Firm News & Legal Alerts

Thursday, August 1, 2013

SELF-AUDIT FOR HIPAA COMPLIANCE – IS YOUR PRACTICE READY?


Physician practices are frequently advised to know the requirements for obtaining reimbursement from a payor for services rendered and to have necessary documentation in place to withstand an audit. But do you know the same holds true to withstand a HIPAA audit of your practice conducted by the U.S. Office for Civil Rights? In other words, every physician practice should know the minimum requirements of the HIPAA Privacy, Security and Data Breach Notification rules and be prepared to prove compliance should OCR come calling. OCR’s audit protocol is extremely comprehensive but, as a starting point, you should make sure you have forms, policies and procedures in place to implement the following:

 

Privacy Rule requirements:

Notice of Privacy Practices

Revised Notice required as of September 23, 2013

Patient rights to request restrictions on disclosure of PHI

Certain restriction requests must be granted

Patient rights to access their PHI

Special rules apply for EHR

Uses and disclosures of PHI

Special authorizations apply for certain disclosures

Accounting of disclosures

Accountings differ when an EHR is involved

Amendment of PHI

Protocol required for responding to patient requests to amend

Business Associate Agreements

Revised agreements to reflect new definitions and subcontractors

Training of personnel, including physicians

Documented training must occur upon hire and at least annually

 

Security Rule requirements:

Administrative safeguards

Mandatory security risk assessment

Workforce security and training

Contingency plan

Security awareness and training

Physical safeguards

Facility access control

Workstation use and security

Device and media controls

Technical safeguards

Access control

Transmission security

Encryption analysis

Secure patient portals

 

Breach Notification Rule requirements:

Protocol for responding to a security incident

Data Breach Notification Policy and Procedures required

State laws must be addressed

Risk assessment to determine whether a breach has occurred

New factors must be applied

Steps to take when a breach has occurred

Documentation of the investigation must be maintained

Notification of affected individuals, HHS and the media

Timeframes must be met

 

If you are missing any of the above in your HIPAA Compliance Program, your practice will be at risk come September 23, 2013.
Read more . . .


Saturday, June 1, 2013

NEW WEAPON TO COMBAT FALSE CLAIMS AGAINST NEW JERSEY’S MEDICAID PROGRAM


Perhaps the biggest federal tool used in the battle against health care fraud is a federal civil statute entitled the False Claims Act (FCA). It has been described as the single most important tool taxpayers have to combat fraud committed against the federal government. To give you an idea regarding its effectiveness, in fiscal year 2010 the U.S. Justice Department secured $3 billion in civil settlements and judgments in cases involving fraud against the government.
Read more . . .


Saturday, June 1, 2013

ARE THE COURTS TURNING DEFENSE ATTORNEYS INTO “POTTED PLANTS”?


A recent decision from the New York Appellate Division, Fourth Department, Sciara v. Surgical Associates of Western NY, et al. may well have opened the door to the potential abuse of pre-trial depositions by allowing parties to circumvent the ability of non-parties (including physicians) to avail themselves of their right to legal counsel.1 

In the matter of Thompson v. Mather, a decision was reached by the Appellate Division which rigidly prohibited counsel for non-party witnesses from participating in a pre-trial deposition under CPLR 3113.
Read more . . .


Wednesday, May 22, 2013

Recent Changes: Scope of Practice for NPs and PAs

With the ongoing shortage of primary care providers, many states are expanding the ability of physician extenders to practice independently. These providers consist of nurse practitioners (NP) and physician assistants (PA).  This recent trend has come to New York as well, evidenced by the recently passed New York State 2013-2014 budget.

In the recent budget process, the Legislature expressed a strong interest in providing further independence regarding NP’s scope of practice.  The proposed legislation was not included in the final budget, but nevertheless appears to be an issue that the Legislature will take up again in the near future. The 2013-2014 budget did, however, make changes to the scope of practice of PAs; amending New York State Education § 6542(3 and 5), to increase the number of PAs that a physician can supervise in their private practice, from two to four. 


Read more . . .


Wednesday, May 1, 2013

THE SUNSHINE LAW – PART TWO


On February 8, 2013, the Center for Medicare and Medicaid Services issued the Final Rule1 to implement Section 6002 of the Patient Protection and Affordable Care Act (PPACA) referred to as the “Sunshine Law.”2 The Sunshine Law requires applicable manufacturers of drugs, devices, biological or medical supplies (“applicable manufacturers”) covered under Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”) to report annually certain payments or other transfers of value to physicians and teaching hospitals to the Secretary of Health and Human Services (“HHS”). Applicable manufacturers and applicable group purchasing organizations (“GPOs”) must report certain information regarding the ownership or investment interests held by physicians or their immediate family members in such entities. HHS is required by statute to publish the reported data on a public website.  

According to HHS, payments from manufacturers to physicians and teaching hospitals can cause conflicts of interest that may influence research, education and clinical decision-making in ways that compromise clinical integrity, and may lead to health care costs.
Read more . . .


Thursday, February 14, 2013

AMA Issues Principles for Physician Employment By Hospitals

The AMA House of Delegates recently adopted, at its 2012 Interim Meeting, the AMA Principles for Physician Employment, which are designed to “help physicians, those who employ physicians, and their respective advisors identify and address some of the unique challenges to professionalism and the practice of medicine arising in the face of physician employment.” (http://www.ama-assn.org/resources/doc/hod/ama-principles-for-physician-employment.pdf).

While the Principles are not binding for disciplinary purposes, in the same manner as the AMA Code of Medical Ethics, the House of Delegates intended to “provide broad guidance for employed physicians and their employers as they collaborate to provide safe, high-quality, and cost-effective patient care.”


Read more . . .


Thursday, January 10, 2013

Hospital Bankruptcy Risks for Physicians

The recent Chapter 11 bankruptcy filing by Interfaith Medical Center, Inc., serves as a reminder to physicians (and other healthcare providers) of the importance of doing a thorough investigation, and asking the right questions, before entering into contractual relationships (such as an employment contract) with hospitals in New York.  In our experience through representation of physicians in the bankruptcy cases involving various hospitals, it is not unusual for physicians or residents to learn - - unfortunately, after the fact - - that hospitals have provided insufficient or no medical malpractice insurance despite being promised in the employment contract.  In some cases, the hospital held itself out as “self insured,” but did not segregate the funds needed to actually cover malpractice claims.  In other cases, there was inadequate funding to purchase tail coverage.


Read more . . .


Wednesday, October 24, 2012

Court Affirms 2004 Ruling Pursuant to Federal Privacy Act

As a physician, learning that you are the subject of an Adverse Action Report filed with the National Practitioner Data Bank (NPDB) is distressing, to say the least. It can have significantly negative ramifications on a physician’s professional practice and reputation. The NPDB is a federal clearing house, maintained by the United States Department of Health and Human Services, which collects information on every physician who has been the subject of a medical malpractice payment, adverse medical staff privileging action, Board or Professional Society discipline and/or state licensure penalty. Whenever a physician seeks to obtain or renew his/her professional credentials, such as for a medical license, hospital privileges, or malpractice insurance, the NPDB is

“queried,” which in turn could lead to adverse credentialing decisions. Needless to say, these issues are particularly upsetting if the physician believes the original report filed with the NPDB was inaccurate or misleading in the first place.


Read more . . .


Wednesday, October 3, 2012

Commercial and Governmental Payer Audits and Withholds

The withholding by commercial and governmental payers of proper reimbursement for the provision of healthcare services, based on allegations of improper billing or fraud, continues to be a major financial hurdle facing healthcare providers.  For instance, New York Insurance Law § 3224-b allows commercial health plans to provide no more than 30 days written notice to physicians before engaging in “overpayment recovery efforts,” which can be justified after they “suspect” fraud, intentional misconduct, or abusive billing.
Read more . . .


Monday, October 1, 2012

Recent Healthcare Law Developments: Court Affirms 2004 Ruling

Court Affirms 2004 Ruling that Healthcare Providers Can Challenge Inaccurate National Practitioner Data Bank Reports Pursuant to the Federal Privacy Act.  As a physician, learning that you are the subject of an Adverse Action Report filed with the National Practitioner Data Bank (NPDB) is distressing, to say the least. It can have significantly negative ramifications on a physician’s professional practice and reputation.  The NPDB is a federal clearing house, maintained by the United States Department of Health and Human Services, which collects information on every physician who has been the subject of a medical malpractice payment, adverse medical staff privileging action, Board or Professional Society discipline and/or state licensure penalty. Whenever a physician seeks to obtain or renew his/her professional credentials, such as for a medical license, hospital privileges, or malpractice insurance, the NPDB is “queried,” which in turn could lead to adverse credentialing decisions.  Needless to say, these issues are particularly upsetting if the physician believes the original report filed with the NPDB was inaccurate or misleading in the first place.


Read more . . .


Friday, September 7, 2012

Ziad Akl, M.D. Case Revisited

Recently, on September 7, 2012, the United States District Court, for the District of Columbia, revisited the issue in a case filed by plaintiff, Ziad Akl, M.D., who argued that the summary suspension of his hospital privileges was motivated by malice and bad faith, and therefore the resulting Adverse Action Report should either be voided or amended. (Case No: 08-0461).  In Akl, the Court dismissed the action, finding that the plaintiff failed to meet his burden of proof in showing the inaccuracy of the NPDB reports at issue.  Nevertheless, the Court re-affirmed the Doe Court’s general holding that the Act does provide a viable legal theory to challenge the factual accuracy of an Adverse Action Report, where the internal review processes contained in the NPDB regulations have been unsuccessfully exhausted.


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