Healthcare Law News - Volume 123
One Out of Two
The Journal of American Medical Informatics Association recently observed the entry of common tasks like ordering an x-ray in EHR platforms by Epic and Cerner. They were stunned to see the error rate was 50%. This obviously indicates that EHR systems need to be rethought and redesigned.
CMS released a proposed rule on July 25th which addresses a myriad of issues in its 761 pages. The rule with most immediate impact and is the proposal that the payment playing field for physicians in non-hospital facilities be paid the same as hospital based facilities. In other words, hospitals will no longer be able to be paid more for the same work done in a physician’s office or non-hospital ambulatory clinic just because it was in a hospital owned setting. CMS indicates that ambulatory surgical centers and physician’s offices are only paid 55% of that paid a hospital based outpatient facility for similar services.
Assuming this proposed rule is implemented, it will be interesting to see if this rule has a significant impact on hospital purchases of physician practices to move them into hospital settings where reimbursement amounts have been substantially higher.
Yi Can’t Do This
A federal jury convicted Ms. Yi, a South Korean citizen, of stealing more than $83 million from Medicare and private payers. Ms. Yi apparently also committed tax fraud using various schemes and methods to try to conceal her over-billing scheme. Ms. Yi was convicted of one count of conspiracy to commit healthcare and wire fraud, seven counts of healthcare fraud, one count of conspiracy to defraud the United States and one count of filing a false tax return. Ms. Yi used the proceeds from her scheme to buy luxury goods and five condominiums in the DC area, Chicago and Honolulu, Hawaii.
Of interest in this scheme is that apparently Ms. Yi’s sleep diagnostic center received patients referred by physicians for legitimate sleep studies. Ms. Yi’s organization then added supplemental medically unnecessary studies and to conceal the scheme, her company did not send the results of the extra/fraudulent studies to the patients’ doctors, among other schemes.
It is unclear from the reports to date, whether Ms. Yi was caught by standard auditing or by patients reporting to their doctors the additional studies which their physicians never received.
Pot Calling the Kettle
Although the idea of an insurance company complaining about the ethics of anyone else might seem ironic, one insurer has filed a law suit against dozens of pharmaceutical manufacturers. The complaint alleges these drug makers artificially set or hiked prices for widely used generic drugs. The law suit follows a Department of Justice investigation over the last several years that involve manufacturers such as Mylan, Novartis, Teva and Heritage Pharma. Heritage Pharma’s former CEO and President already “cut a deal” with state prosecutors. It is likely this is one of the prime sources of the information that has led states, the federal government and now Humana to seek punishment and damages from the claimed co-conspirators.
We continue to get inquiries from our physicians and hospitals asking about using text messaging to answer patient inquiries, to provide reminders for appointments or procedures to patients or similar purposes. The question we are usually asked is whether this is permissible under HIPAA.
The answer is not as simple as the question. HIPAA itself does not authorize nor prohibit text messaging of PHI. HIPAA prohibits the improper disclosure of such information. HIPAA assumes if you use unencrypted transmission methods (whether email or text) that you must have additional safeguards and procedures to protect such unencrypted PHI.
On the other hand, HIPAA’s current regulations assume if you use encrypted data transmission methods (email or text) then it will be presumed you have taken adequate safeguards.
The question then, for our clients, are you transmitting PHI when you simply remind someone of an appointment? Our answer is that in most cases a simple notice to remind an a patient of an appointment at 4:00 at so and so address will not be a PHI transmission and need not be protected or encrypted outside of normal and reasonable safeguards. However, if you are transmitting specific data that might identify a particular patient or identify any particular test or treatment that might indicate a particular condition for the patient, then it is more likely that PHI would be considered to be transmitted by such a text (or for that matter an email).
In the latter case, where there is more than simply a message that an appointment is “at 4:00 pm tomorrow at such and such address” then we strongly recommend that our clients use encrypted applications. There are many of them out there; a few examples are Rokacom and Cyphr. None of these programs are perfect and all generally require that both the sender and recipient have the encryption app on their device. In other words if your clients want to communicate by text, you will need to require them to use your encryption/communication application.
We also recommend you have your patients sign a consent to electronic transmission, both email and text, the first time the patient requests a text or email. This form should include a disclosure of risks in a general sense and specific request and consent by the patient to use these methods notwithstanding the risk of disclosure.
The American College of Physicians believes female internal medicine doctors only earn $0.80 for every $1.00 earned by male internal medicine doctors (average for male doctors was $50,000 higher). This supports data from other studies including The Maryland State Medical Society showing very large differences in pay of female physicians.
This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years. Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues. Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or email@example.com.