OIG ISSUES COMPLIANCE RULES FOR PHYSICIAN OFFICES

On June 7, 2000 The Office of Inspector General (OIG) issued the draft guidelines to help physicians of any size office comply with the Federal compliance rules.  These are to help prevent fraud and abuse in government programs, including Medicare and Medicaid.  Physicians will not be held civilly accountable for innocent errors or criminally accountable unless the offenses are committed with actual knowledge of the falsity of the claim, reckless disregard or deliberate ignorance of the truth of a claim.

The draft guidelines are similar to those already in place for hospitals.  They include seven (7) elements: (1) written policies and standards of conduct; (2) designation of a compliance officer or contact person; (3) training and education programs for the physicians and staff; (4) a mode of action to keep employees educated about compliance policies; (5) doing internal audits to monitor compliance; (6) enforcement of the standards using disciplinary directives; and (7) prompt corrective action.

Also included are fraud and abuse areas specific to medical offices.  These include unbundling, routine co-pay waiver, kickbacks, billing for services not rendered or non-covered, misrepresentation of services to justify payment, or double billing.

The draft guidelines will probably go into effect this fall.  The OIG is giving leeway to solo and small office practices in complying with these guidelines without much interference with the usual office flow.

I suggest as the Chief of Staff of your hospital that you inform your physicians about the new rules and have them contact their attorneys and/or accountants to help them in their individual practice compliance. It may be an opportunity to create good will among your physicians if you could set up a medical staff educational conference on this new rule.

EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT (EMTALA)

This law sets down in detail who must be seen in your Emergency Department, by whom they must be seen, who can be transferred to another hospital and for what reasons.  This law is Federal Law 42 U.S.C. 1395dd and supercedes all State, Local or Managed Care rules or law.

The law states that all who present for medical care to the hospital or their grounds including hospital owned ambulance systems must be given a Medical Screening Exam (MSE) by an appropriate person to determine if a medical emergency exists.  If an emergency condition exists the hospital must provide the necessary treatment to stabilize the patient or comply with the law’s transfer rules. A transfer of a patient with an unstable medical condition may not be made unless the patient signs a written request for transfer after being given informed consent, the physician or other qualified medical person signs and a physician countersigns a certification giving the risks and benefits of a transfer and that the benefits from the transfer outweigh the risks.

The MSE is not a triage, which only determines the order of those to be seen.  A MSE is the diagnosis by whatever means, without regard to payment source, whether a medical emergency exists.  This will require not only a patient history and physical but also all necessary laboratory and imaging studies.  A physician or another who is qualified by the Medical Staff bylaws or rules must do this exam. Do your hospital emergency rooms have your usual emergency room physicians plus managed care physicians? If so, this creates an impermissible inference of two levels of care. This inference may be overcome by having both the MCO and the hospital’s physicians see any patient, not just their own.

Once it is determined that a medical emergency exists the patient must either be treated at the hospital (not a physician’s office, except under strict office location conditions) or transferred to another institution for the benefit of the patient, not for monetary or contractual reasons. This treatment may mean the use of the emergency department on-call panel for consultation and/or hospital admission.  These physicians must come to the hospital to examine the patient within a reasonable time.  The Medical Staff by laws or rules should state the requirements for who is on the on-call roster and what is meant by a reasonable time.

It is required that if the patient is transferred due to a non-responding on-call physician the receiving hospital must report the transfer as a violation. The failure to adhere to these and the other EMTALA rules call for fines or other sanctions against the hospital and/or physicians involved including those on the on-call roster. Since this is a fine, insurance is usually not possible. Potential solutions for hospitals and medical staffs who are having difficulty filling the on-call roster are to pay physicians for taking call, contract with outside local or regional services to take call, or require all physicians no matter the age or staff category to take call.  The latter action may risk losing key specialists.

UPDATES

Since the last newsletter the California Supreme Court has decided Potvin v Metropolitan Life.  The decision states that if a MCO has significant market power in an area and wants to deselect a physician they must give the physician a hearing prior to deselection.

Also the Ninth Circuit has decertified the decision in Burrows v Redbud.  This means that the decision in Burrows that peer review records are open to discovery in Federal EMTALA cases can not be used as precedent in future cases.

The Joint Commission has new standards for conscious sedation (TX.2) effective January 1, 2001 and for peer review (MS.8.3) effective immediately.  I recommend you go to the JCAHO Web site (www.jcaho.org) for these new standards.

I hope this overview of the new OIG Compliance Guideline Draft, EMTALA rules and the Updates have been helpful. If I may of help to you with these or any other Medical Staff issues such as external peer review, please contact me.  My continued hope is that Medical Staffs obtain their own independent legal representation on all issues that potentially may be a conflict of interest with the hospital. If you are no longer the Chief of Staff, please forward this newsletter to the appropriate individual.  Thank you and since it’s baseball season, always remember the Yogi Berra quote “I love home openers, whether they’re at home or on the road.”