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The explanations of the HIPAA privacy rules were released on
July 6, 2001. These go into effect April 14, 2003. They are too
numerous and complicated to go into here. I have written a separate Newsletter
published today at
www.medicalaw.net
on this subject detailing what physicians and hospitals will need to do by that date. Top
HCFA (now CMS) has published in the Federal Register a rule to allow states to opt out of the rule requiring nurse anesthetists to work under the supervision of anesthesiologists. The Governor of each state with consultation with the state Board of Medicine and Nursing can allow nurse anesthetists to work without supervision. This will help states with many rural hospitals. The comment period for this proposed rule is through September 4, 2001. Top
Texas has a new law that takes away licenses of any professional that does not repay federal or state loans. As of May, 2001 doctors owed $166 million to HEALS, one of several federal loan systems. Of course when they take away the license they take away any possibility of repaying the loan, a true lose, lose situation. For informational purposes student loans are not dischargeable in bankruptcy. Top
California reimburses its physicians less than most other states. They rank 37th but 42nd when geographic costs were considered. The pay is about 2/3 of Medicare reimbursement for comparable services. Is is any wonder that California physicians are not taking these patients and more hospitals are dropping their contracts. Top
The GAO reports health care providers are not at fault for many violations of the Stark and EMTALA laws. The problem is the ambiguity of the laws. The report states that under EMTALA the providers don't mean to break the law but the rules are so confusing and enforcement varies depending on the district. With the Stark Laws, not only are they confusing but consultants are steering providers to upcode and keep payments not due them. These reports may hurt the attempted easing of some HHS regulations.
As long as I am on the subject, 13 states have laws allowing providers not to pay back private (non-Medicare, Medicaid) insurers who have been overpaid a significant time in the past. These states are Arkansas, California, Florida, Georgia, Illinois, Indiana, Maryland, Missouri, Nebraska, new York, Oklahoma, Tennessee and Texas. What's the matter with the rest of you Hospital and Medical Associations? Lobby, Lobby, Lobby. Top
The AMA has lost the American Board of Obstetrics and Gynecology. The Board believes the AMA is out of step with women's issues. This is only a symbolic gesture but should serve as a warning that their power as an advocate continues to diminish. This is not the first time this has happened. Other surgical groups have left in the past. The AMA also was sued for $5 million by it's CEO and it's done during the House of Delegate's meeting. The House then voted to defer any action on the AMA Physician Masterfile that is a goldmine for pharmaceutical companies and generates $23 million a year for the organization. Top
Modern Healthcare has reported on the top 100 cardiovascular hospitals in the U.S. The criteria were mortality and morbidity rates but only if tied to reduced costs. The hospitals were across the country but Florida led the way with nine. The problem with these reports are the usual, not enough information as to what parameters were used in the determinations. Top
DaVita, a California based dialysis company, replaced Thomas Scully on it's Board of Directors. Scully went to Washington to be the head of CMS under Secretary Thompson. DaVita wasted no time in replacing him with two prestigious people. They named Nancy-Ann DeParle was HCFA Administrator and is also a member of the Boards of Triad Hospitals, Guidant Corp., Cerner Corp., and Specialty Laboratories. All these get a lot of business from the Feds. DaVita gets about 60% of its business from Medicare and Medicaid. The other new Board member is William Roper, M.D. Dr. Roper also was head of HCFA but under the Reagan administration. He also was the head of CDC under President Bush. He is on the Board of Luminex. DaVita has all bases or at least both sides of the aisle covered. Top
HCFA has changed more than it's name. CMS has become more organized. It now has a policy that it will issue rules and regulations only once a month and will state in advance when those days are. One of the main reasons for this change is to focus on the amount of regulations by the agency. When CMS files the Federal Register will be a lot fatter than usual. CMS also hopes to make the rules more understandable, which would be a major help.
In other Medicare news the organization will now cover some preventative services. They had in the past agreed to PSA and mammograms. Now they are adding glaucoma screening, medical nutrition for diabetics and those with renal disease along with bone mass measurements, fecal occult blood q 1 year, flexible sigmoid q 4 years, colonoscopy q 2 year, coverage for glucose monitors, strips and lancets, mammograms q 1 year, pap and pelvic q 3 years unless high risk then 1 per year, PSA and DRE q 1 year and Flu shots once a year. Top
Maryland is attempting to deregulate the method of hospital reimbursement. If they want to see how smoothly things can go, they need to look no father than the state that follows them in alphabetical order, Massachusetts. That state deregulated in 1991and has had nothing but trouble since. This is not unusual for the People's Republic of Massachusetts. They now have an underfunded Medicaid system for trying to do something for everybody. Their hospitals are consolidating due to poor monetary performance. They force physicians to join the Medicaid market and wonder why they can not keep a handle on costs. Massachusetts is so self-centered that it will not reintroduce rate setting but instead will continue to preach more cost cutting, an impossible task, and begging for more federal and state government hand outs. Now The People's Republic says that the cigarette tax will bail out the unfunded mandates. The taxpayers Foundation disputes that assumption since it is only a one time event and not a long term strategy. When will they ever learn. No one can be everything to everybody? Top
Pennsylvania Has New MD Web Site
Pennsylvania has started new Web site regarding physician licenses. The site will contain information as to whether the physician is currently under discipline or has been disciplined by the Board of Medicine in the past. It will not say why the discipline. For that information a call will be necessary. The State hopes to be able to do license renewal over site in the future. The site www.LicensePA.state.pa.us has been criticized by "consumer advocates" as not going far enough. Florida lists the case number and the amounts of suits and settlements as well as board certification. Virginia has just passed a bill to not allow unsubstantiated charges from being posted on its web site. The site originally was to include all charges against a physician, even those where he was found innocent after an investigation. The changes await the Governor's signature. I agree that consumers should get information but the information should be helpful and not confusing. A site that tells that a physician has been sued 3 times in 10 years is helpful but not if it doesn't say what the average amount for the specialty is. No site should ever put up any hospital or state discipline that is not complete, after all appeals are finished. Top
OIG Speaks on Hospital's Insurance Only Billing
In Advisory Opinion No. 01-7 the OIG discussed a hospital's use of billing only insurance. The hospital was also bound to a group of physicians (cardiologists) in private practice. The OIG was not happy if the hospital or the physician group routinely billed insurance only. They could bill insurance only if done on an individual basis and for documented need. The OIG stated that they would not impose sanctions on this hospital if there were no proof of intent to induce or reward referrals. This is an opinion based on the facts of this one hospital and may not be used as precedent. Top
OxyContin, an excellent pain medication used by terminally ill patients to ease their discomfort and inappropriately for some lower back pain, has now become a major addiction problem. This medicine is being prescribed by unscrupulous physicians and is the target of multiple pharmacy thefts. In Philadelphia Pennsylvania there have been 40 deaths do date associated with the drug. Massachusetts has given an official alert to state pharmacies to be on the lookout for false prescriptions for the drug. Some stores were planning to stop carrying the drug but the state said that all pharmacies must carry the drug as they must carry all drugs that are commonly prescribed, whatever that means. Massachusetts again telling people what they must or must not do.
There are now several class action suits pending regarding the making of this medication and the lack of a warning regarding how addictive it is. These suits so far are in the East and Southeast but I'm sure will be nationwide shortly. I just received my first complaint this week about a physician giving the drug inappropriately. Top
An article in The Oregonian describes the problem with non-English speaking patients and how they may be harmed without interpreters. The paper states that all providers that take federal money, and I don't know many hospitals or physicians that don't, must provide interpreters under title VI of the 1964 Civil rights Act that bans discrimination on national origin. In the federal guidelines passed last year under an executive order by President Clinton all health care providers who get any federal money including Medicaid are required to give patients access to interpreters, signs or brochures that alert patients to their right to free assistance and a plan for providing medical forms in languages other than English. This can be a telephone language service. There is now a bill to repeal Clinton's executive order since the service is to be free and the providers are not being reimbursed for the service, an unfunded mandate. Oregon legislators have introduced a bill to certify interpreters which will drive up the cost of providing the service. This could have the effect of physicians not seeing any non-English patients, including those on Medicaid.
In a case Alcade v Deaton Specialty Hospital in Maryland District court the estate of a deaf patient won on a violation of Section 504 of the Rehabilitation Act but lost on a claim for emotional distress. this case was addressed in a past Legal News. There was no emotional distress sine there was no malice or reckless disregard found. Top
Humana has agreed to pay about $8 million for allegations of double-billing. They got paid for patients who were enrolled in both Medicare and Medicaid as primary payors, an illegal act. Humana was paid capitation rates for these people on both plans. The repayment will go to Medicaid since Medicare could have handled the entire payment. Humana agreed to change its billing procedure so this doe not reoccur.
See Legal News for other Compliance payments. Top
The Board is proud that it handed out a record 295 disciplinary actions for the past year compared to 163 the year before. Of these egregious violations 55 of the 295 were ones that only required minor actions that are now handled by citations. Why are Medical Boards so proud of their numbers of physicians prosecuted? They should be equally as proud if none were and there were none that deserved to be.
In related Florida Medical Board news, one of its members, an emergency room physician is being accused of falsely stating he is board certified. Dr. Lamelas is board certified but not by an affiliate of the ABMS. He is certified by an alternative board the Board of Certification in Emergency Medicine, a private group not certified by the State. He can not be a member of the ABMS' American Board of Emergency Medicine due to an antiquated requirement in 1988 that those physicians who wished certification must either have five years experience in emergency medicine or a three year residency. This position left some good physicians in a Catch-22 where they did not have the five years and were not going back to a three year residency. It was because of that regulation that the alternative Board was developed. The ABEM is currently being sued by the physicians who were caught in the cracks to open up the exam to all comers.
In yet more Florida news some Florida physicians are allowing unlicensed personnel to perform surgery and other work to be done only by licensed professionals. In a case reported in the Palm Beach Post a Dr. Guarido was napping while his assistant was performing surgery, fixing a scar from their last operation. This apparently is not an isolated incident in unlicensed surgical suites. Top
President Bush has delayed rules that govern how patients appeal health plan decisions. The delay will be for at least 6 months and maybe up to one year. The new rules would have increased the time for appeal from the current 60 to 180 days. Top
Pennsylvania to Spend Tobacco Tax Money
Pennsylvania had agreed on the spending of the one time cigarette settlement fund of about $11 billion on health related programs. About 39% will go to pay for health insurance for 60,000 low income and 10,000 disabled working adults. The plan also will pay for more prescription benefits for seniors. There was no mention if the seniors would need to meet a needs test or the amount of time the state would pay for the insurance. Remember the old adage; give a person a fish and feed him for a day; teach the person to fish and feed him for life. Top
CA Waives Prostate Cancer Cost
California has provided $10 million for the first year and $20 million for the next two years for the diagnosis and treatment of prostate cancer in low income men. The cut-off point is 200% of poverty level. the treatment will be performed at UCLA, UCD, and UC San Francisco. This is equivalent to the money spent on breast cancer treatment. Top
CMS Expands PET Coverage
CMS has enlarged the paid indications for PET scans. The indications are now for any single lung lesion, non-small cell carcinoma of the trachea, bronchus or lung, a malignancy of the rectum, sigmoid or colon, lymphomas, melanoma, head and neck cancers (excluding thyroid and CNS), myocardial viability and refractory seizures. Top
DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.