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Addressing Sexual Misconduct by Licensed Medical Professionals & The Presence of Chaperones

by Abbie Mood

Since April 1, 2020, the occupational and professional boards in New Jersey have disciplined more than 20 licensees for sexual misconduct in a professional setting. As a part of sweeping reform, the Attorney General issued Administrative Executive Directive 2021-3 in April 2021, cracking down on sexual misconduct by professionals licensed by the 51 boards and committees operating under the Division of Consumer Affairs (DCA). Multiple new policies and improvements in existing processes were added to help prevent sexual misconduct from occurring and to promote accountability among licensees, ensuring that victims who come forward to report incidents of sexual misconduct receive the support they deserve. One such policy is The Presence of Chaperones: New Jersey Administrative Code (NJAC) 13:35-6.23.

The Presence of Chaperones: New Jersey Administrative Code (NJAC) 13:35-6.23

Allegations of sexual misconduct or boundary violations/crossings put New Jersey physicians and other licensed healthcare professionals at legal risk. These allegations can have disastrous reputational consequences – even if the allegations are unfounded.

Implementing a chaperone policy and having a chaperone present can help prevent a patient from misinterpreting/misunderstanding a provider’s behavior or actions during exams. Misinterpretations and misunderstandings can lead to allegations of sexual misconduct against the practitioner.

The New Jersey Board of Medical Examiners has a regulation on the Presence of Chaperones which states:

  1. In an office setting, a doctor is required to provide notice to the patient that he/she has a right to a chaperone present whenever a breast and pelvic examination of females or during genitalia and rectal examinations of both male and female patients.
  2. The notice required shall either be provided in written form to the patient or by conspicuously posting a notice in a manner in which patients or any other person who is to be examined are made aware of their right to request a chaperone and to decline care if a chaperone acceptable to the patient is not
  3. If the proposed chaperone is not acceptable to the patient, the patient may refuse and the doctor is not obligated to provide further care.
  4. If the doctor desires to have a chaperone present and the patient refuses, the doctor is not obligated to provide further treatment.
  5. If care is not provided, the doctor, consistent with the principles of Informed Consent, must discuss with the patient the risks of not receiving further care.

Support for Conventus Members

Conventus members can access the full Spotlight on BME Regulations article with detailed information and recommendations on how to protect your patients, staff, and practice from allegations of abuse or misconduct, and to help patients make an informed choice about their examinations and consultations. In addition, Conventus members can visit the Conventus Knowledge Center for a Sample Chaperone Office Policy and Chaperone Poster for Exam Rooms.

As always, Conventus members can call the Practice Resource Department at (877) 444-0484, ext. 7466 to speak with a member of our team for assistance with understanding or questions regarding your requirements under these regulations.

Do Physicians Need a Formal Agreement for Nonphysician Providers?

by Abbie Mood

Over the past few decades, the number of nonphysician providers (NPPs) in healthcare settings has grown substantially. NPPs include physician assistants (PAs) and advanced practice nurses (APNs) such as nurse practitioners (NPs), certified nurse midwives (CNMs), clinical nurse specialists (CNSs), and certified registered nurse anesthetists (CRNAs). NPPs fill the gaps where physicians are lacking and offer a cost-efficient solution to improving patient care by increasing the efficiency of physicians. NPPs can also improve patient satisfaction by offering greater access and appointment availability, which can reduce the direct and overhead costs of the practice.

Physicians who utilize NPPs in their practice are required to have written agreements with them. The intent of these agreements is to provide requisite physician oversight, clearly define the scope of practice for the NPPs, and promote communication and coordination between members of the healthcare team.

Many providers are unaware of this critical regulatory requirement, which exposes them to unnecessary risk within their practices.

Which NPPs Are Required to Have a Formal Written Agreement?

  • Advanced Practice Nurses: Regulated by the New Jersey Board of Nursing (NJBON), APNs are independent professionals who do not work under the supervision of a physician in the state of New Jersey but those who wish to have prescribing authority or order devices. They must have a joint protocol with a collaborating physician in place.
  • Physician Assistants: Regulated by the NJ Board of Medical Examiners (NJBME), PAs are required to engage in practice only under the direct supervision of a physician. PAs must maintain a formal, signed delegation agreement between the supervising physician and physician assistant.
    Note: The PA title is undergoing a change to Physician Associate, but the NJBME has not yet changed its use of this title.
  • Certified Nurse Midwives: Regulated by the Midwifery Committee which falls under the NJBME, CNMs are required to have formal, written consulting agreements with physicians.

Support for Conventus Members

Conventus members can access the full Spotlight on BME Regulation article which has detailed information regarding joint protocols for APNs, PA delegation agreements, and CNM consulting agreements, plus our recommendations. In addition, Conventus members can visit the Conventus Knowledge Center for sample APN Joint Protocol Agreement, PA Delegation Agreement, and CNM Agreement to use as a basis when developing an agreement specific to your practice

As always, Conventus members can also call the Practice Resource Department at (877) 444-0484, ext. 7466 to speak with a member of our team for assistance with understanding or questions regarding your requirements under these regulations.

Billing and Coding Alert for Pediatricians

by Conventus

Pediatric allergy services have been on the radar of third-party payer investigations because they have found that many practices incorrectly code and bill for these services. Horizon Blue Cross Blue Shield of New Jersey (“Horizon”) issued guidance for allergy testing effective May 1, 2020. Therein, CPT Code 95004 is referenced and defined as follows: Percutaneous tests (scratch, puncture, prick) with allergenic extracts, immediate type reaction, including test interpretation and report, specify number of tests. The number and type of antigens used for CPT 95004 must be chosen judiciously given the patient’s presentation, history, physical findings, clinical judgment and exist in the patient’s environment with a reasonable probability of exposure. The number of tests required may vary widely from patient to patient, depending on the patient’s history. Rarely are more than forty (40) percutaneous tests required.

Importantly, CPT Code 95004 allergy testing will only be reimbursed by Horizon for Allergists, Immunologists or Otolaryngologists or their nurse practitioners or physician assistants working under the direction of one of the above.

CONVENTUS RECOMMENDATIONS

In order to avoid billing audits based on allergy testing, the following is recommended:

  1. Provider practices are urged to check provider agreements before conducting allergy testing.
  2. Conduct regular internal billing audits to ensure proper compliance
  3. Develop and implement a formal Fraud, Waste and Abuse Compliance Program and Plan tailored to the needs of your practice.
  4. Train staff on billing and coding compliance.

Conventus provides legal defense coverage for billing and coding audits. In addition, Conventus strategic partners can assist with developing compliance programs, plans, education, and internal audits. For Conventus insured members, contact the Conventus Practice Advice line or the Practice Resources Department at 877-444-0484, x7466 if you receive notice of a commercial or private audit, investigation, or post-payment demand, or you would like assistance with prevention strategies.

Hefty Medical Record Release Fines: What You Didn’t Know Could Cost You

by Conventus

I bet you thought you knew how to process medical record requests. However, the Office for Civil Rights (OCR) takes patient complaints and any deviation from the laws/regulations very seriously. Investigations and settlements are on the rise following the U.S. Department of Health and Human Services (HHS) OCR announcement of their Right of Access Initiative which began in September 2019. The OCR continues to promise to aggressively enforce the rights of patients to timely receive copies of their personal health care records without being overcharged by physician practices. Complaints of non-compliance with the Federal Standards for Privacy . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

Changes to Medicinal Marijuana in New Jersey (June 2019)

by Conventus

There are currently 46,300 patients, 950 doctors, and 1,850 caregivers participating in the NJ Medicinal Marijuana Program (NJMMP). In an effort to expand the NJMMP to more NJ residents in the absence of updated legislation, Governor Murphy announced new changes to the NJ Medicinal Marijuana Program on May 13, 2019. Some of the changes were already in effect based on Executive Order 6 Report issued on March 23, 2018. Other rule changes will go into effect on May 20, 2019, upon their publication in the NJ Register. And, there’s likely more rule changes and legislation to come in the weeks and months ahead. All NJ providers should be aware of the new rules, regardless of whether you participate in the NJMMP, because your patients and/or staff may be participating in the program.

Rule Changes Currently in Effect

  • Revision to reflect the addition of seven “debilitating medical conditions” to include: PTSD; anxiety; chronic pain of visceral origin; chronic pain related to musculoskeletal disorders; migraines; Tourette Syndrome and; Opioid Use Disorder (OUD). Patients with OUD must be concurrently in a Medication Assisted Treatment (MAT) Program to be eligible for participation in the NJMMP. Since the addition of these conditions, The NJ Department of Health’s statistics show that the top five qualifying medical conditions are: chronic pain due to musculoskeletal disorders (25.4%); anxiety (20.2%); intractable skeletal spasticity (19.9%); PTSD (8.8%) and; severe or chronic pain due to cancer or HIV (6.85%).
  • Allowing physicians to opt out of inclusion on a public list of participating physicians.
  • Authorizing qualifying patients to designate up to two primary caregivers instead of only one.
  • Expanding the forms of medicinal marijuana available to include oil-based formulations, like vape cartridges.
  • Reducing the registration fee for qualifying patients and their caregivers from $200 to $100, which is renewable every two years.
  • Adding seniors and military veterans to those eligible for the reduced registration fee of $20.
  • Elevating the NJMMP to division status within the Department of Health.

Rule Changes Effective May 20, 2019

  • Removing the requirement for psychiatric evaluation as a condition of physician certification for minors as qualifying patients.
  • Streamlining the process to petition for the review of additional debilitating medical conditions by removing the requirement to first be referred to the Medicinal Marijuana Review Panel, which required a six month public comment period.
  • Emphasizing the advisory role of the medicinal marijuana Review Panel to include provision of guidance and recommendations to the State Health Commissioner regarding the medical use of marijuana.
  • Creating a separate permitting system for cultivation, manufacturing and dispensing of marijuana for medical purposes, which would increase the available supply of, and patient access to, usable marijuana and allow for specialization in the market.

The Future of NJ Medicinal and Recreational Marijuana Legislation

Although the NJ recreational marijuana legislation is currently not being brought to a vote, state Senate President Stephen Sweeny announced that lawmakers will likely move forward with two related bills expanding the medicinal marijuana program and expunging of the records of residents with past convictions for possessing small amounts of recreational marijuana. Recreational marijuana will most likely be brought to a NJ voter ballot in November 2020. 

Risk Reduction Strategies to Consider

  • Understand and comply with the NJ Board of Medical Examiners (NJBME) regulations on the Compassionate Use of Medicinal Marijuana, including qualifying and certifying a patient as eligible for medicinal marijuana, comprehensive medical evaluation, history and physical, establishing treatment goals and objectives, monitoring and follow up, medical record documentation requirements, and written instructions provided to the patient. Please note that a provider is not prescribing medicinal marijuana, but only certifying for patient eligibility. Written instructions must at least include the amount of medicinal marijuana in a 30, 60, or 90-day supply.
  • Keep up-to-date with any NJBME regulation changes regarding the Compassionate Use of Medicinal Marijuana and any other rule and legislative updates.
  • If you would like to participate in the NJMMP, follow the Physician Checklist and instructions provided by the NJ Department of Health.
  • If you are a provider that is registered and participates in the NJMMP, you must provide the patient with an informed consent that is documented in your medical records and/or through an informed consent form that at least includes: lack of scientific consensus; sedative properties and; risk of addiction. It is also suggested that you inform the patient that use of medicinal marijuana can affect drug screening, which may be used for job employment or other reasons. Refer the patient to their own legal counsel for any questions in this regard.
  • You may want to revise medical record documentation forms and templates to include whether your patient uses medicinal marijuana.
  • If you perform drug screens before or after hire, you may wish to revisit any “zero tolerance” office policies in the event a prospective or current employee participates in the NJMMP. It is suggested that you consult with an employment attorney or your personal legal counsel for further guidance.

Conventus will continue to monitor changes in marijuana legislation, rules, and regulations for our insured members. Conventus members may contact the Practice Resources Department at (877) 444-0484 x7466 with any questions.

Non-Physician Practitioner Billing: How to Avoid a Billing Audit

by Conventus

Medical Billing Audits performed by Medicare, Medicaid, and commercial payers have significantly increased in frequency in recent years and will continue for the foreseeable future. No specialty is immune from these risk adjustment audits, with pre and/or post payment demands that can be in the millions. This can seriously impact a physician’s cash flow, practice, and ability to stay in business.

A “red flag” trend identified by Conventus as a precursor to these audits is billing for non-physician practitioner (NPP) services without the NPP being credentialed with the insurance carrier. NPPs are practitioners such as physician assistants . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

Aid in Dying for the Terminally Ill Act

by Conventus

On April 12, 2019, Governor Murphy signed into law the Aid in Dying for the Terminally Ill Act (the “Act”), which will become effective on August 1, 2019. NJ has become the eighth state to enact legislation to allow a qualified, terminally ill patient who is protected by safeguards to obtain medication that the patient chooses to self-administer in order to bring about the patient’s humane and dignified death. This new legislation has major implications for all physicians caring for terminally ill patients who are NJ residents, as defined by the law.

The Act defines the process to . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

New Jersey’s Out-of-Network Law

by Conventus

On Friday, June 1, 2018 New Jersey Governor Phil Murphy signed into law the “Out of Network Consumer Protection, Transparency, Cost Containment and Accountability Act,” A2039. (“The Act”). It will go into effect 90 days from its enactment, on or about September 1, 2018.  The Act has been designed to protect healthcare consumers from unexpected billing for out-of-network (OON) charges, as well as promote transparency for physician and facility fees incurred by patients.  This long-debated legislation adds several administrative . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

Healthcare Provider Texting: FAQs

by Conventus

What is PHI?

Protected Health Information (PHI or ePHI) is defined as “any information about health status, provision of health care, or payment for health care that can be linked to a specific individual”, and consists of eighteen different “identifiers” which could connect specific details to a patient (such as photographs of the patient, their social security number or their telephone number). The Privacy and Security Regulations contained within HIPAA apply to medical professionals, health insurance providers, health insurance clearing houses (including fund administrators and managers), and any subcontractor who has access to protected health information (regardless of . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

Caring for Patients with Limited English Proficiency

by Conventus

LIMITED ENGLISH PROFICIENCY PATIENTS: YOUR OFFICE'S LEGAL RESPONSIBILITIES
The Conventus Practice Advice Line has experienced an uptick in practices calling and asking, “What is our responsibility in providing interpreters for patients with Limited English Proficiency?”  Many believe they have no responsibility at all.  But this is not the case.

Providers should be familiar with federal and state requirements regarding LEP (Limited English Proficiency) patients and develop an effective language access plan to meet the needs of their patients.  This is especially important because of the increasing number of LEP patients. It is anticipated that by 2021, approximately . . .

This content is for Conventus Insured Members only.

Learn about Conventus’ Insurance Coverages and Practice Solutions.

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Conventus Inter-Insurance Exchange
900 Route 9 North, Suite 503
Woodbridge, NJ 07095
Phone: (877) 444–0484 x 7466
Fax: (732) 791–9431
Email: conventus@conventusnj.com

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