PICA cannot determine the scope of practice for any profession. The legal scope of practice is determined by state laws and regulations. Any questions regarding the scope of professional practice should be addressed by the appropriate state podiatric association and other legal or regulatory authorities.

PICA’s professional liability insurance policy excludes “any act committed in violation of any law or ordinance.” A procedure performed which is clearly outside the professional scope of practice as defined by state law is an act committed in violation of the law and would not be covered. If the factual information is unclear, or the legal issues are in doubt, PICA may defend a case under a “reservation of rights,” which will defer the coverage decision until the case is disposed of by trial or otherwise. Where it is important to have legal questions of scope of practice decided before the malpractice claim is adjudicated, a declaratory judgment may be obtained.

When the PICA Claims Department is called upon to decide whether coverage for a particular claim is applicable, the relevant state statute or regulations will be examined. Sometimes, opinions from a court, attorney general, or licensing agency will be consulted. The ultimate determination is always made on the facts of a specific case.

No, a patient is not required to show proof of a service animal. As of March 15, 2011, the ADA only recognizes dogs as service animals. In most cases, a service animal must be harnessed, leashed or tethered. According to the ADA, “If there are no obvious signs as to why the patient needs a service animal, staff is only allowed to ask two questions: (1) is the dog a service animal required because of a disability and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require documentation, require a special identification card or training documentation for the dog or ask that the dog demonstrate its ability to perform the work or task.” More information can be found about service animals at www.ada.gov.

You are strongly encouraged to obtain a legal opinion prior to offering any discounts. You need to be in compliance with federal fraud and abuse laws, which are extremely complicated. Physician practices should develop a corporate compliance policy with the assistance of an attorney, who is well versed in such matters. According to the Office of Inspector General (OIG) Compliance Program for Individual and Small Group Physician Practices, published in the Federal Register October 5, 2000, specific risk areas in which physician practices may be vulnerable include coding and billing, provision of reasonable and necessary services, documentation and improper inducements, kickbacks, and self-referrals.

No. It is not acceptable to offer discounts to Medicare or Medicaid patients. For private insurance patients, any discount would have to be passed on to the insurers. Additionally, it is not acceptable to offer coupons or discounts to waive co-pays or deductibles. We suggest you refrain from offering discounts for services not covered by insurance, as well because each state varies on whether or not it is legal to do so. If you are still considering offering discounts or coupons, consult a local attorney to determine if your state allows this practice.

You could be held liable for the actions of another doctor in your office even when there is no actual employment relationship or partnership if it appears that such a relationship exists (the doctrine of “apparent agency”). For example, a patient might assume a relationship exists if all doctors’ names are on the sign outside the building, letterhead, business cards, billing forms, etc.

You can reduce your risk:

• Through proper patient information and disclosure practices that inform patients of the independent practitioner status of other healthcare professionals who share your office space.
• By defining all business associations related to your practice by a written contract that outlines the terms of your practice agreement (all contracts should be drafted and/or reviewed by an attorney).
• By requesting proof of professional liability insurance from all other healthcare professionals with whom you share space.

Writing a response back to the patient can be viewed as a HIPAA violation because you are confirming that the person writing the review is in fact a patient of yours. You may call the patient directly and try to resolve the issue. Otherwise, the best practice is to let the comments go and move on.

Malpractice risk issues: Screening participants could result in allegations of malpractice such as failure to diagnose, failure to treat, etc. In order for malpractice to occur, a doctor-patient relationship must have been established during the screening. In order to educate participants that no relationship exists and to defend against allegations that a relationship was created by a screening exam, podiatric physicians are encouraged to have the people being
screened sign a form setting forth the understanding:

• That a physician-patient relationship will not be created by the screening.
• The examination is limited to that which is being screened for.
• That any condition for which medical care may be needed should be followed up with a physician of his/her
  own choice.

The form should contain very simple language with initials for each item and a signature on the bottom of the page. A separate form should be utilized for each participant. It is recommended that these records be maintained for at least 10 years.

Confidentiality risk issues: Under the Health Insurance Portability and Accountability Act (HIPAA), physicians must be careful not to violate an individual’s right to privacy. Perform screening examinations in an area that provides for privacy. Conversations with participants should be held in a private area to guard against being overheard by others. Any personal health information should be safeguarded, just as in the office setting.