Like the IRS Only Worse

Federal law was recently changed to allow the IRS to contract with private collection agencies.  The IRS announced that it has contracted with 4 private collection agencies to collect overdue federal tax accounts.  According to the IRS, the IRS will send written notification to tax payers of such assignment to a private collection agency.

Given the absolute out pouring of scam artists already attempting to imitate the IRS, one can expect absolute chaos from this privatization of IRS collection activities.  Based upon the already difficult process of dealing with the IRS, we strongly recommend the following:

• Simply do not talk to anyone at any time on the telephone about tax claims.  Make all communications in writing.
• If you have a tax accountant or attorney, refer any and all such communications to them for verification.
• If you have any outstanding IRS liabilities, we strongly recommend that you contact your CPA or attorney and attempt to resolve them now.  While in the past simply waiting on the IRS may have been an acceptable strategy in certain cases, if the IRS does start assigning out to private collection agencies their oldest unpaid liabilities, you can assume that the simply “wait them out” strategy will not be workable.

Can’t We Just Talk?

Federal meaningful use standards for EHR are nudging such records systems towards the goal of interoperability.  Unfortunately we are not even close to the goal of IO.  Initial IO standards on the one hand have created some ability to exchange records, but also expose just how far we have yet to go to reach a goal of useful, readable patient data that is immediately usable upon receipt.

Doctors often agonize through poorly organized PDFs that are difficult to read, comprehend, organize or use.  Some EHR must be printed out to review.

Why is IO so important?  Patients both change and add healthcare providers constantly.  Whether due to new diagnoses which require a new specialist to review a patient’s records or due to physician retirement or disassociation from a particular network, physicians often find themselves with new patients that need prompt care but whose medical records are either unavailable immediately or when they become available are either a massive pile of paper with the needed data hidden somewhere deep in the pile, or, if they are EHR, the data, assuming it can be successfully electronically delivered, is often a jumble of templates under the clinical document architecture standard which many physicians feel does not assist in any meaningful way the acquisition or use of patient medical information.

In other words, what doctors need is the data in the records, and not the records themselves.  Currently, IO standards do not allow physicians to quickly or easily access the data of the patient that they need.  Hopefully, EHR sellers will begin recognizing that it is not the documents the doctors need, it’s the information.

A Thousand Times No

Recently we’ve had clients who have signed EHR system contracts or other contracts with vendors, found themselves in unacceptable situations and asked for our advice.  When asked why they did not ask us to review the contract before it was signed, the clients indicated that the vendor said the contracts were “take it or leave it.”  They were form contracts that could not be changed.

Our recommendations to clients:

• Always have any significant contract or any contract that cannot be terminated on 30 days notice, reviewed by your counsel.
• When negotiations begin with vendors for EHR, record retention systems, IT support or IT systems, etc. one of your first questions should be are the contracts “take it or leave it.”  If the vendor says yes, thank them and move one to someone who is willing to work with you to make sure the contract reflects your needs not just the vendor’s needs.
• Always make sure that any disputes can be resolved locally.  Many vendor contracts will require you to have either an arbitration or a trial somewhere hundreds of miles away.  This obviously raises the costs to you of resolving any dispute and is fully intended to give the vendor the upper hand.  Don’t accept that situation.

E-Discovery

E-discovery, or electronic discovery, is any process in which electronically stored date is sought, located, secured and searched with the intent of using the results as evidence in a civil or criminal legal case.  Why do you need to know this?

As the world has switched to email and is switching to EHR, it becomes more and more likely that significant data and information which may be useful in an arbitration or litigation will be located not in your paper files, but in your e-files.  A whole new business of e-discovery business consultants has been created with various “solutions” to locating and producing e-discovery documents.  Some of these new systems are good, some are not and almost all are expensive.

We already have rules from various government agencies, both federal and state, which mandate that patient records and billing records be maintained in a usable and recoverable manner for a number of years.  This means that both Medicaid and Medicare and other payors may, under certain circumstances, require that you provide them, or provide patients, with data for 6, 7 or even more years.  However, your practice generates more than just medical record and billing records.  Emails, employee matters, relationships with non-payor venders, all will be in your computers, document management systems and email.  Such data expands exponentially and often I am asked whether the practice or hospital must keep such information indefinitely.

The answer is no, it does not have to be kept indefinitely, but you need to adopt a document retention and document destruction policy.  Why?

The reason relates back to electronic discovery and arbitration and litigation.  If you do not have a document destruction/document retention policy that you follow, then if you destroy any document, whether paper or electronic, and such document may have been or may be in the future relevant to a dispute, you will be accused of destroying the document in order to hide evidence from your opponent.  However, if you have a document destruction/document retention policy, and you follow that policy, then it will be very difficult for your opponent to claim that you destroyed the document in order to obstruct their claim or discovery.

As a bonus, record destruction/record retention policies can help reduce the size of your paper file rooms and your electronic files.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.