Credentialing and Privileging Telemedicine Physician and Practitioner

Last week the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule revising the conditions of participation (CoPs) for hospitals and critical access hospitals allowing for a new credentialing and privileging process for physicians and practitioners who provide telemedicine services. The proposed rule should make it easier on smaller hospital (especially critical access hospitals) who don't have the in-house medical staff to adequately evaluate and privilege a wide range of specialty physicians who provide services through telemedicine.


The proposed rule was published in the Federal Register on May 26, 2010, and titled, Credentialing and Privileging of Telemedicine Physicians and Practitioners, 75 Fed Reg 29479 (May 26, 2010). Comments on the proposed rule must be submitted by July 26, 2010.


Traditionally the CoPs have required the governing body of the hospital to make all privileging decisions based on the recommendations of its medical staff using specific criteria. Hospitals often use third-party credentialing verification services to assist in compiling the voluminous documents needed to verify credentialing and then have the governing body of the hospital review and sign off on the privileging decision.


The proposed rule points out that there has been a Joint Commission standard policy that allows "privileging by proxy," which has been in direct conflict with CoPs. "Privileging by proxy" allows Joint Commission accredited hospitals to utilize a different methodology to privilege"distant-site" physicians and practitioners. Basically, allowing one Joint Commissioned accredited hospital to accept the privileging decisions of another Joint Commissioned accredited hospital. In the past, hospitals were deemed (deemed status) to meet the CoPs if they were accredited by the Joint Commission. However, changes in the Medicare Improvement for Patients and Providers Act of 2008 (MIPPA) will halt (effective July 15, 2010) the statutory recognition of the Joint Commission's hospital accreditation program and now requires the Joint Commission to meet CMS standards in order to confer Medicare deemed status.


CMS has decided that requiring each hospital to independently privilege providers is a duplicative and burdensome process, especially for small hospitals who often use telemedicine services from larger academic medical centers and hospitals to provide access to needed specialty services. Thus, CMS is proposing in the rule to revise the hospital credentialing and privileging requirements to allow a hospital who obtains telemedicine services by agreement with another hospital that the agreement can specify that the hospital providing the telemedicine services is responsible for credentialing the telemedicine provider and can provide this information to the medical staff of the hospital receiving the telemedicine services who can then rely upon the credentialing and privileging decisions of the hospital providing the telemedicine services.


For a more detailed discussion and understanding of the proposed revisions read the proposed rule in the May 26, 2010, Federal Register.

The Saga Over The Privacy of Medicare Claims Data Continues . . .

Guest post by Michele Grinberg, my colleague in the Health Care Practice Group at Flaherty, Sensabaugh Bonasso PLLC.

Through indirection find direction out? With apologies to William Shakespeare, the U.S. Court of Appeals for the11th Circuit and D.C. circuit say: NO, not this time.

In Jennifer D. Alley, Real Time Medical Data, LLC v. U.S. Dept. of Health and Human Services, issued Dec. 18, 2009, the Court held that plaintiffs Alley & Real Time Data cannot obtain certain Medicare data for procedures performed in Florida, Georgia, Mississippi and Tennessee by AMA physicians and for all Florida physicians (the certified class). Specifically, Medicare Part B raw claims data that could easily be matched to a particular physician and then aggregated to calculate the total annual Medicare payment by physician cannot be disclosed to Alley. Alley had sought the information through filing a federal Freedom of Information Request (FOIA).

The reason? Because the Florida District Court in 1979 issued a permanent injunction in Florida Medical Assn. v. Dept. of Health Education & Welfare, prohibiting DHHS (then HEW) from disclosing “any list of annual Medicare reimbursements…for any years, which would personally and individually identify those providers of services …. Any such disclosure of annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers….is contrary to federal law.” (quoted in Alley)

Judge Carnes in a well-authored opinion (for those of you, like me, who care about good writing) enjoys the irony of hearing argument that sounds much like the health policy arguments heard in the mid-1970s. His second sentence reads: “The present national debate over health care rhymes a lot with one that took place three decades ago.” But whether it’s still good policy or not, Judge Carnes holds that plaintiffs cannot collaterally attack the 1979 injunction by arguing it does not apply to the data sought or the context has shifted in favor of disclosure or the reimbursement methodology has changed. Rather, if plaintiffs believe the injunction is no longer valid, their recourse is to go back to the court where the injunction issued and challenge it there.

In a footnote, the 11th Circuit references a recent 2009, United States of Court of Appeals D.C. Circuit, decision: Consumers’ Checkbook, Center For Study of Services. v. U.S. Department of Health and Human Services. The lower court’s holding in this case was discussed in this blog in 2008 (Consumers' Checkbook v HHS Update). In the 11th Circuit footnote (No.9), the court observes that in a factually similar case, the D.C. Circuit has held that FOIA exemption 6 permits DHHS to not disclose the requested Medicare data. FOIA exemption 6 protects from disclosure government agency files that constitute “a clearly unwarranted invasion of personal privacy.”

What we have then are two cases: one that upholds a 1979 injunction which enjoins DHHS from providing Medicare data that can be manipulated to identify annual reimbursements to individual physicians and other providers but which injunction reaches only the certified class of providers (identified above); and a second case that holds that providing similar Medicare data that can be tied to individual providers is protected from disclosure by a FOIA exemption. Thus, data elements which might indirectly seem disclosable are not if they lead to a resulting disclosure which invades personal privacy. We will see what changes health insurance reform brings, if any.

The AMA provides additional analysis of the decision in a story posted January 11, 2010, Appeals court rejects effort to sell Medicare physician claims data. Also, Law.com reports on the decision in its article, Mark Twain Lives On in Federal Judge's Ruling on Release of Medicare Data.