Ask the Lawyer


April 18, 2012

The following Question and Answer was published in Dental Products Report, Click here for more.

 

Q: I am a dentist practicing in the Midwest.  In an effort to grow my practice, I would like to have a raffle for my patients that refer me new patients.  I know I cannot directly compensate people for referrals, but can I pick a name out of a hat once a month to show my appreciation?  If this is OK can the practice give a product (in-house or iPad) or a service?

A: The fear of compensating patients for referrals comes from several places.  We have to make sure that we are not running afoul of any of the Stark laws related to compensating/inducing referrals.  Next, the model cannot violate fee splitting regulations from the state.  (I cannot give 25% of the fee from a patient to the source of the patient referral.)  Finally, there are FTC requirements that say any compensation for an endorsement/referral needs to be disclosed.  This is the difficult one as the regulation is relatively new and doesn’t have lots of examples of what works and what does not.  At a technical level, even being entered into a raffle (whether the patient wins or not) has some value.  It is the quid pro quo nature of the relationship that triggers the need for disclosure.  That said, I do not know of any enforcement actions taken by the FTC for raffles.  My guess is that they would look at the odds of winning.  If 98% of the people entered into the raffle win something of value that is different than if 1 out of 150 win.  I understand that people want a bright line test.  I wish that I could make it that clear and easy.  Finally, your state may have laws regarding raffles (aka a lottery).  While it is a nice idea, it triggers many legal issues.  If you still want to go down this path, I recommend consulting with a local attorney.  I wish you luck.

Q: I am a dentist practicing in Washington DC.  I received a subpoena from a local attorney requesting records on one of my patients.  This attorney does not represent my patient.  Is the subpoena enough or will I violate some law (like HIPAA) if I sent him the chart?

A: It appears that there were two issues with the subpoena: (1) whether it was properly issued (i.e., by an attorney rather than the court); and (2) whether we are required to turn over medical records without a patient release. I’ll address them both in turn.

 

  1. The subpoena is properly issued (i.e., by an attorney rather than by a judge). According to the rules of civil procedure for the Superior Court of the District of Columbia, the clerk of the court is authorized to issue a subpoena, but so are licensed attorneys: “An attorney as officer of the court may also issue and sign a subpoena.” (D.C. Superior Court R. Civ. P. 45(a)(3).) So, there appears to be no problem with the subpoena, assuming it was signed by an attorney licensed to practice in D.C.
  2. However, do not respond to the subpoena.The subpoena is deficient under HIPPA. Under HIPPA regulations, a custodian of medical records may release a patient’s medical records, for a judicial proceeding, only if one of four scenarios is met:
    1. Written authorization. There is a signed (and HIPPA-compliant) authorization from the patient (45 CFR 164.508(a)(1));
    2. Court order. There is a court order (45 CFR 164.512(e)(1)(i));
    3. Notice to patient and opportunity to object. The party seeking the information has provided the custodian of medical records with satisfactory assurance (in the form of a written statement and accompanying documentation):

i.      That the party seeking the information has made a good faith attempt to provide written notice to the patient regarding the request for medical records (this requirement would ordinarily be satisfied by a written letter to the patient);

ii.      That the notice (i.e., the letter) to the patient contained sufficient information about the litigation to permit the patient to raise an objection to the court, and sufficient time to do so; and

iii.      That the time for the patient to object has elapsed and no objections were filed (or that any objections raised by the patient were resolved by the court) (45 CFR 164.512(e)(ii)(A)); or

  1. Qualified protective order. The party seeking the records has provided the custodian of medical records with satisfactory assurance (in the form of a written statement and accompanying documentation):

i.      That the parties to the dispute (i.e., all plaintiffs and defendants in the case) have agreed to a qualified protective order, or that the party seeking the information has requested a qualified protective order from the court. The qualified protective order essentially prohibits the parties to the dispute from using or disclosing any of the patient’s medical information for any purpose other than the litigation and requires the return or destruction of the documents at the end of the litigation. (45 CFR 164.512(e)(ii)(B.)

 

As it appears to me that there is no evidence of (1) a court order, (2) written authorization from the patient, (3) proper notice to the patient and an opportunity to object, or (4) a qualified protective order, I would not respond to the subpoena until one of those four things has been produced. I’m sure you are well aware that violations of the HIPPA privacy rules carry hefty penalties, civil and criminal. The HHS web site relates, among other things, that a “person who knowingly obtains or discloses individually identifiable health information in violation of the Privacy Rule may face a criminal penalty of up to $50,000 and up to one-year imprisonment.”  I recommend contacting the attorney and indicating that your office will supply the chart once you receive a written authorization or a court order.

 

Michael J. Sacopulos is a partner with Sacopulos, Johnson & Sacopulos in Terre Haute, Indiana. He also serves as Legal Analyst for Dental Products Report. His practice focuses on assisting healthcare professionals develop strategies and techniques to avoid medical liability claims. He may be reached at Mike_Sacopulos@Sacopulos.com.