Practice Management Q&As

December 1, 2006

Subpoenaed records; restrictive covenant; reciprocal billing

Is that patient new or established?

When I leave my current job to open my own practice nearby, I expect some patients will follow me. When I see them at my office, should I bill them as established patients or new patients?

It depends. Here are two clear cases, based on Medicare guidelines: If a patient you've treated for a specific problem on a routine basis sends you his record and follows you to your new practice, bill him as an established patient. If he follows you, sending his record, but you haven't seen him for three years, bill him as a new patient.

Disclosing protected health information in court

Does HIPAA prevent me from discussing a patient's treatment during the course of a small-claims suit? I'd like to sue a patient who refuses to pay me, but other people will probably be present in the small-claims courtroom for their own cases.

No, you can bring your case to small claims court, even though there will be other people there who might hear what goes on. Under HIPAA, a covered entity may use or disclose protected health information during a legal proceeding. That means you may divulge such information as a plaintiff in a suit to obtain payment.

However, HIPAA also requires that you make a reasonable effort to limit your disclosure to the minimum necessary to accomplish your purpose. So don't bring up any treatment details that don't directly relate to the issue of your getting paid.

It may be a good idea for you or your attorney to call the court clerk beforehand to advise him if your case involves a sensitive medical issue. It's possible the judge may agree to hear your case in the privacy of his chambers.

It's also important to have your attorney check the privacy requirements under state law, as well.

Billing for preventive counseling

Several healthy and fit patients have asked me for strategies on how to keep from gaining weight. Since they don't have any health problems associated with their weight, is there any way I can get paid for such counseling?

Bill using the preventive counseling CPT codes 99401-99404. However, whether you'll get paid depends on the patients' health coverage. So have these patients sign an agreement assuming responsibility for payment if their insurance plan doesn't cover your services. Have Medicare patients sign an Advance Beneficiary Notice. thank her for her assistance.

Is this restrictive covenant enforceable?

Our employment contract includes a noncompete clause that prevents doctors who quit from practicing within a 25-mile radius of our group for a year. However, the contract doesn't address what happens if we fire someone. If we let a doctor go, can we still enforce the noncompete clause?

No, because your contract's language doesn't specifically state that the restrictive covenant applies when a doctor is fired. It only addresses what happens if he quits.

If your practice wants to add such a provision to the contracts currently in force, you'd have to write an appropriate agreement that would bind the doctors to submit to the restrictive covenant if they're fired. But since they'd be giving up a right they have now-to stay in town and practice-your group would have to "purchase" this new restriction. That means providing a substantial employment benefit (a bonus or more vacation, for example) for the doctors who are willing to sign the new contract.