State Member Board Briefs

A PATIENT’S MEDICAL RECORDS: WHAT IS THE PHYSICIAN’S RESPONSIBILITY?

How many times has this happened to you as an Arkansas physician: “I write to complain of Dr. XXXXX. I have requested a copy of my medical records. Dr. XXXXX will not give me a copy until I clear my balance owed to his clinic. Would you help me get my medical records released to me?” signed, Patient John Doe.

One of the more common patient complaints the Arkansas State Medical Board receives is failure of a physician’s office to copy a patient’s medical records within a reasonable period of time, or worse yet, the doctor will not release records if the patient has a delinquent account.

To avoid this complaint, physicians should ensure their staff understands the importance of a patient’s request for a copy of their medical record. If your office charges for copying a medical record, keep in mind, Arkansas code 16-46-106 (a)(2) states: “Cost of each photocopy, excluding x-rays, shall not exceed one dollar ($1.00) per page for the first five (5) pages and twenty-five cents ($.25) for each additional page, except that the minimum charge shall be five dollars ($5.00).” Also, inform the patient up front when sending the release of information form to them that there is a fee for their records to be copied.

Medical record keeping is central to high quality medical care. It is an essential element that the physician creates to document and follow a patient’s diagnosis and treatment. These records, therefore, are the property of the physician who generates them. The patient owns the information contained in these records; and the patient, therefore, has rights to access that information within a reasonable timeframe.

A physician’s ethical duty is to preserve medical records during the time that there is a reasonable likelihood of the records being useful to the patient. At times, a patient’s medical records become an issue and the board is asked to intercede. The issue of medical records usually comes to the attention of the board in the form of a patient’s complaint regarding the copying of the patient’s medical information from a treating physician. Of course, the patient must sign for the release of their records and a reasonable period of time must be allowed for copying of the records. In Arkansas, however, a set number of days permitted for the copying is not prescribed by law.

The most common complaint made to the medical board regarding the release of medical records is usually pertaining to an outstanding balance that the patient still owes and for which the physician requires payment in full before the medical records will be released. This is not grounds upon which a copy of a patient’s medical records should be withheld. However, this is the reason that frequently causes a patient to complain to the Arkansas State Medical Board.

It is unethical for a physician to refuse or delay a valid request for the transfer of a patient’s medical records because of an unpaid bill. The primary concern of the physician and the office staff should be for the medical care and treatment of the patient. If the patient has a delinquent account, then defer pursuit for payment to your collection service or attorney.

A physician’s delay of releasing records in a timely manner can cause liability in that it can lead to potential problems for the patient. For example, the patient care may be delayed resulting in an unfavorable outcome because pertinent medical information necessary for appropriate care was withheld. Therefore, causing possible ultimate harm to the patient.

There is no excuse for not complying with a valid medical records release request! A court in Texas has upheld the award of punitive damages assessed against a physician because he allegedly caused a patient severe emotional distress by refusing to provide copies of her medical records.

It is recognized that medical records are important to the patient not only for medical care, but also for many other reasons such as employment, insurance or litigation.

The Arkansas State Medical Board could consider willful withholding of medical records as cause to invite physicians to the next board meeting to visit with us. It would be better for the patient, a physician’s practice and the following physician to be prompt in responding to valid requests for patient medical records. It is the hope of the medical board that this information will clarify the releasing of a patient’s medical records when requested.

Reprinted from Issue 24 of the Newsletter, published by the Arkansas State Medical Board.

NEWS FROM ENFORCEMENT: DRUGS ON THE INFORMATION HIGHWAY

Notwithstanding the fact that there are legal and beneficial uses of the Internet in providing health care services (telemedicine or the filling of properly issued prescriptions), there has been renewed concern about the legitimacy of prescribing drugs via the Internet. At the same time, many consumers are routing copies of their spam e-mail to the board’s attention to inquire if something in the law has changed.

The brazen offers selling Viagra, Vicodin and other drugs at discounted prices do appear to suggest the drug market is wide open, if you want to purchase on the Internet. What does the law say about this? The short answer: it’s illegal to prescribe without a good faith examination. This requirement (Business and Professions Code section 2242) existed long before the Internet was created and is the cornerstone of why Internet prescribing is illegal when a legitimate physician-patient relationship does not exist. Some physicians have attempted to legitimize their Internet prescribing by engaging in the review of questionnaires, which Internet users will complete, although there is no way to confirm the patient is reporting accurate or truthful information.

In-person examinations not only enhance the opportunity to confirm if a patient needs the identified medication or to rule out other medical conditions, but ensure the patient is advised of alternative treatment options and aware of potential side effects. For some patients, certain drugs are contraindicated and serious injury, including death, can follow.

Senator Jackie Speier authored Business and Professions Code section 2242.1 which became effective in January 2001. It specifically states no person may prescribe, dispense or furnish dangerous drugs or devices via the Internet without a good faith prior examination and medical indication therefore. A violation of this section may result in the issuance of a citation or civil penalty with a $25,000 fine per occurrence. Internet prescribing has flourished because there is such financial gain for the involved participants including the site operator, the physician and the pharmacist (or wholesale drug supplier). Violations occur in the state where the patient is located.

The board has taken action against California physicians and licensees from other states for prescribing over the Internet without a good faith prior exam, and continues to investigate cases as it becomes aware of the practice. California patients deserve good medicine, which begins with good health care providers. The board Enforcement Program is one of many agencies that are asked to actively pursue this illegal practice in its mission to provide public protection. Unaware physicians may be asked to participate in many different business enterprises. We urge physicians to read the law before engaging in any Internet practice.

Please share this information with physicians, patients and colleagues who may have questions about receiving or providing a prescription over the Internet.

Reprinted from the April 2004 issue of the Action Report, published by the Medical Board of California.

CHAPERONES SHOULD BE A BASIC PART OF PATIENT CARE

In late 2003, the New Jersey State Board of Medical Examiners finalized a regulation requiring physicians to offer patients the option of having chaperones present for sensitive examinations, specifically those of the patient’s breast, pelvic, rectal or genital areas. The new regulation also requires physicians to notify patients that if the patient declines a chaperone, the physician can refuse to perform the exam.

New Jersey is one of the first states to take this step in response to an issue well known to all state licensing boards: complaints from patients regarding exams performed without a chaperone present and believed to have been provided in an inappropriate manner, thus constituting a physician/patient boundary violation and unprofessional conduct. These common accusations take physicians across the nation by surprise. Doctors are required to reply to complaints made by new and established patients alike, often for exams the physician feels he or she has performed in the same way without concern over many years of practice.

As in other states, the Colorado Board of Medical Examiners evaluates a significant number of such complaints every year. Our experience suggests that many of these complaints arise due to patient perceptions or misconceptions, often created or supported by lapses in communication on the part of the physician. However, some of the complaints are substantiated and require board action. Consequently, the board takes these complaints very seriously, and we dedicate appropriate resources to evaluating each case. It is clear that the routine use of chaperones significantly reduces the likelihood of this type of complaint to the board. We believe this practice also provides significant protection for patients.

The board understands the issues of limited staffing in physician offices, and how chaperone requirements can further stress a practice. On the other hand, we believe that quality patient care, provided with respect for patients and their comfort and protection, includes assuring that patients desiring the presence of a chaperone during specific exams be accommodated.

The Colorado Board has not chosen to pursue a regulatory approach to this problem. However, we believe the New Jersey Board action provides an opportunity to once again repeat the Board’s strong recommendation that all physicians implement a practice policy of routinely having chaperones present for specific examinations, or at least have a process for assessing and accommodating patient preferences regarding the use chaperones for these exams. We believe that such processes provide protection for both patients and physicians, and should be a basic part of patient care.

AMENDING PATIENT RECORDS IN THE AGE OF HIPAA

Physicians are scrambling to comply with new federal requirements under the Health Insurance Portability and Accountability Act (HIPAA). Some are probably wondering how to respond to a patient who disputes the accuracy of her medical records.

The October 2002 HIPAA Privacy Regulations allow a patient to request an amendment to her medical records. It is important to remember that the individual has the right to request the change (and to appeal a denial of the request), but the provider always retains the right to deny the request if the original record is “accurate and complete” (45 C.F.R. §14.526(a) and (d)). HIPAA generally requires a provider to grant or deny the request within 60 days (45 C.F.R. 164.526(b)(2)).

As with all medical record keeping, accuracy should be a physician’s guide when deciding how to respond to a patient’s request to amend a medical record. In fact, “falsifying or repeatedly making incorrect essential entries or repeatedly failing to make essential entries on patient records” constitutes unprofessional conduct and grounds for physician discipline (see § 12-36-117(1)(cc), C.R.S.).

When a health care provider decides to grant a patient’s request to amend a medical record, she may wonder what to do with the original records. It has long been the position of the Colorado Board of Medical Examiners that original records should be retained even when they are amended. That is, if an error occurred in the original record, the provider should identify but not obliterate the erroneous original entry and add a new, more accurate entry. The provider should also note the date on which the correction was made.

This approach is consistent with the HIPAA regulations, which refer to “appending” a record or “otherwise providing a link to the location of the amendment” (45 C.F.R. § 164.526(c)(1)). For example, in a written patient file, the practitioner may strike through (and not white-out or retype) the original language so that the original language is still legible, and the practitioner would date and initial the amendment. In this way, the amendment revises but retains the original record.

The bottom line is that common sense practices can survive the test of HIPAA, and HIPAA-compliance does not replace the need to follow generally accepted standards of medical practice.

Reprinted from the Volume 12, Number 1, issue of The Examiner, published by the Colorado Board of Medical Examiners.

PRESCRIBING ADDICTIVE OR DEPENDENCE-PRODUCING DRUGS

Physicians pressed for time sometimes prescribe controlled substances for extended periods without adequate documentation. The board fully supports the appropriate, evidence-based relief of pain when prescribers use the patient’s history, physical exam findings and the results of appropriate tests and referrals to guide their therapeutic plan. Many prescribing matters brought before the board for disciplinary action related to controlled substances could have been avoided completely if prescribers’ chart documentation adequately reflected why and how the patient received prolonged treatment with controlled substances.

The board does not formally endorse specific guidelines for pain management. Physicians are expected to use appropriate medical judgment for the issuance of narcotic analgesic agents. The board does not have a formulary of “bad” or “disallowed” drugs, nor does it suggest formulas for dosage, quantity or duration of treatment.

Physicians must create a record that shows proper indication for the use of the drug or therapy; monitoring of the patient’s response to therapy and need for extended treatment; and all rationale for continuing or modifying therapy.

Georgia’s Medical Practice Act and the rules of the board concerning professional practice may be viewed at http://www.medicalboard.state.ga.us/.

NEW JOB DESCRIPTION REQUIRED TO SUPERVISE PHYSICIAN ASSISTANTS

SENATE BILL 815

Again this year, an attempt to change the Patient Freedom of Information Act (Idaho Code 54-4601) was introduced in the legislature. HB 657 would require disclosure of any “corrective action plan” involving the “mishandling or abuse controlled substances.”

The proposed legislation would also require all registered nurses to maintain a profile. The Idaho Board of Medicine, Idaho Board of Nursing, Idaho Association of Commerce and Industry, the Idaho Hospital Association and the Idaho Medical Association all opposed HB 657. These groups met with the bill’s originator to draft some compromise legislation. HB 815 is that compromise legislation.

For this section of law, employer means a person or entity licensed under chapter 18, title 54, Idaho Code, (physicians) or chapter 13, title 39, Idaho Code, (hospitals) who employs a health care provider or providers. Health care provider means any person licensed by a professional licensing board of the state of Idaho whose license permits the health care provider to dispense or administer controlled substances.

HB 815 requires an employer who terminates employment of a health care provider for “controlled substance adulteration or misappropriation” to provide a report of termination to the respective licensing board. It furthers requires any potential employer to request a copy of any “notice of termination” maintained by the licensing board prior to employing a health care provider.

“The professional licensing board shall require as a condition of furnishing the notice of termination, that the prospective employer file a written request for the health care provider's notice of termination, stating under oath that the request for the notice of termination is made for a bona fide hiring purpose, that the request is made pursuant to the provisions of this section, and that the prospective employer will not disclose the information to any other person or entity without the prior written approval of the health care provider or as required by law, court order or rules of civil procedure.”

Reprinted from the spring 2004 issue of The Report, published by the Idaho State Board of Medicine.

BOARD APPROVES RULE CHANGES

At a May 21, 2004 Rule Hearing, the Board approved changes to three sections of the medical board rules. The complete text of the changes can be found on the board’s website.

OFFICE-BASED SURGERY RULES

PROMOTING PATIENT SAFETY IN PENNSYLVANIA

The newly established Patient Safety Authority has begun to implement the Pennsylvania Patient Safety Reporting System, known as PA-PSRS (pronounced “PAY-sirs”). More than 20 health care facilities around the state, including large health systems, community hospitals, ambulatory surgical facilities and rural hospitals, are participating in the initial phase of the PA-PSRS system. These institutions will have the opportunity to provide feedback and make suggestions for improvement prior to a statewide release of this comprehensive patient safety program.

Under Act 13 of 2002, the Medical Care Availability and Reduction of Error (“Mcare”) Act, all Pennsylvania licensed hospitals, birthing centers and ambulatory surgical facilities are required to report what the Act defines as “serious events” and “incidents” to the Patient Safety Authority. In turn, the Authority will analyze the collected data to identify trends or systems failures that can be corrected to prevent future serious events and incidents. The authority is an independent, non-regulatory state agency established by the Mcare Act. In developing PA-PSRS, the authority worked closely with individual and institutional provider groups, other stakeholders and the Pennsylvania Department of Health to implement a user-friendly, confidential and non-redundant system that will also provide valuable feedback to facilities for their internal patient safety and quality improvement activities.

PA-PSRS was developed under contract by ECRI, a Pennsylvania-based nonprofit health services research agency, in partnership with EDS, a leading international, information technology firm, and the Institute for Safe Medication Practices (ISMP), also a Pennsylvania-based nonprofit research organization. You are likely to hear more about PA-PSRS as the program is rolled out among the almost 400 hospitals, birthing centers and ambulatory surgical facilities in Pennsylvania.

Each of those facilities is required to have an internal patient safety plan and a patient safety committee. If you are affiliated with a facility subject to Act 13 reporting requirements, I encourage you to become familiar with their patient safety plans. That way, you can take an active role in promoting patient safety in Pennsylvania. For additional information about PA-PSRS or the Patient Safety Authority, visit the board website at http://www.psa.state.pa.us.

Reprinted from the Winter 2004 Pennsylvania State Board of Medicine Newsletter, published by the Pennsylvania State Board of Medicine.

FROM THE EXECUTIVE DIRECTOR

As the 2003 legislative session approached, the Texas State Board of Medical Examiners (TSBME) found itself in the center of the storm of competing interests surrounding medical malpractice and tort reform. At the same time, a major daily newspaper ran a series of stories depicting the harsh truth that bad doctors were not being adequately disciplined by the board, which was chronically short of resources. Even worse, all state agencies had been warned to expect major budget cuts.

At such a critical time, when the very future and survival of TSBME was at stake, the board members and agency staff rallied with renewed energy, initiative and commitment. Even before the additional resources that were later provided by the legislature, the agency’s performance was already on the road to improvement, as demonstrated by the following:

• Reduced the average length of investigations from 180 days in FY 2001 to 144 days in FY 2003.

• Increased the number of Informal Settlement Conferences from 187 in FY 2001 to 477 in FY 2003.

• Increased the amount of administrative penalties from $175,880 to $393,500 in the same period.

• Increased overall disciplinary actions from 154 to 334.

TSBME emerged from the challenges of previous years with new regulatory strength, thanks to conscientious legislators who recognized the agency's plight and worked closely with the board and agency staff to address the problems and develop solutions. Although several initiatives were considered that could have negatively impacted the agency’s regulatory potency, none passed. The major accomplishment of the session was unanimous passage of Senate Bill 104, which strengthens the agency’s statutes with expanded provisions for temporary suspension and provides new powers for temporary restriction.

Provides new resources through an $80 license surcharge, which provides:

• a 60 percent increase in funding in spite of statewide budget cuts;

• funding for expert physician consultants;

• funding for more competitive salaries to retain staff; and

• 20 additional full-time employee positions.

With the passage of SB 104, the Legislature provided TSBME with authority and resources to strengthen and accelerate the disciplinary process for physicians who fail to meet the required standards of professional competency and behavior. TSBME has been on the fast track to implement the legislative mandates and to employ new statutory tools to enhance public safety:

• We made first use of the new ex-parte suspension statute only weeks after the June 11 effective date of SB 104.

• Rule changes to implement SB 104 were presented to the board in August. Fourteen of the board’s 36 chapters of rules were affected by SB 104, totaling 177 pages of rules.

We have developed new organizational structures, processes and procedures including:

LET US HEAR FROM YOU

Would you like information from your board to be considered for publication in the Journal? If so, e-mail articles and news releases to Edward Pittman at [email protected] or send via fax to (817) 868-4098.