ISSUES & ANSWERS

August 2002

Shooting from the HIPAA

by Lyle Kelsey, CAE
Executive Director

A few months ago, I took part in a CME course at an Oklahoma City hospital on “Pain Management from the Medical Board’s viewpoint.” During my presentation, I indicated that if a physician has a patient that appears to be an addict and is obtaining drugs from different medical sources or is diverting them for sale, the physician should contact the Bureau of Narcotics and Dangerous Drugs (BNDD). (This is considering that the patient is unwilling to get some help.) A physician in the audience raised a question as to whether that would be violating Health Insurance Portability & Accountability Act of 1996 (HIPAA). He was concerned that reporting it would be a breach of patient confidentiality. I responded that I did not think it was a violation but that I was not an expert on HIPAA and physicians should contact a reliable source to find out.

I have since researched the issue and found the following answer. Physicians may report any patient activity that they believe or suspect is criminal in nature to federal or state authorities without breaching patient confidentiality. The HIPAA regulations that cover this category of reporting are found in Volume 45 of the Code of Federal Regulations (CFR) Section 164.502 (j) & 164.512 (d). The complete citation of these sections would require more space than this newsletter.

As another example, suppose a physician has a doctor as a patient and the treating physician strongly suspects that the doctor is an addict or a substance abuser that seemingly could endanger that doctor’s practice and patients. Can the treating physician report the doctor to the proper authorities without violating doctor/patient confidentiality? Yes.

The first step in this instance, if the doctor is willing to seek help, is to contact Harold Thiessen, MD, Director of the OSMA Health Professional Recovery Program (HPRP) at 405-376-9728 or emergency # 405-376-9786.

The Board will not intervene unless the doctor fails to maintain good standing in the HPRP or is subject to criminal prosecution.

If the doctor is not willing to seek help, then the treating physician is obligated to report the doctor to the Medical Board under OAC 435:10-7-4 (42) & (43). In either case, the treating physician is not betraying patient confidentiality.

What Would You Do?

“Oh that this too too solid flesh would melt . . .”
-Hamlet

CASE:
A small town doctor was accused of ordering Human Chorionic Gonadotrophic Hormone (HCG) to be injected for the purpose of weight reduction, giving the patients a 500 calorie diet and then providing no follow up care.

In his defense, the physician asserted he was employed by a clinic merely to do intake examinations in order for the patients to enter the weight loss program and felt his responsibility ended at that point.

At the hearing, the Board was asked to find the doctor guilty of dishonorable or immoral conduct due to use of an unproven and unapproved therapy (with possible harmful side effects) and failure to establish a valid physician/patient relationship.
Would you consider the current fad for “alternative” medical treatment to be equivalent to the above use of HCG?

RESULTS:
The Board held that the doctor’s use of HCG for weight reduction was not dishonorable, immoral action nor likely to deceive or defraud the public. They did find that he was not establishing a valid physician/patient relationship. He was placed on three years of probation during which time he was to practice in a controlled environment in a single community.

Truth Hurts

In the September 2001 issue of Journal of Legal Medicine (Vol 22 #3), the lead article was a fascinating one on the value and/or harmfulness of veracity. Informed Consent, the Placebo Effect, and the Revenge of Thomas Percival, by W. John Thomas, JD, LL.M., MPH gives a history of the trip from paternalistic protecting physicians to present day medical conveyor of facts utilizing quotes from Hippocrates, Samuel Johnson, the titled Thomas Percival, and the ethics section of the AMA.

He notes the changes the AMA has made since its first code of ethics in 1847, which contained 5600 words, to the 1980 Principles of Medical Ethics, which now is down to 250 words. He recounts the rise of the doctrine of Informed Consent and self-determination of treatment.

Noting the statistical (and amazingly consistent) efficacy of placebos to produce beneficial results in both medical, psychiatric, and surgical candidates, the question is “not as whether placebos work, but how they work” and since they work, where is the fault in utilizing them. (“Where is the sin in sincere?” The Music Man)

The author is on the side of full disclosure, even if it does lessen (or destroy) the therapeutic effects of placebos as well as being truthful with patients as to prognosis even if the truth brings about deterioration of the patient. His premise is the long term overall destruction of trust in the profession brought on by withholding or falsifying information vastly outweighs any good short-term effect.

The article is short, well written and thought provoking and may be read in full in this office.

Board Meeting

May 9, 2002

The Board of Medical Licensure and Supervision met in regularly scheduled session on May 9, 2002 and considered multiple cases. In an unusual number of requests to modify probationary terms, six modifications were approved. Most involved the ability to prescribe controlled and dangerous substances on duplicate, serially numbered prescription pads. Two were denied.

Four applications for allied medical professional licensure were approved with agreements allowing monitoring for substance abuse after evaluation for potential abuse and personal appearances were accomplished. One application was denied based on evidence that the applicant had been working for months without a license.

One full and unrestricted medical license and one special training license were issued after personal appearances. Three full MD licenses were issued under agreement for continuing monitoring for substance abuse.

Two applications for special licenses were denied. One applicant had not taken any licensing exams or done any residency training in the USA. One had passed only the Puerto Rico licensing exam, which was held not to be equivalent to the USMLE. Four applications for full medical licenses were denied. One involved multiple malpractice claims and plans to do telemedicine without personal patient contact. Another had multiple exam failures. One had a felony conviction that resulted in his license being revoked in Texas. And one application was rejected for lack of good moral character.

Disciplinary hearings on allied professionals resulted in one surrender of license due to substance abuse and one adoption of probation with standard terms for substance abuse treatment and monitoring.

Two reprimands were issued. One was due to patient care issues and the other for filing a fraudulent renewal application – failure to report multiple misdemeanor charges in Texas.

One doctor surrendered the right to prescribe controlled dangerous substances due to failure to maintain adequate records and/or establish medical necessity.

Two cases were dismissed. One, involving failure to meet continuing medical education requirements, was dismissed when the physician provided proof of meeting the requirements. The other was dismissed after a hearing on practice competency.

June 28, 2002

The Board met on June 28th to review applications for licensure, primarily involving applicants entering residency programs.
Nine applications for full licenses were approved, six requiring personal appearances. One additional application was approved under terms of agreement involving monitoring for abstinence from chemical substances. Two applications for full medical licenses were denied with one approved for a training license if he were to get accepted into a residency. Two applications were tabled pending additional information.

Seventeen applications for Special Training licenses were approved after personal appearances. One such applicant was denied licensure. Two Special Training licenses were renewed after personal appearances.

July 18, 2002

The Board met in regularly scheduled meeting on July 18th to consider licensing applications and disciplinary hearings.
Two full licenses were issued after personal appearances. One full license was granted under agreement that the Board will monitor for substance abuse. One Special License was converted to full licensure with continued probation, imposed for past professional misconduct. One license was granted under the Emeritus status allowing the physician to continue using the title “MD” after his name without maintaining active licensure.

One Physician Assistant license was denied reinstatement after prior revocation for practicing without supervision. One MD application was tabled until psychiatric evaluation is obtained and presented to the Board.

Two Special Training Licenses were granted after personal appearances.

One Voluntary Submittal to Jurisdiction was accepted that imposed a five-year probation and required psychiatric and alcohol abuse treatment and monitoring. One Voluntary Submittal was accepted that requires consultation on all patients treated for chronic, nonmalignant pain utilizing scheduled drugs. One licensee was released from suspension under terms of a five-year probation with standard terms for substance abuse. One license was surrendered in lieu of prosecution for felony conviction of narcotic law violations.

CME Rule Changes

In an effort to simplify and clarify the continuing medical education requirements for licensure, the Board adopted emergency changes to the rules that became effective June 24, 2002. The amendments allow the Board to require proof of CME for those being audited at the time of renewal rather than after the fact. If the Board finds that the requirements have not been met, the physician is not allowed to renew and is unable to practice medicine.

The amendments also eliminate the Category II requirements but still require sixty (60) hours in Category I.

SUBCHAPTER 15. CONTINUING MEDICAL EDUCATION [AMENDED]

435:10-15-1. Continuing medical education
(a) Requirements.
(1) Each applicant for re-registration (renewal) of licensure shall certify every three years that he/she has completed the requisite hours of continuing medical education (C.M.E.).
(2) Requisite hours of C.M.E. shall be sixty (60) hours of Category I obtained during the preceding three (3) years as defined by the American Medical Association/Oklahoma State Medical Association/American Academy of Family Physicians or other certifying organization recognized by the Board.
(3) Newly licensed physicians will be required to begin reporting three years from the date licensure was granted.
(b) Audit/Verification.
(1) The Board staff will, each year, randomly or for cause select licensees to be audited for verification that C.M.E. requirements have been met.
(2) The Board shall accept as verification:
(A) Current American Medical Association Physician Recognition Award (AMAPRA);
(B) Specialty board certification or recertification that was obtained during the three year reporting period, by an American Board of Medical Specialties (ABMS) specialty board;
(C) Proof of residency or fellowship training during the preceding three years. Fifty (50) hours of CME may be awarded for each completed year of training;
(D) Copies of certificates for the Category I education.
(c) Compliance.
(1) Licensees selected for audit must submit verification of meeting the CME requirement.
(2) Failure to submit such records shall constitute an incomplete application and shall result in the application being returned to the licensee and the licensee being unable to practice.
(3) A license obtained through misrepresentation shall result in Board action.
[Source: Added at 14 Ok Reg 1413, eff. 5-12-97; Amended at 17 Ok Reg 1351, eff 5-11-00; Amended at 19 Ok Reg, eff 6-24-02 (emergency)]

Remember: Renewal notices are sent out 60 days in advance of the renewal deadline. You can renew anytime on or before that date. It is the physician’s responsibility to notify the Board of any change in mailing address.

Three’s a Crowd

By Gerald C. Zumwalt, MD
Board Secretary/Medical Advisor

On May 24, 2001 Drew Edmondson, Attorney General for the State of Oklahoma, issued Opinion 01-25 (Vol. 31) at the request of the Honorable Dick Wilkerson, State Senator, concerning the patient’s and third parties’ right to original medical records, including x-rays.

Title 76 O.S. Supp. 2000 Section 19 provides the requirement and allowable charges to furnish copies of records and x-rays on the request of the patient. This opinion states the copies must be usable and “if a usable copy cannot be obtained a patient has a right to obtain the original x-rays.”

It goes on to state the patient’s right may be assigned to an authorized agent and no fee or deposit may be required to obtain the originals.

In light of this opinion, a physician may want to consult an attorney if access to records, x-rays or other tests becomes a problem with a patient, attorney or insurance company.