Thursday, September 17, 2015

Deconstructing the FCC’s Declaratory Ruling on TCPA Regulations – What it Means for Healthcare Providers

The Federal Communications Commission (FCC) issued a Declaratory Ruling and Order on July 10, 2015, clarifying several exemptions under the Telephone Consumer Protection Act (TCPA) regulations common the healthcare organizations.  These were raised in a petition filed by the American Association of Healthcare Administrative Management (AAHAM) regarding the exemption from prior express consent of “healthcare-related messages”.  

The HIPAA exemption in the TCPA regulations currently extends to advertising and marketing calls to cell phone and residential landline phone numbers. Under the exemption, calls that deliver a healthcare message made by or on behalf of a “covered entity” or its “business associate,” as defined in HIPAA, do not require the prior express written consent of the party called. 

The FCC found that for calls subject to the HIPAA exemption, an individual’s voluntary provision of his or her cell telephone number to a healthcare provider constitutes prior express consent to be called on that number. The FCC had already ruled in a different proceeding that an individual’s provision of his or her cell phone number is “effectively an invitation to be contacted at that number”, as long as the calls or texts are limited in scope to the purpose the number was provided in the first place. The FCC extended that reasoning to calls and texts in the healthcare context.  It is important to note that only HIPAA-covered entities and their business associates can make healthcare calls subject to this exemption and calls must be within the scope of the consent given. 

The FCC also addressed situations where a patient is incapacitated and unable to provide a telephone number directly to a healthcare provider, while a third party intermediary may be able to provide a number.  The FCC ruled that where a party is unable to consent because of medical incapacity, prior express consent to make healthcare calls subject to HIPAA may be obtained from a third party.  Consent by a third party on behalf of an incapacitated party will end when the party is no longer incapacitated.  In such an instance, the provider must get prior express consent from the party being called. 

The FCC also clarified that certain free-to-end-user non-telemarketing healthcare calls are exempt from the prior express consent requirement.  The FCC found that such calls can provide vital, time-sensitive information that patients welcome, expect and often rely on to make informed decisions. 

The FCC found that acceptable calls that fall under this “free-to-end-user” call exemption include
·        Appointment and exam confirmations and reminders

·        Wellness check-ups

·        Hospital pre-registration instructions

·        Pre-operative instructions

·        Lab results

·        Post-discharge follow- up intended to prevent readmission; prescription notifications

·        Home healthcare instructions

It is important to note that the FCC made clear that healthcare calls related to accounting, billing, debt collection or containing other financial content are not part of this exemption. 

Also, the content of the exempt calls are still subject to HIPPA privacy rules.  The FCC said, "The information provided in these calls and texts “must not be of such a personal nature that it would violate the privacy of the patient if, for example, another person received the message.”

Exempt calls are subject to these FCC imposed limitations
1)     Calls must be free to the end user;

2)     Calls must be made by or on behalf of a healthcare provider;

3)     Calls can only be made or sent to the cell phone number provided by the patient;

4)     Calls or texts must state the name and contact information of the healthcare provider;

5)     Calls or texts must be “concise” (one minute or less for voice calls and 160 characters or less for text messages);

6)     Healthcare providers may only make one exempt call or send one exempt text per day (per recipient), with a weekly limit of three total calls or texts (per recipient); and

7)     Healthcare providers must offer recipients an opportunity to opt out of receiving these types of calls or texts, and honor those opt outs immediately

The exclusive method for opting out of text messages is for the recipient to reply with the word “STOP”.  Recipients must be given this instruction.

Did the FCC address your questions regarding your system’s practices?  Do you have any specific practices you are still not sure about?  Let us hear from you.  Chances are other NAHAM members are have the same questions and are finding answers.

The FCC’s Declaratory Ruling and Order may be found at its webpage using this address:

A “NAHAM TCPA Checklist” as well as a longer version of this blog, NAHAM’s “Deconstructing the FCC’s Declaratory Ruling on TCPA Regulations – What it Means for Healthcare Providers”, may be found on the NAHAM webpage using this address:



Friday, September 11, 2015

Congressional Quarterly reports on efforts to create Medicare "Smart Cards"

Congressional Quarterly's CQ News reported "Medicare 'Smart Cards' Pitched as Fraud Prevention" in a report written by Alan K. Ota, September 10, 2015.

Two Illinois Republicans, Representative Peter Roskam and Senator Mark S. Kirk are pushing a plan aimed at replacing traditional Medicare cards with smart cards containing computer chips to guard against fraud and identity theft.

Roskam's proposal, H.R. 3220, the Medicare Common Access Card Act, would create a test program to distribute Medicare common access cards to store personal and health-related data. CQ News reports it is expected to draw broad support as a stand-alone bill or as an add-on to other legislation, as the congressional Republicans hunt for ways to curb the growth of Medicare spending.  This would be encouraging for moving the bill through the important Ways and Means Committee of the U.S. House of Representatives.

Congressman Roskam is quoted as saying that allowing health providers to scan the proposed smart cards would “help close the gap on the more than $1 billion lost every week to false claims.”

On the Senate side, Senator Kirk has offered a similar pilot-program proposal,  S. 1871,also dubbed the Medicare Common Access Card Act.  The Senate legislation has the support of Florida Republican Senator Marco Rubio and Oregon Democrat Senator Ron Wyden, ranking member on Senate Finance. CQ News reports that Wyden called the new cards “a constructive tool” and said he was discussing the issue with Senate Finance Committee Chairman, Utah Republican Senator Orrin Hatch.

The proposals by Roskam and Kirk have support from the Secure ID Coalition, a six-member industry group representing makers of electronic identification cards.

CQ News reports that a recent General Accountability Office study found $60 billion in improper Medicare payments in 2014 that “either were made in an incorrect amount or should not have been made at all.” CQ News also reports that the Centers for Medicare and Medicaid Services estimated that improper payments made up about 12.7 percent of all Medicare fee-for-service payments in fiscal 2014, and the article quotes Paul Van de Water, a senior fellow at the Center on Budget and Policy Priorities, as predicting that the proposal could help curb Medicare fraud by patients but, it would have a limited effect preventing fraudulent reimbursement claims by health care providers.

It is expected that the new Medicare cards would be similar to identification cards issued to employees of the Defense Department and some other federal agencies, which are used to enter government buildings.  The legislation would require the Department of Health and Human Services to provide the smart cards in three areas with a “high risk of fraud and abuse” and further directs the Department to determine the scope of personal and health-related data stored on the chips, along with appropriate privacy protection measures.  The legislation would also encourage participation in the pilot program by those Medicare beneficiaries who say their personal and health-related data has been compromised.

What role would these cards play in improving positive patient identification?  Are these cards a model for government-issued photo IDs?  Let us know your thoughts.

Thursday, September 10, 2015

What to expect from trend in hospitals' purchasing physician practices

Kaiser Health News posted an article "When The Hospital Is Boss, That's Where Doctors' Patients Go" and poses the question with competing answers:

Why did hospitals binge-buy doctor practices in recent years?

To improve care coordination, lower costs and upgrade patient experiences, say hospitals.

To raise costs, gain pricing power and steer patient referrals, say skeptics.

Researchers at Stanford University looked into this, using 2009 CMS data.  This summary of findings by KHN caught our eye (emphasis added) -

Ownership by a hospital “dramatically increases” odds that a doctor will admit patients there instead of another, nearby hospital, they found. Worse, from the viewpoint of reformers, it boosts chances that patients will go to higher-cost, lower-quality hospitals.

The findings were published in August by the National Bureau of Economic Research.

In terms of the trend in hospitals purchasing physician practices, the article puts it this way -

Doctors are the hospital’s sales force, although they don’t like to think of it that way. Without doctors there are no admissions and no revenue to pay hospitals’ huge fixed expenses.

So hospitals have long been interested in owning physician practices, including a spurt of acquisitions in the 1990s in which many lost money and a renewed boom in the last decade as the Affordable Care Act promised to squeeze costs.

We thought the increased admissions was interesting from a patient access perspective.  From a public policy perspective, consider this -

“If these results are valid, then there are large implications,” said Martin Gaynor, a health economist at Carnegie Mellon University who was not involved in the study. “Hospital acquisitions of physician practices could disadvantage rival hospitals and harm competition.”

It is important to note that the data used in the Stanford study is pre-Affordable Care Act, so new data based on a new healthcare regime may yield different results different interpretations -

The health law encourages doctor-hospital collaboration in groups called accountable care organizations that put participants on the hook for financial and quality results.

ACOs are supposed to reduce incentives for hospitals to gobble market share, raise prices and slight quality — the kind highlighted by the Stanford paper.

Tuesday, August 18, 2015

Hospital wait times, noise levels and other information posted online through Yelp

See the Washington Post article: "You can now look up ER wait times, hospital noise levels and nursing home fines on Yelp" by Lena Sun (August 5, 2015).

The article reports on the emphasis being put on healthcare services by Yelp, with the help of ProPublica, a nonprofit news organization based in New York.

ProPublica compiled the information from its own research and the Centers for Medicare and Medicaid Services. The data is for 4,600 hospitals, 15,000 nursing homes, and 6,300 dialysis clinics in the United States, and it will be updated quarterly.

What's the big deal?  According to the article: "Much of the information about hospitals, for example, is available on Medicare's Hospital Compare Web page. But Yelp executives say the information is sometimes difficult to find and hard to sift through."

This data will be in addition to the Yelp star rating system based on consumer reviews: "Consumers have always been able to review medical businesses using Yelp's star-rating system. Those ratings will continue to be based on consumer reviews. What's different now is the additional data that will pop up."

How are hospitals reacting?  Let us know your thoughts.

See the Washington Post article: "How hospitals hope to boost ratings on Yelp, HealthGrades, ZocDoc and Vitals" by Lena Sun (June 3, 2015).

See how one "reputations manager" is addressing the online data, "after several months of reviewing comments in real time on nearly a dozen Web sites, including, and Google Plus, as well as Facebook and Twitter".

So to answer the question What's the big deal? consider this point about expectations:

"But putting hospitals and doctors into the online rating world is fraught with possible problems. For one, patients and doctors have widely differing expectations."

"When patients are asked to rate how doctor quality should be measured, clinical outcomes, such as getting cured of a disease, rarely come up, said Lisa Suennen, who advises health-care companies. Patients talk about whether a doctor or nurse was kind to them, or whether their experience was fast and convenient. It’s assumed that the doctor is going to treat their illness or condition."

"Physicians, on the other hand, go straight to the clinical. The cancer is gone. Or the person can walk again. They don’t even talk about the other stuff, Suennen said. The two groups “are really disconnected.”

Consider this: The healthcare system featured in the Washington Post article reported about two negative reviews a day. (A score of 3 or lower, out of 5). Some days there would be none. Then there was a week with seven negative reviews, all for doctors who hadn’t been rated before.

"One scored 1.9 out of 5 because the patient waited more than 45 minutes and had only a few minutes with the doctor. Another review complained about a rude receptionist. Most negative ratings have to do with wait times and scheduling."

The article discussed how a system may push out positive comments and how the Cleveland Clinic has developed its own rating system in addition to the patient satisfaction survey required by Medicare.

"Even the Cleveland Clinic, one of the country’s most prominent medical centers, felt the digital pressure. It rolled out its own doctor rating site in April for more than 1,550 doctors. Responses are drawn from a patient satisfaction survey required by Medicare, which many hospitals use internally to target areas for improvement."

"Unlike some sites that rely on one or two reviews, Cleveland Clinic displays only ratings for doctors who have been reviewed by at least 30 patients. Ratings — one to five stars — are updated weekly and include negative as well as positive comments."

And consider this strategy of creating 37 categories, including office staff and bedside manner. “If someone writes that ‘Dr. Smith seems very smart but he only spent 3 minutes with me,’ ” the doctor scores a 5 for competency but maybe 3 on beside manner.

Monday, August 3, 2015

Notice Act presented to President - written notice to be required for observation status of more than 24 hours

The Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act, introduced as H.R. 876 on February 11 of this year, made a quick run through the legislative process, having passed the House on March 16 after committee consideration and passing the Senate on July 27.  It is now waiting the President's signature. This action follows close on the heels of the CMS proposed changes to the two-midnight rule.

Becker's Hospital Review posted "9 things to know about the Notice Act on July 29".  Follow the link to the original article written by Erin Marshall.  The text follows:

1. The legislation calls for hospitals to provide written notice to patients who are in the hospital under observation status for more than 24 hours. Hospitals would need to provide notification no later than 36 hours after the time observation status begins.

2. The written notice must include why the patient was not admitted to the hospital and the financial implications of observation status, including subsequent eligibility for coverage for a skilled nursing facility.

3. Medicare does not cover skilled nursing facility stays unless the patient was admitted as an inpatient for a minimum of three nights. In some cases, physicians reclassify people as inpatients when more than observation is needed. Medicare patients who are not reclassified have to either forgo SNF care or pay for it themselves, regardless of the length of their hospitalization.

4. Medicare Part A pays for inpatient stays. If you are hospitalized on observation status, payment by Medicare is under Part B, which covers physician and outpatient services. Patients without Part B coverage are often left with the bill for observation status, even though there was not a perceptible difference in the type or level of care they received in the hospital.

5. If the NOTICE Act is signed into law by President Obama, hospitals across the nation will have to comply within 12 months.

6. A number of states, including Connecticut, Maryland, New York, Pennsylvania and Virginia, already require hospitals to give patients notice about observation care.

7. There were an estimated 1.5 million observation stays among Medicare beneficiaries in 2012. The number of observation stays increased 100 percent from 2001 to 2009, likely because of financial pressure on hospitals to reduce potentially preventable readmissions of inpatients within 30 days.

8. Under the NOTICE Act, hospitals would be required to notify patients about observation status, but patients can only change that status by swaying a physician or the hospital to do so. Yale-New Haven (Conn.) Hospital CEO Marna Borgstrom noticed that after learning they were under observation care, many patients left the hospital against medical advice.

9. The NOTICE Act is separate from CMS' two-midnight rule, for which it recently proposed updates as part of the 2016 Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System proposed payment rule.

Thursday, July 23, 2015

What's In a Name for Newborns?

HealthDay News reported on naming conventions for newborns: What's In a Name? For Newborns, Maybe Fewer Medical Errors.  The "byline: "Using more specific names for newborns may reduce hospital mix-ups by roughly a third.

Here is the article in full, with sources identified below.

MONDAY, July 13, 2015 (HealthDay News) -- Using more specific names for newborns may reduce hospital mix-ups by roughly a third, a new study suggests.

Hospitals usually identify newborns by generic names such as "Babygirl Jackson" or "Brendasboy Jones" instead of the names parents give them. The reason: A patient record and name tag must be created immediately after birth, and changing records during a single hospital stay can cause confusion, said study lead author Dr. Jason Adelman, a public safety officer in the Montefiore Health System in New York City.

Since some parents haven't settled on a name when the baby is born, it's more efficient to use a standardized procedure for all, Adelman said.

In a previous study he conducted with 339 newborn intensive care units (NICUs) across the country, Adelman found that nearly 82 percent of them used indistinct names, such as "Babygirl Jackson" and "Babyboy Jones." The other 18 percent of hospitals incorporated some version of the mother's name, such as "Wendysgirl Jackson" and "Brendasboy Jones."

"We were able to demonstrate what everyone sort of knew but couldn't prove -- that using a generic naming convention increases the risk of wrong-patient errors, such as placing orders on the wrong patient," Adelman said.

Common errors seen with nonspecific first names can include reading imaging tests or lab specimens for the wrong patient, giving blood products to the wrong patient or giving a mother's expressed breast-milk to the wrong patient, explained Dr. Sheryl Ross, an ob-gyn at Providence Saint John's Health Center in Santa Monica, Calif.

"Improving patient safety is a top priority in health care and an added benefit is if it can be achieved in a cost-effective manner," Ross said. "Human error is one of the main reasons mistakes happen to patients in a hospital setting."

The study appeared online July 13 and will be published in the August print issue of the journal Pediatrics.

About 11 percent of medical errors are the result of patient misidentification, according to previous research described in this study.

"Many people knew that using only Babygirl or Babyboy was a problem, but they couldn't really report it because people don't like to report errors," Adelman said. "We came up with a way to track them."

His team used a tool that looks for all hospital orders that are placed and retracted within 10 minutes, and then placed on another patient by the same clinician within the next 10 minutes. Most of these are caught within a minute and never get carried out for the wrong patient.

The researchers tracked these errors for one year at the two NICUs of Montefiore Medical Center, Bronx, N.Y. During this time, the NICUs used the generic "Babygirl Jones" type of naming.

Then the hospital adopted the more specific "Catherinesgirl Jones" version. For twins and triplets, the new procedures used numbers at the start of the name, such as "1Sallysgirl Franklin" and "2Sallysgirl Franklin." The researchers tracked the errors for another year.

Errors dropped by 36 percent following the change. After accounting for multiple orders made at once, the researchers calculated that the new naming reduced errors by a third.

"The potential medical error that can occur when physicians or other health care professionals confuse one patient for another can be quite serious, even deadly," said Dr. Clay Jones, a pediatrician specializing in newborns at Newton-Wellesley Hospital in Massachusetts. "Imagine giving a medication meant for one patient to another patient with a life-threatening allergy to it."

Yet Jones said he is skeptical that this issue is a huge problem in NICUs, because of special alerts incorporated into patients' identifying labels. He nevertheless found the study intriguing and the issue worth exploring.

"The results of the study are impressive if simply looking at the percent decrease in retract-and-reorder errors," Jones said. "But we can't draw any firm conclusions."

He pointed out another possible explanation for the drop in errors that the authors also mentioned -- that clinicians were less likely to make mistakes because they knew why infant naming procedures changed and that errors were being tracked.

"It is entirely possible that the decrease in errors only happened because people were being more careful under the eye of the study researchers," Jones said.

Adelman said another drawback to this study is researchers cannot track the errors that actually make it to the patient. "We can only rely on reporting, and the evidence shows that doctors only report 1 percent of the errors they make," he said.

Still, he hopes this study will prompt more hospitals to change their procedures.

"Now that there's strong evidence that this really makes a difference, I'm hoping this will accelerate the adoption of using these more distinct names," Adelman said. "That's the best news for parents out there."

More information

For more about procedures in the NICU, visit the C.S. Mott Children's Hospital at the University of Michigan.

SOURCES: Jason Adelman, M.D., M.S., patient safety officer, Montefiore Health System, New York City; Sherry Ross, M.D., ob/gyn and women's health expert, Providence Saint John's Health Center, Santa Monica, Calif.; Clay Jones, M.D., neonatal hospitalist, Newton-Wellesley Hospital, Newton, Mass.; July 13, 2015, Pediatrics, online

Copyright © 2015 HealthDay. All rights reserved.

New Portal from The Joint Commission focusing on the physical environment

The Joint Commission and the American  Society for Healthcare Engineering (ASHE) launched a new Physical Environment Portal July 14 to provide online resources and tools for hospitals to be compliant with the eight most challenging Joint Commission Life Safety (LS) and Environment of Care (EC) standards.

The portal is available to the public and includes resources for both facility managers and leadership. For Joint Commission-accredited organizations, there also is an enhanced feature that includes actual surveyor comments and other resources.
Over the next 16 months, the portal will highlight the eight LS and EC standards cited most frequently by The Joint Commission for noncompliance. Each standard will be highlighted in modules that are scheduled to be released in two parts; the first part to be released one month, and the second part to be released the following month. The first part of the module supports facilities managers by focusing on what the requirements are and what compliance should be. In the second part, a new component focuses on resources for leadership and the clinical team to assist in evaluating the organization’s level of compliance. A new module is to be posted every two months, with the previous ones remaining on the site.
The portal is housed on The Joint Commission website, with links to module-specific information on the ASHE site. There also will be solutions presented by Joint Commission Resources. Information will be offered in a variety of formats, including articles, videos and infographics.