Ask a Healthcare Lawyer: FAQ Edition

AAOE is proud to host a FAQ segment with Duane Morris Law Firm Partner, Patricia S. Hofstra. Patricia will be answering general practice legal questions. Submit your questions to pwalburn@aaoe.net and get answered by the experts!

Please note: When you submit a question, your name will not be included and the question will be published anonymously.

If a minor comes in for the first time to our practice and is not accompanied by a parent or legal guardian, can we still treat the patient? Many times minors (15-17 year olds) come in with an older sibling, aunt, grandparent, etc. Sometimes they require X-rays, casting, injections and even surgery scheduling. Are we permitted to treat these minor patients whose parents are unable to attend due to work or other situations?
Parental consent generally is required for the medical treatment of minor children. However, there are a number of well-recognized exceptions to this "general rule" in common and statutory law, which permit the treatment of minors without the parent being present. Every state has some form of consent statute addressing these exceptions for the treatment of minors who seek treatment without a parent or legal guardian. Current state and federal laws and medical ethics recommendations support the treatment of minors with an identified emergency medical condition, regardless of consent issues. Appropriate medical care for a patient with an urgent or emergent condition should never be withheld or delayed because of problems with obtaining consent.

Every practice should develop policies and guidelines regarding consent for the treatment of minors, based on state law and good judgment. The provider should document all discussions of consent and attempt to seek consent for treatment from the family or legal guardian and assent from the minor patient prior to treatment. Depending on the circumstances, telephone consent or a written note from the minor's parent or legal guardian may be sufficient.

If we let an employee go within the probationary period and they have not returned the key to the clinic, what is your recommendation?
The practice should make every attempt to obtain the key from the employee at the termination interview. If a terminated employee does not return the key, the practice must change the lock immediately, especially if the key could be copied by the terminated employee. Think about converting to a keypad instead of a key and changing the keypad number whenever an employee is terminated or any other event occurs which could lead to a possible unauthorized entry. In some states, depending on state law, it might be possible to withhold compensation until the key is returned, but consider the risk of duplicate keys and unauthorized entry.

If a patient is enrolled with a native medical center and has Medicaid as a secondary, it is my understanding that the chances of us getting paid are minimal. If the patient is a member of a native hospital then normally they must be seen at the native medical center. Are we allowed to refuse treatment or put a cap on how many we take? And if so, is there a "legal" explanation to give?
The practice's obligation to provide treatment to Native Americans or ability to put a cap on how many patients enrolled with a native medical center with Medicaid as secondary that the practice will treat depends on the practice's contract with the native medical center and Medicaid. A well negotiated contract with the native medical center can assure payment. If a Native American patient shows up at the practice or clinic with an urgent or emergent condition, care should never be withheld or delayed for payment issues.

Many times a patient requests medical records to be sent to them personally for a workman comp case. We were under the impression that the patient needs authorization from the comp carrier for this to happen. Medical records are routinely sent to the comp carrier, but not to the patient.
Worker's compensation laws vary state by state. However, if you are a provider treating a patient, you must give the patient a copy of that patientí's medical record upon request.

Patricia S. Hofstra, Partner
Duane Morris LLP
190 South LaSalle Street, Suite 3700
Chicago, IL 60603-3433
USA
Phone: +1 312 499 0180
Fax: +1 312 277 6405
Email: PSHofstra@duanemorris.com

Patricia S. Hofstra practices in the area of health law. Ms. Hofstra advises healthcare providers and companies in business, regulatory and litigation matters.

Ms. Hofstra's clients include physicians and physician practice groups, hospitals, retail medical clinics, ambulatory surgery centers, medical device manufacturers, pharmaceutical companies and other healthcare companies. She has extensive experience in business transactions involving healthcare entities, medical staff matters, government and third-party audits, licensure and regulatory matters, contracting, joint ventures and information technology. She regularly advises clients on fraud and abuse, governance, Stark and regulators compliance.

Ms. Hofstra is a graduate of Ohio Northern University College of Law and a graduate of the Pennsylvania State University (B.S.N.).

"This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the authorís law firm or its individual attorneys."