DECEMBER 4, 2017
Idaho’s HAI Program is using the last of the supplemental Ebola funding to ramp up efforts on improving infection control and establishing a baseline of the infection control needs in Idaho’s healthcare facilities.
These assessments are not regulatory in any way. We offer support and resources to help facilities identify gaps in their infection control program; the CDC template that we use creates a report summarizing any opportunities for improvement. In addition, we document and share the strengths of a facility’s infection control program. Since this is a CDC initiative, there is no cost to the facility. Please visit the CDCs website for more information: https://www.cdc.gov/hai/prevent/infection-control-assessment-tools.html.
Click here for an offer of help related to infection control activities. If you are interested please contact:
Susan Heppler, RN
Healthcare Associated Infections (HAI) Program Manager
Bureau of Communicable Disease Prevention
450 W. State Street, 4th Floor | Boise, ID 83720
(P): 208-334-5871 | (F): 208-332-7307
NOVEMBER 8, 2017
Non-Physicians Owning or Investing in Medical Practices in Idaho
The Idaho Board of Medicine’s recent disavowal of the corporate practice of medicine doctrine has made it easier for corporations and non-physician individuals to invest in or own medical practices in Idaho.
The Corporate Practice of Medicine. For decades, the Idaho Board of Medicine took the position that, with limited exceptions, the Idaho Medical Practice Act “prohibits unlicensed corporations and entities from hiring physicians as employees to provide medical services to patients.” (Memo from J. Uranga to Idaho State Bd. of Medicine dated 2/26/07). This “corporate practice of medicine” doctrine (“CPOM”) had its foundation in a 1952 Idaho Supreme Court case which held that:
[n]o unlicensed person or entity may engage in the practice of the medical profession though licensed employees; nor may a licensed physician practice as an employee of an unlicensed person or entity. Such practices are contrary to public policy.
NOVEMBER 7, 2017
Safe Harbor for Data Security:
New York’s Proposed Changes Could Be Followed by Other States
New York Attorney General Eric Schneiderman has endorsed the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)–an amendment to the state’s data security statute that includes a safe-harbor provision insulating companies that obtain a data security certification from litigation by the state.
The legislation, introduced last week in the New York State Assembly, would require any company that handles a New York resident’s private data to put in place certain administrative, technical, and physical safeguards. The administrative safeguards include:
- designating employees to coordinate a security program
- identifying internal and external risks
- assessing the sufficiency of safeguards to control risks
- training employees in security practices
- selecting capable service providers
The technical safeguards include:
- assessing risks in software and network design
- assessing risks in information processing, transmission, and storage
- detecting, preventing, and responding to incidents
- testing and monitoring systems, controls, and procedures
The physical safeguards include:
- assessing risks of information storage and disposal
- detecting, preventing, and responding to intrusions
- protecting against unauthorized access or use of private information
- reasonably disposing of private information after it is no longer needed
THURSDAY, OCTOBER 12, 2017 | 12:00 – 1:00 PM MT
Managing Leaves under the ADA, FMLA, and Workers’ Compensation
Presented by: Mark Wiletsky
Employers face many compliance issues when it comes to managing employee leaves and accommodations. The healthcare industry is no exception. The EEOC’s recent guidance on employer-provided ADA leave as an accommodation and its position with respect to leaves of absence have made these decisions even more difficult for HR professionals, leave and accommodations managers, compliance officers, and business leaders.
Learn how to avoid costly mistakes on leave and accommodation decisions. Join Holland & Hart employment attorney Mark Wiletsky to learn practical tips on:
- Limiting FMLA abuse
- Disability accommodations and the interactive process
- Effect of medical marijuana use on leaves and disability accommodations
- When FMLA ends and ADA leave begins
Please contact Susan Westberry at email@example.com or 303.295.8273
THURSDAY, OCTOBER 26, 2017 | 12:00 – 1:00 PM MT
Antitrust and the Healthcare Industry
Presented by: Cory Talbot
Join us for a discussion of the basics of how antitrust law works in healthcare.
We’ll discuss ways to lower risks of antitrust violations in a number of contexts, including the following:
- Joint contracting among physician groups
- Joining with other providers to negotiate payer rates
- Agreeing with other physicians to boycott a payer
- Sharing price information
- Sharing pay information
Please contact Susan Westberry at firstname.lastname@example.org or 303.295.8273
THURSDAY, SEPTEMBER 28, 2017 | 12:00 – 1:00 PM MT
Negotiating Healthy EHR and Healthcare IT Contracts: It’s Not Just HIPAA
Presented by: Rich Spilde
IT, EHR, software and other technology are complex. In addition to concerns about privacy and security, critical records and information must be available at the time you need it which requires careful crafting of responsibilities and performance standards for both the healthcare provider and the technology vendor. How do you strike the right balance of risks, successfully implement a solution, and establish a productive relationship with your technology provider?
In this webinar, we will address:
- Key risks and issues in EHR and Healthcare IT contracts, including issues associated with exiting existing EHR contracts;
- Practical advice regarding internal and external diligence, vendor selection, negotiation, and implementation process; and
- Who do you need on your team to make it all work?
Please contact Susan Westberry at email@example.com or 303.295.8273
SEPTEMBER 26, 2017
Police, Providers, Patients and HIPAA
Recent cases have highlighted the conflict that may occur when police seek access to patients or patient information. Here are some general guidelines for physicians and other healthcare providers when facing demands from police or other law enforcement officials.
Disclosing Patient Information. The HIPAA privacy rules (45 CFR § 164.501 et seq.) generally prohibit healthcare providers from disclosing protected health information to law enforcement officials without the patient’s written authorization unless certain conditions are met. HIPAA allows disclosures for law enforcement purposes in the following cases:
Court Order, Warrant, Subpoena, or Administrative Process. A provider may disclose information in response to a court order, warrant, subpoena or other administrative process if certain conditions are satisfied. (45 CFR § 164.512(f)(1)(ii)). These situations are discussed more fully in our separate client alert here.
The Centers for Medicare & Medicaid Services (CMS) released the 2018 proposed payment rule for ASCs and hospital outpatient departments (HOPDs) today. You can download a copy on ASCA’s web site.
Admitting Privileges in Hospitals: New Idaho Law
By Kim Stanger
A new Idaho statute confirms that physician assistants and advanced practice nurses may admit patients to hospitals and other healthcare facilities if allowed by the facility’s bylaws.
Background. Historically, admitting privileges were usually reserved to physicians; however, such a limitation (whether real or imagined) seems to have become somewhat outdated given the expanding role of physician assistants and advanced practice nurses, whose licensure allows them to perform services traditionally performed by physicians. Many hospitals increasingly rely on midlevel practitioners to care for patients, especially in rural areas where physicians are in short supply or decline to participate in call coverage. The new statute resolves regulatory ambiguity concerning the authority of midlevels to admit patients.
The New Law. Effective July, 1, 2017, Idaho Code § 39-1396 provides:
- A hospital or facility may grant to physicians, physician assistants and advanced practice nurses the privilege to admit patients to such hospital or facility; provided however, that admitting privileges may be granted only if the privileges are:
- Recommended by the medical staff at the hospital or facility;
- Approved by the governing board of the hospital or facility; and
- Within the scope of practice conferred by the license of the physician, physician assistant or advanced practice nurse.
- A hospital or facility shall specify in its bylaws the process by which its governing body and medical staff oversee those practitioners granted admitting privileges. Such oversight shall include, but is not limited to, credentialing and competency review.
The new statute is consistent with I.C. § 39-1395, which contemplates that podiatrists may admit patients. It is also consistent with Medicare conditions of participation, which generally allow midlevel practitioners to admit patients to the extent allowed by applicable state law. See, e.g., 42 CFR §§ 482.12(c) and 485.631(b)-(c).
Physician Oversight. Although I.C. § 39-1396 will allow midlevels to admit patients, hospital licensing regulations still require that hospital bylaws “specify that every patient be under the care of a physician licensed by the Idaho State Board of Medicine.” IDAPA 16.03.14.200.01.h.; see also I.C. § 39-1395 (“A member of the medical staff licensed pursuant to chapter 18, title 54, Idaho Code, shall have responsibility for the overall medical care of the patient while in the hospital.”). According to the Idaho Bureau of Facility Standards, this means that there must be evidence that a physician was involved with the patient’s care during their hospital stay. This may create problems for small or rural facilities that often staff their emergency department or other services with midlevel practitioners. It is not entirely clear how involved the physician must be in such services to satisfy Bureau surveyors.
The Idaho regulation that requires physician involvement does not distinguish between inpatient and outpatient services; however, the regulation governing hospital outpatient services only requires that “the outpatient service shall be under the overall medical direction of a physician whose authority and responsibilities are defined in writing and approved by the governing body.” IDAPA 16.03.14.460.01. This suggests that a physician need only provide oversight of the outpatient service line, not necessarily the particular episode of outpatient care. A contrary interpretation would impose unreasonable burdens on outpatient departments that are commonly staffed by midlevel providers.
The Medicare conditions of participation (“CoPs”) for hospitals and critical access hospitals (“CAHs”) also impose physician oversight requirements, but they appear to be less stringent than the Idaho licensing standard: they do not require direct physician involvement in all inpatient cases. For example, the hospital CoPs require that:
- Every Medicare patient is under the care of:
- A doctor of medicine or osteopathy (This provision is not to be construed to limit the authority of a doctor of medicine or osteopathy to delegate tasks to other qualified health care personnel to the extent recognized under State law or a State’s regulatory mechanism.);
- A doctor of dental surgery or dental medicine who is legally authorized to practice dentistry by the State and who is acting within the scope of his or her license;
- A doctor of podiatric medicine, but only with respect to functions which he or she is legally authorized by the State to perform;
- A doctor of optometry who is legally authorized to practice optometry by the State in which he or she practices;
- A chiropractor who is licensed by the State or legally authorized to perform the services of a chiropractor, but only with respect to treatment by means of manual manipulation of the spine to correct a subluxation demonstrated by x-ray to exist; and
- A clinical psychologist as defined in §410.71 of this chapter, but only with respect to clinical psychologist services as defined in §410.71 of this chapter and only to the extent permitted by State law.
- … If a Medicare patient is admitted by a practitioner not specified in paragraph (c)(1) [set forth above], that patient is under the care of a doctor of medicine or osteopathy.
42 CFR § 482.12(c). Thus, the hospital CoPs identify certain non-physician providers who may admit and care for patients without direct physician involvement. However, even in those cases, a physician is required if a situation develops that is outside the non-physician’s scope of practice:
A doctor of medicine or osteopathy is responsible for the care of each Medicare patient with respect to any medical or psychiatric problem that—
- is present on admission or develops during hospitalization; and
- is not specifically within the scope of practice of a doctor of dental surgery, dental medicine, podiatric medicine, or optometry; a chiropractor; or clinical psychologist, as that scope is—
- Defined by the medical staff;
- Permitted by State law; and
- Limited, under paragraph (c)(1)(v) of this section, with respect to chiropractors.
Id. at 482.12(c)(4).
In recognition of staffing challenges faced by CAHs, the CAH CoPs appear to require even less direct physician supervision:
(1) The doctor of medicine or osteopathy—
(i) Provides medical direction for the CAH’s health care activities and consultation for, and medical supervision of, the health care staff;…
(iii) In conjunction with the physician assistant and/or nurse practitioner members, periodically reviews the CAH’s patient records, provides medical orders, and provides medical care services to the patients of the CAH; and
(iv) Periodically reviews and signs the records of all inpatients cared for by nurse practitioners, clinical nurse specialists, certified nurse midwives, or physician assistants.
(v) Periodically reviews and signs a sample of outpatient records of patients cared for by nurse practitioners, clinical nurse specialists, certified nurse midwives, or physician assistants only to the extent required under State law where State law requires record reviews or co-signatures, or both, by a collaborating physician.
(2) A doctor of medicine or osteopathy is present for sufficient periods of time to provide medical direction, consultation, and supervision for the services provided in the CAH, and is available through direct radio or telephone communication or electronic communication for consultation, assistance with medical emergencies, or patient referral.
(c) Standard: Physician assistant, nurse practitioner, and clinical nurse specialist responsibilities. (1) The physician assistant, the nurse practitioner, or clinical nurse specialist members of the CAH’s staff—
(2) The physician assistant, nurse practitioner, or clinical nurse specialist performs the following functions to the extent they are not being performed by a doctor of medicine or osteopathy … [p]rovides services in accordance with the CAH’s policies.
42 CFR § 485.631(c). In addition:
Whenever a patient is admitted to the CAH by a nurse practitioner, physician assistant, or clinical nurse specialist, a doctor of medicine or osteopathy on the staff of the CAH is notified of the admission.
Id. at §485.631(c)(3). The relevant CMS Interpretive Guidelines state,
The CAH regulations do permit licensed mid-level practitioners, as allowed by the State, to admit patients to a CAH. However, CMS regulations do require that Medicare and Medicaid patients be under the care of an MD/DO if admitted by a mid-level practitioner and the patient has any medical or psychiatric problem that is present on admission or develops during hospitalization that is outside the scope of practice of the admitting practitioner. Evidence of being under the care of an MD/DO must be in the patient’s medical record.
State Operations Manual, Appendix W—Interpretive Guidelines for Critical Access Hospitals (Rev’d 12-16-16). Thus, the CAH CoPs appear to only require direct physician involvement if the care required is outside the scope of the admitting midlevel’s scope of practice.
Other Practitioners. The new Idaho statute, § 39-1396, only references physicians, physician assistants and advanced practice nurses; it is not clear whether it prohibits granting admitting privileges to other practitioners, but I suspect that was not the intent. For example, I.C. § 39-1395 contemplates that podiatrists may admit patients. Allowing other appropriately licensed practitioners to admit patients would also be consistent with the Medicare CoPs cited above. Nevertheless, this issue may need to be clarified in the future.
Medical Staff Approval. By its express terms, § 39-1396 allows the hospital to expand admitting privileges to midlevels, but “only if the privileges are … [r]ecommended by the medical staff at the hospital or facility…” I.C. § 39-1396(1)(c). Read literally, this may allow a medical staff (which may want to protect its own turf) to derail the expansion of admitting privileges by declining to recommend such to the governing body. It remains to be seen whether the statute would be interpreted or applied in this manner.
Conclusion. Although imperfect, new § 39-1396 will help hospitals and facilities that want to extend admitting privileges to midlevels. In the wake of the new statute, Idaho hospitals and other healthcare facilities should:
- Review or amend their bylaws to identify those types of clinicians who may be granted admitting privileges, e.g., physicians, physician assistants, and/or advanced practice nurses. Hospitals may deny admitting privileges to midlevels if they so choose.
- Ensure the bylaws establish a process for credentialing and peer review of clinicians with admitting privileges consistent with statutory requirements.
- If a particular clinician seeks admitting privileges, ensure that such privileges are recommended by the medical staff and granted by the governing body.
- Regardless of who admits the patient, ensure that appropriate physician oversight is provided as required to comply with Idaho licensing regulations and Medicare CoPs.
The “physician oversight” requirements in Idaho regulations limit the scope and utility of the new law. Hospitals and other healthcare providers seeking to allow midlevels to practice to the scope of their licensure and reduce the burden on physicians may want to seek modification of the Idaho regulation requiring physician oversight.
For questions regarding this update, please contact:
Kim C. Stanger
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email: firstname.lastname@example.org, phone: 208-383-3913
This news update is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This news update is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.