Mid-Atlantic Health Law TOPICS

Medical Board’s Right to Medical Records: Did you know that a California appellate court, in Grafilo v. Cohanshohet, found that the California Medical Board did not demonstrate good cause to obtain patients’ medical records during investigations of two pain management physicians? During both investigations, the medical board subpoenaed medical records after the physicians refused to produce them. The court, in both cases, concluded that a good cause showing required more than a pain specialist potentially prescribing doses greater than the recommended morphine equivalent dosing amounts to a handful of patients. In other words, because the medical board did not allege facts suggesting the physicians negligently treated patients or had prescribing practices that violated the applicable standard of care, the medical board’s interest in the medical records was trumped by the patients’ privacy interests.

Outpatient Mental Health Centers: Did you know that to address a shortage of available medical directors in outpatient mental health centers, particularly in rural areas, the Maryland General Assembly has required the Maryland Department of Health to promulgate regulations that allow psychiatric nurses to serve as medical directors of accredited outpatient mental health centers? Those regulations must also allow all medical directors of these outpatient mental health centers — both psychiatric nurses and physicians — to satisfy on-site requirements by the use of telehealth.

Vaccines: Did you know that as of October 1, 2019, Maryland health care providers or their agents will be required to report all administered vaccines to ImmuNet, Maryland’s immunization registry? Previously, only pharmacists and providers working with the Vaccines for Children Program were required to make these reports. Health care providers who administer vaccines in nursing facilities, assisted living programs, continuing care retirement communities or medical day care programs will continue to be exempt from the requirement.

Examination Restrictions: Did you know that Maryland health care practitioners will be legally prohibited, starting October 1, 2019, from performing a pelvic, prostate or rectal examination on a patient under anesthesia or unconscious unless the provider has the patient’s full informed consent; the examination is within the standard of care for the patient; the examination of an unconscious patient is required for diagnosis or treatment; or if there is an emergency where obtaining consent is impractical? Violations are subject to discipline by a health occupations board. This new requirement conforms to existing guidelines from the American College of Obstetricians and Gynecologists.

MIA Security Breach Notice: Did you know that starting October 1, 2019, Maryland health insurance carriers will be required to notify the Maryland Insurance Commissioner if the carriers determine that personal information has been or will be misused as a result of a security breach of computerized data? Under the Maryland Personal Information Protection Act, carriers are already required to notify the Maryland Attorney General of such a breach.

Medical Malpractice Insurance: Did you know that if a Maryland medical professional liability insurer’s basic policy has an annual premium of less than $5,000, it is no longer required to offer additional policies with deductibles of $25,000, $50,000 and $100,000, as of October 1, 2019? The Maryland legislature also clarified in 2019 that insurers are authorized to settle medical malpractice cases for any amount up to the liability limits of the policy without the insured provider’s consent.

Corporate Practice of Medicine: Did you know that under New York’s no-fault insurance laws, insurance carriers can withhold payment for medical services provided by a professional service corporation that has been “fraudulently incorporated” because the professional service corporation is not, in practice, owned or controlled by a licensed person? The facts in the recent New York appellate court case of Carothers v. Progressive, which upheld a health insurance carrier’s right not to pay a New York professional corporation, were as follows: a New York licensed radiologist formed a professional corporation and leased a premises and equipment from a non-physician whose companies acted as a management services organization for the professional corporation; the amounts paid under the equipment leases were far above fair market value; the licensed physician did not have any termination rights; and the licensed physician was not involved in patient care or business administration.

Nursing Home Compliance Programs: Did you know that beginning November 28, 2019, the Centers for Medicare and Medicaid Services (CMS) and state survey agencies will be authorized to issue survey deficiencies to skilled nursing facilities that do not have an effective compliance program? Skilled nursing facilities should review their compliance programs to assess whether the programs comply with federal regulations—for example, the program should be evaluated to assess whether effective policies and procedures, disciplinary standards, training, and enforcement are in place.

Barry Rosen
410-576-4224 • brosen@gfrlaw.com