There are several risks which physicians may encounter if they fail to comply with applicable laws and regulations, including disciplinary action against their medical license, post-payment audit and recoupment, fines/penalties, and other liability risks. As a best practice for managing risks associated with non-compliance, physicians should periodically evaluate their medical practices to ensure they comply with applicable laws and regulations. The following is a list of five compliance questions which every physician should ask themselves.

1. Do I have all of the licenses and registrations I need for my medical practice?

Although a Michigan license to practice medicine enables a physician to perform most acts and tasks that fall within the practice of medicine for patients located in the State of Michigan, many physicians are unaware that they may not have all of the licenses required under Michigan law for their medical practice.

  • Michigan Controlled Substance License: In addition to registering with the federal Drug Enforcement Administration (DEA), Michigan physicians who wish to prescribe, possess, store, or dispense controlled substances are required to obtain and maintain a Michigan Controlled Substances License for each principal place of business or professional practice location from which such controlled substances activities occur.
  • Michigan Drug Control License: Physicians who wish to dispense prescription drugs (including non-controlled or controlled substances but excluding complimentary starter dose drugs) from a location other than in an emergency department, emergency room or trauma center of a licensed hospital for offsite administration or consumption must obtain and maintain a Drug Control License for each location in which the dispensing of prescription drugs occurs.
  • Out of State Licenses and Registrations: Physicians who treat patients who are located outside the State of Michigan, including via telemedicine, are subject to the licensing and registration laws of the state in which the patient is located. Importantly, most states require out-of-state physicians to obtain separate licensure or registration (e.g., telemedicine registration) in order to treat patients within their state.

2. Have there been any recent updates or changes in the law that affect my medical practice?

Physicians who fail to routinely monitor for new or changings laws, rules and regulations affecting their medical practice risk having an increased financial, licensing and/or other liability exposure for non-compliance. Examples of recent changes in Michigan laws, rules and regulations affecting Michigan physicians and other health care providers include the Michigan "surprise billing" legislation and prior authorization reform legislation.

3. Are my medical documentation practices compliant?

Michigan law generally requires physicians and other health care providers to keep and maintain a record for each patient for whom he or she has provided medical services, including a full and complete record of tests and examinations performed, observations made, and treatments provided. Third party payors also impose various documentation requirements to support payment of claims submitted for services rendered by providers, such as medical necessity.

Although the administrative burden of medical documentation can be onerous at times, physicians who use electronic medical record systems (EMR) to document services rendered should use caution when using various features provided by the EMR to streamline medical documentation, such as check boxes, templates and other auto-fill-in options which allow for information to be replicated from patient to patient or from visit to visit. Physicians who over-rely on these time-saving functions may risk challenges to the integrity of their medical records, whether during a post-payment audit by third party payors or while defending a medical malpractice claim or licensing investigation.

4. Do I have adequate liability insurance?

Medical malpractice claims and licensing investigations are individual liabilities which physicians cannot avoid even if services are rendered on behalf of or through a medical practice group or other legal entity. Physicians who are underinsured may experience increased financial liability exposure related to their medical practice. A physician may be underinsured if:

  • The available coverage limits fails to adequately consider the physician's liability risk;
  • The physician receives claims-made professional liability coverage through his or her employer and the physician and/or the employer fails to purchase "tail" coverage for claims made against the physician for services rendered during the physician's employment but which are not brought until after he or she has left the employer;
  • The physician's professional liability coverage does not provide coverage related to various investigations and enforcement actions by state or federal agencies, such as a licensing investigation by LARA.
  • The physician does not have adequate insurance for claims unrelated to medical malpractice, such as commercial general liability, workers compensation, directors and officers liability and property coverage.

Physicians who maintain their own insurance should contact their insurance agent to determine whether their current insurance is adequate for their practice. If insurance is furnished by the physician's employer or another facility, the physician should confirm available coverage, any limits or restrictions to such coverage, and options for obtaining supplemental or other coverage in necessary to ensure adequate protection from various claims.

5. When is the last time I had my medical practice reviewed for compliance?

Physicians should conduct periodic reviews of their medical practice policies and protocols for compliance with applicable laws and third-party payors requirements. This should include an assessment of various risk exposures, including, but not limited to, HIPAA, medical documentation, billing, electronic/data privacy, workplace safety and staff training. This risk assessment should be overseen by and reviewed with experienced legal counsel to identify potential risk exposures. Depending on the physician/practice's level of risk, other compliance consultants and experts, such as a medical billing consultant, should be engaged to review the physician's medical practice and liability exposure and make recommendations for new or changes to existing policies and protocols.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.