Today the Office of Inspector General (OIG) of the Department of Health and Human Services issued "Supplemental Program Complaince Guidance for Hosptials". This supplemental guidance follows up on (and does not replace) the OIG's original Febuary 23, 1998 Compliance Program Guidance for the hospital industry.
The OIG issued a press release today announcing the updated voluntary compliance program guidance for hospitals to promote compliance with the rules and regulations for participation in Medicare and other Federal health care programs. The document will be on display at the Federal Register today and published on January 31, 2005.
Following is a excerpt from the preface to the supplemental guidance providing background on the OIG's position for issuing the supplemental guidance:
Continuing its efforts to promote voluntary compliance programs for the health care industry, the Office of Inspector General (OIG) of the Department of Health and Human Services (the Department) publishes this Supplemental Compliance Program Guidance (CPG) for Hospitals. This document supplements, rather than replaces, the OIG’s 1998 CPG for the hospital industry (63 FR 8987; February 23, 1998), which addressed the fundamentals of establishing an effective compliance program. Neither this supplemental CPG, nor the original 1998 CPG, is a model compliance program. Rather, collectively the two documents offer a set of guidelines that hospitals should consider when developing and implementing a new compliance program or evaluating an existing one.
We are mindful that many hospitals have already devoted substantial time and resources to compliance efforts. We believe that those efforts demonstrate the industry’s good faith commitment to ensuring and promoting integrity. For those hospitals with existing compliance programs, this document may serve as a benchmark or comparison against which to measure ongoing efforts and as a roadmap for updating or refining their compliance plans.
In crafting this supplemental CPG, we considered, among other things, the public comments received in response to the solicitation notice published in the Federal Register and the draft supplemental CPG,4 as well as relevant OIG and Centers for Medicare & Medicaid Services (CMS) statutory and regulatory authorities (including the Federal anti-kickback statute, together with the safe harbor regulations and preambles, and CMS transmittals and program memoranda); other OIG guidance (such as OIG advisory opinions, special fraud alerts, bulletins, and other guidance); experience gained from investigations conducted by the OIG’s Office of Investigations, the Department of Justice (DoJ), and the State Medicaid Fraud Units; and relevant reports issued by the OIG’s Office of Audit Services and Office of Evaluation and Inspections. We also consulted generally with CMS, the Department’s Office for Civil Rights, and DoJ.
Business Week Article: Between You, The Doctor, And The PC
Monday, 24 January 2005
For those of you interested in the increased growth of electronic medical record systems, the advantages/disadvantages, etc. You may want to read an article appearing in Business Week Online.
The article states that right now only about 15% of U.S. hospitals and doctors are using such systems. This percentage will certain increase over the coming years as more provider decide to shift from paper to electronic health records.
One reason that I believe there is value in making the transition is based on the likelihood of reduced medical errors due to problematic physician and other health care professional handwriting. The article cites a 1998 Journal of American Medical Association article saying that serious medication errors fell by 55% when orders were typed into the computer rather than handwritten by doctors. I have seen similar studies in other articles I have read.
As a health care attorney who reads physician handwriting on a daily basis -- I certainly think the health care system would benefit by getting away from handwritten notes. Although at times there is something very personal and beneficial to handwritten physician notes. Certain things come across better in handwritten notes that don't come across in typed notes. At times typed notes seem sterile and less "patient caring" oriented. For example, when defending a physician on issues that arise or are supported by their personal handwritten progress notes -- there is something comforting (when the physician is skilled at documenting his patient encounter) when defending a physician based upon his personal notes. I have not found this to be as true with electronically typed notes.
On the issue of privacy and handwritten vs. electronic medical records I often use a story told by my father, who I consider to be the quintessential "West Virginia country doctor". He practiced family medicine in New Martinsville, West Virginia from the early 1950s through the mid 1990s. He and his brother had a family practice located adjacent to the old Wetzel County Hospital.
One day back in 2002 I was discussing with him the advent of the new "HIPAA privacy laws" and he proceeded to tell me about a old country doctor from Wetzel County who was well known at the hospital and among the local medical community to have the worst handwriting of any doctor in the area. [Note: This story coming from a man who when I was growing up would leave notes on the refrigerator about where he would be and we would have to spend hours trying to decipher the message and when he would be back.] Well at some point the local hospital and a number of the doctors who had to work with this "note-torious" doctor had had enough of his poor handwriting and selected someone from the medical staff to approach him and suggest that he improve his handwriting. When approached about the concern he notified the chair of the medical staff that he was only looking out for the best interest of his patients is such a small community as New Martinsville. He said his writing was difficult to read and illegible to most because he was protecting his patient's privacy. He thought that too many people at the hospital already knew too much about his patients and he wanted to further protect the information. He didn't want just anyone to be able to pick up a chart and read the personal information that he wrote about his patients -- he wanted only those individuals who had a true "need to know" to be able to read the information. I've often thought of this story when considering today's privacy issues in health care. I find it a novel way to address meeting today's "minimum necessary" standard under the HIPAA privacy standard rules. It also serves as an altruistic excuse for physicians who don't want to improve their penmanship.
The article states that right now only about 15% of U.S. hospitals and doctors are using such systems. This percentage will certain increase over the coming years as more provider decide to shift from paper to electronic health records.
One reason that I believe there is value in making the transition is based on the likelihood of reduced medical errors due to problematic physician and other health care professional handwriting. The article cites a 1998 Journal of American Medical Association article saying that serious medication errors fell by 55% when orders were typed into the computer rather than handwritten by doctors. I have seen similar studies in other articles I have read.
As a health care attorney who reads physician handwriting on a daily basis -- I certainly think the health care system would benefit by getting away from handwritten notes. Although at times there is something very personal and beneficial to handwritten physician notes. Certain things come across better in handwritten notes that don't come across in typed notes. At times typed notes seem sterile and less "patient caring" oriented. For example, when defending a physician on issues that arise or are supported by their personal handwritten progress notes -- there is something comforting (when the physician is skilled at documenting his patient encounter) when defending a physician based upon his personal notes. I have not found this to be as true with electronically typed notes.
On the issue of privacy and handwritten vs. electronic medical records I often use a story told by my father, who I consider to be the quintessential "West Virginia country doctor". He practiced family medicine in New Martinsville, West Virginia from the early 1950s through the mid 1990s. He and his brother had a family practice located adjacent to the old Wetzel County Hospital.
One day back in 2002 I was discussing with him the advent of the new "HIPAA privacy laws" and he proceeded to tell me about a old country doctor from Wetzel County who was well known at the hospital and among the local medical community to have the worst handwriting of any doctor in the area. [Note: This story coming from a man who when I was growing up would leave notes on the refrigerator about where he would be and we would have to spend hours trying to decipher the message and when he would be back.] Well at some point the local hospital and a number of the doctors who had to work with this "note-torious" doctor had had enough of his poor handwriting and selected someone from the medical staff to approach him and suggest that he improve his handwriting. When approached about the concern he notified the chair of the medical staff that he was only looking out for the best interest of his patients is such a small community as New Martinsville. He said his writing was difficult to read and illegible to most because he was protecting his patient's privacy. He thought that too many people at the hospital already knew too much about his patients and he wanted to further protect the information. He didn't want just anyone to be able to pick up a chart and read the personal information that he wrote about his patients -- he wanted only those individuals who had a true "need to know" to be able to read the information. I've often thought of this story when considering today's privacy issues in health care. I find it a novel way to address meeting today's "minimum necessary" standard under the HIPAA privacy standard rules. It also serves as an altruistic excuse for physicians who don't want to improve their penmanship.
Practical Guidance and Forms for Litigators Requesting Medical Records Under HIPAA
Friday, 21 January 2005
Recently I came across information on the website of the Louisville Bar Association (LBA) that I found very practical and useful for attorneys having to deal with the change in the process for requesting medical records from health care providers required to comply with the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
The LBA created a very nice document titled "Recommended Procedures for Obtaining Medical Records in Kentucky Pursuant to HIPAA" which walks through some of the major issues, including the use of authorization forms, requests via subpoena, notice to take treating physician's depositions and qualified protective orders. Included in the materials are various "model documents and letters" that can be adapted for attorneys practices. There is a "quick links" section of the website to view and download each of the model documents. The LBA took a neutral positions and created model documents for plaintiff and defense attorneys to assist attorney and health care providers to comply with HIPAA and avoid disrupting the process and need for disclosure of patient information.
Although the forms will need to be adjusted and reviewed by attorneys wishing to use them in states other than Kentucky -- overall the model documents can be very useful to attorneys having to request patient information on a regular basis.
The LBA created a very nice document titled "Recommended Procedures for Obtaining Medical Records in Kentucky Pursuant to HIPAA" which walks through some of the major issues, including the use of authorization forms, requests via subpoena, notice to take treating physician's depositions and qualified protective orders. Included in the materials are various "model documents and letters" that can be adapted for attorneys practices. There is a "quick links" section of the website to view and download each of the model documents. The LBA took a neutral positions and created model documents for plaintiff and defense attorneys to assist attorney and health care providers to comply with HIPAA and avoid disrupting the process and need for disclosure of patient information.
Although the forms will need to be adjusted and reviewed by attorneys wishing to use them in states other than Kentucky -- overall the model documents can be very useful to attorneys having to request patient information on a regular basis.
HHS Issues New HIPAA Privacy FAQs Regarding Litigation and Legal Matters
Tuesday, 18 January 2005
The Office of Civil Right Division of the United States Department of Health and Human Services (HHS) has issued nine new FAQs regarding the use and disclosure of protected health information (PHI) by covered entities related to litigation and legal proceedings.
The implementation of the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) raised many practical questions by covered entity health care providers on how to implement the requirements when releasing PHI to attorneys in the context of litigation. Among others, how should a covered entity handle the release of PHI when responding to discovery requests, subpoenas and court orders. What responsibilities does an attorney meeting the definition of a business associate have under the Privacy Rule and can the attorney share PHI with others involved in the litigation.
Although I have not had a chance to fully review the new FAQs I will be interested to see whether the FAQs address all of the issued raised in a letter submitted to OCR on October 28, 2003, by a task force of the American Health Lawyers Association (“AHLA”) Health Information Technology Practice (“HIT”) Group.
The implementation of the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) raised many practical questions by covered entity health care providers on how to implement the requirements when releasing PHI to attorneys in the context of litigation. Among others, how should a covered entity handle the release of PHI when responding to discovery requests, subpoenas and court orders. What responsibilities does an attorney meeting the definition of a business associate have under the Privacy Rule and can the attorney share PHI with others involved in the litigation.
Although I have not had a chance to fully review the new FAQs I will be interested to see whether the FAQs address all of the issued raised in a letter submitted to OCR on October 28, 2003, by a task force of the American Health Lawyers Association (“AHLA”) Health Information Technology Practice (“HIT”) Group.
The new FAQs address the following questions. Click on the "Answer" link to go directly to the HHS FAQ answer.
- May a covered entity that is a plaintiff or defendant in a legal proceeding use or disclose protected health information for the litigation? Answer.
- May a covered entity that is not a party to a legal proceeding disclose protected health information in response to a subpoena, discovery request, or other lawful process that is not accompanied by a court order? Answer.
- In providing legal services to a covered entity, must a lawyer who is a business associate require that those persons to whom it discloses protected health information agree to abide by the privacy restrictions and conditions that apply to the lawyer? Answer.
- May a covered entity use or disclose protected health information for litigation? Answer.
- What “satisfactory assurances” must a covered entity that is not a party to the litigation receive before it may respond to a subpoena without a court order? Answer.
- When must a covered entity account for disclosures of protected health information made during the course of litigation? Answer.
- For disclosures for judicial and administrative proceedings, when is a copy of the subpoena itself sufficient satisfactory assurance of notice to the individual? Answer.
- For disclosures for judicial and administrative proceedings, can notice be provided to the individual's lawyer instead of the individual? Answer.
- May a covered entity disclose protected health information in response to a court order? Answer.
Do You Have A Right to Privacy in the Restroom?
Wednesday, 12 January 2005
According to a decision issued by the 8th Circuit Court of Appeals yesterday a person does not have an absolute right to privacy in the restoom. The case involved a claim by a man found partly disrobed with a woman, cocaine and marijuana in the restroom of an Iowa convenience store. The 8th Circuit Court of Appeals unanimously rejected the individuals claim that police who found him in the restroom with the woman and drugs breached his Fourth Amendment right to privacy, thus making it an illegal seizure of drugs.
The 8th Circuit panel found that, "it was not a single person using the single toilet restroom but two persons of opposite gender and, under the circumstances, we hold that they had a diminished expectation of privacy which had expired by the time the officers arrived."
An article appearing on Yahoo News reported the factual background and circumstances behind the decision.
A full copy of the decision can be found on the 8th Circuit Court of Appeals website by searching the opinions section for United States of America vs. Lonnie Maurice Hill, 04-2020 (January 11, 2005).
The 8th Circuit panel found that, "it was not a single person using the single toilet restroom but two persons of opposite gender and, under the circumstances, we hold that they had a diminished expectation of privacy which had expired by the time the officers arrived."
An article appearing on Yahoo News reported the factual background and circumstances behind the decision.
A full copy of the decision can be found on the 8th Circuit Court of Appeals website by searching the opinions section for United States of America vs. Lonnie Maurice Hill, 04-2020 (January 11, 2005).
Governor Elect Manchin Nominates Martha Walker as DHHR Secretary
Yesterday it was announced that Governor Elect Joe Manchin named fomer State Senator Martha Yeager Walker to head the West Virginia Department of Health and Human Resources. During her tenure in the Senate she was the Chairperson of the Senate Health Committee. Currently Walker has been serving as a board member of the West Virginia Public Service Commission.
An article on the appointment also appeared in today's Charleston Gazette.
An article on the appointment also appeared in today's Charleston Gazette.
Report on the Financial Outlook for West Virginia Acute Care Hospitals
An article appearing in the January 12, 2004 Charleston Gazette reported that less than one-half of the acute care hospitals in West Virignia are profitable. The article reported that only four hospitals had operating margins of 5 percent or better.
The information came from a report made by Sonia Chambers, Chair of the West Virginia Health Care Authority to the Legislative Oversight Commission on Health and Human Rescources Accountability.
Below is a copy of the article from the Charleston Gazette's website edition.
January 12, 2005
Hospitals get bleak forecast
By Phil Kabler
Staff writer
Fewer than half of all acute-care hospitals in the state are profitable, and the financial outlook for the industry is getting worse, the chairwoman of the state Health Care Authority told legislators Tuesday.
“There are a number of facilities in West Virginia that are starting to have serious financial difficulties,” Sonia Chambers told the Legislative Oversight Commission on Health and Human Resources Accountability.
For 2003, the most recent year available, only 19 of the state’s 41 acute-care hospitals reported a profit, according the HCA report.
Of those, only four had operating margins of 5 percent or better, topped by Greenbrier Valley Hospital at 9.3 percent, she said.
For the remaining 22 hospitals, operating losses ranged from 0.2 percent to nearly 23 percent at Welch Community Hospital.
“The financial outlook continues to slide,” Chambers said. “A number of West Virginia hospitals do not have the financial reserves to continue to sustain losses.”
She said hospital expenses increased only 6.6 percent in 2003, but said patient revenue has declined as underinsured or uninsured patients have increased.
Chambers said a particular concern is the increasing numbers of uninsured West Virginians between the ages of 50 and 64, who lost their health insurance coverage through company bankruptcy or downsizing.
Hospitals also had to write off as uncollectible about $400 million in charity care and bad debts in 2003.
The amount of uncompensated care — 6.2 percent of all patients — was roughly unchanged from 2002, Chambers said.
Steven Summer, director of the West Virginia Hospital Association, said the authority’s report reaffirms what the hospital industry has been saying for some time.
“The bottom line is, most hospitals can’t survive on income from patient care,” he said. “The biggest challenge we face is the growing population of people with non-commercial insurance.”
He said a significant percentage of West Virginians are insured through government-operated plans, such as Medicare, Medicaid, and the Public Employees Insurance Agency, which he said set low reimbursement rates for health-care services.
Closure or consolidation of hospitals would have a serious impact on the state, and not just on the quality of health care, Chambers noted.
Hospitals are a significant force in the state’s economy, the authority’s report found, accounting for 36,411 full-time jobs and a payroll of $1.8 billion in 2003.
To contact staff writer Phil Kabler, use e-mail or call 348-1220.
The information came from a report made by Sonia Chambers, Chair of the West Virginia Health Care Authority to the Legislative Oversight Commission on Health and Human Rescources Accountability.
Below is a copy of the article from the Charleston Gazette's website edition.
January 12, 2005
Hospitals get bleak forecast
By Phil Kabler
Staff writer
Fewer than half of all acute-care hospitals in the state are profitable, and the financial outlook for the industry is getting worse, the chairwoman of the state Health Care Authority told legislators Tuesday.
“There are a number of facilities in West Virginia that are starting to have serious financial difficulties,” Sonia Chambers told the Legislative Oversight Commission on Health and Human Resources Accountability.
For 2003, the most recent year available, only 19 of the state’s 41 acute-care hospitals reported a profit, according the HCA report.
Of those, only four had operating margins of 5 percent or better, topped by Greenbrier Valley Hospital at 9.3 percent, she said.
For the remaining 22 hospitals, operating losses ranged from 0.2 percent to nearly 23 percent at Welch Community Hospital.
“The financial outlook continues to slide,” Chambers said. “A number of West Virginia hospitals do not have the financial reserves to continue to sustain losses.”
She said hospital expenses increased only 6.6 percent in 2003, but said patient revenue has declined as underinsured or uninsured patients have increased.
Chambers said a particular concern is the increasing numbers of uninsured West Virginians between the ages of 50 and 64, who lost their health insurance coverage through company bankruptcy or downsizing.
Hospitals also had to write off as uncollectible about $400 million in charity care and bad debts in 2003.
The amount of uncompensated care — 6.2 percent of all patients — was roughly unchanged from 2002, Chambers said.
Steven Summer, director of the West Virginia Hospital Association, said the authority’s report reaffirms what the hospital industry has been saying for some time.
“The bottom line is, most hospitals can’t survive on income from patient care,” he said. “The biggest challenge we face is the growing population of people with non-commercial insurance.”
He said a significant percentage of West Virginians are insured through government-operated plans, such as Medicare, Medicaid, and the Public Employees Insurance Agency, which he said set low reimbursement rates for health-care services.
Closure or consolidation of hospitals would have a serious impact on the state, and not just on the quality of health care, Chambers noted.
Hospitals are a significant force in the state’s economy, the authority’s report found, accounting for 36,411 full-time jobs and a payroll of $1.8 billion in 2003.
To contact staff writer Phil Kabler, use e-mail or call 348-1220.
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