New Jersey - Volume XIII, Number 6 - June, 2004

OIG ISSUES DRAFT SUPPLEMENTAL COMPLIANCE PROGRAM GUIDANCE HIGHLIGHTING RELATIONSHIPS BETWEEN PHYSICIANS AND HOSPITALS The U.S. Department of Health & Human Services’ Office of Inspector General (OIG) has issued a draft supplemental compliance program guidance for hospitals. The draft includes a discussion of “current enforcement priorities” and identifies as risk areas undocumented compensation arrangements with referring physicians. The OIG notes “numerous instances in which hospitals failed to maintain signed written agreements” to reflect rental and personal services arrangements with referring physicians. It also emphasizes the need to document fair market value compensation paid to physicians, and to track the total value of non-monetary compensation provided annually to each referring physician, the value of medical staff incidental benefits and the provision of professional courtesies. The OIG also takes the position on medical staff credentialing that a hospital conditioning privileges on a particular number of referrals, or requiring the performance of a particular number of procedures, beyond volumes necessary to ensure clinical proficiency, potentially raises substantial risks under the anti-kickback statute. By contrast, a credentialing policy that categorically refuses privileges to physicians with significant conflicts of interest “would not appear to implicate the statute in most situations.”

CMS ISSUES NEW EMTALA INTERPRETIVE GUIDELINES FOR PHYSICIAN ON-CALL REQUIREMENTS The Centers for Medicare & Medicaid Services (CMS) has issued new interpretive guidelines for compliance with the new Emergency Medical Treatment and Active Labor Act (EMTALA) rules. The guidelines focus attention on physician on-call requirements and provide that: 1) with few exceptions, physicians may not require that patients come to their private office for a medical screening exam; 2) when an on-call physician directs a non-physician practitioner to present to the emergency room, the on-call physician is ultimately responsible for the patient; 3) telemedicine for screening and stabilizing treatment is appropriate only in non-urban areas; and 4) hospitals cannot allow on-call physicians to selectively take call based on whether the patient has an existing treatment relationship with that doctor or another medical staff member.

HHS RESPONDS RE OFFSHORE HIPAA BUSINESS ASSOCIATES Tommy Thompson, Secretary of the U.S. Department of Health & Human Services (HHS), has issued a letter about the protection of protected health information (PHI) disclosed to off-shore contractors utilized by health care providers who are Covered Entities under HIPAA. The Secretary confirmed that there is no private right of action under HIPAA for a U.S. citizen whose privacy has been violated by an offshore entity or person who obtained access to PHI as the business associate of a Covered Entity (but other state or federal laws may provide such a remedy). However complaints can be made to HHS by those who believe their own, or another person’s, privacy rights have been violated by a Covered Entity. The debate will continue as legislation is pending in Congress which would allow patients to object to offshoring of their private data.

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