Query: Use of Patient Images and Consent Requirements
When using patient images for marketing purposes, with no identifying features (i.e., before/after bunion surgery pictures), is additional consent from the patient required? And if so, how are providers obtaining that consent? Is it included in the regular intake form consent, or is a special signed form needed?
Jay Seidel, DPM Deerfield Beach, FL
Editor's Comment: PM News does not provide legal advice. When using a patient's image for any purpose, it is better to be safe than sorry. Simply adding a disclaimer in your intake form may not hold up if you are sued. Best practices dictate that you have the patient sign a clear release to use any images. There's even a possibility that the patient will reward you with referrals by telling friends and neighbors, "These are my feet in the ad."
Query: COVID-19 Testing by Podiatrists?
A patient called with symptoms of severe bilateral foot pain. She also told me that she recently got over COVID-19. Her temperature has been normal for a week, but she never had any follow-up tests to determine if she is still infectious. Can a podiatrist order those tests? There are two types of tests, one which is a nasal swab which can determine if a person is still infectious. The other is an antibody test done at a lab which determines if the person had the disease. Is it within our scope to order either test for the purpose of office safety?
Elliot Udell, DPM, Hicksville, NY
Editor's Comment: PM News does not provide legal advice. Scope of practice varies from state to state. Since podiatrists can order blood tests for systemic diseases such as diabetes and gout, the logical answer should be yes. However, some states such as New York have yet to define podiatrists as "physicians" and are resistant to allowing podiatrists the right to even give flu shots, while they allow lesser trained individuals such as pharmacists to do so.
Query: Holding Patient Records Hostage
I received a request from a patient today to have his records sent to his attorney. I am 99% sure that the attorney has to request records, and I have no problem sending them over. The problem is that this patient has had an outstanding balance from his 2 visits in 2015. The balance is $214. My office had called him early on, we kept getting the runaround from him and he never paid (he was an acquaintance growing up, and I was friends with his sister). I finally sent him to collection after a year, and he has not paid them either. I would like to know what the protocol is for sending records when a patient has a large outstanding balance. Is it proper to hold the records until the balance is paid?
Name Withheld by Editor
Editor's Comment: PM News does not provide legal advice. Non-payment of your fees is not a valid reason to withhold records. Under HIPAA and state laws, there is no circumstance when you can legally withhold a duly authorized request for patient records. Doing so can result in massive fines and can subject you to professional discipline.
Query: Are Cell Phone Photos HIPAA-Compliant?
I do house calls. I want to know if it would be HIPAA-compliant if I took photos of patient ID cards and feet with my cell phone which is password and fingerprint protected. Also, can I store these on Apple Cloud which would also be password protected?
Myron Bergman, DPM, Bridgewater, NJ
Response: Password protection is not encryption. If you want to store patient data on a service such as Apple cloud, you first need to have a Business Associate Agreement in place with the service that is storing the data, and second you need to make sure that the data is encrypted. Therefore, unless you have both of these in place, I strongly recommend against storing the information in the cloud.
As far as taking a picture with your cell phone, once again password protection is not encrypted. Your device is not secure and straight patient information on the cellular phone puts it at much greater risk of being breached. I recommend that you purchase a digital camera and as soon as you get back to your office, transfer the images off of the digital camera onto your computer and then wipe the memory of the digital camera. That is the least risky method of capturing the images of your patient identification cards though that still does pose a risk. If the camera is lost or stolen with patient information on it, it is a HIPAA breach.
Michael Brody, DPM, Commack, NY
Query: Crossroads Mini Bunion Plate
A patient of mine would like to have her bunionectomy performed with a minimal-invasive technique using the new Crossroads Mini Bunion plate. I know there are ways to perform this procedure without the plate, but she is requesting its use. The surgery center is balking as they will sustain a $600 loss due to the cost of the implant. The patient is willing to pay the additional $600, in addition to whatever her insurance carrier pays, in order to move forward with the procedure. Are there any reasons: legal, insurance contracts-wise, or other, why this would be problematic if all parties are agreeable?
Query: Drug Abuse Problem
I am embarrassed to admit it but I have a serious drug abuse problem. It all started a few years ago when I hurt my back and was given a prescription for Vicodin. I wound up writing Rx’s for patients I created and then picking them up at different pharmacies. Eventually the DEA caught on and are now investigating me. My whole world seems to be crashing in. What can I do to save myself, my family, and my practice?
Editor’s comment: PM News does not provide legal advice. You’ve taken the difficult first step in admitting you have a problem and seeking assistance. You are to be commended for that. You are not the first (nor will you be the last) podiatrist to find yourself in this situation. Fortunately, others have been in your situation and returned to productive practice. We suggest you contact the Physician’s Recovery Network – Resource for Healing. They provide confidential, anonymous assistance and referral for drug and alcohol problems, depression, marital/family issues, physical impairments, etc. Call the Physician’s Recovery Network (PRN) hot-line at 800-488-4767. This is an APMA-sponsored program. The PRN’s mission statement says that it was “developed to identify and assist impaired (whether by substance abuse, physical and/or mental conditions) podiatric physicians and/or members of the podiatric medical family (including, but not limited to, podiatric medical students, family members, and office staff of the podiatric physician) so that they can be restored to a full life and/or effective professional practice.”
We suggest you retain the services of a healthcare lawyer and that you do not make any
statements to any investigative personnel outside the presence of an attorney.
Query: Legality of Seeing Patients for Start-Up Laser Company
Recently, I was approached by a start-up laser company. They want to refer patients to me for evaluation of toenail fungus. If clinically there is fungus, their company will provide the laser and the technician to treat the condition. It would be my job to supervise the treatment and provide the treatment room. No insurance is involved and they would pay me $200 per patient. Is this above board and do I need to be concerned.
Editor's comment: PM News does not provide legal advice. Having a technician treating patients under your supervision is problematic at best. Your first call should be to a healthcare attorney in your state. Next, call your malpractice carrier and see if they will cover you in this scenario.
Query: EHR Charging for Medical Records
I have been with the same EHR company (Success EHS by Greenway) for over 10 years. They are sunsetting the EHR at the end of the year. They wanted me to stay with their recommended EHR product which I did not like. Now, I switched EMRs with a different company and they want to charge me 14K for all of my patient records. Is this legal? I have paid them a percentage every month for practice management and billing.
Editor's Comment: PM News does not provide legal advice. The answer may lie in the contract agreement you signed when you bought the EHR. The lesson to be learned is to always anticipate the possibilty that you may someday switch to a different EHR system and negotiate accordingly. Among the negotiated items are a liquidated damage clause if you end your contract prematurely and a clause that assures that the data provided to you will be in a "useable" format.
Query: HIPAA Implications of Windows 7 Support Ending
For those using Windows 7, you are likely aware that Microsoft will no longer provide support for that OS early in 2020. Aside from support issues, what are the HIPAA implications?
Mark Aldrich, DPM, Antigo, WI
Query: Recommendation for Malpractice Carrier
I have been in practice for more than 10 years. I have had 5 claims, out of which only one was settled. The rest have been dropped. My insurance company is going to drop me, claiming that I am high risk for them (I have cost them 120K). I want to know what carriers are out there that anyone can recommend.
Query: Orthotics as Part of Revenue
I recently was approached by an orthopedic group for employment. We have gotten to the contract negotiation stage, but we have gotten hung up on the fact that they will not use orthotic revenue as part of either the base threshold or bonus compensation. Their reasoning is that it is a Stark violation because it is not a personally-provided service. Their legal team informed them that it would fall into the category of DME. They are a large orthopedic group and I would expect many referrals for orthotics and braces.
Does anyone have an opinion on the calculation of orthotics as part of revenue towards a base threshold or even a bonus structure?
Query: Sun Setting Medical Records in Pennsylvania
My hospital, that has been maintaining EMR records from my previous EMR system, is retiring the server. What are my obligations as far as length of time maintaining access to those records, for adults and particularly for minors? I practice in Pennsylvania.
Editor's comment: PM News does not provide legal advice: According to Pennsylvania statute § 563.6 "Medical records whether original, reproductions or microfilm, shall be kept on file for a minimum of 7 years following the discharge of a patient. (b) If the patient is a minor, records shall be kept on file until his majority, and then, for 7 years or as long as the records of adult patients are maintained."
Locum Tenens and Long-term Coverage
A podiatrist in town will be medically disabled for at least six months and needs coverage for his office to try to maintain some income and keep his patient base. I and others are willing to keep some of his hours and his office open for him but do not want to risk running afoul of CMS, etc. We are looking for information regarding locum tenens (is it a total of 60 days per physician or can we have separate physicians for 60 days each?) and also the ability to see patients in HIS office which would be a new place of service for us (does this require a new POS and CMS 850 form?).
Editor’s comment: PM News does not provide legal advice. Services provided by an individual locum tenens cannot exceed a continuous period of more than 60 days. Each podiatrist can have a turn as a locum tenens. Claims payment is made under the name and billing number of the physician or the practice that hired the locum tenens physician. Every claim 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: LuAnn Jenkins, AAPC
Query: Secondary Office Locations
I have read on numerous sites that if a podiatrist is set up in a medical room, beauty salon, or other location where they are attending to patients specific to that location (for instance, a high rise senior citizen apartment building where the only patients seen would be from that high rise), that the podiatrist must 1) register this address with Medicare as an office location and 2) must pay a reasonable rent. Are these "suggestions" or is this actually a law/rule/regulation? Would the same apply if treating patients at adult daycare facilities?
Richard A. Simmons, DPM, Rockledge, FL
Query: Posting Surgical Procedure Videos on Social Media
In this current Dr. Pimple Popper world, I’m seeing an increase on podiatry office Facebook sites of surgical procedures. I’d like to know if posting videos of our procedures could lead to a liability issue.
Olga Luepschen, DPM, Sebring, FL
Editor's Comment: PM News does not provide legal advice. In order to steer clear of HIPAA and state privacy laws, make sure the patient is not identifiable. In addition, it is recommended that you get a signed release from the patient.
Query: Duty to Inform
I know there are many circumstances in which this is allowable, but when do I have to step in and inform family members (HIPAA) or authorities?
George Jacobson, DPM, Hollywood, FL
Editor's comment: PM News does not provide legal advice. A HIPAA-covered entity may disclose PHI to law enforcement without the individual’s signed HIPAA authorization in certain incidents, including: "To report PHI to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public." If you reasonably believe that your patient's driving presents a threat to public safety, It is not a breach of HIPAA regulations. Whether you have a duty to make such a report would vary under state laws. You might also consider having a conversation with your patient about the potential danger posed to him/herself and others.
Query: HIPAA and Death
How long after a patient's death does the privacy protection continue? I'm afraid to even admit someone was a patient.
Larry Aronberg, DPM, Lake Worth, FL
Editor's comment: PM News does not provide legal advice. "The HIPAA Privacy Rule protects the individually identifiable health information about a decedent for 50 years following the date of death of the individual. This period of protection for decedent health information balances the privacy interests of surviving relatives and other individuals with a relationship to the decedent, with the need for archivists, biographers, historians, and others to access old or ancient records on deceased individuals for historical purposes. During the 50-year period of protection, the personal representative of the decedent (i.e., the person under applicable law with authority to act on behalf of the decedent or the decedent’s estate) has the ability to exercise the rights under the Privacy Rule with regard to the decedent’s health information, such as authorizing certain uses and disclosures of, and gaining access to, the information.
With respect to family members or other persons involved in the individual’s health care or payment for care prior to the individual’s death, but who are not personal representatives, the Privacy Rule permits a covered entity to disclose the relevant protected health information of the decedent to such persons, unless doing so is inconsistent with any prior expressed preference of the deceased individual that is known to the covered entity."
Query: HIPAA-Compliant App?
I’ve attended lectures discussing being HIPAA-compliant with patient photos being stored on physicians' smart phones. A close friend has a client who is a world renowned surgeon and uses an app called “Secret Calculator Photo Album” to store his patient photos in his phone. He states this app is HIPAA-compliant. I cannot confirm the validity of being compliant with HIPAA regulations but it would be worth looking into. If anyone can verify this, it would be helpful to many.
Jack Ressler, DPM, Delray Beach, FL
Query: Purging Patient Charts
I am having a company come out to shred old patient charts, EOBs, and other various insurance information. I understand you are required to keep charts for seven years. I would like to be able to shred charts and patient information from the year 2012 and before. Can all of the charts from 2012 be disposed of since technically it won't be seven years from 2012 charts dated April 2012 forward? Does it go by calendar year or actual time?
Editor's comment: PM News does not provide legal advice. The seven year time period for retaining charts is not a legal requirement; it is a widely espoused recommedation of practice management experts. Medicare, for example, has a five-year lookback period, and state requirements fo retaining records vary.
Query: Must Patients Supply Social Security Numbers
I just had a patient refuse to give an entire ss#, and only gave the last 4 digits. Am I breaking any law if I accept that for my records?
Larry Aronberg, DPM, Lake Worth, FL
Editor's comment: PM News does provide legal advice. Given the rise of identity theft, Medicare and most (if not all) insurance companies no longer use a patient's Social Security number on their insurance card. Therefore, unless there is a legitimate need for the number, such as using a company to finance a medical bill, a patient is not required to provide a Social Security number. On the flip side, if the patient refuses to provide identifying information and you feel s(he) is at risk of not paying your bill, you are under no obligation to accept the patient.
Query: Termination Letters from UnitedHealthcare
Recently, some of my patients that have UnitedHealthcare are presenting us with letters they have received from UnitedHealthcare stating "RE: Notice of Termination-Physician will no longer be in UnitedHealthcare network beginning 3/31/19." The letter further states that I "will no longer participate in the UnitedHealthcare network" and "you should choose another physician within the UnitedHealthcare network."
Our office checked with UnitedHealthcare and we have NOT been terminated and can offer no explanation why these letters were generated. Before I move forward with resolving this disturbing and damaging situation to my practice, I would like to know if anyone else has experienced a similar problem with UnitedHealthcare.
Ron Freireich, DPM, Cleveland, OH
Query: Is a DEA Number Always Necessary?
I just received notice that my DEA number is up for renewal. I have done research and have even asked some pharmacists about the need for having a DEA number. The short answer is that if you do not prescribe narcotics, a DEA number is not necessary. My NPI number is all that is really needed. I am semi-retired and do not have the need to prescribe pain medication. I do not do surgery anymore and only use NSAIDs or other non-narcotic medications for pain. What is the general consensus as to the need for having a DEA number? Is there anyone else who still practices and prescribes medications without a DEA number?
Jack Ressler, DPM, Delray Beach, FL
Query: Dealing with a Patient who Makes Physical Overtures Toward Staff?
One of my male patients made some physical overtures (tried to touch) my office manager. She was quite offended and after he left, she came to me to complain. How should such an event be handled in the future?
Query: Expert Witness Fees for Personal Injury Cases
What are the typical charges for a deposition (hourly), expert witness in court, full or half day, and records review?
David Kahan, DPM, Sacramento, CA
Editor's comment: PM News does not provide legal advice. Expert witness fees vary by location and the qualifications of the expert. It's important to note that expert witnesses are not paid for their testimony, but rather for the loss of income that they would earn if they practiced during the time they were in court. According to the SEAK Expert Witness Directory, the median hourly fee for file review/preparation for all medical expert witnesses is $350.