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Frequently Asked Legal Questions

1. How long must I keep medical records?

According to Florida law, a physician is responsible for maintaining records for at least five years (64B8-10.002). Because malpractice lawsuits can be brought up to seven years after the date of an incident (eight years for some minors), physicians are encouraged to maintain records for the full seven years.

2. Another physician and I provide cross coverage. How should I bill when I provide a service for the other physician's medicare patient?

A physician must always use his or her own Medicare number when billing for services, even if the service is provided under a coverage arrangement for another physician.

3. A group of independent physicians sent a representative to an HMO to negotiate a new contract. Can the members of this non-integrated group then refuse the offered contract?

Federal antitrust law prohibits non-integrated physicians from negotiating as a group, but does allow them to send a "messenger" to the HMO to ask for contract terms. Under this type of negotiation, however, the group members must then make individual decisions on whether to accept the new contract without discussing it among themselves. Any concerted action, such as a boycott of the HMO, is deemed anti-competitive activity and subjects each of the physicians to potential civil penalties under federal anti-trust law.

4. May I date a patient?

Florida Statute 458.331(1)(j) forbids "Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her physician." First offense penalties for sexual misconduct range from a one year suspension and reprimand and $5,000 to permanent revocation of one's license and a fine of $10,000 (F.A.C. 64B8- 8.001(2)(j)).

For these reasons, physicians are urged to exercise considerable caution before embarking upon a physical relationship with a patient. You may also wish to note that physicians have been found to be in violation of this statute even when the other party was a former patient if it can be shown that the physician used the former physician-patient relationship in order to advance the relationship. On the other hand, the presumption made above can be rebutted if the other party makes an unbiased decision to embark upon the relationship, especially if the professional relationship has terminated.

5. What may I charge an HMO for emergency services if I am not a network provider?

Florida law (641.513) requires payment to non-contracted emergency service providers of the lesser of:

  1. The provider's charges;
  2. The usual and customary provider charges for similar services in the community where the services were provided;
  3. The charge mutually agreed to by the HMO and provider within 60 days of the submittal of the claim

6. Must I be present when my office performs clinical laboratory testing or other designated health services?

As you know, Medicare law requires that designated health services, such as clinical laboratory services, be performed under the "direct supervision" of a physician (42 U.S.C.1395nn(b)(2)). Moreover, the Florida Patient Self-Referral Act (F.S. 456.053) requires that designated health services be performed only for the group's own patients and "under the direct supervision of such referring health care provider or group practice" (F.S. 456.053(3)(o)3.f). The Florida clarifies that "direct supervision" means supervision by a physician who is present in the office suite and immediately available to provide assistance and direction throughout the time services are being performed." (F.S. 456.053(2)(e)).

While recent revisions do allow the physician to be absent for short or unexpected periods, a physician member of your practice should be present in the same office suite when clinical laboratory services are being performed.

7. Can an insurance company force a provider to accept its HMO product when a provider agreement for all HMO products was not executed?

Absolutely not; the all-products legislation specifically forbids such tactics.

8. If we receive an HMO reimbursement check and cash it, does it signify acceptance of that HMO fee schedule (or participation)?

F.S. 641.3155 states that you may not balance bill a patient for any service that you should know is a service for which the HMO provides reimbursement. On the other hand, if you know in good faith that your service is not one ordinarily paid for by the HMO, whether it be because you do not participate or it is not a covered service, you may bill the patient your standard fee. However, if you accept any payment from the HMO, you are agreeing that it is an HMO-covered service, and you may not balance bill the patient.

9. Can we endorse over an HMO check to the patient's family without incurring an acceptance of their fee schedule?

For the reasons stated above, even endorsing over the check infers that it is a covered service for which you may not balance bill the patient. Therefore, unless you are willing to accept this fee as payment in full, you should not sign it over to the patient.

10. May I balance bill a patient for HMO services if i know the claim will be denied because I am not on the panel?

According to F.S. 641.3154, you may bill a patient for non-emergency services that are not covered by an HMO. Therefore, if you in good faith know that an HMO will not cover a visit because of the lack of pre-authorization or because you are a non-participating provider, you may bill the patient directly.

11. What are the requirements regarding the option of posting a bond in lieu of obtaining professional liability insurance ("PLI").

The requirements for financial responsibility are found in F.S. 458.320. Assuming that the physician has staff privileges, the physician must either maintain PLI of at least $250,000 per claim/$750,000 annual aggregate, or complying with one of the following two alternatives:

-1 Establishing and maintaining an escrow account consisting of cash or assets eligible for deposit of at least $250,000 per claim/$750,000 annual aggregate; or -2 Obtaining and maintaining an unexpired, irrevocable letter of credit in the above amounts.

It should be noted that the above amounts are reduced to $100,000 and $300,000, respectively, if the physician does not maintain staff privileges.