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HOT TOPICS FOR PUBLIC HOSPITAL DISTRICTS

By Jim FredmanMay 4, 2006

Association of Washington Public Hospital DistrictsRetreat for CEOs and Administrators

“Leading Wisely, Living Well”

Cave B Inn at SageCliffe,Quincy, Washington

May 2-4, 2006

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ACTION ITEMS

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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Medicare enrollment

State Medicaid audits

Patient Safety and Quality ImprovementAct of 2005

ISSUES TO WATCH

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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”

Exemptions reorganized into categories such as “health care” as RCW 42.56.360

Conversion chart attached

RECODIFICATION OF THE PUBLIC RECORDS ACT

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PUBLIC RECORDS ACT – 2005 AMENDMENTS (2SHB 1758)

1. Eliminates “overbroad” exemption2. Requires large requests be filled on

an installment basis3. Allows agencies to require deposit if

copies are requested4. 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

– “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– 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, IIITelephone: 206-447-2909Email: Fredj@Foster.com

Foster Pepper PLLC1111 Third Avenue, Suite 3400Seattle, WA 98101www.foster.com