Radiology Administrator's Compliance & Reimbursement Insider, April 2005

2. Pervasiveness of wrongdoing within a corporation. The next factor prosecutors must consider is the extent of the wrongdoing within a corporation.

"If one lower-level employee is mostly responsible for the problem, the corporation is much less likely to face criminal charges than if the company's upper management knew [about] or condoned what was going on," says Kupferberg. "But if the upper management directed the illegal behavior or turned a blind eye to it, the chances the corporation will face criminal charges skyrocket," he says.

The people in charge of your corporation must be committed to full compliance and must convince their employees of that commitment. If you always look for a way to bend a rule to make an extra buck, your employees will pick up on that, making them more likely to engage in behavior that may get you into trouble.

3. Past history. If your corporation (or its officers) have been in trouble before, you're less likely to catch a break if you're investigated again, Kupferberg says. The DOJ expects corporations to learn from their mistakes and believes that a history of similar conduct may prove that the corporate culture encourages-or at least condones-such conduct. Awareness of this stance is important because it shows that prosecutors will look behind the façade to see how the corporation actually operates when deciding whether to bring charges. If you've been in trouble before, the guidance memo says you've lost the benefit of the doubt, Kupferberg stresses.

4. Cooperation and voluntary disclosure. It's a fixture of every TV police show-the bad guy is told that if he cooperates and spills the beans, he'll get off easier. That's also the official government policy when dealing with corporations, according to the DOJ. A corporation that is willing to help investigators by making witnesses available, identifying culprits within the corporation, and even reporting wrongdoing before the government realizes a problem exists may have a better chance of avoiding criminal charges, Kupferberg says. However, statements by the DOJ indicate that cooperation includes a corporation's willingness to waive two important legal rights: attorney-client privilege and work product privilege. These privileges protect the confidences you reveal to your attorney, keep private the advice the attorney gives you, and keep secret any documents your attorney prepares when he or she works for you.

Kupferberg is concerned that this provision means that candid conversations between attorneys and clients-and documents that explain to clients what their attorneys are doing for them and why-may have to be shared with the government in exchange for avoiding criminal charges. Requiring organizations to waive usually recognized privileges to avoid criminal charges is "draconian," he says. There are few circumstances in which waiver of those privileges would be a viable option, he adds.

5. Corporate compliance programs. The DOJ has also said that even if a corporation has a compliance plan, there still may be circumstances in which criminal charges are appropriate. Although a compliance plan that's designed well and implemented effectively can be a big help, it's definitely not a cure-all.

"A compliance program helps identify problems before they merit criminal charges, and if the compliance plan is generally effective, it may lessen any criminal penalties," Kupferberg says. But be aware that the DOJ has also made it clear that a compliance program that's only for show is worse than no program at all.

- Warn everyone that noncompliance won't be tolerated and stick to your guns. If that means you have to fire an employee who insists on bending the rules, so be it.

- Communicate your compliance plan's policies and the compliance records of managers' subordinates during their annual reviews.

- Keep the lines of communication open to all employees-make sure they're comfortable reporting noncompliance.

- Adequately investigate all noncompliance reports and correct any problems.

- Give the compliance officer enough authority to solve problems that arise. The compliance officer should be a high-level person within your practice.

6. Repayment and other remedies. The DOJ asks prosecutors to review whether the corporation has repaid any money it wrongfully received and whether it has fixed the problem that led to the noncompliance.

7. Consequences for innocent parties. DOJ prosecutors must evaluate the effect a corporation's criminal conviction would have on innocent third parties (e.g., patients or employees who did nothing wrong) before proceeding with criminal charges. Prosecutors must also take into account other consequences that follow criminal charges, such as a physician's loss of medical license or a practice's exclusion from the Medicare and Medicaid programs, says Kupferberg.

8. Noncriminal alternatives. It's usually quicker, easier, and cheaper for the DOJ to settle matters without bringing criminal charges, so it won't prosecute a corporation if there are noncriminal alternatives that would lead to an appropriate result.

"The point of criminal prosecution is supposedly to deter, punish, and rehabilitate," says Kupferberg. If there are alternatives that will accomplish those ends, the DOJ is likely to go along, he says. Prosecutors want to save their resources for cases in which the noncriminal alternatives are inadequate, Kupferberg says.

Insider source

Matthew Kupferberg, Esq., Arent Fox, PLLC, 1615 Broadway, New York, NY 10019.

HIPAA security rule implementation date draws near

The government plans to enforce the Health Insurance Portability and Accountability Act of 1996 (HIPAA) security rule starting April 20, ready or not.

Because they have historically been more technologically advanced, radiology departments may be better equipped to deal with the new requirements. Most of these departments were electronically reading, viewing scans, and signing reviews long before other areas of medicine even considered doing so, says Lawrence "Doc" Muhlbaier, a HIPAA expert at Duke University.

Even so, that doesn't mean you are meeting all the requirements of the security rule, says Muhlbaier. "[Radiology departments] don't necessarily dot the i's and cross the t's the same way, so some fine-tuning may be necessary," he says.

The HIPAA security regulations are designed to safeguard PHI that is maintained or transmitted in electronic form. All HIPAA covered entities (e.g., health plans, healthcare clearinghouses, and provider organizations that transmit patient information electronically in conjunction with at least one of several specified transactions) must comply with the rule.

Although some common aspects of security rule compliance may be easier for radiology departments, they will face additional challenges, including a proliferation of automated instruments, says Muhlbaier.

There are thousands of automated instruments within hospitals, and manufacturers may be reticent to update these devices-which include most radiology and mammography equipment-to meet the security standard.

If this is the case at your organization, conduct assessments to determine what type of security risk the devices pose and take appropriate steps to protect them. Your organization must have an inventory of all this equipment that notes your protection measures, says Muhlbaier. Many organizations may not know that they must perform this step or may not have already completed the process, he adds.

"I think people are ready for [the security rule] intellectually, but whether the nuts and bolts are implemented for everybody, it is hard to tell," says Muhlbaier.

There are several other areas under the security rule that pose challenges, says Muhlbaier, including the following:

Additional tip

The HIPAA security rule requires that your policies and procedures address your compliance steps. You will be held to the standards of whatever you have written if they go beyond the minimum required by the law, so documents that are too extensive or too precise can wind up working against you.

Make your policy general. It helps the policy endure over time-time you won't spend making constant updates. Details of the policy can be worked out in guideline documents that can address what you will do to comply and how. n

Insider source

Lawrence "Doc" Muhlbaier, PhD, assistant research professor of biostatistics for the Department of Biostatistics and Bioinformatics and assistant research professor for the Department of Surgery, Duke University Medical Center, Durham, NC.

Security rule

According to the Health Insurance Portability and Accountability Act of 1996 security rule's mandates, organizations must

Additionally, all work force members, including management, must receive security awareness training.

When your hospital demands performance criteria, meet it head on with demands of your own

The growing shortage of qualified radiologists is forcing hospitals into direct competition with health plans-and justifying the large salaries and other perks that come with the territory. Today, more hospitals are inserting performance criteria into their contracts with radiologists and proposing benchmarks or goals to measure performance that practices must meet under the terms of the agreement.

Although they have positive aspects, the performance-based criteria also can hammer away at hospital-based radiology practices-many of which are justifiably wary about agreeing to such language in their contracts with hospitals, explains Philadelphia healthcare attorney Joan Roediger, who counts several large radiology practices and medical staffs among her clients.

Some radiology practices are offended by hospitals' attempts to quantify and qualify their performance. So if the hospital you're affiliated with isn't flexible on this point and wants to continue to provide radiology services, you may have to bend your rules. If you're willing to spend time negotiating, you may be able to work out performance criteria that both you and the hospital can live with. You also may be able to add performance criteria that you want the hospital to meet under the contract. We'll explain how to make a hospital's demand for performance criteria work to your benefit.

Performance criteria is probably here to stay

There are several factors motivating the trend toward hospitals inserting performance criteria into contracts with physicians, Roediger says, including the following:

Although it may seem like a reach to think that a radiologist's salary could be considered a private inurement, if the salary is considered excessive for the required duties, it could be construed that way. So hospitals that demand performance criteria are being extra prudent by spelling out exactly what's expected in return for a salary, Roediger says. They also give themselves a way to measure performance against those expectations.

- performing services promptly

- documenting services appropriately

- billing for services correctly (if the practice handles its own billing)

- maintaining productive relationships with treating physicians

- educating medical residents, students, colleagues, and other staff

- caring for patients sensitively

Hospitals likely will want to quantify these demands to give themselves some method of measuring your practice's ability and willingness to pursue these goals, Roediger says. To this end, she has seen contracts in which a hospital attempts to insert clauses that do one or more of the following:

- Require that patients receive radiology services within a certain period after the physician order is entered in the chart.

- Require that tests be interpreted and a report entered in the patient chart within a specified period after the test is performed.

- Demand that charts be subject to, and pass, periodic audits meant to determine adequacy of documentation.

- Demand that billing records be available to the hospital for periodic audits, if the practice handles its own billing.

- Mandate that a certain number of hours per month be devoted to education through teaching clinics, grand rounds, mortality and morbidity conferences, seminars, etc.

- Demand that radiologists participate in a specified number of attempts to market hospital-based radiology services to referring physicians/the patient community.

- Demand that the radiology department achieve a particular score on patient satisfaction surveys. Some of these demands can be couched in terms that may be acceptable for your practice, Roediger says. You may need to reject others outright.

Make performance criteria work for you

If your hospital wants to incorporate performance criteria into, Roediger advises the following:

Make hospital demand benefit you

Here's an example of how you can negotiate a hospital's demand for certain performance criteria: The hospital wants to insert a clause that will obligate your practice to complete interpretive reports and forward them to medical records within 96 hours of a patient's examination. This may seem like a tall order, and maybe it is. Depending on your practice's circumstances, Roediger suggests the following ways to adapt the clause:

Insider says: Depending on your preferences, you may want to personally negotiate your practice's contract with the hospital or have your attorney do it. If you negotiate the contract yourself, it's crucial to have a competent and experienced health law attorney review it before you sign, Roediger says.

Insider source

Joan Roediger, Esq., Obermayer Rebmann Maxwell & Hippel, LLP, 1617 John F. Kennedy Blvd., 19 th Fl., Philadelphia, PA 19103.

Model language

A. Interpretive reports. Radiology practice shall make its best efforts to complete interpretive reports for 80% of all radiological examinations within four business days of the patient's examination, and to complete all interpretive reports no later than five bus

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