Resources for healthcare chief compliance officers to understand the impact of the Cures Act and information blocking. Includes examples and definitions.
Continue readingGrowth in Telemedicine Could Mean Trouble if You Are Not Careful
We can all agree that 2020 was a year filled with surprises. The emergence of COVID-19 brought restrictions, which made the business of healthcare even more challenging. But then came the saving grace: telemedicine!
Even though telemedicine has been around in some form since the 1900s, its popularity exploded during the midst of the pandemic. With millions of people stuck indoors due to government lockdowns, health care providers turned to telemedicine options to provide desperately needed health care.
According to Doximity, a social media networking service for medical professionals, only 14 percent of Americans utilized telemedicine before the pandemic. But since the outbreak, telemedicine usage skyrocketed by 57 percent. Among patients suffering from chronic conditions, the number of virtual care visits increased by a staggering 77 percent!
The increase in telemedicine accessibility also means healthcare providers can potentially face compliance issue pitfalls, which could land them in trouble with the United States government. Before COVID-19 became a household name, Medicare and Medicaid upheld strict rules regarding payment for telemedicine services. For instance, reimbursement for telemedicine services was limited to patients residing in areas of the country with limited healthcare.In an attempt to slow the spread of COVID-19, government payors loosened these restrictions.
Unfortunately, telehealth services’ widespread use brought an uptick in COVID-19 related scams that specifically target healthcare providers offering this service. Such illegal activity caught the attention of the Department of Justice (D.O.J.).
A primary focus of the D.O.J. is a government agency that mostly focuses on telehealth arrangements that implicate the Anti-Kickback Statute. The statute forbids transactions designed to corrupt medical judgment by rewarding referrals for Medicaid and Medicare services. In the past year, more than $4.5 billion in false claims were connected to telemedicine. And over 100 healthcare professionals were charged with submitting fraudulent claims to Medicare, Medicaid, and private insurance companies.
New changes to the Stark and Anti-Kickback Statutes that were long in the works took effect on January 19, 2021. The regulation updates are designed to eliminate regulatory and administrative barriers that hindered movement towards a value-based health care system. The updated rules also offer healthcare providers more flexibility to coordinate and improve patient care while maintaining safeguards against overutilization and inappropriate incentives.
The Stark Exceptions finalized three new exceptions for value-based arrangements between healthcare providers and payor systems like Medicaid and Medicare. These exemptions are solely based on the quality of delivered patient care instead of the volume of services. For example, healthcare providers face at least a 10 percent financial risk for failure to achieve value-based goals. In comparison, the Anti-Kickback Statute requires at least a 5 percent financial risk for value-based arrangements.
Physicians’ practices should express caution when offering telemedicine services to steer clear of trouble with the government. As with traditional in-person healthcare, it’s best to avoid doing business with third-party companies that give money in exchange for referrals.
Here are a few guidelines physicians should consider avoiding getting on the D.O.J.’s naughty list.
- Consult with counsel before entering into any outside business relationships.
- Establish guidelines for physical examinations and prescribing practices.
- Monitor the prescribing habits of their physicians and nurse practitioners.
- Adopt data analytic tools to identify any abnormal billing behavior.
Physicians considering telemedicine should also consider the following tips to stay compliant.
Practicing Telemedicine Across State Lines.
Usually, state governments require practicing physicians to conduct telemedicine sessions within the state they are licensed. But in some states, this stipulation is relaxed due to COVID-19 to make healthcare more accessible. But physicians must contact their state’s medical board for updated information concerning this topic.
Informed Consent.
Healthcare providers are still expected to obtain consent before providing telehealth services. Besides requesting written or verbal consent from patients, providers should make patients aware of the risks and benefits of receiving telehealth services.
Use Caution When Prescribing Medication.
Because of COVID-19, the Drug Enforcement Administration (D.E.A.) allows registered practitioners to use prescribed medication to patients via telemedcicine technology. Physicians must adhere to the following conditions:
- Prescribed medication(s) must be for a legitimate medical purpose.
- The telehealth session is conducted using a two-way, audio-visual, interactive communication system.
- The practitioners must practice healthcare within Federal and State law.
Only time will tell whether or not telemedicine will continue to grow in the upcoming months. But doctors should continue to use caution when using this technology to serve the public.
CAN MORAL REBELS ASSIST WITH ORGANIZATION COMPLIANCE?
I recently heard the term “moral rebel” while listening to an SCCE Compliance Perspectives podcast. This piqued my curiosity because I wanted to know if a moral rebel was perceived as a positive. In the podcast, Amherst College Professor Catherine Sanderson explained that a moral rebel feels comfortable standing up to a crowd and will call out bad behavior. Similarly, Scott A McGreal in Psychology Today wrote moral rebels have a strong sense of moral identity and are more likely to act morally under pressure. Politics aside, I think we could use more moral rebels right now, especially in our compliance departments. So, how can moral rebels assist our organizations with compliance? Let’s look at a hypothetical case scenario to find out…
Case Scenario – Chaperone policy
Your organization has chaperone policy which requires a chaperone to accompany the provider and patient for any sensitive examinations involving the genitalia, rectum, groin, buttocks or breasts. The policy states the chaperone may be a nurse or medical assistant.
From a compliance and risk perspective, the policy has been implemented to protect the patient, the provider and the organization from potential allegations of inappropriate touching. Education should be done with the providers to ensure the policy is followed regardless of patient and provider gender. The policy is written this way because the anatomical gender may not reflect the gender a patient ascribes to, relates to, or identifies as.
If a sensitive examination needs to be performed, a chaperone must be present during the examination and their name should be documented in the visit note. If, however, after being educated about the need for a chaperone during the sensitive examination the patient declines a chaperone, this should be witnessed by the provider and another staff member and documented in the visit note by the provider including the name of the staff member who witness chaperon declination.
Potential non-compliance with the chaperone policy
Jesse is a medical assistant who works in a pediatric and adolescent clinic. Jesse observes a provider who identifies as male take a patient who identifies as female into an examination room alone. Since Jesse prepped the patient’s chart the night before, Jesse knows the patient is here for abdominal cramps and irregular menstrual bleeding. Moreover, Jesse prepared the exam room to ensure the provider had a speculum and gel available for a vaginal exam. During the patient’s visit, Jesse is never called into the room. While accompanying another patient to the lab for a blood draw, Jesse sees the female patient checking out at the front desk. Jesse wonders who chaperoned the patient’s visit because the only other medical assistant is on lunch break.
Ability to stand up / come forward
In the case scenario above, Jesse would be deemed a moral rebel by speaking up and confirming whether the chaperone policy was followed by the provider. If uncomfortable discussing with the provider directly, Jesse may report concerns to the nurse manager for follow up. In an organization where moral rebels are valued the nurse manager would support a culture where moral rebels are not afraid to come forward if organization policies are not being followed or there was potential harm to a patient or another staff member. Moreover, the nurse manager and compliance would ensure there was no retaliation against Jesse.
PRACTICE TIP:
- Educate staff on policies, such as the chaperone policy, and then monitor compliance with that policy.
- Foster an environment for moral rebels – individuals who are driven by morals to do the right thing – to bring potential issues to the attention of leadership or compliance without fear of retaliation.
- Utilize youCompli to ensure you are up to date on laws, regulations, and reporting related to required compliance policies, such as a chaperone policy.
Denise Atwood, RN, JD, CPHRM
District Medical Group (DMG), Inc., Chief Risk Officer and owner of Denise Atwood, PLLC
Disclaimer: The opinions expressed in this article or blog are the author’s and do not represent the opinions of DMG.
Denise Atwood, RN, JD, CPHRM has over 30 years of healthcare experience in compliance, risk management, quality, and clinical areas. She is also a published author and educator on risk, compliance, medical-legal and ethics issues. She is currently the Chief Risk Officer and Associate General Counsel at a nonprofit, multispecialty provider group in Phoenix, Arizona and Vice President of the company’s self-insurance captive.
Compliance Training…On-The-Fly
Simplify Compliance Training
One of the biggest potential challenges for any organization is the pace of change within compliance.
Often, these changes create the need to quickly build and deliver regulatory training to large or small groups of staff.
That may sound easy, but it’s not.
- Creating the content takes a lot of your time
- Trying to get people together for a compliance “session” is like herding cats
- Dumping a bunch of generic content into an LMS system is usually counterproductive
- Keeping track of it all in spreadsheets and emails is challenging
A large health system in California had 10 days to create, deliver, and complete training their pharmacy techs on a new privacy waiver they had received.
They turned to youCompli’s Compliance Portal.
The portal gave them everything they needed to quickly, effectively complete the work.
We’ve attached a one-page case-study if you’re interested in learning more.