Archive for the ‘Wisconsin Health Laws’ Category

Providing Protected Health Information in Response to Subpoena

Monday, March 12th, 2018

By Fisher, JD, CHC, CCEP

unauthorized release phi subpoena

OCR Citation for Improper Disclosure of PHI in Response to a Subpoena

A health care provider or other covered entity under HIPAA is permitted to disclose protected health information if it receives a lawful order from a court or administrative tribunal.  this does not mean that a provider can simply release everything it has in a patient record when it receives a court order.  Some records, such as mental health or substance abuse records might have special protections or limitations that apply.  Additionally a provider should closely review the relevant order and only disclose the information that is specifically required by the order.

The ability to release information in response to a subpoena, as opposed to an order of a court, is subject to different rules.  Patient information can only be provided under subpoena if certain notification requirements of the Privacy Rule are met. The notification requirements require the provider who received the subpoena to obtain evidence that there were reasonable efforts to notify the person who is the subject of the information about the request.  This is intended to give the individual an opportunity to object to the disclosure, or obtain a protective order from the court.

The application of these rules are

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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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Hold On Just a Daw-Gone Minute – Physician Payment Act Dispute Process

Tuesday, April 11th, 2017

Disputing Inaccurate Reports Under the Physician Payment Sunshine Act

disputing sunshine act reportIn 2013, CMS issued final regulations interpreting and clarifying the requirements of the Physician Payment Sunshine Act (“Sunshine Act”) .  The final regulations clarify the reporting process, identifies exceptions and exclusions from the reporting requirements, and provides further details regarding what constitutes a reportable relationship.  The final rule delineates the specific data elements that reporting organizations are required to include and the reporting format that is required.  Reporting organizations that fail to make required reports are subject to potential civil monetary penalties.

Physicians are often surprised to see the information that reporting agencies submit.  Early on, errors in reporting were frequent as reporting companies struggled to integrate reporting requirements into their compliance process.  Reports tend to be more accurate now, but there are certainly instances where reporting organizations make reports that should be questioned.  A process is included to afford physicians and teaching hospitals to review and dispute the information that a reporting organization proposes to report.  The regulations require physicians to exercise diligence to review the information that is being submitted describing items of benefit that they are alleged to have received.  The regulations include a 45-day review and correction period, but report information does not automatically come to a physician unless affirmative action is taken to sign up to receive this information.

If the physician or teaching hospital receives notification, a process can be used to dispute the proposed disclosure with the applicable manufacturer.  There is a very short time window to dispute and resolve the issue before publication is made for the applicable year so it is critical that a dispute be invoked promptly upon receipt of notice of the proposed report.  Signing up for notifications also permits access to the web based dispute system.  The review period lasts for 45 days and reporting organizations have 15 days after the end of that period to correct data to resolve disputes.

Errors in amount, the nature of items reported, and methodology of calculating or allocating expenditures among numerous recipients are frequent areas of error.  For example, situations have occurred where expenditures that benefitted numerous physicians were allocated to a single physician.  The opportunity for error in reporting are endless; particularly given the multiple parties that can be involved in the reporting chain for the reporting company.

Inaccurate reporting is not without consequence to the subject of the report.  Inaccurate reports can be indicative of conflict of interest and can impact publication or reviewer credibility.  A report can also be an indication of further potential fraudulent payments and can result in further government investigation regarding the fair market value of services provided in a consulting or other relationship.  In extreme cases, payments that are inflated over fair market value for services that are actually and legitimately provided can indicate potential Anti-Kickback Statute and other compliance violations that can carry significant penalties.  If a review is based on an inaccurate or inflated report, a positive resolution can likely be reached with investigators.  However, anyone who has ever been involved in a government compliance investigation understands the intangible damage that the process can create.

In order to avoid complication that could result from inaccurate reports, physicians and other reporting subjects should be certain to register to receive notification of proposed Physician Sunshine Act reports.  Any inaccuracies should be disputed promptly.

Anti-kickback Statutes – Free Transportation Services to Patients – Safe Harbor Regulations

Wednesday, March 22nd, 2017

Free Patient Transportation Services

Factors to Consider When the Transportation Safe Harbor is Not Satisfied

Health Attorney Wisconsin Health LawHere are some factors pulled from various OIG Advisory Opinions on free patient transportation.  The safe harbors for patient transportation should also be consulted, but these factors may be relevant in cases where not all safe harbor elements can be met.  Some factors identify criteria that makes an arrangement suspect.

  • Offering out of state patients free transportation to receive services.
  • Compensating drivers of vans or other vehicles on a per patient basis for patients that are brought to the facility.
  • Offering free luxury transportation.
  • Offering free transportation to the patients of physicians or other referral sources in order to induce them to refer to the facility.
  • Free ambulance services without making any determination of financial need.
  • Offering free transportation to nursing home residents to a facility,especially for services of questionable necessity.
  • The costs of the free transportation must be borne by the facility and should not be passed on to any Federal health care program.
  • Higher levels of advertising and marketing of the transportation service will raise more concern.
  • Transportation from one provider to another raise a higher level of concern than transportation directly to the facility. In other words, where the transportation is from the place of business of a potential referral source (i.e. physician or other health care provider) the fraud and abuse risk is higher.
  • Whether there are other methods of affordable transportation in the area. If affordable transportation options are not readily available, the arrangement will raise less concern.
  • Whether the services are offered and/or marketed outside of the facilities normal service area. The OIG looks with disfavor on “leap-frog” arrangements that induce patients to bypass other closer providers due to the free or low cost transportation arrangement.
  • The OIG also raised general concerns about the provider who uses free transportation to gain access to patients, potentially for unnecessary or questionable services.

Maneuvers and Techniques Prohibited in Community Based Programs and Facilities

Thursday, February 9th, 2017

Wisconsin Prohibited Maneuvers and Techniques in Community Based Programs

Wisconsin Behavioral Health Managing Aggressive Behaviors

Wisconsin Behavioral Health Lawyer

The Wisconsin Department of Health Services (DHS) as released a memo that specifies maneuvers or techniques that may not be used at any time in community based programs and facilities. DHS deems the prohibited maneuvers or techniques to “present an inherently high risk of serious injury and even death.”  Providers are directed by DHS to immediately discontinue the use of any of the listed maneuvers.  Prohibited maneuvers, techniques, and procedures that may not be used under any circumstances include:

  • Any maneuver or technique that does not give adequate attention and care to protection
    of the head.
  • Any maneuver or technique that places pressure or weight on the chest, lungs, sternum,
    diaphragm, back, or abdomen.
  • Any maneuver or technique that places pressure, weight, or leverage on the neck or throat, on any artery, or on the back of the head or neck, or that otherwise obstructs or restricts the circulation of blood or obstructs an airway, such as straddling or sitting on the torso, or any type of choke hold.
  • Any maneuver or technique that involves pushing into a person’s mouth, nose, or eyes.
  • Any maneuver or technique that utilizes pain to obtain compliance or control, including punching, hitting, hyperextension of joints, or extended use of pressure points.
  • Any maneuver or technique that forcibly takes a person from a standing position to the floor or ground. This includes taking a person from a standing position to a horizontal (prone or supine) position or to a seated position on the floor.
  • Any maneuver or technique that creates a motion causing forcible impact on the person’s head or body, or forcibly pushes an individual against a hard surface.
  • The use of seclusion where the door to the room would remain locked without someone having to remain present to apply some type of constant pressure or control to the locking mechanism.

DHS explains in the memo that the ultimate goal is to replace such interventions with trauma-informed systems and settings, positive behavior supports, and non-coercive intervention strategies. DHS promotes recovery and healing that is consumer-driven, person-centered, trauma-informed, and recovery-based.

In addition to describing measures that are completely prohibited, DHS states that restrictive measures that are not prohibited may only be used in emergency situations in which there is an imminent risk of serious harm to self or others, or as part of an approved plan. Situations in which the person’s behavior was foreseeable based on his or her
history are not considered an emergency.   Even restrictive measures that are not directly prohibited must be avoided whenever possible and may only be used after all other feasible alternatives, including de-escalation techniques, have been exhausted. When necessary, restrictive measures may only be used with the minimum amount of force needed, and for the shortest duration possible, to restore safety.

Facilities should review their policies and practices to assure compliance with the guidelines set forth in the memo. Additional staff training should be conducted to assure compliance with these standards.   Additionally, providers should become familiar with the changing standards of care and best practices focused on building skills and techniques to de-escalate and redirect behaviors that present safety concerns, and work earnestly to promote a trauma-informed culture of care.

Health Law Blog Wisconsin Healthcare Lawyer Blog

Wednesday, January 25th, 2017

Health Care Blog Articles Published by John Fisher

Here is a list of some of the recent health law related blog articles that I have recently posted across several different blog sites:

HIPAA Breach Notification Settlement – First Case of Untimely Notice of Breach

OIG Annual Work Plan for 2017 – Topics Covered

Skilled Nursing Facility and Nursing Home Initiatives OIG 2017 Annual Work Plan

Don’t Overlook Special Status of Behavioral Health Records

Off-Campus Provider-Based Departments Site-Neutrality

21st Century Cures Act Signed by President Obama

US Attorney Manual Updated to Incorporate Yates Memorandum DOJ Directives Incorporating the Yates Principles

Certification of Investigation of Individual Wrongdoing Under the Yates Memorandum

How Should Compliance Process Integrate the Yates Memorandum?

New Federal Prosecution Standards Require Revisions to Investigation Policies

300 Pages of New Regulations Ruining Health Care Attorney Lives Across the Country

60 Day Repayment Rule Affordable Care Act

ACO Primary Care Exclusivity Requirement – Not As Broad As Some Believe

Ambulatory Surgery Center Advisory Opinions

Antitrust Law Application In Rural Areas- Hospital Mergers

Antitrust Market Analysis In Provider Integration

Antitrust Policies Avoiding Spillover – Clinically Integrated Networks

Auditing Physician Payments For Stark Law

Bundled Payment Arrangements for Clinically Integrated Networks

Certification of Investigation of Individual Wrongdoing Under the Yates Memorandum

Clinical Integration Readiness Analysis CINs

CMS Releases Final Rules Under Medicare Shared Savings Program

CMS Releases the First Comprehensive Overhaul of Nursing Home Conditions of Participation in Over 25 Years

False Claims Act Basics – Known Overpayment Becomes False Claim

False Claims Act Liability – Conditions of Participation and Conditions of Payment

Final Rule Under the Medicare Shared Savings Program Released

HHS Releases Inflation Adjusted Federal Civil Penalties

How Should Compliance Process Integrate the Yates Memorandum?

Incident To Billing Rules Changed In New CMS Regulations

Major Revamp of Nursing Home Regulations Proposed By CMS

Medicare Shared Savings Program Changes Under 2016 Physician Fee Schedule Regulations

Medigap PHO Discount Program Receives OIG Approval

New Federal Prosecution Standards Require Revisions to Investigation Policies

Off-Campus Provider-Based Departments Neutrality

OIG Fraud Alert – Medical Director Compensation Arrangements

Outpatient Surgery Article On Using A Safe Surgery Checklist

Population Health Management and Clinical Integration

President Signs the 21st Century Cures Act

Primary Care Integration Strategies – Divisional Group Practice Mergers

Provider Self-Disclosure Decisions – Voluntary Disclosure Process

Referral Requirements – Can Employed Doctors Be Required to Make Referrals?

Reimbursement for Telemedicine and Telehealth Services

Telemedicine Credentialing By Proxy

When Can Violation of a Condition of Participation Result in False Claims Act Liability? Update on Escobar’s Materiality Standard

Medical Record Copying Charges In Wisconsin

Wednesday, May 7th, 2014

Wisconsin Law Release of Patient Medical Records

Wisconsin Law requires health care organizations to provide records are to patients “on request.”  Records can be provided directly to the health care provider subject to payment of the statutory fees.  Patient must deliver an “informed consent” to the organization consenting to release of their records.

Fees were revised as provided below:

(a) A patient’s health care records shall be provided to the patient’s health care provider upon request and, except as provided in s. 146.82 (2), with a statement of informed consent.

(b) The health care provider under par. (a) may be charged reasonable costs for the provision of the patient’s health care records.

(2) The health care provider shall provide each patient with a statement paraphrasing the provisions of this section either upon admission to an inpatient health care facility, as defined in s. 50.135 (1), or upon the first provision of services by the health care provider.

(3) The health care provider shall note the time and date of each request by a patient or person authorized by the patient to inspect the patient’s health care records, the name of the inspecting person, the time and date of inspection and identify the records released for inspection.

 (3f)

(a) Except as provided in sub. (1f) or s. 51.30 or 146.82 (2), if a person requests copies of a patient’s health care records, provides informed consent, and pays the applicable fees under par. (b), the health care provider shall provide the person making the request copies of the requested records.

 (b) Except as provided in sub. (1f), a health care provider may charge no more than the total of all of the following that apply for providing the copies requested under par. (a):

Revised Fees for Patient records:

 Wisconsin Medical Record Maximum Fees through June 30, 2014 — (last year’s fees noted for reference)

Paper copies

  • First 25 pages: $1.04/page ($1.02/page)
  • Pages 26-50: 77 cents/page (76 cents/page)
  • Pages 51-100: 52 cents/page (51 cents/page)
  • Pages 101 and above: 31 cents/page (30 cents/page)

Microfiche or Microfilm: $1.55/page ($1.52/page)

Print of an X-ray (per image): $10.32 ($10.15)

If the requestor is not the patient or a person authorized by the patient

  • Certification of copies: $8.26 ($8.12)
  • Retrieval fee: $20.65 ($20.30)

Wisconsin Health Law Legislation Signed By Governor Walker

Thursday, April 17th, 2014

Health Care Legislation Signed By Governor Walker 

Wisconsin Governor Scott Walker signed 63 new pieces of legislation into law on April 9, 2014, several of which relate to the health care industry.  The new health care legislation includes the following:

1.         HIPAA Harmonization.  The HIPAA Harmonization Act which changes laws relating to behavioral health records to better align Wisconsin laws to federal HIPAA requirements.  Assembly Bill 453.

2.         Hospital Conditions of Participation.  A new law requiring the Wisconsin Department of Health Services to use Medicare Conditions of Participation when surveying hospitals.  This legislation gives DHS the authority to enforce standards that are contained in federal regulations as the minimum standards for Wisconsin hospitals.  The DHS is required to interpret the conditions of participation using guidelines established by the Federal Center for Medicare and Medicaid Services (“CMS”).  The new standards will apply beginning July 1, 2016.  Senate Bill 560.

3.         Physician Residency Requirement.  Post medical school residency requirements for physicians are increased from one to two years.  New medical school graduates will now be required to complete two years of residency unless they receive an unconditional endorsement from the residency program director.  The new law also creates a new “resident educational license” to replace the current “temporary educational permit.”  A new “administrative physician license” is also created which authorizes physicians to hold a license limited to administrative services.  Senate Bill 579.

4.         Mental Health Pilot Program.  A new pilot program in Milwaukee County was created which allows emergency detention without the involvement of law enforcement in certain circumstances.  Under this bill, the authority to initiate emergency detention is expanded to a “treatment director” or their designee, including a licensed social worker, professional counselor, or psychiatric nurse.  The stated purpose of the pilot program is to reduce stigma in mental health by allowing a clinical approach rather than a law enforcement approach to emergency detentions.  Assembly Bill 500.

5.         Volunteer Health Care Programs.  A law to allow an out-of-state health care professional to partner with a non-profit provider to participate in Wisconsin’s volunteer health care provider program.  The health care provider must have a current license to practice in their home state or territory and must only volunteer within their scope of their practice.  Senate Bill 391.

6.         Provider “Apology” Protection.  A new law which allows a health care provider to have full and frank conversations with patients or patients’ relatives that may include apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy, without risk of admissibility in civil action, administrative hearing, disciplinary proceedings, mediation, or arbitration as evidence of liability.  Assembly Bill 120.

7.         Tribal Treatment Facilities.  A new law that permits an approved tribal treatment facility to assess and treat participants in the intoxicated driver program who are either tribal members or relatives of tribal members.  The bill requires a court to notify the person convicted of operating while intoxicated that the offender is eligible for treatment at the facility and the facility must notify the appropriate county assessment agency within 72 hours of assessing the individual.  Assembly Bill 32.

8.         Annual Mental Health Service Reports.  A new requirement that the Wisconsin Department of Health Services provide a report to the Legislature on January 1 of every odd numbered year that describes what mental health services are being provided by the counties.

9.         Fetal Alcohol Syndrome Reports.  A requirement that hospital employees refer infants to a physician if they suspect the infant has fetal alcohol syndrome.  The physician is then required to evaluate the infant for the syndrome if they determine there is a significant risk of fetal alcohol syndrome.  The physician must then report to the agency responsible for investigating cases of child abuse and neglect.  Assembly Bill 675.

If you require further information on any of these legislative enactments, please contact John H. Fisher, II, CHP, CCEP.  Further updates will also be found at http://www.healthlaw-blog.com.

Health Care Lawyers In Wisconsin

Tuesday, April 8th, 2014

By John Fisher, JD, CHC, CCEP

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New Physician Assistant Supervision Requirements Effective March 1

Tuesday, March 11th, 2014

Wisconsin MEB Changes PA Supervision Requirements

The Wisconsin Medical Examining Board (MEB) recently approved several changes impacting physician supervision of physician assistants (PAs) in Wisconsin. These revisions are reflected in the Wisconsin Administrative Code Med 8 (Med 8) and became effective March 1, 2014. It is important that physicians be aware of the changes and the impact the revisions may have on their practice.

Here’s an overview of the key changes:

Supervising Physician to Ratio
A supervising physician may now simultaneously supervise four, rather than two, on-duty PAs. There is no limit to the number of PAs that a physician can supervise over time, and a PA may be supervised by more than one physician while on duty. A physician may still request authorization from the MEB to supervise additional PAs.

PA Prescribing
PA prescribing is simplified under Med 8. A PA may prescribe orders for drugs provided the PA’s prescriptive practices are initially reviewed, and at least annually reviewed after the initial review, by a supervising physician. Reviews must be documented and signed by the supervising physician, and the PA must be available to the MEB upon request.

Identifying the Supervising Physicians
Med 8 adds the requirement that the supervising physician must be readily identifiable by the PA. The rule does not require a specific manner of documentation—just that it is being documented.

Substitute Supervising Physicians
Substitute supervising physicians no longer need to be reported to the MEB.

On-Site Visit and Review of PA Practice Locations
A supervising physician is no longer required to make a monthly visit and on-site review of each facility where the PA practices.

The full text of Med 8 is available online. Physicians who supervise PAs should be conscious of the new requirements and adjust their practices accordingly to ensure compliance.