First Healthcare Compliance CONNECT May 2019

®
CONNECT
An Exclusive Monthly Publication for Clients
Joint Commission
and the Value of
Accreditation
4 Laws that Impact
Drug Testing of
Healthcare Employees
Q&A: The Role of
Boards in Healthcare
Compliance
Fire & Life Safety
Compliance: Trends
& Topics in Health
Care Facilities
Common Elements of
Corporate Integrity
Agreements
New Training
Modules
Client FAQ Corner
May 2019

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In This Issue:
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Joint Commission and the Value of Accreditation
4 Laws that Impact Drug Testing of Healthcare Employees
Client FAQ Corner
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Compliance Super Ninja
Michael Wolf
Practice Administrative Assistant/Compliance Coordinator
Total Care Physicians
How would you describe your experience with First Healthcare Compliance?
My experience with First Healthcare Compliance has been a very positive and productive relationship. There has
never been a time where I had to contact them for a question or concern and not get a helpful answer. All the staff
that I have talked to have been kind and courteous. I can tell from many conversations that they take their job very
seriously and want to make sure that their clients are up to date and knowledgeable about HIPAA/OSHA compliance.
What do you enjoy most about working with Total Care Physicians-Wilmington, Newark &
Glasgow?
I’ve been with the company since 2002. I started out as a file clerk managing physical records for the practice
and have worked in other positions that have allowed me to have a great positive relationship with our patients.
However, working in an administrative roll has given me a different perspective on how a medical practice works. In
having said that, what I enjoy most about working for Total Care Physicians is learning the in’s and out’s of running
a practice. After so many years of working with doctors and patients on the front lines, it has been a very rich and
rewarding experience to learn what goes on “behind the scenes”.
Would you rather be able to be free from sales and marketing phone
calls or free from email spam/junk mail for the rest of your life? Why?
Definitely the phone calls. With email, they will get filtered into the appropriate folder
and you don’t notice it as much until you completely clear out those folders. The calls
on the other hand are just too much. Most of the time I don’t even answer my phone
anymore.
Each month we highlight one exceptional compliance professional chosen by our client
services team. If our team notices your compliance chops, you might be the next Ninja!
1st Talk Compliance - Fire & Life Safety Compliance: Trends & Topics in Health Care
Facilities
Infographic: Common Elements of Corporate Integrity Agreements
Q&A: The Role of Boards in Healthcare Compliance
New Training Modules
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Client FAQ Corner
Does HIPAA allow patients to electronically sign an authorization
form?
Yes. HIPAA does not prohibit electronic signatures but there are no regulations or
guidance from the Department of Health and Human Services (HHS) regarding
standards on electronic signatures. Therefore, electronic signatures need to
comply with the Federal Electronic Signatures in Global and National Commerce
(ESIGN) Act and the Uniform Electronic Transactions Act (UETA).
How have HIPAA fines changed?
On April 30, 2019, HHS issued a Notification of Enforcement that changed the
agency’s interpretation of maximum fines based on the organization’s level of
culpability. The following penalty tier structure was released and will be adjusted
for inflation, which changed the previous annual limit of 1.5 million that applied to
each tier.
Culpability Minimum penalty Annual Limit
No Knowledge $100 $25,000
Reasonable Cause 1,000 100,000
Willful Neglect - Corrected 10,000 250,000
Willful Neglect - Not Corrected 50,000 1,500,000
Explore the FAQs tab in your compliance solution to find
answers to your compliance questions!
New Release Applied To Your System 4/13/2019
The update includes changes to:
• Password reset procedures
• Vendor zone warning intervals
• License/certification warning emails
• Manager/supervisor lists
Contact Client Services
for additional details.
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Joint Commission and the Value of Accreditation
By Julie Sheppard, BSN, JD, CHC
Around the world accreditation is used to assure a high
baseline level of healthcare quality. In the United States,
accreditation is a multi-million-dollar industry without any
sign of slowing down because it’s compulsory for federal
payments and a marketing necessity in an increasingly
competitive landscape.
It’s no secret that healthcare organizations in the United
States depend on revenue. Funding is complex and comes
from various plans including the major federal contributors
of Medicare and Medicaid. In order to receive federal
payments from Medicare or Medicaid programs, a health
care organization must meet the government requirements
for program participation, including a certification of
compliance with the health and safety requirements
called Conditions of Participation (CoPs). Options exist for
meeting CoPs: 1) A survey may be conducted by a state
agency on behalf of the federal government or 2) a survey
by a national accrediting organization such as the Joint
Commission that has been recognized by the Centers for
Medicare & Medicaid Services (CMS).
There are other eligible national accrediting organizations
that conduct surveys to determine whether an organization
meets or exceeds Medicare and Medicaid requirements,
but the Joint Commission is the oldest accrediting body and
accredits or certifies over 21,000 health care organizations
in the United States today. In 1951 a joint agreement
among the American College of Physicians, the American
Hospital Association, the American Medical Association, the
Canadian Medical Association and the American College of
Surgeons created the Joint Commission on Accreditation
of Hospitals (JCAH). The mission statement of the Joint
Commission began explicitly referencing patient safety
during the 1990’s and later programs like Speak Up
were launched to help patients and their advocates become
active in their care.
New standards for Joint Commission are developed and
added only if they relate to patient safety or quality of
care, have a positive impact on health outcomes, meet
or surpass law and regulation, and can be accurately
and readily measured. Those with input include health
care professionals, providers, subject matter experts,
consumers, and government agencies (including CMS).
The accreditation process is lengthy and incorporates
performance-improvement strategies, provides education,
and includes advice and counsel from surveyors during
the on-site survey. Surveys by the Joint Commission
are designed to be organization-specific and consistent.
Resources and consultants are available to help prepare
with mock surveys.
Marketing is part of the drive to achieve accreditation
or certification status. Accreditation is a means of
proving quality to the community and the competition.
After earning accreditation or certification, health care
organizations receive The Joint Commission’s Gold Seal
of Approval®. Sometimes the terms accreditation and
certification are mistakenly used interchangeably. Both
accreditation and certification require an evaluation
by The Joint Commission, but they apply to different
types of entities. The evaluation covers compliance
with the standards and other requirements and verifies
improvement activities.
Joint Commission accreditation can be earned by many
types of health care organizations, including hospitals,
doctor’s offices, nursing homes, office-based surgery
centers, behavioral health treatment facilities, and
providers of home care services. Certification is earned
by programs or services that may be based within or
associated with a health care organization. For example,
a Joint Commission accredited medical center can have
Joint Commission certified programs or services with
neurological or orthopedics. These programs could be
within the medical center or in the community. Other
certifications include health care staffing services,
integrated care, medication compounding, memory care,
and primary care medical home.
Studies regarding the impact of accreditation on
patient outcomes lead to questions about the value of
accreditation in healthcare. These are important questions
because physician depression and burnout rates are at
an all-time high and this process increases the burden for
physicians and administrators. Whether working toward
accreditation or certification with Joint Commission or
another accrediting body, an organization will heavily
invest time and resources. Achieving many of the
standards proves challenging especially for ambulatory
care centers and smaller organizations.
Understandably, stakeholders with different roles have
disparate opinions about the value of accreditation
regarding quality improvements and financial incentives.
Skeptics and pragmatic minds view accreditation as a
means to improve the bottom line through marketing
and revenue from federal programs without a definite
correlation to better patient outcomes. Others opine that
patient outcomes measurably improve with accreditation.
Still others view investment of time and resources in
accreditation as worthy due to a correlation of process
improvement, patient care and the financial outcome.
It’s fortunate that Joint Commission standards align with
a robust healthcare compliance program. For instance,
there’s even an OSHA alliance that aims to provide
information, guidance, and access to resources that
will help protect the health and safety of workers, and
understand the rights of workers and the responsibilities
of employers in healthcare.
6 First Healthcare Compliance, LLC © 2019
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HIPAA Privacy and Security
This book provides an easy-tounderstand
overview of HIPAA and how
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their employees.
Q&A: The Role of Boards in Healthcare
Compliance
By Catherine Short
Jennifer Gimler Brady, Partner and General Counsel at
Potter Anderson & Corroon LLP presented the webinar “The
Role of Boards in Healthcare Compliance”, now available
in the Training Zone. Ms. Gimler Brady returned to answer
many commonly asked questions.
What are some of the biggest risk areas for health care
organizations, and what role does the board play with
regard to those risks?
Health care organizations operate in a highly regulated
environment. Some of the most significant areas of
exposure for health care organizations are billing and
documentation, information technology and data security
and privacy, and health care quality. A board exercises
its oversight function when it assesses areas of risk for
the health care organization, including obtaining and
reviewing information from internal and external sources,
and evaluates the effectiveness of the organization’s
compliance program.
Is it important for board members of health care
organizations to have backgrounds and experience in
health care operations?
It’s helpful for board members to have a basic
understanding of the environment in which the health
care organization operates, but it is not necessary for
board members to have direct experience in health care
operations. Boards typically are comprised of individuals
with a wide variety of professional backgrounds: finance,
law, real estate, and human resources, for example.
Having a board member with a health care compliance
background would be beneficial and could send a
powerful message about the organization’s commitment
to compliance. But all board members should have an
interest in and curiosity about health care compliance,
including a willingness to learn about the organization’s
operations, ask probing questions, and seek expert
guidance when necessary to assist the board in fulfilling its
oversight responsibilities. Boards can’t claim ignorance or
lack of expertise.
Is it the board’s responsibility to develop a health care
organization’s compliance plan?
It isn’t the responsibility of the board to develop the nuts
and bolts of an organization’s compliance plan. That is a
management function. But the board reviews, approves
and oversees the compliance plan to ensure that it’s
effective, and the board sets the tone for the organization
in terms of creating a culture of compliance, where
everyone in the organization understands that compliance
is a priority and is non-negotiable.
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What are some key things a board should look for to
assess whether an organization’s compliance plan and
culture are effective?
The board should periodically probe such things as:
• are compliance issues being reported, and if not, are
there impediments to reporting;
• if issues have been reported, have they been
investigated, and if substantiated, what steps has the
organization taken to address the issues;
• are there trends in the issues being reported;
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• are individuals in the organization receiving training
on the compliance program and specific compliance
topics;
• is the compliance program effective and are any
revisions or updates recommended.
The board should obtain updates from informed staff during
regular meetings, attend outside training programs, and
retain outside advisors, with a goal of understanding the
business climate well enough to ask the right questions
of management to make well-informed decisions for the
organization.
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The Fundamentals course is packed with useful, easy-to-understand
information that covers HIPAA, OSHA, employment law and enforcement
of federal healthcare laws.
4 Laws that Impact Drug Testing of Healthcare
Employees
By Sheba Vine, JD, CPCO
Employees that abuse drugs in the workplace cause major
disruptions due to their lack of productivity, poor performance,
potential for work place injuries and their negative impact on
other employees. In developing and enforcing an effective drug
testing policy, compliance with applicable federal and state laws
should be a high priority to avoid unnecessary legal liability.
There are different types of drug testing including:
• Pre-Employment testing that occurs after a conditional offer
of employment is extended;
• Reasonable Suspicion testing that is based on the
employer’s reasonable suspicion that the employee is under
the influence of drugs, based on objective and observable
factors, such as employee appearance, speech, and/or
behavior in the workplace;
• Post-Accident testing following a workplace accident;
• Random or Periodic Testing during employment.
State laws on drug testing in the workplace vary considerably
so it’s important to review and comply with applicable state and
local laws. This is especially true when testing for marijuana—
an increasing number of states are legalizing medicinal and/or
recreational use, along with providing workplace protections for
such users. Therefore, compliance with state law is integral to
maintaining a valid drug testing program.
In addition, compliance with the following federal laws should
also be top of mind:
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII applies to employers with 15 or more employees and
prohibits discrimination in employment on the basis of race,
color, religion, national origin, and sex. Drug testing programs
that are applied inconsistently and that target certain employees
can form the basis of an unlawful discrimination claim. To avoid
this, employers should ensure that drug testing programs are
reduced to written policies, that management is trained on these
policies and applied consistently.
The American with Disabilities Act (ADA)
The ADA applies to employers with 15 or more employees
and prohibits employers from discriminating against a
qualified individual with a disability and are generally required
to provide reasonable accommodations (after engaging in
the interactive process unless an undue hardship or direct
threat exception applies). The ADA provides protections for
an applicant/ employee’s use of prescription drugs taken
under the supervision of a licensed health professional. But
it does not protect illegal drug use. For ADA compliance, the
employer should not have a blanket drug testing policy that
covers legally prescribed medications. For a job applicant or
employee that tests positive, the ADA permits the employer to
inquire about prescribed drug use. This is an important step
before termination or otherwise taking adverse action against
the individual. Further, if the individual is taking prescription
medication for a qualifying disability, then the employer is
required to take part in the interactive process to determine if
The course takes less than four hours to complete, and the modules can
be viewed in any order. A certificate of course completion is provided
following successful completion of the online course and exam.
the individual needs an accommodation to perform the essential
functions of the job.
Occupational Safety and Health Administration (OSHA)
OSHA revised its recording and reporting occupational injuries
and illnesses regulation that went into effect December 1, 2016.
The regulation included anti-retaliation protections to encourage
employees to report work-related injuries, among other changes.
Specifically, employers are prohibited from discouraging
employees from reporting an injury or illness. It also clarifies
the requirement that an employer’s procedure for reporting
work-related injuries and illnesses must be reasonable and not
deter/discourage employees from reporting; and incorporates
the existing prohibition on retaliating against employees for
reporting work-related injuries or illnesses.
In the preamble of the final rule, OSHA noted that a blanket postaccident
drug and alcohol testing policy could be retaliatory:
“Although drug testing of employees may be a reasonable
workplace policy in some situations, it is often perceived as
an invasion of privacy, so if an injury or illness is very unlikely
to have been caused by employee drug use, or if the method
of drug testing does not identify impairment but only use at
some time in the recent past, requiring the employee to be drug
tested may inappropriately deter reporting…OSHA believes the
evidence in the rulemaking record shows that blanket postinjury
drug testing policies deter proper reporting.”
OSHA made it clear that the final rule allows post-accident
drug and alcohol testing, but explained that there should be
a reasonable possibility that drug use by the employee is a
contributing factor to the reported injury or illness in order for
an employer to require drug testing. (Testing required by state
worker’s compensation laws is not impacted by this rule). As an
example, OSHA noted that it wouldn’t be reasonable to drug-test
an employee who reports a bee sting, a repetitive strain injury,
or an injury caused by a lack of machine guarding or a machine
or tool malfunction.
Based on this rule, blanket requirements for post-accident drug
or alcohol testing could be retaliatory and grounds for an OSHA
citation. This does not apply to other types of testing such as
pre-employment, reasonable suspicion, and random testing.
Health Insurance Portability and Accountability Act (HIPAA)
HIPAA, which applies to Covered Entities and Business
Associates, requires a release before Protected Health
Information (PHI), such as drug testing results, can be provided
to the employer. Thus, a HIPAA release must be signed before
the employee is subjected to drug testing so that the results are
obtained in accordance with HIPAA.
Generally, HIPAA does not apply to an employer and its
employee files, even if employee files contain medical records.
Even so, it is important to keep employee health-related
information confidential and filed in a separate confidential file,
separate from the employee’s personnel file.
There are instances when HIPAA will apply, such as when
the employer is a Covered Entity and treats job applicant’s or
employees as patients. This occurs if the health care provider
decides to conduct drug testing in-house— drug testing results
are treated as PHI and protected under HIPAA.
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WORD SEARCH
hosted by Catherine Short
On this month’s podcast, Catherine Short talks with Stan Szpytek, President of Fire
and Life Safety, Inc. about “Fire & Life Safety Compliance: Trends & Topics
in Health Care Facilities.” On this episode, new requirements, trends and best
practices will be reviewed to help providers understand the critical importance of a
safe and compliant environment of care. We will review specific code requirements
(NFPA 101 and 99) that apply to regulated health care facilities by CMS and other
authorities having jurisdiction, highlight new code requirements that are now being
enforced by CMS including annual Fire Door Assembly Inspection and the NFPA 99
Risk Assessment. We will process, and motivate and educate listeners to understand
the critical importance of life safety compliance in regulated health care facilities and
strategies for survey success.
Listen weekdays at
7:30am, 3:30pm, 11:30pm ET
Check out our Show Page!
Looking for the latest compliance insights?
Subscribe to our feed and don’t miss a thing!
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New Training Modules Now Available!
The Role of Boards in Healthcare
Compliance
Front Desk Success with Medical
Receptionist Engagement
Training
Medical Cannabis: Legal and Practice
Considerations
Fire & Life Safety Compliance in Health
Care Facilities
Compliance Program Effectiveness:
Auditing and Monitoring
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