Various state and federal laws require that physicians disclose to patients their ownership interests in certain health care facilities before they refer patients to such a facility. For instance, Indiana law requires that before a physician refers a patient to a health care facility in which the physician holds an ownership interest, that physician must disclose to the patient in writing such ownership interest and must confirm the patient’s receipt of a notice with the patient’s signature. The notice must also inform the patient of a choice to be referred to a different facility.

Indiana law requires that physicians retain the patient-signed notice; however, it does not specify the length of time it must be retained. Therefore, in accordance with Indiana law on medical records retention in general, we recommend that the notice be retained for seven years following the end of the physician-patient relationship.

Similarly, under the new Centers for Medicare & Medicaid Services (CMS) Ambulatory Surgical Center (ASC) Condition for Coverage regarding Patient Rights, an ASC must disclose to the patient any physician financial interests or ownership in the ASC in writing in advance of the date of the procedure.

CMS announced it will allow an exception for patient notices required in advance of the day of the procedure in certain cases if: (1) the referring physician indicates in writing that it is medically necessary for the patient to have surgery on the same day; and (2) surgery in an ASC setting is suitable for that patient.

In such situations, the ASC must provide the notice prior to obtaining the patient’s informed consent. Note that this requirement creates an obligation on the part of the ASC facility, not on the part of its physicians.

A CMS requirement also applies to physician-owned hospitals. It requires that the physician-owned hospital disclose to patients in writing – before admission or outpatient treatment – that the hospital is physician-owned and that a list of the owners is available upon request.

This obligation rests with the hospital facility. However, these regulations additionally require each physician who is a member of the hospital’s medical staff to agree to provide patients written notice at time of referral regarding any ownership or investment interest the physician holds in the hospital. This obligation rests with the physicians.

To remain compliant with these laws, physicians must implement the disclosure requirements applicable to their practices and the entities in which they have ownership interests.

If you have questions or require additional information regarding this case, e-mail Leigh Ann Lauth O’Neill or call her at (317) 238-6346 at Krieg DeVault LLP.