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From: Elliot Udell, DPM


Many of us have been led to believe that when the new scope of practice laws in New York State take effect, it will not just affect bone surgery of the ankle, but the treatment of soft tissue problem in the adjacent areas.


I, for one, have no intention, at this stage of my practice, to study for or to become certified to perform ankle surgery, however I don't see why the new law would require colleagues like me to complete a residency in ankle surgery in order to treat a verruca which happens to be above the lateral malleolus.


Elliot Udell, DPM, Hicksville, NY,

Other messages in this thread:



From: Donald R Blum, DPM, JD


"....When I received the new patient paperwork, an arbitration document was included in the packet for me to sign. It basically stated that if I felt dissatisfied in the care I received and I was considering a medical liability claim, I could arbitrate the matter with the institution where the care was provided instead of a seeking legal counsel." 


I think the key word in the notice is "could". To me, this is giving you the option to arbitrate versus making it the only option. Please do not construe this to be legal advice. I also suggest asking them the meaning of the notice. 


Donald R Blum, DPM, JD, Dallas, TX 



From: Elliot Udell, DPM


A friend of mine called me over the weekend asking me about similar paperwork she had to sign in order to gain admission to a motivational seminar in New York City. I could not imagine anyone suing them over not "being motivated"; however, what they may be concerned with is if she is not happy with the program, leaves early, and wants her six hundred dollars returned.


This would go to arbitration. This might be what is so with the orthopedic group. With high co-payments with the new insurance plans, many patients might run up a bill for a couple of thousand of "out-of-pocket" dollars and look for ways to not pay the bill. Some patients truly believe they are covered for all services, and then refuse to pay even though the visits went toward a four thousand dollar deductible. In other cases, the patients might claim they do not owe money because their knees or shoulders did not feel better. I cannot see a court allowing a patient to sign his or her rights to sue for professional negligence.


Elliot Udell, DPM, Hicksville, NY



From: Gary Hoberman, DPM


I think the elephant in the room is not what criteria is needed for a home visit but the fact that most doctors we interview to work in nursing homes who are currently doing home visits are billing for an E&M visit EVERY single visit along with the at-risk palliative care they may be providing. Somehow they find tinea, or some other emergent problem that just happens to pop up on the 60-day cycle with the necessary and presumed covered palliative care. This leads to a higher average fee per patient and a competitive advantage for those practices seriously engaged in home visits. I’m glad these E&M codes are now being more closely scrutinized.


Gary Hoberman, DPM, Chicago, IL



From: Al Musella, DPM


I also received three of these letters from Medicare. I found this in the guidelines from Medicare: " For home services provided by a physician using these codes (99341-99350), the beneficiary does not need to be confined to the home. The medical record must document the medical necessity of the home visit made in lieu of an office or outpatient visit."


United Healthcare Medicare has this in the guidelines: Home Visits (House Calls)

o Home visits made by a physician to a member’s private residence may be covered when medically reasonable and necessary and not for the convenience of the provider or the member.

o Although the member need not be confined to his home for the physician’s home visit services to be covered, the member’s condition must satisfy Medicare’s definition of ‘homebound”, and the medical record must document the medical necessity of the home visit made in lieu of an office or outpatient visit. 

o Generally speaking, a patient will be considered to be “homebound” if he/she has a condition due to an illness or injury that restricts his/her ability to leave his/her place of residence except with the aid of supportive devices such as crutches, canes, wheelchairs, and walkers, the use of special transportation, or the assistance of another person or if leaving home is medically contraindicated. (For details, see the Medicare Benefit Policy Manual, Chapter 7 - Home Health Services, Section 30.1.1 - Patient Confined to the Home.)

o For more specific Medicare guidelines, refer to Medicare.


All of my housecall patients are elderly and cannot get to my office by themselves without assistance, so I feel they qualify. I Will soon find out if Medicare agrees!


Al Musella, DPM, Hewlett, NY



From: Steven J. Kaniadakis, DPM


I suggest that you confirm the permeability of the product brand or generic material. Barrier products, like surgical masks, have various allowances for particulates, including bacterial organisms. Dental procedures are not typically required to have a sterile field, since most are "dirty procedures." The fact that the dental profession uses the material in reference to your intended use is not a wise one. So, I respectfully disagree with Dr. Block.


Try contacting Johnson & Johnson Barrier products. They might be helpful. Although "community standards" might be different, "standard of care" is your concern, right? If you get a case of osetomylitis or any other post-op issue, this might well be the first thing investigated. Be proactive and take the time to find out, or it may cost more time for you in the future.


Steven J. Kaniadakis, DPM, St. Pete, FL



From: Jeffrey Kass, DPM, Elliot Udell, DPM


I fail to see how "name withheld" is a serial malpracticer when no judgment was made against him. I would have taken issue with the hospital. 


Jeffrey Kass, DPM, Forest Hills, NY


When I first started in practice, podiatrists were getting sued, and our premiums were sky high. Why? Insurance companies were willing to settle every lawsuit, whether it had merit or not. Every negligence attorney knew that suing a podiatrist meant a quick settlement with very little work. For the insurance industry, it was cost-effective to settle every case and raise everyone's premiums at the end of the year, and even add on more profits for themselves. They did not care one iota that settling an unwarranted med mal case would be on a doctor's record and interfere with his or her ability to be on staff of certain hospitals. Today, carriers fight back and, unlike the past, they cannot force doctors to settle bogus, nuisance cases.


Elliot Udell, DPM, Hicksville, NY,



From: Seth J. Steber, DPM


There is a group you can join called Doctor's Advocate: For less than your state and national dues, you can become a member. Their attorneys and staff will handle independently any potential lawsuit, PR issues, threats, slander, etc. Since they are not an insurance company, they can contact your potential plaintiff and their attorney directly to discuss the matter and "educate" them on frivolous lawsuits and potential for counter-suits. 


Seth J. Steber, DPM, Carlisle, PA,



From: Name Withheld


Several years ago, I saw the same cellulitis reaction in a patient who missed some work time. Her husband came and demanded compensation, and implied that if I didn't pay, I would be sued. I contacted my insurance company. I never heard about the matter again until 3 years later, when I applied for hospital privileges. During my interview, I found out that this episode was listed on my record as a malpractice claim. I had one other previous claim which was decided in my favor. I was turned down by the hospital because I had multiple claims and was a serial malpracticer.


Name Withheld



From: Elliot Udell, DPM


Dr. Jacobs is correct when he states, "In-office compounding has been around a long time." My dad is a retired pharmacist. When I was little kid in the 1950s, I remember visiting his drug store. In those days, pharmacists were not highly educated professionals. Their roles were often reduced to taking pills out of a stock bottle, counting them out into a small plastic bottle, and slapping  a label on it. In those days, all physicians  wrote for compounds, and my father showed me how he would hand-make ointments, cough syrups, pills, and suppositories based on physicians' prescriptions (which were always written in Latin). With compounding pharmacies, the profession has come full circle and pharmacists are once again doing the work that measures up to their years of intense training.


Elliot Udell, DPM, Hicksville, NY,



From: Allen Jacobs, DPM 


In-office compounding has been around a long time. There is nothing wrong with compounding selected pharmaceutical ingredients in your office for patient treatment. The issue your question raises is not about Stark Law. It should be about medical liability, kick-back laws, ethics, and not jeopardizing your in-network medical status with payers. 


1. Liability is a major issue. When a pharmacist dispenses a drug to a patient, they hold 100% of all patient liability for safety around allergies, drug to drug interactions, contraindications and... 


Editor's note: Dr. Jacobs' extended-length letter can be read here



From: David E Gurvis, DPM


Yes, you are allowed to refuse to see a patient, but you had better not ever say you declined due to an ADA-covered disability. The government says (you do not have to agree or embrace or otherwise like) that YOU, not THE PATIENT, not INSURANCE are responsible to pay for an interpreter. You may ask if the patient will allow for written communications, and if so, fine. If not, YOU PAY for the sign interpreter. A family member is not a good idea, as they may not be familiar with medical terms.


The idea is, the cost is spread out over a large population of providers, and "therefore" no one gets too big a financial hit.  Do I think this is fair? Is it the law? You don't want to test it and find out. If you decline this patent for a reason other than deafness, you had better be sure you are bulletproof. The enforcement of this law is by civil suit and that can hurt.


David E Gurvis, DPM, Avon IN,



From: Victor Chen, DPM


I had a similar issue twice, in 2000 and recently last year, as highlighted in PM News. In 2000, I was told I treated a person (and received payment) in 1998 who was deported in 1996, therefore I had to refund Medicare almost $1,000 since he was not in the U.S. Turns out, the patient had to go to Social Security for an interview, but he had unfortunately expired. Medicare consequently dropped this case. Last year's "Messycare" debacle was highlighted in PM News by a TV investigation on my behalf by Arnold Diaz, Investigative Reporter.  


Social Security had erroneously labelled him (a deceased patient of three years) an Illegal Alien, setting off a demand from Medicare for refunds. The law states that Medicare can collect monies from whomever they paid; they don't go after the illegal person in question and ask them to reimburse them. If you got paid by Medicare, you are supposed to refund Medicare, and then you have to go after the patient (good luck with that!). I suggest that you get an investigative reporter or lawyer to assist you in determining if Social Security has erred. BTW, I never received an apology letter from Medicare or Social Security for their mistake!


Victor Chen, DPM, Jackson Heights, NY,



From:  Peter Bregman, DPM


It is possible that the patient had an underlying tarsal tunnel syndrome that was exacerbated by this injury. It will be difficult to prove this. It is also important not to rely on EMG/NCV studies and document the clinical presence by Tinel's sign and by provocation. Is also important to look more proximately at the soleal sling as well for tibial nerve entrapment.


Peter Bregman, DPM, Las Vegas, NV,



From: Richard A. Simmons, DPM


The doctor is asking how to chart for an unchanged condition of a painful fifth toe corn every two months, for decades, on a patient not wanting a surgical correction. The patient is happy with conservative care. The answer is simple: you chart the treatment you are doing on a routine basis, whether it is repetitive or not.  


Now, if the patient’s bill is paid for by Medicare, please be sure that the patient meets Medicare’s criteria for “covered” routine foot care (CPT 11055). Do not bill an E&M (evaluation and management) code for each visit. If the patient is not eligible for routine foot care, then this is a cash visit with no bill submitted to Medicare. Check with the criteria for other insurance carriers before submitting your claim.


Richard A. Simmons, DPM  Rockledge, FL


Editor's note: Name Withheld has informed us that the patient was considered at-risk and covered for care of the fifth toe corn.



From: Brian Kashan, DPM


One of the factors in repeated treatments and visits, in my opinion, is if it is for a covered service or not. If it is not a covered service, i.e., routine care in a non-diabetic, I do not believe that repeated notes are as much of an issue. If it is for a covered and billed treatment, I believe there is a definite need for different documentation.


While most repeated visits can be 95% exactly the same, there are small variants from visit to visit. A note of social changes, illnesses, medication changes, or the lack thereof, can be noted. The size and severity of the lesion from visit to visit may change. Some skin irritation or nail subtlety may be present. It doesn’t have to be a huge difference, but just a few words that make that day's visit somewhat different, so someone can determine that day was different from any other day. Patients relate all kinds of things to us during their visits. I suggest jotting down a few words that they relate happened, or that you observe from visit to visit.


Brian Kashan, DPM, Baltimore, MD, 



From: Stephen Musser, DPM


In the subjective part of your note, I would document changes in the patient's PMH and up- coming test/procedures. It's hard to believe there would be no changes after decades of treating the patient. In addition, document (every visit) in the plan that you reviewed the patient's current medications and allergies.


Stephen Musser, DPM, Cleveland, OH,



From: Michael L Brody, DPM


The disclosure of patient information for professional purposes such as board certification is an allowed disclosure under the HIPAA regulations.


1) You are bound by the minimum necessary rule and can only disclose the minimum amount of information necessary to accomplish the task at hand.


2) Patients have a right to an accounting of disclosures, so you will need to log the disclosure and provide the log to the patient upon request.


As long as you are only disclosing the minimum amount of information and are logging each disclosure, you are compliant with the HIPAA regulations. For more information, you can download the HIPAA Omnibus Rule from the Federal Register.


Michael L Brody, DPM, Commack, NY, 



From: Alec Hochstein, DPM


Anti-kickback laws at both the federal and state level make it illegal for a prescriber to benefit financially from referring a patient to a specific pharmacy or other medical service. The federal laws and many states include specific provisions to create a “Safe Harbor” exemption to the anti-kickback laws. Physician Specialty Compounding, LLC (PSC) has worked with a number of law firms to document the steps for creating the “Safe Harbor” required for a prescriber-owned pharmacy.  After the signing of a mutual Non-Disclosure Agreement, PSC is happy to share our lawyers’ legal analysis.  PSC strongly recommends that you consult with your attorney to protect your interests and to verify full compliance with all federal and state laws.


Disclosure: I am a medical consultant for Physicians Specialty Compounding,  LLC.


Alec Hochstein, DPM, Great Neck, NY,



From: Richard Rettig, DPM


The legalities concerning compounding pharmacies and the ways for them to "distribute" money to the prescribing physician are multiple and have been discussed here before. In my opinion, gray area or not, they do not pass the "stink test." Dr. Kass summed it up by saying the "incentive dollars (in any form) are nothing more than a kickback/scam." If that isn't clear enough, and you want to proceed, first read about today's indictment in L.A.    


Richard Rettig, DPM Philadelphia, PA



From: Richard W. Boone, Sr.


This inquiry actually raises two issues: 1. Can the physician own the pharmacy? and 2. Can a physician sell drugs to his or her patients from a pharmacy that he or she owns?


The answers to both questions will depend upon the law of the state in which the physician practices. In my home state, Virginia, the second question is easiest to answer: A physician may not sell drugs to his or her patients unless he or she is also a licensed pharmacist. [Code of Virginia § 54.1-2914.]  I suspect the answer will be the same in the majority of states but, as noted, each state has its own rules and you have to determine what your state's rules permit or prohibit.


The first question can be a little more difficult to answer. I suspect that Virginia would permit a physician to own a minority interest in a pharmacy, provided that the pharmacy doesn't sell drugs to the doctor's own patients. (In other words, there can't be any connection or business relationship between the doctor's practice and the pharmacy.) However, any business connection between the clinical practice and the pharmacy which tends to direct the doctor's patients to the owned pharmacy is probably impermissible. But, once again, it all depends on your state's law.


Richard W. Boone, Sr., Fairfax, VA,



From: Paul Kesselman, DPM


My advice is to use 7-Zip, a free utility which comes with 256 bit encryption. It is usually pre-loaded on new computers (or you can download it for free from a myriad of safe websites). Ask your vendor for a recommendation. Simply encrypt the document and then provide it to the patient with a password.


Send the password under separate cover, or better yet, provide it to the patient verbally prior to sending the email. Once they receive the document, when they go to unzip it, they will be asked for the password. Once entered, the document can be opened and saved by the patient in any fashion they want.


Paul Kesselman, DPM, Woodside, NY, 



From: Raymond F Posa, MBA


This doctor's story is disturbing, and while we don’t want to distrust our employees, in the medical field with the sensitive nature of the data we have, we need to have protocols in place to prevent such occurrences. They should be articulated in your HIPAA security manual.


When an employee is going to leave your practice, the protocol should be to pay them two weeks’ severance and immediately lock down all of their user accounts as soon as they give notice. I have experienced another situation where the employee leaving the practice took lists of all of the practice's patients so as to use them at another practice. That final two weeks tend to be very unproductive weeks on behalf of the outgoing employee, and leaves the practice vulnerable to all sorts of mischief and possible damage.


On a second point, the doctor mentioned that the employee deleted all of the mail from the Gmail. For the record, Gmail and Yahoo and any other free email accounts are NEVER to be used for the communication of ePHI. Only domain email accounts which are encrypted may be used. Also, had this doctor used domain e-mail, even if the employee had deleted the mail and emptied the trash folder, you would still be able to go onto the e-mail server and get your e-mails.


Raymond F. Posa, MBA, Farmingdale, NJ,



From: Pete Harvey, DPM, Jack Kay, PhD


Isn’t your info backed up on a cloud or hard drive? The emails should be there even if they were deleted by Google. If it is not backed up, then start TODAY! A forensic Information technologist might be able to recover the data if your own IT team can't.


Pete Harvey, DPM, Wichita Falls, TX,


I am not an attorney; I do not dispense legal advice. But allow me to offer the following — In Massachusetts, to cite only one example, there is something called the Massachusetts Wage Act, which subjects an employer and its entire board of directors to three times the amount of wages withheld. I doubt very much that the Massachusetts judges who administer this court would care a whit as to the rationale for withholding such wages; as a group, they tend to be employer-hostile. All podiatrists should seek legal counsel before embarking on a risky course of action such as this.


Jack Kay, PhD, Woodmere, NY,




I just took the course provided by the FPMA; however, the deadline for taking it with them was March 1st. The Barry University College of Podiatric Medicine did not offer it this year as a home study.


Don R Blum, DPM, JD, Dallas, TX,



From: Olga Luepschen, DPM


This discussion brings up an interesting point. What percentage of our colleagues carry $250,000/750,000 vs 1 million/3 million coverage? I was under the impression that $250,000/750,000 coverage was adequate.


Olga Luepschen, DPM, Sebring, FL,


Editor's Comment: This will be the topic of next week's PM News Quick Poll question. As previously stated, we believe that $250,000/750,000 coverage is inadequate.