in a SNF. Look at all of the patient’s insurance policies and call the payers. A Medigap policy will pay only if Medicare pays, which requires a three-day inpatient admission. Some patients, however, are covered by a spouse’s policy or have a policy from a previous job that is not a Medigap policy?these policies will potentially cover a SNF stay.
Ask if the patient has been in a nursing facility prior to the current hospital stay while using his or her Medicare SNF benefits. If the patient was in a SNF after a three-day qualifying hospital stay, and his or her discharge from the SNF was within 30 days of the expected date of admission for the new SNF stay, then chances are the patient’s stay will be covered under Medicare.
Case managers often don’t ask about private-pay funds. Patients may pay privately for care in a nursing home. Ask if the patient has a long-term care policy that will cover the cost. Alternatively, the patient’s family may assist with the funding. Some patients who own a home use a home equity line of credit to pay for the cost or apply for a reverse mortgage.
Applying for long-term care Medicaid is an option, but this can take a long time, and many nursing homes want a source of funding at the time the patient enters the facility.
A patient can also go home with family members who are able to help with care until the patient is able to make a more permanent plan. Family members who work can apply for family and medical leave while they are serving as caregivers.
Adult medical day care facilities also have all-day programs where patients can be cared for during the day while family members work. Patients can receive nursing education about their illness, undergo blood pressure and blood sugar checks, and receive physical and occupational therapy. Payment is provided through sliding-scale or private-pay funding, or by community Medicaid.
Finally, patients may benefit from skilled home health care services, covered by insurance or by private-duty aide care paid for with the patient’s (or family’s) funds.
If, after reviewing these options, none are acceptable to the patient or family, you may have to give the patient the Hospital-Issued Notice of Noncoverage, or HINN, which notifies the patient that you do not anticipate the hospital bill or subsequent rehab will be paid by Medicare. The notice may help the patient determine what course of action to take.
Editor’s note: Got a question? Email it to us and we’ll send it to one of our experts. Send questions to Kelly Bilodeau at [email protected].
10 things you should know to ensure successful discharge planning
Learning objective
At the completion of this educational activity, the learner will be able to:
One of the more challenging aspects of a case manager’s job is helping to ensure a patient successfully transfers from the hospital to the next level of care. Under a set of proposed revisions to Medicare’s Conditions of Participation (CoP) announced in November 2015. This job may get even harder, more specific, and apply to more patients. The changes, among other things, will require hospitals, including critical access hospitals, to create discharge plans for more patients. Case managers will need a more direct plan to include patients and their caregivers in the discharge planning process, in particular taking into account their individual "goals and preferences." This discharge planning process will also need to start sooner?within 24 hours of admission instead.
So what can you do to ensure your organization is up for the challenge? In an April webinar titled "Discharge Planning: Realignment of Standards and Workflow," speaker Jackie Birmingham, RN, BSN, MS, CMAC, vice president emerita of clinical leadership for Curaspan Health Group in Newton, Massachusetts, and Janet L. Blondo, MSW, LCSW-C, LICSW, CMAC, ACM, CCM, the manager of case management at Washington Adventist Hospital in Takoma Park, Maryland, offered up some compliance tips that you can use to ensure your hospital is ready:
1.Assess your current discharge process. Under the proposed changes, the discharge planning process needs to start in the first 24 hours after the patient arrives at the facility. You’ll need to identify how your current processes work in order to make sure they comply with this timeline. Identify your current workflow?specifically, who does what, why they do it, and how it’s done. Ask the following questions:
Also think about why your processes were designed the way they are. "If you have it on one unit a certain way and not on another, think about what you need to do to change your practice so that perhaps every unit you can do assessment on every patient," said Blondo. "If your model is something that doesn’t seem to make sense with the proposal, what can you do to change it?"
Changes to bring the model in line could include adding technology (e.g., laptops, tablets) to speed up the process, adding staff members, or reassigning current staff members. "Perhaps some of your social workers can do UR," said Blondo. Alternatively, maybe a staff nurse can do an initial assessment instead of a case manager, or perhaps a nonclinical staff member can take over certain tasks. Taking the time to examine your current processes and think about how they can be switched up to meet the new requirements will give you the foundation for a new plan.
2.Drill documentation. Hold physicians accountable for following through and documenting discharge plans and dates. "If they’re documenting in the chart the discharge date and plan, that makes your job a little easier, because you have that in the chart already and can discuss that with the patient and their family," said Blondo. Take advantage of pre-procedure assessments by ensuring they are included in the chart, then making sure staff members follow through on that plan. "You don’t want Joint Commission or the state coming to do their survey and then you find out the assessment is not getting done because your staff has decided they want to do something different. So make sure everyone is doing the same," said Blondo.
3.Focus on delays. Use these potential discharge changes in the CoPs as an opportunity for process improvement. Look at what’s causing delays in your current process?use this information to improve systems and boost patient satisfaction. "You’re going to improve, perhaps, length of stay with this increased attention with discharge planning," said Blondo.
4.Make rounds count. If you are currently using rounds, examine what they’re being used for and how they’re working. Blondo says it’s important to ask:
After thinking about the current purpose your rounds serve, consider how they can be modified to fit your new objectives. "Many people just do one type of rounds per day, but you could actually be creative with these. There are some hospitals that I know of that divide rounds into different parts of the day," said Blondo. "For instance, you might want to think about doing rounds early in the morning for those patients that will be discharged [later] that day." The discussion could center on determining whether those patients are prepared to leave and have the right resources. Another idea is to add rounds to the short-stay area or outpatient area for procedures done late in the day. "And if you have case managers in the emergency room, you could ask them to round for those areas, catching any patients that might need something late in the day after your regular case management staff have left," said Blondo.
5.Understand patient options. This topic includes both big-picture and smaller issues. Case managers should focus on patient-based issues, which relate to talking to the patient, as well as on setting the patient’s broader goals and preferences. The organization’s systems must be set up to give patients a choice of postacute options. But keep in mind, when working with patients, you’ll always come across those who don’t like what you’re doing or who don’t agree with you and want to go another direction. "You need to have something standardized and something that you can fall back on when you’re presented with a patient and family who, in their eyes, have a reasonable goal and clinically or medically or psychosocially, they don’t," said Birmingham. Staff members must understand the concept of patient choice. "The staff must be comfortable that they are doing the right thing for the patient and the right thing for networks and the right thing for the organization."
It’s also important for staff to understand that the patient has the right to refuse the plan. "[The patient] may be in denial. They may be suffering grief," said Birmingham. The hospital should have a policy for patients leaving against medical advice (AMA), but case management must have its own discharge planning policy for those leaving AMA. In these instances, it’s not just enough to have the patient sign a paper, but rather actively assist the patient with the transition by ensuring that he or she has transportation and needed prescriptions. Even though there is an exemption for patients who signed out AMA and are readmitted the hospital, the hospital should have a plan for how to work with these patients, said Birmingham., said Birmingham.
You should also consider planning for a patient’s deficits related to loss of functioning, whether it be ADLs or IADLs. Birmingham recommended asking the following questions:
A plan should be in place to address the answers to these questions.
6.Help patients achieve their goals. This is something that organizations should have been doing all along, but there is much more emphasis on it now. A problem arises when the patient’s goals and preferences don’t align with what is medically necessary or what is reasonable and necessary. In these instances, it may be wise to involve social workers. "Look at some of the things that patients might be going through?denial, grief that might affect their decision-making at the time," said Birmingham. "With the family dynamics, there might be family members trying to convince the patient to make a decision that isn’t really what the patient wants." Ultimately, the goal is to help the patient make the decision that is best for him or her, but also to think about what is medically the best option.
7.Involve the physician. Physicians are an integral part of discharge planning, so it’s important to make sure they are actively involved in the process. This communication between the patient and the physician needs to be sensitive to generational and cultural differences. "To involve perhaps some of the older patients, just have the doctor come in and say, ‘We want you to do this,’ " said Blondo. "That might not work for younger generation or baby boomers who are used to rebelling, but if you have the doctor come in and say, ‘This is what we’re recommending and this is why’ and help the patient to understand why it is recommended."
While it may be easier to foster good communication if you’re working with a hospitalist, it can be more of a challenge if the physician is community based. "How will you manage when the patient is transferred to another facility? It’s not been a problem if you’re transferring the patient to another hospital, but if that patient is being transferred to a SNF, there haven’t been that many times when the doctors have called to the doctor in that SNF to give them an update," said Blondo. Have a plan in place to ensure the communication lines are always open.
8.Work to decrease unplanned readmissions and improve patient outcomes. "Readmissions are an old problem with new incentives," said Birmingham. Readmissions can be strongly linked to location and patient access to resources, which shows that they often depend on factors other than the medical treatment the patient received. This underscores the importance of ensuring your patients have access to things like food and transportation when they leave the facility. "Is your [patient’s] area in a food desert? No car, no supermarket store within a mile?and that makes a huge difference," said Birmingham. If this is the case, your organization might want to develop or contact an existing program that delivers food to the homes of qualifying individuals. "Home health agencies could do that too for some programs to be able to provide some fresh groceries to some patients," she said.
Also find out if your patient has been readmitted in the past, a risk factor for readmissions. "You can look to see if a patient is readmitted from an acute level of care, but you’ll need to ask the patient if they’ve been in the emergency room in the past 30 days, if they were admitted from a facility SNF," said Blondo. "Often, that information is sent with them to the hospital, but you can ask them." Ask if the patient was receiving home health services prior to admission. Encourage physicians to include this type of information in the history and physical to ensure it won’t be missed.
"We’re never going to be perfect and have no readmissions, because some patients have a legitimate need to come back to the hospital within those 30 days, but look at your readmissions. Learn from who is coming back and think about what strategies you can put in place for that," said Blondo.
9.Keep the focus where it belongs. "Discharge planning is a patient-centered function," said Birmingham. "You can do utilization review without talking to the patient. You can do quality improvement without talking to the patient and family, but you can’t do discharge planning." For this reason, discharge planning can be very rewarding to clinicians who want to be involved in the patient’s care, and to be there for them when they’re at their most vulnerable.
10.Take your cues from the experts. While Medicare’s CoPs aren’t a cookbook on how to run your organization, they are a good place to start because they’re based on years of evidence. "Many of the changes in the original CoPs happen because commenters send in a comment to CMS and CMS responded and actually changed the proposed rule," said Birmingham. "Now, will they change these proposed [discharge planning] rules? I don’t think so, and I think that’s because they’ve been published as interpretive guidelines for over two years." That means these discharge changes are likely here to stay. Like all other CoPs, they should be blended into your workflow and your strategies and partnerships with other departments, said Birmingham.
The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) has provided its latest, monthly Work Plan update. The Work Plan “sets forth various projects including OIG audits and evaluations that are underway or planned to be addressed during the fiscal year and beyond by OIG’s Office of Audit Services and […]
AAPC Knowledge Center
Billing Alert for Long-Term Care August issue is now available
Click to see all our stories for August 2018
OIG releases its FY 2015 mid-year update
The Office of Inspector General (OIG) released its fiscal year (FY) 2015 Mid-Year Update last week. The update summarizes new and ongoing reviews and activities that OIG plans to pursue with respect to HHS programs during the current fiscal year and beyond.
The OIG’s job is to detect fraud, waste, and abuse; identify opportunities to improve healthcare program economy; and to hold "accountable those who do not meet program requirements or who violate Federal health care laws." The OIG conducts audits and investigation, and can impose civil monetary penalties where appropriate, so its Work Plan is often of great interest to those working with federal healthcare programs. As a summary of some of the OIG’s enforcement initiatives, the Work Plan can serve as a useful resource for companies when training and when planning internal audits.
The FY mid-year update includes several initiatives central to long-term care providers.
Medicare Part A billing by SNFs
The OIG will describe changes in SNF billing practices from FYs 2011 to 2013. Prior OIG work found that SNFs increasingly billed for the highest level of therapy even though beneficiary characteristics remained largely unchanged. The OIG also found that SNFs billed one-quarter of all 2009 claims in error; this erroneous billing resulted in $ 1.5 billion in inappropriate Medicare payments. CMS has made substantial changes to how SNFs bill for services for Medicare Part A stays.
CMS’ future plans include:
Diane Brown, director of postacute education at HCPro explains that, "These plans will likely contribute to better care and improved transitions in care as well as be linked to appropriate payment. When implemented, much of the time spent by facilities on navigating COTs and other labor intensive tasks could be eliminated."
As Kathy W. O’Neal, RN, RAC-CT, LNHA, from Crossroads Medical Management can attest to, "There were numerous changes with Part A billing practices associated with the implementation of MDS 3.0. Probably the most significant was that on the five-day assessment, projecting therapy minutes were removed. Another significant change is that a change of therapy (COT) assessment is required every seven days if a resident in a rehab RUG category that receives more or less therapy minutes and/or the number of modalities changes enough to cause the resident to fall into another RUG category. This practice was created as a response to the thought process that SNFs were being paid for a therapy that was not needed and/or provided. These changes have created a tremendous increase in the number of assessments needed, with the resulting billing rules associated that are confusing for providers. A large percentage of my time is consumed with audits and appeals associated with Part A stays, mainly Medicare replacement policies, and often it seems that the insurance companies providing the replacement policies do not understand PPS billing. It is very frustrating but has become a routine part of our industry."
State agency verification of deficiency corrections
The OIG will determine whether state survey agencies verified correction plans for deficiencies identified during nursing home recertification surveys. A prior OIG review found that one state survey agency did not always verify that nursing homes corrected deficiencies identified during surveys in accordance with federal requirements. Federal regulations require nursing homes to submit correction plans to the state survey agency or CMS for deficiencies identified during surveys. CMS requires state survey agencies to verify the correction of identified deficiencies through on-site reviews or by obtaining other evidence of correction.
Program for national background checks for long-term-care employees
The OIG will review the procedures implemented by participating states for long-term care facilities or providers to conduct background checks on prospective employees and providers who would have direct access to patients and determine the costs of conducting background checks. Further, the OIG will determine the outcomes of the states’ programs and determine whether the programs led to any unintended consequences. Section 6201 of the Patient Protection and Affordable Care Act (ACA) requires the Secretary of Health and Human Services to carry out a nationwide program for states to conduct national and state background checks for prospective direct patient access employees of nursing facilities and other long-term care providers.
The program is administered by CMS. To carry out the nationwide program, CMS has issued solicitations for grant awards. All states, the District of Columbia, and U.S. territories are eligible to be considered for a grant award. OIG is required under the ACA to submit a report to Congress evaluating this program upon its conclusion. This mandated work is ongoing, and an interim report will be issued prior to the program’s conclusion.
O’Neal approves of this initiative, saying that, "I agree with any additional background screening to ensure our residents are cared for in a safe and caring environment."
Although the OIG’s oversight extends to other programs under the U.S. Department of Health & Human Services, the majority of its resources go toward combating fraud, waste, and abuse in Medicare and Medicaid.
You can review the entire mid-year update to the 2015 Work Plan on the OIG’s website.
Medicare myths
Editor’s note: This article is excerpted from the book Long-Term Care Skilled Services: How to Document for Proper Medicare Reimbursement, by Elizabeth Malzahn-McLaren.
Throughout my years of educating providers on the inner workings of the Medicare program, whether it was a boot camp class for newcomers or a refresher course for those in the business for years, there are always instances where I am able to "myth-bust" Medicare. With any program, especially one that has been in existence for 60 years, there are bound to be some myths out there about how the program works.
Myth #1: A psychiatric resident will not qualify for Medicare Part A skilled services.
Although most psychiatric services will not qualify as Medicare Part A skilled services, there are some instances when a resident will qualify coming straight from the hospital, at least for a short period of time.
First you need to determine if the stay in the psychiatric hospital meets the three-day qualifying hospital requirement. If it does, the next area to review is whether the care meets the requirements for skilled services under Medicare Part A.
The resident may need to have his or her medications adjusted; there also can be potential for an adverse drug reaction if medications were changed. In addition, depending on the time spent in the hospital, there may have been some deterioration and the resident may have therapy orders upon discharge from the hospital. Other areas to review include hearing, speech, and vision (Section B of the Minimum Data Set [MDS]); cognitive patterns (Section C); mood (Section D); behavior (Section E); functional status (Section G); and medications (Section N) … just to name a few!
Myth #2: You can cover a resident for the first five days to observe and assess his or her condition.
The Centers for Medicare & Medicaid Services (CMS) provides no time frame of minimum or maximum time covered; however, there is the ability to use administrative presumption of coverage. Remember, though, that the use of the administrative presumption is reserved only for residents being directly admitted from a three-day qualifying hospital stay. In addition, this administrative presumption only covers up to and including the assessment reference date (ARD), if no skilled need is identified on the initial admission/readmission MDS. The regulation indicates that a resident can be skilled "until the condition of the patient is stabilized." Typically, skilled care for observation and assessment lasts for a few weeks or less.
Myth #3: A new diagnosis triggers a new benefit period.
This is one of the most dangerous Medicare myths out there. It can impact not only resident care, but also customer service, and it can have a significant financial impact as well. The only way a resident can earn a new 100-day benefit period under SNF Medicare Part A is to complete a 60-day period of wellness. The calculation for earning a new benefit period is based on two criteria:
There is no magic formula to earning a new benefit period. Let us review an example to illustrate how the calculation should work.
A resident completed a 100-day Medicare benefit period on December 31. The resident remained skilled under Medicare Part B, receiving therapy services until January 31. Beginning February 1, the resident was no longer at a skilled level of care. Based on the counting of 60 days, the resident would be eligible for a new benefit period on April 2 (assuming 28 days in February). However, we need to review each day between February 1 and April 2 to make sure none of the following occurred:
If the answer to either of these questions is yes, then the resident did not earn a new 100-day benefit period based on either the provision of skilled services or failure to meet the 60-day period of wellness requirement.
There is one small wrinkle in this calculation of benefit periods. If a resident leaves the SNF and continues to receive a skilled service while residing at home, for example, this would not impact the benefit period. When reviewing skilled services received, Medicare is only looking at skilled services received while in a SNF or as an inpatient of a hospital. Skilled services rendered to a beneficiary in the home setting do not impact the Medicare Part A SNF benefit period calculation.
Myth #4: All residents who are receiving tube feeding are always skilled and always will be skilled.
This statement is both true and false. The caveat lies with the level of calories and fluid the resident is taking in through the tube. Residents who meet the 26%?50% of calories and 501 cc of fluid per day via the feeding tube, or residents who receive 51% or more of calories via the feeding tube will automatically qualify for Medicare Part A benefits in a SNF. Additionally, they are required to continue on Medicare to use a full 100-day benefit period until they drop below such levels on an MDS. These levels will also continue that spell of illness and prevent the resident from attaining the 60-day period of wellness to qualify for a new 100-day benefit period.
Residents who meet the caloric and fluid requirements of 26%?50% of caloric intake and 501 cc of fluid daily via the tube or residents who receive 51% of more of caloric intake from the tube will remain at a skilled level of care for a full 100 days, as long as they remain at those levels. In addition, the resident will not qualify for a new 100-day benefit period unless he or she:
Myth #5: As long as there is an inpatient hospital stay or Medicare Part A SNF stay within the last 30 days, we can pick the resident back up on Medicare Part A.
Although this is partly true, the most important criteria to using the 30-day window is relating the reason for coverage back to the original hospitalization or a condition that arose during treatment. If the reason to pick the resident back up under Medicare Part A is completely unrelated to the original hospitalization or subsequent SNF stay, the criteria outlined in the regulation regarding the 30-day transfer rules are not met, and the resident should not be put back on Medicare Part A.
Myth #6: A resident on Medicare Part A in a SNF can never leave the SNF for an overnight leave of absence.
Often, a resident is unable to leave the SNF due to the complexity of the services being rendered in the SNF. That said, a couple of items need to be reviewed before determining if an overnight leave of absence (LOA) is feasible:
Obviously, the first question is important to make sure the resident can be properly cared for during the LOA. It is always necessary to consult with the resident’s physician to notify him or her of the LOA request and get some feedback from the physician’s point of view on whether the LOA is feasible. The second question relates more to being sure that the practical matter criteria also discussed in Chapter 3 is being met. If a resident is able to leave the SNF on a weekly basis for an overnight visit, or if the resident leaves for prolonged periods of time three times per week to attend an off-site bingo game, for example, it is doubtful that the practical matter criterion is being met. Remember, one of the four criteria related to meeting the skilled services requirement in a SNF is the practical matter criterion in Section 30.7 of the Medicare Benefit Policy Manual (Pub. 100-02):
As a practical matter, considering economy and efficiency, the daily skilled services can be provided only on an inpatient basis in a SNF (see §30.7).
That said, although a resident may safely be able to go on LOAs frequently or for prolonged periods of time, the question becomes: Is the SNF the most appropriate place for that resident to receive those skilled services?
Myth #7: You never have to issue more than one notice regarding a Medicare stay at the same time.
If only that were a true statement. There are so many notices that it can be confusing trying to understand which notice is issued under what circumstances. To further complicate things, there are times when more than one notice will be issued at relatively the same time. Chapter 30, Section 261 of the Medicare Claims Processing Manual:
Delivery of the NOMNC does not replace the required delivery of other mandatory notices, including ABNs. Notice delivery must be determined by the individual NOMNC requirements per this section and ABN delivery requirements per §1879 of the Act and per guidance in this chapter. Both the NOMNC and an ABN may be required in certain instances.
This same manual section notes the following example of when both notices would be issued:
A beneficiary’s Part A stay is ending because skilled level care is no longer medically necessary and the beneficiary wishes to remain in the SNF receiving custodial care. The beneficiary must receive the NOMNC two days prior to the end of coverage. A SNFABN must also be delivered before custodial care begins.
Myth #8: There is never an instance where no notice is required at the end of Medicare coverage.
This is untrue! When a beneficiary exhausts his or her 100-day benefit period in the SNF, there is no notice required. The Beneficiary Notification Initiative (BNI) process allows beneficiaries to be notified and have the ability to appeal decisions being made by providers in relation to their Medicare coverage; the end of the 100-day SNF benefit period is not a provider decision, but rather a statutory end of coverage based on the Medicare guidelines, and there is nothing that the beneficiary can challenge or appeal. That said, it is recommended to communicate the end of the 100-day benefit period to the beneficiary, but no formal notice or form is required.
Bolster billing compliance: Implement a Medicare Part A triple-check process
Medicare billing is a domain rife with payer offshoots and evolving regulations that can be difficult to navigate without a strategy to weather claim scrutiny and withstand the gaze of CMS’ various auditing contractors.
Enter the triple-check process, a time-tested internal auditing strategy used by proactive long-term care providers to facilitate billing accuracy and compliance the first time a UB-04 claim form is submitted. As its name suggests, triple check is a layered verification process that involves staff members from billing, nursing, and therapy departments?the three core disciplines required to submit a clean claim. But this sturdy foundation is also pliable, allowing a facility to easily adapt the procedure to the various types of claims it files.
Read on for an expert iteration of the triple-check process, which is modified from the HCPro book The Medicare Billing Manual for Long-Term Care, written by Frosini Rubertino, RN, BSN, C-NE, CDONA/LTC. This specific triple-check procedure is designed to mobilize key staff to ensure accuracy and timely submission of Part A claims.
Procedure
Each month, the SNF will collect all Medicare Part A billing information ready for submission and enlist the following individuals to carry out their designated roles in verifying the accuracy of these items: administrator, director of nursing, MDS coordinator, facility rehab director or designee, business office manager, medical records personnel, and central supply staff.
The following is a breakdown of each of these staff members’ responsibilities in the triple-check process:
Business office manager and medical records personnel
Business office manager
Business office manager and MDS coordinator
Facility rehab director, MDS coordinator, and business office manager
DON and medical records personnel
Facility rehab director
Administrator
Triple-check meeting and audit tool
Each of the SNF’s triple-check participants should complete their respective duties prior to the Medicare triple-check meeting, which will be held monthly before the SNF bills for a given batch of services. In other words, the meeting is not an occasion for staff to complete their initial claim component(s). Instead, it’s a chance for IDT members to cross-check the work of their colleagues by verifying the accuracy of claim items that others have completed, thereby ensuring each element has been studied by multiple sets of eyes.
The triple-check meeting will also serve as the platform for the SNF’s business office manager to document the completion of each integral item on a billing claim using the triple-check audit tool, an internal checklist-type document that will be included in every month-end closing report.
Using this audit tool, the manager will denote items verified as correct during the triple-check meeting with an "X." He or she will mark items identified as incorrect with an "O" and, in the remarks section of the document, record the steps the team will take to obtain the correct information. Items initially found to be incorrect but rectified during the meeting should still be marked with an "O" to better track any practice patterns that could lead to billing slipups and inform future training activities.
The business office manager will call for any claim found to have errors during the triple-check meeting to be put on hold until it is amended. Once staff have made necessary revisions, the manager will indicate these correction(s) and the corresponding date(s) in the remarks section of the audit tool. He or she will then contact a corporate entity to review the changes and ultimately grant approval to submit the claim.
SNF therapy contracts: Your risks and what you need to know Q&A
Editor’s note: The following Q&A was written by Reginald Hislop III.
Q: When we receive proposals from various therapy companies, they all represented that they would increase our Part A and Part B billings. Should this somehow be incorporated into the contract?
A: Yes. Absolutely. If they’re willing to say that to you and they tell you, "That’s the reason why you’re going to go with us is because we’re going to do this," I am going to hold them accountable for that, and I first want to know how you determine that and how are you going to do that because I’m going to tell them right there before we even get to a contract, I’m going to say that they need to fundamentally prove it. How do you know it, how’s it going to happen, and be prepared because yeah, you’re going to put in the contract, you’re going to represent it, it’s going to be legal and you’re going to do it over what period of time? I’m then going to hold them accountable for it.
Otherwise, it becomes a common game of therapy contractors: "We’re going to make your world so much better than the last group that was in here." I’ve never seen a contractor come in and say, "We looked at your last experience with your last therapy contractor and the amount of stuff that they were doing, and by the way, we got to tell you, it really makes us nervous, and fundamentally if you go with us, we’re going to shrink your revenue by 15% because we think there’s a whole bunch of erroneous and falsely billed claims." I’ve never seen that happen. Everybody comes in and says, "Yes, we can improve your performance over this group, and we’re going to do it by a pretty impressive margin, and your revenue is going to go up, your claims are going to go up." I want to know how they’re going to do that, I want it in the contract, and I want full transparency. I want to know over what time period, because without that, they haven’t actually validated they will be able to do that. That’s a standard pitch, and they have never yet been expected in many cases to be accountable for those kind of numbers. It’s just a sales pitch, but, if they’re going to say it, I want it in the contract.
Q: Would the indemnification clause you mentioned, indemnification not just for the therapy component but the whole amount?how can the therapy company indemnify money they did not receive?
A: How can they indemnify money they did not receive? We’re not talking about necessarily indemnification for money they received. We’re talking about indemnification for services that they provided as part of the representation that all of our services that we provide are going to be compliant and in concert with the law. Since the SNF is responsible for that, my responsibility then is to negotiate with that company and say, "By the way, if in fact we’re involved in this work and you’re going to be part of this process and you’re going to have input in terms of what we RUG, what we bill, part of our triple check and all the rest of that other kind of stuff, there is dollars on the table, and anything that you did that was illegal, unethical, or improper that caused us to lose revenue as a result of your actions and your documentation, all those other kinds of things because you’re going to represent to me that you’re going to do this, you’re going to properly manage and supervise your employees and all those other kinds of things, that if in fact you didn’t do that, you’re going to be responsible not just for what we paid you but also for what your bad acts caused this facility." Yes, I can indemnify them for that because they are part and parcel to that. They’re going to represent to me that they’re going to do this the right way, and if they don’t, then they’re going to have shared risk for anything that occurs that they were responsible for or could be tied to them that cost my facility money or my organization money.
Q: How do we hold the therapy provider accountable for an 80% productivity level?
A: You actually monitor their productivity levels. Their treatment records should be open. Their minutes should be open. I should be able to see when they were on-site, what their time was spent on this site, what I was billed for because I’m being billed for their time. And I should be able to go to treatment logs and treatment records and look at what their billing time was and th
Editor’s Note: Click the PDF button above for a full edition of the August 2017 edition of Briefings on Accreditation and Quality
Many were shocked by The Joint Commission’s newest standards and elements of performance (EP) on medical device maintenance. The accreditor will no longer distinguish between “high-risk” and “non-high-risk” equipment when surveying maintenance and inspection compliance. Instead, facilities are expected to achieve 100% inspection compliance for both types of devices.
But hold off before panicking over how you’re supposed to track down and inspect 100% of the medical devices in your facility. The new standards have exceptions written into them for items that are in use or have gone missing.
On June 2, CMS issued a new memo to surveyors on the importance of reducing cases of Legionella infections. Not long after, the Centers for Disease Control and Prevention (CDC) sent out a Vital Signs report underlining the bacterium’s risk to patients. Accredited facilities should double-check their waterborne pathogens compliance, as surveyors will likely pay more attention to it in upcoming surveys. The contents of this memo go into effect immediately.
This April, CMS published its hospital inpatient prospective payment system (IPPS) proposed rule for fiscal year 2018. One section in particular would require accrediting organizations (AO) to make survey reports or plans of corrections (PoC) publicly available online within 90 days of the information becoming available to the healthcare organization. However, there are concerns that this move creates an uneven playing field in hospital quality and oversight. It’s also argued that the public might have trouble deciphering the contents of accreditation reports, leading to more confusion.
The Joint Commission unveiled a new Medication Compounding Certification (MCC) program in January with the goal of reducing the harm stemming from drug compounding and ensuring compliance with U.S. Pharmacopeial Convention (USP) and Joint Commission standards. All compounding pharmacies are eligible to enroll in the program, including organizations not accredited by The Joint Commission. Meanwhile, USP Chapter <800> goes into effect on July 1, 2018 and contains major changes aimed at protecting healthcare workers from exposure to hazardous drugs and materials. The following is an edited Q&A with Kurt Patton, MS, RPh, a former director of accreditation services for The Joint Commission and founder of Patton Healthcare Consulting in Naperville, Illinois. He spoke with BOAQ on the details surrounding medication compounding.
New PSO guidance raises questions over patient safety work product privilege
In May, the U.S. Department of Health and Human Services (HHS) published Guidance Regarding Patient Safety Work Product and Providers’ External Obligations in the hopes of clarifying what documents are considered patient safety work product (PSWP) and thus protected from discovery during litigation. Because the guidance has far-reaching implications for the scope of the privilege and confidentiality protection, providers should consider reexamining their process for collecting information in the pursuit of improving patient safety.
Under the Patient Safety and Quality Improvement Act (PSQIA), providers collect and manage information through a patient safety evaluation system (PSES), which is then sent to a patient safety organization (PSO) for analysis and feedback. To motivate providers to participate in PSOs, PSQIA entitles the submitted information broad privilege and confidentiality protections.
According to Michael R. Callahan, Esq., partner at Katten Muchin Rosenman, LLP, in Chicago, the guidance may impact how discoverability disputes are handled in courts. To understand why, consider the three primary buckets of patient safety information:
Disputes will arise from reports that fall into bucket two, Callahan says. HHS’s guidance stated that this type of information isn’t PSWP, but not all state and federal laws have crystal clear language defining what information hospitals need to collect and maintain.
"You will seldom find in the state and federal laws a specific list of documents which identifies the kinds of records and reports a provider is required to maintain and collect and to make available for inspection by a governmental authority. It is not that clear cut and hospitals use different terminology," he says.
For example, Callahan points out that in the case Tibbs v. Bunnell, discussed later in this article, the dispute was over the question of whether an incident report collected and reported to a PSO by a defendant hospital was a bucket two document. "The language under Kentucky law obligated the hospital to maintain and collect ‘incident investigation reports’ but does this refer to the incident report, a resulting root cause analysis report or a peer review investigation report? Is it all or none of the above?"
The PSO guidance
The guidance, which was published in the Federal Register in May, clarifies what information can and cannot be called PSWP. Information can be PSWP if:
Information that can’t be PSWP includes:
One criticism of the guidance is its expansion of the concept of original patient and provider records, Callahan says. PSQIA states these records, such as medical records and billing information, can never be privileged. The guidance further clarified the scope of what these records include:
Callahan takes issue with HHS’ expansion of the definition of an original patient and provider record to include bucket one and bucket two documents, especially since it was put forth in guidance and not a final rule.
Requirements under the Administrative Procedure Act require a notice and comment period before a final rule is adopted. However, HHS chose to issue the guidance without following this procedure and therefore it should only be viewed as an interpretative rule, Callahan says. The U.S. Supreme Court decision earlier this year in the case of Perez v. Mortgage Bankers Association found that interpretive rules "do not have the force and effect of law."
"The guidance is simply an interpretation provided by HHS. While it certainly expresses the position of HHS, the Office of Civil Rights and the Agency for Healthcare Research and Quality (AHRQ) from a regulatory enforcement standpoint, it is not binding on state or federal courts," he says.
As a result, different interpretations of PSQIA will likely lead to continued challenges to court orders to turn over documents hospitals believe to be PSWP. Some of these discoverability disputes have made their way to state supreme courts.
Southern Baptist Hospital of Florida v. Charles
In a case that will go before the Florida Supreme Court later this year, Southern Baptist Hospital of Florida v. Charles, the PSO guidance may play a role in determining whether occurrence reports?reports that hospital collects and maintains for events that are inconsistent with its routine operations or care of patients, or that could result in an injury?are PSWP.
The plaintiff sued Southern Baptist Hospital of Florida, claiming his sister suffered a catastrophic neurological injury due to negligence. During discovery, the plaintiff requested documents related to adverse medical incidents and the conduct of physicians who worked at the hospital. This request was made pursuant to Amendment 7 of the Florida Constitution, which provides patients with the right to access "any records made or received in the course of business by a healthcare facility or provider relating to any adverse medical incident."
Although the hospital produced some of the requested documents, it declined to turn over occurrence reports that were collected within its PSES and reported to its PSO, claiming they were PSWP and therefore privileged and confidential under PSQIA.
The plaintiff argued that PSQIA only protects documents generated exclusively for submission to a PSO, so anything collected to also satisfy a state law is not PSWP. The circuit court agreed, finding that information collected for dual purposes was not PSWP and ordered the hospital to produce the documents.
This order was later reversed by an appellate court, which said the documents were PSWP because they were collected in the hospital’s PSES and reported to a PSO. Further, documents can simultaneously be PSWP and meet a state reporting requirement. The plaintiff appealed to the state supreme court, which will hear the case in October.
Since the documents in question fall into bucket two, the plaintiff will likely cite the guidance to support a position that the reports can’t be treated as PSWP and therefore are discoverable, says Callahan. However, the argument can be made that the guidance is not legally binding on the courts.
Tibbs v. Bunnell
The release of the PSO guidance likely contributed to the U.S. Supreme Court’s denial to hear Tibbs v. Bunnell. The case would have provided a nationwide interpretation of the scope of privilege and confidentiality protections under PSQIA for reports submitted to PSO, as well as whether PSQIA preempted state laws.
In Tibbs, a patient’s estate brought a wrongful death and medical malpractice suit against three surgeons employed by University of Kentucky Hospital. The plaintiffs sought to discover a post-incident event report generated by a surgical nurse through the hospital’s PSES and subsequently sent to its PSO.
At trial, the hospital argued that the report was protected under PSQIA and therefore not subject to discovery. However, the trial court ruled that the report was not protected under PSQIA. The hospital appealed.
Although the appellate court found that the privilege provided by the PSQIA did preempt the Kentucky state law, it stipulated that protections afforded by PSQIA only apply to documents that contain "self-examining analysis," meaning those in which the provider analyzes his or her own actions. The court then sent the matter back to the trial court for evaluation of whether the report contained self-examining analysis.
The hospital appealed to the Kentucky Supreme Court, arguing that the appellate court erroneously limited the scope of privilege protections under PSQIA. The Supreme Court reversed the Court of Appeals’ interpretation of PSQIA, finding it too narrow. However, it also ruled that the incident report was not protected under PSQIA because its creation, maintenance, and utilization was required in the regular course of the hospital’s business, as well as under Kentucky state law. Therefore it cannot be collected within the hospital’s PSES and treated as PSWP.
In response, the hospital filed a petition for the U.S. Supreme Court to review the Kentucky Supreme Court’s decision. The petition had the support of more than 50 PSOs, hospitals, and health systems from across the country, as well as the American Hospital Association, AMA, and The Joint Commission. Last October, the court asked the U.S. solicitor general to file a brief on his views of the case and whether the petition should be granted or denied.
Just as the guidance was published, the solicitor general filed his brief to the court. The brief recommended that the court deny the petition in light of the guidance issued by HHS and because hearing the case would be premature until it is seen how the lower courts interpret and apply the guidance.
In June, the U.S. Supreme Court denied the petition without comment and without remanding the case back to the Kentucky Supreme Court to take the guidance into consideration. This leaves the Kentucky Supreme Court’s ruling in place, although the decision is only binding on Kentucky courts.
Carron v. Rosenthal
Regardless of the U.S. Supreme Court’s denial to hear Tibbs, discovery disputes are still playing out in other courts. The Rhode Island Supreme Court will be hearing an appeal of an order for a hospital to produce incident reports in Carron v. Rosenthal. In this case, the plaintiff is suing her obstetrician and Newport Hospital for medical malpractice after her newborn baby suffered irreversible brain damage following a failed labor induction and died days later.
Two nurses prepared incident reports known as Medical Event Reporting System (MERS) reports, which were submitted to the hospital’s PSO. The hospital also produced separate state-mandated adverse event reports.
Later during discovery, the nurses were deposed but had difficulty remembering what had happened, so the plaintiffs asked that the hospital produce the MERS reports. The hospital objected, citing PSQIA and the Rhode Island Patient Safety Act.
According to Callahan, much of the plaintiff’s argument was based on the Kentucky Supreme Court’s decision in Tibbs that reports required by state statutes can’t be treated as PSWP. However, Newport Hospital argued that in Tibbs, the University of Kentucky Hospital collected state mandated reports in its PSES. At Newport Hospital, state mandated reports are collected separately. The MERS reports were separate reports distinguishable from the mandated reports and therefore were PSWP, according to the hospital.
Despite this argument, the trial court ruled in favor of the plaintiff and order the hospital to show the MERS reports to the nurses?but not the plaintiff?to refresh their memories before they were to be deposed again. The hospital appealed and, because Rhode Island does not have an appellate court, the state supreme court exercised its discretion to hear the hospital’s appeal. A decision is expected later this year.
What can providers do?
With the U.S. Supreme Court declining to hear Tibbs, and ongoing confusion in regards to the guidance, providers that participate in a PSO have a few options for how to proceed.
Providers can choose not to do anything and simply maintain the status quo as they wait for further regulatory or judicial developments, says Callahan. "We have these other cases before state supreme courts and it’s conceivable one of those will be appealed. It doesn’t mean the U.S. Supreme Court is going to accept one of these other ones, but that’s a development that providers may want to wait on."
PSOs will also likely have questions about the guidance and will reach out to AHRQ for additional guidance, so providers will want to wait to see if there is any further clarification, he says.
Providers that choose to comply with the guidance will need to determine if any information they were previously collecting in their PSES for reporting to their PSO is no longer considered PSWP. These providers will need to review state and federal laws, including the Quality Assurance and Performance Improvement standards set forth in the Medicare CoP, to ensure the information doesn’t fall into buckets one or two, Callahan says. Anything that’s determined to fall into those two buckets will require modifications to the provider’s PSES policy.
Since the guidance is an interpretive rule, some providers may choose to fight requests to turn over disputed documents, Callahan says. Providers would choose this path if they believed a court would be more likely to side with their interpretation of PSQIA.
More drastically, providers could simply decide to abandon their PSOs altogether. However, there are several factors to consider before making that move, says Callahan.
The Affordable Care Act requires hospitals with more than 50 beds that want to provide healthcare services to patients enrolled in a state insurance exchange to be enrolled in a PSO. This was modified to allow hospitals to meet the requirement by contracting with a hospital engagement network (HEN) or quality improvement organization (QIO).
However, contracting with a HEN or QIO doesn’t offer providers the same privilege protection received from participating in a PSO. Those providers would still have their state law protections, but those vary and some states may not have any protections at all or limited protections, Callahan says.
Providers considering leaving their PSO will need to evaluate their state protections, including the scope of protected activities and entities.
"Using Illinois as an example, [state law protections] only generally apply to hospitals, surgery centers, and managed-care entities. The statutes do not apply to physicians, physician groups, labs, pharmacies, home health, or other licensed providers. So if you have formed a clinically integrated network with all these different provider boxes, only the hospital?for all practical purposes?will be protected," Callahan says.
Providers should also check to see if it’s possible under state law to inadvertently waive the privilege if protected information is not handled correctly (e.g., information is disclosed improperly). Under PSQIA, the protections afforded to PSWP can never be waived.
Callahan also notes it’s important for providers to know that state privilege protections only apply in state courts or state claims. So, for example, if a physician is terminated but falls under a protected class (race, age, sex, religion, etc.), he or she can file a federal claim. The physician can then request access to protected peer review documents. Although the hospital may try to argue that they are privileged and confidential under the state peer review statute, state privilege statutes cannot be asserted to preempt federal claims. However, if the documents were collected in a PSES and reported to a PSO, they would not be undiscoverable.
"The PSQIA has many advantages to offer. Part of the problem, however, is that there are not many appellate court interpretations of the law and most of those decision have only involved medical malpractice cases" Callahan says. "Unfortunately, because the U.S. Supreme Court denied the petition in Tibbs, these disputes will have to be decided on a state-by-state basis. This is great for the attorneys but not helpful for PSOs and participating providers."
Case summary
Texas Supreme Court grants writ of mandamus for peer review committee records
The Supreme Court of Texas (the "Court") recently held that a trial court failed to adequately review allegedly privileged documents?to determine if they were disclosable pursuant to an exception to the state’s peer review statute?before issuing an order compelling Christus Santa Rosa Health System to produce them. As a result, the Court granted a petition for writ of mandamus filed by Christus, ordering the lower court to inspect the documents in question.
The documents concerned a peer review committee convened to review an unsuccessful surgery performed by Gerald Marcus Franklin, MD, in March 2012 to remove the left lobe of a patient’s thyroid gland. Franklin instead removed thymus gland tissue, requiring the patient to undergo a second surgery.
According to Franklin’s deposition, several weeks after the failed surgery he met with a three-member medical peer review committee to provide a verbal report. He said that complications arose due to an abundance of scar tissue, which made it difficult to distinguish between thymus and thyroid tissue. The unavailability of a cryostat machine, a critical piece of equipment that Franklin would have used during the surgery to diagnose the removed tissue, led him to end the surgery. During the meeting, the committee concluded that Franklin’s actions were reasonable and the committee chose not to take action.
As a result of the failed surgery, the patient filed a malpractice lawsuit against Franklin and his medical group in March 2013. Franklin subsequently filed a motion to designate Christus as a responsible third party, alleging that the unavailability of the cryostat machine was responsible for the surgery’s failure. The patient went on to add Christus as a defendant in the suit.
In March 2014, Franklin served Christus with a request to produce documents from its medical peer review file. Christus objected, arguing that the documents were protected from discovery under the medical peer review committee privilege provided by the Texas Occupations Code section 160.007(a), which states, "[E]ach proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged."
Following an in camera review, the trial court ordered Christus to produce the documents under a protective order that mandated that they be disclosed only to Franklin and his attorneys.
Christus filed a motion to reconsider, which the trial court denied. Christus then filed a petition for writ of mandamus in the court of appeals, which was also denied, leading to it filing the petition with the state supreme court.
At issue was the interpretation and scope of an exception provided by Texas Occupation Code section 160.007(d), which states, "If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a healthcare entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision."
Franklin argued that the documents were subject to disclosure under the exception because, even though the committee opted not to take any action, the medical peer review committee had the opportunity to recommend discipline.
The Court disagreed with Franklin’s interpretation of the privilege: "Looking to the intent of the Legislature, as we must, we conclude that the Legislature intended a medical peer review committee do more than simply convene for review for the exception to apply."
The Court found that applying this interpretation would require disclosure of a medical peer review committee’s documents every time it conducted a review, regardless of its outcome.
"Under this interpretation, it is difficult to conceive of an instance where the physician would not be entitled to the documents and the documents would remain privileged. This would in turn enfeeble confidentiality and prevent physicians from engaging in candid and uninhibited communications, which is essential for improving the standard of medical care in the state," the Court wrote.
The Court also found that the trial court did not review the documents in camera sufficiently to determine if the medical peer review committee took any actions that could result in one of the disciplinary actions listed in the exception to the medical peer review committee privilege, such as censure, suspension, or denial of privileges.
The trial court judge had stated he went through the documents page by page only to ensure that patient’s health information and social security numbers were not disclosed and didn’t look at the documents "closely enough" to determine whether the committee had taken any actions. Christus had argued that an in camera inspection of the documents would clarify if the exception applied.
The Court concluded that the trial court abused its discretion when it ordered Christus to produce the medical peer review committee documents; and ordered the trial court to vacate its order compelling production of the documents and to review the documents further to see if the exception applies.
Source: In re Christus Santa Rosa Health Sys., No. 14-1077 (Tex. May 27, 2016).
What does this mean for you?
J. Michael Eisner, Esq., of Eisner & Lugli in New Haven, Connecticut: The Court’s decision stands for the fundamental proposition that a court must comply with the plain meaning of the statutes that it is interpreting. While this may seem to be a "no brainer," too many courts ignore the plain meaning of statutes and act as if they were legislative bodies. Here, the statute required that disclosure only be made if the peer review committee recommended certain actions. According to the Texas Supreme Court, in spite of the clear wording in the statute, the trial court ordered disclosure without making the requisite determination(s). The Supreme Court sent the matter back to the trial court, ordering it to follow the statute.
Legal and regulatory news roundup
Find out what’s happening in the world of federal healthcare regulations by reviewing some recent headlines from across the country.
Senate Finance Committee aims to reform Stark Law
The Senate Finance Committee hopes to introduce legislation to reform the federal physician self-referral law, commonly referred to as the Stark Law. During a recent hearing, Chairman Orrin Hatch (R-Utah) said the committee would take some action by the end of 2016 but did not elaborate on what that might be.
In June, Hatch released a white paper discussing potential reforms to the Stark Law. Several commenters suggested repealing the law in its entirety. Others suggested changes to the law that would allow providers to implement new payment models.
In a statement released with the white paper, Hatch said the Stark Law is "a real burden for hospitals and doctors trying to find new ways to provide high quality care while reducing costs as they work to implement recent healthcare reforms."
Hundreds charged with healthcare fraud in nationwide sweep
More than 300 physicians, nurses, and other medical professionals across the country allegedly involved in healthcare fraud schemes face criminal and civil charges following what the U.S. Department of Justice called the largest coordinated takedown in history. The Medicare Fraud Strike Force in 36 federal districts led the sweep, which also involved 23 state Medicaid Fraud Control Units and 26 U.S. Attorney’s Offices.
The individuals charged are suspected of collectively submitting approximately $ 900 million in fraudulent billing to Medicare and Medicaid. They face multiple healthcare fraud-related charges, including conspiracy to commit healthcare fraud, aggravated identity theft, money laundering, and violations of the anti-kickback laws for schemes in which they submitted claims for medically unnecessary treatments. Often the treatments were never provided. In some cases kickbacks were paid to Medicare beneficiaries, patient recruiters, and other co-conspirators in return for providing beneficiary information to providers to use in submitting fraudulent billing.
Some of the highlights of the sweep include:
In an announcement of the arrests, Attorney General Loretta E. Lynch said, "The wrongdoers that we pursue in these operations seek to use public funds for private enrichment. They target real people?many of them in need of significant medical care. They promise effective cures and therapies, but they provide none. Above all, they abuse basic bonds of trust?between doctor and patient; between pharmacist and doctor; between taxpayer and government?and pervert them to their own ends."
Cardiologist agrees to pay $ 2 million to settle kickback, false billing lawsuit
Asad Qamar, MD, of the Institute of Cardiovascular Excellence (ICE) of Ocala, Florida, has agreed to pay $ 2 million to resolve a lawsuit alleging he paid kickbacks to patients and improperly billed Medicare, Medicaid, and TRICARE?a healthcare program of the U.S. Department of Defense Military Health System. Qamar will also release any claim to $ 5.3 million in suspended Medicare funds and agreed to a three-year exclusion from participating in any federal healthcare program. This will be followed by a three-year integrity agreement with the Department of Health and Human Services Office of the Inspector General.
According to the U.S. Department of Justice, the lawsuit against Qamar claimed that he and ICE billed for peripheral artery interventional services and other related procedures, many of which were medically unnecessary according to the patients’ medical histories or records, or by the severity of their symptoms.
The lawsuit also alleged that Qamar and ICE persuaded patients to agree to the unnecessary procedures by routinely and indiscriminately waiving the 20% Medicare copayment. The copayment is typically used to help patients be smarter healthcare consumers and deter them from unnecessary procedures.
According to The Wall Street Journal, following a legal effort by the paper, CMS made public Medicare payment data which showed that Qamar had collected more than $ 18 million from Medicare in 2012. That ranked him second highest paid among all physicians in the country and four times more than the third highest paid cardiologist.
The settlement resolves two consolidated lawsuits originally filed under the whistleblower provision of the False Claims Act. The two individuals who originally brought the suit will receive about $ 1.3 million for their share of the settlement.
Former Warner Chilcott president acquitted on anti-kickback charge
W. Carl Reichel, former president of Warner Chilcott, was found not guilty of conspiring to pay kickbacks to physicians to induce them to prescribe its drugs.
The government’s case against Reichel alleged that he encouraged members of the sales force to provide physicians with payments, meals, and other rewards. According to court documents, Reichel was acquitted on grounds that there wasn’t insufficient evidence to suggest that he had ever given the sales team any such direction.