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?
Other messages in this thread:
Query: Hospital Discrimination
My hospital is allowing orthopedics to use antibiotic bone beads and not allowing podiatry to do so. Any options?
Scott Henry, DPM, Gettysburg, PA
Query: COVID-19 Restrictons in New York
For New York State, are there any COVID-19 restrictions for the office besides masks, cleaning, and distancing?
Sam Bell, DPM, Schenectady, NY
Editor's Comment: PM News does not provide legal advice. In general, all states follow CDC Guidelines; however... each state, county, and municipality has jurisdiction to implement rules and regulations, which often vary depending on the current infection rate in a particular area. Since this is a moving target, it's best to stay informed of any changes in your town or city. If you have any doubts, it is recommended that you err on the side of extra caution.
Query: Recordkeeping Requirements When Retiring
As I prepare for retirement, what are my obligations regarding retaining patients' paper charts? Notice to patients? Notice in local paper vs. individual letters? Storage options? Are there penalties for non-compliance?
John Moglia, DPM, Berkeley Heights, NJ
Editor's Comment: PM News does not provide legal advice. Most practice management experts recommend that you keep records for seven years past the last patient visit. The one exception is for children. In New Jersey, the statute of limitations for minor children does not begin running until the child’s 18th birthday. We know of no rules requiring a specific way to notify patients. The penalty for not storing records is that you run the risk of not being able to adequately defend yourself against a malpractice suit or an insurance audit.
Query: Paying for an Interpreter for a Hearing-Impaired Patient
A deaf patient called and requested an appointment. We made it, and then the patient requested a sign language interpreter be present. The interpreter charges $160 a visit. I assume I have to supply an interpreter. Is it okay for it to be a virtual video interpreter instead of an in-person one? Do Medicare and Medicaid pay for this service? If the patient misses the appointment, who is responsible for paying the interpreter?
Editor's comment: PM News does not provide legal advice. Under the American with Disabilities Act (ADA), a provider is responsible for the costs of a requested interpreter. This cost is not covered by Medicare or Medicaid and must be paid even if the patient is a no-show. You can use a virtual video interpreter as long as the patient consents to it.
Query: Subpoena to Produce Documents
When served with a subpoena to produce documents for a patient suing a thirdparty (like an insurance company or an employer) can you charge for the cost of production of these documents? If so, then how much?
Mark Davids, DPM, Orange City, FL
Query: When an Insurance Company Wrongly Sends a Check to a Patient
We evaluated and treated a patient for an auto claim with State Farm. The patient is on disability. State Farm issued payment for our services directly to the patient. He has refused to respond to messages, statements, etc. The insurance agent claims to have no recourse in getting us paid for this service. Can we pursue payment directly from the agent? What recourse do we have?
Editor's comment: PM News does not provide legal advice. Since the contract for services was between you and the insurance company, your first course of action is to commence legal action against the insurance company. If the amount is relatively small, your best bet may be small claims court. Filing fees are usually nominal. You should add the patient as a third-party defendant. When the patient receives the summons, you will likely be paid as courts generally do not look favorably on such unjust enrichment.
Query: Billing Policy for New Hires
When hiring an associate podiatrist in our practice, we have not allowed the new provider to see patients for whom they were not yet on the particular insurance panel (both primary and secondary insurance). We do pay podiatrists at their salary rate during this credentialing period which can range from 4-6 months. The rationale for this policy is that the provider would not be eligible for payment by the carrier and to bill the patient for an out-of-network service would be misleading to our patients.
I continue to hear from our new associates that their peers are hired and are billing immediately during the credentialing process under the name of one of their senior practitioners. I am uncertain whether the senior practitioner is signing or co-signing the chart at these practices as sending the claim in under the senior practitioners name would be fraudulent. Is anyone aware of a standard or acceptable practice relative to allowing a new hire to see patients in a practice prior to being credentialed by an insurance carrier?
Query: When Office Staff Refuse to Get Immunized
How are other colleagues addressing this please? I understand that this is a voluntary decision on everyone's part and no one is being forced to be immunized, but if a staff member refuses to get the COVID-19 immunization(s) and is now a potential liability in the office as it pertains to patients getting exposed from that employee, does that expose us in any way to potential litigation?
Editor's Comment: PM News does not provide legal advice. As a matter of liability, it would be nearly impossible for patients to prove conclusively that they got COVID-19 from your office as opposed to elsewhere. If you are concerned about an unvaccinated employee, one solution is to re-assign that employee to non-patient related duties such as working in the back office. The bottom line is to assiduously follow CDC guidelines on the use of PPE, social distancing, etc.
Query: Are Gloves Necessary to Administer COVID-19 Vaccine?
I have noticed some people receiving the COVID-19 vaccine by people who are not gloved. All podiatrists giving injections for whatever have always worn gloves. Glove wearing for all procedures including routine foot care became the norm sometimes in the 1990s. What are your thoughts?
Steven Finer, DPM, Philadelphia, PA
Editor's comment: PM News does not provide legal advice. According to CDC guidelines, "gloves are not recommended for most vaccination administrations and are optional for the COVID-19 vaccine unless the person administering the vaccine is likely to come into contact with potentially infectious body fluids or has open lesions on their hands.
Query: Obligation to See a Patient One Week Post-COVID-19
An established patient calls for an appointment with an infected ingrown toenail. She tested positive for COVID-19 a week prior, but has no acute COVID-19 symptoms. Must I see this patient? After her treatment, must I quarantine myself and/or get tested? How about my staff?
John Moglia, DPM, Berkeley Heights, NJ
Query: FMLA Requests
My office has been bombarded with Family and Medical Leave Act (FMLA) requests over the past couple of months. This is new to me. I think I have seen 1 or 2 of these requests TOTAL in 15 years, now I am getting about 1 per day! I recently found out that (at least in my area) employers are requiring completed FMLA forms for any employee who will be out of work for more than 3 days in a row. It doesn’t matter if the employee has accrued time off; they still have to have the forms filled out.
I am not sure if the uptick is due to the Covid crisis or if anything else caused this change, but it is not something my office was prepared for. Filling out FMLA forms takes up more time than records requests and we all know how much of a pain they can be. I don’t believe FMLA was ever designed to be used in this way. Are any of you experiencing this problem? If so, how are you handling it?
Dave Williams, DPM, El Paso, TX
Query: Audits and Administrative Defense Coverage
As you may have heard, many of our colleagues have been undergoing both pre-payment and post-payment audits. For those of you who have had to deal with these audits, what has been your experience with your malpractice carrier with the use of your administrative defense coverage (ADC)? For those of you who had to pay back any money, were you aware that your ADC coverage was only for your defense and not payment of adverse findings? Were you then surcharged by your malpractice carrier?
Alan Bass, DPM, CPC, Manalapan, NJ
Query: How Much to Charge Ciox for Chart Requests
What is a fair fee to charge Ciox for chart requests considering staff time diverted from regular duties. Paper chart vs. EHR? Copying involves more than simply photocopying in my case. I still use paper, so staff must pull chart, disassemble demographics sheet stapled to folder, copy all pertinent sheets, then reassemble. I review each chart to be sure all are signed and dated as required. I charge $10 chart and have received my fee after refusing to allow their rep to come to my office to scan due to COVID-19 and HIPAA concerns. I have read previous responses of up to $25 chart vs. a $2 per page fee.
John Moglia, DPM, Berkeley Hts, NJ
Query: Can Podiatrists Do COVID-19 Testing in Their Offices?
From: Elliot Udell, DPM
I just got a call from a company trying to sell me COVID-19 rapid response tests. This involves taking a drop of the patient’s blood and determining if there are antibodies. The salesman assured me that I am allowed to do this test and can be reimbursed for doing it. He said there was a waiver that would allow our office to do this test. Before I bought the tests, I told him I would run it past my colleagues to determine if indeed podiatrists are allowed to do this test. Are we?
Elliot Udell, DPM, Hicksville, NY
Query: Off-Label Prescriptions for Non-FDA-Approved Drugs
A patient of mine has erythromelalgia and came in with a paper showing anecdotal evidence that a new med used to treat migraines helps. I was willing to give her an off-label prescription but to my chagrin found that it is only available in Europe and Canada and is not FDA-Approved. Here is the legal question: Could I give her a prescription and have her fill it in Canada? Is this opening up a can of worms since it is not approved yet in the USA?
Elliot Udell, DPM, Hicksville, NY
Editor’s Comment: PM News does not provide legal advice. It is not permissible to prescribe non-FDA-approved drugs except under certain exceptions which do not apply to podiatric use. If you prescribe any FDA-approved medicine off-label, you must inform the patient. It’s a good idea to have patients receiving off-label medicines acknowledge in writing that they are aware that the drug has not been approved for the treatment you are prescribing it for.
Query: Which States Allow DPMs to Test for COVID-19
Which states have emergency legislation allowing DPMs to provide COVID-19 testing? If your state allows this, please provide a link. Here is an example from Pennsylvania.
Daniel Chaskin, DPM, Ridgewood, NY
Query: Rebates from Suppliers?
I am looking for advice/information from other podiatry offices regarding purchasing a product from a supplier who then, at month’s end, issues a rebate to me. It is not supposed to be a rebate on each product purchased, but a rebate based on volume purchased from them for the past month. This happens to be for a wound care product that is reimbursed by insurance (including Medicare). My question is: “Is this allowed and if so, how do you do the accounting?”
Gerald W. Torgesen, DPM, Henderson, NV
Query: Protocol After Treating a COVID-19 Positive Patient
I performed an elective forefoot procedure on a patient last week. Two days later, both she and her husband tested positive for COVID-19. My question is how do I handle the immediate post-op phase? My typical protocol is to see the patient each week for 3 weeks and then determine a proper course depending on various factors. I am at low risk for complications, but I don't want to expose my staff and other doctors in my practice. Should I do dressing changes in the patient’s home? Should I have the patient come before or after hours? Yes, I need post-op radiographs but in reality they can wait. Any advice is much appreciated.
Query: Consequences of Not Complying with Ciox Records Request?
Regarding the Ciox medical records request matter, if we do not comply with the request, do they have the right to take money back at any point?
Office of Alchermes, Kotkin, Ostroff, DPM, PC
Query: Medical Exemptions to Wearing Face Masks?
I have yet to have any complaint to masks in the office for patients, but I am sure my day is coming. The one that concerns me is the medical exemption. Are we legally free to ask what is their medical problem? That would probably be asked at the entry window. We are, after all, physicians? I am also assuming anyone with a serious medical problem would also be on telltale medications. Has anyone had this happen yet?
David Gurvis, DPM, Avon, IN
QUERIES (MEDICAL-LEGAL) - PART 2
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."
QUERIES (MEDICAL-LEGAL) - PART 1
Query: UnitedHealthcare Request for 100 Charts
Recently, UnitedHealthcare contacted my office to request review of over 100 charts. Even though they will send someone to my office to do the review, it will be time-consuming for my staff to have to pull all the charts. Two questions: 1) can I refuse this review request and 2) can I charge for the time it will take for my staff to pull all the charts?
Name Withheld (FL)
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