Archive for the ‘Health Law Practice’ Category

RCS-1 Model Worksheet Gives a Glimpse of a World Without RUG

Monday, March 12th, 2018

By Fisher, JD, CHC, CCEP

RCS-1 Sample Worksheet

RUG System for Skilled Nursing Facility Reimbursement – Time is Running Out

It is currently anticipated that the RUG system, which is currently used to calculate reimbursement for Medicare Part A skilled nursing services, will be changed over the next year.  CMS is currently considering a new Resident Classification System that will completely change the way SNFs are reimbursed for their services.

Providers are getting glimpses of what may be included in the new calculation system.  CMS issued a draft sample worksheet using the RCS-1 system.  The stated purpose is to give providers a description of how the new system would work.  The worksheet gives a description of how a manual calculation would take place using the RCS-I methodology.

The sample draft worksheet that was issued by CMS is available here.  RCS_I_Logic-508_Final

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Medical Alerts – HIPAA Implications of Flagging Patient Records

Wednesday, March 7th, 2018

By Fisher, JD, CHC, CCEP

AIDS identification external alert HIPAA

Identification of AIDS Status Through Medical Alert System

Dentist Revises Process to Safeguard Medical Alert PHI

A recent OCR investigation of a dental practice’s flagging of patients records highlights a potential HIPAA violation.  The OCR investigation confirmed allegations that the dental practice flagged some of its medical records with a red sticker with the word “AIDS” on the outside cover.   Records were handled so that other patients and staff without need to know could read the sticker.  A patient complaint commenced an OCR investigation into whether the practice potentially identified the AIDS status of patients within the office.

When notified of the complaint filed with OCR, the dental practice immediately removed the red AIDS sticker from the complainant’s file. To resolve this matter, OCR also required the practice to revise its policies and operating procedures and to move medical alert stickers to the inside cover of the records. Further, the covered entity’s Privacy Officer and other representatives met with the patient and apologized, and followed the meeting with a written apology.

The lesson here is not to place special medical alerts on the outside of physical patient records.  This is a particularly bad practice in a dental office where the typical office setup can

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Authentication of Verbal Orders by Other Responsible Practitioner

Wednesday, January 24th, 2018

By Fisher, JD, CHC, CCEP

Authenticating Verbal Orders

Authentication of Verbal Orders

In a past blog article, I discussed the need for physicians to promptly authenticate verbal orders. The failure of a physician to timely sign a verbal order can have reimbursement implications. In some cases, in some states, another responsible provider can sign a verbal order that is originally given by another practitioner. This option is not always available and depends a lot on whether state law permits the practice. Some states require the practitioner who gave the verbal order to authenticate the order. With the use of electronic medical records, practitioners cannot expect leniency on these types of requirements.

In states that permit one practitioner to authenticate for another, the authenticating proxy practitioner should understand that he or she is accepting responsibility for the authenticated verbal order. State scope of practice rules apply to cross authentication of orders. In otherwords, the practitioner authenticating the order must have practice authority to have provided the original verbal order. Facilities can develop policies that a more restrictive then what the law permits. Policy can eliminate or restrict cross authentication practices. There is inherent risk in permitting cross authentication because the authenticating provider did not give the original verbal order. Additionally, as

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Employment Exceptions From Anti-kickback Statute

Tuesday, May 20th, 2014

By John Fisher, JD, CHC, CCEP

employment exception safe harbor regulations

How Broad is the Employee Exception 

Parameters of the Stark Law and Anti-kickback Statute Exception

Both the Anti-Kickback Statute and the Stark Law contain exceptions that apply to employer/employee relationships.  Recent developments in the health law area indicate that there may be limits on the employment exception that were not previously contemplated.  I posted an article on the Health Law Blog that discussed possible limited to compensation structures for employed physicians.

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Antitrust Law Application In Rural Areas- Hospital Mergers

Thursday, May 8th, 2014

By John Fisher, JD, CHC, CCEP

Antitrust Law Small Towns

Antitrust In Rural Areas

I just posted a blog article over at the Health Law Blog.  The blog article covers antitrust legal issues in rural healthcare settings.  One might tend to believe that the rather obscure area of antitrust law would have little application in small town America.  After all, most of the legal expertise on the antitrust is located in big cities (Ruder Ware being a major exception).

We are dealing with these antitrust issues on a more frequent basis as clinical integration resumes as a method of addressing health care reform.  These issues can be even more critical in rural areas where there might be only a handful of providers and limited competition.

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Health Care Lawyers In Wisconsin

Tuesday, April 8th, 2014

By John Fisher, JD, CHC, CCEP

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Personal Care Service Providers and Wisconsin Medicaid

Friday, February 14th, 2014

By John Fisher, JD, CHC, CCEP

Personal Care Service Providers – Wisconsin Medical Assistance

Wisconsin Statute § 49.45(42)(d)3 describes the types of organizations that qualify to receive Medicaid reimbursement for “personal care services.”  Qualified entities include licensed home health agencies and other entities that are certified under section (2)(a)(11) to provide personal care services under section 49.46(2)(b)6j.  The DHS does not appear to have implemented regulations that specifically describe the criteria that “other entities” must meet in order to become qualified to receive reimbursement from Medicaid for the provision of personal care services.

The applicable provisions of section 49.45(2)(a)(11) do not contain specific criteria that “other entities” must meet but simply refers to the requirement that DHS promulgate rules establishing qualifications of providers.  The referenced statutory provision does not refer specifically to the requirements that “other entities” must meet in order to qualify to receive reimbursement for personal care services.

The requirements that must be met in order to become a licensed home health are more extensive than the personal care services entity.  However, becoming licensed as a home health agency will qualify you to provide and bill for personal care services directly.  It would also permit you to bill private pay patients for skilled nursing and other

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Effective Dental Practice Compliance Cycles

Saturday, February 2nd, 2013

Establishing Effective Dental Practice Compliance Cycles

Dental practices normally focus their compliance efforts on regulations of the Occupational Safety & Health Administration (OSHA) and the Health Information and Portability Act of 1996 (HIPAA).  Until recently, dental practices have avoided many of the fraud and abuse enforcement activities that have been directed toward medical practices.  The environment for dental practices is beginning to change and we are seeing more governmental auditors and private contractors turn more attention toward review of dental claims.

Penalties for failure to follow billing rules can be very significant; particularly when a governmental health program is the reimbursement source.  For example, failure to return overpayments to a governmental program within 60-days following identification can result in liability of three times the amount of the overpayment, plus up to $11,000 per claim.  When discovery of an overpayment leads to other incorrectly submitted claims due to a systematic billing error, the penalties add up quickly.  Errors that are not discovered by the provider but could have been discovered through an “effective” compliance program will be deemed to have been “identified” and subject to penalty if discovered by a governmental or private auditor on review.

Because of the increased enforcement efforts, dental practices are beginning to recognize the need to establish systematic compliance programs that extend beyond the usual OSHA and HIPAA issues.  The Medicare Office of Inspector General has recognized that dental practices need to establish systematic compliance programs that include identification of potential legal risk areas and systematic audits of high risk areas.  “Off the shelf” form policies will not be  adequate to create a compliance program that is “effective” and in fact will often create additional risk.  Every clinic is unique and a “one-size-fits all” plan will not likely meet the government’s standards for “effectiveness.”

        

Using “form” policies may give you a sense of security, but shortcut the important step of going through the institutional process of identifying risk areas and creating compliance cycles that are unique to your specific organization.  A compliance program must be viewed much more as a process that must be continually operated rather than a set of policies.  It is important to create a “compliance cycle” which involves a continued process of risk identification, auditing and monitoring, training of personnel, corrective actions and appropriate plan revisions.  Attempting to shortcut the process necessary to create an organic compliance cycle will not result in an “effective” program and will not likely withstand governmental scrutiny.

John H. Fisher, CHC, CCEP is a healthcare attorney with Ruder Ware in Wausau, Wisconsin.  John is certified in healthcare compliance by the Health Care Compliance Association.  He is also certified in corporate compliance and ethics by the Society for Corporate Compliance and Ethics.  John is an active blogger on healthcare and compliance issues at www.healthlaw-blog.com.    

Wisconsin Healthcare Attorneys Employment Contracting Issues

Tuesday, December 18th, 2012

Wisconsin Health Care Employment Contract Attorneys

Physicians who are contemplating joining a medical practice or health system need to carefully consider the terms of their employment agreement. Likewise, physician groups need to carefully plan the structure of the relationship between the various members of the group.  In each case, a carefully considered employment agreement is one of the primary components.  The physician employment contract will normally outline the general terms of the physician’s duties, payment of base and bonus compensation, scheduling issues, call coverage requirements, restrictive covenants, and a variety of other issues.  An appropriately crafted employment contract will help define the relationship and set the expectations going forward.  This will help reduce the chance that disputes will arise between the parties due to differing expectations.

We are Wisconsin attorneys who have significant background in health care and other legal issues involved in negotiating, drafting and assisting providers in a variety of healthcare contracting issues.  Health care contracts raise a variety of Federal and state regulatory issues and it is crucial that the attorney assisting in these matters understands the impact of these laws. Failure to comply with Federal laws, such as the Stark Law, can lead to regulatory violations and related penalties.  Wisconsin has unique laws that are applicable to a number of issues such as the enforceability of restrictive covenants.  Wisconsin law issues can create a minefield of potential errors that can be created by providers who attempts to create their own agreement or attorneys who are not up to speed on the application of these laws to physician contracts in Wisconsin.

We have prepared and advised both employees and employers with respect to health care employment and related agreements covering a wide range of provider types and employment scenarios.  Just some of these areas include:

Group Contracts with new hire physicians
Partnership and shareholder agreements and compensation structures
Health care system employment agreements
Hospital-based physician agreements
Medical director and administrative agreements
Production-based compensation agreements
Hospital service line management agreements
Integrated physician group agreements
Practice mergers
Executive employment agreements
Group practice structure
Part-time employment agreements

We also assist physicians and groups in connection with practice separations.  We can analyze employment and other relevant agreements to determine whether a physician who wishes to leave a group or a health care system can do so without restriction.  We can also negotiate the terms of departure.  We also routinuely assist provider groups in issues involving the departure of employed physicians and other providers including enforcement of restrictive covenants and other issues that arise upon termination.

If you require assistance from a Wisconsin attorney in connection with any health care related matter, feel free to contact a member of our health care industry focus group.

Multijurisdictional Practice in the Health Law Practice

Tuesday, July 31st, 2012

Practicing Health Law In A State Where You Are Not Licensed 

Representing any local business, including clients in the health care industry, can lead to ethical violations when an attorney is not licensed to practice in the state.  Unless specific exceptions are met, lawyers may only practice law within the state that they are licensed.  For example, as an attorney licensed in the State of Wisconsin, I am not able to represent a client in Minnesota or Illinois without complying with the multijurisdictional practice rules.  Failure to abide with those rules can lead to the filing of ethical complaints, and in some cases even criminal prosecution for the unauthorized practice of law.

We provide specialized health law services to clients across the country.  However, my law firm has processes in place to assure that we do not run afoul of the unauthorized practice of law rules.  Generally, we make certain that there is a local counsel actively involved; whether that local counsel is an in-house lawyer or a private lawyer who is licensed in that applicable state.  We are faced with the need to comply with the multijurisdictional practice rules of various states on a continual basis.  The long and short of it is that it is never ethically permissable for a lawyer to represent a local business in another state without the active involvement of local counsel in the matter.

Because of the breadth of the health law practice, it is useful to outline the general rules regarding the practice of law in states which the health care attorney is not licensed to practice.  Following the rules in your state and the state where you are planning to provide advice will keep you off the radar of state disciplinary authorities.  It is often tempting to place your toe across the line of what is permissible, particularly in the highly specialized area of health care law.

Most and perhaps all states prohibit a lawyer from representing a client in a state in which he/she is not licensed except in a few very narrow situations.  In my state, the State of Wisconsin, these rules are outlined in SCR 20:5.5 which are complimented by state statutes that make it a crime to practice law in the state without a license.

 SCR 20:5.5 provides that a lawyer who is not licensed in Wisconsin but is licensed in another jurisdiction may provide legal services in Wisconsin but only in the following circumstances:

1.         Legal services can only be provided on an occasional basis.

 2.         The services are provided in association with a lawyer who is admitted to practice in Wisconsin.

 3.         The services are reasonably related to a pending or potential proceeding before a tribunal and the lawyer is authorized by law or ordered to participate.

 4.         The services are reasonably related to a proceeding in another jurisdiction if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction where the lawyer is admitted to practice.

 5.         The services do not involve a dispute or proceeding but are reasonably related to the lawyer’s practice in his or her jurisdiction.

 Lawyers who are not licensed to practice in Wisconsin and practice in this state under one of the above exceptions must consent to the appointment of the Clerk of the Wisconsin Supreme Court as an agent for service of process for actions arising out of the provision of services in Wisconsin.

A lawyer who is not licensed to practice in Wisconsin is not permitted to establish an office or a systematic or continuous presence in Wisconsin for the practice of law under any circumstances.  Presence can be considered to be systematic or continuous even if there is no physical presence in the state; for example if the attorney represents multiple clients in the state or regularly accepts referrals from accountants or other professionals for matters in a state where he/she is not licensed.

 A lawyer can associate with local counsel to provide services to Wisconsin clients.  In the healthcare context, a general counsel or other Wisconsin licensed attorney can retain a non-Wisconsin attorney to provide special health law expertise.  However, an attorney that is licensed in another state and not in Wisconsin cannot represent a Wisconsin client without association with local counsel.  For example, it is the unauthorized practice of law in this state to represent a Wisconsin medical practice if the lawyer is not licensed to practice in Wisconsin.  Some firms may have members who are licensed in Wisconsin and attempt to justify services in the state on that basis.  In order to permit the representation, the Wisconsin lawyer must be actively involved in the representation of the client.  It is not enough to simply have another attorney in the firm who is licensed to practice in Wisconsin.

 Similar rules apply when a Wisconsin lawyer provides services in other states.  The rules of the state in which services are very being provided must be examined by a Wisconsin attorney who is providing services in another state.  Normally, states will permit services to be performed in other states in the course of representing a client that is based in Wisconsin and the matter is a natural outgrowth of the lawyer’s representation of the Wisconsin client.  Additionally, most states permit services to be performed in association with an attorney who is licensed in the state. 

Often times, a health care attorney will be called upon to represent a hospital or health system in a state where the attorney does not have a license to practice.  This type of representation is often appropriate because the hospital will have a general counsel or outside counsel who is licensed in the applicable state who is actively involved in the matter.  Direct representation without involvement by a state licensed attorney is impermissible. 

The issue also arises in medical group representation.  There is no business that is more local in nature than a medical practice.  A medical practice is organized under state law and provides its services through physicians who are licensed to practice medicine in the state.  Yet, firms permit themselves to represent medical practices in states where they are not licensed.  The practice is unethical unless local licensed counsel is also actively involved. 

Lawyers should pay close attention to these multi-jurisdictional practice rules.  Failure to abide by these rules can result in disciplinary action and possible criminal prosecution for the unauthorized practice of law.  Additionally, clients should beware of these relationships if they are relying on the attorney/client privilege.  The laws relating to the privilege are not well developed in this context.