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Electronic Medical Records and the New HIPAA: The Good (Incentives), The Bad (Penalties), and the Ugly (More Regulations)

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Electronic Medical Records and the New HIPAA: The Good (Incentives), The Bad (Penalties), and the Ugly (More Regulations) Jackie M. Crain, Esq. – PowerPoint PPT presentation

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Title: Electronic Medical Records and the New HIPAA: The Good (Incentives), The Bad (Penalties), and the Ugly (More Regulations)


1
Electronic Medical Records and the New HIPAA The
Good (Incentives), The Bad (Penalties), and the
Ugly (More Regulations)
  • Jackie M. Crain, Esq.
  • Michael A. Igel, Esq.
  • Trenam, Kemker, Scharf, Barkin, Frye, ONeill
    Mullis, P.A.
  • 200 Central Avenue
  • St. Petersburg, Florida 33701

2
Stimulus Bill Incentives Electronic Health
Records
  • The Carrot How much will physicians be paid?
  • As much as 18,000 for the first year
  • As much as 42,000 over the first four years
  • The Stick How much will Medicare reimbursement
    be reduced if a system is not implemented?
  • 2015 Payment at 99 of Fee Schedule for all
    covered services
  • 2016 Payment at 98 of Fee Schedule for all
    covered services
  • Cuts continue on an annual basis
  • Government has power to increase speed of
    reimbursement cuts

3
Stimulus Bill Incentives (cont.)
  • Must be a meaningful EHR user
  • Must use certified EHR technology
  • Must demonstrate status as meaningful EHR user
    by reporting to Federal Government

4
E-prescribing
  • Electronically transmitting prescriptions from
    doctors to pharmacists
  • Increases convenience and efficiency while
    reducing transcription errors
  • Software detects potential drug interactions and
    allergic reactions, and steers prescriptions
    toward lower-cost drugs
  • Roughly two million adverse drug interactions and
    3.5 billion in costs might be avoided annually
    by using electronic rather than paper
    prescriptions

5
Why Should I E-prescribe?
  • A successful electronic prescriber is eligible
    to receive an incentive payment equal to 2 of
    the total estimated allowed charges for all
    covered professional services furnished during
    the 2009 reporting period (which begins January
    1, 2009).

6
How to Earn the E-prescribing Incentive
  • A physician must report one of three special
    e-prescribing CPT Codes in at least half of
    eligible Medicare patient visits
  • Claims containing the codes must represent at
    least 10 of all the services for which the
    physician bills Medicare for the year
  • The physician must use a qualified e-prescribing
    system

7
E-prescribing requirements
  • Must be a successful electronic prescriber
  • Must use a qualified system
  • Applies only to eligible CPT Codes
  • Software is free

8
E-prescribing Incentive Payments
  • The carrot How much will physicians be paid for
    implementing e-prescribing?
  • 2 for 2009 and 2010
  • 1 for reporting years 2011 and 2012 and
  • .5 for 2013
  • The stick How much will reimbursement decrease
    if physician does not e-prescribe?
  • 1 in 2012
  • 1.5 for 2013 and
  • 2 for 2014 and each subsequent year

9
Physician Quality Reporting Initiative (PQRI)
  • Pay-for-reporting initiative established by CMS
  • Provides incentives to encourage reporting of
    quality data by physicians
  • Physicians who satisfactorily report under the
    PQRI are eligible to receive an additional 1.5
    of estimated allowed charges for all covered
    professional services furnished during the 2009
    reporting period

10
PQRI How to Qualify for Payment
  • An eligible provider must satisfactorily
    report established PQRI measures to CMS
  • Reporting is done through CPT II coding that is
    applicable to each reportable measure
  • Must report at least 3 measures in at least 80
    of applicable cases
  • See www.cms.hhs.gov/pqri for list of reportable
    measures

11
Hospital Subsidy of Electronic Medical Records
  • Hospitals can subsidize as much as 85 of cost
  • No cap on amount that can be donated
  • Agreements must comply with fraud and abuse laws
  • Stark
  • Anti-Kickback Statute

12
Bottom line
  • Get on the bus while the government is still your
    friend!

13
What to Consider to Make Implementation Successful
  • Consider
  • Strength of company
  • What purpose does the product serve?

14
Privacy Issues
  • HIPAA
  • Consent required for disclosure
  • Stimulus Bill contains new requirements
  • Red Flag Rules
  • Does your practice have a compliant procedure in
    place?
  • Security breach notification laws
  • Familiarity with requirements is essential

15
Vendor Contract Negotiation
  • Consult with your practices IT expert
  • Each vendors contract will offer different terms
  • Issues to consider
  • Upgrades, new releases, customizations. etc.
  • Updates and patches
  • Responsibility for false claims
  • Hidden costs
  • Compliance with law
  • Response time
  • Product acceptance period
  • Product license issues
  • Technical support
  • Warranties and Limitations on Liability
  • Termination rights

16
Negotiating with the Hospital
  • Knowing what you can and cant do is essential
  • Cost of system?
  • Payment schedule?
  • Termination right?
  • Compatibility with other facilities?
  • Transferability of the system if you sell your
    practice?

17
Employment Contracts
  • Responsibility for false claims
  • How will termination affect cost of the EMR?
  • Non-competition and non-solicitation
  • Will they still be enforceable?
  • Who owns the medical record?
  • Fl. Stat 456.057

18
Additional Legal Issues
  • Lawsuits
  • What will be the new standard of care?
  • Patients should be required to sign a consent
    form
  • Anti-trust?
  • Risk of price fixing?
  • Malpractice insurance
  • Licensure
  • Telemedicine?

19
HIPAA
  • Health
  • Insurance
  • Portability and
  • Accountability
  • Act of
  • 1996

20
(No Transcript)
21
HIPAA Two Parts
  • Insurance Reform
  • Group health plans may not deny eligibility or
    charge a higher premium based on health
    status-related factors
  • Administrative Simplification
  • National standards for electronic health care
    transactions
  • Security
  • Privacy

22
Privacy
  • What do the rules do?
  • Protected Health Information (PHI)
    Individually identifiable health information
    transmitted in any form or medium
  • Limit sharing of PHI without patient
    authorization
  • PHI may be shared without authorization if for
    purposes of treatment, payment or health care
    operations

23
Individuals
Treatment Payment Health Care Operations
Authorization
Agreement
Law
24
Privacy (continued)
  • Who do the rules apply to?
  • Covered Entities
  • Most health care providers
  • Health care clearinghouses
  • Most health plans
  • Business Associates
  • Person or organization to whom a covered entity
    discloses PHI so that the person or organization
    can carry out, assist with the performance of, or
    perform a function or activity for or on behalf
    of the covered entity

25
Business Associates
  • Examples include lawyers, accountants, billing
    companies, consultants
  • Covered entity may disclose PHI to business
    associate only after satisfactory assurance
    that business associate will safeguard PHI
  • Written contract between Covered Entity and
    Business Associate

26
Existing Penalties
  • Civil Monetary Penalties
  • Unintentional violations
  • 100 per violation not to exceed 25,000 each
    year for each provision
  • Intentional violations
  • Up to 100,000 per violation and/or imprisonment
    up to five years if offense under false pretenses
  • Up to 50,000 and/or up to one year imprisonment
    for knowing misuse
  • Fine of not more than 250,000 and/or
    imprisonment for ten years if offense includes
    intent
  • Dramatic increases contained in Stimulus Bill!!

27
Changes to HIPAA Under the Stimulus Bill
  • Enforcement and Penalties
  • New Business Associate Requirements
  • Breach Notifications
  • Access to Certain Information
  • Accounting of Certain PHI Disclosures

28
THE FIVE STAGES OF GRIVEING OVER HIPAA
DENIAL This summary cant be right! ANGER Why
are they picking on me? Dont I have enough
to do already? BARGAINING My clients are more
compliant than everyone elses, my work is
different, I dont agree with those definitions,
etc. DEPRESSION I cant do anything about it
anyway ACCEPTANCE OKwhat can I do to comply
with the new regulations?
29
Changes to HIPAA Under the Stimulus Bill (cont.)
  • Enforcement and Penalties
  • Authority granted to state attorneys general to
    bring suit in federal court
  • Damages can now be sought!!
  • Individual employees subject to criminal
    penalties
  • Civil monetary penalties for a breach can be
    distributed to individuals harmed by a breach
  • This will promote whistleblower cases!!

30
Changes to HIPAA Under the Stimulus Bill (cont.)
  • New Business Associate Requirements
  • Must comply with the standards and implementation
    requirements related to administrative, physical
    and technical safeguards for electronic PHI
  • Now subject to same obligations as covered
    entities
  • HIPAA violations no longer simply a breach of
    contract issue
  • Most business associate agreements will need to
    be revised to reflect these changes!!!

31
Changes to HIPAA Under the Stimulus Bill (cont.)
  • Breach Notifications
  • Covered Entities and Business Associates required
    to notify consumers of breaches of unsecured
    PHI
  • Unauthorized acquisition, access, use or
    disclosure of PHI which compromises security,
    privacy or integrity of PHI
  • Several forms of disclosure are permissible
  • Must be sent no later than 60 days after the
    breach is discovered or should have been
    discovered
  • Notification must contain specific information
  • Be mindful of state security breach notification
    laws

32
Changes to HIPAA Under the Stimulus Bill (cont.)
  • Access to Certain Information
  • Individuals have a right to inspect and copy PHI
  • Accounting of Certain PHI Disclosures
  • Individuals have the right to obtain information
    in electronic form if the covered entity uses or
    maintains EHRs
  • Individuals have a right to obtain an accounting
    of any disclosure related to the EHR during the
    three years prior to the date of request!!

33
New Definitions On the Horizon
  • Minimum amount necessary
  • Healthcare operations
  • Eliminate any activity that can be reasonably
    performed by using de-identified information

34
Other Changes or Requirements
  • Additional guidance will now be issued annually
  • Certain restrictions on PHI disclosure
  • Sale of PHI from EHRs prohibited
  • Intensified marketing rules
  • Coverage for personal health records vendors

35
What Do I Need to Do?
  • Revisions to business associate agreements
  • Training for applicable employees
  • Update policies and procedures
  • Watch for guidance and materials from advisory
    committees

36
Questions?
  • Jackie M. Crain, Esq.
  • (727) 824-6179
  • E-mail jmcrain_at_trenam.com
  • Michael A. Igel, Esq.
  • (727) 820-3963
  • E-mail migel_at_trenam.com
  • Trenam Kemker, Scharf, Barkin,
  • Frye, ONeill Mullis, P.A.
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