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Steven L. Simas, Esq.
Steven L. Simas
   Experience
     Simas & Associates, Ltd. –2002 to present
     Deputy Attorney General, Office of the Attorney
      General
     Vice President, California Academy of Attorneys for
      Health Care Professionals
     Legal Counsel, California Physical Therapy
      Association
   Practice Areas
       Health Care Law
       Professional Licensing and Regulation
       Civil Litigation and Appeals
       Employment Law and Workplace Regulation
Part I:
Medical Board’s Standards for
Medical Recordkeeping
   Medical Practice Act –Business &
    Professions Code §2266 provides:
     The failure of a physician and surgeon to
      maintain adequate and accurate records
      relating to the provision of services to their
      patients constitutes unprofessional conduct.
     What is “adequate and accurate”?
      ○ Depends upon clinical circumstances
      ○ Matter of expert opinion
Medical Board’s Standards for
Medical Recordkeeping
A Comprehensive Patient Record
Contains:
Patient’s condition and treatment
Any consultation informing the patient of his
or her condition
Discussion of intended procedures, risks,
hazards, and alternative therapy
Any instructions given to a patient by
telephone
Medical Board’s Standards for
Medical Recordkeeping
   Any cautions regarding prescription drugs
    that may interfere with a patient’s
    occupation or driving safely
   Special note should be made of any
    allergies or sensitivities
   Surgical records which are comprehensive
    and promptly dictated or written. The
    anesthetist should record both pre- and
    post-operative information.
Medical Board’s Standards for
Medical Recordkeeping
 Instructions to patients on follow-up
  care.
 Pathology and X-ray reports.
 The justification for treatment.
     Source: Guide to the Laws of Practicing
     Medicine by Physicians and Surgeons, Sixth
     Edition, 2010, Medical Board of California
     (http://www.mbc.ca.gov/publications/laws_guide.pdf)
Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
   Unlike the Medical Board, this is
    governed by Physical Therapy Board
    Regulation:
     Title 16, Cal. Code Regs. § 1398.13
      provides that a physical therapist shall
      document and sign specific things in the
      patient record.
     Like the Medical Board, failure to do so can
      be “unprofessional conduct.” (Bus. & Prof.
      Code § 2660(i)).
Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
   Board Regulation 1398.13 requires the
    following to be documented in the record:
      ○ (1) Examination and re-examination
      ○ (2) Evaluation and reevaluation
      ○ (3) Diagnosis
      ○ (4) Prognosis and intervention
      ○ (5) Treatment plan and modification of the
        plan of care
      ○ (6) Each treatment provided by the physical
        therapist or a physical therapy aide
      ○ (7) Discharge Summary
Contrast: The Physical Therapy Board’s
Standards for Recordkeeping
   Contrast with Medical Board record
    requirements:
     PT Board does not rely upon standard of
        care
       Very specific requirements
       Does not rely upon “expert testimony” to
        determine violation
       More objective?
       More nitpicky
   Lessons and Final Thoughts
     What is a “complete” or legal medical record
      depends upon the profession of the health
      care provider
     Proper records can be the subject of an
      expert opinion
     Some licensing boards have very specific
      requirements
     Failure to keep proper records is
      “unprofessional conduct” for most licensed
      health care providers
Part II:
How Licensing Agencies Build Cases
Upon Medical Records
  After a licensing board receives a
  formal complaint or has other reason
  to investigate, it has the following
  tools to do so:
   Subpoenas
   Release from complaining party
   Interviews
   Hospital records
How Licensing agencies build cases
upon medical records
Subpoenas:
   Under the Administrative Procedure Act (Govt.
    Code § 11180), the head of each department may
    issue a subpoena to investigate:
       ○ All matters relating to the business activities
         and subjects of the department's jurisdiction;
       ○ The violation of any law or any rule or order of
         the department; and
       ○ Any other matter that some rule of law
         authorizes the department to investigate.
How Licensing agencies build cases
upon medical records
   Other methods of licensing Boards
    obtaining records:
     Release from complaining party or
      patient (often without licensee’s
      knowledge)
     805 Reports/Peer review reports
     Reports of Settlement
     Hospital records
Part III:
Accusations and Citations For Improper
Recordkeeping
   Licensing Board actions against health care
    professionals
     Accusations
     Citations
   Recordkeeping violations (grounds for license
    discipline)
     Failure to keep “adequate” records
     Failure to keep records
     Failure to document treatment in the records
     Failure to document things required by Board
      (e.g. discharge summary for PT Board)
Accusations and Citations For Improper
Recordkeeping
 How recordkeeping problems
  manifest in a licensing hearing:
   The Golden Rule : “If it is not in the
   record, it did not happen”
    ○ Difficult patient
    ○ Referrals
    ○ History & Physical
    ○ Prescribing cases
    ○ Pain management
Accusations and Citations For Improper
Recordkeeping
   If the licensee met the standard of care, it
   must be in the record
    ○ Defensive recordkeeping
    ○ Can be the difference between a finding of
     negligence or not
Accusations and Citations For Improper
Recordkeeping
 Medical  records and use of experts in
  licensing defense cases
   Medical records are the tool of the expert
    witnesses
   Board experts look first at medical
    records
   Medical records can cause license
    discipline or other issues even if care
    was proper
Accusations and Citations For Improper
Recordkeeping
   Examples
     ○ Veterinary Board overnight hospitalization
      case
        Overnight monitoring not in record
        Veterinarian provided uncontroverted testimony
        ALJ found “no overnight monitoring”

     ○ Vision insurance audit
        All information regarding charges was in record
        Auditors could not find it
        Finding “optometrist sent in incorrect and unjustified charges”

     ○ Medical Board LASIK case
        Informed consent records
        “Eval” versus “Reeval” in cataract case
Steven L. Simas, Esq.
SIMAS & ASSOCIATES, Ltd.
Government & Administrative Law

   Sacramento -916.789.9800
  San Luis Obispo -805.547.9300
    www.simasgovlaw.com

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Medical Records as a Defense to Your License

  • 2. Steven L. Simas  Experience  Simas & Associates, Ltd. –2002 to present  Deputy Attorney General, Office of the Attorney General  Vice President, California Academy of Attorneys for Health Care Professionals  Legal Counsel, California Physical Therapy Association  Practice Areas  Health Care Law  Professional Licensing and Regulation  Civil Litigation and Appeals  Employment Law and Workplace Regulation
  • 4. Medical Board’s Standards for Medical Recordkeeping  Medical Practice Act –Business & Professions Code §2266 provides:  The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.  What is “adequate and accurate”? ○ Depends upon clinical circumstances ○ Matter of expert opinion
  • 5. Medical Board’s Standards for Medical Recordkeeping A Comprehensive Patient Record Contains: Patient’s condition and treatment Any consultation informing the patient of his or her condition Discussion of intended procedures, risks, hazards, and alternative therapy Any instructions given to a patient by telephone
  • 6. Medical Board’s Standards for Medical Recordkeeping  Any cautions regarding prescription drugs that may interfere with a patient’s occupation or driving safely  Special note should be made of any allergies or sensitivities  Surgical records which are comprehensive and promptly dictated or written. The anesthetist should record both pre- and post-operative information.
  • 7. Medical Board’s Standards for Medical Recordkeeping  Instructions to patients on follow-up care.  Pathology and X-ray reports.  The justification for treatment.  Source: Guide to the Laws of Practicing Medicine by Physicians and Surgeons, Sixth Edition, 2010, Medical Board of California (http://www.mbc.ca.gov/publications/laws_guide.pdf)
  • 8. Contrast: The Physical Therapy Board’s Standards for Recordkeeping  Unlike the Medical Board, this is governed by Physical Therapy Board Regulation:  Title 16, Cal. Code Regs. § 1398.13 provides that a physical therapist shall document and sign specific things in the patient record.  Like the Medical Board, failure to do so can be “unprofessional conduct.” (Bus. & Prof. Code § 2660(i)).
  • 9. Contrast: The Physical Therapy Board’s Standards for Recordkeeping  Board Regulation 1398.13 requires the following to be documented in the record: ○ (1) Examination and re-examination ○ (2) Evaluation and reevaluation ○ (3) Diagnosis ○ (4) Prognosis and intervention ○ (5) Treatment plan and modification of the plan of care ○ (6) Each treatment provided by the physical therapist or a physical therapy aide ○ (7) Discharge Summary
  • 10. Contrast: The Physical Therapy Board’s Standards for Recordkeeping  Contrast with Medical Board record requirements:  PT Board does not rely upon standard of care  Very specific requirements  Does not rely upon “expert testimony” to determine violation  More objective?  More nitpicky
  • 11. Lessons and Final Thoughts  What is a “complete” or legal medical record depends upon the profession of the health care provider  Proper records can be the subject of an expert opinion  Some licensing boards have very specific requirements  Failure to keep proper records is “unprofessional conduct” for most licensed health care providers
  • 13. How Licensing Agencies Build Cases Upon Medical Records After a licensing board receives a formal complaint or has other reason to investigate, it has the following tools to do so:  Subpoenas  Release from complaining party  Interviews  Hospital records
  • 14. How Licensing agencies build cases upon medical records Subpoenas:  Under the Administrative Procedure Act (Govt. Code § 11180), the head of each department may issue a subpoena to investigate: ○ All matters relating to the business activities and subjects of the department's jurisdiction; ○ The violation of any law or any rule or order of the department; and ○ Any other matter that some rule of law authorizes the department to investigate.
  • 15. How Licensing agencies build cases upon medical records  Other methods of licensing Boards obtaining records:  Release from complaining party or patient (often without licensee’s knowledge)  805 Reports/Peer review reports  Reports of Settlement  Hospital records
  • 17. Accusations and Citations For Improper Recordkeeping  Licensing Board actions against health care professionals  Accusations  Citations  Recordkeeping violations (grounds for license discipline)  Failure to keep “adequate” records  Failure to keep records  Failure to document treatment in the records  Failure to document things required by Board (e.g. discharge summary for PT Board)
  • 18. Accusations and Citations For Improper Recordkeeping  How recordkeeping problems manifest in a licensing hearing:  The Golden Rule : “If it is not in the record, it did not happen” ○ Difficult patient ○ Referrals ○ History & Physical ○ Prescribing cases ○ Pain management
  • 19. Accusations and Citations For Improper Recordkeeping  If the licensee met the standard of care, it must be in the record ○ Defensive recordkeeping ○ Can be the difference between a finding of negligence or not
  • 20. Accusations and Citations For Improper Recordkeeping  Medical records and use of experts in licensing defense cases  Medical records are the tool of the expert witnesses  Board experts look first at medical records  Medical records can cause license discipline or other issues even if care was proper
  • 21. Accusations and Citations For Improper Recordkeeping  Examples ○ Veterinary Board overnight hospitalization case  Overnight monitoring not in record  Veterinarian provided uncontroverted testimony  ALJ found “no overnight monitoring” ○ Vision insurance audit  All information regarding charges was in record  Auditors could not find it  Finding “optometrist sent in incorrect and unjustified charges” ○ Medical Board LASIK case  Informed consent records  “Eval” versus “Reeval” in cataract case
  • 22. Steven L. Simas, Esq. SIMAS & ASSOCIATES, Ltd. Government & Administrative Law Sacramento -916.789.9800 San Luis Obispo -805.547.9300 www.simasgovlaw.com