Podiatry Management Online


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Query: Discharging a Non-Compliant Patient

In regard to sending letters for patient termination, what are the legal ramifications? Does this exonerate the physician from downstream liability? I have been told to write discharge letters to many non-compliant patients, but I am not 100% sure this would relieve any form of liability. For example, you send the letter to a patient with a foot ulcer who does not comply with complete NWB, neglects getting the proper studies done, etc. If that patient eventually gets a BKA, would that letter of termination shield the physician from liability?

Jeff Mennuti, DPM, Orange City, FL

Editor's note: PM News does not provide legal advice. The key in sending a discharge letter is to be sure that it is actually received by the patient. This is accomplished by sending it U.S. Certified Mail, Return Receipt requested. In today's litigious society, there is no guaranteed method to shield yourself from liability, but proper documentation at least gives you a fighting chance.

Other messages in this thread:



Query: Legit or Kickback?

A company wants to do neurological testing in my office on patients I would refer. This is what they wrote: Here’s a summary of our program.

  • · We perform all insurance verification and billing.

  •  We are in network with many insurance carriers, including BCBS and Cigna.

  •  You receive $150 per hour while we are testing patients.

  •  You also receive a fair market value lease amount of $75 for a half day and $150 for a full day.

  •  You receive payment on the day of service.

  •  There is no cost to your practice and no monthly minimums.

  •  Reports are read and interpreted by board certified neurologists.

My question is whether this is a kickback. I asked the company and here is their response: "It is not a kickback because we are paying you on a per hour basis, not a per patient basis. It also isn’t based on what our collections are. Regarding the rent, it is based on fair-market-value and is a pre-set amount for a specific amount of time. So it’s either a half day block or a full day block."  I would like advice from others on the forum.

Adnan Shariff, DPM, Okeechobee FL



Query: Relinquishing Hospital Privileges

I have been on leave of absence from one of three hospitals I am on staff at. I am too busy with the other two hospitals, I am willing to relinquish my privileges at that facility. Does it look bad on future endeavors by making this move? Obviously, I would have to list this on applications to other hospitals or surgical centers, but is it a negative mark?


Name Withheld, FL



Query: EMR and Shredding Paper Charts

If a practice is using an EMR, after scanning all previous notes and contents of the paper chart on an active patient, is it reasonable to shred the paper chart?

Sam Pearlstein, DPM, Fayetteville, NY

Editor's comment: PM News does not provide legal advice. Once a medical record is scanned to EHR, it is no longer necessary to maintain a paper record. This, however, assumes that you maintain at least one back-up copy of the record, either web-based or at a safe and secure off-site location. One of the lessons of Katrina and Sandy is that your office is not necessarily safe. In addition to floods, fires can also destroy office records. Additionally, digital data can become corrupted.

In a recent AMA survey, 58% of EMR users said that they plan to shred paper records once scanning is complete. 38% said that they plan to store paper files in on-site records rooms or off-site storage facilities.



Query: Requirement of Signed Orders in Nursing Homes

Is it still a requirement for the attending physician for a nursing home resident to have a signed order for each visit every 61 days as long as it falls within medical necessity for podiatry coverage? Or is this requirement only for new residents? Do residents already seen need a signed order every time seen?

Stanford Rosen, DPM, Tuscaloosa, AL

Editor's comment: PM News does not provide legal advice. With regard to "routine orders", Medicare does not accept such "standing orders" as supporting medical necessity for the individual patient as is required by law. Medicare defines any order(s) that does not specifically address an individual patient's unique medical status, illness, or injury as not reasonable and necessary and services consequent to population-based or condition-based orders are not reimbursable. An order could be verbal, telephone or via fax but the physician still has to sign and date it for that individual resident.

Medicare may reimburse "standing orders" for physician services for an individual patient's treatment. An example would be: "Evaluate this patient's wound on a weekly basis for signs of infection or vascular compromise prior to dressing change or referral for physician evaluation times three." The medical record must demonstrate that the order is medically reasonable and necessary. (Source: CMS)



Query: HIPAA and House Calls

On a recent house call to a senior citizen apartment building, I was asked by the front desk to write down in their incoming non-resident book where I was going. This book is open and available for anyone to see. I stated that this is a HIPAA violation and objected to telling anyone who my patient was. Am I wrong?

Myron Bergman, DPM, Bridgewater, NJ

Editor's Comment: PM News does not provide legal advice: When one signs into an apartment building, there is no requirement to state your occupation or the purpose of the visit. Signing in is simply a security measure taken by the building. Simply signing your name in a log book, by itself, would not constitute a HIPAA violation.



Query: CCTVs in Treatment Rooms

With this discussion of sexual assault in the office going on, my question involves CCTV (closed circuit television). Are there any reasons why we can't have cameras in our treatment rooms? I know there are all kinds of negative ramifications if those videos leave the office; but assuming they are kept confidential like our data medical records, wouldn't this in part solve the issue? Does anyone know if it's legally possible?

Jim Shipley, DPM, Mount Airy, NC

Editor's note: PM News does not provide legal advice. The question of legal requirements is dependent on state law. In most cases, CCTV is permitted. When CCTV is used, a notice to that effect should be prominently displayed in your reception area as well as in each treatment room where the cameras are installed. Since it is not necessary for podiatric patients to undress, most privacy issues are not at issue.



Query: ADA Requirement to Supply Interpreter

How do you handle the request for an interpreter by a deaf patient (Humana HMO) when the cost to me is more than I would recoup for the visit? The cost for an interpreter is $65/hr with a 2-hour minimum plus travel time. My office was contacted by a service which provides the interpreter, which I believe the patient requested. I know the law, but don't know how to handle this situation.

Barrett E Sachs, DPM, Plantation, FL


Editor's Comment: PM News does not provide legal advice. Under the ADA, you are required to supply an intepreter regardless of the cost to you. This applies even if the patient fails to show up. The best solution previously offered in PM News is to arrange to see the patient at your local hospital. Hospitals routinely have interpreters available to you at no charge.



Query: Stark Violation?

Is it legal for a nursing home or assisted living facility to demand that you use a particular home health agency or is it up to the doctor's discretion? Sometimes, I find myself in a situation where a facility demands that I only use a certain company (usually a small mom and pop home health company), only later to find out that said company is owned by the same people who own the facility.

Joseph G. Smith, DPM, Tidewater, VA



Query: Cancelled ADA Visit

My partner has a patient who scheduled a new patient appointment and informed us she was deaf. She DEMANDED an interpreter, and stated she would not write on paper (this is how we normally accommodate deaf patients). I know that the law states providers must make "reasonable attempts" to accommodate Americans with disabilities. Instead of arguing with the patient, my partner, at our expense, got a sign language interpreter for $100 the visit. Of course, we didn't get $100 for her Medicare 99202. Now, she had a follow-up visit scheduled and she cancelled that appointment. Since it was within 48 hours of the scheduled interpreter, the interpreter is still going to charge us $100! Can we bill the patient since she cancelled? How do others handle situations like this?

Alex Dellinger, DPM, Little Rock, AR



Query: Support for Podiatrists Performing H&Ps

Our local hospital in Central Florida is requesting written information regarding podiatrists being allowed to perform H&Ps prior to hospital surgery. We were originally allowed to perform the H&Ps and the surgery Dept. is trying to take away this privilege. What information is available to support us?

Olga Luepschen, DPM, Sebring, FL



Query: Co-pays and Balance Obligations


Many doctors are now faced with patients who have co-pays that are greater than the insurance allowable. If a patient’s co-pay is greater than the allowable, what is the financial obligation of the physician regarding the balance?


Ira  Baum, DPM, Miami, FL

Editor's comment: PM News does not provide legal advice. Co-pays and allowable charges are separate and distinct entities. In general, providers are legally required to collect co-pays regardless of what the balance is. 



Query: Del Priore Insurance Services (Malpractice)

I was recently contacted by Del Priore Insurance Services as they are providing malpractice insurance to podiatrists. Has anyone had any experience with this company?


Barry Finkelstein, DPM, Bronx, NY



Query: Opting Out Of Medicare After A Sabbatical

I am re-rentering the practice of podiatric medicine after a sabbatical. I do not plan to apply for a Medicare provider number and I will expect any Medicare patients who wish to be treated by me to pay me for my services at the time they are performed. As such, will it be necessary for me to “opt-out” of Medicare and, if so, how may I accomplish that task? Alternatively, may I simply decide not to opt-in?

Name Withheld (FL)

Editor's comment: PM News does not provide legal advice. If one does not currently have an NPI number and is not registered as a Medicare provider, it is not necessary to opt out of Medicare. It is recommended, however, that all patients sign a notice indicating that they are aware that the services provided are not covered by Medicare and that no claims can be submitted to Medicare for services rendered.  



Query: How To Address Patients

My staff routinely addresses patients by their first name. On the other hand, I address my substantial elders by Mr. or Mrs. so and so. I was wondering how it is being handled in other offices. I also was wondering if there are HIPAA implications in using patients' last names out loud in the waiting area.


Louis MacDonald, DPM, Moriches, NY

Editor's comment: PM News does not provide legal advice. How you or your staff address patients should probably be determined on a case-by-case basis. It seems logical to ask patients how they would like to be addressed, and then indicate that on their chart.

In terms of HIPAA, you can certainly address a patient by his or her name. You can say, "Mrs. Jones, please follow me." What you can't say is, "Mrs. Jones please follow me to the x-ray room," as this would be revealing PHI.



Query: RAC Repayment Demand

I just received a demand for payment from the RAC program for $32.46. I treated a patient with a non-displaced fibula fracture with a BK CAM boot and crutches. I coded 99212-25 and 27786,73610 on 1-29-09 The audit claims the evaluation and management is part of the fracture care.

Should I appeal for $32.46? Back then (3 years ago), my records were hand-written and not as comprehensive as they are now with EHR. Am I exposing myself to further inquiry by sending my admitedly inadequate records?

Name Withheld

Editor's comment: PM News does not provide legal advice. While no one can guarantee what will happen, in general, paying back a small sum based on a single, isolated case does not expose one to further inquiry. Sending in "admitedly inadequate records", however, can expose one to further audits.



RE: Obligation to Accommodate Hearing-Impaired Patient

A 40 year old deaf and mute patient was referred for onychomycoses and potential oral antifungals along with lab test monitoring. He is emphatically demanding a certified American sign language interpreter. We are having trouble locating such an individual, but were advised to expect a rate of $170/per visit.

Obviously,with numerous visits, the costs will run into the hundreds of dollars, with our reimbursements being a fraction of that. Do we have any rights or help regarding this situation ? The patient is dual eligible for Medicare/Medicaid.

Name Withheld

Editor's comment: PM News does not provide legal advice. The Americans with Disabilities Act requires that the practice provide these services at no cost to the patient. This is a federal, not a state law, and insurance does not cover interpreters. The law applies only when a hearing-impaired patient requests such services. Failure to comply with this law can result in hefty fines.

The latest guidance from Health and Human Services says that while the requirements apply to a black-and-white issue, the reasonable steps a physician, practice, or institution may be required to take are somewhat gray. "Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets," HHS stated. "Reasonable steps may cease to be reasonable where the costs imposed substantially exceed the benefits."

Barry Block, DPM, JD, Forest Hills, NY,



Query: Pathology Report for All Surgical Cases?

I was in surgery last week, and the scrub tech told me that I now need to send the bone for pathology as that is now hospital policy. The hospital pathologist states that all surgical specimens need to be sent. My concern is the cost; the patient/insurance will get a bill for this service.

Is this the norm and standard of practice? With the ever-increasing assessment of doctors for over-utilization, is this really required? What is the medical-legal aspect of this? Do we need normal pathology to be sent? I understand ossicles, infected bone, synovitis, etc., but what about normal pathology, e.g., the medial eminence of the head of the phalanx?

Darryl J Martins, DPM, Jackson, MI



Query: Podiatrist's Responsibility When Taking Patients' Blood Pressures

What would happen if a non-primary care physician discovered that a patient's blood pressure was mildly "temporarily" elevated, and the patient went on to have a cardiovascular incident? Would that podiatrist be held liable for not intervening? 

Elliot Udell, DPM, Hicksville, NY



Query: "Dr." Cary Silberman

Has anyone seen an ad for Shiny Toes, a clinic in Manhattan with offices in San Jose, Beverly Hills, and San Francisco? They claim a 96% success rate getting rid of fungal toenails utilizing a cold laser. Cary Silberman is apparently a attorney (resigned from the bar with charges pending) who, in addition to treating fungus nails, has a headache and hair restoration clinic in California utilizing cold lasers. When you watch the video, it is clearly designed to make you think it is a medical clinic. For example, they refer to clients as "patients."

Question: is this legitimate, and if not, to whom should it be reported?

Steven Abramow, DPM, NY, NY



RE: Focused Review of Palliative Care in a Hospital

I am on staff at a hospital. I am now subject to a focused review  regarding my non-operating room care of toenail and callus debridements. This requires the direct presence of another podiatrist observing me. Has any podiatrist had to go through this process of direct observation? If so, what recommendations do you have?

Name Withheld (NY)



Query: Request for Medical Records by Next of Kin

I have a patient, who I treated for a toe injury, but who I had not seen for several months. Her husband contacted me this week and wanted her records. It seems she suddenly passed away a couple of weeks ago. He did not state why he wanted them. What is the protocol for this? Does HIPAA come into effect? How do I proceed?

Tony Esposito, Brooklyn, NY,

Editor's note: PM News does not provide legal advice. A patient or the executor of the patient's estate has an absolute right to medical records. You need to verify that the husband is, in fact, the executor of the estate. The purpose of the request is irelevant. Under the HIPAA HITECH rules, if the records were stored on an EMR, these records must be provided via electronic media, such as a CD or a flash drive.



Query: Consent for Lasering Fungal Nails

I was wondering if written consent is necessary for patients who have fungal nails and would like to get them lasered.

Sean Ravaei, DPM, Los Angeles, CA

Editor's response: PM News does not supply legal advice. It's always a good idea to incorporate a consent for treatment as part of your initial intake forms. In general, if the laser you are using is FDA-cleared for fungal nails, no additional consent should be necessary. If the laser is not FDA-cleared for fungal nails, then patients should sign a consent that they have been informed that the laser being used is an off-label manner.



Query: Concierge Fee

I received a letter in the mail today inviting me (as a patient, not doctor) into a medical group...the letter goes on to state membership costs $199. They state they participate with most HMO's this not a clear violation of EVERY plan? membership fees? The $199 fee is "to support our practice."


They are informing you that you can communicate with your doctor through email and get longer more personalized visits. It is apparent that doctors are finding the need to be creative as fees drop. However, this practice seems illegal to me. Something to ponder is if premiums continually rise and physician fees continually lower - where does the money go? When one realizes it lines the pockets of CEO's, the question begs, how much longer will doctors not realize their value?


Jeffrey Kass, DPM, Forest Hills, NY

Editor's comment: PM News does not provide legal advice. Charging a $199 fee for personalized services may not necessarily be illegal if you do not accept insurance, but it certainly raises ethical issues. As physicians, we are obligated to provide the highest level of care to our patients, regardless of what type of insurance (if any) they have.

Legally, charging an extra fee to patients who have Medicare, Medicaid, and many other types of insurance is problematic at best. Before instituting a concierge program, a healthcare attorney should be consulted.



Query: State Regulation for Off-Label Use of Products

I received a letter from my NH State Board of Podiatry telling me that "a podiatrist may only promote the use of a laser to treat toenail fungus that has been specifically cleared by the FDA for such use."  They then go on to state that the PinPointe FootLaser is the only such laser and that no other laser may lawfully be promoted for this specific claim.

My question is simply this: If you are promoting laser treatment of toenail fungus, be it cold laser, hot laser, or Vbeam laser, etc., how can a state come after you for using something off-label as long as you do not say it is FDA-approved for such treatment? As long as you are not misrepresenting what you are doing, where is the legal issue?


Peter J. Bregman, DPM, Tewksbury, MA



Query: Bad Review by Patient on the Internet

Recently, I discovered that a patient of mine has posted a very negative review about me on the Internet. What can I do to have this untrue and damaging posting removed?

Name Withheld


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