Healthcare Law
HHS Proposes Access Report for Patients: Proposed changes to HIPAA Privacy Rule
Aug 8th
The Department of Health and Human Services (HHS) is now reviewing comments from healthcare industry participants about its proposed rule to modify the standard for accounting of PHI disclosures under the HIPAA Privacy Rule. HHS has proposed revising the Privacy Rule by dividing it into two separate rights for individuals: the right to an access report of disclosures through electronic medical records; and the right to an accounting.
Under the Proposed Rule, covered entities would now be required to provide individuals with an “access report,” identifying all persons who have accessed an individual’s electronic “designated record set” information. The designated record set is the group of records maintained by or for a covered entity that is either (1) used, in whole or part, to make decisions about individuals; (2) a provider’s medical and billing records; or (3) enrollment, payment, claims, adjudication, and case or medical management record systems maintained by or for a health plan. This new access report applies only to electronic records and is intended in part, to fulfill a requirement established by the Health Information Technology for Economic and Clinical Health Act (HITECH) to provide individuals with information about disclosures of their PHI to carry out treatment, payment and health care operations if such disclosures are through an electronic health record.
Distinct from, but complementary to the access report is the proposed right to an accounting. While the access report would provide information on who has accessed the individual’s electronic PHI, the accounting would provide additional information about the disclosure of the “designated record set” information to persons outside the covered entity and its business associates for certain purposes, such as law enforcement, or public health investigations. The purpose of the access report is to allow individuals to learn if specific persons have accessed the individual’s electronic designated record set information. The accounting disclosure, on the other hand is intended to provide more detailed information for certain disclosures that are most likely to impact the individual.
The deadline for submitting a comment to be considered by HHS was August 1, 2011. The Final Rule will be published after HHS has reviewed, analyzed and if necessary responded to the comments, which can be viewed at:
Christine Salimbene, Vice President & General Counsel
Being Dutiful About Compliance
Jul 29th
Health care providers now more than ever must be proactive when it comes to addressing compliance and billing issues with Medicare and Medicaid. Recently, federal and state governments have been devoting increased resources to detecting and combatting fraud in the health care industry. At the federal level, both the Department of Justice and the United States Attorney’s Offices have increased the number of prosecutors and investigators assigned to look into potential health care fraud cases.
In addition to the federal government, states have also increased the resources they are devoting to uncovering healthcare fraud. New Jersey in particular has joined several other states in setting up a separate civil agency to investigate health care providers. This agency has been given the power to refer cases to prosecuting authorities for criminal charges.
With so many resources being employed to detect “fraud,” health care providers are well-advised to stay ahead of the curve by identifying potential problem areas and addressing them before an audit or investigation begins. One particular area to providers should pay close attention to is “overpayments”. The Affordable Care Act requires health care providers to return “overpayments” from a government payer within 60 days of the “overpayment” being identified. Failure to do so ostensibly subjects the provider to liability under the False Claims Act for “knowingly and improperly avoiding or decreasing” an obligation to the government, i.e., the failure to return an overpayment to Medicare or Medicaid.
As yet, there is no official guidance as to what “identified” means for purposes of Affordable Care Act/ False Claims Act liability, but some aggressive prosecutors are suggesting that the 60 day time clock starts ticking as soon as notice of a potential overpayment is received.
To be safe, providers would do well to adopt a standard policy and working procedure to promptly refund any overpayments and make sure that their revenue cycle managers understand the policy.
For more information see, Jack Wenik. “Health Care Investigations: The ‘Squeeze’ May Soon Come to N.J.” New Jersey Law Journal. Vol. 205. No. 5. (2011) 384.
AMA Asks HHS to Revise the Medicare e-Rx Policy
Dec 14th
According to current Medicare regulations, any physician that is not e-prescribing in the first six months of 2011 will be penalized in 2012. The American Medical Association (AMA), believing this punitive regulation to be a hindrance to proper widespread healthcare IT adoption and implementation, is urging the Department of Health and Human Services (HHS) to revise this portion of Medicare policy. In a letter recently sent by the AMA to HHS Secretary Sebelius, the AMA claimed that this federal policy would force healthcare providers to undertake extra and unnecessary administrative and financial burdens.
“The last minute decision to require e-prescribing in 2011 will force physicians to spend additional financial and administrative resources to purchase e-prescribing software that most of them will end up discarding when they transition to a complete EHR system,” said AMA Board Secretary Steven J. Stack, MD.
Currently, under CMS rules, healthcare providers cannot receive both e-prescribing and EHR incentive bonuses simultaneously. Moreover, healthcare providers who do not partake in the e-prescribing program for 2011 will face penalties in both 2012 and 2013. “This unreasonable policy leaves many physicians with little choice but to purchase and use a stand-alone e-prescribing program during the initial months of 2011 just to avoid penalties,” says Stack. The AMA demands that HHS take swift action in order to reduce any confusion among providers as well as any unnecessary administrative and financial burdens providers will face when adopting healthcare IT systems.