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What if No One was On Call?

What if No One was On Call?

2020 Legislative Recap

Over the past few months, “unprecedented” has become an oft-used term. Though the outbreak of infectious disease has been seen throughout history, the COVID-19 pandemic halted nearly all aspects of normal life, sparing not even the 2020 Regular Session of the Alabama Legislature.

When it was all said and done, only a handful of bills were passed by each Chamber, with most left hanging in the balance. However, that’s not to say the 2020 Session was without action on important health-related items; in fact; negotiations persisted well through the shutdown.

Had the Medical Association not been “on call” during these times, the health and welfare of physicians, patients and practices could have been in jeopardy. 

*Click the button below to download a pdf version*

COVID-19 Related Items

If no one was on call . . . physicians, their staff, and their practices could have no protection from COVID-19 frivolous lawsuits. The Association worked with both Sen. Arthur Orr (R-Decatur) on legislation (SB330) as well as the Ivey Administration on an executive order along with other health and business organizations. While time ran out on the legislation during the 2020 Session, the efforts with the Governor’s office were successful and on May 8, Gov. Ivey issued an executive order providing liability protection to physicians for care whose provision to patients was negatively affected or impacted by COVID-19 and/or the state’s response to the pandemic.  A summary of the executive order is available here.  Despite the issuance of this order, however, the Association will continue advocating for passage of Sen. Orr’s legislation, whether in a subsequent special session in 2020 or later.

If no one was on call . . . executive orders could have been issued giving out-of-state telehealth corporations unfair business advantages over Alabama medical practices.  Instead, out-of-state physicians providing telehealth to Alabama patients didn’t get special treatment and had to follow the same rules as physicians living, working, and paying taxes in Alabama.

If no one was on call . . . executive orders could have been issued allowing the far-reaching, unnecessary, and dangerous scope of practice expansions.  When the pandemic hit, a countrywide effort ensued from national non-physician associations seeking to advance their own specific scope-expansion agendas.  These groups urged their state-level counterpart organizations to push governors to broadly expand scopes of practice in response to COVID-19, but despite this, the Ivey Administration wisely maintained physician-led, team-based care as the standard for Alabama.

If no one was on call . . . parity in payments for telehealth services may not have occurred.  Parity in reimbursements for the same care provided in-person and via telehealth (especially telephonically) has long been an advocacy priority for the Association.  The Association applauded the Blue Cross Blue Shield of Alabama decision to temporarily cover telephonic services by physicians beginning mid-March.  Alabama Medicaid followed suit, and finally, after weeks of the Association and other allied groups petitioning Congress and Medicare regarding coverage for telephonic-only visits for seniors, CMS also agreed to cover telephonic-only telehealth. Moving forward, the Association supports making permanent these improvements in coverage of telehealth services  If insurers do so voluntarily, legislation may not be ultimately necessary.

Moving Medicine Forward in 2020

For many organizations, major policy proposals and legislative initiatives fell by the wayside during the 2020 Session. However, the Medical Association saw the achievement of two top-priority funding requests (MMRC and BMSA) that were put into place in this session.

If no one was on call . . . the Maternal Mortality Review Committee (MMRC) could not have received vital funding. The Association spearheaded a coalition of stakeholders – which included March of Dimes, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and Johnson & Johnson – to bring awareness to the issue of increasing maternal mortality rates in Alabama and spotlight the impact this committee could have to reverse that trend if properly staffed and resourced. Gov. Ivey included funding for the MMRC in her initial budget request, and legislators maintained the funding in the final budget.

If no one was on call . . . the Board of Medical Scholarship Awards could not have received a significant funding increase. The Association worked with BMSA and the Alabama Academy of Family Physicians (AAFP) to explain how additional funding would expand the impact of this already highly successful program which awards scholarships to physicians and in turn they agree to practice in an underserved area. Gov. Ivey agreed, and the final budget included a $500,000 increase for the BMSA.

If no one was on call . . .  support could not have grown for improving the existing rural physician tax credit. SB195, supported by the Association, would have amended the out-of-date definition of “rural” and strengthened the current residency requirement. The bill was passed by the Senate Committee, but died as a result of the session being cut short. This tax credit is a significant tool for attracting and retaining physicians for rural Alabama communities.

If no one was on call . . .  support for strengthening Alabama’s athletic trainer statute as it relates to physician supervision and care continuity could not have grown. Prior to the session, the Association worked closely with the Athletic Trainers Association in drafting SB93 to better define the practice of athletic training, ensure appropriate physician supervision and allow joint-promulgation of athletic trainer rules. The bill passed the Senate but stalled in the House due to the shortened session.

Scope Creep – Replacing Education with Legislation

Many people would like to be a physician, but few are willing to endure medical school, residency, and all the other various education and training requirements to become an M.D. or D.O. Instead of pursuing higher education, non-physicians are pursuing legislative changes as an end-around-means to practice medicine. The Association opposes any scope of practice expansions that could endanger quality care for patients.

If no one was on call . . . the physician referral requirement for physical therapy could have been abolished. As introduced, SB104 & HB145 would have abolished the need for a medical diagnosis before a physical therapist could begin providing therapy to a patient.  After consultation with many of our specialties most-involved with issuing PT referrals, the Association led negotiations to firmly maintain the importance of medical diagnosis but to also: (1) extend the current timeframe for which a referral is good from 90 to 120 days; (2) allow therapy without a referral for patients with a diagnosed chronic condition for which therapy is appropriate and who is under physician management for the condition; and, (3) allow therapy for without referral for restorative exercises so long as the patient does not initially present with new on-set pain, illness, or injury.  The bill did not pass but will return.

If no one was on call . . . standards for true collaboration within practice agreements could have been abolished. While SB114 originally would have allowed an “unlimited” number of nurse practitioners a physician could supervise, the Association, understanding that one-size-doesn’t fit all when it comes to practicing medicine,  negotiated a more prudent ratio of 9-to-1 of nurse practitioners. physician assistants or nurse-midwives for each collaborating or supervising physician while also preserving that physician’s autonomy and authority regarding patient care decisions within each collaborative or supervisory arrangement.  The bill did not pass, but will return.

If no one was on call . . . optometrists could have begun performing eye surgeries using scalpels and lasers as well as eye injections.  SB66 would have allowed optometrists, who do not undergo any surgical residencies anywhere in the U.S., to perform surgeries and injections on the eye and would also have given the Alabama Board of Optometry the sole power to define and regulate what is considered to be the practice of optometry, taking all authority away from the Legislature to define it. The bill was unfortunately rammed through the Senate Health Committee by its chairman, Jim McClendon, an optometrist himself (watch this video). The bill did not pass, but will return.

If no one was on call . . . a newly-created state board could have unilaterally set the scope of practice for imaging technologists and potentially increased costs to medical practices utilizing medical imaging.  Among other things, SB171 provided for the licensing and regulation y of health care personnel performing radiologic imaging or radiation therapy for diagnostic or therapeutic purposes. While this is not problematic on its face, the bill could have increased costs for medical practices and dangerously expanded the scope of practice for non-physicians. While the bill did not receive a vote in committee, it is expected to return.

If no one was on call . . . podiatrists could have been granted the ability to perform surgery on the ankle and lower leg. HB198 would have allowed podiatrists who have completed as few as 2-years of podiatry residency (significantly less than either a general orthopaedist or an orthopaedic surgeon specializing in the ankle) to perform ankle surgery. The legislation failed to receive a vote in committee but will return.

Beating Back the Lawsuit Industry

Plaintiff trial lawyers are constantly seeking new opportunities to sue doctors. Alabama’s medical liability laws have long been recognized for ensuring a stable legal climate and fostering fairness in the courtroom. Yet, year after year, personal injury lawyers seek to undo those laws and allow more frivolous lawsuits to be filed against physicians.

If no one was on call . . . physicians could have been held liable for emergency medical treatment decisions of individuals believed to be a threat to themselves or others.  Instead, physicians were protected in a revised version of the legislation, which aimed to create a process for immediate treatment of individuals believed to need mental health care.  The bill did not pass but will return.

If no one was on call . . . physicians participating in a pilot project “needle exchange” program could have been held liable for helping program enrollees.  Instead, revisions allowed physicians referring patients to the program and being referred patients from the program to be protected if following certain rules.

If no one was on call . . . athletic trainers and possibly other health professionals could have lost existing legal protections they currently enjoy under one proposed change to the athletic training legislation.  Instead, an amendment to the legislation allows athletic trainers and other health professionals to maintain the same level of liability protection they have at present. 

If no one was on call . . . physicians could have been held liable for the health of patients under their care who chose to use cannabis for medicinal use in the proposed medical cannabis bill.  Instead, an amendment was adopted removing this language. The bill did not pass but will return.

If no one was on call . . . physicians could have been held liable for school system employees’ decisions regarding following portable DNR orders for minor students.  Instead, an agreement was reached to ensure physicians cannot be held liable for the actions of those not under their supervision or authority in carrying out DNR orders.  The bill did not pass but will return.

If no one was on call . . . physicians could have been held liable for the actions of school system employees if the physician helped create a “seizure action plan” for a minor child with a seizure disorder.  Instead, physicians were protected for helping create such plans of action for school employees to follow for children with seizure disorders.  The bill did not pass but will return.

Other Legislation of Interest

Medical Cannabis. . . This much-discussed legislation, (SB165) sponsored by Sen. Tim Melson (R-Florence), an anesthesiologist, would provide for the regulation by the state, from “seed to sale”, of cannabis for medicinal use. After surveying its members, the Association found Alabama physicians believe if cannabis for medicinal use is legalized, then the growth, cultivation and sale of cannabis should be highly regulated by the state, and any physician involvement should be regulated not by some new state agency, but by the Board of Medical Examiners. As a direct result of Alabama physicians’ survey responses, the Association worked to bring the legislation in line with the areas of broad medical agreement on the topic. The bill passed the Senate but stalled when it reached the House.  It will return.

If no one was on call . . . various bills establishing standards of care in the law for physicians to follow or be penalized could have become law.  Instead, no such legislation passed, but the Association works on bills of this type every time the legislature comes into session.

If no one was on call . . . physicians could have been charged with manslaughter or murder if a patient experiences a deadly overdose that involved a drug the physician prescribed.  The legislation, intended to target drug dealers, was revised to protect physicians.

Posted in: Advocacy, Legal Watch

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Lights, Camera, Action…No!

Lights, Camera, Action…No!

By: Kelli Carpenter Fleming, Esq.

The Office for Civil Rights (“OCR”), the entity responsible for HIPAA compliance and enforcement, has issued a series of guidance documents regarding the interplay of HIPAA and the COVID-19 pandemic. The most recent guidance serves as a reminder to health care providers to follow the requirements of HIPAA when speaking with the media or allowing filming within the office or facility. This has even greater importance due to the increased amount of media attention on healthcare providers and the facilities treating COVID-19 patients. 

The recent guidance reminds health care providers that the HIPAA Privacy Rule is not altered during the COVID-19 public health emergency. HIPAA does not permit a health care provider to give media and film crews access to facilities where patients’ protected health information (“PHI”) will be accessible without the patients’ prior authorization. Even during the current COVID-19 public health emergency, health care providers are still required to obtain a valid HIPAA authorization from each patient whose PHI will be accessible to the media. Consistent with past guidance, OCR reminds providers that masking or obscuring patients’ faces or identifying information before broadcasting a recording of a patient is not sufficient. According to the guidance, by way of an example, “a covered hospital may not allow media personnel access to the emergency department where patients are receiving treatment for COVID-19, without first obtaining each patient’s authorization for such filming.”

We have seen at least two (2) previous OCR investigations regarding inappropriate disclosure of PHI to film crews (in 2016 and 2018), both of which were resolved with corrective action plans and monetary settlements. I would not be surprised if we see additional future OCR enforcement actions in this regard in light of the increased media coverage surrounding COVID-19. 

The recent guidance may be found here.

Kelli Fleming is a partner at Burr & Forman, LLP practicing exclusively in the firm’s Health Care Industry Group.

Posted in: Coronavirus, Legal Watch, MVP

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Gov. Ivey Provides Physicians Liability Protections from COVID-19

Gov. Ivey Provides Physicians Liability Protections from COVID-19

Today, Gov. Ivey issued an executive order protecting physicians, their staff, and their practices from lawsuits related to COVID-19. The governor’s order, the eighth such supplemental emergency order issued by her administration since the pandemic began, provides a “safe harbor” for services affected by COVID-19 or Alabama’s response to the pandemic and from other COVID-19 related claims.

“As one of many Alabamians on the front lines of this pandemic, I thank Gov. Ivey for working with the Medical Association to provide this much-needed liability protection for these unprecedented circumstances affecting care provisions that are far beyond any of our control,” Medical Association President John Meigs, Jr., M.D., said.

The order provides immunity for treatment that resulted from, was negatively affected by or was done in response to the COVID-19 pandemic or the State’s response to the pandemic unless proven by clear and convincing evidence that a health professional acted with wanton, reckless, willful, or intentional misconduct – a standard significantly higher than simple negligence. Importantly, the liability protections in today’s order apply retroactively to March 13, 2020, and will remain in place until the COVID-19 public health emergency is terminated.

Protecting physicians, their staff, and medical practices from COVID-19 lawsuits has been a priority of the Medical Association since Alabama entered a state of emergency in mid-March. In addition to the governor’s office, the Association has worked with multiple other organizations on today’s order and appreciates the expertise of the Birmingham law firm of Starnes, Davis and Florie during those negotiations. Click the button below to view a summary of the proclamation.

Posted in: Advocacy, Coronavirus, Legal Watch

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COVID-19 State Liability Protection Bill to Be Filed

COVID-19 State Liability Protection Bill to Be Filed

Alabama State Senator Arthur Orr (R-Decatur) is preparing to file a bill today to provide liability protection to physicians, health facilities and businesses from claims arising from COVID-19 and the state’s response to the pandemic. 

“These are unprecedented times and the Legislature must take swift action to protect physicians and businesses from COVID-19 frivolous lawsuits,” Sen. Orr said.  “We cannot wait to pass this legislation, as every day that goes by without these protections in place could mean these entities have unknown liability exposure for situations and dynamics far beyond their control.”

Medical Association President John Meigs, M.D., thanked Sen. Orr for his willingness to bring forward the legislation. 

“Practices of every specialty of medicine have been affected by this pandemic, from both the care-provision aspects but also the economic and business side.  The association appreciates Senator Orr’s leadership and willingness to bring this critical legislation forward,” Dr. Meigs said. 

The bill has widespread support among the health care and business communities.  The Legislature may meet as few as five legislative days this week but has as many as 14 at its disposal.  Most of the focus this week will be on local bills and the two state budgets, but the Medical Association is also encouraging legislators to take up Sen. Orr’s bill as a top priority.  

Posted in: Advocacy, Legal Watch, Liability

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Summary of Liability Protection from Starnes, Davis Florie, LLP

Summary of Liability Protection from Starnes, Davis Florie, LLP

Starnes, Davis, Florie, LLP has drafted a summary with some guidance on documentation for physicians concerning some protection in response to potential liability issues facing physicians during the COVID-19 declared emergency.  Governor Ivey’s March 13, 2020 Proclamation declared a state public health emergency.  The Proclamation grants certain immunity from lawsuits if a provider in a covered “health care facility” is practicing pursuant to an “alternative standard of care” plan.  The “alternative standard of care” must be set forth in the “health care facility’s” emergency operation plan, and the specific language or “standards of care” may differ from facility to facility.  Starnes suggests documenting the circumstances surrounding each patient and the reasons for clinical decisions.  [LINK to previous article].  Personnel and a facility are entitled to limited immunity when practicing consistent with those methods outlined in the alternative standard of care.  Physicians should look to the hospital for the specific protective language.

The PREP Act provides limited immunity for the administration or use of covered countermeasures to treat, diagnose, cure, prevent, or mitigate COVID-19.  The PREP Act covers providers for the administration or use of any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine used in the treatment of a COVID-19 patient.  

See Summary Here.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.

Posted in: Legal Watch, Uncategorized

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Summary of Telehealth Waivers as of April 1, 2020

Summary of Telehealth Waivers as of April 1, 2020

By: Jim Hoover, Burr & Forman, LLP

The changes made to the requirements for telehealth services since the start of the COVID-19 pandemic have been swift and substantial. For the first several weeks, it seems changes were made almost daily.  As time has passed, the changes to telehealth have stabilized enough that a summary of the current telehealth issues is possible. However, changes may still be forthcoming so the following is a summary of the significant topics related to providing telehealth services as of the date of this article. Physicians should continue to monitor announcements related to telehealth requirements as changes will surely continue to evolve. 

Medicare – On March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) announced additional temporary expansion of telehealth services to Medicare beneficiaries. CMS’s announcement of this new reimbursement flexibility builds on its prior expansion of telehealth services to address the COVID-19 pandemic. Prior to the March 30, 2020 announcement, CMS announced the following: (1) the patient location requirement was being waived to allow the patient to be in their home or other location; (2) the audio-video link can be something as simple as Skype, FaceTime or Facebook Messenger video calls. However, the audio-video link has to be a real-time audio and a one-to-one video connection, and cannot be public-facing; (3) the patient cost share can be waived at the providers’ discretion; and (4) CMS stated it will not audit to verify that there is an established patient relationship.

CMS announced in its March 30, 2020 announcement that it is now also allowing Medicare beneficiaries to receive care via telehealth by: (1) adding more than 80 services to the list of services payable under the Medicare Physician Fee Schedule when furnished via telehealth, including emergency department visits, initial nursing facility and discharge visits, critical care services, home visits for new and established patients, and physical and operational therapy services; (2) allowing clinicians to provide Virtual Check-In services to new patients in the same manner as they previously could provide only to established patients; (3) allowing licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech language pathologists to provide e-visits; (4) allowing clinicians to provide certain services by audio phone only to their patients; (5) allowing clinicians to provide Remote Patient Monitoring, for acute or chronic conditions, to both new and established patients; (6) removing certain frequency limitations on Medicare telehealth; (7) expanding the use of telehealth to certain home health and hospice services; and (8) expanding the definition of “homebound” so that when a physician determines that a Medicare beneficiary should not leave the home due to suspected or confirmed COVID-19, the patient can qualify for the Medicare Home Health benefit.

Medicare Miscellaneous Issues – Patient consent may be obtained annually and obtained by ancillary staff.  Direct Supervision of services, such as incident-to services, normally require that the supervising/billing physician be in the office suite and immediately available. However, for the duration of the PHE, direct supervision can be provided by real-time interactive audiovisual technology.

Billing

Medicare – As an initial matter, telephone calls are still not the same as telehealth for Medicare purposes. A full list of the Compliant List of Medicare Telehealth and the Medicare Telehealth Code List for 2019-2020 is located on CMS’ website at the following address https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.

CMS is allowing payment for certain codes related to telehealth services because as an example, CMS recognizes that some problems can be handled over the phone without a face-to-face, but may require more than the 5-10 minutes. The codes for established patients for physician or other qualified professionals (nurse practitioners or physician assistants) include 99441 (requires 5-10 minutes of medical discussion), 99442 requires 11-20 minutes of medical discussion), 99443 (requires 21-30 minutes of medical discussion). Practitioners should report the E/M code that best describes the nature of the care they are providing. Previous guidance was to use POS 02 that will cause payment to be made at the lower facility rate. Alternatively, providers can choose to use the POS code that most accurately reflects where the service is performed and append modifier 95. This will cause payment to be made at the higher non-facility rate.

Alabama Medicaid – Medicaid normally requires separate credentialing for providers performing telehealth; however, that restriction has been waived for the time period for dates of service from 3/16/2020 – 4/16/2020. Medical providers may bill established patient evaluation and management codes 99211, 99212 and 99213 for telephone consultations. Psychologists and behavioral health professionals should bill 90832, 90834, 90837, 90846, 90847 and H2011. Verbal consent must be obtained and documented in the medical record. These visits will count against the patient’s office visit limit of 14 visits per year.

Blue Cross and Blue Shield of Alabama – is allowing providers to bill for telephone call treatment of existing patients under the established patient office visit codes for dates of service from 3/16/2020 – 4/16/2020. They are allowing codes up to 99213 with place of service code 02 for telehealth. No modifier is required. The physician should be the one speaking with the patient — not the office staff.

HIPAA – Over the past several weeks, the Office for Civil Rights (“OCR”) has issued several notices regarding HIPAA in light of the current COVID-19 pandemic. The OCR issued a Notification of Enforcement Discretion for Telehealth Remote Communications during the COVID-19 Nationwide Public Health Emergency. OCR stated that it would relax its enforcement actions with regard to compliance with certain aspects of HIPAA (and not enforce penalties) in order to allow providers to better treat their patients via telehealth. A health care provider that wants to use audio or video communication technology to provide telehealth to patients during the public health emergency can use any non-public facing remote audio or video communication product that is available to communicate with patients. Health care providers may use applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules. However, communication applications that are public facing should not be used. OCR further stated that it would not impose penalties against health care providers for the lack of a Business Associate Agreement with video communication vendors. The above applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19. The OCR also issued additional guidance in the form of frequently asked questions (FAQs) which are available at https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf.  

State Licensure – Most states have greatly relaxed or streamlined their licensing requirements and application process to make it easier for physicians to provide telehealth services across state lines. However, the application process and requirements for each state differ so it is extremely important for physicians to check with each state. For example, the state of Tennessee requires the practitioner to complete and submit an application, which can be found at: https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-coronavirus/Boards-Executive-Order-Form.pdf. The determination is made on a case by case basis. It appears most applications are being approved by the Tennessee Department of Health because as of the end of March 2020 the Department had received 61 applications and approved 59 applications, denied one, and one was under review. The State of Florida, for purposes of preparing for, responding to, and mitigating any effect of COVID-19, permits health care professionals not licensed in Florida to provide health care services to a patient located in Florida using telehealth, for a period not to exceed 30 days unless extended by order of the State Surgeon General. The exemption applies only to out of state health care professionals holding a valid, clear, and unrestricted license in another state or territory in the United States who are not currently under investigation or prosecution in any disciplinary proceeding in any of the states in which they hold a license.

While the telehealth waivers and notifications have slowed down in recent days, it is still very important for physicians to keep updated on the various requirements from state licensing authorities and payors.

Jim Hoover practices with Burr & Forman LLP and works exclusively within the firms Health Care Industry Group and primarily handles healthcare litigation and compliance matters.

Posted in: Legal Watch, Medicaid, Medicare, Technology

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The Privacy Vulnerabilities of Zoom Software and Potential Alternatives

The Privacy Vulnerabilities of Zoom Software and Potential Alternatives

Over the past month, as more nationwide “Shelter at Home” orders have been issued and more companies have transitioned to telework, the need for online meetings and webinars has skyrocketed. To accommodate this new way of doing business, many have turned to a platform called Zoom. The problem? No one bothered to read the fine print.

For those in the healthcare field, privacy is paramount. Yet, by using Zoom, users are seceding any and all content displayed or vocalized to the company. In Zoom’s own privacy statement, some of the “Customer Content” it collects includes “information you or others upload, provide, or create while using Zoom.”[i]  Additionally, Zoom also collects personal information like your name, physical address, email address, phone number, job title, employer.[ii]  And, even if you don’t make an account with Zoom, it will collect and keep data on what type of device you are using, and your IP address.[iii]

Now, while Zoom has recently updated its privacy policy and is taking steps to make the platform more secure, there are issues beyond the data mining mentioned above. On Monday, for instance, the Boston office of the Federal Bureau of Investigation issued a warning[iv]  saying that it had received multiple reports from Massachusetts schools about trolls hijacking Zoom meetings with displays of pornography, white supremacist imagery and threatening language — malicious attacks known as “zoombombing.”[v]

So, what’s the solution? Below are a few good alternative platforms to use instead Zoom:

  • Apple FaceTime (only available on iPhone and Macs)
  • Skype (available on all devices) (recommended)
  • Google Hangouts (available on all devices)
  • GoToMeeting (available on all devices)
  • Jitsi (available on all devices)
  • RemoteHQ (available on all devices)

[i] https://zoom.us/privacy

[ii] Id; see also https://protonmail.com/blog/zoom-privacy-issues/

[iii] Id.

[iv] https://www.fbi.gov/contact-us/field-offices/boston/news/press-releases/fbi-warns-of-teleconferencing-and-online-classroom-hijacking-during-covid-19-pandemi; see also https://www.nytimes.com/2020/04/02/technology/zoom-linkedin-data.html?partner=IFTTT

[v] https://www.adl.org/blog/what-is-zoombombing-and-who-is-behind-it; see also https://www.nytimes.com/2020/04/02/technology/zoom-linkedin-data.html?partner=IFTTT

Posted in: Coronavirus, HIPAA, Legal Watch, Management, Scam

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Charting & Documentation During the Coronavirus COVID-19 Pandemic

Charting & Documentation During the Coronavirus COVID-19 Pandemic

The world’s memory of this virus will be different when lawsuits are filed two years from now and juries try the cases two to three years after that. The acuteness of the issues, the confusion, the limited resources and the changing daily directives will not be remembered in any meaningful detail. Accordingly, the Risk Management dogma that has always emphasized charting is more important now than usual. If the standard of care is judged as care “under the same or similar circumstances”, and those circumstances are “delivering care in a COVID-19 pandemic”, how will we show those circumstances in a 2025 jury trial?  We recommend vigilant documentation.

In consideration of Alabama’s sample ventilator allocation guidance, and exemplary language from other states, Starnes, Davis, Florie, LLP. recommends the below language be charted in circumstances where a resource may be diverted away from a patient who could be in need.  The sample language specifically applies to decisions in triaging a patient and any initial treatment decisions regarding a specific (limited) resource.

Sample Language:

In making a clinical judgment regarding the allocation of [resource] during the [COVID-19 pandemic / public health emergency], I have assessed the patient’s history, symptoms, and condition and considered the limited availability of resources and clinical factors associated with the allocation of limited resources.  My clinical judgment, under the totality of the circumstances, is that [clinical decision] is appropriate for this patient as an alternative medical intervention.

We also recommend against language or specific explanations to patients as follows:

·        Language / an explanation to a patient or a patient’s family explicitly referencing financial issues or considerations.

·        Language / an explanation to a patient or patient’s family focusing the considerations on the resource itself as opposed to the specific patient.

·        Language / an explanation to a patient or patient’s family specifically documenting the condition of other patients or the specific condition of other patients receiving resources.

·        Language / an explanation to a patient or a patient’s family specifically quantifying any patient’s likelihood of successful treatment – that being the patient receiving the resource and the patient not receiving the resource.

·        Language / an explanation to a patient or a patient’s family specifically comparing patients or outcomes.

·        Language / an explanation to a patient or a patient’s family specifically referencing medical ethics.  Medical ethics underpins all clinical decisions and does not need to be specifically included in the chart.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.

Posted in: Legal Watch, Members

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Shift in Patient’s Right to Access Medical Records

Shift in Patient’s Right to Access Medical Records

By: Kelli C. Fleming, Burr & Forman

The Office of Civil Rights (“OCR”), the government agency tasked with HIPAA compliance and enforcement, recently announced a change impacting a patient’s right to access his/her medical records—a change which is, given OCR’s history, surprisingly favorable to providers. 

One of the long-standing premises of HIPAA has been a patient’s right to access his/her medical records. For years, the HIPAA regulations have limited the fees that providers can charge patients when they request a copy of their medical records to a reasonable, cost-based fee (regardless of the permitted state law fees). HITECH expanded this right a few years ago by allowing patients to exercise their right to access medical records, but designate a third-party to whom the records should be sent (e.g., the patient’s attorney). These requests from patients to send their records to a designated third-party are oftentimes referred to in the industry as “HITECH” requests. 

Subsequent OCR guidance stated that the historical limitation on fees that applied when a patient exercised his/her right to access medical records would also apply to the situation where a patient requested that his/her records be sent to a designated third-party pursuant to a “HITECH” request. As a result, providers were limited in what they could charge third-parties, such as attorneys, seeking access to medical records by way of a “HITECH” request from a patient, as opposed to by way of a HIPAA authorization. 

However, based on a recent court order, such limitation on fees no longer applies to “HITECH” requests. As a result of the recent court decision, OCR has clarified that “the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.” Thus, as a result of this recent court decision, providers, and their business associates, are no longer bound by the HIPAA-imposed limitation on fees when a patient requests that a copy of his/her medical records be sent to a designated third party (e.g., attorney). For these “HITECH” requests, providers can now charge fees acceptable under state law, without applying the HIPAA fee limitations. These state law fees are oftentimes higher than the HIPAA fees. Further, the court decision clarified that such “HITECH” requests are limited to requests for an electronic health record with respect to PHI maintained in an electronic format.

OCR has been clear that the  HIPAA limitation on fees, however, will continue to apply to patient requests to access their own medical records when the records are delivered directly to the patient. Nonetheless, this shift in guidance is favorable to providers and much welcomed by the healthcare industry.

Kelli Fleming is a Partner at Burr & Forman LLP practicing exclusively in the firm’s healthcare industry group.

Posted in: Legal Watch, Members

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Appropriate Use Criteria for Advanced Diagnostic Imaging

Appropriate Use Criteria for Advanced Diagnostic Imaging

Contributed by: Gregg Everett, Gilpin Givhan

The Protecting Access to Medicare Act (PAMA) was passed in 2014.  PAMA required the Centers for Medicare and Medicaid Services (CMS) to establish a program that promotes “Appropriate Use Criteria” (AUC) for advanced diagnostic imaging. AUC’s are evidence-based criteria that assist professionals who order and furnish certain imaging services to make the most appropriate treatment decisions for specific clinical conditions. Once the AUC program is fully implemented (2021), payment will only be made for an advanced diagnostic imaging service if the Medicare claim indicates that the ordering professional consulted with a qualified Clinical Decision Support Mechanism (CDSM) about whether the ordered service meets an applicable AUC.  A CDSM is an interactive electronic tool for use by clinicians that communicates AUC information and assists in making appropriate treatment decisions during a patient’s workup.  An ordering professional is a physician or other licensed professional who orders an imaging service.  The settings covered include hospital outpatient departments (which includes the hospital’s ER), ambulatory surgery centers, physicians’ offices and IDTF’s.  

Advanced diagnostic imaging services include MRI’s, CT scans, PET scans and nuclear medicine. The CDSM must be reported on claims for payment using G-codes, modifiers and, eventually, the ordering physician’s NPI. For the period July 1, 2019, through December 31, 2019, only voluntary reporting was required.  Beginning January 1, 2020, an educational and operations testing period will be implemented, which is expected to run through December 31, 2020. For now, CMS will still pay a claim, whether or not the claim correctly includes AUC information. Eventually, CMS must develop outlier criteria (which will require some ordering professionals to obtain prior authorizations) and will not pay those claims that do not have AUC information, unless a specific exception is met. The exceptions include emergency services provided to individuals with emergency medical conditions (EMTALA definition), inpatient care where payment is made under Part A Medicare, or significant hardships, which includes insufficient internet access and EHR or CDSM vendor issues.  

Qualified CDSM’s (only national professional medical specialty societies or other organizations of providers who predominantly provide direct patient care may develop CDSM’s) must be approved by CMS and must meet other criteria, such as providing a certification or other documentation at the time of the order that a qualified CDSM was consulted, and whether or not the service ordered met the requirements of the specific referenced AUC. The regulations also list certain “priority clinical areas” that will be monitored to identify outlier ordering professionals as follows:  coronary artery disease (suspected or diagnosed), suspected pulmonary embolisms, headache (traumatic and non-traumatic), hip pain, low back pain, shoulder pain (including suspected rotator cuff injury), cancer of the lung (primary or metastasis, and suspected or diagnosed), and cervical and back pain. Ordering physicians and settings for these imaging services should begin the process of including AUC’s on Medicare claims in January 2020.

For more information see:

  1. “Protecting Access to Medicare Act of 2014,” Section 216, (Public Law 113-93), 42 U.S.C. Section 1395m(p) and (q).
  2. 42 CFR Section 414.94 – “Appropriate Use Criteria for Advanced Imaging Services.
  3. “Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging – Educational and Operations Testing Period—Claims Processing Requirements”; MLN Matters Number MM11268 Revised December 6, 2019.

Posted in: CMS, Legal Watch, Medicare, Members

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