Should
professional fees be waived or refunded when a patient
is dissatisfied?
Not always. It depends on the particular situation.
First give the patient the opportunity to describe the
reason for their dissatisfaction. Attempt to correct
the situation, if possible. If the patient demands a
refund, waiver of fees, or the issue cannot be remedied,
contact APAC's Risk Management Department or personal
counsel for specific guidance. What some may interpret
as an act of accommodation, others may view as an admission
of liability.
May
records be furnished to an HMO/MCO without an authorization
from the patient?
No. However, most HMO/MCO providers require such authorization
as a condition of coverage. Therefore, the HMO/MCO should
be asked to furnish a copy evidencing the patient's
authorization.
What
action should be taken when a summons and complaint
is received?
Immediately notify APAC by calling the Claims Department
at 866-294-6014, ext. 3293. If you are served, APAC
only has a limited number of days to assign a defense
attorney and prepare a response to be filed on your
behalf. It is important to not discuss the case with
the patient, the patient's attorney, or other parties
involved in the care and treatment of the patient.
You should also gather and secure the patient's records
immediately.
What
action should be taken when a patient is noncompliant
or refuses to undergo diagnostic studies, care, or
treatment?
Document your recommendations and the patient's noncompliance.
Advise the patient of the potential consequences their
noncompliance or refusal may cause and document your
discussion. Confirm the patient's noncompliance, your
subsequent discussion, and the potential consequences
in a letter to the patient sent certified mail, return
receipt requested. Send a copy of the letter by regular
mail as well. Consider withdrawing from the patient's
care, but first review the language of any managed
care contracts that may apply to the situation and
seek guidance from APAC's Risk Management Department
or personal counsel. If you practice in a group setting,
it may be necessary to withdraw on behalf of others
in the group as well as the practice.
What
is the effective date for the new HIPAA privacy rules?
Although the HIPAA Privacy Rule became effective April
14, 2001, it has not been finalized and will be the
subject of future updates anticipated through the
fall of 2002. Physicians covered by the new rule must
comply by April 14, 2003.
Does
state or federal law set forth a specific manner in
which obsolete patient records must be destroyed?
No. However, patient records must be destroyed in
a manner that protects patient confidentiality. The
best way to dispose of records is by shredding, mutilation,
or similar protective measures. If arrangements are
made with third parties or entities for the destruction
of patient records, a written agreement should be
obtained clearly obligating the entity to safeguard
confidentiality as well as indemnity and hold harmless
you and your practice from any breach of confidentiality
for which they are responsible. Before destroying
records, confirm the timeframes of the specific record
retention laws in the state in which you practice.
What
is a deposition?
A deposition is testimony given under oath before
a court reporter. Depositions are important in the
preparation of a case for trial. Depositions also
freeze testimony and can be used to impeach your credibility
if you deviate from them later. They are used to discover
facts of the case and to uncover additional witnesses.
Depositions are also used to narrow the issues of
the case. Failing to appear for a deposition subjects
you to the potential to be held in contempt of court.
Always consider exercising your right to legal counsel
before providing deposition testimony.
Does
the physician-patient relationship end at the time
insurance coverage expires or a managed care plan
terminates?
No. Once established, the physician-patient relationship
does not end merely because insurance is no longer
available or a change in managed care coverage occurs.
A physician's responsibility to the patient continues
unless and until the patient severs the relationship
or the physician provides proper notification to the
patient of the intent to withdraw from providing further
care and treatment. Furthermore, the physician's responsibility
to treat the patient may extend until the patient
becomes medically stable. Always seek legal or risk
management guidance before terminating the physician-patient
relationship.
Are
sign in sheets in waiting rooms prohibited by the
HIPAA privacy rule?
No. However, a sign in sheet or registration log
that solicits the reason the visit or other personal
health information should not be used.
Do
the consent requirements under HIPAA restrict the
ability of providers to consult with other providers
about a patient’s condition?
No. A provider with a direct treatment relationship
with a patient would have to have initially obtained
consent to use that patient’s health information
for treatment purposes. Consulting with another healthcare
provider about that patient’s case falls within
the definition of "treatment" and is, therefore,
permissible. If the provider being consulted does
not otherwise have a direct treatment relationship
with the patient, that provider does not need to obtain
the patient’s consent to engage in the consultation.
Is
it against the law to refer to a medical assistant as
a "Nurse" in the office practice setting in
the State of Florida?
Yes. Florida Statute 464.016, paragraph (2)(a) indicates
that "using the name or title "Nurse,"
"Registered Nurse," "Licensed Practical
Nurse," "Advanced Registered Nurse Practitioner,"
or any other name or title which implies that a person
was licensed or certified as same, unless such person
is duly licensed or certified" constitutes a misdemeanor
of the first degree, punishable as provided in s.775.082
or s.775.083.
Are
there laws which govern the legibility of written
prescriptions?
Yes. Effective July, 1, 2003 Florida Statute 456.42
requires that all written prescriptions must be legibly
printed or typed and must be signed by the prescribing
practitioner on the day of issue. Further, the prescription
must contain the following:
- Name of the prescribing practitioner
- Quantity of the drug prescribed in both textual
and numerical formats
- Date of the prescription with the month written
out in textual letters
- Directions for use of the drug
- Name and strength of the drug prescribed
Failure to issue prescriptions as set forth by the
new requirements is a violation of Florida law and
will subject the practitioner to disciplinary action
of their license to practice.
What
action should be taken when a medical error is suspected
or occurs?
Contact APAC's Risk Management Department for
guidance as soon as possible. Make no admissions of
liability. Federal and/or State reporting requirements
under strict time constraints may apply. Always attempt
to discuss the situation with personal counsel or
APAC before meeting with hospital risk management.
Does
the HIPAA Security Rule require that patients be provided
a Privacy Notice?
Yes. Effective April 14, 203, patients must be
provided with a privacy notice detailing the rights
and responsibilities of the patient and the practice
in protecting the privacy and confidentiality of protected
health information. The privacy notice should be shared
with patients upon delivery of service, or as soon
as feasible in an emergency. It must be available
to patients in print, written in clear language, and
be posted at each service site - ideally the waiting
room. The patient's acknowledgement that the privacy
notice was provided must also be obtained. The privacy
notice, the patient's acknowledgement, and each notice
revision must be retained for a six-year period. Upon
their request, patients must be furnished a copy of
the privacy notice.
May
the medical records of a deceased patient be furnished
to the surviving spouse?
Not automatically. Under Florida statutes, medical
records may only be furnished to the patient of the
patient's "legal personal representative."
In the case of a deceased patient, it is required
that the person seeking the record be appointed as
the "Personal Representative of the Estate"
of the patient. Alternatively, a party seeking production
of the decedent's medical records may file a "Pure
Bill of Discovery" to obtain a Court Order to
produce the records. A standard authorization for
release of medical records is sufficient, providing
that the requesting party executes the authorization
"As Personal Representative of the Estate of
(patient name), Deceased."
Who
is a "covered entity" under HIPAA?
A health plan or payor, a healthcare clearing house,
such as a billing service, or a healthcare provider
such as a physician, dentist, hospital or pharmacy of
any healthcare provider who transmits any healthcare
information in electronic form, which includes telephone,
fax, and computers.
Must
a physician sign all progress notes made?
Although state law does not specifically require
a signature, Medicare, Medicaid and most HMO's require
such documentation.
When
a patient leaves the hospital AMA (against medical
advice) is the physician-patient relationship automatically
severed?
No. The patient can assert that the AMA was purely
for some aspect of treatment, such as surgery or physical
therapy, but not all care and treatment. Always document
and record in the case of an AMA and send a letter
to the patient confirming their forfeiture of care
and the potential consequences of their actions. Ask
the patient to reconsider, but do not deny the patient
access to ongoing care. Consider terminating the physician-patient
relationship. Depending on the circumstances, seek
legal guidance before taking such action.
Do
mandatory reporting requirements set forth by Florida
statues pre-empt HIPAA privacy provisions?
Generally, yes. A good example would be FS 381.003
which requires a physician that diagnoses or suspects
the existence of a disease of public health significance
to immediately report the fact to the Department of
health. However, because the legal waters pertaining
to most HIPAA privacy provisions have yet been tested,
it is wise to seek legal or risk management guidance
when uncertainty may arise.
What
is meant by the legal phrase res ipsa loquitur?
A Latin phrase meaning "the facts speak for
themselves." Res ipsa loquitur is a rule of evidence
under which an individual is deemed, under certain
specific circumstances, to be negligent by mere occurrence
of the incident, and where the law presumes that the
injury could not have occurred by tort negligence.
An example of a res ipsa loquitur case would be a
retained foreign body claim.
