RE: Undoing Damage from Dismissed Allegations
From: Name Withheld
I had a board complaint [against me] during the time that the Texas Podiatric Medical Board (TPMB) was moved to the Texas Department of Licensing (TDLR). I was notified of the complaint but advised I could not have any further information and the 'prosecutor' would evaluate the case. I asked for the information, stating they could remove the complainant’s name, but the TDLR claimed that under the statue, I was not entitled to that information. Several weeks later, I received a letter that stated "the complaint was resolved and it was found to be without merit – dismissed."
Later in the year, however, when applying to a hospital the 'allegation of complaint' showed up in the hospital's search of the data bank and other entities. My question is this: if an allegation is made against you and it is dismissed as unfounded, why should the allegation be reported to entities where you are trying to apply for hospital staff membership and to insurance companies? It seems very unlawful to me, but I'm not a lawyer. Any help or advice appreciated.
Editor's comment: PM News does not provide legal advice. According to the National Practitioner Data Bank (NPDB), "If you are the subject of an NPDB report, you may add or edit a statement at any time to provide any additional information you would like included with the report. However, you may not modify, correct, or void the report - only the reporting entity listed in Section A of the report is permitted to do so.
Your Subject Statement becomes part of the report and remains with the report unless you (the subject of the report) edits or removes it. The statement is sent to the reporting entity listed in section A of the report, all queriers who received a copy of the report within the past three years, and is included in future query responses."
Query: "Permanent and Stationary" Under Workers Comp
I have been an employee for an HMO for over 30 years that banned nail grinders due to lung health risks. I have been debriding toenails with nail clippers exclusively for the past 4 years, at about 18-24 patients per day, 5 days a week. During the past 4 years, my right hand became so painful that I could no longer bend my thumb and developed a trigger index finger. I just had surgery about 9 weeks ago to release the tendon sheaths and I am supposed to go back to work in late March; however, my hand still swells and is stiff.
I was told by the Work Comp doctor that at the next visit in late March if I am not better by then that I would be considered "permanent and stationary"--which means I will be...
Editor's note: Name Withheld's extended-length query can be read here.
Query: Destruction of X-Ray Films
I have many old x-ray films that I need to dispose. What is the best way?
David Chung, DPM, Aloha, OR
Query: Patient with Bed Bugs
I recently had a new patient come to the office for a non-limb threatening problem. After he left and we went to clean the treatment room, several large bedbugs were found on the chair. I have since had hours of worry, cleaning, and missed productivity time, not to mention the $1,000 I had to pay a pest control company to ensure eradication of the bugs.
My question is, how do I deal with this patient in the future? Am I allowed to refuse to see him unless he can prove to me that he has been “exterminated”? Can I discharge him due to the great expense of time and money his visit caused? We contacted the patient after the incident, and he had “no idea” of any bug problem. He has Medicare/Medicaid.
Query: Responsibility for Interpreter When a Hearing Impaired Patient Cancels
I have a situation where a deaf patient was unable to attend his appointment due to bad weather that morning. An interpreter was scheduled for the appointment and arrived at the office. Am I required to pay her services (2 hour minimum plus mileage) when her services were not actually used? He recently rescheduled an appointment with 24 hours notice and she is billing me for this visit also. Can I legally refuse to pay these charges or reverse them to the patient in this situation?
Michaele A. Crawford, DPM, Butler, PA
Editor's Response: PM News does not provide legal advice. Unfortunately, under the ADA, physicians are required to pay for an intepreter even if the patient cancels. We have discussed this situation many times in PM News. The consensus solutuion is to schedule the patient at a hospital where you have privileges.
Query: Request from Attorney
I have a heel pain patient’s workers' comp attorney pressuring me to write a letter stating that her plantar fasciitis was caused by long hours working on concrete. What is today's podiatric opinion as to if this can be stated.
Name Withheld, OH
Query: PC vs. LLC vs. PLLC
I'm a new practitioner starting out. My residency is over and I am finding difficulty navigating the business aspects of our profession. I need direction as far as establishing a PC vs. LLC vs. PLLC. Can my fellow colleagues help?
Marianna Blokh, DPM, NY, NY
Query: Locum Tenens
I am planning to cover for a podiatrist who will be out of the office for a temporary (6 weeks) period of time. I think this would fall under the category of locum tenens. What are the laws associated with this - i.e. insurance billing, writing prescriptions, etc? Do you know whom I can speak to or where I can get information about this?
Editor's comment: PM News does not provide legal advice. Under Medicare, "Locum tenens physicians may not bill Medicare; they should be paid on a per diem or similar fee-for-time basis. Claims payment is made under the name and billing number of the physician or the practice (in the event the physician has left the practice) that hired the locum tenens physician. If the physician has left the practice, every claim still must have a rendering provider, so the practice would still use his or her name and NPI with modifier Q6 Services furnished by a locum tenens physician appended to the procedure code to indicate the service was furnished by a locum tenens physician. The practice must keep on file a record of each service furnished by the locum tenens physician, with his or her NPI or Unique Provider Identification Number (UPIN)." Source: AAPC The rules of non-Mediare insurances may vary.
Because the rules and regulations regarding the writing of prescriptions as a locum tenens vary by state, it is recommneded that you contact a healthcare attorney in your state to make sure you are following state law.
Query: Source for Background Check Companies
I am hiring a podiatric assistant and want to run a background check. Does anyone have any suggestions on a reliable company to do this? When I did a Google search, I found many companies but their ratings are generally poor. Also, what are the legal responsibilities of the hiring physician to conduct a background check on potential employees?
Query: Effect of MIPS on Buy-in Price
I have been an associate for the last 12 months. I am now offered a buy-in, but I have also found out that the group TIN for billing did not meet MIPS criteria. This means a reduction in payments. With buying out a physician, my Medicare patients will also increase significantly. Do I have any options at this point in time? Also, should this reflect on the purchase price of the practice?
Query: Podiatrists as Physicians Under Tricare?
I have been prescribing physical therapy services to Tricare recipients for years, but recently ran into an issue in which our Tricare Service Center asserted that podiatrists cannot prescribe physical therapy to Tricare Prime recipients. According to a recent note from Tricare, "The Tricare Policy Manual Ch.7, Sec. 18.2 for physical therapy states: 3.2 Physical therapy services must be prescribed by a physician, certified physician assistant (PA working under the supervision of a physician), or Certified Nurse Practitioner (NP). Since this request is being ordered by a podiatrist, the beneficiary will need an order from the PCM to begin therapy."
I am aware that podiatrists are regarded as physicians under Medicare, but not under Medicaid. What is our status under Tricare?
Ed Davis, DPM, San Antonio, TX
Query: Legalities of Doing a Type of Pro Bono Work.
I am looking into providing podiatry services consisting mostly of routine foot care within an upscale spa. Payment by clients would be on a cash basis only to the spa. I would not receive any remuneration with the exception of discounts on dues/services of that facility. I carry malpractice insurance as I am still a part-time practitioner. I would like to know if anyone has any input as far as the legalities of this type of situation in reference to malpractice, taxation, or any other characteristics dealing with podiatry.
Query: Payment for Submitting Charts to Medicare Advantage Plans
I have gotten requests in the past for a high number of charts and asked them in writing for $30 per chart for chart retrieval, preparation, copying, and submitting, stating charts would be sent immediately upon receipt of payment. Each time they called to see if charts were sent, I referred them to the letter requesting payment. On one occasion, the supervisor told me they have many requests from doctors for payments.
The end result is that I never received payment and the package containing the charts they requested is still in my possession. It seems like we are being burdened with the time-consuming task of submitting charts so the Medicare Advantage (MA) programs can charge more to Medicare. I would appreciate any input from podiatrists as to the legality of not submitting charts to these MA plans until requested payment is received.
Query: Orthotists and HIPAA
I occasionally utilize free-standing orthotists for some bracing. Recently, some have been asking for detailed patient notes stating that they are necessary for insurance billing. I have no records release from the patient to send records and no business agreement with these companies. Where do these requests stand with regard to HIPAA?
Edwin Harris, DPM, Westchester, IL
Editor's note: PM News does not provide legal advise. Under HIPAA, "A covered entity is permitted, but not required, to use and disclose protected health information, without an individual’s authorization, for ... (2) Treatment, Payment, and Health Care Operations...Covered entities may rely on professional ethics and best judgments in deciding which of these permissive uses and disclosures to make."
If you have any doubts as to the appropriateness of the release of PHI, you have the choice of 1) obtaining the patient's permission or 2) having the receiving party execute a Business Associate Agreement (BAA).
Query: Hiring a Beautician to Perform RFC
My practice is 80% HMO. We provide routine foot care to 25-30 patients a day. It has become overwhelming and I would like some suggestions. DPMs in my area are commanding $100/hour, which is not an option. Can I hire a beautician if I am present in the office? Are others hiring medical assistants and training them?
Editor's Comment: PM News does not provide legal advice. The answer to your question will depend on what state you practice in as the laws controlling what a podiatric medical assistant or non-podiatrist can vary from state to state. The scope of practice of a licensed beautician will vary as well. In addition, you would need to contact your malpractice carrier to see what additional coverage might be required. Finally, you would likely need the approval of the HMO if routine foot care is a covered service. You need to contact a healthcare attorney in your state to answer all these questions.
Query: Right to See Patients' Medical Records Under HIPAA
A new patient comes to me for a painful right foot. He apparently has a previous disturbing past medical history that will impact my treatment of him. Can I go to his previous hospital records and see his past medical history without asking him and obtaining his consent? I did tell him that I would do so. Can I legally do so? Do I need written consent or since he is now my patient, can I obtain whatever information in order to treat him appropriately?
Alan Mauser, DPM, Louisville, KY
Editor's comment: PM News does not provide legal advice. According to HHS, "A covered entity may use and disclose protected health information for its own treatment, payment, and health care operations activities." 19 45 C.F.R. § 164.506(c). "A covered entity also may disclose protected health information for the treatment activities of any health care provider, the payment activities of another covered entity and of any health care provider, or the health care operations of another covered entity involving either quality or competency assurance activities or fraud and abuse detection and compliance activities, if both [empasis added] covered entities have or had a relationship with the individual and the protected health information pertains to the relationship."
Query: Is a Patient Responsible for Damage to Your Office?
Suppose a very pleasant patient (who is a mechanic) comes to your office for a pre-operative visit and tracks in greasy footprints throughout your office. You notify the patient by phone what happened and that the carpet required steam cleaning. The patient is understanding and says he will remember to bring clean shoes on the next office visit. On the subsequent post-operative visit, once again, his greasy foot prints soil the carpet. During the office visit, the patient discusses how pleased he is with the surgery, and talks about doing surgery on the contralateral foot. What would you say to the patient regarding the cleaning expenses and future office visits?
Joshua Kaye, DPM, Los Angeles, CA
Query: Disposal of Prescription Pads
Now that I am retired, is there an "official" manner to dispose of prescription pads that will not be utilized. Can they just be shredded?
Charles F. Ross, DPM, Pittsfield, MA
Editor's comment: PM News does not provide legal advice. In general, unused prescription pads should be returned to the state or federal authority that issued them. State laws vary, so you should consult your state association or a healthcare attorney in your state for proper guidance.
Query: Obligation to Treat Undocumented Immigrants
As healthcare providers, what is our fiduciary responsibility in the case that we become aware that a patient whom we care for is illegally in our country? Can we look the other way? Are we at any legal risk for their actions if we are aware that our patient is illegally in this country, choose to look the other way, then he/she commits some act of terrorism? Is this part of the doctor/patient protected information (HIPAA)?
Tip Sullivan, DPM, Jackson, MS
Editor's Comment: PM News does not provide legal advice. There is no specific requirement to treat or not treat someone based on immigration status. One thing to note is that a podiatrist cannot, in most circumstances, report someone to the federal government or any other authority without violating patient confidentiality. One exception would be if the patient committed a crime in your office or you had reason to believe that any patient was planning a terrorist attack.
While there is no legal responsibilty to treat an undocumented immigrant, there is likely an ethical responsibility under the APMA Code of Ethics ME4.21 "The podiatrist shall not discriminate against any patient because of race, religion, ethnicity, gender, sexual orientation, disability, socioeconomic status, or health status."
Query: Discriminatory Scope Issues
The State of New York currently has a discriminatory podiatry scope law that distinguishes the right to practice based on certain pathways. There is a pathway via The American Board of Foot and Ankle Surgery. This pathway gives one the ability to practice both podiatric surgery above the ankle as well as podiatric medicine above the ankle. Yet, those board certified in podiatric medicine have no pathway to practice only podiatric medicine. This is counter to the APMA and Council of Podiatric Medicine Education’s policy that there are two governing bodies in podiatry: ABFAS for podiatric surgery and ABPM for podiatric medicine. I wonder if New York is the only state with such discriminatory laws or are any colleagues in other states having similar troubles?
Jeffrey Kass, DPM, Forest Hills, NY
Query: International Health Insurance Claim
I just received a denial from an an international health insurance carrier for a college student who is from a foreign country attending school in the states. I performed a surgical procedure on this patient last year. We contacted the insurance carrier as we do with all insurance companies prior to seeing or performing surgery on a patient. The benefits were provided to us, and hence we proceeded with treatment and eventual surgery.
What I did not know was that these international health insurance carriers do not abide by ACA rules regarding pre-existing conditions. When we received the denial of benefits for all services rendered, the customer service rep. stated that this is the number one reason that all claims will be denied. We have attempted to contact this patient and have no response. I guess our only recourse is to write off the entire bill and take one for the home team. Any other answers, comments, or solutions would be appreciated.
Joseph Borreggine, Charleston, IL
Query: Template for OSHA Exposure Control Plan
I am looking for a template for an OSHA Exposure Control Plan that is current, up-to-date, and appropriate for a small (less than 10 employee) office. Although it has been updated several times, I am still using the original Exposure Control Plan that I drew up in 1992. Any help or direction is appreciated.
Greg Caringi, DPM, Lansdale, PA.
Query: Can I Shred Paper Charts Also Stored Digitally?
Since all of my records are in my computer for the past 12 years, can the paper copies be shredded in an attempt to avoid significantly higher storage rates.
Chuck Ross, DPM, Pittfield, MA
Editor's response: PM News does not provide legal advice. We know of no HIPAA or state requirement to maintain both paper and digital records. In general, as long as the digital records are encrypted and stored in a secure manner, your paper records can be shredded. Obviously, any paper records which are, or could be, the source of litigation for malpractice or fraud charges, should be retained for a prolonged period.
Query: Insurance Credentialing After Fraud Investigation
I have been an associate in a large group practice for the last 5 years. The practice has been under investigation by the OIG for the last five months. All documentation received from the government to date indicates that the owner of the practice is the target of the investigation. None of the other physicians in the group have been interviewed by the government to date. Medicare has suspended payment to the practice and with legal fees mounting, the practice is running out of money.
The owner of the practice has offered to sell me the office that I currently work in at a price that would seem to be a good deal on paper. I am concerned that credentialing with insurance companies may be problematic given that the building previously billed under a provider number which is currently flagged by Medicare. Is there any way to know for sure that insurance credentialing will not be an issue at this location? Has anyone had a similar experience in the past?
Editor's comment: PM News does not provide legal advice. First of all, an investigation does not necessarily lead to a conviction or repayment of large sums of money. Additionally, if you purchased the practice, you would then bill under your own provider number. Since the name and provider number would be different than those of the owner, it's not likely that there would be any credentialing problems with insurance companies other than the fact that some insurance panels are sometimes closed to new practices. In any case, you should hire a healthcare attorney to assist you in this matter.
Query: Negotiating a Lease When You Can't Get Office Overhead Disability Insurance
My insurance company canceled my office overhead disability insurance. This puts me into a precarious position. If I should become disabled, I will be strapped with a lease on my office that could throw me into bankruptcy. Is there a way of negotiating a lease where there is a clause for disability? How would this be worded and has anyone else experienced this?
Editor's comment: PM News does not provide legal advice. Although an attorney can easily draft such a lease clause, there is no incentive for a landlord to accept this new term. A better idea is to simply find a new insurance company to provide this coverage. Another alternative is to join a partnership or group practice in which such clauses are standard.