Blog

• posted: May 13, 2019
• Janie Ratliff
• Business Law
• medical practice,  Medical records law in Kentucky,  records storage

Written By: Janie Ratliff-Sweeney

The time has come to close a chapter and move on from your medical practice. But closing down a physician’s office doesn’t just involve business concerns like notifying personnel or selling equipment. Doctors must also worry about the fate of their patient records.

If you are a Kentucky doctor closing your practice, be sure to notify patients and offer to send copies of their records to another physician of their own choosing. The Kentucky Medical Association recommends notifying patients 60 to 90 days before you close your practice.

For patients who do not opt to have their records sent to a successor physician, records should be retained for storage with a custodian, who may be another physician or a commercial service. An experienced attorney can draft a custodial agreement, which should include such details as:

• the length of time records should be retained
• a requirement that you and your patients may continue to access records
• a requirement to notify the closing practice if the custodian’s contact information changes
• any fees associated with record maintenance
• compliance with state and federal regulations pertaining to patients’ records

How long records should be retained depends on several factors. According to American Medical Association ethics guidelines, physicians have an obligation to retain patient records “which may reasonably be of value to a patient.”

For practical reasons, records should be kept for at least as long as the limitations period for medical malpractice claims. Kentucky’s statute of repose says that a medical malpractice lawsuit must be filed within five years of the date a negligent act or omission is said to have occurred.

Doctors participating in Medicare and in Kentucky’s Medicaid program must retain records for five years from the date of a patient’s discharge.

For patients who don‘t respond to the notification that your practice is closing, a second notice should be sent toward the end of the 90 days, informing them of the storage location of their records or, in the case of records older than five years, that the records will be destroyed.

Compliance with the Health Insurance Portability and Accountability Act is critical as well. HIPAA’s patient privacy protections apply to storage — and destruction — of records. For older records that need to be destroyed, consider contracting a records destruction service to properly destroy paper or other media (such as CDs and flash drives) to ensure patient data remains protected.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

• posted: May 06, 2019
• Janie Ratliff
• Healthcare Law
• investigation,  licenses,  patient billings,  prescriptions

Counterintuitive as it seems, it is possible to commit fraud without actual intent. If you and your staff lack careful billing and oversight processes, you could come under investigation for Medicare/Medicaid fraud.

If you bill for 30 patients on a given day but you actually only saw 20, the 10 phantom patient billings are patently fraudulent. But even a simple mistake or oversight, such as a billing clerk including a procedure code for a patient who didn’t receive that service, can be suspect. This could happen if your staff is accustomed to billing certain codes together and they assume you provided the same services to a particular patient when, in fact, you didn’t.

Another common issue is lapsed licenses. If you have a medical provider in your office — such as a doctor, nurse or technician — they should not be working during any lapse in their license, even as short as a day. Insurance companies routinely check license information during claims processing, and such a finding would tarnish billing to all your patients for that day, including those on Medicare and Medicaid. Regulators consider billed services by an unlicensed provider as services that never happened.

Similarly, if you operate a practice but are not present or readily available while certain patients are being treated, billing for those services could be deemed fraudulent because they lacked supervision.

Prescription billing is another area fraught with risk. If you billed for a prescription that the patient never received, it could be deemed fraudulent. To avoid inadvertent billing, have a system in place to flag billed prescriptions that were never picked up.

Physicians sometimes find themselves on the wrong side of the law due to financial arrangements that could be considered kickbacks or self-referrals, such as having a financial interest in another practice to which patients are referred. Even giving small gifts to patients could get you in trouble if the gifts are deemed a reward for continuing to use your services.

With the high risk of fraud investigations arising from inadvertent mistakes, it makes sense to work with a skilled lawyer to devise a compliance plan. If you have concerns about an aspect of managing your practice, contact a knowledgeable healthcare attorney at Hemmer DeFrank Wessels, PLLC.

 

• posted: Apr. 29, 2019
• Janie Ratliff
• Employment Law,  Healthcare Law
• doctors,  employee training,  EMS,  HIPAA,  hospitals,  nurses,  patient privacy

Written By: Janie Ratliff-Sweeney

Even with the best standards and practices in place, hospitals, doctors’ offices and other medical institutions are only as good at patient health data privacy as the employees who handle the data on a daily basis. Employee mistakes put medical organizations at legal risk if data is improperly disclosed.

In a recent ruling, the Kentucky Court of Appeals upheld an employer’s right to discharge an employee for a Health Insurance Portability and Accountability Act (HIPAA) violation. Dianna Hereford, a hospital nurse, after prepping a patient behind a curtain for a procedure, told the physician and technician performing the procedure that the patient had Hepatitis C and advised them to wear gloves. The patient later filed a complaint, saying that Hereford spoke loudly enough to be heard by other patients and medical personnel and thus improperly disclosed private health information. Hereford argued she didn’t commit a violation, but the court found that she may have and that, in any case, the hospital had the right to fire her as an at-will employee.

The case, Hereford v. Norton Healthcare Inc. dba Norton Audubon Hospital, highlights the importance of careful employee training on HIPAA compliance and of making sure employees realize that insensitivity to patients and the appearance of improper disclosure can be as problematic as actual privacy violations.

In another case, in Tennessee, an EMS medic posted on Facebook about a man who died of a heart attack in his chicken coop, where his wife and EMS workers tried to revive him. In the post, the medic wrote that treating a patient in a chicken coop “was a first” and complained about the smell of chicken droppings. Even though the medic did not reveal private health information about the victim nor mentioned him by name, the man’s wife argued that mentioning the patient was treated in a chicken coop was enough that people in the community who knew the man could easily recognize the Facebook post was about him.

The lesson that healthcare organizations and their employees can draw from these cases is the importance of teaching employees that improper verbal communication — not just information on paper or data in a computer system — may also rise to the level of a HIPAA violation.

If you have questions about your organization’s HIPAA compliance and training programs, call a knowledgeable employment law attorney at Hemmer DeFrank Wessels, PLLC at [ln::phone] or contact us online.

 

• posted: Apr. 22, 2019
• Janie Ratliff
• Healthcare Law
• doctor,  fraud,  healthcare,  Medicaid,  Medicare,  unnecessary procedures

Written By: Janie Ratliff-Sweeney

When you hear of Medicare fraud, you may think of billings for patients who never showed or for procedures that were never performed. What might not come to mind is a doctor performing unneeded invasive procedures or surgeries on patients to increase claims to Medicaid and Medicare billing. But that’s exactly what one Kentucky doctor was found to have done.

Anis Chalhoub, while a cardiologist at a London, KY hospital, allegedly performed multiple pacemaker implants over a four-year period. He was convicted of healthcare fraud and was sentenced to serve 42 months in prison and to pay more than $275,000 in restitution and $50,000 in fines. He has been prohibited from practicing cardiology for three years following his release from prison.

The brunt of the financial fallout landed on his former employer, Saint Joseph Health Systems (now KentuckyOne Health), which agreed to pay a $16.5 settlement to affected patients though it did not admit to charges that it participated in the alleged scheme.

Healthcare organizations can protect themselves from multimillion dollar settlements by paying attention to red flags and putting procedures in place to monitor procedures and claims. Working with a healthcare lawyer knowledgeable about insurance fraud can help clarify any confusion or uncertainty you may have about relevant regulations.

To prevent false claims and unnecessary procedures, your organization can implement internal control procedures such as these:

• Randomly select and review medical charts of patients who undergo tests and other procedures to confirm that the tests met the medical necessity guidelines for reimbursement.
• Set up notification alerts for doctors with a pattern of billing for services and care with no supporting documentation.
• Conduct regular audits to see how patient records and claims line up with patient questionnaires. A record that significantly contradicts a patient’s answers about symptoms or medical history may have been falsified to support billing for tests and procedures.

In addition to proactive measures to monitor for fraudulent practices, you should pay attention to internal and external complaints about providers. Conversely, a pattern of ignoring them might later be used against your company or practice as evidence of negligence.

If you have concerns about whether you are following regulations that pertain to Medicare and Medicaid billing, call a knowledgeable healthcare attorney at Hemmer DeFrank Wessels, PLLC or contact us online.