September « 2008 « PVWLaw Health Care Legal Resource

Medical Records Access Guide Nebraska

29 09 2008

Nebraska

Parties to litigation often request a patient’s medical records for use as proof or lack thereof of a causal connection between an event and the purported injuries resulting from it. Requests for medical records for use in judicial or administrative proceedings generally take the form of an authorization from the patient consenting to release of the medical record, an order from the presiding court or administrative agency, or a subpoena from the opposing party in a civil proceeding. Patients may also seek access to their medical records for other purposes. This Medical Records Guide analyzes what is required of a health care provider when confronted with a request for medical records. Included in this guide are the requirements of a health care provider under the Health Insurance Portability and Accountability Act (HIPAA) and state law to the extent state law is not preempted by HIPAA. Please note that there are special rules and regulations regarding records containing information related to mental health, psychotherapy notes, substance abuse treatment, and communicable and sexually transmitted diseases. As a result, specific sections have been included in this guide for medical records containing those types of information.

A health care provider must grant a patient access to his or her medical records for review during regular business hours within 10 days of a request. If the patient’s medical records no longer exist, cannot be found, or if another health care provider or third party has the patient’s medical records, then the health care provider must inform the patient of such within 10 days of the initial request. If the medical record is maintained by another health care provider or an off-site health information management firm, the patient should be informed of the third party’s name and address. If, due to unusual circumstances, 10 days is insufficient to gather the patient’s medical records for review, then the health care provider has a total of 21 days to provide the patient with access to the patient’s medical records. Despite the additional 11 day allowance, the health care provider must inform the patient in writing of the unusual circumstance that has caused the delay.

Although a patient has a statutory right to a copy of his or her medical records, generally a patient does not have a right to his or her original medical records. If the patient requests his or her medical records in hard copy form, the health care provider must provide a photocopied version of the patient’s medical records within 30 days from the receipt of the request for the records.

All requests by the patient for access to, or copies of, the patient’s medical records must be in writing. The request and any authorization for release are valid for 180 days after the date of execution by the patient.

Under HIPAA, a patient’s written authorization to disclose that patient’s protected health information to a third party must, by its terms, expire either upon a) the occurrence of a specified event or b) a date certain. HIPAA puts no limit on how long these time periods can be. Thus, a provider can select as long a time period as desired and still comply with HIPAA. Nebraska law, however, sets a limit on the time period an authorization can be effective with respect to the release of a patient’s medical records. Under Nebraska law, the patient’s authorization to release medical records must expire no more than 180 days from the date of signature. This Nebraska law is not preempted by HIPAA.

As a result of these two standards, many providers in Nebraska use authorization forms limiting all disclosures to 180 days from execution. The Nebraska statute referenced above, however, only applies to disclosures of a patient’s medical records. Thus, a single authorization form can be drafted in such a way as to provide that it will expire in 180 days only with respect to the disclosure of medical records while still having a longer “shelf life” for purposes of disclosures other than releases of medical records (i.e., verbal discussions with the patient’s family members).

A sample HIPAA-compliant authorization form is available at the end of these materials, marked as Appendix A.

Upon receipt of a subpoena, discovery request or other lawful process requesting a patient’s medical records, the health care provider should immediately send a letter to the patient informing the patient as to the existence of the subpoena, and giving the patient an opportunity to object to the release of his or her medical records. See Appendix B for an example of such a letter to the patient. Prior to providing any medical records, the health care provider must ensure that it has received, along with the subpoena, “satisfactory assurance” that the patient whose records are being requested has received notice of the subpoena or request and has not objected to the request. A health care provider should be satisfied that reasonable efforts have been made by the requesting party to ensure that the patient has been given notice of the request or that reasonable efforts have been made to secure a qualified protective order; one of the following three types of documentation will suffice for a showing of reasonable efforts:

(i) An order from a court or administrative agency;

(ii) A written, HIPAA compliant, authorization from the patient allowing disclosure of the medical record;

(iii) A written statement from the requesting party and accompanying documentation demonstrating that:

(a) The requesting party has made a good faith effort to provide written notice of the request to the patient, the notice had sufficient information to permit the patient to raise any objection to the court, the time for the patient to raise objections has lapsed and either no objections were filed or all objections filed have been resolved in favor of the requesting party;

(b) All parties in the litigation have agreed to a qualified protective order that will require the parties to only use the medical records for the purpose of the litigation, followed by destruction of the copies, and have presented the order to the court presiding over the dispute; or

(c) The requesting party has requested a qualified protective order from the presiding court that will require the parties to only use the medical records for the purpose of the litigation, followed by destruction of the copies.

If the subpoena satisfies one of the above requirements, or the party requesting the medical records by subpoena subsequently satisfies one of the above requirements, the health care provider must provide the medical records, but only to the extent specifically identified in the subpoena.

If, however, the subpoena is not accompanied by any of the supporting documentation, the health care provider should not disclose the medical records but rather should immediately send a letter to the requesting third party informing them of the health care provider’s policy regarding the release of medical records. See Appendix C for an example of a letter to the third party who is requesting the medical records.

NOTE: All court orders, subpoenas, and warrants should be issued from a court of competent jurisdiction. This means the court has jurisdiction over the health care provider and/or the health care provider’s medical practice. For example, a Texas court does not have jurisdiction over a Nebraska medical practice. A Texas court, therefore, cannot order or subpoena documents from a Nebraska medical practice and the proper method to address such an order or subpoena can get complicated. In the event a health care provider receives a subpoena or court order from a jurisdiction in which the health care provider does not practice medicine, then the health care provider should immediately contact legal counsel.

Compensation Court. There will often be a dispute over what portion of the employee’s medical record is “relevant” to the workers’ compensation proceeding. In such a situation, the health care provider may want to use the same approach as discussed above for handling civil subpoenas.

(i) Mental Health. “Mental health records” include any records of mental health treatment or time spent in a mental health facility or program. Generally, “mental health records” may be released upon a court order or to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Mental health records may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative. However, in either case, if the treating psychiatrist, psychologist, or mental health practitioner determines that release of the mental health records would not be in the best interests of the patient or that disclosure is reasonably likely to endanger the life or physical safety of the patient or another person, then the mental health records can be withheld.

(ii) Psychotherapy Notes. HIPAA provides increased standards for release of “psychotherapy notes” on a patient. “Psychotherapy notes” are defined as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session and that are separated from the rest of the individual’s medical record. A health care provider must obtain an authorization specific to psychotherapy notes for any use or disclosure of psychotherapy notes, except: (i) use by the originator of the psychotherapy notes for treatment; (ii) use or disclosure by the health care provider for its own training programs; (iii) use or disclosure by the health care provider to defend itself in a legal action or other proceeding brought by the individual; (iv) a disclosure require by law; or (v) to prevent a threat to a person or the public.

(iii) Substance Abuse. Substance abuse treatment records can be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Substance abuse treatment records can also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative. However, in either case, disclosure is subject to the health care provider’s determination that disclosure is not likely to endanger the life or physical safety of the patient or another person. Absent a HIPAA-compliant authorization for release, substance abuse treatment records may only be released to a third party pursuant to a court order.

(iv) Federally Funded Substance Abuse Programs. Substance abuse records of persons treated in federally funded programs may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Substance abuse treatment records of persons treated in federally funded programs may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative, if the authorization contains the following special clause pertaining to redisclosure:

This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.

Absent such an authorization, substance abuse records of persons treated in federally funded programs may only be disclosed pursuant to court order. Wrongful disclosure of information of persons treated in federally funded substance abuse programs is a criminal offense.

(v) Communicable Diseases and Sexually Transmitted Diseases. The reports of communicable diseases, including but not limited to sexually transmitted diseases and HIV/AIDS, that are required by law to be made to the Nebraska Department of Health and Human Services or other governmental agencies, are confidential, not subject to subpoena, and not admissible in any court action. Such information, however, may be disclosed to other governmental agencies, pursuant to applicable law, for the protection of public health if all personal information that could be used to determine the patient’s identity has been removed.

In addition, medical records containing information related to communicable and sexually transmitted diseases can be disclosed to the patient or the patient’s authorized representative, or to a third party, pursuant to a written request by the patient or the patient’s authorized representative, subject to the health care provider’s determination that disclosure is not likely to endanger the life or physical safety of the patient or another person. Patient information and test results concerning communicable and sexually transmitted diseases are confidential and are not subject to subpoena, search warrant, or discovery process.

A health care provider cannot charge a patient for access to the patient’s medical records. However, the provider may charge a limited amount to the patient or the patient’s authorized representative for a copy of a medical record. The health care provider may charge a patient or his or her authorized personal representative a “reasonable cost‑based fee” for copying. A reasonable cost-based fee includes the cost of supplies and labor required to produce the copy. Postage may also be charged if the copy is to be sent to the patient or a personal representative via a mail delivery service. A provider may not charge a “handling” fee or charge for the costs of retrieving the record. In addition, the charges cannot exceed:

(a) 50 cents per page for copies of regular medical records that can be copied on a standard photocopy machine;

(b) Reasonable copy charges for medical records that cannot routinely be copied on a standard photocopy machine; and

(c) The cost of labor and materials involved in furnishing copies of X-rays and similar special medical records. If the provider is unable to reproduce X-rays or other requested records, the person making the request may arrange, at his or her expense, for the reproduction of such records.

If the health care provider and patient agree that the health care provider will provide the patient with a summary or explanation of the patient’s medical record, then the health care provider may charge preparatory fees for the summary, so long as the parties agree to the preparatory fees up front.

An exception to the permissibility of allowable charges for copies of medical records is that a health care provider may not charge a patient for copies of the patient’s medical records for use in supporting an application for disability benefits or assistance, an appeal relating to the denial of such benefits or assistance relating to the following federal and state programs: Nebraska Aid to Dependent Children; Nebraska Medicaid Program; Federal Old-Age, Survivors, and Disability Insurance Benefits; Supplemental Security Income; and Medicare.

A patient requesting medical records for one of the above purposes exempt from allowable charges must provide the health care provider with a statement or document from the respective state or federal agency confirming the filing of the application or appeal. A health care provider is only required to provide a copy free of charge for the above purposes if the patient is the party requesting the record. If the state or federal agency overseeing the application or appeal makes the request for the patient’s medical records, then the health care provider may charge the state or federal agency in the manner prescribed in subsection (iv) below, unless there is a specific state or federal law allowing such agency to obtain medical records free of charge.

If a request for a patient’s medical record is from the patient’s employer, workers’ compensation carrier or Nebraska Workers’ Compensation Court, the health care provider can charge such parties for copies based on the fee schedule published by the Nebraska Workers’ Compensation Court. The current Nebraska Workers’ Compensation Court fee schedule provides for the same rates as set forth above under the heading “Patient Request – General.”

(iv) Allowable Charges for Copies – Other Third Party Requests. When a request for a patient’s medical records is from a third party not otherwise described above, the health care provider may charge a reasonable fee for providing copies. However, the “reasonable cost-based fee” described in subsection (i) above is not required when the party requesting the record is someone other than the individual or his or her personal representative. As a result, a provider may charge a party other than the patient or his or her personal representative a handling fee up to $20 in addition to the fee schedule described in subsection (i) above. Case law provides that the lower “reasonable cost-based fee” is not available for the patient’s attorney. Despite having authority to act for the patient under agency principles, the attorney can be charged the handling fee applicable to third party requests. However, if a patient requests the medical record for his or her attorney, the permissible fees are those outlined in subsection (i) above.

NOTE: Although this Section IX has focused on the allowable fees for the production of documents, to the extent a health care provider is asked to provide expert testimony, deposition, or a narrative report on a specific subject, the health care provider may set his/her/its fees for services in advance pursuant to a contract or fee schedule.

Appendix A – Authorization Form

Authorization to use and/or disclose health information

Authorization. The undersigned hereby authorizes and its employees to use and/or disclose to for the following purpose(s)

(may state “per my request”) following health information (may state “entire medical record”)

the following health information (may state “entire medical record”):

including, if applicable, the following health information related to testing, diagnosis, and/or treatment for (please initial applicable line): _________ HIV (AIDS virus), _________ sexually transmitted diseases, _________ mental health, or __________ drug and/or alcohol abuse.

Conditions. We may not condition your right to receive health care services from us upon your signing this authorization. However, if the treatment to be provided is for research purposes, your failure to sign this authorization will prevent us from providing such treatment.

Further Uses and Disclosures. When we use or disclose your health information to other parties as you have instructed in this authorization, we will not have the ability to monitor whether your health information may be further used or disclosed by such parties. In such a situation, your disclosed health information may no longer be protected by federal and state privacy laws.

Expiration. This authorization shall expire with respect to your medical records upon the earliest of (expiration date or event) or one hundred eighty (180) days from the date of this authorization. After the expiration date, we will need to obtain a new authorization from you to disclose your medical records. With respect to information other than your medical records, this authorization shall expire upon the earliest of (expiration date or event).

Revocation. You have the right to revoke this authorization at any time in accordance with our Notice of Privacy Practices. When we receive your revocation, we will immediately stop using or disclosing the health information you authorized us to use and disclose in this authorization form. Your revocation shall not apply to those uses and disclosures we made on your behalf pursuant to this authorization prior to the time we received your written revocation.

By signing below, you acknowledge receipt of a signed copy of this authorization.

_________________________________ Printed Name	________________________________ Date
_________________________________ Signature

Note: If signed by someone other than the patient, we need written proof of your authority.

Appendix B – Letter to Patient

Dear [Patient’s Name]:

We value our relationship with you and want you to know that a high priority is the confidentiality of your medical record. We want to let you know that we have received a subpoena from [requesting third party] requesting this office to provide a copy of your medical records. For your convenience, we have attached a copy of the request to this letter.

This office will be, absent your written objection, required to disclose the requested medical records if certain conditions are met. You may already be aware of this request and determined that such disclosure is not objectionable; nevertheless, the purpose of this letter is to give you an additional opportunity to object to all or a portion of the requested disclosure to [requesting third party]. If this office does not receive a written objection from you within ten (10) days of the date of this letter and [requesting third party] has satisfied the conditions necessary to allow disclosure under the applicable federal and state laws, this office will proceed with the disclosure as requested.

If you have any questions about this office’s disclosure policy with regard to your health care records, please feel free to contact [name and phone number of appropriate contact at your office].

Very truly yours,

Appendix C – Letter to Third Party

Sample Letter to a Third Party Who is Requesting Disclosure of Protected Health Care Information for Use in a Judicial or Administrative Proceeding

Dear [Requesting Third Party]:

We have received your [insert “subpoena” etc.] requesting that this office disclose to you certain health records relating to [insert patient’s name].

Pursuant to the federal Health Insurance Portability and Accountability Act of 1996 and other applicable law, this office may not disclose health records for use in a judicial or administrative proceeding unless specified conditions have been met.

Following a review of your request, we have determined that you have not provided sufficient documentation. Federal law requires that this office receive documentation satisfying at least one of the following three conditions prior to disclosing the type of records you have requested:

(1) Written authorization from a patient meeting the requirements of 45 C.F.R. § 164.508(c);

(2) An order of a court or administrative tribunal directing that this office disclose the requested materials; or

(3) A written statement from you the requesting party, accompanied by copies of all supporting documentation, demonstrating the following:

(a) The party requesting the information has made a good faith attempt to provide written notice of the request to the individual (or, if the individual’s location is unknown, to mail a notice to the individual’s last known address);

(b) The notice included sufficient information about the litigation or proceeding in which the information is requested to permit the individual to raise an objection to the court or administrative tribunal; and

(c) The time for the individual to raise objections to the court or administrative tribunal has elapsed and either no objections were filed by the individual or all objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.

A written statement from you the requesting party, accompanied by copies of all supporting documentation, demonstrating the following:

(a) The parties to the dispute giving rise to the request for information have agreed to a “qualified protective order,” as defined by 45 C.F.R. § 164.512(e)(v), and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or

(b) The party seeking the information has requested a qualified protective order, as defined by 45 C.F.R. § 164.512(e)(v) from such court or administrative tribunal.

If you have questions about this office’s disclosure policy with regard to health records, please feel free to contact our office for further clarification.

Sincerely,

For more information, contact info@pvwlaw.com

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Categories : Medical Records Guides

Alleged Medicare Fraud and Abuse: How to Deal with Surprise Visits from Government Agents

29 09 2008

There are a variety of Medicare compliance issues that health care providers are forced to deal with on a very regular basis. These include false claims, overpayments, compliance programs, and billing errors. Health care providers should implement an action plan to guide them in the event that a government agent shows up to inquire about a particular issue, or has a subpoena or a search warrant authorizing the seizure of documents.

When developing an appropriate policy, there are several things that the organization should consider:

1. Determine what agency or agencies the government official or officials are from. Is it OIG, DOJ, the state Medicaid fraud control unit, etc.? Be sure to obtain copies of their cards and to verify their credentials.

2. Call your attorney and report the presence of the agents and the names of their agencies. Ask the agents for a main contact so you do not need to duplicate medical and other records for each agency.

3. Do not take a confrontational approach with government agents. They are just doing their jobs.

4. Do not attempt to interrupt or interfere with their investigation.

5. Try to cooperate and collaborate – this is essential to resolving whatever issue brought the agents to your workplace. For instance, try to explain what records are relevant and dissuade officials from seizing records that are irrelevant to the investigation.

6. Do not assume that your organization will be accused of a crime.

7. If the records being seized are electronic, provide them in CD or other unalterable formats.

By taking the above suggestions and creating a policy tailored to your workplace, you will be better able to handle unexpected government visits in the even that they do occur. Preparation in advance is the key to dealing with Medicare compliance issues and claims.

For more information, contact info@pvwlaw.com

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Categories : Medicare

CMS Modifies Stark, Again: Implications Abound for Physicians

26 09 2008

The Center for Medicare and Medicaid Services (“CMS”) recently released updates of its third phase of final regulations to the federal physician self-referral law (the “Stark Law”). The third phase of final regulations is appropriately titled “Stark III.” Stark III clarifies, and in some cases substantially revises, various concepts, definitions, and exceptions to the Stark Law. As a result, hospitals, group practices, physicians and other health care providers may need to review and modify certain existing contractual relationships to ensure compliance with a Stark Law exception.

The Stark Law bans Medicare payments to entities providing designated health services (“DHS”) if patients were referred by physicians who have a financial relationship with the entity (unless an exception applies). Phase III finalizes the 2004 interim final rule known as Phase II of Stark II. Some of the important changes in the Stark final rule, published in the Sept. 5, 2007 Federal Register, include:

· Closing what CMS views as a loophole involving indirect compensation;

· Relaxing the physician recruitment exception;

· Eliminating the fair-market-value compensation “safe harbor”;

· Expanding the scope of the FMV exception; and

· Making holiday events less stressful Stark-wise.

Although Phase III relaxes the Stark Law in certain respects, it gets stricter in other areas, making it essential for health care providers to be aware of the changes that affect their business practice. For instance, CMS made major changes to the indirect compensation exception that will likely have a significant effect on many existing compensation arrangements structured to comply with previous CMS interpretations of that exception.

Health care providers cannot look at Stark III as an isolated ruling because it stems from a long line of regulations and many years of development. Instead, Stark III must be interpreted in conjunction with the provisions of Stark I and Stark II, which in some areas could prove to be a rather tedious task. Effective compliance is attainable when those persons interpreting the Stark Law and its various phases are familiar with the history of the law, its relevant changes, and have experience with interpreting and applying legal provisions. As a health care provider, you need to determine how Stark III affects you.

TOP FIVE CHANGES RELATED TO STARK III

(1) The physician recruitment exception has substantial revisions; now reasonable practice restrictions can be imposed on the recruited physicians, including covenants not to compete.

(2) Personal service arrangements now have a six-month “holdover” period.

(3) The $329 non-monetary compensation exception now acknowledges continued compliance even if gifts and benefits exceeding the limit are exceeded by no more than 50%, so long as the physician repays the excess.

(4) Hospitals can sponsor one formal event (i.e., Christmas party) for members of their medical staff per year without having to track expenses under the $329 non-monetary compensation exception.

(5) The fair-market-value “safe-harbor” definition has been eliminated.[1]

CMS Opens Some Doors, Closes Others in its Third Regulatory Go-Round on the Stark Physician Self-Referral Law, Health Business Daily, September 14, 2007.

For more information, contact info@pvwlaw.com

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Categories : Antikickback/Stark Law

New Medicare Law Enacts Changes that Affect Providers, Insurers, Pharmacies, and Beneficiaries.

25 09 2008

On July 15, 2008 Congress voted to override President Bush’s veto, thus enacting the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). The new law implements several changes affecting matters ranging from patient coinsurance rates for mental health services to the reimbursement fees paid to physicians under Medicare. Below is a summary of the wide range of changes made to Medicare by MIPPA.

Coverage for “Preventive Services” Improved and Expanded:

The Secretary of Health and Human Services (“HHS”) is now authorized to cover beneficiaries’ costs for “additional preventive services.” So long as the services are deemed to be reasonable and necessary for the prevention or early detection of an illness or disability, preventative services are now covered by Medicare. In addition, physicians can now measure a beneficiary’s body mass index and discuss “end-of-life planning” with the beneficiary in an initial preventive physical examination. End-of-life planning can be either verbal or written information about what the patient wishes to happen if he or she is unable to make health care decisions and whether the physician is willing to follow the patient’s wishes. The Act also waives the deductible for the “Welcome to Medicare” initial preventive examination during an individual’s first year of Medicare eligibility.

Mental Health Services:

The Act harmonizes patient coinsurance rates for outpatient psychiatric services with the levels for all other outpatient medical care. Prior to MIPPA, outpatient mental health services impose a 50% coinsurance rate, as compared to 20% for most other services. MIPPA phases in a lower coinsurance rates for mental health services to provide a 20% rate by 2014.

New Limits on “Medicare Advantage” and prescription drug plans:

Certain sales and marketing activities by firms offering Medicare Advantage or Plan D prescription drug plans are now prohibited by law. Such prohibited acts include any direct, unsolicited contact with a potential enrollee, such as door-to-door or outbound telemarketing and requires limitations on commissions and gifts, effective for the 2010 plan year. Companies cannot provide meals to prospective enrollees, no matter what the value of the meal. Further, companies may not engage in “cross selling,” which means the company cannot sell any non-health related products during any marketing activity or presentation conducted with respect to a Medicare Advantage Plan.

Coverage for “Qualified Individuals” Extended Through 2009:

For individuals and families who would otherwise qualify for Medicare but for the fact that their income is otherwise too high for coverage under state law, Federal law offers coverage to those individuals or families so long as their income is between 120% and 135% of the poverty line. This is known as the “Qualifying Individual” program and was scheduled to expire at the end of June of 2008. The Act extends the program until December 31, 2009.

The Commissioner of Social Security is Required to Provide Aid to Individuals Applying for Low Income Subsidies:

The Act requires the Commissioner of Social Security (the “Commissioner”) to eliminate barriers to enrollment by requiring the Commissioner to provide information and applications to individuals applying for either the Low-Income Subsidy program or Medicare Savings Program. Individuals wishing to apply or otherwise identified as potentially eligible under those programs must be assisted with the application process.

States can no longer go after the Estates of Deceased Beneficiaries:

MIPPA removes the requirement that States collect from the estates of deceased former Medicaid beneficiaries the Medicare cost sharing benefits that were paid while the deceased was enrolled in the Medicare Savings Programs..

Pending Cuts in Physician Fees are Blocked:

Former law required a 10.6% cut in physician fees under a “Sustainable Growth Program.” One of MIPPA’s primary goals was to block the scheduled reduction in physician fees. Congress feared that such a drastic cut would lead to an exodus of physicians from the Medicare program. The Act further requires the secretary to submit a plan to Congress for transition to a “value-based” purchasing program for physicians other providers.

New Incentives for Electronic Prescriptions; Future holds Penalties:

The Act provides incentives for physicians to adopt technology that will allow them to prescribe medication to their patients electronically. To qualify for the incentive, the provider must be a “successful electronic prescriber.” A successful electronic provider is one who either reports at least 50% of any electronic prescribing quality measures if such a measure is in place or, if the Secretary elects, submitted a sufficient number of electronic prescriptions under part D during the applicable period. In 2009 and 2010, providers who qualify for the incentive will receive a 2.0% bonus on top of all the charges allowed for furnished services. That incentive decreases to 1.0% in 2011 and 2012, and 0.5% in 2013. However, beginning in 2011, providers are required to use electronic prescriptions. Failure to “e-prescribe” will result in a 1% cut in payments in 2012, 1.5% in 2013, and 2.0% for 2014 and all subsequent years.

Accreditation Now Required for Certain Imaging Services:

MIPPA requires a supplier of the “technical component of advanced diagnostic imaging services” to be accredited in order to be eligible for payment by Medicare. This includes MRIs, computed tomography and nuclear medicine such as positron emission tomography.

Pharmacists must be paid within 14 days of Submitting Electronic Claims:

Prescription drug plans must remit payment to pharmacies submitting “clean claims” within 14 days, if the claim is submitted electronically, and 30 days for claims submitted otherwise. The Act prescribes the procedure prescription drug plans must implement if they determine a claim is not “clean,” meaning a claim with no defect, impropriety, or circumstance preventing timely payment). If the prescription drug plan fails to notify the claimant that it has deemed the claim “not clean” within ten days of receipt of electronic claims or within 15 days of receipt of all other types of claims, the drug plan cannot subsequently deny payment based on any defect of the claim.

Pharmacies contracting with long-term care facilities are given a statutory window for submitting claims to Medicare. The pharmacies must have “no less than 30 days but no more than 90 days” to submit their claim for re-imbursement.

New Drug Coverage:

Beginning January 1, 2012, Medicare Part D drug coverage is expanded to include coverage for barbiturates if the barbiturates are used to treat epilepsy, cancer, or a chronic mental health disorder. This means that popular anti-depressants will now be covered by Medicare Part D prescription drug plans.

Raises the Allowed Asset Levels in the Medicare Savings Program:

Current law limits the asset level allowed in the Medicare Savings Program held by beneficiaries to $4,000 for individuals and $6,000 for couples. These limits have not been changed since 1989. The MIPPA, however, raises these asset levels to $6,000 for individuals and $9,000 for couples in 2008.

For more information, contact info@pvwlaw.com

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Categories : Medicare

The Stark Law and Federal Anti-Kickback Laws: What You Need to Know

25 09 2008

The Stark Act is an amendment to the Social Security Act prohibiting physicians from engaging in a “self referral” when referring patients elsewhere for certain services. Stark prohibits physicians from referring their patients to other entities for designated health services (“DHS”) payable by Medicare when the physician or an immediate family member of the physician has a direct or indirect financial relationship with the entity. These referrals are commonly known as “self-referrals.”

In addition to the prohibition on the referral itself, the Stark Act prohibits the entity from billing Medicare or any individual, third party, or other entity for the services provided as a result of the self referral. The Centers for Medicare and Medicaid Services, (“CMS”), has enacted lengthy regulations designed to illuminate the boundaries of the Stark act. There several exceptions to the general rule disallowing self-referrals, providing physicians and DHS entities with some flexibility. As in other areas of health care law, however, the regulatory scheme governing self-referrals is complex and lengthy, with costly consequences for non-compliance. For that reason, physicians and DHS-providing entities should carefully plan their relationships with one another and not hesitate to contact our offices for assistance in determining compliance with the Stark act.

Definitions.

Before addressing some of the exceptions, it is important to define the key terms of the general rule. The fundamental way to avoid the application of the general rule is to distinguish oneself from the definition of critical terms. First and foremost, it should be noted that the Stark Act only prohibits referrals to entities for a DHS. Designated health services include:

1.) clinical laboratory services;

2.) physical therapy services;

3.) occupation therapy services;

4.) radiology services (including MRIs, Ultrasounds, and CAT scans);

5.) radiation therapy and supplies;

6.) durable medical equipment and supplies;

7.) parenteral and enteral nutrients, equipment, and supplies;

8.) prosthetics, orthotics, and prosthetic devices and supplies;

9.) home health services;

10.) outpatient prescription drugs; and

11.) inpatient and outpatient hospital services.

If that seems like pretty much everything, it is.

Who is part of my immediate family?

Physicians must take note that the direct or indirect financial relationships of an “immediate family member” will be imputed to them for the purpose of determining whether a referral was a prohibited one. “Immediate family member” is defined as a “husband or wife; birth or adoptive parent, child, or sibling; stepparent, stepchild, stepbrother, or stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; grandparent or grandchild; and spouse of a grandparent or grandchild.” Once again, the regulations use a broad definition that should give physicians and health care providers pause.

What counts as a financial relationship?

The most critical definition for physicians wishing to comply with Stark entails understanding what constitutes a “direct or indirect financial relationship.” In general, a “financial relationship” is a direct or indirect ownership interest, investment interest, or compensation arrangement with any entity that furnishes DHS. What constitutes a direct financial relationship is fairly straightforward, with one twist: A direct relationship exists if the investment interest or the compensation passes between either the referring physician or a member of his or her immediate family and the entity furnishing the designated health service without any intervening persons or entities. Thus, even if a physician has no contact with a DHS-providing entity, he or she may still have a direct financial relationship with the entity through an immediate family member. In contrast to a direct relationship, what constitutes an indirect relationship is more complex, and requires analysis in the context of the three different types of “financial relationships.”

What is an Ownership or Investment Interest? What counts as an Indirect Ownership or Investment Interest?

An ownership or investment interest in a DHS entity can take the form of equity, debt, stock, certain stock options, partnership interests, memberships interests in an LLC, etc. An ownership or investment interest “includes an interest in an entity that holds an ownership or investment interest” in the DHS entity. Thus, an ownership interest in a subsidiary company is not an ownership interest in the parent or another subsidiary of the parent unless the subsidiary has an interest in the parent or another subsidiary of the parent. An interest in a retirement plan is specifically excluded from the definition of ownership or investment interest. The following, while specifically excluded from the definition of ownership or investment interest, are nonetheless considered a form of “compensation arrangement”:

1.) stock options or convertible securities until executed;

2.) an “under arrangement” contract between a hospital and a physician-owned entity;

3.) a security interest held by a physician in equipment sold to a hospital and financed through a loan from the physician; and

4.) an unsecured loan subordinated to a credit facility.

An indirect ownership or investment interest exists if there is “an unbroken chain” of persons having an ownership or investment interest and the entity providing DHS has actual knowledge or acts in “reckless disregard or deliberate ignorance” that the referring physician has an indirect ownership interest in the entity, no matter how many “intermediary” interests exist. In fact, an indirect ownership or investment interest exists even though the entity providing DHS does not know the “precise composition of the unbroken chain.” Referring physicians and DHS entities must therefore be careful to check that no “unbroken chain” establishes an indirect ownership or investment interest. As noted above, the DHS entity will be denied payment despite its lack of knowledge if, depending on the circumstances, CMS determines that the entity has acted with reckless disregard or ignorance of the referring physician’s investment and ownership interests along the chain. A DHS entity therefore should make certain it knows exactly whom they are dealing with before accepting a referral.

What is a Compensation Arrangement? What counts as an Indirect Compensation Arrangement?

If you thought the definition of an ownership or investment interest was complex, it gets worse. Of the types of financial relationships prohibited by the Stark law, compensation arrangements are the most onerous to grasp. A compensation arrangement is “any arrangement involving remuneration, direct or indirect, between a physician (or a member of a physician’s immediate family) and an entity,” including “under arrangement” contracts.

In addition to the twist involving members of the physician’s immediate family noted above, a physician is deemed to have a direct compensation arrangement with a DHS entity if “the only intervening entity between the physician and the entity furnishing DHS is his or her physician organization. In such situations, for purposes of this section, the physician is deemed to stand in the shoes of the physician organization.”

The regulations entail a long definition of an indirect compensation arrangement. First, an indirect compensation, like an indirect investment or ownership interest, requires an “unbroken chain” of persons or entities having a financial interest between the referring physician and the DHS entity. However, unlike the indirect investment or ownership interest, an indirect compensation arrangement can exist if the intervening interest is either an investment or ownership interest or a compensation arrangement. Second, the referring physician must receive compensation from a person or entity in the chain with which the physician has a direct financial relationship that varies with the volume or value of referrals generated by the physician for the DHS entity. Finally, just as in the context of an indirect ownership or investment interest, the DHS entity must have “actual knowledge of, or act in reckless disregard or deliberate ignorance of” the referring physician’s compensation varying with the volume or value of referrals. For the purposes of determining whether an unbroken chain exists, the physician will “stand in the shoes” of his or her physician organization.

Concerned your Financial Relationships Might Implicate the Stark Act?

You should be. Violation of the Act will result in a denial of payment by Medicare to the DHS and could result in a civil penalty of up to $100,000 for the DHS entity, referring physician, or both. A physician or other entity wishing to determine compliance with the Stark act has several options. The physician or entity can contact our offices with their questions and receive guidance based on their situation. Further, a physician or entity can request an “advisory opinion” from CMS regarding whether their referral arrangement violates the Act and regulations promulgated under it. It should be noted that advisory opinions are binding on both the requesting party and CMS. This can be a useful tool because it will give assurance to the physician or DHS-providing entity. Although both options entail costs, those costs are dwarfed by the potential costs associated with the CMS determining a referral to be “prohibited.”

What is the Anti-Kickback Law and How is it Different from Stark?

Although similar in purpose, the statute colloquially known as the “Anti-Kickback” law imposes even more severe penalties on entities violating its provisions. The Anti-Kickback law makes it a felony for anyone who receives a form of payment in return for referring a patient to another for Medicare or Medicaid-covered services. The law also forbids payment in return for purchasing, leasing, or ordering any good, facility, service or item which would be paid for under either Medicare or Medicaid. Violating the act comes with a heavy penalty – a felony conviction punishable by a fine up to $25,000 and/or five years in jail. Both sides of the transaction are forbidden – the law forbids both the receipt of and the offering to pay or payment of the kick-back.

Recently, Physician-Vendor relationships have come under heightened scrutiny by federal and state regulators. It is important for physicians and their vendors to carefully structure their relationships to avoid potentially violating the Anti-Kickback law.

“Safe Harbor” Transactions

Congress and the Department of Health and Human Services (“HHS”) have provided several “safe harbors” allowing entities to avoid violations of the Anti-Kickback law. Many of the excepts are made to exclude certain arrangements or transfers from the definition of payment, thus shielding the parties from potential criminal liability under the Anti-Kickback law. The safe harbors include:

1 ) Investment Interests:

Three types of payments are exempted under the safe harbor for “investment interests.” To fit in the first exemption, the entity must have less than $50 million in assets related to the furnishing of health care items and services. With active and passive investors, there are restrictions on the respective ownership interests that may be held by those capable of making referrals or furnishing Medicare or Medicaid covered health services. These restrictions are relaxed somewhat if the entity is located in an “underserved area.” The exemption for investment interests allows that, in certain circumstances, dividends or interest are deemed not to be payments as far as the Anti-Kickback law is concerned. However, the regulations impose very precise and lengthy conditions on compliance with the exemption. Entities wishing to use this exemption should consult with their attorney to ensure full compliance with the investment interest safe harbor.

2.) Space Rental:

Remember that the Anti-Kickback law forbids certain leasing arrangements. Recognizing that this could put a strain on health care providers attempting to find a place to set up shop, HHS provided a safe harbor for space rental. This safe harbor requires the lease to be in writing, cover all the premises leased between the parties and specify those premises, be for at least one year, be for fair market value rent, which is set in advance, and not lease more space than is “reasonably necessary” to provide the desired service. The rent can in no way reflect the volume or value of referrals between the parties for Medicare or Medicaid covered services.

3.) Equipment Rental:

What good is an empty office? Modern health care requires some very complicated and very expense equipment. Many health care providers find it more economical to rent rather than own their equipment. In a corollary to the safe harbor for space rental, HHS has provided a safe harbor for equipment rental. The same conditions as applied to the space rental lease apply to the equipment lease.

4.) Personal Services / Management Contracts:

A safe harbor exists for payment made to agents (persons authorized to act for another) as compensation, so long as the agency agreement is set out in writing and covers all the services the agent will provide, be for not less than one year, be for an amount equal to the fair market value for such services, be for an amount set out in advance, and in no way take into account the volume or value of any referrals or business generated payable by Medicare or Medicaid.

5.) Referral Services:

Payment can even be made to a referral service under a safe harbor promulgated by HHS. The payment, as you’ve probably guessed, cannot be based on the volume or value of referrals, but only on the costs of operating the referral service. There can be no restrictions on the manner in which the services referred are provided. Further, the referral service must make certain disclosures to the person seeking the referral and maintain a written record certifying those disclosures.

6.) Payments made to Bona Fide Employees:

Payments to an employee will be safe so long as there is a “bona fide” (real) employment relationship and the payments do not take into account the value or volume of referrals for Medicare or Medicaid covered services.

7.) Recruitment:

Just as there were relaxations under STARK for physician recruitment, there exists a safe harbor under the Anti-Kickback regulations for payments made to induce a practitioner to join with an entity. There is a litany of conditions that must be met for this safe harbor to be met. For example, if the recruit is leaving an established practice, the revenues at the recruiting entity must generate 75% of its revenue from new patients; that is, the recruit can only bring 25% worth of patients with him from his old practice. Further, there can be no condition that the recruit make referrals, influence referrals, or otherwise generate business for the new entity as a condition of receiving the benefits of his or her new employ.

This article is designed only as an introduction to the STARK and Anti-Kickback laws. The exceptions outlined above are presented in a simplified manner and it should be stressed that health care providers should consult with their attorneys to ensure full compliance with any and all regulations under STARK or the Anti-Kickback laws.

For more information, contact info@pvwlaw.com

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Categories : Antikickback/Stark Law

Avoiding Malpractice: Steps Physicians Can Take To Protect Their Pocketbooks and Reputations

25 09 2008

Medical malpractice claims costs the health care industry billions every year. The spiraling costs of defending against these claims and of acquiring malpractice insurance have left many health care providers feeling like they’re treading water in an ever-expanding ocean of attorneys’ fees and premium payments.

Besides throwing more and more money at insurance, are there steps health care providers can take to reduce their exposure to malpractice claims? The answer is a definitive yes! The following steps, however, will go a long way to reducing that exposure.

1. Foster the Patient – Physician Relationship: Maintain Open Communication

Some commentators attribute part of the rise in medical malpractice claims to the “de-personalization” of the patient-physician relationship. Our society has moved from the close-knit communities of yesteryear, with family physicians that knew more about you than your neighbors, to the fast-paced and impersonal realities of modern life. That transformation has undermined communication between patient and physician, a key to avoiding malpractice litigation.

Patient – physician communication is key, not only to personalizing the physician, but also to informing the patient and their families of the risks that certain procedures entail. Patients will view their physician as arrogant or distant when they don’t make an effort to speak to them or their families. Patients who feel this way about their physician are far more likely to be dissatisfied with their treatment and file a claim against their (former) physician.

2. Obtain Informed Consent

A corollary to open communication is obtaining informed consent before treating the patient. Make a note in the charts of the conversation with the patient. A common practice today is obtaining a signed agreement. This is a great idea. In the words of Dr. Vicente Franklin Colon, “the patient’s signature goes a long way toward mitigating the legal problems of the doctor.” The key is to make sure that the consent was informed. That means advising the patient of risks, informing them of their freedom of choice, and, where possible, discussing alternatives.

3. Maintain Quality Documentation and Records

A court might allow a jury to infer negligence from an absence of documentation. Good documentation can transform a case from hopeless to defensible, if not at least limiting the damages to an amicable settlement. Conversely, poor documentation can doom even the most competent of care and expose you to truly frivolous claims. Medical records need to reflect a logical progression of diagnosis and treatment. The information contained within them belong the patient and must be kept confidential. Make sure there are no significant time gaps or omissions from the charts. Further, use only standard abbreviations. The importance of clear, concise, and specific documentation can go a long way toward reducing your exposure to malpractice.

4. Avoid Conclusions – Examine the Patient Carefully

Although this may seem obvious, its importance cannot be overstated. Consider the following testimonial from Vicente Franklin Colon, MD:

“I have been involved in several cases associated with rectal and vaginal bleeding in which no physical exam was done. The patient was reassured that it was nothing serious. In each case there was something seriously wrong and a lawsuit was filed.”[i]

If nothing is found after a carefully directed examination, you have demonstrated reasonable and prudent care.

5. Seek Consultation or Referral for Matters Outside the Normal Scope of your Practice.

The health care industry is a universe of specialties. If a patient presents you with a medical problem outside the normal scope of your practice, seek consultation with a qualified expert – and note that you did so in the chart. If something more than consultation is needed, make the appropriate referral. Failure to get help when you are in over your head can be the basis for a malpractice suit.

6. Be Aware of Your Jurisdiction’s Laws

In addition to the universal scheme enacted in federal law, many states have their own unique twists to regulating health care providers. It is important to stay abreast of applicable rules and regulations. Malpractice suits are brought in state court under state laws. Knowing the rules and regulations of your jurisdiction is critical.

7. Make Sure Your Staff is Following Written Procedures In Practice

You can write down the most patient-friendly, proactive and precautionary set of polices for your practice, but these are worthless unless you and your staff put these policies into practice. Avoiding malpractice starts with good leadership and an administrative commitment to formulating and enforcing prudent policies. Examples of areas these policies should touch include physician certification and credentials, approval of new procedures, and creating a mechanism empowering everyone on the staff to report and stop practices that should not be happening. Your policy manuals and bylaws will be used against you if not actually followed.

8. Have a Trusted Lawyer on Retainer

Lawyers are your friends! In fact, the majority of malpractice claims are first suggested not by a plaintiff’s attorney, but by reviewing physicians examining a patient after a bad outcome.[ii] A personal lawyer with knowledge of malpractice law can stop frivolous claims in their tracks and help health care providers protect confidential information and retain their reputation in the community. Although this entails a cost, the consequences of attempting to wade through malpractice claims without the sound advice of counsel can be devastating.

V. Franklin Colon, MD, 10 Ways to Reduce Medical Malpractice Exposure – Doctors, Lawyers, and Lawsuits, March 2002, http://findarticles.com/p/articles/mi_m0843/is_2_28/ai_84236558/print?tag=art Body;col1.

Wilke, William S., MD, Highlights from Medical Grand Rounds, Cleveland Clinic Journal of Medicine, Volume 62, Number 2, pg. 84.

For more information, contact info@pvwlaw.com

[ii]

[i]

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Categories : Medical Malpractice

Medical Malpractice in Nebraska – A Legal Primer

25 09 2008

I. INTRODUCTION

Medical Malpractice is one of the most controversial and politically-charged topics in contemporary American society. To many Americans, doctors are god-like men and women that can do no wrong. Malpractice claims, the argument goes, are just an excuse used by unsatisfied patients who had unrealistic expectations to begin with. On the other side are those who have suffered from gross and obvious negligence on behalf of doctors or their staff. The woman recently left dead on waiting room floor in New York provides a graphic and disturbing example. While there can be no doubt that the large majority of doctors and nurses are competent medical providers, mistakes are still made. Even the best doctors will make mistakes during his or her career – doctors are human beings, after all. Unfortunately, the consequences of mistakes in the medical industry are often severe. Malpractice can leave patients to suffer a lifetime with a debilitating injury or condition. Those cases with truly egregious conduct and catastrophic results can make even the most skeptical of souls sympathetic.

While some patients have suffered due to bona fide malpractice, the medical profession as a whole has likewise suffered from the rising costs of malpractice insurance and legal fees. While egregious cases of malpractice do exist, even the most plaintiff-friendly jury must recognize the importance and general professionalism of the medical community. The vast majority of doctors are compassionate and caring people – qualities lending themselves to a career serving those in need. Every American has been impacted in a positive way by the expertise employed by the medical community. Even if you’ve never been to a doctor in your adult life, you likely receive vaccinations for otherwise debilitating and deadly diseases had an attending physician assist your mother during her pregnancy and your birth, etc. Many people owe their very life to the skill and diligence of our nation’s medical providers. For these gracious and caring acts, the medical profession is due our eternal thanks.

As American society became more urban and impersonal during the twentieth century, the relationship between doctor and patient suffered. The result was a less personal relationship which, many argue, is an underlying cause of the explosion in medical malpractice claims. Patients are more likely to sue a doctor they only recently began to see for their medical needs. While the technology, ability, and skill of the medical community has grown tremendously, relationships with patients have began to drift further from the traditional close-knit family doctor and closer and closer to something akin to a service. The result has been an explosion in medical malpractice lawsuits across the country.

This article exams the state of the law of medical malpractice as it is currently expressed in the state of Nebraska. It is intended to be a beginning guide to understanding medical malpractice claims; their elements, procedure, and outcomes.

II. Nebraska Statutes Impacting Malpractice Litigation.

The Nebraska Revised Statutes contain several chapters and sections that impact malpractice litigation. Nebraska has enacted a comprehensive statutory scheme governing malpractice litigation. First, Nebraska, like many other states, has enacted a statutory cap on the recovery allowed by a plaintiff succeeding on a malpractice claim. Second, Nebraska has limited the liability of individual health care providers to plaintiffs in malpractice Second, Nebraska Law requires that malpractice claims be pursued within a certain time period, depending on the circumstances of the case. Plaintiffs, defendants, and their attorneys must be diligent to comply with these timing requirements or risk having an otherwise “slam dunk” case barred from court.

The Nebraska Hospital-Medical Liability Act.

In 1976, the Nebraska Unicameral enacted the Nebraska Hospital-Medical Liability Act (the “Act”)[i]. The beginning of the Act contains the Unicameral’s statement of its intent and findings. According to the Legislature, the public interest requires that “prompt and efficient methods be provided for eliminating the expense as well as the useless expenditure of time of physicians and courts in nonmeritorious malpractice claims and for efficiently resolving meritorious claims.”[ii]

The Act was passed “to address a perceived medical liability crisis.”[iii] Since it took effect in the mid 1980s, most subsequent medical malpractice suits have been brought under the Act’s provisions. Before digging in to the substantive provisions of the Act, it is important to first understand how the Legislature defined the Act’s key terms.

A. Definitions.

The Act contains the following definitions:

Health Care is any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.[iv]

A Health Care Provider is a physician, certified registered nurse anesthetist (“CRNA”), an individual, partnership, limited liability company, corporation, association, facility, institution, or other entity authorized by law to provide professional medical services by physicians or CRNAs, or a hospital. The definition also includes personal representatives who are a successor or assignee of any of the above entities.[v]

Until December 1, 2008, a Physician is anyone licensed to practice medicine and/or osteopathic medicine and surgery in Nebraska. After December 1, 2008, the definition of Physician cross references the Medicine and Surgery Practice Act. [vi]^{, [vii]}

A Patient is any natural person who receives or should have received health care from a licensed health care provider under an express or implied contract.[viii]

A Hospital is a public or private institution licensed under the Health Care Facility Licensure Act.[ix]^,[x]

Malpractice describes when, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or similar localities.[xi]

An Occurrence is the event, acts, or omissions incident thereto which proximately cause injuries or damages for which reimbursement is or may be claimed by the patient or his representative.[xii]

Informed Consent is consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers. Failure to obtain informed consent is failure to obtain any express or implied consent for any operation, treatment, or procedure in a case in which a reasonably prudent health care provider in the community or similar communities would have obtained consent.[xiii]

Those are the key definitions of terms used in the Act. The Act’s substantive provisions contain the real impact on medical malpractice litigation. These provisions include a cap on recoverable damages in medical malpractice actions, a cap on liability for those health care providers qualifying under the act, establishment of the “Excess Liability Fund,” special procedures for initiating and settling medical malpractice suits, and establishment of the “Residual Malpractice Insurance Authority” providing coverage to health care providers who cannot otherwise find malpractice insurance. Before gaining the protections provided by the Act, however, health care provider must qualify.

B. Qualifying under the Act.

Before a health care provider can take advantage of any of the provisions of the Nebraska Hospital-Medical Liability Act, two preconditions must be met. First, the health care provider must be qualified under the Act. Second, the patient must be covered by the Act (see part “c” below). Only those malpractice suits based on occurrences while the health care provider was qualified and while the patient was subject to the Act will be regulated by its provisions.

1. Step one to Qualification: “Proof of Financial Responsibility

The first step health care providers must take to qualify under the Act requires the provider to file proof of financial responsibility with the Director of the Nebraska Department of Insurance.[xiv] Proof of financial responsibility can only be established by proof that the health care provider is insured by the Residual Malpractice Insurance Authority or by a policy of professional liability insurance offered by an authorized insurance company licensed in Nebraska.[xv] The policy must meet the following minimum requirements:

· Include insurance in the amount of $500,000 per occurrence, AND

· In the case of physicians or CRNAs, include an aggregate liability of at least $1,000,000 per year.

· In the case of hospitals and their employees, include an aggregate liability amount of at least $3,000,000 per year.[xvi]

The filing must state the premium paid for the insurance policy. A special “risk-loss trust” was set up for university-based hospitals and their physician employees.[xvii] For those health care providers who cannot obtain private insurance, the Act grants the option of being insured through the Residual Malpractice Insurance Authority (see section X below).

2. Step two to Qualification: The Statutory Surcharge.

The second step a health care provider must take in order to qualify under the Act involves payment of a statutory “surcharge” levied on all qualifying health care providers.[xviii] The surcharge is determined by the Director of the Nebraska Department of Insurance, with some statutory limitations.[xix] For 2008, the surcharge is set at 35% of the premium paid by the health care provider to maintain the required malpractice insurance. [xx] This surcharge goes to fund the “Excess Liability Fund,” (the “Fund”), another important creation of the Act (see section “E. The Excess Liability Fund” below). The surcharge is generally levied once annually.[xxi] However, if the Director determines that the Fund’s resources are inadequate to pay the claims allowed for a given calendar year, the Director has authority to levy a special surcharge on qualifying providers to bring the Fund back up to fiscally-sound levels.[xxii]

After the health care provider has filed its proof of financial responsibility and paid all applicable surcharges, the provider has taken all the necessary steps to qualify for the protections offered by the Nebraska Hospital-Medical Liability Act. One more condition, however, must be met before those provisions will have any force against a given plaintiff. To be protected by the Act, it is necessary that the patient was “covered by” the Act at the time he or she obtained treatment from the health care provider.

C. Patients Covered by the Act.

Before a malpractice suit will be subject to the provisions of the Act, the plaintiff must have been a patient covered by the Act at the time of the occurrence forming the basis for the lawsuit. Luckily for health care providers, patients are generally presumed to be covered by the Act.[xxiii] To overcome this presumption, the patient must file an election not to be bound by the Act with the Director of the Nebraska Department of Insurance before any treatment and notify the health care provider of this election “as soon as is reasonable under the circumstances.”[xxiv] Parents can make this election for an unborn or newborn child.[xxv] Health care providers must post a provision in the waiting room or other suitable location informing patients that the health care provider is qualified under the Act and that patients will be subject to the Act unless they file the election reference above.[xxvi] A patient’s election to be exempt from the act is effective for a period of two years unless revoked by the patient sooner.[xxvii]

Failure of the patient to file his or her election not to be bound by the Act is “conclusive and unqualified acceptance” of the Act’s provisions.[xxviii] The fact that a patient has to take affirmative steps to avoid being subject to the provisions of the Act underscores the importance the Legislature attached to the goals of the Act. Quite frankly, few patients are going to take the time to file the election to exempt themselves from the Act before undergoing treatment for a medical condition.

D. Cap on Plaintiff’s Recovery / Provider’s Liability.

Perhaps the largest impact the Act has on malpractice litigation is the establishment of a limit on the amount a plaintiff can potentially recover in a malpractice suit. The act limits the amount recoverable based on the date of the occurrence forming the basis for the lawsuit. For any occurrence after December 31, 1992 but before December 31, 2004, the limit is $1,250,000. For occurrences after December 31, 2004, the limit is raised to $1,750,000.[xxix] This represents a limit on the total amount recoverable by a plaintiff in a medical malpractice suit from any and all sources. The Act also limits qualified a health care providers’ liability to a patient or his representative covered by the Act to $500,000.[xxx]

The Act thus limits both the total amount a plaintiff may recover and the total amount for which a qualified health care provider may be held liable. You have probably noticed that a even if a plaintiff’s case is subject to the Act (i.e. the health care provider is qualified and the patient had not elected out of the Act at the time of treatment), a patient can still recover an amount far greater in total than that for which a qualified health care provider can be held liable. This is where the Excess Liability Fund comes in. If the plaintiff is awarded an amount in excess of the total liability of all health care providers, the excess is paid out of the Excess Liability Fund.[xxxi]

E. The Excess Liability Fund.

The Excess Liability Fund is a creation of the Nebraska Medical-Hospital Liability Act. The Fund is financed through the annual surcharge levied on all qualified health care providers. This allows Nebraska’s health care providers to essentially pool the risk of malpractice liability together in order to better withstand large judgments and enjoy the benefits of economies of scale.

The Act tentatively sets $5 million as the desired balance of the Fund, but allows the Director to revaluate the necessary amount on an annual basis.[xxxii] The Director can also acquire “re-insurance” for the fund, which will help to maintain its solvency and requires the Director to re-evaluate the surcharge imposed to finance the Fund.[xxxiii]

Once a plaintiff obtains either a final judgment or a settlement award in his or her malpractice suit, the Act specifies the required procedure for making a claim against the Fund. If there is an award in excess of $500,000 against a health care provider and in excess of the amount recoverable from all health care providers, the plaintiff must deliver to the Director a certified copy of the final judgment for such award.[xxxiv] Settlements in which the plaintiff demands an amount more than the $500,000 limit on the provider’s liability must file a motion if the action is pending in court, or a complaint if the action is not pending, seeking approval of the agreed settlement and demanding payment of damages from the Excess Liability Fund.[xxxv] The complaint or motion must be served on the director, the health care provider, and the health care provider’s insurer.[xxxvi] If the director, provider, and the plaintiff cannot agree on the amount to be paid from the Fund, the court will determine the amount in a trial.[xxxvii] An approved settlement cannot be appealed, but the court’s determination of damages may.[xxxviii] This all assumes that a suit has been filed or otherwise pursued. As examined below, the Act also contains provisions impacting a malpractice case prior to its filing in court.

F. Requirement of Prior Review.

One of the stated goals of the Act was to eliminate the wasted time and expenses incurred in defending against “nonmeritorious” malpractice claims. Although the Act establishes medical review panels to examine and tender an opinion on a plaintiff’s malpractice suit before the suit is filed in court, this part of the act is largely toothless.[xxxix] This is so because the Act allows for the plaintiff to waive out of this provision and file his or her action directly in court.[xl] Most plaintiffs, understandably, exercise this waiver.

If the plaintiff does not waive panel review of his or her action, then the panel must first be composed. The panel consists of one non-voting attorney and three physicians.[xli] Those physicians must hold unlimited licenses to practice medicine in Nebraska.[xlii] Each side picks one physician, and then those two physicians appoint the third panel member.[xliii] After reviewing the parties’ evidence and hearing argument by the parties’ respective counsel, the panel issues a written expert opinion on whether the defendant was negligent.[xliv] The report and any minority report of the panel must be admitted in a subsequent action in a court of law.[xlv]

It should be somewhat apparent why plaintiffs rarely fail to waive panel review. First, although the plaintiff is allowed to appoint one of the reviewing physicians, that physician will be working with the defendant’s appointee and another physician. As reluctant as a single physician is to turn on a colleague, three are even more so. Second, while experts may be admitted at trial regardless of their state, the limitation on the panel that the physicians be licensed in Nebraska greatly increases the chance that the panel will know the defendant and be reluctant to turn on a colleague from the community. Finally, the fact that the panel’s report must be admitted if the plaintiff decides to file a lawsuit is particularly chilling. If the panel were to conclude that the defendant had not been negligent, this opinion would carry great weight at trial and likely doom the plaintiff’s case.

G. Constitutionality.

The Nebraska Hospital-Medical Liability Act did not have to wait long before being challenged. The Act was passed in 1976, and by July of 1977 the constitutionality of the Act was being questioned before the Nebraska Supreme Court. In Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977), the Supreme Court of Nebraska upheld various provisions of the Act as constitutional. The statutory cap on plaintiff’s damages was specifically challenged and upheld in a more recent decision of the Supreme Court. Gourley. v. Nebraska Methodist Health Sys., Inc., 256 Neb. 918, 663 N.W.2d 43 (2003).

Absent a landmark reversal of precedent, the Act is and will remain constitutional in its present form.

H. Failure to qualify / retention of common-law liability.

If a health care provider fails to qualify or the patient files a valid election opting out of the Act’s coverage, any action for malpractice will not be subject to the provisions of the Act.[xlvi] Thus, if a health care provider fails to qualify under the Act, the plaintiff’s damages will not be limited to the $1.75 million amount, the provider’s liability will not be limited to $500,000, and no amount will be paid out of the Excess Liability Fund.[xlvii] The Act expressly states that if a health care provider fails to qualify under the Act, the health care provider will be subject to liability under doctrines of common law (law handed down from the prior decisions of courts examining malpractice lawsuits).[xlviii] While failure to qualify will exempt the plaintiff from the cap on damages, the plaintiff still faces several other limitations on his or her case. Most notable among these are the time limitations the plaintiff faces for filing his or her lawsuit.

Time Bars on Malpractice Claims.

Nebraska law generally provides for a two year statute of limitations on medical malpractice lawsuits. The plaintiff has two years from the alleged act or omission that forms the basis of the lawsuit to commence an action for medical malpractice.[xlix] There are three exceptions to this general two year limitation.

First, if a cause of action was not discovered by the plaintiff and could not reasonably have been discovered within the two year limitation period, a plaintiff has an additional year to commence their lawsuit. In this case, the clock begins ticking either when the plaintiff discovers they have a cause of action or upon the discovery of sufficient facts which would reasonably lead to the discovery, whichever is earlier.[l] This is known as the “discovery” exception to the statute of limitations. As you can imagine, anytime the plaintiff attempts to use this exception to toll the statute of limitations, the defendant will argue that a reasonable person would have discovered the cause of action for malpractice long before the one year extension. The merit of each case for tolling the statute of limitation is a fact-specific inquiry and must be determined on a case-by-case basis.

The second exception available to plaintiffs to toll the statute of limitations is sometimes termed the “continuous treatment” exception. Under this doctrine, the statute of limitations does not begin to run until after treatment ends.[li] To be continuous, the treatment must be for the same or related illnesses or injuries and continue after the alleged acts of malpractice. Mere continuity of the physician-patient relationship is insufficient.[lii] Courts are very hesitant to allow a plaintiff to use the continuous treatment exception, and it is often the case that after an alleged act of malpractice a patient will see a different physician.

The third and final exception to the two year limitation involves claims on behalf of minors or other incapacitated persons. If, at the time the action for malpractice accrues, the person entitled to bring the action is under the age of 21, a person with a mental disorder, or imprisoned, the statute of limitations is tolled until the person reaches the age of majority, is removed from prison, or ceases to be disabled.[liii] This is particularly important for parents bringing actions on behalf of their minor child for malpractice in the child’s medical treatment.

Apart from those three exceptions, several other noteworthy time limitations impact malpractice litigation. First, in no event can an action for malpractice be commenced more than ten years after the date of the services or omissions forming the basis for the malpractice claim.[liv] This effectively limits all the exceptions discussed above to a ten year ceiling. The required timing for a malpractice claim is further complicated if the health care provider is a member of a political subdivision (such as a county hospital or clinic). The Political Subdivisions Tort Claims Act[lv] requires the claim be presented to the relevant governing body within one year of its accrual and filed within two years after the claim has accrued.[lvi] Where the defendant health care provider is a member of a political subdivision, a plaintiff must present that claim to the political subdivision before he or she can file suit in court.[lvii] The same is true if the defendant is an entity of the State of Nebraska, although the plaintiff then has two years to present the action to the Risk Manager.[lviii] After the governing body has either mailed notice to the plaintiff of its final disposition of the claim or if the plaintiff withdraws the claim due to the governing body’s inaction, the plaintiff has six months to file his or her lawsuit.[lix]

Although the Legislature has codified many laws having an impact on medical malpractice claims, an overview of the statutes can only provide half the picture. To fully understand the state of the Nebraska law in with respect to medical malpractice, one must also examine court decisions. The best place to start is at the top with decisions of the Nebraska Supreme Court and Nebraska Court of Appeals.

III. Nebraska Court Decisions Impacting Malpractice Litigation.

Medical malpractice lawsuits historically have a very low success rate. On average, 85% to 95% of all medical malpractice claims result in a verdict for the defendant.[lx] These percentages make it extremely difficult not only for a plaintiff to win at trial, but also for a plaintiff to gain sufficient leverage to procure a favorable settlement from the defendant. Further, every settlement of a malpractice suit must be placed on a national register with the Department of Health and Human Services, making a dismissal at trial (which is not sent to the national registry), all the more appealing to the defendant.

A. The Required Elements of a Malpractice Claim.

A claim for medical malpractice requires that the plaintiff establish three elements. First, the plaintiff must establish the applicable standard of care. Second, the plaintiff must prove that the defendant(s) deviated from that standard of care. Finally, the plaintiff must show that this deviation was the cause of the plaintiff’s harm.[lxi] Each of these three elements entails different requirements for the plaintiff to make his or her case. If any element of the plaintiff’s case is unsupported, the court will grant the defendant summary judgment before the case ever goes to the jury.

1. The Applicable Standard of Care.

All health care providers must conform their treatment of paitients to a certain standard. This is known as the “standard of care” and constitutes the first element a plaintiff must establish in his or her malpractice lawsuit. Nebraska courts will instruct the jury in one of two ways regarding the applicable standard of care.

i. The Traditional Definition of Standard of Care:

Traditionally, the standard of care was described as “what care a physician would ordinarily exercise under similar circumstances in the same or similar community while engaged in the same or a similar line of work.”[lxii] This definition of the standard of care contains some particularity to the relevant community in which the physician practices. The requirement that the standard of care reference the “same or similar” communities is known as the “locality rule.”[lxiii] The locality rule has been codified in the Nebraska Hospital-Medical Liability Act and applies in malpractice suits brought pursuant to that Act. Where the circumstances are such that the traditional definition applies, the court will instruct the jury as follows:

“A (here insert words identifying the health care providers involved, words such as physician, hospital, et cetera) has the duty to possess and use the care, skill and knowledge ordinarily possessed and used under like circumstances by other (here insert the same words as inserted above) engaged in a similar practice in the same or similar localities.”[lxiv]

(standard of care emphasized)

But the locality rule has recently received a cool reception by Nebraska courts. A recent decision by the Nebraska Supreme Court clearly establishes that it is not always appropriate to include the locality rule in the definition of the standard of care.

ii. The “Modern” definition of Standard of Care:

The Nebraska Supreme Court has recently abolished the use of the locality rule under certain circumstances. First, the evidence must show the local standard to be the same as the national standard.[lxv] The policy justification for the locality rule was originally the disparities in resources and practices between urban and rural communities and the perceived inequity of holding a physician operating with the resources of rural Nebraska to the same standard of care as a physician operating in New York City. However, “if practices within a certain specialty do not vary significantly throughout the country, there is no policy justification for the locality rule.”[lxvi] Second, the defendant health care provider must not be qualified provider under the Nebraska Hospital-Medical Liability Act.[lxvii] If the provider is qualified under the Act, the provider is given the benefit of an instruction including the locality rule.

Where both conditions are met, the phrase “in the same or similar localities” should not be included in jury instructions.[lxviii] Including the locality rule in jury instructions where the above conditions are met will result in the trial court’s verdict being reversed and a new trial ordered on appeal. [lxix] The reasoning is that including the locality rule in the instruction allows the jury to impermissibly favor or discount conflicting testimony as to the proper standard of care based on whether the testifying expert practices in a same or similar locality with the defendant. Reversal can drastically change the parties’ respective bargaining positions in subsequent negotiations to settle the lawsuit – a plaintiff can demand a higher amount in settlement if the defendant faces the prospect of paying for yet another trial. Thus, a malpractice suit against a specialist, who typically follow nationalized standards, should not include an instruction of the locality rule unless the specialist is qualified under the Nebraska Hospital-Medical Liability Act.

Although the plaintiff bears the initial burden of establishing the standard of care, often times the parties will agree on the applicable standard of care. The real disagrements concern the second and third elements of a malpractice case: deviation from the standard of care and causation.

2. Deviation from the Standard of Care.

Once the plaintiff has established the relevant standard of care, he or she must establish that the defendant deviated from that standard of care. This deviation can be thought of as the action that forms the basis for the plaintiff’s lawsuit. The simplest way to conceptualize this element would be by juxtaposition: a reasonable health care provider would do X in these circumstances, the defendant did Y in these circumstances, therefore the defendant deviated from the standard of care and committed malpractice. However, the court has shown great deference to a health care provider’s decisions.

If a defendant in a malpractice case files an affidavit stating that they are familiar with the standard of care and that the standard of care was met, Nebraska courts hold this to be a prima facie case of lack of negligence.[lxx] Establishing a deviation from the standard of care often requires the use of expert testimony (see section “C. The Court’s View on the Role of Expert Witnesses” below). The plaintiff’s witness must show more than that he or she would have pursued the plaintiff’s treatment differently than the defendant. A disagreement among doctors of equal skill and learning as to what the proper treatment should have been does not establish negligence. Where a mere difference of opinion is involved, the court must enter a directed verdict for the defendant.[lxxi] The element of deviation from the standard of care often becomes a battle of the experts, and so long as the plaintiff’s expert will testify that the defendant’s conduct deviated from the standard of care, a genuine issue of fact remains for the jury. But even if the defendant is found to have deviated from the standard of care, that deviation alone will not support a claim for malpractice. The defendant’s deviation must have been the cause of the plaintiff’s injuries.

3. Proximate Causation.

The element of proximate causation requires the plaintiff to prove that the defendant’s deviation of the standard of care caused or contributed to the plaintiff’s injury.[lxxii] Proximate causation is measured using the familiar “but for” test. The defendant’s conduct is the proximate cause of the plaintiff’s injuries if the injuries would not have occurred “but for” the defendant’s conduct.[lxxiii] Proving that the defendant’s deviation from the standard of care caused the plaintiff’s harm often involves a complex medical analysis and thus requires, almost by default, that the plaintiff obtain expert testimony almost by default. There are exceptions. (see section “C. The Court’s View on the Role of Expert Witnesses” below).

If the plaintiff attempts to establish causation by an expert opinion, the opinion must state that it was “more likely than not” that the plaintiff would have had a better outcome had the defendant not deviated from the standard of care.[lxxiv] As one recent decision stated, “While a 49-percent chance of a better recover may be medically significant, it does not meet the legal requirements for proof of causation.”[lxxv] There must be a level of certainty to the expert’s opinion; the terms “chance” and “prognosis” are, by definition, too uncertain to establish causation.[lxxvi]

Numerous other issues arise when examining the element of proximate causation. A patient may have been him- or herself negligent in failing to follow the doctor’s instructions. More likely, this failure may be deemed to be the sole cause of the plaintiff’s injury.

B. The Court’s View on the Role of the Expert Witness

1. Admissibility of Expert Testimony

Nebraska’s Rules of Evidence allow expert witness to testify if the expert possess scientific, technical, or other special knowledge which will assist the jury’s understanding of the evidence or determine a fact in issue.[lxxvii] The proponent of the witness must show that the witness is qualified by knowledge, skill, experience, training, or education.[lxxviii] On cross examination, the expert must disclose the underlying facts or data upon which he or she basis their opinion testimony.[lxxix]

It is generally easy for parties to meet the requirements for the admission of expert testimony in medical malpractice cases. The proponent of an expert witness must establish three conditions for the expert’s opinion to be admitted. First, the expert must be qualified as such. Second, the expert’s opinion must assist the jury. Third, the expert must disclose the basis of his or her opinion on cross-examination.[lxxx] Meeting these requirements is not often difficult with proper preparation before the witness’ testimony. Most important is that the witness be prepped and that he or she have prepared for the opposing counsel’s cross examination.

2. When is Expert Testimony Necessary to Establish an Element of the Malpractice Claim?

Perhaps the most unresolved issue involving expert testimony in medical malpractice lawsuits is determining under what conditions the plaintiff need not produce expert testimony to support his or her lawsuit. Although experts are expensive, plaintiffs will rarely be able to establish a prima facie case of malpractice without their testimony. A prima facie case of medical malpractice may be proven either by expert testimony or by showing that the negligence of the professional was clearly within the comprehension of laymen.[lxxxi] The alternative to expert testimony is known as the “common-knowledge” exception.[lxxxii]

The common knowledge exception must be analyzed with respect to each individual element of the plaintiff’s prima facie case. For an element to be successfully established by common knowledge, the conduct in question must be extreme and obvious. Examples include failure to remove a surgical instrument from the paitient’s body or the amputation of the incorrect limp.[lxxxiii]The Nebraska Supreme Court’s most recent decision involving the application of the common-knowledge exception decided that the plaintiff could apply the exception to meet the elements of both the standard of care and the deviation from the standard of care, but not the element of proximate causation.[lxxxiv] So close…yet so far away. The plaintiffs were one element away from surviving the health provider’s motion from surviving the defendant’s motion for summary judgment, but their reliance on the common-knowledge exception fell short when they attempted to apply it to causation.

If one needed to rank the elements in terms of the necessity of expert witness testimony, establishing the element of proximate causation would rank number one. Expert testimony is almost always required to prove proximate causation.[lxxxv] It is rarely the case that a jury of laypersons will be competent to decide which, if any, of a plaintiff’s injuries were proximately caused by the health care provider without the aid of expert testimony.[lxxxvi] In a close second is the establishment of the standard of care. In extreme cases, it may be obvious even to the lay person that, whatever the standard of care was, it was clearly violated. Take the woman left dead on the waiting floor in New York, for example. In cases like these, where the misconduct is so extreme and obvious, the elements of standard of care and deviation are often lumped together; no matter what the standard of care was, this conduct clearly violated it. For that reason, deviation from the standard of care has to be lowest on the hierarchy. Even the Nebraska Supreme Court has noted that establishing this element “has the potential to be much more straightforward.”[lxxxvii] Of course, the consequence of failing to provide expert testimony necessary to establish one element of a prima facie case of malpractice, summary judgment, begs the question why a prudent litigator would not use the expert to establish all three elements and thereby bolster his client’s case.

[i] Neb. Rev. Stat. §§ 44-2801 – 44-2855.

[ii] Neb. Rev. Stat. § 44-2801.

[iii] Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 936, 663 N.W.2d 43, 64 (2003).

[iv] Neb. Rev. Stat. § 44-2811.

[v] Neb. Rev. Stat. § 44-2803.

[vi] Neb. Rev. Stat. § 71-101, as amended by 2007 Neb. Laws. L.B. 463.

[vii] Neb. Rev. Stat. § 44-2804.

[viii] Neb. Rev. Stat. § 44-2805.

[ix] Neb. Rev. Stat. §§ 71-401 – 71-459.

[x] Neb. Rev. Stat. § 44-2806.

[xi] Neb. Rev. Stat. § 44-2810.

[xii] Neb. Rev. Stat. § 44-2813.

[xiii] Neb. Rev. Stat. § 44-2816.

[xiv] Neb. Rev. Stat. § 44-2824(1)(a).

[xv] Neb. Rev. Stat. § 44-2827.

[xvi] Id.

[xvii] Neb. Rev. Stat. § 44-2827.01

[xviii] Neb. Rev. Stat. § 44-2824(1)(b).

[xix] Neb. Rev. Stat. § 44-2829(2)

[xx] Nebraska Department of Insurance Website, http://www.doi.ne.gov/notices/notc2007/notice11.pdf, accessed August 1, 2008.

[xxi] Neb. Rev. Stat. 44-2829(3).

[xxii] Neb. Rev. Stat. 44-2831.

[xxiii] Neb. Rev. Stat. § 44-2821(2).

[xxiv] Id.

[xxv] Id.

[xxvi] Neb. Rev. Stat. § 44-2821(4).

[xxvii] Neb. Rev. Stat. § 44-2821(3).

[xxviii] Neb. Rev. Stat. § 44-2836(3).

[xxix] Neb. Rev. Stat. § 44-2825(1).

[xxx] Neb. Rev. Stat. § 44-2825(2).

[xxxi] Neb. Rev. Stat. § 44-2825(3).

[xxxii] Neb. Rev. Stat. § 44-2830.

[xxxiii] Id.

[xxxiv] Neb. Rev. Stat. § 44-2832.

[xxxv] Neb. Rev. Stat. § 44-2833.

[xxxvi] Id.

[xxxvii] Id.

[xxxviii] Id.

[xxxix] Neb. Rev. Stat. § 44-2840.

[xl] Neb. Rev. Stat. § 44-2840(4).

[xli] Neb. Rev. Stat. § 44-2841(1).

[xlii] Id.

[xliii] Id.

[xliv] Neb. Rev. Stat. § 44-2843(3).

[xlv] Neb. Rev. Stat. § 44-2844(2).

[xlvi] Neb. Rev. Stat. § 44-2821(1).

[xlvii] Id.

[xlviii] Id.

[xlix] Neb. Rev. Stat. §§ 25-222, 44-2828.

[l] Neb. Rev. Stat. § 25-222.

[li] Lincoln Grain, Inc. v. Coopers & Lybrand, 215 Neb. 289, 294, 338 N.W.2d 594, 598 (1983).

[lii] Id., 215 Neb. at 294 (citing Borgia v. City of New York, 187 N.E.2d 777 (N.Y. 1962).

[liii] Neb. Rev. Stat. § 25-213.

[liv] Neb. Rev. Stat. § 48-2828. Absolute bars such as this are known as statutes of repose.

[lv] Neb. Rev. Stat. §§ 13-901 – 13-927.

[lvi] Neb. Rev. Stat. § 13-919(1).

[lvii] Id.

[lviii] State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 – 81-8,235.

[lix] Neb. Rev. Stat. §§ 81-8,227, 13-919(1).

[lx] Stoehr, Jeffrey L.,Esq., Assessment and Evaluation of the Medical Malpractice Case (Plaintiff’s Perspective) in Successful Medical Malpractice Suits, 15 (National Business Institute 2007).

[lxi] Thone v. Regional West Medical Center, 275 Neb. 238, 243, 745 N.W.2d 898, 903 (2008).

[lxii] Hoffart v. Hodge, 9 Neb.App. 161, 171, 609 N.W.2d 397, 406 (2000).

[lxiii] Mahnke v. State, 276 Neb. 57, 58-9 751 N.W.2d 635, 638 (2008).

[lxiv] Nebraska Jury Instructions, Second Edition, NJI2d Civ. 12.01(The Nebraska Jury Instructions are prepared by the Nebraska Supreme Court Committee on Practice and Procedure).

[lxv] Fales v. Books, 253 Neb. 491, 497, 570 N.W.2d 841, 844 (1997).

[lxvi] Id., qouting Wentling v. Jenny, 206 Neb. 335, 338, 293 N.W.2d 76, 78-79 (1980).

[lxvii] Id.

[lxviii] Id.

[lxix] Fales, 253 Neb. at 497-98, 570 N.W.2d at 844-45.

[lxx] Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).

[lxxi] Kortus v. Jensen, 195 Neb. 261, 270, 237 N.W.2d 845, 851 (1976). Jensen was distinguished two years later in Greenberg v. Bishop Clarkson Memorial Hospital, 201 Neb. 215, 266 N.W.2d 902 (1978). However, the Supreme Court recently cited Jensen favorably in Wolski v. Wandel, 275 Neb. 266, 275, 746 N.W.2d 143, 151 (2008) for the exact proposition as quoted above. According to the Court in Wolski, “if the expert believed there had been a deviation from the standard of care, it would have been a simple matter…to have said exactly that.” Wolski, 275 Neb. at 274, 746 N.W.2d at 151 (quoting Jensen).

[lxxii] Thone, 275 Neb. at 250, 745 N.W.2d at 900.

[lxxiii] Worth v.Kolbeck, 273 Neb. 163, 170, 728 N.W.2d 282, 290 (2007).

[lxxiv] Rankin v. Stetson, 275 Neb. 775, 786-87, 749 N.W.2d 460, 468-69 (2008).

[lxxv] Id.

[lxxvi] Id.

[lxxvii] Neb. Rev. Stat. § 27-702.

[lxxviii] Id.

[lxxix] Neb. Rev. Stat. § 27-705.

[lxxx] Rankin, 275 Neb. at 781, 749 N.W.2d

[lxxxi] White v. Lovgren, 222 Neb. 771, 773, 387 N.W.2d 483, 485 (1986).

[lxxxii] Thone v. Reg. West Medical Center, 275 Neb. 238, 745 N.W.2d 898 (2008).

[lxxxiii] Thone, 275 Neb. at 244, 745 N.W.2d at 904.

[lxxxiv] Thone, supra.

[lxxxv] Thone, 275 Neb. at 250, 745 N.W.2d at 908.

[lxxxvi] Id.

[lxxxvii] Thone. , 275 Neb. at 249, 745 N.W.2d at 907.

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Categories : Medical Malpractice

Medical Records Access Guide Iowa

25 09 2008

Responding to requests for Medical Records for Use in
Judicial or Administrative Proceedings

Iowa

I. Patient Request for Access to or Copies of Medical Records.

All requests by the patient for access to, or copies of, the patient’s medical record must be in writing. A health care provider must grant a patient access to or copies of his or her medical records within thirty (30) days of receipt of the request unless the requested information is not accessible or maintained onsite, in which event the health care provider shall take action no later than 60 days from the receipt of the request. If unable to act within 30 or 60 days as appropriate, the health care provider may extend the time by no more than 30 days and shall provide the patient with a written statement of the reasons for the delay and the date by which the request will be completed.

II. Patient Authorization to Provide Medical Records to Third Parties.

A patient may request that a health care provider make available the patient’s medical records to a third party. If the patient requests that the patient’s medical records be turned over to a third party, such as the patient’s attorney, and the health care provider determines that disclosure is not likely to endanger the life or physical safety of the patient or another person, then the health care provider may provide the record if the patient has executed a valid written authorization. However, the only information that may be disclosed is the information specifically authorized for disclosure in the written authorization; do not over-disclose. When permitting the use of a patient authorization, a health care provider must use a HIPAA compliant authorization. A sample HIPAA compliant authorization form is available at the end of these materials, marked as Appendix A.

III. Requests For Deceased or Incapacitated Patients’ Medical Records.

If an individual is legally incapable of acting for him or herself, a health care provider may disclose the individual’s records only to the individual’s “personal representative.” A personal representative is defined as an executor, administrator, or other person who has authority to act on behalf of the deceased individual or the individual’s estate. Proof of appointment to such personal representative capacity can often be obtained from the county register in the county where probate of the estate has been commenced. Likewise, when a patient lacks the legal capacity to give consent to medical treatment, a health care provider may release the patient’s medical records only to a personal representative of the patient. For purposes of an incapacitated individual, a personal representative must be someone that has authority under state law to make health care decisions for the incapacitated individual. A health care provider may also disclose deceased patients’ medical records to funeral directors as needed, and to coroners or medical examiners to identify the deceased person, determine the cause of death, and perform other functions authorized by law.

IV. Requests Via Court Order.

A health care provider must disclose protected health information contained in a medical record to comply with a court order, including an order of an administrative tribunal or agency. Such disclosures must be limited to the protected health information expressly authorized by the order. Again, do not over-disclose. If such an order requests the production of a patient’s medical record, authorization from the patient is not necessary and the health care provider must comply with the requirements of the order. A health care provider should, but is not required to, notify the patient that the record must be disclosed prior to releasing the patient’s medical records pursuant to the order.

V. Requests Via Criminal Subpoena, Search Warrant or Grand Jury Subpoena.

Criminal subpoenas, search warrants, and grand jury subpoenas that request a patient’s medical records raise numerous legal issues. If a health care provider receives a criminal subpoena, search warrant, or grand jury subpoena, then the health care provider should contact legal counsel immediately.

VI. Requests Via Civil Subpoena, Discovery Request, or Other Lawful Process

A health care provider cannot disclose medical records of any kind, or for any reason, without the patient’s written authorization or a court order.

NOTE: All court orders, subpoenas, and warrants should be issued from a court of competent jurisdiction. This means the court has jurisdiction over the health care provider and/or health care provider’s medical practice. For example, a Texas court does not have jurisdiction over a Nebraska medical practice. A Texas court, therefore, cannot order or subpoena documents from a Nebraska medical practice and the proper method to address such an order or subpoena can get complicated. In the event a health care provider receives a subpoena or court order from a jurisdiction in which the health care provider does not practice medicine, then the health care provider should immediately contact legal counsel.

VII. Requests from the Workers’ Compensation Court, Workers’ Compensation Insurance Carrier, Employers or Employees.

A health care provider can disclose an injured or ill patient’s protected health information contained in a medical record without his or her authorization when requested for purposes of adjudicating the individual’s workers’ compensation claim. Medical records “relevant” to workers’ compensation cases are to be made available upon request to the patient’s employer, workers’ compensation insurance carrier, third‑party administrator of workers’ compensation benefits, and the Workers’ Compensation Court.

In addition, individuals do not have a right to request that a health care provider restrict a disclosure of protected health information about them for workers’ compensation purposes. If a requested disclosure is required by law or authorized by, and necessary to comply with, a workers’ compensation or similar law, the relevant documents must be provided.

VIII. “Super-Confidential” Medical Records: Records Pertaining to Mental Health, Psychotherapy Notes, Substance Abuse, Communicable Diseases, and Sexually Transmitted Diseases (“STDs”).

Medical records regarding mental health, substance abuse, communicable and sexually transmitted diseases, often called “super-confidential” records, are subject to a higher standard of confidentiality and release due to their highly sensitive and private nature. Below is a brief description of the requirements for disclosure of such sensitive materials. In the alternative, a health care provider may elect to produce the otherwise properly requested record with the “super-confidential” portions of the medical record redacted. The redacted record can then be produced with an accompanying letter stating that the health care provider is in possession of additional records that cannot be released absent a court order or the patient’s written consent.

(i) Mental Health. “Mental health information” means oral, written, or recorded information which indicates the identity of an individual receiving professional services and which relates to the diagnosis, course, or treatment of the individual’s mental or emotional condition. Generally, mental health information may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Mental health records may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative. However, in either case, if the treating psychiatrist, psychologist, or mental health provider determines that release of the mental health records would not be in the best interests of the patient or that disclosure is reasonably likely to endanger the life or physical safety of the patient or another person, the mental health records may be withheld. Psychological test material is confidential, is not subject to a subpoena, search warrant, or discovery process, and cannot be disclosed to the patient or any other party; but such information may be released to a psychologist upon written authorization from the patient or the patient’s authorized representative.

(ii) Psychotherapy Notes. HIPPA provides increased standards for release of a “psychotherapy notes” of a patient. “Psychotherapy notes” are defined as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session and that are separated from the rest of the individual’s medical record. A health care provider must obtain an authorization specific to psychotherapy notes for any use or disclosure of psychotherapy notes, except: (i) use by the originator of the psychotherapy notes for treatment; (ii) use or disclosure by the health care provider for its own training programs; (iii) use or disclosure by the health care provider to defend itself in a legal action or other proceeding brought by the individual; (iv) a disclosure require by law; or (v) to prevent a threat to a person or the public.

(iii) Substance Abuse. Substance abuse treatment records may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Substance abuse treatment records may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative. However, in either case, disclosure is subject to the health care provider’s determination that disclosure is not likely to endanger the life or physical safety of the patient or another person. The identity of the person seeking substance abuse treatment is confidential, cannot be disclosed to law enforcement, and is not admissible in a legal proceeding unless authorized by the patient. If the patient is a minor, the health care provider cannot disclose the minor patient’s identity to the parent without the minor patient’s consent. Substance abuse treatment facility records and/or involuntary commitment records are confidential unless there is an emergency or the patient provides written authorization. Absent an emergency or patient authorization, substance abuse treatment facility records and/or involuntary commitment records are not subject to a subpoena, search warrant, or discovery process.

(iv) Federally Funded Substance Abuse Programs. Substance abuse records of persons treated in federally funded programs may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Substance abuse treatment records of persons treated in federally funded programs may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative, which contains the following special no re-disclosure clause:

(v) Communicable Diseases and Sexually Transmitted Diseases. Reports of communicable diseases, sexually transmitted diseases and HIV/AIDS, which are required to be given to the Iowa Department of Human Services are confidential, unless the information is de-identified, and if not de-identified are not subject to a subpoena, search warrant, or discovery process.

(vi) HIV Testing. Any information, including reports and records, obtained, submitted, and maintained concerning HIV/AIDS testing and counseling is confidential and not subject to a subpoena, search warrant or discovery process, except such information may be disclosed upon a written release from the patient, subject to the health care provider’s determination that disclosure will not likely endanger the life or physical safety of the patient or another person. Absent such an authorization, such information may only be disclosed pursuant to a special court order, which, among other things, shows a compelling need and protects the information from re-disclosure. If a sexual offender is tested, the results may be disclosed to the victim, a counselor designated by the victim, the victim’s physician if requested by the victim, the parent, guardian, or custodian of the victim if the victim is a minor, or to a specified third party designated in a written, informed consent signed by the offender.

IX. Permissible Charges for Copying and Reproduction of Medical Records.

(i) Allowable Charges for Copies – Patient Requests, Generally. A health care provider cannot charge a patient for access to the patient’s medical records. However, the provider may charge a limited amount to the patient or the patient’s authorized representative for a copy of a medical record. The health care provider may charge a patient or his or her authorized personal representative a “reasonable cost‑based fee” for copying. A reasonable cost-based fee includes the cost of supplies and labor required to produce the copy. Postage may also be charged if the copy is to be sent to the patient or a personal representative via a mail delivery service. A provider may not charge a “handling” fee or charge for the costs of retrieving the record.

However, if the health care provider and patient agree that the health care provider will provide the patient with a summary or explanation of the patient’s medical record, the health care provider may charge preparatory fees for the summary, so long as the parties agree to the preparatory fees up front.

(ii) Allowable Charges for Copies – Workers’ Compensation Requests. If the request for a patient medical record is for use in a workers’ compensation proceeding, the initial and final assessments shall be provided free of charge when requested for the purpose of determining payment and liability. However, if copies of additional records or reports are requested, the health care provider can charge the actual costs of providing such copies. Such actual costs include the cost of supplies, labor, and postage, and cannot exceed:

(a) $20 for 1 to 20 pages; plus

(b) $1 for each additional page over 20 up to 30; plus

(d) 25 cents for each additional page over 100 up to 200; plus

(e) 10 cents for each additional page over 200

(iii) Allowable Charges for Copies – Other Third Party Requests. When a request for a patient’s medical records is from a third party not otherwise described above, the health care provider may charge a reasonable fee for providing copies.

Appendix A – Authorization Form

AUTHORIZATION TO USE AND/OR DISCLOSE HEALTH INFORMATION

Authorization. The undersigned hereby authorizes and its employees to use and/or disclose to for the following purpose(s) (may state “per request”)

the following health information (may state “entire medical record”): including, if applicable, the following health information related to testing, diagnosis, and/or treatment for (please initial applicable line): _________ HIV (AIDS virus), _________ sexually transmitted diseases, _________ mental health, or __________ drug and/or alcohol abuse.

Expiration. This authorization shall expire upon the earliest of (expiration date or event) or one hundred eighty (180) days from the date of this authorization. After the expiration date, we will need to obtain a new authorization from you if required by law.

By signing below, you acknowledge receipt of a signed copy of this authorization.

_________________________________ Printed Name	________________________________ Date
_________________________________ Signature

Note: If signed by someone other than the patient, we need written proof of your authority.

Appendix B – Letter to Third Party

Sample Letter to a Third Party Who is Requesting Disclosure of Protected Health Care Information for Use in a Judicial or Administrative Proceeding

Dear [Requesting Third Party],

We have received your [subpoena, discovery request, etc.] requesting that this office disclose to you certain health care records relating to [patient’s name]. Pursuant to the administrative simplification requirements of the Health Insurance Portability and Accountability Act of 1996 and other applicable state and federal laws, this office may not disclose the patient’s medical records for use in a judicial or administrative proceeding unless specified conditions have been met.

Following a review of your request, we have determined that you have not provided sufficient documentation. It is the policy of this office to require the receipt of documentation satisfying at least one of the following three conditions prior to making any disclosures of individually identifiable health care information.

(1) A written authorization from the patient that meets the requirements of 45 C.F.R. § 164.508(c);

(2) An order from a court or administrative tribunal directing that this office disclose the requested materials; or

(3) A written statement along with copies of all related documentation from you, the requesting party, that establishes:

(a) The party requesting the information has made a good faith opportunity to provide written notice to the patient;

(b) The notice included sufficient information about the litigation to permit the patient to raise an objection to the court or agency; and

(c) The time for the Patient to raise objections to the court/tribunal has elapsed and either no objections were filed or the objection has been resolved in the requesting party’s favor.

A written statement along with copies of all related documentation from you, the requesting party, that establishes:

(a) The parties to the litigation have agreed to a “qualified protective order,” as defined by 45 C.F.R. § 164.512(e)(v), that has been presented to the court/administrative tribunal; or

(b) The party seeking the disclosure has requested a qualified protective order, as defined above, from the court/administrative tribunal.

If you have questions about this office’s disclosure policy with regard to health information, please feel free to contact [Name of Appropriate Contact at Your Office] for further clarification.

Sincerely,

Appendix C – Letter to Patient

Dear [Patient’s Name],

If you have any questions about this office’s disclosure policy with regard to your health care records, please feel free to contact [name and phone number of appropriate contact at your office].

Very truly yours,

For more information, contact info@pvwlaw.com

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Categories : Medical Records Guides

Medical Records Access Guide Minnesota

25 09 2008

Responding to requests for Medical Records for Use in
Judicial or Administrative Proceedings

Minnesota

Parties to litigation often request a patient’s medical records for use as proof or lack thereof of a causal connection between an event and the purported injuries resulting from it. Requests for medical records for use in judicial or administrative proceedings generally take the form of an authorization from the patient consenting to release of the medial record, an order from the presiding court or administrative agency, or a subpoena from the opposing party in a civil proceeding. The Medical Records Guide analyzes what is required of a health care provider when confronted with a request for medical records. Included in this guide are the requirements of a health care provider under the Health Insurance Portability and Accountability Act (HIPAA) and Minnesota state law to the extent state law is not preempted by HIPAA. However, if Minnesota state laws provide greater privacy protections or privacy rights with respect to individually identifiable health information than HIPAA does, the state law will prevail. Please note that there are special rules and regulations regarding records containing information related to mental health, psychotherapy notes, substance abuse treatment, and communicable and sexually transmitted diseases. As a result, specific sections have been included for medical records containing those types of information.

II. Patient Authorization to Provide Medical Records to Third Parties.

A patient may request that a health care provider make available the patient’s medical records to a third party. If the patient requests that the patient’s medical records be turned over to a third party, such as the patient’s attorney, and the health care provider determines that disclosure is not likely to endanger the life or physical safety of the patient or another person, the health care provider should provide the record if the patient has executed a valid written authorization. However, the only information that may be disclosed is the information specifically authorized for disclosure in the written authorization; do not over-disclose. When permitting the use of a patient authorization, a health care provider must use a HIPAA compliant authorization.

Under HIPAA, a patient’s authorization to disclose his or her protected health information to a third party must expire, by its terms, either upon a) the occurrence of a specified event or b) a date certain. Under federal law, there is no limit on how far in the future this date certain can be. Thus, a provider can select as long a time period as desired and still comply with HIPAA. To comply with Minnesota law, however, the patient’s consent to release his or her medical record is generally valid only for one year or a lesser period specified in the consent. This Minnesota law is not preempted by HIPAA.

Providers in Minnesota are thus subject to two standards regarding a patient’s authorization to release his or her medical record. The Minnesota law placing an absolute expiration on the patient’s , however, only applies to disclosures of the patient’s medical record. Thus, a single authorization form can be drafted in such a way as to provide that it will expire in 180 days only with respect to the disclosure of medical records while still having a longer “shelf life” for purposes of disclosures other than releases of medical records (i.e., verbal discussions with the patient’s family members).

A sample HIPAA- and Minnsota- compliant authorization form is available at the end of these materials, marked as Appendix A.

III. Requests For Deceased or Incapacitated Patients’ Medical Records.

If an individual is legally incapable of acting for him or herself, a health care provider may disclose the individual’s records only to the individual’s “personal representative.” A personal representative is defined as an executor, administrator, or other person who has authority to act on behalf of the deceased individual or the individual’s estate. Proof of appointment to such personal representative capacity can often be obtained from the county register in the county where probate of the estate has been commenced. Likewise, when a patient lacks the legal capacity to give consent to medical treatment, a health care practitioner may release the patient’s medical records only to a personal representative of the patient. For purposes of an incapacitated individual, a personal representative must be someone that has authority under state law to make health care decisions for the incapacitated individual. A health care provider may also disclose deceased patients’ medical records to funeral directors as needed, and to coroners or medical examiners to identify the deceased person, determine the cause of death, and perform other functions authorized by law.

A health care provider must disclose protected health information contained in a medical record to comply with a court order, including an order of an administrative tribunal or agency. Such disclosures must be limited to the protected health information expressly authorized by the order; again, do not over-disclose. If a court order requests the production of a patient’s medical record, authorization from the patient is not necessary and the health care provider must comply with the requirements of the order. A health care provider should, but is not required to, notify the patient that the record must be disclosed prior to releasing the patient’s medical records pursuant to the order.

V. Requests Via Criminal Subpoena, Search Warrant or Grand Jury Subpoena.

Criminal subpoenas, search warrants, and grand jury subpoenas that request a patient’s medical records raise numerous legal issues. If a health care provider receives a criminal subpoena, search warrant or a grand jury subpoena, the health care provider should contact legal counsel immediately.

VI. Requests Via Civil Subpoena, Discovery Request, or Other Lawful Process.

It is common in civil litigation matters involving personal injuries for a party to request a patient’s medical records through the use of a subpoena, discovery request or other lawful process without an accompanying order signed by a court or administrative tribunal. The most common request will be a subpoena issued by a party’s attorney for the medical records of a client. The document will generally be captioned “Subpoena” or at least contain the term “Subpoena” in the caption, along with the names of two non-governmental opposing parties. The subpoena should also identify the court presiding over the action. Prior to disclosing any information, the provider should verify that the court is a court of competent jurisdiction and that the subpoena is signed by one of the parties’ attorneys or a notary public.

Upon receipt of a subpoena, discovery request or other lawful process requesting a patient’s medical records, the health care provider should immediately send a letter to the patient informing the patient as to the existence of the subpoena, and giving the patient an opportunity to object to the release of the patient’s medical records. See Appendix B for an example of such a letter to the patient. Prior to providing any medical records, the health care provider must ensure that it has received, along with the subpoena, “satisfactory assurance” that the patient whose records are being requested has received notice of the subpoena or request and has not objected to the request. A health care provider should be satisfied that reasonable efforts have been made by the requesting party to ensure that the patient has been given notice of the request or that reasonable efforts have been made to secure a qualified protective order; one of the following three types of documentation will suffice for a showing of reasonable efforts:

(i) An order from a court or administrative agency;

(ii) A written, HIPAA compliant, authorization from the patient allowing disclosure of the medical record;

(iii) A written statement from the requesting party and accompanying documentation demonstrating that:

NOTE: All court orders, subpoenas, and warrants discussed in Sections IV, V, and VI above should be issued from a court of competent jurisdiction. This means the court has jurisdiction over the health care provider and/or health care provider’s medical practice. For example, a Texas court does not have jurisdiction over a Nebraska medical practice. A Texas court, therefore, cannot order or subpoena documents from a Nebraska medical practice and the proper method to address such an order or subpoena may get complicated. In the event a health care provider receives a subpoena or court order from a jurisdiction in which the health care provider does not practice medicine, the health care provider should immediately contact legal counsel.

VII. Requests from the Workers’ Compensation Court, Workers’ Compensation Insurance Carrier, Employers or Employees.

A health care provider may disclose an injured or ill worker’s protected health information contained in a medical record without his or her authorization when requested for purposes of adjudicating the individual’s workers’ compensation claim. Medical records “relevant” to workers’ compensation cases are to be made available upon request to the patient’s employer, workers’ compensation insurance carrier, third‑party administrator of workers’ compensation benefits, and the Workers’ Compensation Court.

VIII. “Super-Confidential” Medical Records: Records Pertaining to Mental Health, Psychotherapy Notes, Substance Abuse, Communicable Diseases and Sexually Transmitted Diseases (“STDs”).

Medical records regarding mental health, substance abuse, communicable and sexually transmitted diseases, often called “super-confidential” records, are subject to a higher standard of confidentiality and release due to their highly sensitive and private nature. Below is a brief description of the requirements for disclosure of such sensitive material. In the alternative, a health care provider may elect to produce the otherwise properly requested record with the “super-confidential” portions of the medical record redacted. The redacted record can then be produced with an accompanying letter stating that the health care provider is in possession of additional records that cannot be released absent a court order or the patient’s written consent.

(i) Mental Health. “Mental health information” means oral, written, or recorded information which indicates the identity of an individual receiving professional services and which relates to the diagnosis, course, or treatment of the individual’s mental or emotional condition. Generally, mental health information may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Mental health records may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative. However, in either case, if the treating psychiatrist, psychologist, or mental health practitioner determines that release of the mental health records would not be in the best interests of the patient or that disclosure is reasonably likely to endanger the life or physical safety of the patient or another person, the mental health records may be withheld. Psychological test material is confidential, is not subject to a subpoena, search warrant, or discovery process, and cannot be disclosed to the patient or any other party; but such information may be released to a psychologist upon written authorization from the patient or the patient’s authorized representative.

(ii) Psychotherapy Notes. HIPAA provides increased standards for release of a “psychotherapy notes” of a patient. “Psychotherapy notes” are defined as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session and that are separated from the rest of the individual’s medical record. A health care provider must obtain an authorization specific to psychotherapy notes for any use or disclosure of psychotherapy notes, except: (i) use by the originator of the psychotherapy notes for treatment; (ii) use or disclosure by the health care provider for its own training programs; (iii) use or disclosure by the health care provider to defend itself in a legal action or other proceeding brought by the individual; (iv) a disclosure require by law; or (v) to prevent a threat to a person or the public.

(iv) Federally Funded Substance Abuse Programs. Substance abuse records of persons treated in federally funded programs may be disclosed to the patient or the patient’s authorized representative upon written request by the patient or the patient’s authorized representative. Substance abuse treatment records of persons treated in federally funded programs may also be disclosed to a third party pursuant to a written authorization signed by the patient or the patient’s authorized representative, which contains the following special no re-disclosure clause:

(v) Communicable Diseases and Sexually Transmitted Diseases. Reports of communicable diseases, sexually transmitted diseases and HIV/AIDS, which are required to be given to the Department of Public Health and Environment are confidential, unless the information is de-identified, and if not de-identified are not subject to a subpoena, search warrant, or discovery process.

IX. Permissible Charges for Copying and Reproduction of Medical Records.

Under Minnesota state law, when a provider makes copies of patient records upon a patient’s request, the provider may charge the patient no more than 75 cents per page, plus ten dollars for time spent retrieving and copying the records. This limitation does not apply to x-rays. The provider may charge no more than the actual cost of reproducing the x-rays, plus no more than ten dollars for the time spent retrieving and copying the x-rays.

NOTE: Although this Section IV has focused on the allowable fees for the production of documents, to the extent a health care provider is asked to provide expert testimony, deposition, or a narrative report on a specific subject, the health care provider may set his/her/its fees for services in advance pursuant to a contract or fee schedule.

Appendix A – Authorization Form

AUTHORIZATION TO USE AND/OR DISCLOSE HEALTH INFORMATION

Authorization. The undersigned hereby authorizes and its employees to use and/or disclose to for the following purpose(s) (may state “per my request”)

the following health information (may state “entire medical record”):

Expiration. This authorization shall expire with respect to your medical records one year from the date of your signature unless you provide for an earlier expiration date here:__________. After the expiration date, we will need to obtain a new authorization from you if required by law. With respect to information other than your medical records, this authorization shall expire upon the earliest of (expiration date or event).

By signing below, you acknowledge receipt of a signed copy of this authorization.

_________________________________ Printed Name	________________________________ Date
_________________________________ Signature

Note: If signed by someone other than the patient, we need written proof of your authority.

Appendix B – Letter to Third Party

Sample Letter to a Third Party Who is Requesting Disclosure of Protected Health Care Information for Use in a Judicial or Administrative Proceeding

Dear [Requesting Third Party];