Question For Patients

[Morhawk]

I'll admit I am unsure of the civilian standards of HIPAA.. But in my area, even if HydroJoe has the oppurtunity to look down even for a second and possibly see even just which box is checked (slightest bit of medical information, we obviously don't use the MMMA forms..lol) that is a violation. Unless of course, the patient gave the OK for HydroJoe to deal with his/her records.

[Dr. Bob]

Recently the status of the physician certification and patient application packet for medical marijuana has been questioned in a court case. As patients, what do you consider 'medical records', are these documents private to you, and who should retain them- the physician who saw you or the people that held the 'clinic event' and why? Just want to get the general feelings of the community.

 

Medical records state what my conditions are and should not be seen by anyone but the doctor. Isn't that our right as patients to expect our records to be confidential? I would not want staff reading my "chart", I do not know them and may never meet them, I put my trust in the doctor to keep my records safe and do not want the clinic to keep them.

 

My thought is that if a physician sees a patient professionally, evaluates their condition, and makes recommendations the record of that visit is a 'medical record' to be retained by the physician. The physician needs to have those records on hand to defend the certification in court and before the medical board if questions arise. I also feel they have the same privacy needs of any other medical record. The law requires the doctor to maintain those records for a period of 7 years because of the possibility of having to refer back to them in a court or board hearing. Do you agree or disagree and why?

 

I agree and there is no reason to state why because I agree with what you have written.

Recently the status of the physician certification and patient application packet for medical marijuana has been questioned in a court case. As patients, what do you consider 'medical records', are these documents private to you, and who should retain them- the physician who saw you or the people that held the 'clinic event' and why? Just want to get the general feelings of the community.

 

Medical records state what my conditions are and should not be seen by anyone but the doctor. Isn't that our right as patients to expect our records to be confidential? I would not want staff reading my "chart", I do not know them and may never meet them, I put my trust in the doctor to keep my records safe and do not want the clinic to keep them.

 

My thought is that if a physician sees a patient professionally, evaluates their condition, and makes recommendations the record of that visit is a 'medical record' to be retained by the physician. The physician needs to have those records on hand to defend the certification in court and before the medical board if questions arise. I also feel they have the same privacy needs of any other medical record. The law requires the doctor to maintain those records for a period of 7 years because of the possibility of having to refer back to them in a court or board hearing. Do you agree or disagree and why?

 

I agree and there is no reason to state why because I agree with what you have written.

 

Good post, but I am sure that while you don't want 'staff' reading your records, you do realize that there are certain functions like copying and placing them in a file (secretarial type work) for review by the doc that is quite appropriate for them to do. They are also available to double check the forms to make sure they are filled out correctly IF you want to allow them to do that, but in any event they also offer guidance on how to submit the forms to the state, go over your check list for submission, etc. That certainly does not involve 'reading' your records, other than perhaps making sure a condition box is checked (and even that access is under YOUR control, you are not required to have them do that).

 

Dr. Bob

[Dr. Bob]

I'll admit I am unsure of the civilian standards of HIPAA.. But in my area, even if HydroJoe has the oppurtunity to look down even for a second and possibly see even just which box is checked (slightest bit of medical information, we obviously don't use the MMMA forms..lol) that is a violation. Unless of course, the patient gave the OK for HydroJoe to deal with his/her records.

I'll admit I am unsure of the civilian standards of HIPAA.. But in my area, even if HydroJoe has the oppurtunity to look down even for a second and possibly see even just which box is checked (slightest bit of medical information, we obviously don't use the MMMA forms..lol) that is a violation. Unless of course, the patient gave the OK for HydroJoe to deal with his/her records.

 

Tell you a true story, when Hippa first came out we looked at the standards. We figured the only way we could fully comply with the privacy was to first of all get rid of the sign in sheet. Second, patients could see other patients in the waiting room, therefore knowing they were at the doctor for medical treatment (a violation). We considered individual waiting rooms, then settled on a private entrance. The patient would come in, we would give them a brown paper bag with a number on it, and lead them to the waiting room. Get the idea, you have to trade practicality for strict to the letter compliance at times.

 

But you point about giving hydrojack permission is correct. I guess if you were worried to the point you were afraid a box could be seen, you could make the copies yourself, BUT for that very purpose, when I send them up, I generally put either the driver's license or the demographics sheet on top (over the certification form) and they are copied through the feeder. That way no stray eyes can see the box. Not a perfect system, but we try.

 

Dr. Bob

[Dr. Bob]

Wait a sec, HydroJack is a real person in here, I was just using a generic name (like Joe Plumber) so don't consider my comments directed at HJ. Sorry about that.

 

DB

[Dr. Bob]

http://biotech.law.l...oks/lbb/x71.htm

 

Medical records are business records for the purpose of the hearsay rule. Medical record-keeping procedures must fulfill the legal requirements of the business records exception if a medical record is to be admissible in court. This exception to the hearsay rule requires that the record meet four basic tests:

1. The record was made in the regular course of the business.

2. The entry in the record was made by an employee or representative of that business who had personal knowledge of the act, event, or condition that is being recorded in the record.

3. The record was made at or near the time that the recorded act, event, or condition occurred or reasonably soon thereafter.

4. The records were kept in a consistent manner, according to a set procedure.

http://biotech.law.l...oks/lbb/x71.htm

 

Medical records are business records for the purpose of the hearsay rule. Medical record-keeping procedures must fulfill the legal requirements of the business records exception if a medical record is to be admissible in court. This exception to the hearsay rule requires that the record meet four basic tests:

1. The record was made in the regular course of the business.

2. The entry in the record was made by an employee or representative of that business who had personal knowledge of the act, event, or condition that is being recorded in the record.

3. The record was made at or near the time that the recorded act, event, or condition occurred or reasonably soon thereafter.

4. The records were kept in a consistent manner, according to a set procedure.

 

But are they ONLY business records or are medical records at a different level? It seems to me you are discussing how they are viewed as testimony in court, not what they are, privacy issues, and the relationship between them, the clinic, the patient, and the doctor.

[Morhawk]

But are they ONLY business records or are medical records at a different level? It seems to me you are discussing how they are viewed as testimony in court, not what they are, privacy issues, and the relationship between them, the clinic, the patient, and the doctor.

 

Oh I dunno, that's the only thing I could find on it is all.. I couldn't make heads or tails of it honestly.. lol

[Dr. Bob]

why don't you have a look at laws related to the retention of records, like the public health code, bet you will find some interesting things there.

 

db

[AKenewell]

I agree with much of what you are saying but you didn't address the core question clearly. Are certification documents treated as medical or business records by your practice? Does your doctor own the records or the administrative/non-medical staff? Obviously I know the answer but I want to see it clearly stated by the folks involved.

 

As for practice models, I feel that brick a mortar offices are clearly indicated to provide a place for the patients to go for follow up, the records should be stored and accessible to the physician, good medical practices should be followed, and the standards should remain the same whether the visit is conducted at the office or at an outreach clinic. Much of the area I serve for example is very rural and cannot support a local certification clinic full time. Outreach clinics meet the need NOT being met by local physicians with their patients, though I would just as soon not do them until the local docs start carrying their load and caring for their own patients, someone like me has to certify them.

 

The point you raised about doing the majority of practice in certifications is valid. The medical board did put out guidelines, which contained two distinct parts. One is a desired practice model (primary care) for certifications, which is what you are referring to. The other is actual standards for a certification (face to face visit, records, follow up, etc). Until we have the participation of local physicians, we aren't going to have the practice model they want- though many of us (including me) do things other than certification in our practices, have fixed clinics, etc, we do what is in the best interests of our patients given the hands we are dealt. Hence dedicated certification clinics still exist. The challenge for us now is to stay as close to BOTH sets of guidelines as we can, and take steps to justify ANY deviation we make from them before the board if we are ever questioned.

 

As explained to me when I asked the enforcement division of the medical board, back when the guidelines were released in Feb, so long as I stayed within the guidelines, there would be no question. If I deviated from the guidelines for good medical reason, it would be evaluated if a question was raised and my thought process and decision making would need to be explained. If it was a valid reason for deviation, it would be fine. He ended up by saying there were enough blatant violations going on elsewhere to keep them busy, they are NOT worried about a good, standards based, practice that had to occasionally set out of the guidelines in the best interest of a patient in a given situation. Especially when dealing with things that are well accepted elsewhere in medicine.

 

Dr. Bob

 

The certification documents copied and retained in the patient's chart as part of their regular medical record keeping are simply medical records. Now, some might want to argue otherwise... for whatever reason. In addition to the physician, the patient also owns those records. And as part of the process used in this program, the patient will mail their cert forms to the state for registration. While in the mail, the records are protected by the laws governing US mail. And in the hands of the state, they are protected by the confidentiality provisions of the MMP. But at some point in that process, they might be considered to no longer be 'medical records' and to now be simple registration forms in the hands of the patient conducting business and, as such, be considered to be business records. I should also state that nobody else should have these records outside of the doctor, his staff who are acting as an extension of the doctor, or patient so the question of them being a business record is not relevant unless the patient is doing some other business with them. Example: Leaving copies of them at a dispensary or some such thing.

 

To get to your other point about clinic versus doctor, who owns the records? The answer is that the physician does. The privacy protections afforded to the records are an extension of the doctor/patient relationship. But in a practical sense, the clinic itself may possess the records, and if or when a new physician steps in to cover or to take over the patient, the new protections might be an extension of him. For the previous physician to gain possession of the records of his patient, he wouldn't be able to say 'Hey, give me all of my patients' medical records.' The physician would need to submit a medical records request signed by the patient, specifying name, SSN, date of birth, etc. for each and every patient whose records he is requesting.

[restlesslegs]

I am sure that while you don't want 'staff' reading your records, you do realize that there are certain functions like copying and placing them in a file (secretarial type work) for review by the doc that is quite appropriate for them to do.

 

Yes I understand that Bob and that does not concern me because I know they are so busy they don't really have the time to look at them in fine detail. I am referring to the fact if the clinic were to retain them I do not know who the staff will be or how many people will have access to the records. I would much rather have a doctor or his office retain them, I have much more faith in that keeping my information private then I do a clinic.

[Dr. Bob]

gotcha

[Dr. Bob]

Hey in the interest of fairness, the folks that claim the certification documents are only 'business' records have been circling this thread all morning. Let's let them come on and clearly state why they feel the certification documents are not medical records, tell their side of the story so to say. I'd rather they had the courage to come out and explain themselves to the community rather than call them out by name. So I'll give them the chance over the next couple of hours. It is important to get input from all sides rather than just go off with half and try and make a decision or comment. Let's hear what they have to say....

 

Dr. Bob

[AKenewell]

Hey in the interest of fairness, the folks that claim the certification documents are only 'business' records have been circling this thread all morning. Let's let them come on and clearly state why they feel the certification documents are not medical records, tell their side of the story so to say. I'd rather they had the courage to come out and explain themselves to the community rather than call them out by name. So I'll give them the chance over the next couple of hours. It is important to get input from all sides rather than just go off with half and try and make a decision or comment. Let's hear what they have to say....

 

Dr. Bob

 

I second that!

[LITLJON]

"CLINIC" I could open a place on passing gas and call it a clinic. It is a health diagnostic done by a licenced physician stating health issues, Isn't it just comman sense or should I say "DUH". It is up to the physician to ensure his records are kept in accordance of the law especially when it comes to what I call pop up clinics ( 'certification clinic events' ). Here today gone tomorrow. It is the patients responsablity to ask the about procedures and how your records are handled. Simply said Direct your heath care don't let it direct you. (are you not appalled?), It's your backside is on the line where do you want your records when you have to testify? With a fly by night clinic (AS MANY ARE OR WHERE IMO) that may or maynot exsist any longer? No protection of privacy. What happens to these records when a clinic closes? How big of a bribe did this guy pay judge?

But the question is 'are the application documents and physician certification form medical records and why?' A recent court ruling, at the request of non-physicians who run 'certification clinic events', says they are not. Similar situation to what was described concerning THCF leaving the state (see above), though they were not the 'clinic' involved.

 

Dr. Bob

[Dr. Bob]

Any other inquiring minds out there? Anyone else want to hear why certification documents are NOT medical records, right from the horse's mouth?

 

Dr. Bob

[SFC]

Just wanted to say Awesome thread guys/gals. This is a VERY important discussion.

[GregS]

The law puts the onus on physicians to perform a duty. This is so simple.

 

What has me worried is that I find myself aligned with Resto on a lot of recent issues.

[Honeyoil]

Any other inquiring minds out there? Anyone else want to hear why certification documents are NOT medical records, right from the horse's mouth?

 

Dr. Bob

I'll bite.

[Mememe]

The program was initially overseen by the Department of community HEALTH. The law written asked if people should be allowed marijuana for MEDICAL reasons. The Department of Community Health previously refused to release information of medical marijuana users to federal investigators, citing patient confidentiality.

 

How are completed forms not considered medical records?

[Dr. Bob]

why don't you ask the folks that said they are not. They have been watching this thread. There are other relevant questions to ask, shall I ask them? Like look at our opposition to the HB releasing this information, Schuette supports the release of the information, how does this play into that? What do you think the Reps think when one of OUR OWN 'CLINICS' minimizes the sensitivity of this information to the level of just calling them 'business records'???? There is even a deeper question out there.

 

I am still waiting for them to come forward and respond with their side of the story, I am simply pointing out facts and bringing them to discussion. I am going to name them in about 20 min if they haven't come forward. With examples.

 

Dr. Bob

[restlesslegs]

why don't you ask the folks that said they are not. They have been watching this thread. There are other relevant questions to ask, shall I ask them? Like look at our opposition to the HB releasing this information, Schuette supports the release of the information, how does this play into that? What do you think the Reps think when one of OUR OWN 'CLINICS' minimizes the sensitivity of this information to the level of just calling them 'business records'???? There is even a deeper question out there.

 

I am still waiting for them to come forward and respond with their side of the story, I am simply pointing out facts and bringing them to discussion. I am going to name them in about 20 min if they haven't come forward. With examples.

 

Dr. Bob

 

Times Up! I really want to know what this is about. IF they make it where these are not considered Medical records then they are fair game for gov't officials. No way do any of us need that to happen, dang scary!

[Dr. Bob]

Ok folks, here is the link to answer all your questions. You remember when Schuette was holding his 'Clearing the Air' closed seminars? Remember when we kicked in the doors and turned the non-medical marijuana community against his idea for no warrant searches??? Well the same folks that don't think certification forms are medical records had their say to distract the conversation to their benefit. Check out the report of my old arrest by Michael M. Then see how that same name was registered to our friends.

 

http://www.mlive.com/news/saginaw/index.ssf/2011/11/medical_marijuana_advocates_to/3472/comments-6.html

[Dr. Bob]

Dr. Bob- Proudly posting under my own name....

Note, Michael Mallette registered on my website on 7-20-11 using the email mobilemarijuana@gmail.com and the user name caninabus0420

[Dr. Bob]

So we have certification documents are not medical records, and not protected just like Bill Schuette says

We have undermining the rallying of the community against the invasion of privacy suggested by BS, under a false name no less.

We have post cards mailed to patients to solicit recertifications, showing everyone with eyes that you are a medical marijuana patient in the name of a buck or two (or $120)

 

Kinda makes you wonder what you are supporting when you 'renew by mail' with them or head over to the hotel to fill out an 'affidavit'. Now what effect does this have on the community, the Act, and certification in the eyes of the public? And how long are you going to tolerate it with your certification dollars?

 

Dr. Bob

[Dr. Bob]

You had your chance to come forward Alternative Solutions Plus. Do so now and answer to the community.

[Dr. Bob]

nuff said

Edited April 25, 2012 by Dr. Bob