Contents

Medicare/Medicaid

Privacy

HIPAA

Collecting Accounts

Medical Records Release

What's New

Dates to Remember

Reminder: RAC Audits Begin in Oklahoma March 1, 2009

CMS increases audits in Oklahoma

The Centers for Medicare and Medicaid Services (“CMS”) plan to expand the Recovery Audit Contractor (“RAC”) program to Oklahoma on March 1, 2009. Although all RAC work is currently suspended pending the outcome of a protest over which vendors CMS will use, this dispute should resolve in early February 2009. Accordingly, health care providers should not delay their preparations.

The mission of the RAC auditors is to identify and recoup improper payments resulting from: incorrect coding, duplicate claims, insufficient documentation, and non-covered services, including services that are not reasonable and necessary. During the demonstration program in California, Florida, and New York, the RAC audits focused on hospitals, inpatient rehabilitation services, physicians, skilled nursing facilities, and durable medical equipment suppliers. In an October 2008 press release, CMS announced that it intends to expand its focus to include home health agencies, which were not part of the RAC demonstration program.

In addition to updating appropriate billing and compliance programs, providers must plan ahead to ensure timely response to requests from a RAC auditor. A provider may receive multiple record requests at once and failure to properly respond may result in automatic claim denial with very limited appeal rights. Additionally, if a provider receives a demand letter, timely response is necessary to avoid recoupment and preserve appeal rights. Although a provider has up to 120 days to appeal an initial determination in a demand letter, CMS may begin recouping alleged overpayments 40 days after issuing the demand letter. There are five levels of appeal for Medicare overpayment determinations and many overpayment determinations are overturned on appeal. As timing is essential to protecting appeal rights, health care providers should seek legal counsel immediately upon receiving any request or demand letter from a RAC auditor.

By Hilary L. Velandia, hvelandia@dsda.com

Up Next: “GINA”

New law limits use of genetic information.

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”). What is genetic information? Through DNA testing, scientists are now able to identify more and more genetic markers that indicate the potential for developing a disease (such as breast cancer) or having “good” genetic information (such as low cholesterol). Additionally, family history may indicate the potential of a genetic disorder (if many women in a family have had breast cancer, then other women in that family are more likely at risk in developing breast cancer). Any such information is genetic information. On its face, GINA seems straight forward – if you gain genetic information, you cannot discriminate because of this. However, once the person develops the disease or disorder, it is no longer genetic information and not subject to GINA (though the person may be protected under other laws).

GINA applies to health insurers, health plans and employers. For instance, if a health insurer has obtained an individual's genetic information, the insurer may not use that information in deciding whether a person may obtain insurance, nor can the insurer vary the types of benefits covered. Similarly, an employer cannot use the genetic information of an individual when making employment-related decisions such as determination of hiring, firing, job assignment, wages and so on. Several governmental agencies oversee GINA, including the Department of Labor, Health and Human Services, and the IRS, as well as a committee of members of Congress. These agencies will publish regulations and guidance on GINA that you must follow. If you do not meet the requirements of GINA, you are at risk of penalties by the government or agency or a lawsuit by the individual whose rights have been violated.

The effective date for health insurers and health plans is May 21, 2009 and for employers November 21, 2009. Because May is just a few months away, health insurers and health plans should already be taking action to insure that the requirements of GINA will be in place on time. Employers also need to begin ramping up to be ready in November. Please keep an eye on this newsletter for additional information regarding GINA.

By Anita K. Chancey, achancey@dsda.com

HIPAA

Displaying Patient Names

The HIPAA privacy rule prohibits health care providers from disclosing personal health information in any form. The rule does not prohibit “incidental disclosures” such as the release of a name alone, but where release of the name is easily associated with the reason for treatment, a HIPAA violation is likely imminent, and additional precautions should be taken.

According to the U.S. Department of Health and Human Services, “disclosure of patient names by posting on the wall is permitted by the Privacy Rule, if the use or disclosure is for treatment (for example, to ensure that patient care is provided to the correct individual).” Such incidental disclosures are permitted to the extent that the covered entity applies reasonable and appropriate safeguards.

This broad acceptance, as always, comes with a caveat: each health care provider should evaluate what measures are reasonable and appropriate and then tailor measures to their particular circumstances. Similarly, the privacy regulations allow another patient in a waiting room to see the name of the patient above her on the sign-in sheet as long as the sign-in sheet does not also include the reason for the visit.

Notably, health care providers do not need to include “incidental disclosures” in their “Accounting of Disclosures” form provided to a patient. However, caution should be exercised, and health care providers should make reasonable efforts to limit disclosure of a patient’s name to the minimum amount necessary. On hospital floors or in facilities where the reason for the visit is immediately obvious and equally calls for anonymity, it is advised that only initials are used, or some other method of identification is designed in order to comply with the minimum necessary tailored to the particular circumstances. For example, on the psychiatric wing of a hospital, it is essential to take greater precautions since the patient’s “reason for the visit” is indicated simply by the presence on a certain floor or a certain ward. Even on the general floors of a hospital, the first initial and last name of a patient could be reasonably used outside a patient’s door to facilitate treatment and visitation.

By Michon L. Hughes, mhughes@dsda.com

Red Flag Rules

Health Care Creditors must Implement Identity Theft Prevention Programs

The Federal Trade Commission has suspended enforcement of the new “Red Flag Rules” until May 1, 2009, in order to give creditors and financial institutions needed time to devise and administer written identify theft prevention programs. The original deadline was November 1, 2008, however many entities raised questions as to whether they were subject to the new rules. The extension provides these entities with additional time to prepare and implement policies in compliance with the Rules.

The Rules apply to any creditor who maintains covered accounts. Under the Rules, a creditor is defined as “any person or assignee who regularly extends, renews, or continues credit or any person who regularly arranges for the extension, renewal, or continuation of credit.” The FTC has stated that creditors in the health care field may be at risk of medical identity theft, and therefore must identify Red Flags that reflect that risk.

If you are a health care provider who allows for the extension of credit, particularly with regard to patient billing accounts or maintains patient medical records, it is likely that the Red Flag Rules apply to you. If you need to determine if you are required develop a written identify theft program or if you need assistance with the implementation of such a program, please contact your health care attorney soon.

By James R. Bullard, jbullard@dsda.com

Medical Records Release

Oklahoma adopts a uniform medical record release Form

In November of 2008, the Oklahoma State Department of Health adopted a new standard authorization to share protected health information that complies with both HIPPA and Oklahoma law. This form is typically referred to as a medical records release form. The form provides a separate section to be used by entities that treat alcohol or substance abuse patients and are subject to the federal alcohol confidentiality rules as well as HIPPA. Click here to obtain a copy of the form. Health care practices can rely on an executed form to release PHI and cannot ask a patient to execute its own form if this uniform form is presented. A subpoena, unless it is a HIPAA qualified subpoena, is not sufficient for purposes of releasing PHI.

By Elise Dunitz Brennan, ebrennan@dsda.com

What's New

ANNOUNCEMENTS

Save the Date: March 26 (Tulsa), April 2 (OKC)

The Employer's Legal Resource 2009 Workshop

New administration...

new regulations…

and a new world for employers?

Plan to spend the day with us where we will discuss the ADA Amendments Act which became effective January 1, the renewed importance of non-union employers understanding labor law with pending legislation such as the Employee’s Free Choice Act, drug and alcohol testing issues in the workplace including recent opinions which impact your policy and how you test, and the new FMLA regulations which became effective January 16. Keep watching you inbox for more information.

Jury returns verdicts for DSDA Client

On January 20, 2009, an Oklahoma County jury returned separate verdicts in favor of DSDA client KWTV and another Oklahoma City television station denying the plaintiff’s claims for defamation and false light invasion of privacy. The case involved on-air reporting about a theft. The police released, and the television stations showed, a surveillance video of the suspect to get the public to assist in identifying and locating the suspect. One of the suspects identified was Linda Stewart who sued alleging that the news reports were defamatory. At trial, the judge instructed the jury that Ms. Stewart had not committed any criminal act.

While the plaintiff elicited some sympathy because of her having been sought by police through the media for crimes the judge instructed the jury that she did not commit, the nine-woman, three-man jury deliberated only two hours before returning verdicts against the plaintiff and in favor of KFOR and KWTV on both the defamation and false light claims.

Congratulations Doug Dodd and Mike Minnis! Job well done.

FEDERAL GOVERNMENT POSTPONES E-VERIFY FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS

On January 9, 2009, the federal government postponed the January 15, 2009, deadline by which federal contractors and subcontractors were required to use E-Verify. Under the law, federal contractors and subcontractors were to verify the work authorization of all new hires and existing personnel assigned to perform work on future federal contracts. Because of a pending lawsuit challenging E-Verify, the deadline has been postponed until February 20, 2009. For more information, contact Michael C. Redman, mredman@dsda.com, or Hilary L. Velandia, hvelandia@dsda.com.

USCIS Implementation of New I-9 Form postponed until April 3, 2009

On January 30, 2009, USCIS announced it will be delaying implementation of the new I-9 rules and the new form until April 3, 2009. USCIS had scheduled the new rule to apply on February 2, 2009. USCIS also extended the deadline to submit public comments on the new rule until March 4, 2009. Accordingly, it is possible that the terms of the new rule may change before the new effective date.

Under the current version of the new rule, employers would no longer be able to accept any expired documents as part of the verification process. Under the current rule, documents establishing identity only, also known as “List B Documents,” are acceptable to prove identity, even if expired. Documents on this list include, for example, driver’s licenses, state ID cards with photographs, and school ID cards with photographs. Additionally, the new rule would add additional documents that employees may present to demonstrate both identity and employment authorization, also known as “List A Documents.” These new acceptable documents would include certain I-551s that appear on foreign passports and certain admission documents for persons holding passports from Micronesia or the Marshall Islands. The new rule would not require employers to complete a new I-9 form for existing employees. Employers should use the new form only for employees hired on or after April 3, 2009, and for re-verifications performed thereafter.

For more information, click here or contact DSDA attorney Hilary L. Velandia at hvelandia@dsda.com.

Dates to Remember

CALENDAR OF NOTABLE EVENTS

February 19, 2009

The Tulsa County Bar Association Employment Law Section is kicking off 2009 with its first meeting. Kristen L. Brightmire will be speaking on the new FMLA Regulations. For more information, click here or contact Kristen L. Brightmire at kbrightmire@dsda.com.

March 10, 2009

Elise Dunitz Brennan will be presenting at The Oklahoma Association of Homes and Services for the Aging (OKAHSA) at its Long Term Care Administration Seminar in Midwest City. She will discuss new rules applicable to assisted living centers. For more information, contact OKAHSA at (405) 640-8040 or Elise Dunitz Brennan at ebrennan@dsda.com.

March 11, 2009

Kristen L. Brightmire will be presenting at The Oklahoma Association of Homes and Services for the Aging (OKAHSA) at its Long Term Care Administration Seminar in Midwest City. She will focus on Best Practices for Hiring and Firing in Today’s Complicated Legal Environment. For more information, contact OKAHSA at (405) 640-8040 or Kristen Brightmire at kbrightmire@dsda.com.

March 24, 2009

Elise Dunitz Brennan will speak on the Fundamentals of Healthcare Arbitration at a nationally broadcasted telephone conference sponsored by the American Health Lawyers Association. For further information, click here.