Quarterly Newsletter - SPRING EDITION 2016 - #19
SAC Senior Partner George Colman Meets with LA CARE Health Plan Executives
Two Steps Forward, One Step Back with Electronic Health Records Technology By Chuck Acquisto, Esq. Growing up in the 1970s, I remember staring at the prescriptions my pediatrician had written down for my mom to take to the pharmacy. I wondered, how can anybody read the doctor’s chicken scratch? Now, surely modern technology with electronic health records (“EHRs”) must make the medical community’s communication easier with a chance of error being far less likely. But as football analyst Lee Corso likes to say, “Not so fast, my friend.” A computer mouse slips during a click, causing the ER doctor to check the wrong number, ordering a medication dosage that is far too large. In another hospital bed, the electronic health record for a patient’s name is not clearly displayed, causing the nurse to enter the patient’s symptoms in the wrong person’s file. As old and new ER doctors and nurses transition to electronic medical record systems, mistakes seem to be happening more frequently. According to a Modern Healthcare article, one of the promises of the 2009 federal stimulus program, which provided financial incentives to hospitals that adopted EHRs, was a reduction in errors as physician and hospital patient records were linked. But in ERs, where things often happen rapidly, “the push for interoperability sometimes sets up a technology mismatch that creates challenges that aren’t necessarily as
evident in other parts of the hospital,” the article stated. Medical providers may rush between patients, juggling multiple cases. To service this hectic environment, many hospitals at first created EHRs that were independent of hospital-wide systems, Modern Healthcare reported. But those homegrown ER systems often aren’t compatible with the newer, comprehensive ones hospitals are buying, so they’re being phased out. The newer EHR models often require adjustments to meet ER needs. According to Modern Healthcare, members of the American College of Emergency Physicians wrote a report in 2013 that found mistakes in the ER — such as ordering the wrong medications or missing key patient information because of confusing computer screens—were common after the switch to a new digital system. The 2013 report suggested many of the mistakes might be the result of poor design rather than user error. However, there’s no research measuring how often these errors cause actual harm to the patient. So yes, electronic records have resolved many safety concerns in healthcare. Modern technology has rendered obsolete issues like ability to read a physician’s handwriting. Accessing a patient’s medical records is easier and faster. There are just a few more kinks in the process that need to be ironed out.
The Law Offices of Stephenson, Acquisto & Colman’s (SAC) continues lobbying for the best financial interests’ of hospitals throughout the West. This effort was furthered by a meeting on February 24, 2016, when SAC partner George Colman met with John Baackes, CEO of LA Care Health Plan. Colman credits Mark Gamble of HASC in facilitating the meeting for the purpose of addressing the myriad of problems a majority of Los Angeles County hospitals have with LA Care’s processing of claims.
“LA Care is devoting great effort to fix the problems and expects full implementation of a new process to be completed by September 1, 2016.” This includes the adjudication process of disputed claims and communication with respect to the millions of dollars in aging receivables, with many more than 360 days old. Colman met with Baackes as both a local representative of the Healthcare Financial Management Association and as Chairman of the Board of Trustees for St. Francis Medical Center and Verity Health. Colman noted that SAC’s experience, integrity, and credibility convinced LA Care Health Plan that a meeting could be a benefit to both contracted and non-contracted hospitals. The meeting accomplished many goals: addressing claims adjudication, freeing up payments, fixing the SNF problem of denying admission of hospital patients who are LA Care beneficiaries, and the scheduling of a Webinar held on March 10, 2016, which allowed hospitals to raise any issue, concern, or problem. Baackes and other administrators from LA Care participated in the webinar. CONT’D- BACK
Another Round of HIPAA Audits Targets Business Associates With April fast approaching, it is not unusual to hear the word “audit” bandied about by the office water cooler. In the healthcare world, more businesses should be preparing for a new round of audits from the federal government looking for HIPAA non-compliance. In fact, a new round of federal privacy and security audits will target the business associates of healthcare providers, insurers and other HIPAA-covered entities, according to a March 21 Modern Healthcare article. The audit will also target the providers and insurers as well, according to the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS). OCR is responsible for administering and enforcing the Health Insurance Portability and Accountability Act of 1996 (HIPAA). As reported by Modern Healthcare, OCR has already started sending out emails to obtain and verify contact information for covered healthcare entities and business associates of various types for possible selection from the pool of potential audit subjects. Why all the audits? The health IT sections of the American Recovery and Reinvestment Act of 2009 added a number of tougher privacy and security provisions to HIPAA. The federal law also required that HHS initiate a series of audits to verify compliance with the rules. An additional provision in the 2009 stimulus law placed the businesses that do the data handling, processing and analysis in healthcare on the same legal footing as the hospitals, physicians, insurance companies and claims clearinghouses they are employed to assist. These business associates were largely given a free pass in the first round of audits that were completed in December 2012. According to a 2013 OCR report, roughly 66 percent of the entities audited (47 of 59 healthcare providers, 20 out of 35 health plans) lacked complete and accurate risk assessments.
For example, earlier this month, OCR announced a pair of settlement agreements totaling nearly $5.5 million with the Feinstein Institute for Medical Research in New York and North Memorial Health Care in Minnesota to settle possible HIPAA violations. The North Memorial Health Care case also involved a business associate, the Chicago-based revenue cycle management firm Accretive Health, according to OCR, which said the provider and its contractor did not have a HIPAA-required agreement in place. So what should a healthcare provider and business associate do to prepare for a HIPAA audit? If you “win” the audit lottery and receive a letter from Uncle Sam, the letter recipient should pull out the company’s current HIPAA security risk assessment and follow up on open areas. Provider business associates should be fully prepared to hand over more than just HIPAA policies and procedures if they receive notice of an OCR audit. These healthcare businesses should start thinking about how the company will demonstrate implementation of their written policies and procedures. •
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Sanctions policy. These business entities need to make sure the company not only has an appropriate sanctions policy for a breach, but that the company can also demonstrate consistent implementation of the punishment. Breach notification. To demonstrate compliance with the breach notification requirements, covered business associates should review their breach policies and procedures, workforce training and sanctions, documentation of incidents that have occurred, and documentation of notifications or a breach risk assessment as required by the Breach Notification Rule.
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Risk analysis. Covered entities should ensure their most recent risk analysis assesses potential risks and vulnerabilities to all information systems, devices and media containing electronic protected health information. Covered entities and business associates should review OCR’s Security Risk Analysis guidance and NIST Special Publication 800-30 as they update their risk analysis and mitigation plan. Smaller entities also may want to consider using the HHS’ Security Risk Assessment Tool.
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Vendor management. Covered entities also should be thinking about their vendor management process. OCR will ask covered entities for a list of business associates, but covered entities should take this opportunity before they are selected for an OCR HIPAA audit, to go through all vendors and ensure they have identified those that are in fact HIPAA business associates. Covered entities should ensure they have updated business associate agreements to reflect the Omnibus Rule changes.
For many healthcare business associates, an audit letter may be their first interaction with OCR. Business associates should demonstrate compliance with the Security Rule, Breach Notification Rule and Privacy Rule, including documentation of reported breaches to covered entities and business associate agreements with subcontractors. Covered entities can consider using OCR’s audit protocol to prepare for an OCR audit (found here). Remember, it is never too late to prepare for an audit. Covered entities and business associates that have not already begun preparing for OCR HIPAA audits should do so immediately. Quickly review the company’s HIPAA compliance, update any risk analyses and risk management plans, policies and procedures, business associate agreements, and notices of privacy practices as needed.
Michael Robinson This quarter’s Spotlight is on attorney Michael Robinson.
Spotlight Q&A What is your area of expertise within SAC? My main area of expertise is prosecution of legal actions on behalf of hospitals against healthcare payors that fail to fully pay for patient care, whether in state court, federal court, or arbitration. I also have expertise in other areas related to hospital reimbursement, such as legal actions against physicians who fail to honor the terms of their income support agreements, and resolving coverage disputes on claims where the hospital is the capitated payor but may not have treated the patient.
What one piece of sage advice can you offer to our clients that can help them in the future? When contracting with health plans and networks, don’t just look at the rates. There are many pitfalls that can be inserted by these large-scale payors, such as Blue Shield, Anthem, Cigna, etc. A common one is a shortened time period for filing suit, such as one year after the initial denial, when California law would allow the hospital up to four years. Another one is an IRO provision for clinical disputes, where the hospital agrees to submit all clinical disputes (ordinarily medical necessity and level-of-care disputes) to an independent review organization, or IRO, that will have the final say on whether the hospital’s position is correct. It is almost always in the best interests of the hospital to have the right to pursue disputed claims in court or arbitration. Unfortunately, it often appears the hospitals are just looking at the rates of reimbursement on these contracts. This is understandable, since those rates are the main concerns of the hospital’s finance team, and the main pints of negotiation. But the finance team should also be sure they are not contracting away important legal rights that could adversely affect the hospital’s ability to recover on disputed claims down the line.
Can you talk about a recent success story of yours? What was the challenge and how were you able to overcome it? We recently represented a hospital on a coverage dispute, where the hospital
was the capitated payor for a patient who received extensive medical treatment from other providers. The patient was an infant born with serious birth defects who tragically passed away within a year of birth. The baby was covered by a policy issued by a large national health plan to the patient’s grandmother, through her employment with the county. The hospital assumed the risk for the patient under a risk-sharing agreement with the health plan. However, the hospital noted an eligibility issue. Based on medical records and various intake forms, it appeared the patient lived with the mother, not the grandmother, and thus did not meet the eligibility requirements for grandchildren under the policy. The hospital took the position that, under their risk-sharing agreement, the plan was expected to police and enforce its own eligibility requirements, and the hospital should not pay claims for this patient until the plan either revisited the eligibility determination or assumed the risk for the patient. The plan ended up paying some of the claims, demanded the hospital pay the remaining claims, and threatened to seek reimbursement for the paid claims. When the hospital brought this dispute to SAC, the first hurdle we faced was that the risk-sharing agreement did not expressly address this issue, where the hospital might dispute the plan’s eligibility determination for a patient. However, we decided to construe this dispute as one arising under the risk-sharing agreement, since the hospital’s right to take legal action appeared to be implied within the contract. On the hospital’s behalf, we demanded the health plan either (1) determine there was no coverage for the patient or (2) assume full payment responsibility for the patient. Failing that, we would file a demand for arbitration. Fortunately, we were able to reach a compromise with the plan without having to take any further legal action, nobody sought reimbursement from the deceased patient’s family, and we were able to save the hospital hundreds of thousands in medical claim payments.
Do you have any hobbies or interests outside of work? Now that I have two young daughters, my main hobbies are weekend visits to various museums and parks in the Los Angeles area. One great thing about having kids, they get you involved in all this local culture you might not have even noticed
when you were young and single. Our current favorites are the LA County Natural History Museum, the California Science Center, and the Santa Monica Museum of Flying, respectively known to our children as the Dinosaur Museum, Space Shuttle Museum, and Airplane Museum. Before the second daughter, one of my outside hobbies included golf, and I tried to squeeze in lunch visits to the driving range and nine-hole morning outings from time to time. Even that has become a challenge, but I’m hoping to get at least one of my daughters into golf when they’re older. The older one is easily distracted on the putting green, but she likes having a short putter that matches daddy’s, so I’m keeping my fingers crossed.
Do you have family and/or pets you’d like to tell us about? My home life centers around my lovely wife Marisa and our two daughters, four-year-old Melody and two-year-old Meadow. (All “M” names was Marisa’s idea, so our signature is M♥M♥M♥M.) The kids are adorable, fun-loving, bright, and quite the handful. As I’m sure most parents of young children can attest, my wife and I cycle between adoration, love, frustration and exhaustion – often within a span of minutes. As for pets, we have so far resisted the calls for a puppy, but we do have a pet beta fish, Beta III, who seems to be happy and thriving. Beta the First and Beta II didn’t fare so well – but we learned a lot about fish care, and the kids learned some valuable lessons about the circle of life.
Do you have any guilty pleasure television shows, movies or other activities to tell us about? I try to not feel guilty about any of my pleasures, so I proudly enjoy as many cable shows as I can find time for, mainly Game of Thrones and Better Call Saul right now. Still looking for replacements for my old favorites, Mad Men and Boardwalk Empire. And Pixar movies are great, I tend to cry at three different points of any given film. I know that sounds silly, they’re cartoons, but Inside Out was genuinely touching!
What are your favorite Colors? Other favorites?
foods?
Best to sum it up with my favorite meal: Hot sake, cold beer, and Szechuan noodles so spicy your tongue’s on fire! But not really, just thought that sounded cool. In truth, I try to minimize my intake of simple carbs, mainly with a lot of brown rice, whole grain bread, and as many ocean vegetables as possible. I also try to stay well-hydrated and get all my essential vitamins and minerals through a daily supplement. Perhaps I’m going beyond the scope of the question? Let’s just stick with my original answer.
LA CARE- CONT’D
Because of the high interest level among facilities concerning Mr. Colman’s meeting, SAC has a summary available upon request. For more information, please contact the SAC administrative assistant, Emma Mazmanian at 818-559-4482; emazmanian@sacfirm.com.
Northern California
Armed & Dangerous May 12, 2016
Hilton Concord Hotel | Concord, CA Join us for this one-of-a-kind educational seminar where we will ARM you with the knowledge of both how your contracts work for you and more importantly, how they can work against you. Once armed with this knowledge, you will be DANGEROUS to the payor community and they will think long and hard about denying your claims. REGISTER:
https://sac-norcal-armed-and-dangerous.eventbrite.com
All articles are written by the SAC Litigation team. The SAC Litigation team includes attorneys, nurses and physicians with extensive experience in all areas of law related to healthcare matters. Additionally, SAC partners hold legal advisory positions with healthcare organizations and sit on the boards of numerous healthcare-related organizations and monitor all out-going SAC client marketing materials and related content.
WWW.SACFIRM.COM
April 21-24, 2016 - HFMA of Hawaii Spring Conference, Waikiki Beach, HI Charles Acquisto will be speaking at this years conference on the Do’s and Don’ts of Managed Care Contracting: Avoiding the Pitfalls May 18-20, 2016 - HFMA of Oregon Spring Conference, Salishan Garden Beach, OR October 5-7, 2016 - AAHAM Annual National Institute, Las Vegas, NV SAC’s Partner Geroge Colman and Managing Litigation Attorney and Partner, Richard Lovich will both be on a panel at this years event.
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Quarterly Newsletter SPRING Edition 2016 Enclosed
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UPCOMING EVENTS
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The encouraging news is that LA Care is devoting great effort to fix the problems and expects full implementation of a new process to be completed by September 1, 2016. LA Care is focusing on being a major approved payer by State and Federal agencies in Medi-Cal Managed Care and other senior programs.