Health Care Compliance Watch : New York Health Care Compliance Lawyer & Attorney : Ilana Sable : NY Physician Representation Law

When hiring a third party collection agency to recover receivables due for unpaid health care services, health care practices tend to focus on fees and commissions and often lose sight of other equally important issues.  Below are a few key questions that health care practices are encouraged to ask and evaluate before entering a Debt Collection Service Agreement in order to avoid the common pitfalls associates with these types of transactions.

1. Will we need to disclose Protected Health Information (“PHI”) when working with the collection agency? If the answer is “yes,” the practice will need to enter a Business Associate Agreement that is compliant with The Health Insurance Portability and Accountability Act (“HIPAA”) and The American Recovery and Reinvestment Act of 2009 (including its expansion of the HIPAA rules and regulations) and must contractually require that the collection agency protect the privacy of the PHI. There may also be State mandated privacy regulations that are more restrictive than HIPAA and ARRA that must be taken into account.

2. What method of practice does the collection agency utilize? In addition to conducting itself in accordance with the Fair Debt Collection Practices Act and Fair Credit Reporting Act, State laws governing collection agencies and collection methods must be reviewed and incorporated into the Agreement to insure that the collection agency is complying with State specific rules and regulations when collecting debt for the health care practice.

3. How will the health care practice monitor the collection agency’s activities? It is important to incorporate language that will enable the health care practice to monitor the collection agency’s activities during the debt collection process, including: patient communications, complaints, requests for information, debts collected and/or settled, legal actions, judgments and garnishments. The practice will also want to include language establishing when and how this information will be obtained.  A consistent system of monitoring and reporting is especially critical in the event that the relationship is terminated and the health care practice is left to pick up where the collection agency left off.

4. What are the health care practice’s options and obligations when terminating the Agreement? Can the health care practice freely stop working with the collection agency or does the Agreement incorporate restrictive language? How will existing collection accounts be handled upon termination of the Agreement? These questions are easily overlooked yet often become obstacles in terminating relationships and retrieving crucial information.
 

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The Certification Commission for Health Information Technology ("CCHIT"), a non-profit organization that independently certifies health information technology, has put together a preliminary ARRA certification criteria for EHR (pdf) that it believes will meet the requirements for receiving EHR financial incentives available under the ARRA.

Currently, CCHIT is the only Department of Health and Human Services ("HHS") recognized certifying body.  As such, it will likely determine which EHR software will enable providers to make  "meaningful use" of their EHR when HHS publishes the final definition of  "meaningful use." When the definition is published, certification will be necessary for providers to receive the financial incentives available under the ARRA. 

The preliminary guide focuses on Ambulatory and In Patient EHR, and promises ongoing updates as more information becomes available. 

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As an update on the progress that Health and Human Services (“HHS”), in conjunction with the Centers for Medicare and Medicaid Services (“CMS”) and the National Coordinator for Health Information, is making toward defining “meaningful use," HHS is reporting that the proposed rule (defining “meaningful use”), is targeted for publication in late 2009.
 

On a related issue, recently, I have been receiving an increasing number of questions from readers wondering whether their practices will be among those eligible for incentive payments under the ARRA.  My response has always been, and remains, that these questions can not be answered until the exact definition of "meaningful use" is fleshed out.  However, in the interim, HHS has defined "eligible professional" in the following ways:

For the Medicare Incentives:

A physician as defined in section 1861(r) of the Social Security Act, which includes the following five types of professional:

1. Doctor of medicine or osteopathy
2.  Doctor of dental surgery or medicine
3. Doctor of podiatric medicine
4. Doctor of optometry
5. Chiropractor

For the Medicaid Incentives:

• Physicians
• Dentists
• Certified nurse-midwives
• Nurse Practitioners
• Physician Assistants who are participating in Federally Qualified Health Centers or Rural Health Clinics led by physician assistants.

I hope that helps to clear up some of the confusion.

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Under the newly enacted Health Information Technology for Economic and Clinical Development Act (“HITECH Act”), which can be found under Title XIII of the American Recovery and Reinvestment Act of 2009 (pdf), providers are eligible to receive up to $44,000.00 in financial incentives for implementing an electronic health records system (“EHR” system) as early as 2011.

However, only providers using nationally certified EHR systems will be eligible for these financial incentives. As of today’s date, there are no nationally certified EHR systems, and no certification criteria has been named. Further, the HITECH Act only mandates that an initial set of standards for certification criteria be adopted by December 31, 2009. As such, it could be months before providers can purchase a nationally certified EHR system.

Nevertheless, providers should begin conducting their search for an EHR system as soon as possible. Today, there are a variety of EHR systems on the market, many of which incorporate practice management tools such as patient schedulers, accounting reports and electronic prescription submission into the software package. Demonstrations by sales representatives, as well as individual software testing, can take up to a few hours each time, so the sooner that providers begin researching and testing these EHR systems, the easier it will be to make a decision when the time to purchase an EHR system comes.

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