SCGhealth Blog


This doctor’s lawsuit against a patient for defamation is worth some extra attention

Monday, October 30, 2017

By Marla Durben Hirsch, contributing writer

More patients than ever are turning to the Internet to share their provider experiences, causing more providers to consider how to deal with negative reviews. One of the latest lawsuits may provide some much-needed guidance in this area.

Ohio plastic surgeon Bahman Guyuron sued a former patient regarding negative reviews she posted anonymously on several websites after he performed her nose job. According to his lawsuit, the former patient posted false and disparaging information that injured him and damaged his reputation. Some of the information she posted stated that he was untrustworthy and unprofessional, her nose is now twice the size than it was originally, there was no follow-up care, that Dr. Guyuron posts or encourages others to post false positive web reviews, and that there was no informed consent to the procedure. 

In Dr. Guyuron’s lawsuit he asked for money damages, an injunction to keep the former patient from posting about him on the web and an order to remove the existing statements, which are still on the internet. 

The former patient claims that the statements were either truthful or her opinion, so she’s not liable for defamation. 

What’s somewhat unique about this lawsuit is that it appears to be going to trial. Most of these lawsuits get settled or thrown out, in this case however, the court in April refused to rule for either party as a matter of law, stating that there were too many questions that first needed to be hashed out. The trial is slated for early 2018. 

Whether a defamation lawsuit will be successful depends on the facts involved. Some of the most interesting questions in this one include:

  • Whether these particular posts are protected as free speech under the Constitution. Are the former patient’s negative posts truthful? Did Dr. Guyuron really make her nose twice as large? Is the doctor really a liar or was that the patient’s opinion?
  • Whether Dr. Guyuron is a public figure. If so, it will be harder for him to demonstrate defamation since he needs to show that the former patient had published her statements with “actual malice.” He’s arguably just a physician in a private practice. However, Dr. Guyuron maintains a website touting his expertise, accomplishments and affiliations. In addition, the website states that he’s one of the world’s top plastic surgeons, an internationally recognized teacher and innovator in plastic surgery, and author of several books. At what point does a physician cross the line and become a “public” figure?
  • Whether HIPAA will be an issue. Sometimes providers who try to defend themselves against a negative review reveal patient identifying information, which can lead to a violation of HIPAA’s privacy rule. It’s okay if a patient discloses her own identifying information, it’s not if the physician does so without permission.

Takeaways:
Negative reviews can hurt a physician’s practice. Yet litigation is always a risky business, especially when there’s a jury trial, which Guyuron has requested. 

The best defense is prevention. Try to assess patient concerns early on before they fester. Some physicians provide surveys or other opportunities for patients to provide feedback before they’ve even left the office. 

If you do come across a negative post about you on the internet, you may be able to take action depending on what it says. For example, if it’s clear that it wasn’t posted by an actual patient, the website may remove it. If a patient has complained that you spent too much time inputting into your electronic medical record and not enough time face-to-face, perhaps private outreach and an apology will mollify him.

It may also be a good time to reassess whether there’s truth to the negative review and modify operations accordingly. For instance, if patients are posting that the front office is surly, that may be worth looking into.


No More “Hardships” - How to Qualify for Reweighting of ACI Performance Category Under MIPS

Wednesday, October 25, 2017

By Brandy Dehaven, Intern

Previously, any eligible clinician without certified electronic medical technology (CEMRT) could receive reweighting of the Advancing Care Information (ACI) performance category, but as of October 1, 2017, clinicians will have to prove that their reasons for not having CEMRT are good enough to receive a hardship exception. This exception allows eligible clinicians that meet the hardship specifications to participate in the Quality Payment Program (QPP) and not receive a negative 4% payment adjustment. The deadline to apply for a hardship exception is March 31, 2018.

Who Qualifies?
Just because an eligible clinician does not have CEMRT, does not mean they qualify for the reweighting. There are specific reasons that will need to be cited by the eligible clinician to receive the reweighting. 

The reasons specified are:

  • insufficient internet connectivity

  • extreme and uncontrollable circumstances

  • lack of control over the availability of CEMRT

Eligible clinicians may also qualify for reweighting if classified as a special status Merit-based Incentive Payment System (MIPS)-eligible clinician. Special status clinicians in 2017 include hospital-based MIPS-eligible clinicians, physician assistants, nurse practitioners, clinical nurse specialists, certified RN anesthetists, and non-patient facing clinicians. 

What steps do eligible clinicians need to take?
Applications for reweighting can be completed and submitted online. In addition, the QPP service center is offering eligible clinicians an opportunity to submit an application verbally. Special status clinicians do not need to submit an application and will automatically be reweighted. Applications will need to be reviewed and will result in approval or dismissal. 

Information needed for the application includes: contact information, Taxpayer identification number or National Provider Identifier (NPI), and hardship exception category. Be prepared to provide supplemental information on the hardship exception category selected.

Apply for the QPP Hardship Exception online here.

Or apply verbally by calling the QPP Service Center: 866-288-8292

Deadline
MIPS-eligible clinicians need to submit a QPP Hardship Exception Application by March 31, 2018. If you qualified for the QPP Hardship Exception, there is still time to apply and report MIPS measures to avoid a negative a negative payment adjustment for 2017.

Further Reading:
About Hardship Exceptions



Warning: responding to a patient’s online review could be more trouble than it’s worth

Monday, October 23, 2017

By Marla Durben Hirsch, contributing writer

It may be tempting to defend yourself against a negative review of your practice on Yelp, Facebook or other online forums by responding to it. However, in many instances that move can hurt a practice further.

Patients have always shared their experiences with physicians with friends and family. The internet enables these opinions to reach a much wider audience. In addition to online reviews of physicians posted by affiliated hospitals and health plans, consumers are increasingly posting on physician rating sites like ZocDoc and Rate MDs as well as general sites such as Angie’s List or an individual’s own blog.

A negative review can adversely affect a practice’s reputation and subsequent business.

But often responding to the post can make the problem worse.

One of the biggest problems is violating the Health Insurance Portability and accountability Act’s (HIPAA) privacy rule. While the patient isn’t subject to HIPAA, providers are, and invariably in trying to defend themselves they reveal identifying patient information in violation of the law. An analysis last year of Yelp ratings conducted by ProPublica and published in the Washington Post found more than 3,500 one star reviews (the lowest rating) where patients mention HIPAA or privacy. The patients feel doubly slammed, first by the inadequate care they received, and then by the privacy violation incurred when the physician responded to the negative online post.

But HIPAA is not the only legal problem you may run into when responding to an online post. Other issues include:

Malpractice claims. Responding to a negative online post may increase the risk that you’ll be sued by the patient for providing substandard care. For example, where a patient had been content to simply bad mouth a provider and let it alone, if the provider responds, with “I didn’t recommend an MRI because it wasn’t necessary” and it turns out that an MRI actually would have been helpful, then the provider is stuck with his statement which can be used against him.

Defamation allegations. If the provider responds with something that the patient refutes, the patient may then decide to defend herself by suing the physician for defamation. Even if what you’ve posted is correct, you still need to spend the time and resources to defend yourself.

State privacy law violations. HIPAA provides no private right of action, so a consumer can’t sue a provider for an alleged violation, only file a complaint with the Department of Health & Human services’ Office for Civil Rights. Despite this, many state laws allow consumers to bring state breach of privacy actions in court.

There are also nonlegal risks to responding publicly. For example, it brings the post back to the forefront. It can also further anger the patient, leading to more posts.

So, what should a physician do when dealing with a negative post on the internet? A lot depends on exactly what was posted. Here are some recommendations:

  • Ignore the negative post. Often one negative post is offset by positive ones, and the negative one gets buried.

  • Use the negative post to evaluate your practice. For instance, if there are several posts decrying the cleanliness of your facilities, you may want to address and resolve those issues.

  • Consider responding to the patient privately, if you know who it is. For instance, if a particular patient posted that she had to wait two hours in your waiting room, and you contact her to explain that your car broke down on the way to the office or you were called into emergency surgery that morning, she may be more forgiving and willing to amend the post or take it down.

  • Ask the site to delete the post. Most sites have no obligation to do so; however, if you have compelling evidence the site may acquiesce. For instance, one negative post about a doctor turned out to have been posted by a competitor, not a patient. The site removed the post.

  • Weigh any legal action on your part very carefully. The internet is rife with stories of physicians and dentists that have sued patients for defamation. Sometimes the provider is successful; sometimes this tactic backfires; it depends on what the patient posted. There’s also the cost of bringing a lawsuit, not to mention the fact that the litigation itself can create negative publicity.

  • Protect yourself if a post raises a legal issue. For example, if a patient has alleged that you’ve committed malpractice, you may need to notify your insurance carrier.


2017-2018 Influenza Vaccine Recommendations

Wednesday, October 18, 2017

By Audrey Landers, Intern

For those in the medical community, autumn brings endless sniffles, coughs and most importantly, the annual influenza season. Since 2010, the Center for Disease Control & Prevention (CDC) has recommended that Americans 6 months and older receive the influenza vaccine in order to control the spread of the disease. Suppliers began shipping out vaccines for the 2017-2018 influenza season in September.

Keep your patients strong. Vaccinate. Fight Flu.

Recommended 2017-2018 Vaccines
Vaccines for the 2017-2018 flu season will be available in the forms of a needle injection, a jet injection and an intranasal spray. These include the Inactivated Influenza Vaccines (IIVs) as well as Recombinant Influenza Vaccines (RIVs) in both trivalent and quadrivalent formulas. For this coming flu season, the CDC has recommended only the injectable influenza vaccines with the following options:

  • Standard dose injections
  • High dose injections
  • Injections made with adjuvant
  • Injections made with virus grown in cell culture
  • Injections made with vaccine production technology that does not require the flu virus

All of the flu vaccines licensed in the United States for the 2017-2018 season will contain the following influenza strains:

  • An A/Michigan/45/2015(H1N1)pdm09-like virus
  • An A/Hong Kong/4801/2014(H3N2)-like virus
  • A B/Brisbane/60/2008-like virus
  • A B/Phuket/3073/2013-like virus (quadrivalent only)

No single recommended vaccine is preferred over the others. If you have more than one vaccine type available, you may use your own discretion to select what is appropriate for each patient.

Not Recommended
Due to its ineffectiveness during the 2013-2014 and 2015-2016 flu seasons, intranasal sprays, also known as Live Attenuated Influenza Vaccines (LAIV4), are not recommended for the coming 2017-2018 flu season. Currently the only LAIV4 vaccine on the market is FluMist Quadrivalent, produced by MedImmune. If your practice has access to this vaccine, note that it is not recommended by the CDC.

Quality Reporting with MIPS #110: Preventative Care and Screening- Influenza Immunization
MIPS #110: Preventative care and Screening- Influenza Immunization is the percentage of patients aged 6 months and older seen for an in office visit between January 1 and March 31 AND October 1 and December 31 who received an influenza immunization OR who reported previous receipt of an influenza immunization.

 

 Office Visit
 Quality Data Code
 Service Provided
 January 1, 2017 - March 31, 2017

AND

October 1, 2017 - December 31, 2017
 G8482
 

An influenza immunization is administered to the patient during the months of August through December or 2016 or January through March of 2017.
AND
An influenza immunization is administered to the patient during the months of August through December 2017.



 Any  G8483

 An influenza immunization was not administered for reasons documented by the clinician.



 Any  G8484

 An influenza immunization was not administered with no reason documented.



 

 

For more information, you can view the entire measure here.

Due to the difficulty some physicians may face in reporting this measure twice in one year, SCG Health strongly recommends that this measure be reported through electronic clinical quality measures (eCQM) using CMS measure ID CMS 147v6. The eCQM version only requires the measure be reported for one flu season during the calendar year.


Think Twice Before Using a Voice Assistant at Work

Monday, October 16, 2017

By Marla Durben Hirsch, contributing writer

Voice assistants like Apple’s Siri or Amazon’s Echo Dot can be convenient and easy to use, but tread very carefully if you’re going to use them in your practice, since they are fraught with risk.

A recent survey found that almost a fourth of physicians are already using a voice assistant for work-related reasons, including drug dosing queries, diagnostic information searches, communication and dictation. That number is expected to rise as the devices become more popular, but these tools have shortcomings that many physicians are not aware of, according to attorneys Elizabeth Litten and Michael Kline, with the law firm of Fox Rothschild in Princeton, New Jersey.

Some of these risks include:

Privacy. Since these are voice powered devices, the physician’s query and the device’s response can be easily overheard by others, says Kline. If a physician provides too much patient-specific information so as to make the patient identifiable, speaks more loudly than necessary, or positions the device so that it’s not in a private area, it could be a violation of the Health Insurance Portability and Accountability Act (HIPAA)or state law privacy rights.

Security. Most people don’t realize that voice assistants store users’ queries, making them subject to hacking. In addition, different voice assistants deploy different levels and types of security of the stored information, warns Litten. For instance, Siri keeps recordings and transcripts but ties them to random numbers, making the users more anonymous. Amazon’s Alexa is much less secure; it stores full transcripts which can be viewed by the user – as well as anyone else who can access the user’s account. “You’ve created data. Be aware this is another place where the data is stored,” says Litten.

There’s also the vulnerability of the devices themselves. Voice assistants are part of the “Internet of Things,” like smart TVs, wireless insulin pumps and baby monitors. Unfortunately, they are easily exploited by cybercriminals, who eavesdrop and collect information to use against users, disable or reprogram the devices, download malware which can then affect other electronic systems, and other wrongdoing. The FBI has issued several warnings about the security risks of things that use the Internet, including one this past summer.

Unreliable, inaccurate or wrong content. Just because a voice assistant is programmed to search the internet does not mean that the information it locates and spits back is reliable and trustworthy. “You don’t know how good the information is and whether it’s validated,” warns Litten [for example, ask Siri to divide one by zero]. This is particularly concerning when asking for and relying on clinical information.

Medical record problems. Some voice assistants that input automatically into the medical record may do so in a way or location that you don’t want or is hard to later find. Some physicians neglect to input clinical information received from a device into the patient’s medical record, rendering the record faulty or incomplete, warns Kline.

Malpractice concerns. Relying on questionable or wrong information provided by a voice assistant and failing to keep complete medical records are malpractice risks. And since the tools store past queries, they can be discoverable in malpractice litigation.

Six tips to protect your practice:

Some entities have banned the use of voice assistants in the workplace. However, an outright ban may not be feasible or desired; it may also be difficult to enforce, says Kline. If these devices will be allowed, at least take some steps to reduce your risks:

  • Understand the security of the voice assistant you want to use. Know how it stores and retrieves data, says Litten. If you have a choice, use one that’s more secure. For instance, the assistant in your electronic health record or iPhone may be more secure than Amazon’s Alexa.

  • Use the tool cautiously. Don’t rely on it for clinical information without corroboration, and don’t provide it with identifiable patient information. “Be careful how you frame inquiries,” suggests Litten.

  • Make sure that all physicians and staff understand the limitations and risks of using voice assistants in the office. Hopefully this will cause users to be more careful. For example, all searches should be viewed as nonprivate, says Litten.

  • Take steps to not violate HIPAA or state privacy and security rules. Include these devices as part of the practice’s overall HIPAA compliance efforts. For instance, don’t use the tools in a way that others can overhear the query or the response. “Don’t yell to Alexa and be a bigmouth. Use [HIPAA’s] elevator rule [and don’t discuss patient information in public],” says Litten.

  • Adopt the FBI’s suggestions to reduce the tool’s vulnerability. For example, change the password on the voice assistant from the manufacturer’s default password so that it’s less likely to be exploited; apply security update patches when applicable.

  • Document applicable clinical information into the medical record. “If it’s not documented it didn’t happen,” warns Kline.


Hurricane Harvey, Irma, and Maria’s Impact on Quality and Value-Based Reporting – CMS Granting Exceptions

Wednesday, October 11, 2017

By Brandy Dehaven, Intern

Hurricane Harvey, Irma and Maria have had a disastrous impact on the southern United States. In the aftermath of a catastrophic hurricane season, those in affected areas are beginning to pick up the pieces. In order to allow facilities in those areas to focus on patient care and facility repairs, the Centers for Medicare & Medicaid Services (CMS) is granting exceptions on certain Medicare quality reporting and value-based purchasing programs.

Merit-Based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APM) are also eligible for reweighing on advancing care information (ACI) but facilities will still be expected to report quality.

Who is granted exceptions?
CMS is granting exceptions to acute care hospitals, prospective payment system (PPS) exempt cancer hospitals, inpatient psychiatric facilities, skilled nursing facilities, home health agencies, hospices, inpatient rehabilitation facilities, Renal Dialysis Facilities, long-term care hospitals and ambulatory surgical centers in the designated major disaster areas.

You might notice that eligible clinicians are not included in the exceptions. SCG Health reached out to CMS for a response: “At this time, CMS is reviewing reporting requirements for the Quality Payment Program and will be making exception decisions regarding the impact of Hurricane Harvey (and Irma) in the near future. Please continue to consult https://www.cms.gov/About-CMS/Agency-Information/Emergency/Hurricanes.html for the latest information and sign up for the Quality Payment Program on https://qpp.cms.gov to stay informed”.

What exceptions are granted?
Hospital inpatient services are granted exceptions to their Hospital Inpatient Quality Reporting (IQR), Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) Survey, Healthcare Personnel (HCP) influenza vaccination measures, and chart abstracted measures.

What areas are designated major disaster counties?
The Federal Emergency Management Agency (FEMA) has designated major disaster areas in: Texas, Louisiana, Florida, Georgia, Puerto Rico Municipals and U.S. Virgin Island County-Equivalents. For an updated list:
https://www.fema.gov/disasters/

Providers do not have to submit an extraordinary circumstances exception request (ECE) if they are located in one of the designated areas. Hospitals and ASCs not in the designated areas can submit ECE requests based on individual circumstances.

For more information, visit:
Hurricanes CMS.gov
CMS Irma Memo
CMS Harvey Memo


2018 PQRS Downward Payment Adjustments and You: How and Where to Appeal

Monday, October 02, 2017
By Audrey Landers, Intern

For the 2016 reporting period, many eligible professionals (EPs) were able to successfully report to the Physician Quality Payment System (PQRS) and avoid a downward payment adjustment. Unfortunately, that means that some EPs must still face a 2.0% reduction to all Medicare Part B Physician Fee Schedule (PFS) payments in 2018.

The Centers for Medicare & Medicaid Services (CMS) will be sending letters to the unlucky providers to notify them of the pay cut starting January 1, 2018. Two types of letters will be going out, those that apply to individual clinicians and those that apply to group practitioners.

If you believe that you adequately reported PQRS quality measures in 2016 and should not receive a downward payment adjustment, you can submit a request for informal review through two different venues. First, you can go through the CMS Enterprise secure portal. After logging in and completing the Multi-Factor Identification Process, simply select “Value Modifier Informal Review” from the PV-PQRS drop-down menu to begin submitting your request. Another option is to go through the Quality Reporting Communication Support Page. The link to the PQRS informal review page can be found under the “Communication Support Page” tab in the “Related Links” box. CMS has released a comprehensive guide to the informal review request process which can be found here.

Before making a request, you should review your 2016 PQRS Feedback Report and 2016 Annual Quality and Resource Use Reports (QRUR). Both of these reports were released on September 18, 2017. These reports can both be found in the CMS secure portal and require authorization to access. In order to gain access to these reports, you can register under one of four roles:

For group practitioners:

  • Security Official

  • Group Representative

For individual clinicians:

  • Individual Practitioner

  • Practitioner Representative

For more information on QRURs, you can check out our previous blog post discussing them.

Due to the 2018 Medicare Physician Fee Schedule Proposed Rule that was released on July 17, 2017, the PQRS reports and QRUR may be subject to change. The Proposed Rule suggests retroactively relaxing the Value Modifier Policy to allow more physicians to meet minimum requirements. The payment adjustments shown in the PQRS feedback reports are based on these proposals:

  • Reduce the automatic downward Value-Based Payment Modifier (Value Modifier) adjustment by half for practices that did not meet the minimum quality reporting requirements.

  • Hold all practices that met the minimum quality reporting requirements harmless from downward Value Modifier payment adjustments based on performance.

  • Reduce the maximum upward Value Modifier payment adjustment for performance for large practices to align with the adjustment for small and solo practices.

  • Reduce the number of measures that must be satisfactorily reported for the 2016 PQRS to avoid the 2018 downward payment adjustment from 9 measures across 3 National Quality Strategy domains to 6 measures with no domain requirement.

CMS will issue an update if these proposals are not finalized.

Your request for informal review must be made by December 1, 2017 at 8:00 PM Eastern Standard Time. Making a request for informal review can be a time-consuming and frustrating process so it is imperative that you get the ball rolling as soon as possible. When you request an informal review, you should be able to point to specific data in your 2016 PQRS feedback report and QRUR to show that you should not receive a downward payment adjustment. You need to do all the legwork for CMS to ensure that you have a fair shot at appeal.



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