Orlando Health Attorney Appointed to Health Law Certification Committee

On April 9, 2012, Gwynne A. Young, President-Elect of The Florida Bar, announced that George F. Indest III, President and Managing Partner of The Health Law Firm, has been appointed to serve on The Florida Bar’s Health Law Certification Committee. Mr. Indest will begin his three year term on July 1, 2012.

The Florida Bar’s Health Law Certification Committee is responsible for overseeing the board certification process for all health law attorneys. Appointments to this standing committee are made by The Florida Bar’s President-Elect. There are only 116 attorneys certified by The Florida Bar in the legal specialty of health law.

Mr. Indest is a well-known attorney specializing in the representation of health professionals and health care providers throughout Florida. He is Board Certified by The Florida Bar in Health Law. His practice encompasses all aspects of health law, including defense of professional licensing cases, representation in investigations, defense in credentialing matters, Medicare and Medicaid audits, formation of corporations and limited liability companies (LLCs), Board of Medicine hearings, peer review actions, clinical privileges hearings, representation of medical students, and other matters of health care law and legal representation of health care professionals.

In 1999 Mr. Indest started The Health Law Firm, which has three Florida offices in Altamonte Springs, Orlando, and Pensacola. A former Navy JAG Corps attorney, he has practiced law for over 30 years.

For more information about The Health Law Firm visit http://www.thehealthlawfirm.com.

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About The Health Law Firm
The Health Law Firm was established in 1999, bringing together a team of experienced attorneys with decades of work in the legal and healthcare fields. With offices in Altamonte Springs, Orlando and Pensacola, Florida, the firm represents healthcare providers, including hospitals, nursing homes, physicians, dentists, mental health professionals and other licensed health professionals and entities. For more information about The Health Law Firm, visit http://www.thehealthlawfirm.com. 

For additional information contact:
Kara Large
klarge@TheHealthLawFirm.com
Phone: (407) 331-6620, ext. 219

“Cert Audits” Newest in Medicare Audit Contractor Alphabet?

One of the newest acronyms that our law firm has encountered in the Medicare Program’s audit process is the Medicare Comprehensive Error Rate Testing program audit or CERT audit.  It could be that we just haven’t had clients who had problems with this in the past, as we have seen plenty of Zone Program Integrity Contractor (ZPIC) audits, Medicare Administrative Contractor (MAC) audits and actions, Medicaid Fraud Control Unit (MFCU) audits, etc.  However, we did have a client recently who was being audited by a CERT contractor and we assisted in resolving document discrepancies.

The Centers for Medicare & Medicaid Services (CMS) created the Comprehensive Error Rate Testing (CERT) program to measure the paid claims error rate for Medicare claims submitted to Medicare administrative contractors, carriers, durable medical equipment regional carriers, and fiscal intermediaries (now Medicare Administrative Contractors or MACs) .  CMS receives in excess of two billion claims annually.  The CERT program randomly selects approximately 120,000 of these claims for review to determine whether the claims were properly paid.

Statistical samples are selected and the CERT documentation contractor (CDC) submits documentation requests to those providers who submitted affected claims.  Once the requested documentation has been received, the information is forwarded to the “CERT review contractor” (or CRC) for review.  The CRC will review the claims and supporting documentation to measure compliance with Medicare coverage, coding and billing rules.

As with many audits, it  seems like the most common problems being detected have to do with medical records errors, such as the documentation not supporting the code billed, absence of signatures on medical record entries, wrong dates of service, absence of medical record documentation, illegible records, wrong provider being billed for, etc.

We have been pleasantly surprised, however, when our personal phone calls to CDC and the CRC have been answered and actual accurate information provided, as well as letters and documents we provided being promptly acknowledged.  Like with any other audit, however, we urge those being audited to seek the advice of an experienced health law attorney who may be able to assist in heading off and avoiding a more serious investigation or a large repayment demand eventually resulting.

For more info see:  http://www.cms.gov/MLNProducts/downloads/MCRP_Booklet.pdf

or visit our website at:  www.TheHealthLawFirm.com

Orlando Health Law Attorneys to Speak at Florida Hospital

Attorneys from The Health Law Firm will be presenting a seminar on contracts to Florida Hospital’s family medicine residents and medical students on Wednesday, December 7, 2011 at Florida Hospital East Orlando. The lecture aims to provide information on contract negotiations and employee contract review.

This seminar is part of a series that will be presented to Florida Hospital’s family medicine department by The Health Law Firm‘s attorneys. Other lecture topics will include top legal concerns common to doctors, such as navigating a Department of Health complaint.

Based in Altamonte Springs, Fla., The Health Law Firm concentrates in representing health care providers, exclusively. Services provided by the firm include reviewing and negotiating contracts, defense of professional licensing cases, representation in investigations, defense in credentialing matters, Medicare and Medicaid audits, formation of corporations and limited liability companies (LLCs), Board of Medicine hearings, peer review actions, Department of Health investigations, pain management and pain medicine physician and clinic defense, representation of medical students, and other matters of Health Law and legal representation of health care professionals.

For more information about The Health Law Firm visit http://www.thehealthlawfirm.com.

George Indest Recertified As Health Law Expert

George F. Indest III, President and Founder of The Health Law Firm with offices in Orlando and Pensacola, Florida, has been recertified by the Florida Bar’s Board of Legal Specialization and Education in the legal specialty of Health Law. Indest has been board certified in Health Law since 1996.

As recognized by the Supreme Court of Florida, a board certified lawyer has the distinction of having “special knowledge, skills, and proficiency” in his or her practice area, as well as “character, ethics, and a reputation for professionalism in the practice of law.”

The goal of the Florida Bar’s legal certification process is to “recognize in various fields of specialization exceptional attorneys, meaning those who stand out from others in all of the ways that make an attorney outstanding,” according to Doe v Florida Bar, 630 F.3d 1336, 1338 (11th Cir. 2011).

Indest is a well-known attorney specializing in the representation of health professionals and health care providers who practices primarily in Central Florida. A former Navy JAG Corps attorney, Indest has practiced law for 30 years. He is a leader in the Health Law Section of the Florida Bar, serving on its Executive Council. He speaks frequently for physician groups and hospital staffs and also teaches Health Law at Barry University School of Law in Orlando.

In addition to practicing law and teaching, Indest publishes articles on health law and is active in civic and professional groups.

For more information about The Health Law Firm visit http://www.thehealthlawfirm.com.

South Florida Painkiller Network Newest Target in String of Florida Pill Mill Raids

Another South Florida pill mill was busted by federal agents this month, adding to Florida’s increasingly negative reputation as one of the worst drug trafficking states.

According to the Miami Herald, 24 people were indicted on charges of defrauding Medicare while distributing oxycodone and oxymorphone across Miami-Dade and Broward counties. These healthcare providers were involved in a distribution network allegedly worth $40 million.

Five pain management clinics in Miami, Hialeah and Plantation served as fronts for the fraud. A physician wrote prescriptions for oxycodone and oxymorphone to beneficiaries of Medicare and other prescription-drug insurance plans at these five clinics. Allegedly, these beneficiary patients were involved in the clinics’ scheme. The patients would then fill the prescriptions at certain pharmacies throughout Miami that were also involved in the network. When the prescriptions were filled, the pharmacy owners would bill Medicare, knowing that the drugs were unnecessary for the patients.

This bust follows a string of other DEA, DOH, and FDLE raids in Florida, including one in August. According to the Miami Herald, August’s Operation Oxy Alley involved pill mills being targeted as organized-crime for the first time. The country’s four largest pain clinics (located in Palm Beach and Broward Counties) were targeted, resulting in the arrest of 32 individuals, including 13 doctors.

Operation Pill Nation, the predecessor to Operation Oxy Alley, targeted pain management clinics in Palm Beach, Broward and Miami-Dade Counties. An effort to crackdown on Florida pill mills and drug trafficking perpetuated by medical clinics and doctors, Operation Pill Nation and similar investigations have resulted in the shutting down of clinics throughout South Florida according to the Palm Beach Post.

South Florida is not the only region where pill mills are running rampant. The entire state of Florida has been pegged by the DEA as one of the worst in terms of drug trafficking and about 85 percent of all oxycodone sold comes from Florida. Pain management clinics, pharmacies, pharmacists and doctors in Jacksonville, Melbourne, Mount Dora, Orlando, Miami, Fort Lauderdale, Delray Beach, West Palm Beach have been busted by Florida and federal agencies (DEA, DOH, FDLE) for unlawfully dispensing powerful narcotics, like oxycodone, to any patient that came in the door. In one instance, buyers of highly addictive oxycodone and Xanax, came all the way from Ohio, Kentucky, and Tennessee to get their fix at a Jacksonville pill mill.

The DEA and other federal and state agencies carry out relentless investigations in order to bust these clinics and doctors. Acting as patients, they may bribe a receptionist in order to immediately see a doctor, and then present unrelated symptoms in order to get a narcotics prescription. Drug companies also become involved in targeting pill mills, as they report any clinic or physician who orders narcotics in large quanities (like this Florida doctor who prescribed over 250,000 oxycodone pills in eight months).

Although the crackdown on pill mills and drug trafficking in Florida has eliminated many illegitimate practices, there have been serious consequences for any patient with real pain. Physicians are wary of writing any painkiller prescription, even for a patient whose pain warrants a stronger prescription.

If you are a pharmacist or physician dealing with pain management in Florida, be aware of the recent raids and learn more about what you can do to prevent the DEA, DOH, FDLE or local police from knocking on your door. Visit our website at www.TheHealthLawFirm.com or read this article on the DEA‘s involvement in the healthcare field for more information.

Florida Doctor Arrested for Drug Sales and Other Criminal Charges

Drug trafficking charges against a medical doctor are not a new concept, especially in Florida. Recent pill mill busts throughout the state have resulted in an omnipresent DEA, always on the lookout for illegal drug sales by pharmacies, pharmacists, pain management clinics and physicians. However, the recent arrest of a Central Florida doctor extends beyond the run of the mill “pill mill” bust, as the accusations in this case involve sex with a minor and delivering a controlled substance to a minor.

According to Florida Today, this Central Florida doctor was arrested Tuesday following a raid by the Florida Department of Law Enforcement. This is his second arrest after he was charged with possession of marijuana and drug paraphernalia in August.

Tuesday’s arrest resulted from evidence of the doctor’s sexual relationship with a high school student. The doctor was arrested in 2009 after being caught during a traffic stop with bags of marijuana in his car and allegedly having a sexual relationship with the 16-year-old passenger. Although charges were not filed after the girl recanted her evidence and claimed the marijuana was hers, that didn’t put an end to a steady stream of younger girls going into the clinic. According to residents of the area surrounding the clinic, girls were frequently seen going to see the doctor dressed in revealing attire. Aside from teenage patients, residents reported often seeing a line out to the street for people waiting to get into the clinic, a possible indicator of drug trafficking.

Although his medical license has been suspended, this Florida doctor has yet to receive broader drug trafficking charges, despite his huge prescription distribution numbers. According to the Florida Department of Law Enforcement, this doctor prescribed 250,000 oxycodone pills in the first eight months of 2011. Compared to the entire state of California, which had 300,000 oxycodone prescriptions in the last six months of 2010, it is evident that this Florida doctor had a major painkiller operation. The Florida Department of Law Enforcement is calling him one of the worst offenders in the state of Florida. Upon further investigation, this doctor and anyone who may have assisted him in the drug trafficking of oxycodone may be charged for this offense.

While the possibility of drug trafficking charges is enough to scare any physician, other criminal charges can be equally damaging, especially depending on how the accused individuals plea to the charges. A health professional’s plea of nolo contendere, which may seem like the safe route, is actually treated the same as a plea of guilty for all purposes. There are ways to defend criminal charges (like the ones against the aforementioned Florida doctor) that can result in a more favorable outcome (e.g., attempting to obtain pre-trial diversion, pre-trial intervention or drug court), but legal advice should be sought from an attorney who frequently represents health care providers before any actions are pursued. To learn more about criminal charges against doctors and other health professionals see this recent post or visit our website at www.TheHealthLawFirm.com.

Responding to a Medicare Audit – Practice Tips

Although you may speak of a “routine” Medicare audit, there is really no such creature. This is like saying you have a “routine IRS audit.”  The fact is that there is some item you have claimed as a Medicare provider or the amount of claims Medicare has paid in a certain category that has caused you or your practice to be audited.

Having too many claims for level five CPT codes might, for example, cause you to be audited.  Having multiple claims submitted for the same date of service, may cause you to be audited.  Submitting claims for CPT codes outside of your medical speciality area, might cause you to be audited.  Having the dollar amount of claims greater than the average for a similar health practitioner in the same geographical area of the country, may cause you to get audited.  Having a greater number of claims submitted than the average for a similar health practitioner in the same geographical area of the country, may cause you to get audited.  Filing claims for services that are on the Office of Inspector General’s (OIG) annual work list may cause you to be audited.

“Routine” audits, those that do not involve some suspicion of false billings or fraudulent activities, should, nevertheless, be treated extremely seriously and the physician, group or health provider being audited should give the matter personal attention.  Examples of some contractors that may be involved in “routine” audits include DelMarva Foundation, Palmetto GBA, Cigna GBA, or First Coast Service Options, Inc.

However, if the audit letter or audit notice is from a Zone Program Integrity Contractor (ZPIC), such as SafeGuard Services, LLC, or AdvanceMed, the matter is very serious and should not be treated as a routine audit.  If the “audit” comes in the form of a subpoena, then it is extremely serious.  If any FBI agent or OIG special agent is involved in it, then it is extremely serious.  In any of these three cases, an experienced health attorney should be retained immediately.

Even on a “routine” audit, given the possible consequences, we recommend you immediately retain the services of an experienced health attorney to guide you through the audit process, to communicate with the auditors, and to be prepared if it is necessary to challenge the audit findings.

These are some of the items actions we recommend you take and which we take in representing a physician or other health provider in responding to a Medicare audit.

1. All correspondence from Medicare, or the Medicare contractor, should be taken seriously.  Avoid the temptation to consider the request from Medicare, or the Medicare contractor, just another medical records request.  Avoid the temptation to delegate this as a routine matter to an administrative employee.

2. Read the audit letter carefully and provide all the information requested in the letter.  In addition to medical records, auditors often ask for invoices and purchase orders for the drugs and medical supplies dispensed to patients for which Medicare reimbursed you.

3. Include a copy of the complete record and not just those from the dates of service requested in the audit letter.  Include any diagnostic tests and other documents from the chart that support the services provided.  Many practices document the medications and immunizations given to the patient in a separate part of the chart and not in the progress notes; all documents, the complete record, should be provided to the auditor.  Remember that even other physicians records obtained as history, including reports, consultants and records from other physicians or hospitals, should also be included.  Consent forms, medical history questionnaires, histories, physicals, other physicians’ orders, all may be a crucial part of the record and should be included.  If hospital or nursing home discharge orders or other orders referred the patient to you, obtain these to provide to the auditors.

4. Make sure all the medical records are legible and legibly copied.  If the record is not legible, have the illegible record transcribed and include the transcription along with the hand-written or illegible records.  Make sure than any such transcriptions are clearly marked as a transcription with the current date it is actually transcribed.  Label it accurately.  Do not allow any room for there to be any confusion that the newly transcribed part was part of the original record.

5. If your practice involves taking or interpreting x-rays or other diagnostic studies, include these studies.  They are part of the patient’s record.  If the x-rays are digital, they can be submitted on a compact disc (CD).

6. Never alter the medical records after a notice of an audit.  However, if there are consults, orders, test reports, prescriptions, etc., that have not been filed into the chart, yet, have these filed into it, as you normally would, so that the record is complete.  Altering a medical record can be the basis for a fraud claim including criminal penalties.

7. Make sure each page of the record is copied correctly and completely.  If the copy of the record has missing information because it was cut off, the original needs to be recopied to ensure it includes all the information.  Don’t submit copies that have edges cut off, have bottom margins cut off, are copied slanted on the page, or for which the reverse side is not copied.  Reduce the copied image to 96% if necessary to prevent edges and margins from being cut off.

8. Make color copies of medical records when the original record includes different colored ink of significance.  Colors other than blue and black rarely copy well and may be illegible on standard photocopiers.

9. Include a brief summary of the care provided to the patient with each record.  The summary is not a substitute for the medical records, but will assist an auditor that may not be experienced in a particular specialty or practice area.  Make sure that any such summaries are clearly marked as summaries with the current date they are actually prepared.  Label it accurately.  Do not allow any room for there to be any confusion that this new portion was part of the original record.

10. Include an explanatory note and any supporting medical literature, clinical practice guidelines, local coverage determinations (LCDs), medical/dental journal articles, or other documents to support any unusual procedures or billings, or to explain missing record entries.  See item 9 immediately above.

11. When receiving a notice of a Medicare audit, time is of the essence.  Be sure to calendar the date that the records need to be in to the auditor and have the records there by that date.  Note: the due date is not the last date on which you can mail the records but rather is the date that the records must be at the auditor’s office.

12. Any telephone communication with the auditor should be followed up with a letter confirming the telephone conference.

13. Send all communications to the auditor by certified mail (or express mail), return receipt requested so you have proof of delivery.

14. Properly each copy of each medical record you provide and page number everything you provide the auditors, by hand, if necessary. Medical record copies often get shuffled or portions lost or damaged during copying, storage, scanning or transmission.

15. Keep complete, legible copies of all correspondence and every document you provide.  When we provide records to a Medicare auditor, we make a complete copy for the auditor, for the client, for us (legal counsel) and two for your future expert witnesses (to challenge any audit results) to use.

16. Consult an experienced health law attorney early in the audit process to assist in preparing the response.

The above check list is by no means comprehensive.  Nor do we mean to suggest that you should respond on your own.  The above is illustrative of the many actions that should be taken to help protect your interests when you are subjected to a Medicare audit.

Visit our website at www.TheHealthLawFirm.com for more information on Medicare audits, ZPIC audits, health care subpoenas, Medicare and Medicaid search warrants and Medicare and other federal administrative hearings.

The 25 Biggest Mistakes Physicians Make After Being Notified of a Department of Health Complaint

The investigation of a complaint which could lead to the revocation of a physician’s license to practice medicine and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH).  This is a very serious legal matter and it should be treated as such by the physician who receives it.  Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over, and they have attempted to represent themselves throughout the case.  Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the physician.

These are the 25 biggest mistakes we see in the physician cases we are called upon to defend after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.
2. Contacting the DOH investigator and providing him/her an oral statement or oral interview.  (Note:  There is no legal requirement to do this.)
3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so.  (Note:  There is no legal requirement to do this.)
4. Failing to carefully review the complaint to make sure it has been sent to the correct physician (Note:  Check name and license number).
5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the physician’s license until all proceedings are concluded.  (Note:  This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)
6. Providing a copy of the physician’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so.  (Note:  There is no legal requirement to do this.
7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.
8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.
9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.
11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.
12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.
13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.
14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.”  The matter does not ever just go away.
17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.
19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
21. Retaining “consultants” or other non-lawyer personnel to represent them.
22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
23. Attempting to defend themselves.
24. Believing that because they know someone on the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

 Bonus Point:

 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed.  There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the physician may be disciplined.  In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel.  In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing.  The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

For more information, on how to respond to a DOH investigation, or other legal matters, visit our website.

Patient Privacy Breach at Nemours Follows Florida Hospital Information Leak

After a patient privacy breach at Florida Hospital a few weeks ago, another patient records scare has hit Florida – this time at Nemours.

According to the Orlando Sentinel, information belonging to Central Florida patients of Nemours Children’s Health System has gone missing.

Computer back-up tapes containing old patient billing information have disappeared from the Wilmington, Del., office of Nemours. These tapes were not password protected and stored in a locked cabinet. Company officials believe the cabinet may have been removed when the office was  remodeled in August.

Stored in the missing tapes are patient names, addresses, dates of birth, social security numbers, insurance information, medical diagnoses and treatment codes, as well as bank account information. If stolen, this information could result in identity theft.

The information of more than 1 million patients treated from 1994 to 2004 by a Nemours physician or at a Nemours facility in Florida, Delaware or Pennsylvania was contained on the missing tapes. Approximately 50% of the affected patients are from Florida.

Nemours has sent letters to patients whose information may have been compromised and is offering these patients a year of free credit monitoring and identity-theft protection.

Although Nemours is taking appropriate steps in response to this situation, a major  patient privacy breach should not be happening so frequently. This is the second major privacy breach in the last few weeks in Florida, which instills little confidence in patients in the Florida health care system. Health care providers need to be proactive in maintaining patient confidentiality. Patients trust health care providers with the most personal and sensitive details and should have reassurance that unauthorized personnel will never see this information. There should never be any reason that this information gets leaked.

A privacy breach not only impacts patients, but also health care professionals (physicians, nurses, pharmacists, administrators, etc.) who come under attack. When blame is shifted around a health care facility, the work environment may become tense and stressful, especially for those who have access to patient records.

For more information about patient privacy breaches, see this article on confidential medical records.

Patient-supplied Respiratory Equipment in the Hospital

By Michael L. Smith, JD, RRT

Hospitals and respiratory therapists regularly receive requests from patients asking to use their own respiratory therapy equipment in the hospital. Chronic pulmonary patients are generally reluctant to change their treatment regimen and may request they be permitted to continue using their home ventilators or positive airway pressure units in the hospital. Generally, hospitals should not allow patients to use their own medical equipment.

Patient-supplied medical equipment poses numerous risks for hospitals and their RTs. Patient supplied equipment may be a different model than what the hospital’s RTs and other staff routinely use, which can contribute to errors in the equipment and alarm settings. The hospital may not have compatible parts to ensure that the patient-supplied equipment remains functional during the patient’s hospital stay.

Another risk for the hospital and its staff exists because the patient may not have properly maintained the medical equipment. The hospital and its staff cannot easily determine whether the patient-supplied medical equipment has been regularly serviced, including any necessary modifications based upon recalls. While a particular piece of equipment may appear well maintained on the surface, it could have numerous deficiencies that are almost impossible to detect by the hospital and its staff.

The hospital and its staff may be assuming significant legal liability by allowing patients to use their own medical equipment. Patient-supplied medical equipment that malfunctions could conceivably cause injury to multiple patients and hospital staff. Consequently, hospitals should avoid allowing patients to use their own medical equipment in the hospital.

Despite the risks, most hospitals still allow the use of at least some patient-supplied medical equipment under certain circumstances.

Whenever the hospital elects to allow patient-supplied medical equipment, it should involve the hospital’s counsel, risk manager, and all the necessary hospital departments in the process.

Most hospitals that allow patient-supplied medical equipment have some type of policy on the use of that equipment. Those policies should require written approval from the patient’s physician stating that the patient-supplied equipment is suitable based upon the patient’s current medical condition. Every policy also should require notice to all the clinical and non-clinical departments necessary to ensure the equipment is in good working order and safe to operate. Every piece of electrical equipment must be thoroughly checked for electrical safety, usually by the hospital’s biomedical department.

Whenever the hospital agrees to allow patient-supplied medical equipment, the hospital should have the patient sign a waiver that explicitly states that the hospital is not assuming any liability for the equipment. The waiver also should permit the hospital to use substitute equipment in the event the patient-supplied equipment fails or the patient’s condition changes. Unfortunately, the hospital probably cannot completely absolve itself of any liability for patient-supplied medical equipment, even when the patient signs a waiver.

In the event the patient-supplied equipment fails, the hospital staff will need to intervene and provide appropriate care to the patient, even if the patient assumed all responsibility for the equipment. The hospital staff also will need to regularly check to confirm that the equipment is functioning properly and that the medical equipment remains appropriate for the patient’s condition. Of course, the hospital staff must document their regular assessment of the patient-supplied medical equipment.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Florida. This article is for general information only and is not a substitute for formal legal advice.

This article was originally published in Advance for Respiratory Care and Sleep Medicine.