Monthly Archives: February 2014


The Department of Health and Human Services and The Department of Justice Health Care Fraud and Abuse Control Program Annual Report for Fiscal Year 2013

The HHS report details efforts to recover for fraud claims under the Federal False Claims Act, including convictions against physicians, hospitals, device manufacturers and drug manufacturers.

For California, the star of the report goes to this Tustin doctor and hospital.  As stated by the report:

‘In December 2012, a California physician was sentenced for his role in a hospital fraud scheme to 1 year and 1 day in prison and ordered to pay $11 million in restitution. He previously pleaded guilty to conspiracy to receive kickbacks. According to court documents, Tustin Hospital paid marketers to recruit patients and drive them from “Skid Row” around Los Angeles, past other hospitals, to be admitted to its facility. The physician admitted these patients and then he and the hospital billed Medicare for in-patient services, even if the services were not medically necessary. The physician admitted that many of the recruited patients had been coached to recite false symptoms, and that he falsified medical records to justify the admission of some patients. On average, he admitted approximately 60 patients per month to the hospital, even though some did not require hospitalization”



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,

REPORT ON EHR COMPLIANCE: What Providers are Not Doing

The Department of Health & Human Services, Office of Inspector General, has issued a report entitled “CMS and Its Contractors Have Adopted Few Program Integrity Practices to Address Vulnerabilities in EHRs.

According to the OIG, few Medicare contractors were effectively utilizing EHRs, and most still utilized paper medical records.  Much of the report is devoted to guidance that can be offered t providers by CMS, especially on detecting fraud in the medical records.   CMS should also assist with providing information on what is necessary in the EHR file, and electronic signatures.



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.


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. 


Oversight of Health Care Industry