NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY, INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
FEBRUARY, 2010 - Volume 1, Issue 2 |
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| In This Issue |
Health Information Technology for Economic and Clinical Health Act (HITECH)
Where Do Those Rules Come From Anyway?
For Your Information - Q & A
What To Do Before Declaring Medicare "Bad Debt" | |
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Health Information Technology for Economic and Clinical Health Act (HITECH) |
On April 17, 2009, the Department of Health and Human Services (HHS) released guidance to health care providers and their business associates (who are now considered covered entities similar to health care providers) about the technologies and methodologies for rending protected health information (PHI) secure. The HHS guidance determines when new data breach notification rules, as required by the Health Information Technology for Economic and Clinical Health Act (HITECH Act) require the health care provider and business associate to provide notification of the breach of security of "unsecured protected health information."
A breach of unsecured PHI occurs when there is an "unauthorized acquisition, access, use or disclosure of PHI which compromises the security or privacy of that information, except where the unauthorized person to whom the information was disclosed would not reasonably have been able to retain such information." Exceptions to the "breach" definition include where the "breach" was unintentional and made by an employee or individual authorized by the covered entity or business associate to have access to PHI and made in good faith and within the scope of employment; and where the "breach" was inadvertently disclosed by an individual who is authorized to access PHI at a facility operated by a covered entity to another similarly situated individual at the same facility.
If a breach of unsecured PHI does occur, the covered entity must notify each individual whose PHI has been or was reasonably believed to have been accessed, acquired or disclosed within 60 days after discover of the breach. Covered entities are not required to give this notification if they follow HHS guidance standards for technologies and methodologies acceptable to render PHI unusable, unreadable or indecipherable to unauthorized persons (e.g.; encryption and destruction to secure electronic PHI from unauthorized access and use)
On April 20, 2009, the Federal Trade Commission (FTC) published a proposed rule, as required under the HITECH Act, regarding data breach regulations for HIPAA business associates and other entities dealing with personal health records (PHR). The proposed rule would require vendors of PHR and related entities to provide notice to consumers and the FTC when the security of their electronic health information is breached. The proposed rule outlines requirements governing the standard for what triggers the notice as well as the timing, method and content of the notice.
Recommended next steps: review and revise HIPAA Privacy and Data Security Policies and Procedures, including but not limited to revising business associate agreements. |
| Where Do Those Rules Come From Anyway? |
Physical therapists are obligated to follow certain laws, rules and regulations to practice in a safe and compliant manner. There is a specific process that leads to rule making. First, where does a rule come from?
It all begins with legislation that is voted on by the Assembly and Senate and signed by the Governor. This bill then becomes a Statute when it is ratified by the Governor. The licensing Boards are then responsible for promulgating regulations to explain the requirements of the Bill more specifically.
The Division of Administrative Rules, within the Office of Administrative Law, reviews all State Executive Branch Rule making notices for compliance within the Administrative Procedure. These notices are then processed by the Division for publication in the New Jersey Registrar twice a month. Following adoption in the New Jersey Registrar, the rules are incorporated into the New Jersey Administrative Code.
Rule making can be instituted in more than one way. The most common way is that the Board of Physical Therapy would propose a regulation that more specifically delineates the language in the statute. Another method would be that an individual may petition the Board for rule making and there are specific criteria to meet when carrying out this process. The purpose of this is so that the public can be heard and can push the specific Board to adopt a rule that may affect all physical therapists.
After a rule is proposed, it is published in the New Jersey Registrar and there is a specific publication schedule. There will be an adoption deadline and there will be a comment period, between 30-60 days, for the public to comment on those regulations. The regulations are then voted on by that particular Board and if adopted an adoption notice will be submitted to the Office of Administrative Law.
It is extremely important that physical therapists, comment on any rule proposals that affect physical therapy. Through this process, the Boards are able to hear exactly what their licensees are thinking and what they feel is important. For further information, go to http://www.state.nj.us/oal/rules.html. This website will give you all the specific information regarding the rule making process and also provides a good list of definitions that are commonly used when discussing rule making. Some of the definitions that are important to know are:
Adopt - means the action whereby a rule is officially approved and authorized for promulgation by an adoption agency.
Promulgate - means to proclaim in the Registrar and thereby render effective a new rule, amendment or repeal that which was duly adopted by an agency and filed with the Office of Administrative Law.
Proposed - means the action whereby an adoption agency submits a notice of proposed rule to the Office of Administrative Law for filing and publication by the Director.
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| For Your Information - Q & A |
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Question:
Can a PTA treat in a clinic without a supervising PT on site?
Response:
As per the NJ Administrative Code; only in the specific circumstances described below. Keep in mind that this response only applies to the legality of the question, not reimbursement. There are payers, specifically Medicare, with payment rules regarding supervision of PTAs.
Reference:
N.J.A.C. 13:39A-7.1 Supervision requirement; licensed physical therapist assistant
(e) In an emergency situation which causes the unanticipated absence of the supervising licensed physical therapist, a licensed physical therapist assistant may continue to render services to only those patients for which the licensed physical therapist assistant has previously participated in the intervention for established plans of care not to exceed the regularly scheduled operational hours of that particular day.
(f)Every effort shall be made by the licensed physical therapist and/or the licensed physical therapist assistant to obtain direct supervision in the care described in (e) above.
Question: I was just looking at the website of a local PT practice, and I noticed that it does not list the names of any of the PTs in the practice, or any of the owners. Is this permissible?
Response:
No, it is not. The NJ Administrative Code specifically addresses the need to list the name the owner or officers of such a practice/entity, and the licenses held by them.
Reference:
N.J.A.C. 13:39A-8.6 Advertising by a business entity offering physical therapy services
A licensee who uses or participates in the use of any form of public communication relating to a business entity offering physical therapy services shall include in that communication the name of the person holding an ownership interest in the advertising entity and the professional license held by that person. If the entity is owned by more than four persons, the notice need only include the names of officers in that entity and the licenses they hold.
Question:
I just totaled up my CE credits and I seem to be 30 minutes short of the NJ-required 30 hours. Does this mean I have to find a course that is 30 minutes or an hour long in order to meet the requirement? If so, it will be pretty hard to find such a course. Can you please clarify?
Response:
Keep in mind that you are not required to acquire all of your continuing education (CE) via live and/or in-person courses. As you see below, up to 10 of the required 30 hours can be acquired through other means and/or media, including journals and web-based courses. Just keep in mind that some of these sources, if not pre-approved by the NJ Board of Physical Therapy Examiners, could be rejected by the board if you were audited for compliance with the CE regulation.
One such source that would be unlikely to be rejected by the Board is the Center for Medicare and Medicaid Services, as well as Medicare contractors. Contractors such as Highmark often provide education at no charge, and you could certainly track your attendance at such courses. In addition, the Medicare Learning Network (MLN) produces materials regarding the Medicare program that would also likely fulfill these requirements. In fact, there was information released by MLN just yesterday on this topic. Again, it is unlikely that the NJBPTE would reject such a source upon an audit.
See the following: Reference: N.J.A.C. 13:39A-9.3 Acceptable course offerings; credit hour calculation(c) The Board shall grant a maximum of 10 of the mandatory 30 continuing education credits required in a biennial renewal period of licensed physical therapists and licensed physical therapist assistants from any or all of the following: 1. Successful completion of videotape, audiotape, computer media, Internet, journal, or correspondence courses, programs or seminars: a maximum of two credits per course, program or seminar. The course, program or seminar shall include an examination at its end. Credit for correspondence and other individual study courses or programs shall be provided only in the renewal period in which the course is completed with a successful final examination.
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| What To Do Before Declaring Medicare "Bad Debt" |
A healthcare provider must make reasonable efforts to collect Medicare copayments before labeling the copayments "bad debt" and, where appropriate, submitting "bad debt" for reimbursement to the government. A hasty approach to labeling copayments "bad debt" may also run afoul of anti-kickback regulations as enticements to a referring physician, for example, to refer patients to a particular healthcare provider whom the physician knows will not pursue her patients for Medicare co-payments.
Before Medicare copayments may be labeled "bad debt," the provider must show that it made reasonable efforts to collect the moneys owed, that the debt was uncollectible when the provider deemed it as worthless, and that there was no likelihood of future recovery.
The provider should have in place and adhere to a written policy and procedure that details the proper and full procedure for collecting Medicare copayments. (Reminder - Medicare patients are to be treated exactly the same as private pay patients.) The policy should detail exactly when a debt is deemed uncollectible. That, along with documented actual collection efforts, should counter the government allegation that the debt was never really determined to be uncollectible and there are unlawful reasons, (e.g., kickbacks to referral sources) for the lack of effort at collecting the "bad debt." Consult your Centers for Medicare and Medicaid Services for specific time periods regarding bad debt. Keeping a bad debt log can also be helpful in proving that a full effort was made to collect outstanding debts.
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Mailly, Inglett & Barmak, LLC | |
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Ken Mailly, PT, NJ Lic. # NJ40QAOO335900
Ken is a graduate of the State University of New York at Downstate Medical Center, and is completing his Master's in Public Administration at Seton Hall University, with a concentration in Health Care Policy and Management. He is also certified as an Ergonomic Specialist.
In addition to his graduate studies, with well over 2,500 hours of continuing physical therapy education, Ken has amassed an extremely diverse and extensive knowledge of the clinical practice of physical therapy, rehabilitation, and practice management. Ken's primary clinical focus is in orthopedics, chronic soft tissue disorders, and management of patients with bleeding disorders.
Along with this clinical knowledge base, Ken has devoted the last 10 years to the study of regulation, legislation, and reimbursement for physical therapy & rehabilitation services. He has served as an expert witness, on behalf of both plaintiffs and defendants, in numerous malpractice cases. He has also been consulted on state, federal, and third party payer inquiries regarding physical therapy and rehabilitation billing, regulatory, and legal issues.
Ken is a partner in Mailly & Inglett Consulting. His focus is on compliance with professional standards, state and federal regulations, as well as practice management strategies.
Barry G. Inglett, PT, CHT, Cert. MDT, NJ Lic # NJ40QA00146200
Barry is a graduate of Columbia University, a Certified Hand Therapist and a Credentialed McKenzie Therapist. He is a physical therapist and co-owner of Wayne Physical Therapy & Spine Center, a private practice established in 1977. Barry is also a partner in Mailly & Inglett Consulting, working with both physical therapists and Payers.
Barry is a guest lecturer for UMDNJ's Physical Therapy Program as well as a clinical instructor for several colleges including Columbia University, New York University, Temple University, Stockton State College, Kean College and the University of Medicine and Dentistry's Physical Therapy Program. He is also an instructor for HMW (Human Mechanical Wellness) Seminars, specializing in mechanically oriented treatment programs for the spine and extremities.
Barry has been retained by numerous insurance companies as well as the New Jersey Attorney General's Office offering expert witness testimony in physical therapy practice. He has been involved in utilization review and reimbursement issues in physical therapy for over 20 years. Barry also instituted, and was retained as the lead expert, in the largest PT fraud case in NJ history (Cobo v. MTF). He also served as a physical therapy consultant from 1997-2005 for Horizon Healthcare running the NJ Plus pre-certification program. Barry has served on the New Jersey Board of Physical Therapy for the past eight years and has also served as the Chairman of the Board of Physical Therapy.
David S. Barmak, Esq.
David S. Barmak, Esq. received a JD from Cornell University and a BA from Duke University. The Law Offices Of David S. Barmak, LLC was established in 1984. David is licensed to practice law and has clients in the states of New York, New Jersey, Pennsylvania and Connecticut.
David's legal focus is in the areas of corporate compliance, risk management, human resources and operational legal affairs.
David has a strong background in operations, having served as both the Associate Administrator and General Counsel for a large New York Certified Home Health Agency, initiating and directing a New York Licensed Home Care Services Agency as well as owning and operating a Durable Medical Equipment company. David also provides defense of enterprises, directors, officers and other professionals accused of misconduct.
For more information, please contact us:
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| © Copyright, 2010. Mailly, Inglett & Barmak, LLC. All rights reserved. No portion of these materials may be reproduced by any means without the advance permission of the author. | |
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