Medical Mutual Insurance Company of Maine: Risk Management

Frequently Asked Questions related to risk management.

Risk Management » FAQs

Medical Mutual’s risk managers field numerous risk-related questions every day. Below you’ll find the questions we hear most frequently.

Closing a Practice

I am closing my office practice in the near future. Do I need to keep the original medical records or may I give them to my patients? How do I notify my patients that I am closing my practice?
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Please visit the "Closing Your Practice" Practice Tip

Controlled Substances

Can a provider write more than one schedule II prescription at a time for a patient?
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Yes. The Controlled Substance Act was subsequently revised to permit the writing of multiple schedule II prescriptions.

“Under the new regulation, which became effective December 19, 2007, an individual practitioner may issue multiple prescriptions authorizing the patient to receive a total of up to a 90-day supply of a schedule II controlled substance provided the following conditions are met:
1. Each separate prescription is issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice.
2. The individual practitioner provides written instructions on each prescription (other than the first prescription, if the prescribing practitioner intends for that prescription to be filled immediately) indicating the earliest date on which a pharmacy may fill each prescription.
3. The individual practitioner concludes that providing the patient with multiple prescriptions in this manner does not create an undue risk of diversion or abuse.
4. The issuance of multiple prescriptions is permissible under applicable state laws.
5. The individual practitioner complies fully with all other applicable requirements under the Controlled Substances Act and Code of Federal Regulations, as well as any additional requirements under state law. “
The DEA cautions providers that the rules are not meant to suggest that they should only see their patients every 90 days. The decision regarding how often to see a patient should be based on the patient’s condition, sound medical judgment and established standards of care.
(DEA Controlled Substance Act Practitioner’s Manual Section V)
Is it acceptable for our practice to mail prescriptions for schedule II narcotics to our patients?
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Yes. The Controlled Substance Act requirements were clarified in 2005 to state, "the physician may mail the prescription to the patient or pharmacy."
(Federal Register: August m26, 2005; volume 70; number 165; Notices page 50408-50409)
Where can I find the federal regulations regarding the prescribing, dispensing and administering of controlled substances?
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Please visit the U.S. Dept. of Justice, Drug Enforcement Administration website
(Select Practitioner's Manual)

Curbside Consults

Are there risks associated with providing informal “curbside consults”?
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There are challenges and risks associated with this practice. Informal or "curbside" consultations are a recognized component of medical practice. However, this practice with its lack of formality, lack of record keeping, ease of initiation and convenience can raise liability concerns. To minimize risks and provide quality care, guidelines should be considered when participating in informal consultations. Please reference our practice tip for additional information.

Discharge After Ambulatory Surgery

Does the patient have to be discharged in the company of a responsible adult?
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Yes. The Medicare Conditions of Participation, the Joint Commission Standards, the American Society of Anesthesiologist’s Practice Guidelines for Postanesthetic Care and the American Society of PeriAnesthesia Nurses Standards of Practice all specify that patients must be discharged in the company of a responsible adult when they have received general, regional, moderate or deep sedation.
What defines a “responsible adult”?
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To be considered responsible, the adult must be physically and mentally able to make decisions in the best interest of the patient (if necessary), should understand the post anesthesia care instructions and be willing to assist the patient with postoperative complications.
What should we do if the patient comes in for his/her procedure and does not have a responsible adult with him or available?
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Some facilities address this potential risk during the booking process by asking the patient to provide the name and contact information of their designated responsible adult. If a responsible adult is not available, the procedure should be cancelled and rescheduled or done with local anesthesia (if appropriate). Some hospitals offer a “respite” or “hotel” bed in the hospital, where the patient pays a fee to stay overnight without clinical care but with immediate access to emergency assistance.
What if, after the procedure, we discover that the patient has no responsible adult available?
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Careful screening and good patient education can greatly reduce the risk of this situation. In addition, the organization should have a protocol to address this scenario that has been developed in collaboration with facility and community resources.

Do not permit the patient to drive himself home. Discuss the safety concerns with operating a motor vehicle under sedation. Warn the patient that the authorities will be notified that he is a potentially impaired driver.

Do not use a taxi – taxi drivers are not considered responsible adults. Do not permit or require staff to provide rides home using their personal vehicles.

Informed Consent

Can the physician performing a procedure sign as the "witness" on the consent form?
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The physician performing the procedure should not be the witness to the patient's signature as it may give the appearance of a conflict of interest. It also may create an environment in which the patient feels pressured to sign the consent form.
Is informed consent required for immunizations?
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The National Childhood Vaccine Injury Act of 1986 (NCVIA) established the requirement that Vaccine Information Statements (VIS) be provided to adults or the parent/legal guardian of children receiving vaccinations. The NCVIA does not speak to informed consent (a Vaccine Information Statement does not constitute informed consent – it is an adjunct to the process). Therefore it is important for providers to review state and local laws as well as organizational policies. For example, signed parental consent is usually required for administration of vaccines in a school setting based on either state law or school district policies.

In the physician office setting, best practices include:
- Provide each vaccine recipient and/or their parent/legal guardian with a copy of the most current appropriate VIS before the vaccine is administered
- Provide each vaccine recipient and/or their parent/legal guardian the opportunity to review the material in the VIS and ask questions
- Document the date the VIS was given to the patient, parent/guardian and the publication date of the VIS (located on the bottom)
- Discuss the risks and benefits of the vaccine as described in the VIS with the patient and parent/legal guardian. Document their understanding of the information provided and their decision regarding vaccination in the medical record.
Can an adolescent receive immunizations without parental consent?
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Regulations governing minor’s rights to consent to healthcare vary by state. Utilize the guidance provided in our practice tip, Minors and the Right to Consent to Health Care Treatment in Maine, New Hampshire and Vermont, to assist you in your decision making. Be aware that the National Childhood Vaccine Injury Act of 1986 requires that Vaccine Information Statements (VIS) be given to the vaccine recipient and/or the parent or legal guardian prior to vaccination. The intent is to provide education on the risks and benefits of the vaccine. Capacity of this individual to understand the information in the VIS must be determined to meet the intent of the law and to ensure informed consent. See also the Pediatrics article, Legal Basis of Consent for Health Care and Vaccination for Adolescents available at http://pediatrics.aappublications.org/cgi/reprint/121/Supplement_1/S85

Medical Emergency Equipment

Do I need to have equipment available to respond to medical emergencies in my practice?
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Many providers are misinformed that the availability of emergency equipment and medication in the practice increases liability exposure. In actuality, failure to plan and lack of adequate preparation to provide emergency care may lead to increased liability. Preparation begins with a thorough office system evaluation to determine the unique characteristics of the office setting and the patients served. Based on this evaluation, a focused plan can be developed that uses strategies designed to meet the specific needs of your patient population. Please reference the practice tips for adult patients and pediatric patients for additional information regarding office preparedness.

Medical Records:

EMR
- My office will be converting to an electronic medical record. How do I define the contents of the EMR?
  Show / Hide Answer
  The American Health Information Management Association (AHIMA) has a published guide on its website. See "Practice Briefs" and click on "E-HIM ® Electronic Records:" and then click "Defining and Disclosing the Designated Record Set and the Legal Health Record."
Patient Request to Review
- I have a patient who is demanding to review his record today when he arrives at the office. He states I will be violating HIPAA if I do not allow his review, today. Please advise.
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  A patient has the right to review his/her medical record. The office has the right to establish policy that will be followed for all similar requests. Sample Policy—(not all inclusive)
  - The practice manager with the physician or mid-level provider will set a date and time (usually a half hour) for this review. HIPAA Privacy Rules require the appointment be set within 30 days of the request.
  - The practice manager will stay with the patient during record review (assure pages are not removed or written on.)
  - Copying, if requested, will be completed within a specified time frame---but not immediately.
  - If the patient has questions regarding the licensed provider’s documentation, make an appointment with the patient to meet with the provider and ask his/her questions.
  - If the patient appears unhappy or accusatory, the practice manager should notify the MMIC Risk Management or Claims Departments.
  (Recommend review of these two web sites—there are situations when a denial of review of the medical record is recommended under HIPAA.): http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/healthit/eaccess.pdf
  
  http://www.hhs.gov/ocr/privacy/index.html
Release
- What requirements must be met in releasing an adult patient’s record after the patient’s death?
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  Per HIPAA, a record of a patient who has expired may only be released to the executor of the patient’s will or a court appointed representative.
- Can a practice refuse to release a patient's records on the grounds of an outstanding bill?
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  No.
  
  According to the Department of Health and Human Services, “a provider cannot deny you a copy of your records because you have not paid for the services you have received.”
  http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/medicalrecords.html
  http://edocket.access.gpo.gov/cfr_2002/octqtr/pdf/45cfr164.524.pdf
  
  Maine
  In Maine the records must be made available to the patient within a reasonable time. Fine may be applied.
  
  “2. Access. Upon written authorization executed in accordance with section 1711-C, subsection 3, a health care practitioner shall release copies of all treatment records of a patient or a narrative containing all relevant information in the treatment records to the patient. The health care practitioner may exclude from the copies of treatment records released any personal notes that are not directly related to the patient's past or future treatment and any information related to a clinical trial sponsored, authorized or regulated by the federal Food and Drug Administration. The copies or narrative must be released to the designated person within a reasonable time.”
  http://www.mainelegislature.org/legis/statutes/22/title22sec1711-B.html
  
  New Hampshire
  
  In New Hampshire, records must be made available to patients within 30 days of a request. The patient has the right to sue for release.
  
  501.02(f) A licensee shall promptly honor requests made by a patient or an authorized agent of a patient, for complete copies of the patient's medical record in accordance with the following standards:
  1. A licensee shall be ultimately responsible for transferring copies of medical records regardless of whether the licensee has delegated this task to another person or organization;
  2. Upon the patient's request, the licensee shall provide copies of the medical records, either a specified portion or the entire contents depending on the patient's request, regardless of whether the licensee created the records or the records were provided to the licensee by another health care provider;
  NH Board of Registration in Medicine 501.02(f)
  http://gencourt.state.nh.us/rules/state_agencies/med100-500.html
  
  Vermont
  In Vermont, failing to provide records when requested is grounds for disciplinary action:
  
  (8) Failing to make available promptly to a person using professional health care services, that person's representative, succeeding health care professionals or institutions, upon written request and direction of the person using professional health care services, copies of that person's records in the possession or under the control of the licensed practitioner.
  http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=03&Chapter=005&Section=00129a
  
  “(10) failure to make available promptly to a person using professional health care services, that person's representative, succeeding health care professionals or institutions, when given proper written request and direction of the person using professional health care services, copies of that person's records in the possession or under the control of the licensed practitioner;http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=26&Chapter=023&Section=01354
Requests for notarized copies
- When a record release from a law office requests notarized copies of medical records, are physician office practices required to comply with notarization?
  Show / Hide Answer
  Based on discussions with law firms in Maine, New Hampshire and Vermont; Medical Mutual believes copies of medical records provided in response to an initial request for records do not need to be notarized. Instead, provide the copy of the records with a letter attesting that the enclosed records constitute a complete copy of the records requested. For example: "the undersigned certifies that the enclosed records are a complete copy of the records requested on behalf of (Patient's Name)".
  
  If a formal subpoena is part of the records request paperwork, we recommend consulting with legal counsel.
Retention
- How long should we keep medical records of patients in the physician office practice?
  Show / Hide Answer
  Our recommendations are as follows:
  - Adults: 10 years from the date of the last medical service for which a medical entry is required.
  - Minors: Age of majority plus state statute of limitations. Note: once the minor reaches 18, the adult retention recommendation applies, i.e., 10 years from the last medical service for which a medical entry is required.
  - Deceased adult patients: 10 years from the time of death.
  It is important to note that the statute of limitations may not begin to run until the plaintiff learns of the causal relation between an injury and the care received.
  MMIC recommendations are in accordance with the American Health Information Management Association’s (AHIMA) medical record retention guidelines. Please access our practice tip on this subject at Medical Record Retention Standards For Physician Practices In ME , NH & VT.
Signing Transcription
- Do providers need to sign and date dictated and transcribed patient office practice progress notes?
  Show / Hide Answer
  Provider medical record documentation is used by all disciplines to plan and assure appropriate patient care. MMIC’s recommendation of signed and dated validation of dictated note content is based on National Standards of safe medical care and documentation. The Center for Medicare and Medicaid Services (CMS) condition of participation 482.25 reads, "All entries must be legible and complete, and must be authenticated and dated promptly by the person (identified by name and discipline) who is responsible for ordering, providing, or evaluating the service furnished." The American Health Information Management Association (AHIMA) and the Joint Commission Standards (IM 6.10) in the 2008 standards mimic the CMS condition of participation statement. The statement, "Dictated but not read" is a RED flag for all plaintiff attorneys, calling attention to a patient care note that may be incorrect. Documentation of Case Law findings notes settlement of cases due to inaccurate or missing medical record documentation. Non-validation and non-authentication is a recognized potential liability.
Storage
- Is it acceptable to store patient's medical records in an off-site commercial storage unit (the type that anyone can rent for any purpose) instead of using a professional document storage company?
  Show / Hide Answer
  MMIC recommends using only professional document storage companies for off-site record storage. General commercial storage units do not provide the same level of security as a document storage company. Additionally, most professional storage companies are designed with environmental control systems to protect the records from damage due to moisture and temperature extremes. The fire protection systems in professional record storage companies utilize fire suppression techniques that do not cause additional damage to the records in the event of a fire. Please see our practice tip for additional information on record retention.

Noncompliant Patient

What steps are required in the management of the patient who is non-compliant and fails to keep appointments?
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Patients who fail to keep scheduled appointments pose significant liability risk. The physician should be notified of or provided with a list of patients who missed or canceled an appointment. This allows him/her to direct any additional follow-up activity. When continued follow-up with the patient is directed by the physician, at least three contact attempts should be made. Documentation of the efforts to contact the patient needs to occur in the medical record. Refer to our practice tip for additional information and sample forms/letters.

Orders from Unaffiliated Physicians

How should the hospital address orders from physicians for diagnostic tests or other outpatient care when the physician is not otherwise affiliated with the hospital?
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When state laws, regulations and medical staff bylaws require that outpatient tests, outpatient treatments, or medications (e.g., laboratory tests or physical therapy), may only be ordered by a licensed independent practitioner there must be a process in place to determine the individual ordering the service has the qualifications to place the order. The facility should develop a process to verify the practitioner has a current license, current DEA number and that the service being ordered is within the scope of practice for that license. In the case of an out of state practitioner, the facility must verify that state law would permit the out of state practitioner to order the service requested, the practitioner has a current license, current DEA number and that the service being ordered is within the scope of practice for that license.

Source: The Compliance Guide to Medical Staff Standards, Kathy Mataka, CPMSM, CPCS August 2007.

Patient Education

Our physicians would like to email additional patient educational materials to our patients. We do not have secure or encrypted email capabilities. Please advise.
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Educational materials can supplement patient teaching in the office setting. Patients within the practice who wish to receive educational materials via email should be educated on the practice's policy and give written consent to receive such information. Within the body of the consent, include "hold harmless" language addressing technical system failure, intercepted, and misaddressed email and include that replies to the email will NOT be addressed. Keep a copy of the consent with the medical record and give the original to the patient. If available, use email features which will not allow the patient to "reply to sender" as this would allow an opportunity for the patient to respond, ask questions or provide patient sensitive information within the unsecured email system. Add language to the body of the outgoing email, "THIS EMAIL IS NOT SECURE" and "DO NOT REPLY". It is important not to send educational items which address sensitive diagnoses such as mental health, substance abuse, sexually transmitted diseases, and or HIV/AIDS.

Red Flag Rule

Where can I find information on the Red Flags Rule?
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The American Medical Association has an excellent website that should explain the Red Flags Rule. Click on the Red Flags Rule Guidance Document for an explanation of the rule. In addition, you will note sample policies.

Telephone Triage

To streamline our telephone system, our practice plans to initiate a telephone triage system to respond to callers? Do you have any recommendations of which staff member should direct this program?
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Best practice is to delegate this assignment to an experienced, licensed staff member. Create a policy and written protocols that address the scope of the program, purpose, personnel responsibilities and algorithms to direct the caller. Criteria should determine if the call is emergent, urgent or routine (non-urgent) and when to direct the caller to the triage nurse. Please visit the “Telephone Triage Systems ” Practice Tip.

Termination of Phys/Pt Relationship

Is it ever inappropriate to terminate a physician-patient relationship?
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Termination of a physician-patient relationship should only occur after considerable evaluation. If the situation involves an urgent matter, or if the competency of the patient is in question, termination is not recommended. A coordinated team approach will assist in managing difficult patients in these situations. In rural areas, there may be limited reasonable options for care of the patient, making termination of a relationship unreasonable. For additional information, please reference our practice tip

Videotaping Births

What is MMICs position on videotaping births?
Show / Hide Answer
Please reference our practice tip "Videotaping Births"

Waiver of Responsibility

Could we develop a waiver releasing us from responsibility if the patient falls while in our facility?
Show / Hide Answer
Regardless of the reason a facility believes a waiver of liability for patient safety would be in order, (e.g. patient non compliance with call bell use for assistance), the facility cannot limit their responsibility for a patient’s safety through the design and use of a waiver of liability. Appropriate and thorough medical record documentation is the best defense should a patient event lead to a claim of professional liability. The following should be included in the patient medical record:
- Patient education regarding patient safety concerns, what interventions are in place to assure the patient remains safe and how the patient’s noncompliance with those interventions affects the success of the patient’s safety plan.
- Patient understanding of the concerns for their safety and the need for compliance with interventions in place to enhance safety.
- Patient behaviors and affects those behaviors have on the ability to maintain a safe environment for the patient. Additional alternatives, when necessary, that are put in place to continue to address the patient’s safety and any non compliance issues.