A Medley of Compliance Questions

By Mary R. Daulong, PT, CHC, CHP
March 2014
Q:  Is it true that physicians and other health care providers will be expected to implement a Compliance Program soon?
A:  Yes, in fact, Section 6401 of Accountable Care Act (ACA) (“Provider Screening and Other Enrollment Requirements under Medicare, Medicaid, and CHIP”) now requires that providers implement compliance programs as a condition of enrollment in Medicare, Medicaid, and CHIP. The ACA has instructed the Secretary of Health & Human Services, in consultation with the Office of the Inspector General (OIG), to develop ‘core elements’ for the mandatory compliance programs. As of today, those ‘core elements’ have not been published, but a good starting place would be to utilize the OIG’s Compliance Guidances for Individual & Small Physician Practices at: http://oig.hhs.gov/compliance/compliance-guidance/index.asp as well as the Small Entity’s Compliance Guide at this link: http://www.cms.gov/Regulations-and-Guidance/Guidance/SmallEntity/index.html?redirect=/SmallEntity/. Keep in mind, your compliance program should include all local, state, and federal regulations that govern you as a health care practitioner and a business owner.

Q:  When do I use the advanced beneficiary notice (ABN) for a Medicare patient?
A:  The answer has two major components:

Not Medically Necessary or Reasonable — Therapists are required to issue a properly completed ABN to traditional Medicare beneficiaries prior to providing therapy that is not medically reasonable and necessary prior to hitting the therapy cap (example: maintenance, wellness, and injury prevention, services that do not comply with Local or National Coverage Determinations).

A claim does not have to be filed in the above situation, but the ABN must be properly executed and maintained in the patient’s clinical record.

A claim may be filed for the purposes of obtaining a denial from Medicare in order to claim secondary benefits, if any exist. The proper modifier on the claim would be the GY modifier.

Therapy Cap-Limitation of Liability — On January 1, 2013, a new therapy cap requirement, based on the Limitation of Liability, was implemented by the Centers for Medicare and Medicaid Services (CMS). According to the new regulation, in order for payment liability to be transferred to the patient, he or she must have been given a compliant ABN, prior to providing services above the cap, when the patient does not qualify for an exception. The ABN informs the beneficiary why Medicare may not or will not pay for a specific item or service and allows the beneficiary to choose whether or not to receive the item or service and accept financial responsibility. ABN issuance allows the provider to charge the beneficiary if Medicare does not pay. If the ABN is not issued when it is required and Medicare does not pay the claim, the provider/supplier is liable for the charges.

A claim does not have to be filed in the above situation, but the ABN must be properly executed and maintained in the patient’s clinical record.

A claim may be filed for the purposes of obtaining a denial from Medicare in order to claim secondary benefits, if any exist. The proper modifier on the claim would be the GA modifier (Medicare denies all claims with the GA modifier).

Q:  It is true that the American Medical Association has released a statement regarding minimum time required for a timed CPT code to be billed for all payers unless the payer’s methodology is more stringent, i.e., Medicare?
A:  Yes, that is a true statement. AMA has stated that for a unit of timed services to be billed, at least half of the unit of time (listed for the CPT code) must be attained in one on one care.1

  • One (1) unit of 97110 requires a minimum of 7.5 minutes of 1:1 time
  • Two (2) units of 97110 requires a minimum of 22.5 minutes of 1:1 time
  • One (1) unit of 97110 and one (1) unit of 97140 require 7.5 each of 1:1 time

Q:  Is health information in an employee’s personnel file covered under the Health Insurance Portability and Accountability Act (HIPAA)?
A:  No. Information contained in personnel files are maintained under state law. For example, if the employee has had drug tests done at the request of the employer, these are not considered health records; they are considered part of the personnel file and are not covered under HIPAA.

Q:  What is the difference between “consent” and “authorization” under the HIPAA Privacy Rule?
A:  “Consents” are voluntary and are typically used by a covered entity to obtain a patient’s consent for uses and disclosures of protected health information (PHI) for treatment, payment, and health care operations (T-P-O).

“Authorizations,” on the other hand, are mandated by the Privacy Rule for the use and disclosure of PHI not otherwise allowed by the Rule. An authorization has mandated content and elements that give the covered entity permission to use PHI for specific purposes, generally, other than T-P-O or to disclose protected health information to a third party specified by the individual.

Q:  May covered entities leave messages for patients at their homes, either on an answering machine or with a family member, to remind them of appointments?
A:  Yes, the HIPAA Privacy Rule does not prohibit covered entities from leaving messages for patients on their answering machines. However, covered entities should take care to limit the amount of information disclosed to a family member or on the answering machine. Covered entities should use professional judgment to assure that such a disclosure utilizes “minimum necessary” standard and does not violate the patient’s request for confidential communication.

Q: Do I need to put an OSHA poster in my workplace?
A:  All covered employers are required to prominently display the official Occupational Safety and Health Administration (OSHA) “Job Safety and Health–It’s the Law” poster that describes rights and responsibilities under the Occupational Safety and Health Act. Federal government agencies must use the Federal Agency poster. Employers do not need to replace previous versions of the poster. The OSHA poster (OSHA 3165) is available for free from the OSHA Office of Publications. To download or order the free poster, visit OSHA’s Publications page. Clicking “order now” will place the item in a virtual cart on the right hand side of the screen.

Q:  What OSHA requirements apply to private practice employers?
A:  Some of the key OSHA standards that apply to health care employers (including physical therapy practices) are:

Hazard Communication Standard — This standard is designed to ensure that employers and employees know about hazardous chemicals in the workplace and how to protect themselves. Employers with employees who may be exposed to hazardous chemicals in the workplace must prepare and implement a written Hazard Communication Program and comply with other requirements of the standard. The 2012 Hazard Communication Standard Revisions went into effect December 1, 2013.

Bloodborne Pathogens Standard — OSHA issued this standard to protect employees from the health hazards of exposure to bloodborne pathogens. Employers are subject to OSHA’s Bloodborne Pathogens standard if they have employees whose jobs put them at reasonable risk of coming into contact with blood or other potentially infectious materials. Employers subject to this standard must develop a written exposure control plan, provide training to exposed employees, and comply with other requirements of the standard.

Other Hazards at Health Care Facilities
  • Ergonomic Hazards
  • Illnesses & Injuries
  • Workplace Violence
  • Slips, Trips & Falls Hazards
  • Tuberculosis Management
  • Emergency & Safety Programs
  • Latex Allergies Management
General Duty Clause
  • Each employer shall:
    • Furnish to each of his employees a place of employment which is safe from recognized hazards that could cause or likely to cause death or serious physical harm.
    • Comply with OSHA standards promulgated under this Act.
  • Each employee shall comply with OSHA and all rules, regulation and orders pursuant to this Act which are applicable to his own actions and conduct.
Sample Health & Safety Program for Small Business

Q:  How soon does the I-9 (Employment Eligibility Verification) form have to be completed after employment?
A: The I-9 must be completed within three (3) working days from the date of hire. The I-9 Form:
  • Must be completed for all new hires, including temporary or part-time employment;
  • Must be completed for all employees working in the U.S., even if on payroll abroad;
  • Is not required for independent contractors;
  • Is not required for pre-11/07/86 hires (grandfathered employees);
  • Is not required for employees working outside the U.S. or outside its territories.
The penalties for not completing the I-9 form (in entirety) is as follows:
  • Violations of I-9 requirements: fines range from $110 – $1,100 per I-9.
  • Knowingly hiring or continuing to employ: fines range from $375 – $3,200 per alien
  • Pattern or practice: $3,300 – $11,000
  • Debarment from government contracts for “knowingly employing an unauthorized worker”
  • Criminal penalties: fines and/or imprisonment
  • The current I-9 Form and instructions can be located at:

Mary R. Daulong, PT , CHC, CHP, is a PPS member and the owner of Business & Clinical Management Services, Inc., a consulting firm specializing in outpatient therapy compliance, including documentation, coding and billing, enrollment and credentialing, and Health Insurance Portability and Accountability Act and Occupational Safety and Health Administration regulation education. She is also the author of both The Private Practice Compliance Manual and The Third-Party Biller Compliance Manual. She can be reached at daulongm@earthlink.net.

1.  CPT 2012. American Medical Association. Chicago. 2012. p. xvi.

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