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Legal FAQs

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Terminating a Patient
How can a physician terminate a patient?

Physicians must give reasonable written notice to a patient when the physician withdraws from the case in order to allow the patient to find another physician. The law does not require that the letter be sent via certified mail, but physicians should consider whether it will help them ensure proper notice has been given. The physician must make copies of the patient’s medical records available.

Physicians who are contracted with the patients' insurer (e.g., commercial or government payer) may also be obligated to notify the payer. Check your contracts. 844 IAC 5-2-4

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Medical Records
Can a physician withhold a patient’s record for a past due balance (for services rendered)?
No. The Office of the Indiana Attorney General filed a Complaint with the Indiana Medical Licensing Board against Shashi Puttaswamy, MD, in June 2006 alleging that withholding patient records for a past due balance violates physician standards of practice. The Complaint cited the Indiana law that states, “On written request and reasonable notice, a provider shall supply to a patient the health records possessed by the provider concerning the patient.”  On April 24, 2008, the parties stipulated that physicians are responsible for having knowledge of the legal standards of conduct and practice and that the doctor knowingly violated that law.  On May 5, 2008, the Medical Licensing Board approved the stipulation and ordered the physician to pay the costs of transcribing the action.  (The physician would have also had to pay for her own legal fees and appeared before the Board multiple times before this matter was resolved.)   

Similarly, AMA Ethical Opinion 7.02 states medical records should not be withheld for an unpaid balance.

Can a physician charge for copies of a patient’s record? How much?

Yes, generally physicians may charge for copies of a patient’s medical records.  The permissible charges differ based on who is requesting the records.  When a patient requests his/her own medical records, HIPAA overrides Indiana law. Under HIPAA, a patient can request a copy of his/her own medical records and can request that the medical records be sent to a third party.  If a patient makes the request, an authorization is not necessary, but the patient’s request for the records must be in writing, signed by the patient and if the patient wants the records sent to a third party, the patient must clearly identify the designated person and where to send the PHI.  On the other hand, if a third party requests records and submits a patient authorization for release of the records, the HIPAA law will not apply, but the Indiana law on permissible charges will apply.

Note: Medicaid does not allow charges to copy medical records. IHCP Banner Page BR200634, August 22, 2006.

Below is a summary of permissible charges for copying and sending medical records (for patients not covered under Medicaid):

If Patient Requests His/Her Medical Records:

Three options for fees:

  • Actual Costs: 
    Reasonable labor costs: only include certain labor costs*
    + Supplies: paper or electronic media (e.g., CD or USB drive)
    + Postage

    OR

  • Average Costs:
    Reasonable labor costs based on average labor costs
    + Supplies
    + Postage

    OR

  • For requests for an electronic copy of PHI maintained electronically: Flat Fee $6.50 (all costs included)

If 3rd Party Requests Medical Records:

  • Labor costs:  $20 (If collected cannot charge for first 10 pages)

    OR

  • $1 per page for first 10 pages (If collected cannot charge for labor)

    + $.50 for pages 11 through 50 
    + $.25 for pages 51 and higher
    + Actual postage costs
    + Expedite fee:  Additional $10 if requests are to be mailed within 2 working days
    + Certifying fee: $20 if certified

*Under HIPAA labor charges cannot include searching for, retrieving, or reviewing medical records. Labor charges are limited to the time to: photocopy paper PHI; scan PHI into electronic format; convert electronic format into the format requested by the patient; transfer (upload, download, burn) electronic PHI from EHR to electronic media; and create and execute mailing with the PHI.

Also note, if a patient requests or agrees to access PHI from the “view, download, and transmit” function of a CEHRT, the provider cannot charge for the records. 

For more detailed HIPAA guidance on charging for medical records and a patient’s right to access his/her PHI, click here

Updated June 27, 2016

Can a physician withhold a patient’s record until the patient pays for copies of the records?

Indiana law does not expressly address this issue. It provides that patients have a right to a copy of their records and also provides that physicians have a right to charge for those copies. However, it does not specify whether those charges can be collected up front before providing the records or whether they must be billed and collected afterwards. Physicians should be familiar with and consider the Attorney General complaint and Medical Licensing Board order in the Puttaswamy case (see above answer to "Can a physician withhold a patient’s record for a past due balance (for services rendered)?"). Ethically, physicians should consider patient abandonment and continuity of care issues.

How quickly must a physician release requested medical records?

Indiana law does not provide a specific timeframe within which a physician must release a patient’s medical records, except that a physician must provide copies of the records within two (2) days if the physician charges a rush fee. 760 IAC 1-71-3.  However, federal HIPAA laws require a covered entity to act on a request for access to medical records within thirty (30) days.  Thus, a physician must either grant access to medical records or give a justified denial of access within thirty (30) days of receipt of the request for release.  45 CFR § 164.524(b)(2).

How long must a physician retain medical records?

According to Indiana law, physicians must maintain medical records for at least seven (7) years.

IC 16-39-7-1. However, for various legal and risk management reasons, medical malpractice insurance carriers often want physicians to retain records for longer periods of time. Call your malpractice carrier for advice. Also check any contracts you signed with insurance companies – some of those agreements include medical and business record retention obligations that exceed state law requirements.  Call your accountant about advice on retaining business and financial records.

Can a physician release records produced by another provider?

Although Indiana law is silent on this specific issue, it allows patients to request and receive records “possessed” or “maintained” by a physician, which presumably includes records produced by another provider. IC 16-39-1-1 & IC 16-18-2-168 (see also 844 IAC 5-2-4 “custody,” “possession,” or “control”). HIPAA also allows such a practice.

If a patient requests a copy of their claim information, do I have to provide it?

Yes.  When a patient requests their claim information, Indiana law requires health care providers to routinely provide the patient with a copy of the claim information the health care provider submits to the patient's insurance company, Medicare, or other third party payors.  This does not apply to patients with Medicaid.  Providers are not required to provide more than (1) copy of a patient's claim information.  IC 27-8-22-4.

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Death Certificates
I received an email notification from the Indiana Death Registration System (IDRS) stating that a record is waiting for me. Do I have to complete it?

Beginning January 1, 2011, Indiana law requires the physician last in attendance upon the deceased to submit a death record using the IDRS within five (5) days of initiating the document process or receiving notification from the person in charge of interment. Ind. Code § 16-37-1-3.1. Beginning January 1, 2012, the law allowed sanctions for failing to timely comply. Fines of up to $1,000 per violation are possible.

In order to use the IDRS, physicians must first be registered. To register, complete a Confidentiality and User Agreement here. There is no cost. But, the process does take time, so physicians should register so they will be capable of timely submitting a death certificate if the situation arises in the future.

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Patient Consent
Can minors consent to their own healthcare decisions?

As a general rule, only competent adults (age 18) can consent to their own health care. Minors may only consent to their own health care if the minor:

  • Is emancipated;
  • Is ...
    • at least 14 years of age;
    • not dependent on a parent for support;
    • living apart from the minor's parents or from an individual in loco parentis; and
    • managing the minor's own affairs;
  • Is or has been married;
  • Is in the military service of the United States; or
  • Is authorized to consent to the health care by any other statute.

The only known statutory exceptions (part 5) are donating blood (age 17) and treatment for an actual, suspected or potential (exposed) venereal disease (no age limit). IC 16-36-1-3. Pregnancy and contraception are not exceptions.

Facilities that receive Title X Federal Family Planning Funds, e.g., Planned Parenthood, are allowed to treat minors age 14 and older pursuant to federal law. Private physician offices do not receive such funds and are not subject to such law.

The AMA also has several ethical policies on this issue (e.g., 5.055 Confidential Care for Minors).

Does patient healthcare consent have to be in writing?

Indiana law requires physicians to obtain informed consent from patients prior to rendering care or treatment. IC 34-18-12-4. That consent does not have to be in writing. IC 34-18-12-6. However, if the consent is written, signed, witnessed by an adult, and explained before a treatment, procedure, examination or test is undertaken, it creates a rebuttable presumption that the consent was informed. IC 34-18-12-2. This can be important in cases involving an adverse outcome or medical malpractice. Call your medical malpractice insurance carrier about risk management advice on this topic.

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Lawyer Referrals
Can ISMA refer me to an attorney for legal advice?

Yes. Call ISMA’s Legal Department for attorney referrals.

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Fees
Can physicians charge fees to complete paperwork and forms for patients (e.g., FMLA, disability, etc.)?

There is no prohibition against charging fees in the federal Family Medical Leave Act. Minimal compensation is available in disability cases.

Indiana law is silent on this specific issue. Indiana’s general law on fees, 844 IAC 5-2-9, states, “Fees charged by a practitioner for his/her professional services shall be reasonable and shall reasonably compensate the practitioner only for services actually rendered.” The rule also includes a series of factors to consider when determining reasonableness.

Physicians should check their contracts with commercial insurance companies to see if the terms of the contracts prohibit such administrative fees.

AMA ethical policy E-6.07 states that physicians should complete simplified insurance claim forms without charge but may charge for more complex or multiple forms in conformity with local custom. (Note that AMA ethical policies do not necessarily comply with state law)

Medicare allows physicians to charge Medicare beneficiaries (not Medicare itself) extra for items and services that are not covered by Medicare, as well as deductibles and coinsurance. But, charging extra fees for already covered services violates Medicare rules. The details of the Medicare rules violation are more fully discussed in a bulletin issued by the Office of Inspector General. Additionally, physicians are required to provide patients advance notice before items or services are furnished. This is probably a gray area within Medicare and providers should exercise caution.

Medicaid does not allow such fees. IHCP Banner Page BR200634, August 22, 2006>>

As a practical matter, all patients should be notified of any such charges in advance.

Can physicians charge a missed appointment fee?

Indiana law does not expressly address this issue. Indiana law states, “Fees charged by a practitioner for his/her professional services shall be reasonable and shall reasonably compensate the practitioner only for services actually rendered.” 844 IAC 5-2-9. No interpretation of this provision has been provided by the Medical Licensing Board of Indiana. One interpretation could be that physicians cannot charge a fee for patients who missed an appointment because they were not rendered services.

Medicare allows physicians to charge Medicare beneficiaries (not Medicare itself) extra for items and services that are not covered by Medicare, as well as deductibles and coinsurance. But, charging extra fees for already covered services violates Medicare rules.
See Office of Inspector General bulletin>>

Medicare also allows a practice to bill Medicare beneficiaries (not Medicare itself) for no shows as long as the practice does the same for non-Medicare patients. See the rule here>>

Additionally, physicians are required to provide patients advance notice before items or services are furnished. Missed appointments are not a Medicare covered service. However, as mentioned above, such a fee probably violates Indiana law.

Medicaid rules prohibit charging a missed appointment fee.
IHCP Banner Page BR200634, August 22, 2006>>

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Starting a Practice
What information is available on starting a practice?

The ISMA has a packet of information it has compiled on Starting a Practice, including setting up the legal entity, obtaining licensure, NPI numbers, payer contracts and malpractice insurance. Contact ISMA’s Legal Department for the full packet.

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Employment Posters
What posters does a physician’s office have to post for its employees?

As an employer, a physician’s office must post specific posters as required by State and Federal agencies. Which posters depends on many factors, but primarily on the number of employees. The U.S. Department of Labor provides an online service called Poster Advisor, which helps small businesses determine what posters are required by federal law for their individual businesses. Many posters are also available for free by downloading them from the Indiana Department of Workforce Development Web site.

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Leaving a Group
What notice do I need to give patients when I am leaving a group?

Indiana has rules governing case withdrawal and discontinuance of practice. The Case Withdrawal Rule requires physicians to give patients reasonable written notice if they are not going to provide the patient further care. 844 IAC 5-2-4. If you do not wish to treat the patient any more, if you cannot “take” the patient with you, or if the patient must formally transfer their care to you for any reason, you must provide them such notice.

The Discontinuance of Practice Rule requires that you notify all active patients (seen within the last two years) in writing or provide them with notice in a newspaper of general circulation in the community once a week for three consecutive weeks that you are retiring, discontinuing your practice, or leaving or moving from a community. 844 IAC 5-2-16. As a practical matter, newspaper notice is generally not very effective.

Providing patients notice is sometimes difficult if a physician is leaving a group that will not provide the physician with access to patient contact information. However, the physician and the group need to work something out, ideally in both the employment agreement (foresight) and in the separation agreement. Indiana law indicates that the departing physician is ultimately responsible. Failure to provide patients with proper notice could result in abandonment claims and action against the physician by the Indiana Medical Licensing Board. Patients must also be provided access to a copy of their medical records.

What happens to my patients’ medical records when I leave a group?

Indiana law only states that patient medical records are the property of the provider, which can be an individual physician or an employing group or facility. IC 16-39-5-3 & IC 16-18-2-295. Ideally, a physician’s employment agreement would state who the patients and their medical records “belong” to. If it does not, this should be addressed in the terms of any separation agreement, along with patient notification obligations. If these issues are not addressed in either agreement, the parties will have to reach a separate agreement on these issues. Regardless of the outcome, patients will have to be notified about where they can receive future care and how they can obtain copies of their medical records.

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Retirement/Closing a practice
What notice do I need to give patients when I am closing my practice?

The Discontinuance of Practice Rule requires that you notify all active patients (seen within the last two years) in writing or provide them with notice in a newspaper of general circulation in the community once a week for three consecutive weeks that you are retiring, discontinuing your practice, or leaving or moving from a community. 844 IAC 5-2-16. As a practical matter, patients rarely see the newspaper notice and any patient who you have treated (not just patients from the last two years) has a right to request his or her medical record. So, the better job you do of notifying the patients in advance and providing them detailed information about how they can obtain copies of their medical record, the more smoothly the process will go and the less likely patients will be to file complaints. The ISMA Legal Department has prepared a packet of information on closing a practice which physicians may call and request.

What do I do with my medical records when I close my practice?

Indiana law requires that physicians maintain their medical records for at least seven (7) years. IC 16-39-7-1. This rule does not change for retiring physicians. There is no state repository available for storing medical records. Consider the following options: converting the records to electronic format and storing them on hard drive or disk; transferring the records to another physician or a hospital; storing the records at your residence or the residence of a former employee; or holding the records in a document storage facility. Do not forget that patients will still be entitled to copies of those records, so you need to store them somewhere where they will be secure (HIPAA confidentiality), safe (moisture, insects, etc.) and accessible. Ultimately you remain responsible for those records.

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Treating Relatives
Can I treat my relatives?

Indiana law does not address this issue specifically. However, Indiana law permits a pharmacist to decline to fill a valid prescription for a controlled substance if doing so is against his or her professional judgment. IC 25-26-13-16 and 856 IaC 2-6-2 . This provision has sometimes been used by pharmacists in refusing to fill prescriptions written for relatives.

AMA Ethical policy E-8.19 states that physicians generally should not treat themselves or members of their immediate families. The policy explains the rationale. It notes that there are some situations in which routine care is acceptable for short-term, minor problems. It also states that except in emergencies, it is not appropriate for physicians to write prescriptions for controlled substances for themselves or immediate family members.

Medicare bars payment for items and services rendered by physicians to immediate relatives of the physician, to the physician’s partner in a partnership or to members of their household. The exclusion also includes services provided incident to. “Immediate relatives” is defined to include husband and wife; natural or adoptive parent, child and sibling; stepparent, stepchild, stepbrother, and stepsister; father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, and sister-in-law; grandparent and grandchild; and spouse of grandparent and grandchild.
Medicare Benefit Policy Manual, Chapter 16, Section 130.
As an aside, the AMA has a policy statement opposing the Medicare policy in part. See AMA Ethical Policy H-385.955.

Consult your contracts with commercial payers to find out if they have rules about treating relatives.

Medical malpractice insurance companies may have legal or risk management concerns about this practice. Contact them for advice.

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Hearing Impaired Patients
Do I have to provide a sign language interpreter for patients who are hearing impaired?

The Americans with Disabilities Act provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C 12182(a)

Patients who are hearing impaired fall under the Americans with Disabilities Act (ADA), and physician offices are considered places of public accommodation. Regulations pursuant to the Act also state, “A public accommodation shall take such steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or would result in an undue burden, i.e. significant difficulty or expense.” 28 C.F.R. §36.303(a)

Auxiliary aids include qualified interpreters and note takers as well as other effective methods of communicating to individuals with hearing impairments.  28 C.F.R. §36.303(b)(1) Whether providing these aids is a significant difficulty or expense is determined on a case by case basis. Regulations also provide that “[a] public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R §36.303(c) Therefore, it should always be the physician’s first priority to ensure that there is effective communication with their patient.

Providers are responsible for incurring all the costs of providing reasonable aid and cannot pass that charge on to the patient or to their insurance company.  Some patients may insist on the presence of an interpreter, in which case you must attempt to resolve the issue with the patient.

Ultimately, you need to remember that failure to provide a reasonable aid, either literally or in the patient’s eyes, could result in a discrimination lawsuit. Therefore, you should contact your medical malpractice insurance carrier and your private healthcare attorney for specific advice when this situation arises. In October 2008, a New Jersey jury awarded $400,000 to a patient who sued a physician for refusing to provide a sign language interpreter.  See here for more details.

For additional information on the Americans with Disabilities Act:

  • The United States Department of Justice Civil Rights Division has an ADA Information Line at 1-800-514-0301 or visit the Division’s ADA Questions and Answers online.
  • The U.S. Department of Justice responded to concerns from Senator Phil Graham (TX) about the obligations and burdens imposed by this law in a letter dated December 29, 1994.  The letter is available here.
  • The U.S. Department of Justice published a document called “Americans with Disabilities Act: Communicating with People Who Are Deaf or Hard of Hearing in Hospital Settings (Oct. 2003),” which is available here.
  • You may also contact ISMA’s Legal Department for additional information.

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Limited English Proficiency Patients
Do I have to provide a foreign language interpreter for patients who cannot speak English?

Healthcare providers who receive federal assistance (e.g., Medicare, Medicaid, etc.), are required to provide a foreign language interpreter for patients with limited English proficiency under the Civil Rights Act. The provider is required to incur the cost associated with providing the interpreter and cannot charge the patient or the patient’s insurance company. There are several language interpreter services available. Additional information is available through the Department of Health and Human Services Office of Civil Rights and ISMA’s Legal Department.

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