April 20, 2009
 

 
"Red Flag" Enforcement Begins May 1
  

By Tim Beck, MD
President, Texas Orthopaedic Association

Will your practice be in compliance?  We thank AAOS and Marty Krawzyck for this article regarding this important May 1 deadline.

Last fall, the Federal Trade Commission (FTC) delayed enforcement of the "Identity Theft Red Flag Rule" (the Rule) from November 1, 2008,

until May 1, 2009, to give industries and professionals - such as physicians and other healthcare providers—who were unaware of their responsibilities time to comply. That deadline is just days away, and compliance is mandatory.

The Red Flag Regulations and Guidelines (§114 of the Fair and Accurate Credit Transactions Act, as amended in 2007) provides financial institutions and creditors with a framework for identifying patterns, practices, and specific forms of activity that indicate the possible existence of identity theft, defined as "a fraud committed or attempted using the identifying information of another without authority."

Challenges denied
Both medical associations and legal professionals have challenged the FTC, insisting that the Rule does not and should not apply to physicians and related healthcare providers. The challenges have focused on the following three issues:

  • Physicians are not creditors as defined by law.

  • Because healthcare providers are required to comply with the Health Insurance Portability and Accountability Act (HIPAA), they should not be required to comply with the Rule.

  • Compliance would pose a burden to medical practices.

In February the FTC responded, maintaining its position that physicians and other healthcare providers are covered by the Rule. The agency contends that intent of the Rule is to address all forms of identity theft, including those related to healthcare services. Under the FTC guidelines, physicians are creditors if they regularly bill patients for services.

The FTC also states that the Rule generally complements, rather than duplicates, HIPAA data security requirements and is designed to ensure that medical practices are alert to signs that a patient may be using fraudulent information to obtain medical services.

The FTC also noted that the Rule is flexible and tailored to the potential degree of identity theft faced by the individual physician. This risk-based criteria determines the simplicity or complexity of a medical practice’s individual written identity theft prevention program. For details on developing an identity theft prevention program for your practice, see "Identity theft: Could it happen in your office?", or search "Red Flag" on the online practice management center (www.aaos.org/pracman).

Why comply with the Rule?
Compliance is mandatory and under the Fair Credit Reporting Act, the FTC can impose monetary penalties for noncompliance. Practices need to demonstrate a good faith effort to comply with the Rule as evidenced by the development of a written identity theft prevention program. The program can protect patients and the practice from the significant, harmful effects resulting from identity theft.

Marty Krawczyk is a practice management coordinator in the AAOS practice management group; she can be reached via email by clicking here.

References

  1. The full text of the Final Red Flag Rules, Section 114 of the Fair and Accurate Transactions Act (FACTA)

  2. Consumer Identification Programs for Financial Transactions

  3. Red Flag and Address Discrepancy Requirements: Suggestions for Health Care Providers. The World Privacy Forum (September 24, 2008)

Click here to read Protect your patients, protect your practice: What you need to know about the Red Flags Rule.

Click here to read the instructions for completing the ID theft affidavit along with the ID theft affidavit.
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Become One Of The First Members Of The TOF Founders Circle
     

Dear Doctors,
 
Please join the Texas Orthopaedic Foundation (TOF) at our combined Annual Meeting with Texas Orthopaedic Association and Texas Society of Sports Medicine this weekend at the Sheraton Austin Hotel. The Foundation's Annual Business Meeting will be held on Friday, April 24 during lunch.

If you are not already a Board of Trustee of the Texas Orthopaedic Foundation, consider donating in 2009. I ask for your support in building

upon our vision to establish the primary orthopaedic education and research resource for Texas.

In addition to providing sustainable orthopaedic education and research opportunities, the Texas Orthopaedic Foundation was formed by TOA leaders to raise the publics’ awareness of orthopaedic medicine in Texas. Several years ago, I was proud to serve as president of the Texas Orthopaedic Association. I am now honored to serve as the Chair of the Foundation’s Board of Trustees.

We believe you share our appreciation for the many years of easily accessible, quality medical education and public relations programs that have been offered by the Texas Orthopaedic Association. The Texas Orthopaedic Foundation will now be dedicated to providing CME programming, including resident education, best paper awards and resident events such as the Resident Quiz Bowl. Our Foundation will also be the primary funding source for the Get Active! Texas public health campaign, promoting bone health and obesity prevention.

While TOA is nationally recognized for successfully tackling critical socioeconomic concerns and the regulatory issues facing orthopaedic practices in Texas today, the mission of the Texas Orthopaedic Foundation is to advance orthopaedic education and public awareness. The Foundation and TOA will work together to build a stronger orthopaedic community in Texas.

 

The Texas Orthopaedic Foundation has the same dedicated team of physician volunteers and industry leaders as TOA. Through the Foundation, our orthopaedic leaders will be free to develop high quality continuing medical education opportunities in accordance with ACCME guidelines. Dr. Marc DeHart, of Austin, serves as the Chair of the Continuing Medical Education Committee for the Texas Orthopaedic Foundation.

The ACCME guidelines will direct our choice of speakers and programming surrounding CME events. Under the Foundation, we hope to be the source of fine orthopaedic programming and will continue selecting physician faculty known in their fields. The Foundation strives to select speakers whose expertise will equip the orthopaedic community with superior CME course instruction to secure the best outcomes for our orthopaedic patients.

The Foundation also aims to impact the lives of Texans by increasing their knowledge of preventive orthopaedic care and by stressing the importance of maintaining a healthy musculoskeletal system. The Foundation’s public awareness programs will help bring awareness to orthopaedic treatment and conditions, creating a better understanding of how the citizens of Texas can improve their health through increased activity levels.

The Mission of the Texas Orthopaedic Foundation is to:

  • Create public awareness of the importance of musculoskeletal health in the State of Texas.

  • Encourage scientific, educational, and charitable endeavors which will promote and advance the science and art of orthopaedic surgery.

  • Support research and education on diseases and injuries of bones, joints, nerves, and muscles.

  • Enhance clinical care, leading to improved health, increased activity, and a better quality of life for patients in Texas.

This is how you can help.

To fund its programs, the Texas Orthopaedic Foundation will depend on contributions from the orthopaedic community, other caring individuals and our friends of orthopaedics in business. Your contributions will be dedicated to orthopaedic research and education in Texas.

By making a donation to the Texas Orthopaedic Foundation, you will become a member of the Board of Trustees. The Foundation’s website and meeting exhibit will list you as a donor Trustee, unless you wish to remain anonymous. Memorial or tribute gifts will list both donor and the person named for tribute.

While we encourage your donations and annual gifting at any point in the future, by giving $1,000, you will become a member of the TOF Founders’ Circle. We have extended the invitation to become a Founders' Circle Member until after our Annual Meeting.

 

There are many benefits to supporting the Texas Orthopaedic Foundation. By donating to the Foundation you will be able to:

  • Support orthopaedic continuing medical education and research

  • Support orthopaedic residents and their Texas training programs

  • Give a gift that will remain in Texas

  • Receive an income tax deduction; reduce capital gains tax or estate taxes

  • Help the Texas Orthopaedic Foundation develop clinical treatment guidelines

  • Facilitate public education of orthopaedic surgery and orthopaedic treatment.

If your gift is intended as a memorial or tribute, please indicate such on your contribution form. The Foundation’s first Memorial pledge was in honor of Albert Tisdale, MD. Many of you may remember Dr. Tisdale as the "TOA Photographer/Historian." He faithfully attended and photographed the TOA annual meetings and the past presidents breakfasts. Dr. Tisdale was also a former president of TOA from Austin.

Our Fund Development Committee is chaired by Dr. Jay Mabrey, of Dallas, and he welcomes any ideas for Texas Orthopaedic Foundation endowments. Ideas that have been mentioned by the TOF leadership have ranged from tributes to specific Texas orthopaedic residency training programs…to endowments to help fund orthopaedic medical missions in which our Texas pediatric orthopedists participate. Feel free to contact Dr. Mabrey or myself if you wish to serve on the Fund Development Committee.

The TOF Executive Committee has asked Howard Epps, MD, of Houston, to Chair the Grant Committee. Dr. Maureen Finnegan (TOA past president), of Dallas, has also agreed to serve on the Foundation’s Grant Committee. The Grant Committee is presently charged with selecting CME resident paper awards and research. As other programs are developed and funded, the Foundation’s Grant Committee will also be responsible for reviewing and approving scientific research grant applications, grants for clinical treatment guideline production and endowment fund distribution. Please remember that all funds are designated for Texas distribution only.

The Foundation will send an announcement, as well as the enclosed brochure, to all of our friends of orthopaedics in business and academia regarding the formation of the Texas Orthopaedic Foundation. We are certain that they will also benefit from quality orthopaedic education and will have an interest in keeping the orthopaedic community strong.

We are happy to bring this positive message to you about how and why the Foundation was formed. And, again…we ask you to join the TOA in welcoming the Texas Orthopaedic Foundation. The Foundation needs your help to support this important mission to build a stronger orthopaedic community through research and education.

I encourage you, as an orthopaedic surgeon, to accept our invitation to donate to the Texas Orthopaedic Foundation and becoming a member of the Founders’ Circle by visiting the Texas Orthopaedic Foundation website's donation page or by calling 1-512-370-1500.

With best wishes,

Bill Schreiber, MD, Chair
Board of Trustees
Texas Orthopaedic Foundation
www.toafoundation.org

P.S. As you consider my request, please know that your donation is an investment in orthopaedic education and research in Texas.

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This Week In Texas: Mignon McGarry Memos

By Mignon McGarry
TOA Legislative Advocate
TOA Online Version: All Memos

April 15, 2009, Wednesday
 The Texas Legislature is back in action after its last extended break prior to the end of session. So it is full steam ahead with House and

Senate Committees meeting multiple times a week along with specially called meetings to vote on bills previously heard in committee. The Senate will join the House in holding floor sessions on Fridays beginning this week.

The House is anticipating a long work day on Friday when they will debate their version of the state’s budget for the next biennium. Amendments were due last night at 9:00pm and the final count was 439 amendments. An additional 10 amendments were listed as received after the 9 p.m. deadline. Members won't delve into every amendment in detail on Friday. For example, 132 amendments are on the "wish list," meaning their viability will depend on the passage of separate authorizing legislation as well as the allocation of budget funds by the conference committee on the budget.

The Senate moved some major legislation forward yesterday when they passed Senate Bill 16, this session’s "clean air" bill and Senate Bill 855, a bill to allow most major metropolitan areas in the state to have local votes on new taxes and fees to fund local transportation projects. These bills now move to the House.

The University of Texas Board of Regents has named businessman James Huffines as its chairman. Huffines previously served as chairman from June 2004 to November 2007. He was selected to again chair the regents at a meeting Monday.

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AG Ends Probe Into Blue Cross Blue Shield Of Texas Physician Rating Program
      

By JASON ROBERSON / The Dallas Morning News
jroberson@dallasnews.com

The Texas Attorney General's office said Friday it ended a probe into a Blue Cross Blue Shield of Texas' physician rating program and reached an agreement with the insurer to stop ranking physicians using claims data.

Attorney General Gregg Abbott also resolved an investigation into Blue Cross' handling of out of network referrals. According to state investigators, Blue Cross had threatened to terminate physicians solely on the basis of referring patients to qualified specialists that were outside the Blue Cross provider network.

Abbott said Blue Cross cooperated with state authorities, but did not acknowledge any wrongdoing.

"We denied all of the allegations but have agreed to execute the [agreement] because this is not something we do today," said Darren Rodgers, president of Blue Cross Blue Shield of Texas. "So there is no impact to any current business practices."

The insurer no longer uses claims data to measure a physician's afford ability, a complex measure involving all steps taken and resources used in an episode of care. However, claims data - a physician's medical billing information to the insurer - is still used to measure a physician's compliance with certain accepted procedures, Rodgers said.

As for physician referrals to out-of-network physicians, Rodgers said: "We changed the language to more clearly state that we believe physicians have the right to discuss all available treatment options."

Insurers' ratings of doctors are seen as a benefit for consumers who demand better price and transparency in quality, but they've also been stumbling blocks in the payer-provider relationship.

All major health plans in Texas have, or are implementing, systems to designate which doctors get the highest ratings.

Some companies, such as Cigna Corp., put the best doctors in a separate network. Others, such as Blue Cross, issue State Fair-like ribbons, with dark blue the best and light blue acceptable, or no ribbon at all. The rankings are mostly accessible on insurers' Web sites.

Doctors complain that numbers don't tell the whole story; the insurers are scrutinizing bills submitted to them without talking to the doctor about the cases involved. Doctors also say they're downgraded when patients don't comply with orders or when an insurer makes a clerical error.

"TMA has asked state lawmakers for the past two legislative sessions to stop health plans from ranking physicians based on inaccurate and flawed claims data, and solely on cost," said Dr. Josie Williams, president of the Texas Medical Association, which represents 44,000 Texas doctors and medical students. "These ranking systems only serve to mislead employers and patients."

Dr. Bruce Malone, a TMA board member, lost his "cost-efficiency star" in United Healthcare's physician rating system two years ago.

As it turned out, his cost-efficiency ratio had been lowered after the insurer made a mistake and credited him with performing an open-heart surgery. An orthopedic surgeon in Austin, Malone has never performed heart surgery.

"We discontinued the use of certain affordability indicators voluntarily last July for a variety of reasons," Rodgers said. "We'll be introducing a revised indicator to assist members in determining relevant cost information for highly utilized services later this year."

Said Williams: "Our primary responsibility is to put patient care above all else, but it doesn't mean we don't need to be concerned about costs."
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Update: Bills Of Interest To TOA
    

Physical Therapy legislation (SB 433/HB 607)
These bills are still bottled up in their respective committees.

Imaging Bills (SB 1461/HB 2599)
These bills are still bottled up in their respective committees.

Emergency Care Standard of Proof (SB 152)
This bill is still bottled up in Senate State Affairs Committee.

Worker's Compensation (Various bills)
Several hearings have occurred in House and Senate Committees. The following bills are moving:
SB 378 by Van de Putte Relating to the designated doctor's examination under the workers' compensation system (Passed committee; Referred to Local & Consent Calendar)
HB 1166 by Leibowitz Relating to certain requirements for doctors providing professional services under the workers' compensation system (Passed out of House Business & Industry Committee; Headed to House Calendars)
SB 1815 by Van de Putte Relating to immunity from liability for doctors performing certain services at the request of the division of workers' compensation of the Texas Department of Insurance. (Passed out of Senate State Affairs; Referred to Local & Consent Calendar)
HB 3625 by Elkins Relating to deadlines regarding certain preauthorization requests affecting workers' compensation health care networks (Left pending in House Business & Industry Committee)

Corporate Practice of Medicine (SB 1500)
This bill was voted out of Senate State Affairs last week

The Budget (SB 1)
The House will debate the budget this Friday, April 18th. 439 amendments were pre-filed.

Revisions to the Margins tax (Various bills)
House Ways and Means Committee will hear testimony on over 36 proposed bills to alter the margins tax this Wednesday, April 16th

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Board That Disciplines Doctors May Be Reined In
 

Bill would create new oversight panel, force disclosure of some accusers.
 

By Mary Ann Roser AMERICAN-STATESMAN STAFF April 15, 2009

 

A bill that was the subject of a 5½-hour hearing Tuesday would sharply curtail the powers of the Texas Medical Board if it becomes law.

Backers argued that it would bring much-needed transparency and provide greater fairness to doctors whom, some say, the board is persecuting. They especially raised concerns about practitioners of alternative medicine and those who treat conditions such as autism.

Opponents, however, said the legislation would leave patients more vulnerable to bad doctors and make it difficult for patients to complain about physicians in a state where the Legislature has made it harder to sue for malpractice.

In the end, the House Public Health Committee said it would amend House Bill 3816, which also would disclose the names of some complainants to doctors and create an advisory committee to oversee the board. The committee didn't specify what it might change.

"I don't want to make a mistake," said chairwoman Lois Kolkhorst, R-Brenham.

The mission of the board, which licenses and disciplines doctors in Texas, is to protect the public.

"This bill does not keep faith with the people of Texas," said Melinda Fredricks of Conroe, who served on the medical board from 2003 to 2008. She said the state passed a tort reform law in 2003, and "as a trade-off, we toughened the medical board," which had been criticized as being too lax. Fredricks was the last to testify among two dozen people.

But supporters of the bill, authored by Rep. Fred Brown, R-Bryan, said the board has abused its authority and gone after minor infractions, costing doctors thousands of dollars, time away from their practices and sleepless nights.

The bill was co-authored by various individuals and groups, including the Association of American Physicians and Surgeons, which is suing the board in federal court, alleging misuse of its authority. Andy Schlafly, son of famous conservative activist Phyllis Schlafly, is general counsel for the group, which claims several thousand members.

"The board should not be telling people how to practice medicine," Schlafly said.

A provision in the bill that would prohibit the board from requiring a doctor to practice medicine in a particular manner is a big concern of the Texas Medical Association, said Dr. William Fleming, a Houston neurologist and president-elect of the association, who spoke against the bill.

The provision "severely weakens" the board's ability to sanction doctors who prescribe illegally or perform unproven therapies, he said.

But parents and some doctors at the hearing said the board is targeting doctors willing to treat children with autism, people with Lyme disease and others who suffer from ailments that many mainstream doctors won't touch.

In emotional testimony that had some in the audience in tears, Lamarque Polvado, a Dallas-area parent of a daughter with autism, said, "The medical board doesn't understand how few providers are willing to risk their license (to help). ... That's the type of provider I need."

Parents and others said they believe insurance companies are behind some anonymous complaints the board receives because they don't want to pay doctors for care.

Mari Robinson, the medical board's executive director, said just 1 percent of complaints come from insurance companies; 1 to 3 percent come from unknown sources; 8 to 12 percent come from other medical providers such as doctors and nurses; and 65 percent come from patients, family members or friends. All complaints are confidential by law.
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