I thought I knew the area fairly well but occasionally I find something that surprises me. This time it's a PRIVATE Medicare+C plan. This is a private fee for service option and is now done by Sterling in 25 states and is also to be started by Humana soon. There are no contracts, utilization review or discounted payments. The amount of pre-authorization is minimal. All physicians need to do is collect a co-pay and bill the plan the allowable rate. All Medicare eligible physicians are included in the plan without credentialing. The downside for the beneficiary is the lack of the now fast disappearing HMO extras. there is no prescription or vision coverage. The payment per month is also not zero and is higher than traditional Medicare but it also covers the Medigap coverage. It should be interesting to see what the Feds do about this as it gains momentum. Top
Medicare is putting in a new bank of computers and the hospitals will pay for it. The fed will delay prospective outpatient payments to hospitals for three months (their estimate). This payment delay may throw the hospitals on the cusp over the edge to bankruptcy or at least to heavy borrowing. CMS blames the problem on Congress and their rules. CMS is also telling hospitals not to collect co-insurance from hospitals for the procedures since CMS does not know how much these will be. The co-insurance should be billed after 4/1/02. To help with the problem CMS is going to pay 90% of what the hospital received from Sept. 1, 2001 to November 20th. They will then pay any remainder on 4/1/02 with interest. The amount of interest is not determined. Top
Medicare Transmittal 1725 is horrible. It makes billing by physicians and physician extenders at a single patient encounter to be submitted separately and on paper. This also includes the supporting medical record documentation as to the need for both seeing the patient at the same visit. The local carrier can then use it's own discretion to determine the correct amount to pay. The code must be 99499, an EM code for not otherwise classified services. This can not be billed electronically which is directly counter to the push for electronic billing. It will also raise the physician cost of billing since instead of one claim electronically sent with an incident to, two paper claims are sent with supporting documentation on both which will be lost "accidentally" and delay payment.
Ashcroft be damned! With the injunction against Ashcroft's unilateral ultimatum against physician assisted suicide in place, a physician has given a patient with terminal liver cancer enough Nembutal to commit suicide. The patient paid for the prescription since Medicare or the supplemental insurance will not cover the medicine because it is for a non-covered reason. The 71 year old terminal patient has not decided whether he will take the drug or not. Top
Modern Healthcare has reported an anonymous study of whether a physician would administer a lethal injection or pronounce a person dead in a death row case. The AMA has a several decade rule against physicians participating in these activities. The survey said that 36% would pronounce the person dead and 20% stated they would inject the inmate. There were only 3% that even knew the AMA had a rule against it. I doubt whether anyone even cares about the AMA rule as it holds no weight in any legal or social arena. Top
In the December 10, 2001 Modern Healthcare the cover story talks about how well financially the JCAHO is doing since they laid off many surveyors and other employees. Their revenue however has continued to decline as more institutions are switching to other accreditors. (See Newsletter November at this site.) The increased profit is being scrutinized since there is perception of decreased value for the money charged. It should also be noted that JCAHO accepts large sums of money from contributors, mostly educational suppliers. The Commission gets no money from its own sponsors, ACS, AHA, AMA, ADA and ACP. The JCAHO does not disclose who the corporate sponsors are.
In the same issue, the editorial asks for the resignation of the president Dennis O'Leary as being ineffectual leading the charge for patient safety. They are followers not leaders, intimates the editorial. The editorial states that the JCAHO is not much more than an ambulance catcher. It was not for 19 months after the IOM report that the JCAHO issued its first ever patient safety and medical error reduction standard. It also states that although it considers itself a non-profit the Commission has lost its property tax exemption in DuPage County, Illinois. I hope this is the first blow in the salvo against the organization that takes in a lot of money and does not give back to the hospitals close to the value of the money they pay. Top
The JCAHO has mandated that all surveyors take a certification exam. All initial surveyors need to take and pass the exam prior to going on their own as a part of a survey team. Those who have been surveyors will also need to take the exam but their jobs do not depend on passing the exam. It is only to be used as a tool to give more consistency to the survey process and to know where the surveyor needs to focus to get up to speed.
In a new Alert that all hospitals need to look at and document their discussion of consists of a follow-up of wrong sited surgery. Of the 150 reported cases over a three year period 126 had root cause analysis and 120 were self-reported. The major causes were emergency cases and physical causes such as morbid obesity. Other causes were unusual time pressures to start or finish cases, unusual surgical set ups, multiple surgeons involved in one case or multiple procedures done at a single time. The JCAHO "suggests" marking the surgical site using the patient, creating and using a verification check list, obtaining oral confirmation by the patient of the surgical site, procedure and surgeon and finally for the operating room team to take the time to verify the correctness of all the information as an additional check. Hospitals and medical staff better comply with this "suggestion."
The recent special perspective is devoted to terrorism. how a hospital should be prepared and what questions should be asked by surveyors.
The busy little bees at JCAHO have also put out two clarifications. The first is that the MEC only has to above those contracts external to the hospital and not those of the internal physicians such as radiologists, pathologists etc. The second is how to allow residents to do the face to face meeting and ordering required for the restraints. Top
The head of the Department wants the legislature to look into more coverage for patients caught in the middle of HMO and provider disputes. He wants the ability to allow those with chronic illnesses and children under three to be able to continue to see their prior physician. He does not state what the definition of chronic illness is nor who will pay for the visit. Is this to be another legislative "unfunded mandate?" He also stated that the Department is getting about 500 call per day complaining of HMOs. Some of these are physicians complaining about not being paid. He acknowledged that the Department has no say in the pull out or rise in premiums of Medicare HMOs.
As I reported in the last Medicalaw.net, the head of the California Department of Managed Care is going to court over the fining of Kaiser for their poor and shoddy emergency room care causing the deaths of three people. The Department has given an affidavit that Kaiser does not have enough personnel to ensure prompt treatment. As I stated in the past, Kaiser is not disputing the $1.1 million fine on its merits but on the ability of the Department's authority to regulate the HMO based on the actions of it's physicians and hospitals.
On 12/10/01 the LA Times editorial calls the Kaiser suit against the Department a suit of intimidation. They call for the rejection of Kaiser's "tortured legal arguments". The editorial condemns the use of a receptionist with no legal knowledge who had been required to assess patients' conditions before they saw a physician. The fine was not for a particular patient death but for a system of problems that have not been addressed and have led to patient harm.
The same day the court agreed that the Kaiser contempt charge against the head of the Managed Care was not appropriate and dismissed the case. The fine is still being argued in a different court and for different legal reasons. Top
The legislature has passed and sent to the Governor a bill for malpractice insurance and some tort reform. The also put in place provisions so no court could state the tort reform was illegal without destroying the whole bill. The bill starts a malpractice insurance company run by the state for physicians who can not get affordable insurance elsewhere. Physicians and hospitals (providers) will also get a state tax credit (not a deduction) for three years for 10% of the premium paid for malpractice insurance above $10,000. The bill also allowed for a physician mutual company to be formed. This is one of the best things in the bill. The tort reforms were the removal of bad faith claims against health insurers for bad faith, The case needs an expert to certify to the probability of malpractice prior to the filing of the case, a mini trial before six people to assess the strength of the case, mediation if requested by the defendant, malpractice cases will now all have 12 jurors and the verdict may be 9-3. The results of the mediation or the mini-trial would not be admissible at trial. The real kicker in this is if any part of the tort reform is declared unconstitutional then the whole bill is deemed void. This would cause an immediate halt to the practice of medicine to all who are insured by the the entities allowed to sell insurance by the bill. These are innovative and interesting concepts. It would have been nice to also set a limit to the amount of money to be allowed for pain and suffering, the allowing of structured payments and the ability to tell the jury about the patient's health insurance.
In an interesting addendum to this story the surrounding states are pushing the West Virginia doctors to leave and practice in their state. All the states have lower malpractice premiums than West Virginia and do not have the onerous West Virginia 1.8% provider tax. Moving may make fiscal sense. Top
The Senate and then the House passed differing bills on delaying the implementation of the transactions and code sets of HIPAA from October 2002 to October 2003. The house bill is expected to pass as the bill that goes to President Bush for signature. The bill also removes the $1 surcharge for paper claims to Medicare but does mandate all claims be electronic unless from small physician or hospital providers. It would also mandate a report to the DHHS Secretary a plan as to how they will comply with the 2003 due date. This plan will include information as to whether or not they are currently in compliance and if not, why not, a workplan including funding for achieving compliance, if they will use a vendor to help or do it in house, and have a testing period that begins no later than April 16, 2002. Top
The House has passed and sent to the Senate new and modified rules for the overseeing of Medicare. The problem is the rules make sense so they will probably not become law. Included in the proposed rules are that in EMTALA payment will be made if the information available at the time of service and not the final diagnosis shows the service is reasonable. Also, providers will now be told when an EMTALA investigation is over. The other two new EMTALA regulations are that there needs to be a five day PRO review before CMS can issue a deficiency report and the report must be given to the offending hospital and/ or physician and a new advisory group will be formed to get input from those involved regarding the regulations.
There will also be no new E&M regulations unless a committee composed of practicing generalists and specialists agree. A pilot study of looking at E&M codes with immunity for the time of the pilot project is to be done. Top
There is disagreement between the Maryland Medical Society and an analysts report to the state's legislative panel. In the standard and non scientific statement the analysts believe the medical board is not doing well since complaints have increased and discipline has decreased. The article did not state how many complaints were for rudeness or billing matters and how many were for quality of care issues. A valid complaint is that those cases that need to be resolved are taking too long, up to four years. The reason for the delay and the reason the medical society is fighting the report is the medical society controls required two peer review reports prior to physician discipline. This is part of a turf battle. The report also recommends the reduction of the standard of proof from "clear and convincing" to "preponderance". This would decrease the standard to that of civil trials even though the action is a quasi-criminal action. The report states that information about physician discipline and malpractice should be posted on the internet. This is really OK as long as disciplinary action is final and not just the accusations. The malpractice actions again should only be those that are settled or tried and reported to the Board. Top
North Carolina now becomes the 45th state to have passed a patient right law. The feddies still can't. The N.C. law states that specialists may be primary care physicians, after two adverse internal reviews patients may get an external review, there can be no incentives to deny, reduce, withhold or delay medical necessary care and MCOs may be sued for damages for failure to exercise ordinary care in making health care decisions. Top
Many moons ago Stark I became Law. For those of you with long term memory deficit, this is the law that did not allow physicians to refer to laboratories they or their families owned and compensation was to be on a fixed schedule and not on a percentage of the revenue or collection. This law never went into effect. It was supposed to be implemented on 1/4/02. Now it is being delayed for another year to allow organizations and physicians to restructure contracts.
CMS has issued rules for 23 laboratory tests. They will be covered with one set of billing codes for each test. This takes away the problem of medical necessity and the local rules for each test. This national policy will be especially helpful for those hospitals that are on state borders or who have institutions in multiple states.
The Feds have reported that 75% ($1.2 billion) of all the money collected for civil fraud ($1.6 billion) was due to healthcare. What they do not state is how much of this went back to the Medicare coffers and how much stayed in the OIG above and beyond what they are budgeted for.
In Ohio a group of 75 hospitals have settled a charge of fraud with the Feds for billing for individual tests instead of bundling. The hospitals will pay $22 million in fines. Top
The Houston DA has dropped the investigation he came out so strongly for several months ago. The investigation came after a questionable legal statement by the State Attorney General stating that the state was barred from providing preventive care to illegal immigrants. The hospitals decided to ignore the statement and continue to treat the aliens. The DA then stated he will go after them with six guns blazing. He is now in the corner of the OK Corral ( I know it's not in Texas) sucking his thumb. The DA's own County Attorney has said the Texas Constitution allows the hospitals to continue to treat the illegal aliens without payment. The DA is not going to do anything until he sees that everybody is billed for the preventative services. That does not mean that anything is collected. Remember who pays. The County pays for the investigation and prosecution and since the hospital is a county hospital, the county pays for the defense as well. Maybe that is why the public holds the elected officials in such high regard. Top
DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.