Transcript March 26, 2004

Association of Washington Public Hospital Districts
Retreat for CEOs and Administrators
“Leading Wisely, Living Well”
Cave B Inn at SageCliffe,
Quincy, Washington
May 2-4, 2006
HOT TOPICS FOR PUBLIC HOSPITAL DISTRICTS
By Jim Fredman
May 4, 2006
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ACTION ITEMS
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Public Records Act
Confidential Information
Medical malpractice reform
Patient financial agreements
Bills
Charity care
Deficit Reduction Act
 Privacy complaints
 Medical staff issues
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ISSUES TO WATCH
 Medicare enrollment
 State Medicaid audits
 Patient Safety and Quality Improvement
Act of 2005
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RECODIFICATION OF THE PUBLIC RECORDS ACT
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Beginning July 1, 2006, RCW 42.17.250 to
.348 will be recodified under Chapter 42.56
RCW, entitled the “Public Records Act”
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Exemptions reorganized into categories
such as “health care” as RCW 42.56.360
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Conversion chart attached
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PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758)
1. Eliminates “overbroad” exemption
2. Requires large requests be filled on an
installment basis
3. Allows agencies to require deposit if
copies are requested
4. Allows agencies to stop fulfilling request
if installment not claimed or reviewed
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PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758)
5. Designate and publicly identify public
disclosure officer to whom all
requests should be directed
6. Shortens the statute of limitations to
one year from when the last
document was produced or
exemption asserted
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PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758)
7. Requires the attorney general to adopt
advisory model rules addressing
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“fullest assistance” requirement
large requests
electronic records
any other topic
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ATTORNEY GENERAL’S MODEL RULES
 Chapter 44-14 WAC
 Optional model rules and best practices
 Roadmap for public hospital district
policy
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ATTORNEY GENERAL’S MODEL RULES, cont.
 Topics
– Agency description, contact information, public
records officer
– Availability of public records
– Processing requests
– Exemptions
– Cost of providing copies
– Review of denials
 PHD can adopt the model rules but would be
bound to attorney general comments
 suggest PHD draft own policy
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CONFIDENTIAL INFORMATION
Keeping confidential information
confidential when subject to
 Public Records Act
 Open Pubic Meetings Act
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PUBLIC DISCLOSURE EXEMPTIONS
 Agency’s burden to show exemption
applies (RCW 42.17.251)
 All exemptions construed narrowly
(RCW 42.17.340(1))
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PUBLIC DISCLOSURE EXEMPTIONS, cont.
Most common exemptions include:
 Medical records (RCW 42.17.312)
 Quality improvement (RCW 42.17.310(1)(hh))
 Privacy (RCW 42.17.330)
 Deliberative process (RCW 42.17.310(1)(i))
 Work product (RCW 42.17.310(1)(j))
 Attorney-client privilege
 Commercial purposes
 Certain employment records
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PUBLIC DISCLOSURE EXEMPTIONS, cont.
 If an exemption applies, an attempt should
be made to label documents accordingly
– quality improvement (RCW4.24.250
and 70.41.200)
– attorney-client communication/
attorney work product
– draft/deliberative process
 Limit who has access within the facility
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OPEN PUBLIC MEETINGS ACT
 Meetings open and public unless executive
session permitted
 Executive session (RCW 42.30.110)
– negotiations of publicly bid contracts
– real estate
– national security
– complaints against public officers/employees
– qualifications of or review public employee/
elective office
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OPEN PUBLIC MEETINGS ACT, cont.
 Executive session (RCW 42.30.110)
– discuss claims with legal counsel
• existing or reasonably expected litigation
• litigation or legal risks expected to result in
adverse legal or financial consequences
• presence of legal counsel alone does not
justify executive session
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OPEN PUBLIC MEETINGS ACT, cont.
 Executive session (RCW 70.44.062(2))
– QI/peer review committee documents and
discussions
 Final action must be in open meeting
 Matters disclosed in open meeting lose
privilege and confidentiality
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QUALITY IMPROVEMENT/PEER REVIEW PRIVILEGE
 Relatively broad scope
– peer review, risk management,
credentialing, complaints relating to
health care
(RCW 70.41.200, RCW 4.24.250)
 If not a hospital, consider a coordinated
quality improvement program
(RCW 43.70.510)
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QUALITY IMPROVEMENT/PEER REVIEW PRIVILEGE, cont.
 Important to have plan and policies that identify
– QI/peer review committees and responsibilities
– committees that obtain/maintain documents on
behalf of peer review/QI committee
– documents collected and maintained on behalf
of peer review/QI committees (complaints,
medical staff credentials information, etc.)
 Exempt from disclosure
 Appropriate for executive session
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CORPORATE COMPLIANCE DOCUMENTS
 Corporate compliance documents
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hotline complaints?
routine audits?
audits that arise from complaint?
issues found during an audit?
 Exemptions?
– attorney work product/attorney-client
communication (rendering legal advice is at
core of both)
– quality improvement
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MEDICAL MALPRACTICE REFORM (EFFECTIVE June 1, 2006)
 Provider statements made within 30 days of
discovery of incident not admissible at trial
– promise to pay or write off hospital bills
– related to discomfort pain, suffering, injury
or death
– apology, fault or sympathy
– remedial actions regarding conduct
 Consider policy providing guidance to
medical staff and employees regarding such
statements
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MEDICAL MALPRACTICE REFORM, cont.
 Requires any drug orders or
prescriptions to be hand printed, typed
or electronic
 Voluntary arbitration
 Mandatory mediation
 Expands immunity for reporting
unprofessional conduct
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ADVERSE EVENT REPORTING
 Expands reportable events to 27 in
the following categories:
– surgical
– environmental
– patient protection
– care management
– product or device
– criminal
List of reportable events attached
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ADVERSE EVENT REPORTING, cont.
 Requires DOH notification within two days of
event confirmation
 Within 45 days after confirming event, hospital
must:
– conduct a root cause analysis
– develop an action plan for implementing
any necessary changes
 DOH will develop rules to implement
 PHD should update policies
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PATIENT FINANCIAL AGREEMENT
 Class actions
– charity care
– outpatient billing
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PATIENT FINANCIAL AGREEMENT
 Consider revising financial agreements to
inform patient that
– hospital rates are set forth in hospital’s
chargemaster and available for review
– hospital charges may differ from
amounts others are obligated to pay
based on each person’s private insurance,
Medicare/ Medicaid coverage or lack of
coverage
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PATIENT FINANCIAL AGREEMENT, cont.
– the hospital has a charity care program
and patient may request that information
– patient may incur liability to the hospital
for outpatient services that patient would
not incur if services were provided in a
physician office rather than hospital-based
facility
– estimate of such additional liability will be
provided and actual liability will depend
on the services rendered
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HOSPITAL BILLS
ESSB 6189
 New section to RCW 70.41
 Before discharge a hospital must furnish each
patient receiving inpatient services with
•name of physician groups or other
professional partners who commonly
provide care in the hospital and from
whom patient may receive a bill
•provider telephone number for questions
regarding bills
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CHARITY CARE
 SSHB 2574 proposed to increase charity
care level and address billing practices
– was not adopted
 Hospital association is drafting policy to
address most items in SSHB 2574
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CHARITY CARE, cont.
 Draft policy:
– written notification of availability of
charity care
– written policies regarding collection
practices and annual summary to board
of collection actions
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CHARITY CARE, cont.
 Charity care provided:
– 100% of federal poverty guidelines
(FPG) receive free care
– 200% of FPG pay up to 100% of
estimated cost of care
– 300% of FPG pay up to 130% of
estimated cost of care
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DEFICIT REDUCTION ACT
Facilities that receive over $5 million in
Medicaid payments must:
 establish written policies for employees with
detailed information about
– federal False Claims Act
– administrative remedies for false statements
under federal law
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DEFICIT REDUCTION ACT, cont.
– applicable state laws establishing civil or
criminal penalties for fraud
– whistleblower protections
– the role of federal and state laws in
preventing and detecting fraud, waste and
abuse
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DEFICIT REDUCTION ACT, cont.
 Include in such policies detailed provisions
about the entity’s own policies and procedures
for detecting and preventing fraud, waste and
abuse
 Include in employee handbook specific
information on applicable laws, rights of
employees to be protected as whistleblowers,
and the entity’s policies and procedures for
detecting and preventing fraud, waste and
abuse
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DEFICIT REDUCTION ACT, cont.
 If fail to implement will lose Medicaid
payments
 Increases focus on Medicaid fraud
 Increases documentation requirements
for aliens seeking Medicaid coverage
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MEDICAL STAFF
Quality patient care is paramount, followed
closely by fairness and process
 Poliner $366 million verdict for 60-day
summary suspension of cardiac cath lab
privileges
 Lessons
–diligently follow own processes and procedures
–try to keep competitors out of the process
–be fair to the practitioner under review
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MEDICAL STAFF, cont.
 Responding to requests for information
– Washington hospitals have duty to
respond (RCW 70.41.230)
 Kadlec Medical Center v. Lakeview Medical
Center LLC Anesthesia Associates, E.D. La.
– received a detailed request for information
– responded only with employment dates
and staff appointment, stated nothing
more would be provided due to large
number of requests
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MEDICAL STAFF, cont.
– did not inform Kadlec about serious
allegations of misconduct
(diversion of drugs)
– Lakeview omitted the information
based on fear of suit by physician
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MEDICAL STAFF, cont.
Recommendations
 Respond to requests for
– dates of association, type of association,
clinical privileges held
– reasons for termination of association
– adverse actions and proposed adverse
actions and basis for the actions or
proposed actions
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MEDICAL STAFF, cont.
 Questionable but likely
- current investigation, but no proposed adverse
action
 No duty to
- respond to hypothetical questions
- provide opinions about abilities
- but if choose to, make sure you have a good
release
 Communications should be peer review/QI
committee to peer review/QI committee
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PRIVACY COMPLAINTS
 Patients have the right under HIPAA to file
complaint with OCR
 To minimize sanctions, investigate complaints
or issues that PHD becomes aware of
– Violation?
– Revise policy/remedial actions?
– Sanctions for staff involved?
– Mitigation of damages?
 Document
 No duty to self-report
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MEDICARE PROVIDER ENROLLMENT
 Final rule published April 21, 2006
 Amends 42 CFR Part 424
– providers must complete CMS 855
enrollment application and resubmit same
every five years
– resubmit within 90 days of notice from
CMS
– notify CMS of changes within 90 days of
change (i.e., board, managing employees)
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MEDICARE PROVIDER ENROLLMENT, cont.
– 855 contains certification regarding
compliance with all Medicare laws
– failure to submit may result in termination
of agreement
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NATIONAL PATIENT SAFETY AND QUALITY ACT OF 2005
National Peer Review Protection?
 Patient safety organizations to which providers
can voluntarily report patient safety work
product (medical errors and patient safety
information)
 PSO to analyze and provide feedback
 Patient safety work product is privileged and
confidential
 Requires HHS adopt implementing regulations
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FEDERAL AUDITS OF DSHS
 Overpayments discovered
– DSH payments ($44 million in excess
of hospital specific limits)
– undocumented aliens ($75 million?)
 DSHS to negotiate with HHS
 If DSHS must refund money, it may seek
overpayments from hospitals
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Questions?
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CONTACT INFORMATION
James J. Fredman, III
Telephone: 206-447-2909
Email: [email protected]
Foster Pepper PLLC
1111 Third Avenue, Suite 3400
Seattle, WA 98101
www.foster.com
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