Category Archives: Tredway, Lumsdaine & Doyle, LLP

CALIFORNIA’S NARROW NETWORKS: WILL IT BRING DOWN THE EXCHANGE?

California Physicians Express Concerns 

Physicians are expressing deepening frustration with California’s version of the Accountable Care Act’s Health Insurance Market place, known in California as “Covered California,” or the Exchange.  Covered California has the reputation for being the best run health care exchange in the nation but even it is suffering from severe problems during this early going.  Physicians are frustrated with administrative issues, the collection of deductibles and co-pays, and the lack of clarity in qualified health plan’s provider contracts.  Most of all, they express contempt for Covered California’s  “narrow networks” and what it means for the physician’s practice and their patients.

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What is a Narrow Network?

Bernard Wolfson at the Orange County Register describes the Narrow Network like this:

“Welcome to the “skinny” medical provider network.

The insurers say they are pressured to keep premiums in check but have been left with fewer tools to do it. Health plans that applied to sell their wares in Covered California, the state-run insurance exchange, competed largely on price.

But at the same time, they’re required to provide standardized benefits that not everybody needs or wants, including things like prenatal care, pediatric services and treatment for substance abuse. That tends to raise premiums.

One of the few effective ways to reconcile these countervailing demands, insurers say, is to eliminate higher-cost hospitals and doctors. As a result, consumers are getting thinner pickings, but at lower prices.”  (OC Register, November 13, 2013.)

Narrow networks are needed to keep premiums down.  The idea is to first find those doctors and hospitals agreeable to receiving lower reimbursement for healthcare services. Second,  load them up with patients.

2014 contracts from Covered California Qualified Health Plans are really not much different than provider contacts from prior years.  They still maintain the “fee for service” model that providers have grown use to.  Change is coming. Buried in the contracts with the qualified health plans are agreements to move over to value based payment in the future.  That is, providers will be expected to take the risk that payments from the health plans will cover the actual cost of treatment.

What’s Wrong With Narrow Networks?

Some of the issues physicians have been suffering from are listed below:

  1. Finding Specialist.  Many primary care physicians are unable to find specialist who are participating in Covered California’s qualified health plans.  Finding the specialist, even an orthopedic to set a broken arm, as proven to be impossible in some areas.
  1. Hospital Utilization.  Many hospitals have not agreed to the lower rates offered by qualified health plans under the Exchange. Often, a patient will find that their doctor is under one Covered California health plan, but their hospital is not.
  1. For Medicaid recipients it will be even harder. California is expected to enroll two million Obamacare Medi-Cal beneficiaries. Only about half of California doctors accept new Medi-Cal patients and the Medi-Cal doctor payment rates, already among the lowest in the nation, are going to be cut by 10 percent just as the Obamacare expansion begins. Medi-Cal waiting lines for specialist care are already critical.
  1. Health Plans are not accepting doctors.  Some specialists have been told that the health plans are no longer accepting physicians.
  1. Patients will not be able to go to their old doctor, and in some cases won’t find a doctor that will take them at all.

Policy Concerns.

The problem with fixing California’s narrow networks is that premiums for the health insurance will skyrocket. Federal regulations do require that health plans under the exchanges  have “reasonable” provider networks.  Health and Human Services is looking to stiffen these regulations in the near future.  California law has provider network requirements.  California’s Health and Safety Code  has certain requirements for provider networks, requiring a hospital to be located within 15 minutes of each and every enrollee and requires certain care to be completed within certain time frames. (Title 28, California Code of Regulations, Section 1300.51(c). California Health & Safety Code sections 1342, 1367 & 1367.03.)

While Covered California has tacitly accepted these narrow networks as a method of keeping premiums low, there is growing concern about how such networks will change healthcare in California.  David Jones, the California Insurance Commissioner held hearings in December on this issue.  Look for proposed regulations from the Department of Insurance later this year.

By Matt Kinley, Esq.  Mr. Kinley is a healthcare attorney in Long Beach, California. 

THE ACA AND NURSE PRACTITIONERS UNDER CALIFORNIA LAW

NURSE PRACTITIONERS REQUIRE SOME DUE DILIGENCE

The ACA utilizes the idea of non-physician professionals to help bridge the gap presented by having insufficient physicians to handle patients.  It is hoped that utilizing these professionals will help increase communications with patients, particularly chronic patients who could avoid hospital stays by seeing a nurse practitioner for an office visit or even email communication with a knowledgeable professional  Finally, utilizing non-physicians should lower costs.

In California, this presents some major issues.  California carefully regulates the use of such professionals, particularly nurse practitioners.    Specialists need to  pay attention to creating the right environment for such professionals.  Standardized Procedures should be updated to conform to the needs of the practice.  The California Code of Regulations (Title 16, section 1472) requires physicians to have “standardized procedures” before permitting registered nurses to perform treatments and procedures.  The purpose of the standardized procedures is to establish policies and protocols for NPs so that they are able to perform their authorized duties.  It is particularly important to update these standardized procedures because your NP will most likely be characterized as your employee, which will expand the scope of your liability for her acts.

California Code of Regulations Title 16, section 1474 establishes specific guidelines for the standardized procedures and provides that each standardized procedure must:

v    Be in writing.

v    Specify which functions the nurse may perform and under what circumstances.

v    State specific requirements to be followed by the nurse in performing specific functions.

v    Specify experience, training, and education requirements for the performance of the procedure function.

v    Establish a method for initial and continuing evaluation of the competence of the registered nurse.

v    Provide for a method of maintaining a written record of who is authorized to perform standardized procedure functions.

v    Specify the scope of supervision required for performance of standardized procedure functions.

v    Set forth specialized circumstances under which the nurse is to immediately communicate with the patient’s physician concerning the patient’s condition.

v    State the limitations on settings.

v    Specify patient record keeping requirements.

v    Provide for a method of periodic review of the standardized procedure.

 

            (a)       Furnishing Scheduled Drugs

                        Of particular importance are the standardized procedures on Furnishing Scheduled Drugs.  California law requires that you specifically list “which drugs or devices may be furnished or ordered” and “under what circumstances.”  (Bus. & Prof. Code, § 2836.1(c)(1).)  We recommend to physicians that they review the “List of Scheduled Drugs” to ensure that it is consistent with the drugs that the NP may prescribe to patients.  

            (b)       Dispensing Hormonal Contraceptives

                        California law also has strict guidelines for a nurse’s dispensation of self-administered hormonal contraceptives.  In order to administer hormonal contraceptives, your practice must have standardized procedures developed in compliance with Business and Professions Code section 2725.2.  These standardized procedures must include, but are not limited to, the following:

v    Which nurse may dispense the hormonal contraceptive.

v    Minimum training requirements regarding educating patients on medical standards for ongoing women’s preventative health.

v    Competency in providing the appropriate prior examination of checking blood pressure, weight, and patient and family health history, including medications taken by the patient.

v    List of the contraceptives that may be dispensed or administered under specific circumstances.

v    Criteria and procedure for identification, documentation, and referral of patients with contraindications for hormonal contraceptives and patients in need of a follow-up visit to a physician and surgeon, nurse practitioner, certified nurse-midwife, or physician assistant.

v    The extent of physician and surgeon supervision requested.

3.         Ensure that Your Nurse Practitioner is “Clinically Competent”

           NPs  must be “clinically-competent” to treat a particular population.  Standardized procedures should establish a method for the continuing evaluation of the competence of your NP to perform the specified procedures.

Following these procedures will help you utilize nurse practitioners to help your patients.  You will also avoid accusations of failing to follow state law in guiding the NPs to perform as if they were an extension of your care.

BY:  Matt Kinley, Esq,

PRIVACY: BREACH NOTIFICATION UNDER CALIFORNIA AND FEDERAL LAW

WHAT HAPPENS WHEN A PROVIDER ACCIDENTALLY REVEALS PERSONAL HEALTH INFORMATION?

Let’s say someone in your office accidentally sends a patient the information about a different patient?  Or, your web portal  allows patients to see other patients information? What to do?

Notifying Patient of Revealed Information

Both under Federal and State Law, the covered entity must notify all individuals whose unsecured protected health information has been accessed as a result of a security breach.   Such notification may not be “unreasonably delayed” but must be within 60-days of the breach.  It must be specific as to content disclosed.  Also the Secretary of the Department of Health and Human Services must be notified.  (See, generally:  HSS Website.)

Review Your Policies

Security and Privacy procedures must be reviewed, and the review must be documented, and changes must be made to prevent reoccurrence.

California Law Has Additional Requirements

State law must be further consulted for further requirements. California’s general privacy laws and the Confidentiality of Medical Information Act apply.

There are civil and criminal penalties and there is a private cause of action

Talk to a Lawyer

When making a decision about revealed health information, speak to an attorney.   The decisions about what to do should not be taken lightly as there can be major fines from both the federal and state government, as well as likely lawsuits by the patients involved.

Insurance

Make sure you have the right insurance.  This is usually not included with your normal civil insurance or your malpractice insurance.  Review your policies, talk to your broker.  These policies can save you from the high costs of attorneys and helping your patients deal with the problems.  

By Matthew L. Kinley, Esq. 

ALL THE AGENCIES THAT REGULATE HEALTHCARE ALL IN ONE PLACE!

Oversight of Health Care Industry

MEANINGFUL USE AUDITS TAKE BACK INCENTIVE PAYMENTS

EHR Incentive Programs/Supporting Documentation For Audits

Contact Matthew L. Kinley, Esq at Tredway, Lumsdaine & Doyle if you are subject to audit or need advice about your compliance program.

877.923.0971

According to the Centers for Medicare and Medicaid Services, about 10% of the healthcare providers who took advantage of the meaningful use incentives will be audited by a private contractor hired to look for errors.

THE MEANINGFUL USE PROGRAM

Under the 2009 HITECH Act, health care providers who demonstrate meaningful use of certified electronic health records will receive incentive payments through Medicaid and Medicare. States can receive a 90% federal funding match for incentive payments distributed to Medicaid providers who adopt EHRs under the meaningful use criteria.  Eigible physicians who see Medicare and/or Medicaid patients, as defined by the HITECH Act summary, will be compensated from $44,000 to $63,750 over a 5 year term for fulfilling the recently defined ‘meaningful use’ criteria. To further promote the use of certified systems, if these same physicians do not utilize healthcare IT that meets the Federal requirement by 2015, they will be faced with increasing penalties of up to 5%.

Providers started receiving Medicare or Medicaid bonuses for using certified EHR technology in 2011 and will get around $20 billion over five years. The meaningful use incentive program requires hospitals and eligible professionals (e.g., physicians) to use EHRs to improve patient safety, quality of care and patient-provider communication. Providers must buy EHRs from vendors on the Certified Health IT Product List (see http://healthit.hhs.gov/chpl). If they don’t, they face a Medicare payment reduction after 2015.

REQUIREMENTS FOR HITECH

Documentation to support attestation data for meaningful use objectives and clinical quality measures should be retained for six years post-attestation. Documentation to support payment calculations (such as cost report data) should continue to follow the current documentation retention processes.

MEANINGFUL USE AUDITS

States and their contractors will perform audits on Medicaid providers. When providers are selected for an audit, they will receive an initial request letter from the auditor. The request letter will be sent electronically from a CMS email address and will include the audit contractor’s contact information.

The initial review process will be conducted at the audit contractor’s location, using the information received as a result of the initial request letter. Additional information might be needed during or after this initial review process, and in some cases an onsite review at the provider’s location could follow. A demonstration of the the EHR system could be requested during the on-site review

If there is any deficiency in the audit, providers will have to give back their entire meaningful use incentive payment.  That means their payments for the audit period are at risk unless their electronic health records show they kept every promise they made to the government when they accepted the money.

One letter from the EHR HITECH Incentive Payment Center said a meaningful use audit had determined that “an overpayment of HITECH funds has been determined and is owed.” CMS gave the provider 30 days to repay the money, although it had the right to appeal.

Most providers are having negative audit findings and owing the money back, often because they thought they met most of the core elements, but they didn’t get them all done, or they weren’t all properly documented. If you miss a core element, they ask for all the money back.

HIPAA and PRIVACY POLICIES

The security risk analysis is a problem area in meaningful use. Providers must attest that they conducted a risk analysis, which is a core measure as well as required by the HIPAA security regulation.  Most providers fail to do such an analysis.

BEST PRACTICES TO AVOID AN AUDIT

The following practices should be employed as soon as possible by all providers.  Those who worked for and obtained benefits for meaningful use are particularly vulnerable.

Best Practices

• Enter accurate numbers when you attest to meaningful use of an electronic health record (EHR).

• Keep your supporting documentation.

• Know that dated screen shots provide a good source of documentation.

• Save paper or electronic copies of reports used to attest if the practice’s EHR automatically changes numerator and denominator values after the reporting period ends.

• Turn on, for the entire reporting period, EHR features that track functionality issues, such as drug interaction checks and clinical decision support.

• Understand that the security risk analysis must be specific to the EHR and the practice and is required every year.

By Matthew L. Kinley

Human Resources is for Physician Offices, too

2ND ANNUAL EMPLOYER HR SUMMIT
CA EMPLOYMENT LAW & HEALTH CARE REFORM

TUESDAY  •  JANUARY 21, 2014

Matt Kinley, Tredway, Lumsdaine & Doyle
Audrianne Adams Lee, HR NETwork, Inc.

Location/Sponsored by:

Long Beach City College
4901 Carson St, Long Beach, CA 90808
Room # – TBA upon Registration

No cost to attend this event.
A box lunch is included.

Format/Schedule
8:30         Registration
9:00-12:00     2014 Workplace Compliance – New Laws and Trends
12:00-12:30    Box Lunch – Presentation by
10,000 Small Businesses
12:30-2:30     Health Care Reform – What Now?
2:30-3:00     Health Care/Vendor Panel for Q&A

To register, call 714.799.1115 or email to michelleb@hrnetworkinc.com
2014 Workplace Compliance –
New Laws and Trends
A wave of new employment legislation, case law developments, and other employment law trends stand to significantly impact the California workplace in 2014. With many of these new laws taking effect on January 1, employers with California operations must take prompt action to ensure compliance and to mitigate workplace law risk.

We discuss the critical changes in law, the impact of the new regulations, and recommendations for employers. Topics covered will include:

•     Legislative developments
•     Trends and significant decisions in California employment law
•     Cases to watch for 2014

Health Care Reform –
What Employers Need to Know

In this portion of the seminar, we will respond to these and many other questions you have surrounding Health Care Reform:

•    Meeting the threshold in 2015
•    What are my options to offer/not offer coverage (Under/over 50 employees)?
•    Calculating my FTE count
•    HIPAA Compliance – What I am responsible for?
•    Reporting requirements for Employers
•    How to assist and communicate the ACA to your employees

COVERED CALIFORNIA: WHAT’S A PROVIDER TO DO?

Several issues arise from the proposed agreements for providers from Qualified Health Plans (“QHP”) under Covered California. Some issues that physicians and other providers should be watching out for:

1. Payment Schemes. Initial contracts from the various QHP’s are offering low payment options, particularly the “80% of Medicare” option. Physicians should be wary of such agreements. Under QHP contacts with Covered California, the plans have agreed to work on value-based payments in the future, making future contracts even less attractive for providers.

2. Hospital Contracts. There still is no clarity on which hospitals will take part in Covered California and under what plans. Covered California has no listing of participating hospitals at this time. The prospect of narrow networks (fewer providers offered to consumers) makes it troublesome to predict the future on hospital participation.

3. Administrative Burdens. QHPs are imposing difficult and legally thorny administrative tasks on providers, particularly providing information about patients and payments.

4. Populations. Get information on the types of patients expected under contracts. The initial rounds of patients are predicted to be populations that are in fair to poor health. Since they are not used to traditional medical care, they are expected to have a large percentage of missed appointments and compliance issues.

5. Collections. What is the providers obligations to collect? Some Covered California plans leave high deductibles and copays for enrollees. Yet, the newest enrollees are not used to paying such amounts. Also, determine risk for patients who fail to pay premiums to Covered California QHPs. Providers may be on the hook.

With all the problems with exchange products, providers may want to sit out this first round

Several issues arise from the proposed agreements for providers from Qualified Health Plans (“QHP”) under Covered California. Some issues that physicians and other providers should be watching out for:

1. Payment Schemes. Initial contracts from the various QHP’s are offering low payment options, particularly the “80% of Medicare” option. Physicians should be wary of such agreements. Under QHP contacts with Covered California, the plans have agreed to work on value-based payments in the future, making future contracts even less attractive for providers.

2. Hospital Contracts. There still is no clarity on what hospitals will take part in Covered California and under what plans. Covered California has no listing of participating hospitals at this time. The prospect of narrow networks (fewer providers offered to consumers) makes it troublesome to predict the future on hospital participation.

3. Administrative Burdens. QHPs are imposing difficult and legally thorny administrative tasks on providers, particularly providing information about patients and payments.

4. Populations. Get information on the types of patients expected under contracts. The initial rounds of patients are predicted to be populations that are in fair to poor health. Since they are not used to traditional medical care, they are expected to have a large percentage of missed appointments and compliance issues.

5. Collections. What is the providers obligations to collect? Some Covered California plans leave high deductibles and copays for enrollees. Yet, the newest enrollees are not used to paying such amounts. Also, determine risk for patients who fail to pay premiums to Covered California QHPs. Providers may be on the hook.

With all the problems with exchange products, providers may want to sit out this first round of patients.

FORNIA: WHAT’S A PROVIDER TO DO?

Several issues arise from the proposed agreements for providers from Qualified Health Plans (“QHP”) under Covered California. Some issues that physicians and other providers should be watching out for:

1. Payment Schemes. Initial contracts from the various QHP’s are offering low payment options, particularly the “80% of Medicare” option. Physicians should be wary of such agreements. Under QHP contacts with Covered California, the plans have agreed to work on value-based payments in the future, making future contracts even less attractive for providers.

2. Hospital Contracts. There still is no clarity on what hospitals will take part in Covered California and under what plans. Covered California has no listing of participating hospitals at this time. The prospect of narrow networks (fewer providers offered to consumers) makes it troublesome to predict the future on hospital participation.

3. Administrative Burdens. QHPs are imposing difficult and legally thorny administrative tasks on providers, particularly providing information about patients and payments.

4. Populations. Get information on the types of patients expected under contracts. The initial rounds of patients are predicted to be populations that are in fair to poor health. Since they are not used to traditional medical care, they are expected to have a large percentage of missed appointments and compliance issues.

5. Collections. What is the providers obligations to collect? Some Covered California plans leave high deductibles and copays for enrollees. Yet, the newest enrollees are not used to paying such amounts. Also, determine risk for patients who fail to pay premiums to Covered California QHPs. Providers may be on the hook.

With all the problems with exchange products, providers may want to sit out this first round of patients.

Matt Kinley On HIPAA Final Rule: Talk before Orange County Medical Group Management Association

OCMGMA: HIPAA Update

Tuesday, June 11, 2013 (12:00 PM – 1:30 PM)

Presented by: Kathleen Stillwell, MPA/HSA, RN, CPHRM Patient Safety
Risk Management Account Executive, The Doctors Company, and Matthew
Kinley, Esq.,  Partner, Tredway Lumsdaine & Doyle, LLP

Program Information:

The new HIPAA Omnibus Rule
includes new breach notification requirements; limits for use and
disclosure of Protected Health Information (PHI), defined Business
Associates and Subcontractors, increased Patient Rights, change in the
Notice of Privacy Practice, increased fines and penalties, and other
important changes. There is a new focus on investigating and penalizing
noncompliance due to “willful neglect.”

The Office of Civil Rights will begin enforcement of the Omnibus Rule September 23, 2013.

Attend this session to learn what actions your practice must take to meet the new federal compliance regulations.

Objectives:

  • Describe new limits on uses and disclosures of PHI
  • Recognize Business Associates and Subcontractors
  • Explain increased Patient Rights
  • Outline action steps for compliance with Omnibus Rule

Kathleen Stillwell Bio       Matt Kinley Bio

RSVP to Maria Taylor at 714-937-2182 or mtaylor@osiortho.com.
Cost: Members – $25, Non-Member managers – $35, Members Vendors and
Vendors who attend the first time – $50. Other Non-Member vendors – $95.

1.0 CEU Available from ACMPE

TLD’s Shannon M. Jenkins to Speak at the OCMGMA: “Managing In A Down Economy”

Tredway Lumsdaine & Doyle LLP (TLD) Partner Shannon M. Jenkins is scheduled to speak to the Orange County Medical Group Management Association (OCMGMA) on Friday, May 9 in Orange, CA in regards to “Managing In A Down Economy”.

Her litigation experience includes handling disputes primarily for the employer from pre-litigation negotiation through jury trial or bench verdict, individual and class action cases, administrative (including the Labor Commissioner, EDD and DFEH) and judicial forums and alternative dispute resolution. More specific litigation experience includes successfully defending litigated sexual harassment claims and those involving alleged discrimination, breach of employment agreement, wage and hour, breach of confidentiality agreement, breach of fiduciary duty, wrongful termination and all manner of related tort claims. 

Ms. Jenkins has hosted numerous employment law seminars and speaking engagements, examples of which include the top ten things employers do wrong, best practices in employment law and yearly updates on new employment law cases.  Ms. Jenkins also provides non-litigation related but equally important preventative services such as required sexual harassment training and preparation of the spectrum of pre-hire/hire/post-hire and termination employer documentation.

If you are interested in attending this speaking engagement, please RSVP by Friday, May 4, 2012 to Sue Carlin at SueCarlin @pulmconsultants.com.  Click here to read the full annoucement from the OCMGMA, including the cost to attend.

Orange County Medical Association Selects the Firm as Business Partner

The Orange County Medical Association is pleased to announce another benefit of membership. The OCMA has the law firm of Tredway Lumsdaine & Doyle, LLP, (TLD) as its Business Partner for physicians seeking custom legal services for their professional or personal needs.

OCMA members may receive complimentary consultations and discounted rates on a wide range of legal services, including healthcare and employment law, trust administration/probate, business litigation, real estate, tax and business planning, and asset protection and estate planning.

“Our Medical Professional Plan is designed to specifically help busy physicians protect their professional practices,” said Matthew Kinley, partner at Tredway Lumsdaine & Doyle LLP. “We offer quality legal advice from experienced attorneys in a package that is highly customizable for individual needs. We look forward to offering our services through this special arrangement to the OCMA membership.”