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Did You Know? 

The Practice Compliance Committee created a "Did you know" question for each of the Academy's monthly E-newsletters, beginning with the April 2011 edition, highlighting the federal regulations impacting the practice of audiology. The questions are categorized by the topics listed below.

Americans with Disabilities Act

Fraud and Abuse Guidance

Health Insurance Portability and Accountability Act (HIPAA)

OSHA

Payment and Coverage for Audiology Services

Americans with Disabilities Act

July 2013 AtExtra
Did you know…Audiologists are required to provide "reasonable accommodations" for individuals protected under the Americans with Disabilities Act (1990). This includes providing a sign language interpreter when requested for appointments or even free educational seminars.  Some argue that paying an interpreter for a visit that will result in little or no revenue to the provider is not reasonable - the law does not agree. However, some accommodations are available for Audiologists: video remote interpreting (VRI) services can be an affordable option available to provide reasonable accommodations.  For more information see:
http://www.ama-assn.org/amednews/2009/01/05/prca0105.htm
http://www.ada.gov/regs2010/factsheets/title2_factsheet.html (see Item #7)
http://www.ada.gov/srchada.htm (search for "Effective Communication")

December 2012 AtExtra
Did you know renovations or alterations to current business structures must follow the 2010 ADA standards, which went into effect on March 15, 2012? The new standards are designed to limit architectural barriers and ensure public accommodations are readily accessible to and usable by individuals with disabilities. Audiology practices with 15 or more employees must provide parking spaces for vans with an access aisle to allow deployment of a van's wheelchair lift if it is "readily achievable" to do so. Readily achievable is defined in the 2010 standards as "easily accomplishable without much difficulty or expense." One of every six accessible parking spaces must be van accessible, according to ADA standards. Small businesses with limited parking (4 or fewer spaces) must have 1 van accessible parking space.  Existing facilities already in compliance with 1991 standards are not obligated to make changes under the Safe Harbor Provision.  This standard is relative to the size and financial resources of a business. Businesses with less than 15 employees are exempt from ADA.  For more information:
http://www.ada.gov/2010ADAstandards_index.htm
http://www.audiology.org/practice/compliance/Documents/20120222_ADA_Standards_presentation.pdf

October 2012 AtExtra
Did you know… health care facility landlords and tenants are equally responsible for complying with the Americans with Disabilities Act (ADA)? If you lease your practice location, check the terms of your lease to see if responsibilities are delineated (e.g. the landlord takes care of common spaces, the tenant takes care of areas with the leased office). If not, you may be liable for ADA violations in your parking lot, at your main entrance, or in common bathrooms for example.  For more information see http://www.ada.gov/medcare_mobility_ta/medcare_ta.htm

Fraud and Abuse Guidance

May 2013 AtExtra
Did you know under the Social Security Act, a person who offers a Medicare or Medicaid beneficiary any remuneration that is likely to influence their selection of a provider may be liable for civil penalties up to $10,000 for each item or service improperly claimed, and an assessment of up to three times the amount improperly claimed. Remuneration includes anything of value such as waivers of co-payments, deductibles and transfers of items or services for free or for other than fair market value.  However, inexpensive gifts or services (other than cash) with a retail value of no more than $10 individually and no more than $50 annually per person are permitted. For more information visit:
https://oig.hhs.gov/fraud/enforcement/cmp/index.asp
https://oig.hhs.gov/fraud/docs/alertsandbulletins/SABGiftsandInducements.pdf

April 2013 AtExtra
Did you know under the False Claims Act (FCA) whistleblowers that disclose fraud and contribute to the prosecution can be rewarded?  This reward provision is called qui tam and permits citizens to sue on behalf of the government and then be paid a percentage of the recovery.  Qui tam awards range from 15-30 % of the total recovery and are contingent upon whether the whistleblower and his counsel contribute to the prosecution of the case. The FCA also provides for the recovery of attorney fees and expenses. For additional information visit:
https://oig.hhs.gov/recovery-act-oversight/index.asp#accountability

September 2012 AtExtra
Did you know… if you are a paid consultant for a hearing aid manufacturer and you also use that manufacturer's products professionally, a potential conflict of interest exists, which may violate the Federal Anti-Kickback Statue (AKS)? If the company pays above market rates for work performed, there may be a conflict of interest. The compensation could be viewed as a reward for the relationship with the company. To avoid a violation of the AKS there should be a written agreement between the entities regarding work performed and compensation should be consistent with fair market value. Additionally, this relationship should be disclosed to patients by the audiologist.  For more information see http://oig.hhs.gov/compliance/physician-education/index.asp

August 2012 AtExtra
Did you know… routinely waiving deductibles or co-insurance can be a violation of the Medicare False Claims Act and/or the Anti Kick-back Statue? Routinely waiving co-pays may be seen as an inducement to drive utilization.
For more information see http://oig.hhs.gov

June 2012 AtExtra
Did you know… Many states have enacted their own Anti-Kickback and Stark laws. It is important to consult with a local attorney experienced in healthcare law when considering any new arrangement or relationship with another healthcare provider. For more information see the website of the state in which you practice for state Anti-Kickback and Stark laws applicable to the provision of healthcare in your particular state.

April 2012 AtExtra
Did you know…It is a likely violation of the Federal Anti-Kickback Statute for an audiologist to provide diagnostic testing for a physician at no cost or reduced cost in order to obtain hearing instrument referrals covered by a state Medicaid Plan?  For more information see:
https://oig.hhs.gov/authorities/docs/fraudalert.pdf
 https://www.cms.gov/PhysicianSelfReferral/

March 2012 AtExtra
Did you know… you can request a formal opinion from the OIG regarding specific business situations?  Although one can submit a question on their own to the OIG, there is a formal process Advisory Opinion request process that must be followed and an attorney who is familiar with the AKS can be of great help.   For more information see:
https://oig.hhs.gov/compliance/advisory-opinions/index.asp
42 CFR 1008.47 1128D (b) (5) (A) (v) of the Social Security Act                 

November 2011 AtExtra
 Did you know… if you rent space from a physician and pay rent above fair market value, it could be viewed as a kickback to induce referrals from that physician?   This could also be a violation of the AKS since the AKS prohibits any payment to induce referrals.  For more information see:
https://oig.hhs.gov/authorities/docs/fraudalert.pdf
 https://www.cms.gov/PhysicianSelfReferral/

October 2011 AtExtra
Did you know… the specifics of the entire situation must be considered when leasing space from a physician?  CMS can evaluate the appropriateness of rental agreements, rental amounts and associated time and space.  Among other things, always consider if the rent you pay is at fair market value.  For more information see OIG Special Fraud Alert, Feb 2000 at: https://oig.hhs.gov/authorities/docs/fraudalert.pdf
 https://www.cms.gov/PhysicianSelfReferral/

July 2011 AtExtra
Did you know… the Federal Anti-Kickback Statute prohibits receiving any remuneration for purchasing, ordering, or recommending the purchase or order, of products reimbursable under federal healthcare programs? This may be construed to include business development plans, incentives, and discounts based on unit purchases reimbursed by Medicaid and federal employee healthcare programs.  For more information see:  
https://oig.hhs.gov/compliance/physician-education/index.asp

Health Insurance Portability and Accountability Act (HIPAA)

June 2013 AtExtra
Did you know CMS recommends that HIPAA documents such as privacy disclosures, authorization forms, business partner contracts and notices of your information practice must be maintained for 6 years (45 C.F.R. § 164.530(j)(1)?
Additional documents that must be maintained include responses to a patient who wants to amend or correct his medical record, a patient's statement of disagreement with a medical record, and complaint records.  It is important to also check your state's medical association and insurance commission on recommended retention guidelines. For more information visit: http://www.audiology.org/practice/compliance/Pages/medicalrecordsretention.aspx

May 2012 AtExtra
Did you know…HIPAA permits covered entities to use and disclose protected health information without the authorization of individuals, and without providing individuals an opportunity to object, in certain circumstances?  One of those circumstances is when the covered entity is carrying out "health care operations" to the extent that the activities are related to the entity's covered functions.   "Health care operations" are certain administrative, financial, legal, and quality improvement activities of a covered entity that are necessary to run its business and to support the core functions of treatment and payment. Some examples of these activities, which are limited to the activities listed in the definition of "health care operations" at 45 CFR 164.501, include: evaluating practitioner and provider performance, accreditation, certification, licensing, or credentialing activities; case management and care coordination; and, the sale, transfer, merger, or consolidation of all or part of the covered entity to or with another covered entity, or an entity that will become a covered entity as a result of the transaction, as well as the due diligence activities in connection with such transaction. For more information see:
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/usesanddisclosuresfortpo.html
http://edocket.access.gpo.gov/cfr_2002/octqtr/45cfr164.501.htm
http://edocket.access.gpo.gov/cfr_2002/octqtr/45cfr164.506.htm
http://www.hhs.gov/hipaafaq/providers/treatment/index.html
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/usesanddisclosuresfortpo.html

February 2012 AtExtra
Did you know... digital copiers can store personal information forever?  Many digital copies especially those manufactured since 2002, store images of all transmissions.  Absent proper disposal of those copiers, destruction of the hard drive or encryption of the data confidential patient tests or records could be accessed.  For more information see:
Copier Security:
http://business.ftc.gov/documents/bus43-copier-data-security
http://business.ftc.gov/blog/2010/12/data-security-copi-er
Disposal Rules: http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/disposalfaqs.pdf
Media Sanitization
http://csrc.nist.gov/publications/nistpubs/800-88/NISTSP800-88_rev1.pdf

January 2012 AtExtra
Did you know…HIPAA can apply to wireless networking?  An attacker within range of your wireless signal with a strong antenna and some basic knowledge can access your data and your patient's protected health information. You could be violating HIPAA by using your password protected wireless network without taking further actions to secure the data.  For more information see: 
http://healthit.hhs.gov/portal/server.pt?open=512&objID=1173&parentname=CommunityPage&parentid=3&mode=2&in_hi_userid=10741&cached=true
http://www.hhs.gov/ocr/privacy/hipaa/administrative/securityrule/securityruleguidance.html
http://www.privacyrights.org/fs/fs2-wire.htm#6
http://www.fylrr.com/archives.php?doc=NISTSP800-88_rev1.pdf
http://business.ftc.gov/documents/bus46-peer-peer-file-sharing-guide-business

September 2011 At Extra
Did you know… for a healthcare business to remain HIPAA compliant while using social networking it is advisable to post your current privacy policy (HIPAA) forms on your website?  A link on your web site titled "Privacy Policy" with the HIPAA forms posted on the page behind the link should suffice to inform all participants of your privacy policies.  Never post personal or private health information or identify your patients without their written permission.  For more information see: http://www.hhs.gov/ocr/privacy/hipaa/faq/health_information_technology/567.html

August  2011 AtExtra
Did you know…HIPAA does not prohibit AuD students from accessing patient's medical records in the course of the student's training?  Under the minimum necessary requirement, the covered entity must take reasonable steps to limit protected health information (PHI) used or disclosed to the minimum necessary required to accomplish the purpose of or the use for the disclosure. It is advisable to have the supervisor ask for the patient's written approval prior to rendering the service or allowing the student to access the PHI.  For more information see: http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/minimumnecessary.html

May 2011 AtExtra
Did you know…HIPAA Privacy Rules require you to accommodate patient requests for confidential communication?  Utilizing post cards for communication with patients or for patient reminders can be problematic when such confidentiality requests have been made.  One solution could be to opt for a conservative approach and send all mailed correspondence in sealed envelopes.  For more information see
http://www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/privruletxt.txt

April 2011 AtExtra
Did you know… the Office for Civil Rights enforces the HIPAA Privacy Rule, which protects the privacy of individually identifiable health information; the HIPAA Security Rule, which sets national standards for the security of electronic protected health information; and the confidentiality provisions of the Patient Safety Rule, which protects identifiable information being used to analyze patient safety events and improve patient safety.  Audiologists must comply with HIPAA during the practice of audiology.  For more information see:  
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/index.html
http://www.hhs.gov/ocr/privacy/hipaa/administrative/securityrule/
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/marketing.html

OSHA

November 2012 AtExtra
Did you know…The Occupational Safety and Health Administration (OSHA) has specific guidelines that audiologists are required to follow? Audiologists must have in place an infection control program that follows OSHA guidelines, including written procedures that define protocols for limiting the spread of disease. Annual infection control training for employees may also be necessary to be compliant with OSHA guidelines. For more information see http://www.osha.gov/as/opa/worker/employer-responsibility.html

Payment and Coverage for Audiology Services

March 2013 AtExtra
Did you know CMS currently has a Medicare incentive program in place to encourage the use of electronic health records; however, audiologists are not currently eligible to participate in the program?  Eligible professionals include physicians, dentists, podiatrists, optometrists and chiropractors. For more information visit:
http://www.cms.gov/Regulations-and-Guidance/Legislation/EHRIncentivePrograms/Basics.html

February 2013 AtExtra
Did you know that your audiology practice must be in compliance with new ICD-10 diagnosis coding system by October 1, 2014? On October 1, 2014, medical coding in U.S. health care settings will change from ICD-9-CM to ICD-10. The transition will require business and systems changes throughout the health care industry. Everyone who is covered by the Health Insurance Portability and Accountability Act (HIPAA) must make the transition, not just those who submit Medicare or Medicaid claims. If you are not ready, your claims will not be paid. Preparing now can help you avoid potential reimbursement issues. For more information and compliance resources, visit:
http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/downloads/SE1239.pdf
http://www.audiology.org/practice/coding/ICD-10-CM/Pages/default.aspx

January 2013 AtExtra
Did you know…according to CMS, audiologists cannot opt-out of providing covered services to Medicare beneficiaries?  The opt-out law does not define "physician" or "practitioner" to include audiologists; therefore, they may not opt-out of Medicare and provide services under private contracts.  Additionally, according to the mandatory claims submission provision of section 1848(g)(4) of the Social Security Act when an audiologist provides a service that is covered by Medicare, that audiologist must submit a claim to Medicare. For more information see Chapter 15, section 80.3 (audiology service), of the Medicare Benefit Policy Manual at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf

July 2012 AtExtra
Did you know that according to CMS, medical necessity is not necessarily established with a physician's order?  Coverage and, therefore, payment for diagnostic tests is determined by the reason the tests were performed rather than by the diagnosis, the patient's condition, or the simple presence of a physician's order. Examples of appropriate reasons for ordering diagnostic tests that could be covered include, but are not limited to:

  • Evaluation of suspected change in hearing, tinnitus, or balance;
  • Evaluation of the cause of disorders of hearing, tinnitus, or balance;
  • Determination of the effect of medication, surgery, or other treatment;
  • Failure of a screening test (although the screening test is not covered);
  • Diagnostic analysis of cochlear or brainstem implant and programming; and
  • Audiology diagnostic tests before and periodically after implantation of auditory prosthetic devices.

Referrals for hearing tests for the purpose of fitting hearing aids are never a covered benefit under Medicare and should not be billed to Medicare, even with a physician's order.  Diagnostic hearing tests absent a physician order also are not covered by Medicare.  Diagnostic hearing tests that meet the coverage criteria are a covered benefit under Medicare and, in these cases, the physician order should be dated prior to the date of service for both the claim form and the test results. For more information see Chapter 15, section 80.3 (audiology service), of the Medicare Benefit Policy Manual at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf