2. Legal and Ethical Issues Carolyn Heyman-Layne Dorsey & Whitney LLP September 2008

3. Legal and Ethical Issues in Documentation Legal Legal State Law State Law Federal Law Federal Law General Liability General Liability Contracts Contracts Audits Audits Ethical Ethical Conflicts of Interest Conflicts of Interest Revision of Records Revision of Records Disposal of Records Disposal of Records

4. State & Federal Law Alaska Alaska Document Retention Document Retention Medicaid Medicaid Reporting Requirements Reporting Requirements Specialized Records Specialized Records Federal Federal HIPAA Medicare Medicaid JCAHO

5. Alaska Medicaid Documentation is key to successful audits Documentation is key to successful audits Public Guidance: Public Guidance: Statutes Statutes Regulations Regulations Provider Manuals Provider Manuals Department Guidance Department Guidance Website Website Check and double-check Check and double-check Always record your source!!!! Always record your source!!!!

6. Federal Law HIPAA HIPAA Documentation of HIPAA compliance should be in the record Documentation of HIPAA compliance should be in the record Notice of Privacy Practices Notice of Privacy Practices Record of Disclosures Record of Disclosures Amendments to Records Amendments to Records Patient Requests Patient Requests Always remember that HIPAA gives patients access to the record Always remember that HIPAA gives patients access to the record

7. Federal Law Medicare/Medicaid Medicare/Medicaid Medicare and Medicaid do not always have the same documentation requirements – be sure to check Medicare and Medicaid do not always have the same documentation requirements – be sure to check Double-check all documentation: Double-check all documentation: Patient eligibility Patient eligibility Billing status Billing status Contracts with patient Contracts with patient Contracts with government Contracts with government

8. General Liability Lawsuits Lawsuits Patients Patients Providers Providers Insurers Insurers Failure to have compliance policies and procedures Failure to have compliance policies and procedures Failure to obtain proper consent Failure to obtain proper consent

9. Contracts Hidden documentation requirements Hidden documentation requirements Insurance companies Insurance companies Government Government Medicare/Medicaid Contracts Medicare/Medicaid Contracts Certificate of Need Certificate of Need Settlement Agreements Settlement Agreements Tribal Tribal Funding Agreement Funding Agreement Compact Compact

10. Audits Sufficient documentation is the key to a successful audit Sufficient documentation is the key to a successful audit What you think is sufficient may not be enough What you think is sufficient may not be enough Guidance from national practice organization may not be enough Guidance from national practice organization may not be enough Over-the-phone guidance may not be enough Over-the-phone guidance may not be enough Information from public meetings may not be enough Information from public meetings may not be enough

11. Audits: When it happens Address the auditor request Address the auditor request Number the documents provided Number the documents provided Keep a copy of all documents provided Keep a copy of all documents provided Request clarification, if necessary Request clarification, if necessary Do a self-audit before sending records out Do a self-audit before sending records out Resolve issues, if possible and ethical… Resolve issues, if possible and ethical…

12. Documentation: Ethical Issues Conflicts of Interest Conflicts of Interest Revision of Records Revision of Records Disposal of Records Disposal of Records

13. Conflicts of Interest Conflicts can affect documentation through: Conflicts can affect documentation through: Patient relationships Patient relationships Small communities Small communities Personal liability Personal liability Professional liability Professional liability Job implications Job implicationsUH-OH

14. Conflicts of Interest How do you address a potential conflict? How do you address a potential conflict? Disclose Disclose Be objective Be objective Find a replacement Find a replacement Work with a partner Work with a partner Be sure documentation reflects all actions taken to address the conflict, but not necessarily in the medical record Be sure documentation reflects all actions taken to address the conflict, but not necessarily in the medical record

15. Revision of Records What do you do if a record is incomplete? What do you do if a record is incomplete? Add reliable info and substantiate Add reliable info and substantiate What do you do if a record is incorrect? What do you do if a record is incorrect? Amend and document Amend and document Substantiate amendment Substantiate amendment What do you do if a record is missing? What do you do if a record is missing? Document efforts to locate Document efforts to locate Recreate what can be substantiated Recreate what can be substantiated

16. Disposal of Records Make sure document retention period has passed Make sure document retention period has passed Make sure no litigation hold is in place Make sure no litigation hold is in place Double-check statute of limitations for potential controversies Double-check statute of limitations for potential controversies Shred or otherwise destroy Shred or otherwise destroy Be careful with electronic records Be careful with electronic records

17. Electronic Medical Records Documentation should not be less than paper records Documentation should not be less than paper records Documentation should be unique to patient and treatment – no “cut and paste” Documentation should be unique to patient and treatment – no “cut and paste” Always store backups Always store backups Have emergency procedures in place Have emergency procedures in place Confirm acceptance with payer Confirm acceptance with payer

18. Questions? Carolyn Heyman-Layne Dorsey & Whitney LLP 1031 W. 4 th Avenue, Suite 600 Anchorage, AK 99501 (907) 257-7870 Heyman.carolyn@dorsey.com