Page 23
rendered if the minor is unable to reveal the identities of his parents or guardians and their identities are unknown, or if his parents, guardian or legal custodian cannot be immediately located by telephone.This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: February 2013 MEDICAL CLINIC REGISTRATION Florida law now requires that a medical clinic that is not wholly owned by a physician or a direct member of the physician’s family become licensed by the State of Florida. The Agency for Health Care Administration is administering this program. It is imperative that all clinics that fall under the law become licensed, as the fines for failing to do so in a timely manner are substantial. In addition, failure to become licensed constitutes a felony; and all charges and reimbursement claims made by an unregistered clinic are noncompensable and unenforceable.Section 400.9905(4), Florida Statutes, sets forth the exemptions, i.e., the entities that do not have to become licensed. In addition to clinics owned by physicians, the following entities are included in the list of facilities that do not have to become licensed:l Mental health facilities licensed pursuant to Chapter 394, Florida Statutesl Hospitals and other facilities licensed pursuant to Chapter 395, Florida Statutesl Substance abuse facilities licensed pursuant to Chapter 397, Florida Statutesl Nursing homes licensed pursuant to Chapter 400, Florida Statutesl Entities that are exempt from federal taxationl Community college or university clinicsl Clinical facilities affiliated with accredited medical schoolsl Entities that are owned, directly or indirectly, entities licensed or registered by the state pursuant to Chapter 390, 394, 395, 397, 400, 463, 465, 466, 478, 480, 484 or 651.l Entities that are owned, directly or indirectly, by an entity licensed or registered by the state pursuant to the chapters above.l Entities that are under common ownership, directly or indirectly, with an entity listed above.l Clinical facilities affiliated with a college of chiropractic accredited by the Council on Chiropractic Education at which training is provided for chiropractic students.l Entities that are owned by a corporation that has $250 million or more in total annual sales of health care services provided by licensed health care practitioners where one or more of the persons responsible for the operations of the entity is a health care practitioner who is licensed in this state and who is responsible for supervising the business activities of the entity and is responsible for the entity’s compliance with state law for purposes of this part.l Entities that employ 50 or more licensed health care practitioners licensed under Chapter 458 or 459 where the billing for medical services is under a single tax identification number.Medical clinics that are required to be licensed under this law will be subject to inspection. They must also employ a medical director who is responsible for the clinic’s activities. The medical director’s duties shall include ensuring that all practitioners at the clinic are in compliance with licensure and billing laws. Any physician thinking of becoming a clinic’s medical director should obtain a copy of Section 400.9935, Florida Statutes, before agreeing to do so. The statute sets forth the areas for which the medical director will be responsible. Medical directors who fail to ensure compliance in these areas can be prosecuted by their licensure board as well as in criminal court, and may also be liable in civil court for their acts.This article is presented for educational purposes only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: March 2015 MEDICAL RECORDS Every physician is aware of the need to maintain adequate medical records for each of their patients. Such records are crucial to providing quality health care by serving as a basis for planning the patient's care and recording essential medical information concerning the patient's condition and treatment. The records can also protect the physician legally by documenting the patient's changing medical condition and evaluation, as well as actions taken by the primary care and consulting physicians. Furthermore, the need for adequate medical records is recognized not only by physicians, but is also regulated by federal and state statutes and rules regulating the content, retention, and accessibility of medical records.Federal privacy standards to protect patients' medical records and other health information provided to health plans, doctors, hospitals and other health care providers took effect on April 14, 2003. Developed by the Department of Health and Human Services (HHS), to implement the Health Insurance Portability and Accountability Act of 1996 (HIPAA), those standards provide patients with access to their medical records and more control over how their personal health information is used and disclosed. HIPAA represents a uniform, federal floor of privacy protections for consumers across the country. State laws providing additional protections to consumers are not affected by this new rule. HHS has produced many materials discussing and explaining the provisions of the privacy standards. These materials are available at http://www.hhs.gov/ocr/hipaa. A detailed analysis can be found at www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html. Unless expressly stated, the provisions of Florida law discussed below are not preempted by the federal privacy standards. Having created an appropriate record, physicians frequently are unsure of the time period during which they must maintain these files. While Rule 64B8-10.002, Florida Administrative Code, mandates that a physician retain these records for at least five years, the rule also recognizes that this time frame "may well be less than the length of time necessary for protecting the physician." Under the Statute of Limitations, a claim of malpractice may be brought against a physician up to seven years after "the date the incident giving rise to the incident occurred." (If it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury, otherwise the standard of limitations is two years) Section 95.11(4)(b), Florida Statutes. For this reason, it is recommended that physicians retain medical records for at least seven years. Admittedly, the storage of seven years' worth of medical records may be both expensive and burdensome. Therefore, some physicians have chosen to store patient records electronically for easier storage. While many courts allow reproductions of medical records to be admitted as evidence, even these courts require that several precautions be taken. First, the physician must have a written policy explaining which types of records are to be stored electronically and this policy must be applied to all records uniformly. Secondly, a custodian of the records must be appointed. Overall, extreme care must be taken prior to instituting any electronic record reproduction/storage system. Therefore, before instituting any document storage conversion, a physician should seek the input of qualified legal counsel.Finally, having properly created and preserved a medical record, a physician must ensure the record remains confidential. Section 456.057(7), Florida Statutes. Nevertheless, the physician must, upon request, furnish the patient or its legal representative with a copy of "all reports and records relating to [the patient's]