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Handling physician HIPAA violations

The American Recovery and Reinvestment Act (ARRA) of 2009 establishes a tiered civil penalty structure for HIPAA violations. The U.S. Department of Health and Human Services (HHS) has the discretion to determine the amount of the penalty based on the nature and extent of harm resulting from the violation. HHS determines whether the individual that violated HIPAA laws exercised reasonable diligence, corrected the error within 30 days, or was willfully negligent.

Hospitals have put in place several auditing processes and safeguard procedures  to ensure that any potential HIPAA violations are discovered quickly and handled appropriately within the specified time frame. As a medical staff leader, you may be faced with the question of how to handle situations where a physician may have violated HIPAA privacy laws.

Partnering with your compliance team to ensure that your policies are clear will help guide you when and if the situation arises. While the disciplinary action taken may vary slightly from the disciplinary action that the hospital takes against one of its employees, partnering with human resources and the compliance office to ensure that the processes align is important.

Some examples of HIPAA violations that could involve physicians and ways to address them include:

  • A physician or resident leaves documentation in the cafeteria with patient information included. The paperwork is discovered by an employee and turned into compliance. Because  the individual who discovered the paperwork is an employee and is required to undergo HIPAA training, then you likely do not need to disclose the breach. However, you would want to ensure that the physician or resident who left the documentation in a public place is provided with further education in regards to the violation and the possible repercussions if another patient or family member picked up the information. You may want to consider having the physician or resident repeat his or her HIPAA training requirements and perhaps even put together a lecture for an educational conference.
  • A physician logs into the medical record of a relative or friend to check on the patient’s condition. If the physician does not have a doctor-patient relationship established, then this is a violation of HIPAA. In this situation, your compliance office will likely want to provide full disclosure of the issue to the family. As with the first example, you would want to consider requiring additional education not only to the physician involved but all members of the medical staff in regard to what is considered appropriate access to patient records and what would be considered a breach.

These examples are some common experiences that can occur in hospitals; however, there are many situations which can be egregious and could even lead to individuals being held criminally liable for breaches. Any major or egregious violations that require formal disciplinary action against a physician, (beyond simple education as suggested in the less egregious situations above), would require the organization to follow their due process procedures for the medical staff.

Taming the alligators

My last post introduced the idea that hospitalist medical directors are in the position of an engineer hired to drain a swamp but distracted from doing so by the numerous alligators inhabiting the swamp. I would like to explore further the concept of keeping the alligators at bay so that one can concentrate on draining the swamp, that is, improving the quality of hospital care.

My only direct experience with real alligators occurred while I was bicycling along a path on Kiawah Island, SC.  An alligator was lying about 20 feet off the path. It paid no attention to me as I cycled pass. Under different circumstances, that alligator would have raced toward me and potentially been able to attack. Why not that time? I presume that the alligator had satisfied its food needs and I did not fit into its agenda. The point is that alligators are not naturally malevolent. They become dangerous when they are hungry.


Infection = Felony?

An article in The Journal News highlights an interesting thought concerning healthcare associated infections (HAI).  The article references a New York State bill before the assembly that would make “reckless infection of a patient with a communicable disease by a healthcare provider” a felony. The article sites cases of wanton disregard for patient safety leading to potentially life threatening infections. We all know the drill concerning HAI – poorer outcomes, increased length of stay, increased costs, etc.  My hospitals are once again launching a hand hygiene campaign to reduce HAI – which of course is a good thing. But it is obvious that healthcare workers still are not doing enough.  Some hospitals are starting to fine physicians and employees for failing to wash their hands.  So do you think not washing your hands should result a criminal record?  Okay, I admit the intent of the bill is to punish egregious negligence, but where do you draw the line? What would stop a patient with an HAI from claiming the infection was due to recklessness? Is our failure to police ourselves once again going to come back to haunt us? What do you think? 

Will accountable care organizations create restraint of trade?

A key element in healthcare reform is the accountable care organization (ACO). Proponents argue that ACOs will provide and manage care across the continuum of care settings, helping to contain costs and create reporting processes that lead to high-quality, efficient care. But what is the possible downside to ACOs?

How will the major players—large regional healthcare systems etc.—control ACOs? Will they see ACOs as an opportunity to drive other provider organizations out of a particular market?

I have visited recently with several hospitalists that have expressed this concern to me. In the past, the hospitalists have seen these “market share bullies” restrict their hospital privileges and the privileges of referring physicians, and they have a real fear that the implementation of ACOs makes constrained opportunity bound to happen. Many are waiting to see what rules the Centers for Medicare & Medicaid announce for models of mandatory or voluntary ACOs.

There have been highly successful, productive models for ACOs, for example, Geisinger Health System. ACOs have worked well in some smaller markets where alignment does help to control cost and deliver quality results, but will highly-structured ACOs also result in anti-trust, self-referral, and anti-kickback issues in larger markets? I am eager to see if the published rules will lead to or provide for relaxed Stark rules and regulations. What happens to that group of six hospitalists at the local hospital when it becomes part of an ACO? Will those hospitalists still be able to provide care? Will the primary care and specialty physicians still have privileges at the hospital?

It is important to understand that there is a difference between accountable care and accountable care organizations. I believe that accountable care can be created without requiring physicians to be restricted to a single ACO, and I believe that “virtual” ACOs can achieve the results we all look for. However, I’d like to hear from you! Are you concerned about ACOs imposing restraint of trade? Are you concerned that the major health systems in your market will use an ACO as a vehicle to drive out competition?

Ideas for Doctor’s Day

National Doctor’s Day is quickly approaching. Hint: It’s on March 30. There’s still time to organize events and activities to recognize your physicians. Here are some ideas to honor your physicians at your institution:

  • Food
    Food is always a crowd pleaser and lends itself to good conversation. Whether it’s breakfast, lunch, or dinner (depending on your budget), remember to include various options for special dietary needs (vegan, gluten-free, kosher, etc.). Who doesn’t enjoy a good meal?
  • Theme parties
    Remember to have fun with the day. Consider creating a decorative theme for each year’s Doctor’s Day, such as the Doctor Oscars, superheroes, or M*A*S*H. The medical staff office can take it a step further and even dress up in custom.
  • [more]

TJC releases more FAQs on MS.01.01.01

The Joint Commission on Thursday released new information of frequently asked questions (FAQ) regarding MS.01.01.01.

The Joint Commission introduced MS.01.01.01, the medical staff bylaws standard formerly known as MS.1.20, in May 2010 when the accrediting body revealed its FAQ, explaining the relationship between the medical executive committee and the medical staff. The standard may affect many institutions as they must amend their medical staff bylaws, rules and regulations, and policies.

The new FAQ further reveals:

  • Medical staff representatives(s) should participate in all governing body meetings.
  • There is no requirement in which the organized medical staff must formally meet when it adopts or approves medical staff bylaws and revisions of amendments.

MS.01.01.01 goes into effect on March 31.

Extended deal: $100 off CRC Symposium

We all love a deal. HCPro has extended its discount rate for the 14th Annual Credentialing Resource Center Symposium (May 12-13 in Las Vegas)! If you register before April 1, you get $100 off the regular price ($995) at $895 per registration. We hope to see you there!

Should smoking lead to unemployment?

A February 11 article in The New York Times titled Hospitals Shift Smoking Bans to Smoker Ban raises an interesting question for healthcare facilities. Should smokers be ineligible for employment in the healthcare industry? The article cites facilities in several states, including Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee, and Texas, that have stopped hiring smokers.  Most would agree that smokers, on average, have higher healthcare costs and miss more time from work than nonsmokers. So it would certainly be in the financial interest of healthcare facilities to not employ smokers. Smoking is associated with significant healthcare costs and is a leading cause of preventable death, but does that mean smokers should not be employed in the health care industry? You can make a case that unemployment is not good for your health either. What about other activities or conditions that are less than healthy: obesity, sleep deprivation, excessive alcohol use, certain sexual practices, and high-risk recreational activities? This seems like a pretty slippery slope. 

Draining the swamp

I have been chided for the downbeat tone of some of my recent posts. You need to understand the financial challenges ahead, but having said that, it is time to refocus on what is good and positive about hospital medicine. The difficulty in doing so reminds me of a saying among civil engineers: When you are up to your buttocks in alligators, it is hard to remember that you were hired to drain the swamp. The swamp contains all the things that prevent hospital care from being perfect—readmissions, medical errors, quality deficiencies, delays, excess costs, inadequate communication, poor patient satisfaction, to name some.

Hospital medicine has made definite strides in solving some of these problems, yet most hospitals have each of these problems to some extent. Hospital medicine programs have been sold to administrators as a solution to these problems, but most smaller and nonacademic programs have trouble delivering the goods. The reason is that medical directors are given few resources to drain the swamp and spend most of their time wrestling with alligators. The alligators are most of the hospital stakeholders, nurses, emergency doctors, specialists, primary doctors, patients, families, insurers, and, regrettably, hospitalists.

What makes an alligator? A stakeholder becomes an alligator when the hospital medicine program fails to deliver some portion of the desired benefit, and the stakeholder becomes angry and demanding.

I have been a physician for more than 30 years, and I have never seen so many angry people in hospitals as there are today. I got into hospital medicine because it offered an opportunity to make hospital care work, but after 15 years in the field, the goals seem more elusive than when I started. Whoops, there goes the downbeat tone again.

The problem is in getting enough resources to perform effective quality improvement work. Pronovost and Marsteller, writing in the February 2 issue of JAMA, note the peripheral role of physicians in quality improvement (QI) work. They call for physician managers with dedicated time and salary support for quality work. Most hospital medicine program directors have little or no salary support for activities other than direct patient care. A few larger hospital systems are creating true executive positions for hospital medicine, but this is still a rarity. Some academic hospitalists are able to do QI work as part of their scholarly activity. We clearly need to find ways to make things better within the time available to us. I’ll explore that in subsequent posts.

CA faces AHP shortage

The average non-nursing allied health professionals (AHP) faces a vacancy rate of 4.4%, according to a February 9 California Hospital Association (CHA) report, “Critical Roles: California’s Allied Health Workforce.” Out of 111 survey respondents, the occupation that have the highest vacancy rates are physical therapists (7.8%), cardiovascular and interventional radiology technologists (6.8%), medical lab technicians (6.3%), and MRI technologists (6.2%).

The CHA Healthcare Workforce Coalition, created in 2007, conducted the study looking at AHPs and found that the five largest occupations are respiratory therapist, pharmacist, pharmacy technician, radiological technologist, and clinical lab scientist. Together, they make up more than three-quarters of the non-nursing AHP workforce.


The ‘S’ word

As value-based purchasing approaches, hospitalists are going to feel the heat from hospital administrators. I believe that this is largely a shell game played by the Centers for Medicare & Medicaid Services to give hospitals the idea that they can win at this game, when all but a few will lose. The reality is that Medicare needs to reduce payments to hospitals to avoid impossible deficits. There will be pressure in all areas to reduce costs, and I can’t help but believe that hospitalist subsidies will be a prime target.


Is developing privileging criteria always a struggle?

It doesn’t have to be! Join HCPro on February 9 at 1:00 ET for “Step-by-Step Guide to Developing Privileging Criteria,” a 90-minute Webcast hosted by Sally Pelletier, CPMSM, CPCS and Christina W. Giles, CPMSM, MS. During the program, Sally and Chris will walk you through best practices for privileging criteria development following the below agenda:

  1. When do you need to develop privilege criteria (when is something a new privilege vs. an extension of an existing privilege)?
  2. What internal and external sources are available?
  3. How do you create equivalent criteria for procedures that cross specialty lines?
  4. What elements should be considered when defining the criteria?
  5. Case studies that reflect various settings, examples of forms, and sources you can use to develop criteria
  6. Live Q&A

To purchase access to the Webcast, please click here.