FAQ

This FAQ is for general information only and is not intended to provide legal advice or to create an attorney-client relationship with any individual or entity.

2019-2020 Resource Guide

For questions regarding ethics please visit the AOA Ethics Forum. For licensing questions please visit the Department of Licensing and Regulatory Affairs (LARA) website or contact them at:

Department of Licensing and Regulatory Affairs
P.O. Box 30018
Lansing, MI 48909
Phone: 517-335-0918
Fax: 517-241-0032
Email: BPLhelp@michigan.gov

New Michigan Professional Licensing User System (MiPLUS) FAQ

State of Michigan Optometry Law

A listing of state board examinations required in addition to the National Board's examinations can be found at the NBEO's web-site at http://www.optometry.org/state_requirements.cfm 

CE CREDIT QUESTIONS

Q: Does the MOA track my CE credits?

Since the MOA implemented the OE Tracker system with ARBO in 2004, all credits can be reviewed at www.arbo.org However, the MOA does have record of registered courses, but does not have proof of attendance, which is scanned into the ARBO system from your name badge at MOA Seminars.

ARBO
Phone: 886-869-6852
Fax: 886-886-6164
Email: arbo@arbo.org
Website: www.arbo.org

Q: Does the MOA provide a certificate of completion for Continuing Education courses offered by the MOA?

No, since the MOA implemented the OE Tracker system with ARBO in 2004, the MOA has not printed certificates for Continuing Education (CE). As you may know, CE documentation and attendance history is stored in the OE Tracker database. This electronic scanning system directly records courses you attend and the MOA does not have access to this database. However, the MOA does keep copies of your registration forms, but does not have proof of attendance, which is scanned into the ARBO system from your name badge at MOA Seminars. ARBO does track all the specifics for courses attended. As of July 15, 2009, ARBO implemented a $20 Annual Administrative Fee for each optometrist per year for complete access to your OE TRACKER account. This $20 fee is the responsibility of each O.D. to elect to purchase for total access to your OE Tracker account.The $20 annual fee allows you to continue to receive complete access to your CE attendance history in the OE TRACKER database.

  • Review your CE attendance information electronically, 24/7.
  • Reduce paperwork and filing with online storage of CE certificates.
  • Receive complete access to your course history including course title, COPE ID# (if COPE-Approved), category, format, date, instructor, provider and number of hours.
  • Track the number of hours you have earned and the hours required by state for license renewal.
  • Print a chronological CE transcript or paper certificate, if required by your licensing board, to use as proof of attendance.

If you choose not to pay the Administrative Fee, ARBO will continue to collect and store your CE attendance data, but you will only have limited access to your OE TRACKER account. You will be able to login to your account and will only be able to review the number of CE hours you have earned listed by the date of attendance.

Q: What are the CE requirements for first time optometrist licensure?

First time optometrist licensure is for 1 year, with no requirements regarding CE to renew. When renewing at 1 year mark (for 2 year license), then required to have 40 hours of CE (20 of which is TPA) in order to renew again.  For further information, click here.

Q: Are we limited in how many online CE credits we may earn?

A maximum of 20 hours relating to self evaluation journal tests and multimedia education, including online continuing education.

Q: What are the COPE course category definitions?

CLINICAL OPTOMETRY

  • Contact Lenses (CL) All aspects of contact lens therapy inclusive of keratoconus and postsurgical treatments.
  • Functional Vision/Pediatrics (FV) Those portions of optometric practice that deal with visual processing and neuro-optometric rehabilitation, including sports vision; binocular vision; and visual training or vision development courses.
  • General Optometry (GO) Any study in the area of the eye and vision care, which constitutes eye and vision research, or examination, diagnosis and treatment of anomalies of the human eye and visual system. For the purposes of these categories .General Optometry. excludes any other category enumerated here.
  • Low Vision (LV) All aspects of low vision devices, care and therapy.

OCULAR DISEASE

  • Glaucoma (GL) The study of the etiology, clinical pathophysiology, diagnosis, treatment, management, and the outcomes of therapeutic regimens for the ocular condition involving the relationship of intraocular pressure and abnormal optic nerve function. Examples: Any course with major emphasis on diagnosis, treatment, and/or surgical and medical management, of glaucoma (i.e., trabeculectomy, laser surgery for glaucoma).
  • Peri-Operative Management of Ophthalmic Surgery (PO) The study and clinical training of any ophthalmic surgical procedure of the eye and adnexa (not to include any other procedures covered in other categories). Examples: Includes all aspects of pre- and post-operative management of ocular surgery care (excluding Refractive Surgery), i.e., cataract, lid surgery/procedures, strabismus surgery, keratoplasty, etc.
  • Refractive Surgery Management (RS) Instruction and/or clinical training in refractive or photorefractive technologies, which may include Peri-operative Patient Management: Counseling and evaluation for indications or contraindications in patient selection, including recognition of associated complications and course of action in analysis and treatment. Examples: Courses related specifically to management of PRK, RK and LASIK patients; corneal refractive surgery, etc.
  • Treatment & Management of Ocular Disease: Anterior Segment (AS) The study of the etiology, clinical pathophysiology, diagnosis, treatment, management, and outcomes of therapeutic regimens for anomalies of the anterior segment of the human eye. Examples: Keratitis, anterior uveitis, conjunctivitis, blepharitis, lid anomalies, foreign body removal, etc.
  • Treatment & Management of Ocular Disease: Posterior Segment (PS) The study of the etiology, clinical pathophysiology, diagnosis, treatment, management, and outcomes of therapeutic regimens for anomalies of the posterior segment of the human eye. Examples: Degenerative, infective, and vascular diseases of the retina/choroid/sclera and optic nerve, inclusive of all aspects of surgical care involving the posterior segment of the eye, i.e., retinopathies, neuropathies, retinal laser surgery, retinal detachment surgery, etc

RELATED SYSTEMIC DISEASE

  • Neuro-Optometry (NO) The study of the etiology, clinical evaluation, diagnosis, treatment and management of disease and disorders of the nervous system, both systemically, and as it relates directly to the eye and visual system. Examples: Includes all aspects of nervous system conditions involving the brain, cranial nerves, spinal cord, peripheral nerves, and corresponding muscles, i.e., multiple sclerosis, pituitary tumor, brain trauma, Myasthenia Gravis, papilledema, Horner.s Syndrome, etc.
  • Pharmacology (PH) The study of the interaction of chemical agents with biological systems. Examples: Toxicology; adverse effects of systemic drugs; adverse effects of ocular drugs; control of ocular pain. Any courses related to medications and how they affect the various tissues or their mechanism of actions.
  • Principles of Diagnosis (PD) The study of the art and science of the process of determining the nature and circumstances of a diseased condition with emphasis on the biological and clinical procedures utilized in medical examination and disease differentiation, and underlying clinical pathophysiology, e.g., corneal topography, visual fields (unless specific to glaucoma); laboratory testing and imaging; fluorescein angiography; gonioscopy.
  • Systemic/Ocular Disease (SD) The study of the relationship of any anomaly of normal function of the human body and the possible manifestation of such as signs and/or symptoms in the eye or visual system. Examples: General study of diabetes,HIV/AIDS, thyroid disease, etc., along with their ocular manifestations. Vascular diseases both systemic and ocular.

(OPTOMETRIC) BUSINESS MANAGEMENT

  • Ethics/Jurisprudence (EJ) The study of body of law and ethics in the practice of optometry and its relationship to the medicolegal system. Example: Any courses related to rules and practice acts for optometry or addressing medicolegal issues related to patient treatment, judicious prescribing, medical errors and other liability concerns and issues.
  • Practice Management (PM) The study of management of the affairs of optometric practice. This does not include courses that are intended strictly for personal enhancement, business development, or investment prowess. Examples: Concepts in managed care and operations management; courses designed to help market practices; educate and/or manage office staff; improve fiscal efficiency; billing and coding, clinical record keeping, etc.

Q: How does COPE-approved CE translate to MI license renewal requirements?

Click here to download 

Q: How many CE credits are optometrists required to obtain in Pharmacologic Management of Ocular Disease (PMOD), and what CE courses qualify for this category?

Michigan Optometrists are required to have 20 credits in PMOD every two years to maintain their license. There is some debate about what constitutes a PMOD credit - the Michigan Board accepts all COPE credits, but classifies courses differently than COPE. It is therefore the OD's responsibility to be sure that a lecture's content is appropriate and that the majority of the course deals with PMOD. Furthermore, if audited, the OD must have proof of the content beyond the lecture title. So it is strongly recommended that you save your lecture handouts. There are two further qualifiers about which optometrists must be aware: 1) The Board of Optometry only considers the content relevant and valid to count toward the PMOD requirement if the content directly relates to the procedures and medications that Michigan Optometrists are legally allowed to perform or utilize. For example, a lecture on retina and pharmaceutical agents used to treat retinal disease DOES NOT count as PMOD because optometrists cannot prescribe these medications or perform injections. These lectures would count toward general optometry credits, but not the 20 required PMOD credits. 2) The Board of Optometry may disallow a credit if the lecture clearly promotes a product and is sponsored by the maker of that product or shows some bias. These lectures would not count toward your 40 hours at all. Click here for an expanded explanation of PMOD.

CONTACT LENS / GENERAL PRESCRIPTION QUESTIONS

Q: What is the definition of a prescription for spectacles and contact lenses?

The Eye Care Consumer Protection Act, PA 269, was signed into law by governor Rick Snyder on June 26, 2014.  PA 269 gives the definition of a prescription for spectacles and contact lenses.  Click here to view PA 269

Q: Where can I report the illegal sales of decorative contact lenses?

Notify your local prosecuting attorney about the sale of illegal decorative contact lenses.  For a list of prosecutors, by locations, click here.  For more information please refer to PA 269 of 2014 (The Eye Care Consumer Protection Act), click here. It is also important to notify the AOA of any sales of illegal decorative contact lenses. Please notify Kara Webb at kcwebb@aoa.org or call her at (703) 837-1018.

Q: Am I required to release a contact lens prescription to a patient?

Yes. You must give the patient a copy of the patient contact lens prescription upon the completion of the fitting of the contact lens. You must do so automatically. No request from the patient is necessary and you may not require the patient make such a request.

Q: What are the rules regarding patients who attempt to order contact lenses in quantities that exceed the expiration date of their prescription?

It is a violation of the FCLCA and the FTC Contact Lens Rule for a seller to provide more lenses than the quantity specified by the prescriber. 

Q: Are contact lens sales subject to sales tax?

New Michigan sales and use tax laws which took effect Sept. 1, 2004 require that a sales/use tax be remitted on ALL contact lenses, including those prescribed for specific diseases, i.e., aphakia, keratoconus, anisometropia and bandage contact lenses. Under previous law, contact lenses prescribed or dispensed to correct a person's vision only were subject to the tax but lenses prescribed or dispensed for "medical" reasons were not.

Q: Is an optometrist authorized to prescribe FDA-approved topical solutions, such as Latisse?

Latisse is a topical therapeutic pharmaceutical agent intended to relieve the abnormal condition of the eyelid called hypotrichosis, and it has the effect of causing increased length and thickness of the eyelashes. Michigan law states that TPA-certified optometrists can prescribe any topical drug that treats conditions of the anterior segment of the eye; the official diagnosis in this case would be hypotrichosis. If the optometrist prescribes a topical solution such at Latisse, he/she must document the clinical diagnosis of his/her patient chart to justify the prescription decision.

Q: Does Priority Health require prior authorization for optometrist to prescribe Restasis?

No. Their system does, however, require DEA numbers. Include your DEA number on the Rx for those patients.

Q: Is an optometrist authorized to prescribe medical marijuana to patients?

No. The medical marijuana law, as passed by the voters, does not allow ODs to sign certifications for patients to register as medical marijuana users. Only a "physician" can sign the certification, and "physician" is defined to include only MDs and DOs (MCL 333.26423). Medical professionals aren't going to dispense the marijuana, so it won't be placed in the controlled substance schedule. Medical professionals will simply issue "written certifications" stating what the patient's debilitating medical condition is and offering a professional opinion that the patient will likely receive therapeutic or palliative benefit from medical use of marijuana. The patient then uses the "written certification" to register with the Department of Community Health and obtain a registry ID card. Persons who register in this way are protected from arrest, prosecution and penalty for having or using medical marijuana in accordance with the act. The issue for optometrists is the new law's definition of "physician," which includes only MDs and DOs:"(f) "Physician" means an individual licensed as a physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556."A patient is not a "qualifying patient" unless s/he has been "diagnosed by a physician ...." This means that a person diagnosed with glaucoma by an optometrist cannot be a "qualifying patient." Similarly, a "written certification" must be "signed by a physician...." The bottom line is that a patient who sees an optometrist cannot qualify for registration and, consequently, cannot qualify for these protections. Glaucoma is included in the definition of "debilitating medical condition" in the new law

Q: What eye conditions qualify a patient for a tinted window prescription? Can a window tinting company refer a customer for photophobic testing to acquire tinted windows?

Any condition that causes photophobia should qualify. Those include, but are not limited to, albinism, aniridia, optic neuropathies, retinal disease, iritis, etc.The Michigan Vehicle Code, MCL 257.709, allows a physician or an optometrist to determine that window tinting of the driver side window and the front passenger window of a car is a "medical necessity" and to provide signed documentation of this necessity for the patient to carry. This is a question of the optometrist's professional judgment. If a patient is truly photophobic and the OD believes that tinting is a medical necessity, it is not a problem if the tinting company refers the patient to the OD for a prescription. The tinting company is just trying to comply with the law and the OD is exercising their professional judgment that there is medical necessity for tinting the windows.

Q: As a VISION USA provider, am I required to release a prescription to the patient?

Yes - Prescription release is required regardless of the nature of the exam. The charitable element of the VISION USA exam does not preclude a doctor from having to release the prescription.

Q: How do I respond to prescription requests from a Contact Lens Retailer?

Requests for copies of a prescription by a contact lens seller are different than the standard prescription verification requests that are sent following a patient's order of contact lenses. They are less common than verification requests, so some doctors and their staffs may not see them frequently and may have questions about how to respond. The most important thing to remember about a request for a prescription is that you must respond. There is no "passive" response to a request for a copy of a prescription from a seller from which your patient is purchasing lenses. According to the federal Contact Lens Rule, individuals prescribing contact lenses must:

  • Give a copy of the contact lens prescription to the patient at the end of the contact lens fitting-even if the patient doesn't ask for it.
  • Provide or verify the contact lens prescription upon completion of a fitting to anyone who is designated to act on behalf of the patient, including contact lens sellers.

While verification requests are still the most common method used by contact lens retailers to check that a customer is ordering the correct lenses, requests for actual copies of prescriptions have become increasingly common. 

Remember, prescribers have an obligation under the Contact Lens Rule to respond to requests for prescriptions from retailers.

The Fairness to Contact Lens Consumers Act (FCLCA) does not require that patients provide written authorization to prescribers to release a prescription. Patients instead typically authorize the contact lens seller to obtain the prescription from their doctor during the ordering process. Prescribers do not have the right under the FCLCA to require that the patient provide written authorization to the prescribers, or to ask to see the authorization given to the seller, before the prescriber sends a copy of the prescription in response to a prescription request.

Releasing a prescription in response to a request from a contact lens seller is not a HIPAA violation. If the requested prescription is expired or otherwise invalid, the AOA recommends communicating that fact promptly to the requesting seller. Previously the Federal Trade Commission (FTC) recommended responding to prescription requests in the same way a prescriber would answer a verification request, which includes the option to inform a seller that a requested contact lens prescription "is inaccurate, expired or otherwise invalid." If a requested prescription is nearing expiration, a doctor may note that in his or her communication back to the seller along with the prescription. Please again note that there is no "passive verification" for a prescription demand, so in all cases you must respond to the request, even if just to report a problem. Reporting Issues to FTC Please report any issues with online contact lens seller violations of the Contact Lens Rule to Kara Webb at kcwebb@aoa.org. Incidents should also be reported directly to the FTC, which oversees enforcement of the Contact Lens Rule. The FTC's online complaint system can be accessed at: ftccomplaintassistant.gov

GENERAL PRACTICE QUESTIONS

Q: Are parents legally required to attend a minor child's medical appointment until the child reaches a certain age (if so, what is that age)?

No, there is no legal requirement, but for the protection of the OD and to ensure an understanding by the patient's family of the health issues, it is good to set a policy requiring parental attendance.  The parent does have access to the child's health records until the minor is 18, whether or not the parent attends the medical appointment.

Health Insurance Portability and Accountability Act (HIPPA) allows parents to access medical records of their minors with these exceptions:

  1. When the minor consents to care and parental consent is not required under State or other applicable law (EX: many state abortion statutes require parental consent);
  2. When the minor obtains care by court order or a person appointed by the court (EX: a guardian ad litem); and
  3. When, and to the extent that, the parent agrees that the minor and the health care provider may have a confidential relationship.

There may be times when a provider may want the parent to step out of the examination room when a child is older, though this is more of an issue for GPs when, for instance, discussing family planning matters with a minor patient. If so, this would fit into item #3 above.

Q: Can psychologists treat patients using vision therapy (e.g. Oculus VR headset)? Are they legally able to do this?

Under Michigan law "vision therapy" or "low vision rehabilitation services" may be performed by an occupational therapist, if the services are provided "pursuant to a referral or prescription from, or under the supervision or comanagement of, a physician licensed under part 170 or 175 (MD or DO) or an optometrist licensed under part 174." (MCL §333.18301).This means a psychologist should not be performing any vision therapy (including by use of an oculus VR headset), unless the psychologist is also a licensed occupational therapist providing the therapy pursuant (i) to a referral or prescription from, or (ii) under the supervision of, an MD, DO or OD.

Q: Can a spouse (non OD) inherit a practice if something were to happen to the optometrist who owns the practice?

The spouse cannot own the practice if they are not licensed. The best structure for this may be to have a buy sell agreement in place.  

Q: Where may I find information about Optometrist Licensure?

Please click here to visit the Michigan Department of Licensing and Regulatory Affairs (LARA).

Q: What is required to obtain the special volunteer license for retired Michigan Optometrists, and where do I apply?

As of January 19, 2012, retired Michigan optometrists may obtain a volunteer license to provide eye and vision care to the indigent and needy, and in medically underserved areas of the state, with immunity from civil liability. These licenses may not be used outside of Michigan, and an individual may not receive compensation for the services they provide using the license. In order to qualify, a retired optometrist's license from when he/she was practicing must have been in good standing prior to its expiration. If the applicant has been out of practice for three or more years, he/she must have documentation of attending at least two-thirds of the continuing education courses or programs required for the renewal of a Michigan optometry license. There is no fee for the issuance or renewal of the volunteer license.To apply for this license:
·Visit the Michigan Department of Licensing and Regulatory Affairs (LARA) by clicking here.·Or click here to download the application.

Q: Are opticians licensed in Michigan?

Opticians are not licensed in Michigan and do not need a professional license to work in Michigan. They do not have their own Board. They would be subject to the Public Health Code only to the extent that they are improperly acting in a way that falls within the scope of a licensed health profession. For instance, if the optician were to conduct eye examinations within the scope of optometry to prescribe contact lenses, that would be the illegal practice of optometry.

Q: Are optometrists subject to the surety bond requirement?

No. The surety bond requirement for DME suppliers traces back to a 1997 federal law that CMS has finally implemented. The AOA and others successfully explained to CMS that the surety bond requirement was not intended to apply to physicians (including ODs). In January 2009, CMS published the final regulations and agreed with us that physicians who supply DME do not need to obtain a surety bond. There are two exceptions. First, CMS does not want DME supply companies to elude the rule by naming a physician as a figurehead, so CMS cautions that the exemption applies only to physicians who supply DME to their patients. When a patient comes into an optometrist's practice for care, a doctor-patient relationship is probably established. Second, since opticians are not physicians, opticians still need a surety bond. If an optometrist employs an optician and the optician has a DME supplier number, then the entire practice might need to obtain a surety bond. We think these two carve outs will not subject many ODs to the surety bond requirement. The bottom line is that all or nearly all ODs who supply post-cataract eyeglasses to their Medicare patients do not need to obtain a surety bond. A new DME supplier enrollment form has a section on surety bonds and includes an option for the OD to check a box that they are exempt from this requirement. If CMS, the National Supplier Clearinghouse (Palmetto) or your DME contractor insists that an OD must obtain a surety bond, then please let us know about that situation.

Q: What state taxes are applied to these optometric related services?

Professional Services, such as eye exams: No
Glasses: No
Contacts: Yes
Solutions: Yes
Cases, Sunglasses, etc: Yes
Provider Tax, Other than regular Income tax: No

Q: May I withold a patient's record?

No, but you are allowed to charge a reasonable fee to release charts (i.e. fees to make copies, etc).  Click here to view the Medical Records Access Act to view the Medical Records Access Act for complete information on this topic.

Q: Where can I get help updating our HIPAA policies, procedures and documents?

The date by which all covered entities must comply with the new HIPAA law was September 23, 2013. The AOA has provided on its website a notice of Privacy Practices document, a Business Associate Agreement and a HIPAA Compliance manual for your reference. Click here for more information and access to these items.The American Optometric Association is providing these forms to its members as a resource. It is not intended to suit all optometry practice or to constitute legal advice. You should review the form in consultations with your legal counsel and make any necessary changes to the form to ensure that it suits your particular practice.

Q: I have a patient who has had difficulty getting his state ID to include his legal blindness definition. The state requires a letter with his acuities as proof. Is this HIPAA compliant?

It is suggested the optometrist write a letter of legal blindness including acuities and give this letter to the patient to present to the State. By providing the letter to the patient, this process would be HIPAA compliant.

Q: What are the minimum requirements for a kindergarten vision screening?

Kindergarten screenings are conducted by local public health departments following the mandate (Public Health Code, Act 368 or 1978) for preschool vision screenings and Kindergarten Entry (K-entry). Here's what they screen:

  • VA at 20/40 passing a minimum of 4 of 6 (tumbling E chart)
  • If the child passes at 20/40, l screen at 20/25 to ID a two-line difference.
  • Alternating cover test at near and far.
  • Corneal reflection test.
  • Observable symptoms (anisocoria, nystagmus, ptosis and strabismus).
  • Self-reported (by parent) eye history.

Best practice is a screening not more than 6 months prior to entering Kindergarten. Screening is free to families through the health department. Schools must ensure that every child entering Kindergarten has had their vision screened. Schools enter into the MCIR by November 1 of each year that the child had their eyes screened/examined. Alternative to our screening is to have a comprehensive eye exam by an optometrist or ophthalmologist. These are the only screenings for K-entry (Revised School Act of 1976). The Public Health Department screening is not meant to diagnosis but to provide a basis for referral for those children who cannot meet these minimums for vision.

Q: I have a registration number from the US DEA, but not a controlled substances license. Do I also need a controlled substances license if I only prescribe non-controlled substances in my practice?

No. A DEA registration is an authorization to prescribe controlled substances under the Federal Controlled Substances Act, 21 USC 823. The Federal Controlled Substances Act requires prescribers to comply with applicable state and local laws, but not all states and localities offer or require an additional license.Article 7 of the Michigan Public Health Code, MCL 333.7101 et seq., is the state Controlled Substances Act. Part 73 of the Public Health Code allows the Michigan Board of Pharmacy, which is under the Department of Licensing and Regulatory Affairs, to issue a state controlled substances license. Part 73 requires a person in Michigan who is licensed to prescribe controlled substances to have a DEA registration. The state license can be suspended or revoked if the prescriber loses the federal license.A DEA registration and a Michigan controlled substances license are only required if an optometrist is prescribing a controlled substance in Michigan. Other medications do not require the registration or the license. However, some electronic systems may require a DEA license or a state controlled substances license as a matter of convenience for running the system. Using the registration and license in this way is not required by law. DEA has formally opposed using the registration number for anything other than prescribing controlled substances, but has no legal authority to prohibit the registration number from being used that way. See DEA Office of Diversion Control, Information and Legal Resources, Questions and Answers, Security (visited June 11, 2013), available at here.To find more information about the Michigan controlled substances license from the Board of Pharmacy, click here.

Q: Where may I find information regarding DEA registration, renewal and my number?

Visit the US Department of Justice Drug Enforcement Administration Office of Diversion Control.

Q: How do I renew my Hydrocodone DEA License?

MOA members have the ability to prescribe hydrocodone combination medications, thanks to your Legislative Committee's efforts. If you have a DEA license and wish to continue to prescribe hydrocodone combinations, you will need to go into the DEA's licensing system and update your records.  
Instructions for Optometrists to Update your License

  • Now that hydrocodone has been reclassified by the DEA to Schedule II, you must request a modification to your DEA registration in order to prescribe hydrocodone combination drugs.
  • You should request the modification IMMEDIATELY, because it may take some time to process your DEA registration modification.
  • Once the modification is approved, Schedule II will appear on your DEA license (in addition to the current Schedule 3, 3N, 4 and 5), along with the statement "Registered activity within schedule is restricted by your state."
  • There is no fee for the modification to your current DEA registration. A new DEA registration will be mailed to you.
  • Here's the steps you'll need to take:

1. Go to: http://www.deadiversion.usdoj.gov
2. Under 'Registration Support', click on 'Registration Changes'.
3. Fill in the pertinent information (it helps to have your DEA registration handy to get the correct info).
4. Under 'Business Activity', click 'Change'.
5. Check 'Schedule II Narcotic'. Leave the other boxes checked.
6. Click 'Update'.
7. Review your information.
8. Type your full name in the E-Signature box.
9. Click 'Submit Application'.If you have any problems, please contact the DEA office at 800-882-9539 or email, dea.registration.help@usdoj.gov.**Originally published in an October 6th E-bulletin to members.

Q: How can obtain my NPI?

Visit the National Plan & Provider Enumeration System website and fill out their online application. Obtaining a paper application form, filling it out, and mailing it to the NPI Enumerator. They can obtain the paper application form (CMS 10114) by downloading it here; by calling the NPI Enumerator at 1-800-465-3203 and requesting a copy; by submitting an application through Electronic File Interchange (EFI). EFI allows an approved organization, after obtaining the permission of a provider, to send the provider's NPI application date to us in an electronic file.

Q: I have two NPI numbers, one for professional services and another for Post-cataract glasses. Do I need two numbers?

Every doctor must have one and only one "type 1" (individual) NPI. Whether a doctor needs a "type 2" (entity) NPI depends on the legal form of the doctor's business. The issue is whether a separate business exists than the doctor's individual identity. The answer to that question is a matter of tax law and state business law. If the doctor has a business identity distinct from the doctor, then the next question is whether the doctor or the business is enrolled as a DMEPOS supplier for eyeglasses. If the individual doctor is enrolled for post-cataract glasses, then it might be more appropriate to link the doctor's type 1 (individual) NPI to the supplier. Another question is whether the doctor assigns benefits to the business and identifies the business as the entity that Medicare should pay (for glasses or for professional services). If the business is appropriate for a type 2 (entity) NPI, then it's important to note that each location might need its own type 2 NPI. Finally, the doctor should be sure that the NPI matches the enrollment - the type 1 NPI should be used for enrollment as a physician in Medicare. The NPI linked to the DMEPOS enrollment for post-cat glasses should match the individual or entity enrolled in the DMEPOS supplier. More detailed information is available by clicking here, particularly in section 4.21 and the "paper" that begins on page 118.

Q: I have a patient who no longer satisfies the vision criteria to drive. Should I report their vision impairment to the Secretary of State, or are there legal implications to consider?

In 2012, Senate Bill 402 amended the Public Health Code to allow physicians and optometrists to report a patient to the Secretary of State or a third party if the physician or optometrist believes that a patient's mental or physical qualifications to operate a motor vehicle jeopardize the safety of people or property. Making a report to the Secretary of State regarding a patient is strictly voluntary and is not required under the law. Making a report triggers an evaluation of the driver's abilities by the Secretary of State.The new law provides immunity for physicians and optometrists who make a good faith report using due care and following the requirements in the law. To qualify for immunity when making a report regarding a patient, a physician or optometrist must document evidence of an "episode" in the patient's record. An "episode" is:

  1. An experience derived from a condition that causes or contributed to loss of consciousness, blackout, seizure, a fainting spell, syncope, or any other impariment of the level of consciousness.
  2. An experience derived from a condition that causes an impairment of an individual's driving judgment.
  3. An experience derived from an impairment of an individual's vision.

In short, an optometrist must record in a patient's record the evidence indicating that the patient may lose consciousness, has impaired judgment, or impaired vision that poses a threat to people and property while driving.Currently, the Secretary of State does not have a special form to make a report under this new provision. However, optometrists may use the Request for Driver Evaluation form available at the Secretary of State website. In the space provided for additional information, an optometrist must provide the recommendation regarding how long a driver's license should be suspended.

  1. For patients with an operator's (ordinary) driver's license, whether the license should be suspended for at least 6 months or longer;
  2. For patients with a commercial driver's license, whether the license should be suspended for at least 12 months or longer.

Because the statute allows warning third parties, it also allows optometrists to suggest that a patient's family members make the report to the Secretary of State themselves. Optometrists who warn third parties should still document evidence of an "episode" in the patient's record.If a physician or optometrist does not report the patient to the Secretary of State or warn a third party, the law still grants physicians and optometrists civil and criminal immunity from a lawsuit by the patient or by a third party harmed by the patient's actions.

Q: What are the requirements for a person to receive a disability license plate or placard?

A person with a qualifying disability is eligible for a disability license plate or parking placard. To obtain a disability plate or placard, Michigan law requires that people be blind or have any condition that significantly limits their ability to walk or requires a wheelchair, walker, crutch or other assistive device, see MCL 257 19a.  Optometrists are authorized to make a determination using the Michigan Dept of State Disability Parking Application, but the Michigan Department of State has the final authority to issue.

Q: How frequently are commercial bus drivers required to have a physical exam and a vision exam?

A Department of Transportation (DOT) physical exam is valid for up to 24 months. The medical examiner may also issue a medical examiner's certificate for less than 24 months when it is desirable to monitor a condition, such as high blood pressure. A DOT physical examination is conducted by a licensed "medical examiner." The term includes, but is not limited to, doctors of medicine (MD), doctors of osteopathy (DO), physician assistants (PA), advanced practice nurses (APN), and doctors of chiropractic (DC). To find a medical examiner to conduct the DOT physical exam you may contact your primary care provider to inquire if they will conduct a "DOT physical exam." You may also find a medical examiner in the yellow pages of your telephone book, or on the Internet by using an Internet directory or search engine. If your medical examiner does not have a Medical Examination Report, one may be downloaded.Vision Requirements:A medical examination for a person operating or wanting to operate a commercial motor vehicle should include a driver being able to meet vision requirements as regulated in 49 CFR 391.41:(b) A person is physically qualified to drive a commercial motor vehicle if that person-(b)(10) Has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber.

Q: Do I have a legal obligation to see patients that do not have insurance or income to pay for services?

If you have an existing relationship with the patient, you cannot abandon him or her in an emergency, or in some situations where treatment is not urgent but is it necessary and there has not been reasonable advance notice that the relationship is being terminated. Abandonment is a form of malpractice in Michigan. There is no duty to treat when a patient cannot pay, when there is no existing relationship and there is NO emergency. Rather, the patient-physician relationship is created by contract, albeit with the patient having more flexibility to withdraw from the relationship on short or with no notice. The notable exceptions relate to facilities subject to the Emergency Medical Treatment and Advanced Labor Act that requires ERs to treat people who walk in off the street when there is an emergency, though EMTALA may require federal funding for the facility in some for to apply in the first place.

Q: What do I do and how do I accommodate disabled patients?

An optometric office is considered a public accommodation under the ADA. As such, it must provide access to people with disabilities. This requires that reasonable accommodations be made to allow the disabled individual to access the services in the optometric office. Reasonable accommodations include providing auxiliary aids or services for disabled patients.

Q: What are the legal responsibilities of an optometrist with respect to hearing-impaired patients under the federal Americans With Disabilities Act (ADA)?

An optometric office is considered a public accommodation under the ADA. As such, it must provide access to people with disabilities, including those who are hearing-impaired. This requires that reasonable accommodations be made to allow the disabled individual to access the services in the optometric office. Reasonable accommodations include providing auxiliary aids or services for disabled patients. One possible auxiliary aid or service for a hearing-impaired person is a sign language interpreter. However, there are other reasonable aids or services that can be substituted for a sign language interpreter. Thus, it may be possible to communicate by writing notes on pads or some type of slate, or by using a computer and computer screen. It may also be possible for a family member to act as the interpreter. The disabled person is entitled only to a reasonable and effective accommodation, not to the best of all possible accommodations. Thus, a hearing-impaired person may not demand a sign language interpreter if another reasonable, alternative accommodation would prove to be satisfactory, even though the hearing-impaired individual would prefer a sign language interpreter. Of course, in any case where it could be established that no satisfactory alternative was available, then it would be required to provide a sign language interpreter. 

Q: I have questions regarding general assistance and treatment of disabled patients, who should I contact?

For more general assistance with treatment of disabled patients, there is a toll-free number at the United States Justice Department that can provide guidance. Please call (800) 514-0301. This hotline has legal specialists available to answer ADA questions on the spot.

Q: By law, am I required to provide an interpreter for non-English speaking patients?

The short answer is yes.  Under the new rule, an optometrist receiving federal funding, such as Medicaid, who knows he or she has a patient coming in with limited English proficiency (LEP - i.e. limited ability to read, write or understand English), has an obligation to provide the patient with a qualified interpreter.  This could be a staff person that has the ability to accurately and properly translate for the patient. The covered optometrist must provide the interpreter free of charge, but the rules are silent about whether the cost could be passed to the insurance company.There are several requirements for "qualified interpreters" - the interpreter:

  1. must be able to adhere to generally accepted ethics principles, such as privacy and confidentiality;
  2. must have demonstrated proficiency in speaking and understanding both spoken English and at least one other spoken language; and
  3. must be able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary and phraseology.

The patient has a right to refuse the interpreter.

Q: I have hired a recent optometric graduate to work at my practice. The graduate has passed the state board but has not yet received their license. Can they begin seeing patients?

Yes, but a licensed O.D. must be present in the building and must sign the exam form after reviewing it. In addition, only the licensed O.D. may sign for any prescriptions, including glasses, contact lenses, or medications.The Public Health Code, MCL 16215(1), allows licensed health professionals (but not paraprofessionals) to delegate to "a licensed or unlicensed individual who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee's profession and will be performed under the licensee's supervision. A licensee shall not delegate an act, task, or function under this section if the act, task, or function, under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of the licensee under this article." In other words, the new graduate can work under the supervision of a licensed OD doing tasks that fall within the new grad's competency.

Q: An optometrist has been working in a chain store, but the contract for the space will not be renewed after this year. Are there certain steps the OD should take to address patient concerns?

Yes. While optometrists may locate their practices in a chain store, they are licensed professionals under the Michigan Public Health Code and are often treated as independent contractors to the chain store. That means optometrists who practice in this setting have both ethical and legal obligations associated with discontinuing their practice at that location. Those obligations will apply regardless of whether the store will have a new provider offer services in that location or whether the optometrist will be opening a new practice elsewhere.Below, is a list of some steps that an optometrist should take when leaving the location and transferring patient records to the new OD who will be practicing in that space. This list is an overview and is not intended to be comprehensive. It may be necessary to consult with an attorney to address certain issues, including but not limited to: the valuation and sale of the practice (patient records are not sold); compliance with the contract with the chain store; an agreement with the new OD concerning the maintenance of patient records; and who will maintain the patient records as required by law if neither the current OD nor a new OD in the space wish to take physical custody of the records.

  • Finish updating patient medical records so that they are complete.
  • Bill for all services that have been provided.
  • Give advance notification to patients:
    • the current OD will no longer be working in that location;
    • whether the current OD will be practicing in new location;
    • the name and contact information of the new OD taking over the location;
    • whether patient records are staying at the location with the new OD or whether the records are moving with the current OD to a new location;
    • how patients can obtain copies of their records; and
      patients should make arrangements to be seen by a new provider
  • Provide a copy of a form for patients to release their records to the provider of their choice. Place a copy of the letter sent to each patient in the patient's file.
  • The current OD may wish to enter into a written agreement with the new OD to maintain patient records. Records may consist of any information relevant to the patient's care, including test and laboratory results, copies of prescriptions, and other types of documentation. Records may be in paper, electronic, or other format, but are all considered part of the record even if maintained in separate places or physical files.

Q: I own the building where my practice is located, which is well suited for medical practices. If I rent space to another physician, would I be held liable for the physician's malpractice?

No, but there are other legal risks that you may want to keep in mind. Medical malpractice is a form of negligence in which a practitioner is alleged to have violated a duty of care owed to another person, resulting in an injury to that person. For negligence to occur, the practitioner must first owe the injured person a duty of care. Generally, practitioners owe a duty of care only to patients they treat. It is unlikely that renting office space to a physician would lead to the optometrist-landlord having a risk of liability for the physician's malpractice, particularly those services that fall outside the scope of optometry and of which the optometrist had no knowledge or participation.Nevertheless, renting office space to a physician can facilitate referrals between the physician and optometrist. Both federal and state law prohibit a wide variety of financial relationships associated with referrals and those relationships pose significant legal risks that must be avoided. A lease arrangement can constitute a financial relationship for these anti-referral laws. Accordingly, any lease must comply with specific requirements, such as that it be in writing and for at least one year. An optometrist should consult with his or her individual attorney to address the lease issue and the additional requirements not mentioned here.Referrals are necessary when optometrists encounter conditions requiring diagnosis and treatment outside the scope of optometry, regardless of whether the optometrist rents space to the physician receiving the referral. Michigan courts have not yet decided whether plaintiffs in malpractice actions can sue for "negligent referral." Assuming that the referrals are made without any prohibited financial arrangements and the lease includes the proper terms, the legal risk stems from making the referral, not the lease. Therefore, it appears unlikely that a lease arrangement increases the legal risks associated with making a referral.However, it is clear that an optometrist who rents office space to tenants has the potential liability of any other landlord, such as liability for unsafe conditions that cause falls. Keeping the premises in good condition and maintaining adequate insurance are important safeguards against this type of liability.

Q: What happens if a patient has concerns about their eye health but also needs new glasses? Can they have your vision checked even though they have a medical eye problem?

The answer, of course, is yes. However, the doctor may charge a refraction fee. Insurance companies usually separate the components of an eye exam, one being the comprehensive exam and the other being the refraction. Typically, vision insurance policies usually cover both the eye exam and the refraction, while medical policies cover the exam only.A Real-Life Example: Let's say a patient's employer provides both types of insurance -- medical insurance as well as a separate vision plan, such as Vision Service Plan (VSP). They decide that it's time for an annual eye exam because their glasses are falling apart. So they see their eye care professional for a routine eye exam and to purchase new glasses. The doctor's office authorizes benefits so they proceed with the examination. At the end of the exam, the doctor informs them that in addition to a minor prescription change, he found signs of glaucoma. They are instructed to return in one week for additional tests.Remember that the original reason for the visit had been to have an eye exam and to purchase new glasses. Even though the doctor found signs of glaucoma at the end of the examination, this visit would be covered under a "vision plan" because the main reason for the visit was to get have their vision checked for new glasses. But, because at the end of that exam they are considered a potential glaucoma patient, the medical insurance will cover the additional tests and office visits related to the medical diagnosis of "glaucoma suspect."When time comes for the examination next year, it is possible that they could use their medical insurance to cover your examination, because this year it was determined that they could be at risk for developing glaucoma. This serves as a medical diagnosis with the reason for the visit being "glaucoma suspect."

BILLING / MEDICARE / MEDICAID QUESTIONS

If an OD is licensed, but not yet credentialed by the insurance companies, can the new Dr. see patients without another OD present that is credentialed. Can they submit a claim under the credentialed

In order for a doctor to submit a claim to an insurance carrier other than Medicare or Medicaid, the doctor must be credentialed and contracted with the insurance carrier before submitting a claim. For Medicare and Medicaid some carriers will allow claims to be back dated starting one month after the Medicare application was submitted via PECOS and Medicaid is state dependent so you would have to check with the Medicaid carrier.

Q. I am having difficulty becoming a member of the Blue Care Network, and could lose patients whose insurance plans are switching to Blue Care Network. What should I do to address this situation?

First, continue to keep the MOA informed about Blue Care Network's policies and practices. This will help the MOA to track trends and determine whether action needs to be taken. Second, encourage patients to complain to BCN when they are unable to obtain medical eye care from an optometrist. Patients should direct their complaints to Blue Care Network, P.O. Box 68767, Grand Rapids, MI 49516-8767, or patients can call BCN at 1-800-662-6667. If a patient has coverage through an employer, a complaint from the employer to BCN about the lack of optometric services may also be helpful.

Q: Is Medicare still reimbursing for OCT scans?

Yes, but the codes for reimbursement have changed. 92135 was the old code for scanning computerized ophthalmic diagnostic imaging and has been eliminated and replaced with the three below:

92132 Anterior Segment - Scanning computerized ophthalmic diagnostic imaging (considered experimental, Medicare does not reimburse experimental CPT codes)

92133 Optic Nerve - Scanning computerized ophthalmic diagnostic imaging for managing diseases that affect the optic nerve

92134 Posterior Segment Retina - Scanning computerized ophthalmic diagnostic imaging

Q: Will Medicare cover consultation codes?

Unfortunately, beginning in 2010 Medicare will not cover consultation codes. Instead, CMS expects you to bill other E&M codes. For more information, please click here.

Q. Do adult Medicaid recipients qualify for well-vision services from their optometrist? Will optometrists be reimbursed for services provided?

Effective October 1, 2012, well-vision services for adult Medicaid recipients was restored in the state budget. The MDCH sent a policy to all providers.

Q. How do I apply for the Medicaid Electronic Health Record (EHR) incentive?

The Michigan Department of Community Health (MDCH) has two documents for you to reference in regards to the Medicaid EHR Incentive Program. Please view the  Eligible Professional S Guide To The Medicaid EHR Incentive Program and State Level Registration For Eligible Professionals Year 1 And 2. In addition to these documents you may also visit Michigan Health IT or send an e-mail to the EHR Incentive program help desk by clicking here. For further information you may also contact Kristy Brown or Stacey Kolarik with the MDCH.

Q: What is the difference between a comprehensive/routine and a medical eye exam for insurance billing?

Insurance companies sometimes handle routine eye exams differently than medical eye exams. Medical insurance may cover a medical eye problem, but not pay for the exam if it is a "routine" eye exam. Many vision plans provide coverage for glasses and contact lenses, or at least give some type of discount on the doctor's fees. Medical insurance will pay for examinations if the patient has eye health problems.Many people with medical insurance have a separate rider policy to cover routine eye exams. To complicate matters more, some medical insurance will cover one routine eye exam every two years in addition to covering an eye exam that is for a medical eye problem. Patients should study their policy closely, as plan coverage varies among insurance companies.

Q: I am having trouble getting paid for keratoconus cl's. Is there a proper way to bill them?

You can bill a "vision contract" for the fitting and contact lenses under medically necessary if the benefit is present. For example: Most "Eye Med" plans cover this. BC/BS does not cover this service or contact lenses unless you bill it under the medical and use a "CPT" code such as 92 or 99 codes. Of course, using these codes are only for professional services not contact lenses. You also are limited to what the codes pay and will not receive what you normally charge for a fitting. Another way to do it is to just bill BC/BS for each visit using a CPT procedure code with the appropriate diagnosis of 371.60 Keratoconus.

Q: Do we have an "Any Willing Provider" law in MI? I ask as I have been made aware that certain CPT codes are apparently not allowed to be billed by ODs for many carriers. An example is TearLab type

We do not have an AWP law in Michigan, and have been informed consistently basis by legislative leadership in the state not to attempt to pass one because it will be dead on arrival. We have some success in promoting our needs with increased scope and the ACA Harkin amendment, however.

Q: Are optometrists required to accept worker's compensation rates, or may I bill the patient's medical insurer at higher rates?

An OD that treats worker's compensation payments must accept whichever is less: (a) the maximum allowable payment established in the worker's compensation schedule or (b) the OD's usual and customary charges for the services. See R 418.10116. This provision establishes that the OD cannot bill the patient's insurer for an injury covered by worker's compensation in order to avoid the limits on reimbursement set by worker's compensation. Additionally, the OD may not bill the patient for any amount in excess of the maximum allowable payment established by worker's compensation. R 418.10105. MOA members who would like to find additional resources regarding the worker's compensation health care services rules, including a manual for practitioners, please, click here.

PATIENT RECORDS

Q: I know the Q&A states we are required to maintain records on patients for seven years.

Correct, this is the minimum retention period.  More specifically, the statute requires the records to be kept the longer of
(i) 7 years from the date of service, or
(ii) as required by generally accepted standards of medical practice, or
(iii) as required under federal or state laws or regulations


Also, different rules apply to records when a practice is sold or the optometrist will no longer be practicing.

Q: I have also been told in educationals that electronic recordkeeping will mean all records are to be kept.

The Michigan statute requires you to maintain a record for each patient for whom you have provided medical services.  This record includes full and complete records of tests and examinations performed, observations made, and treatments provided.  However, the definition of "records" broadens this to include the information (oral or recorded in any form or medium) that pertains to a patient's health care, medical history, diagnosis, prognosis, or medical condition and that you maintain in the process of providing medical services.   This is a very broad scope.   If there is a certain record that you have a question about that you think may not be covered by this scope, please feel free to follow up with us.

Q: If a patient continues to be under your care, are you required to keep all records generated for as long as they remain your patient?

No, Michigan law allows the records to be destroyed after being maintained for seven years (except as otherwise required by federal or other state laws or regulations).  Note, the seven year period for any particular record commences upon the applicable date of service.   Thus, you need to keep those records applicable to dates of service that have occurred in the last seven years.

Q: Can we ever purge old records on an ongoing compliant patient over the term of our care? ex; We have records for patients who have been under our care and our predecessors for 50 years both in pape

Michigan law allows the records to be destroyed after being maintained for seven years (except as otherwise required by federal or other state laws or regulations).   Thus, assuming no other issues, you may properly destroy those records covering dates of service which occurred more than 7 years ago.

Q: When we receive a request for records, must we send All vision and medical records on file, including reports from specialists and digital images?

Yes, you should provide all the medical records (other than those properly deleted), unless, the patient only requested certain records.     There are certain limitations to this general rule (e.g. if disclosure of the requested medical record is likely to have an adverse effect on the patient, or if the records cannot be found, then other steps can be followed).  Also, you should take reasonable steps to verify the identity of the person requesting the records.Note, the statute does allow you to charge the specified fees for providing the records, including "if the medical record is in some form or medium other than paper, the actual cost of preparing a duplicate."

Q: An opthalmology practice in the area is closed and we were to receive patient records. An outside source said patient records could not be trasferred from opthalmologist to OD, is this true?

The Michigan statute for retention of medical records (MCL 333.16213) does not prohibit the transfer of an ophthalmologist records to an optometrist.The act is not really specific to ODs or any particular healthcare provider, rather its refers to all medical practitioners that hold a license to practice in the medical field (OD, MD., etc.). Under the statute, when the licensed medical practitioner (such as an ophthalmologist) dies, the deceased's representative must send written notice to the MI Department of Health and Human Services to specify who will have the records and how a patient may access them.Those records may be transferred to:

  • a successor licensed healthcare provider,
  • if requested by the patient: to the patient, a specific facility or other licensed health care provider, or
  • a health care provider, health facility, or medical records company that the licensed deceased had contracted with to maintain/provide patient access to the records. (MCL 333.6213(3)).

In addition, the purpose of this section is to ensure that the  medical records are retained for the minimum 7 year period with someone who understands the integrity and confidentiality of medical records.

Q: If a patient has an outstanding bill and wants the office to release their record to another office, do you legally have to release the record or can we request payment before releasing?

The answer to this question comes from Michigan's Public Health Code, which has a Medical Records Access Act, MCL 333.26261 et seq., that applies to all providers and all health facilities. The OD can't withhold the record (if it exists) to the patient, and allows the provider to charge specific fees for producing a copy of the record that are in addition to whatever other amounts that patient may owe. Note, the $20 fee does not apply when a patient requests their own record, just the per-page fee. The provider can also keep the record until the fee is paid, unless the patient is indigent, in which case no fee can be charged.The short answer is: (a) have the patient request the copy of the record in writing; (b) make a copy of the record for the patient to give to the new provider (keep the original); (c) charge a fee for the copy; (d) patient must pay the fee (unless indigient); and (e) give the copy of the record to the patient.Link to the Act: http://legislature.mi.gov/doc.aspx?mcl-Act-47-of-2004Link to the specific provision about copying fees: http://legislature.mi.gov/doc.aspx?mcl-333-26269

Q: How long must I retain a patient's records, and what are the other details relating to record retention?

According to Public Health Code, "a licensee shall keep and retain each record for a minimum of seven years from the date of service to which the record pertains." For other information about record retention, click here to view the corresponding portion of Public Health Code.

Q: If we have converted our patient charts to Electronic Health Records system, are we legally able to discard the old paper charts immediately or is there a period of time we must hold onto them?

The Public Health Code, MCL 333.16213, requires ODs to keep patient records a minimum of 7 years, or longer if required by another law.  A record is "a full and complete record of tests and examinations performed, observations made, and treatments provided."  Whether you can shred those records depends on whether the new EHR system has all of that information going back at least 7 years. Some practices did not transfer their existing records, they just kept the paper going back at least 7 years and started new electronic records.  Other practices may have transferred some records fully, but not others.  Each OD needs to understand what is in their electronic system and whether it goes back at least 7 years.  If the electronic system is not a complete record, those paper files should be kept until at least 7 years after the most recent entry.

Q: We purchased patient files from a closing practice. If one of these patients wants their file, can we just give it to them or charge them a fee for mailing? Do we have any legal responsibility?

(June 18, 2015) - Lisa Berden, Esq.  Under Michigan's Medical Access Act, you have 30 days (but as soon as required under the circumstances) to respond to a person or his authorized representative who properly requests the records within 30 days. A proper request must be  in writing signed by the requesting individual no more 60 days before the request is provided to you (for example, the request can't be signed 6 months before being sent to you). You must take reasonable steps to verify the identity of the person making the request.If records are kept off-site, this time is extended to 60 days.  If there is a reason you can't provide the records within these time periods, then you can provide the requesting party with a written statement of the reason for the delay and can extend the response time by 30 days.Possible Responses to Request for RecordsYou must either:

  1. Make the records available for copying, inspection or both at your office during regular business hours, or provide a copy of a part or all of the medical record, as requested by the patient or his authorized representative.  
  2. If you have contracted for a third party to maintain thee records, you must either request that the third party send you the records and then you must provide them as described in the prior sentence, or you can require the third party to provide the records directly to the patient or his authorized representative.
  3. If you do not have the requested records, you can advise the requesting party that the records do not exist or cannot be found
  4. If a third party with whom you do not have a contract holds the records you can advise of that provider's name and address, if you know it.
  5. If disclosure is likely to have an adverse effect on a patient, you can provide a written statement supporting this determination, and then provide the file to another health care provider, health facility or patient or authorized representative's legal counsel.
  6. If you received the medical record from someone other than a health care provider or health facility under a confidentiality agreement (not your situation, but you should be aware of this exclusion), then you can deny access to that record if access to that record would be reasonably likely to reveal the source of the information. In this case, you must provide the requesting party with a written denial.

You cannot ask as to the purpose for the request.Charging for RecordsYou can charge a fee as long as it is does not exceed:

  1. Initial fee of $20.00 per request for a copy of records (however, this can't be charged to the patient)
  2. Paper copies: $1.00 per page for the first 20 pages, $0.50 per page for pages 21-50, and $0.20 per page for pages 51 and over
  3. If in some other medium, the actual cost of preparing the duplicate
  4. Postage/shipping costs incurred in providing the copies
  5. Any actual costs in retrieving off-site records that are 7 years old or older

You can refuse to retrieve or make copies of the records until the fee is paid. However, you must waive fees for a medically indigent individual for the first set of copies. Any additional requests for the same records are subject to the applicable fees you charge.  Please note that these maximum amounts are adjusted annually.Records RetentionAn individual licensed under the Public Health Code must 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 for a minimum of 7 years from the date of service to which the record pertains (unless a longer retention period is otherwise required by law, regulations or by generally accepted standards of medical practice). The records must be maintained to protect their integrity, to ensure their confidentiality and proper use, and to ensure their accessibility and availability to each patient or his or her authorized representative as required by law.A licensee may destroy a record that is less than 7 years old only if BOTH of the following are satisfied:

  1. You send a written notice to the patient at the last known address of that patient informing the patient that the record is about to be destroyed, offering the patient the opportunity to request a copy of that record, and requesting the patient's written authorization to destroy the record, and
  2. You receive written authorization from the patient or his or her authorized representative agreeing to the destruction of the record.

The OD who closed his practice must send a written notice to the Michigan Community Health Department that specifies who will have custody of the medical records and how a patient may request access to or copies of his or her medical records. Transferring the records to you is allowed, and then you must retain them as provided above.Records required to be maintained may be destroyed or otherwise disposed of after being maintained for 7 years (unless otherwise provided by law). Those records must be shredded, incinerated, electronically deleted, or otherwise disposed of in a manner that ensures continued confidentiality of the patient's health care information and any other personal information relating to the patient.Failure to comply with these records retention requirements may result in an administrative fine of up to $10,000.00 if the failure was the result of gross negligence or willful and wanton misconduct.With respect to your responsibilities to these patients, until you have provided medical services to them, you are essentially a custodian of their medical records.  The OD from whom you purchased the files should maintain liability insurance for these patients to whom he provided services.  However, once you provide medical services to the patient, you have a responsibility to meet the standard of care in providing them services (so, if review of the medical records prior to an initial appointment is part of the standard of care and you fail to do that or fail to identify a "red flag" in the file, at that point you have a responsibility beyond retaining the records).

Q: What do I do in the event of a security breach involving electronic health records?

The HIPAA security rule, 45 CFR 164.400 et seq., specifies the steps to be taken after a security breach. Those steps are required to be taken as soon as reasonable, but not more than 60 days after the security breach is discovered unless complying with the notice requirements would impede law enforcement. Those steps include:

  1. Notifying the individuals whose protected health information (PHI) was compromised in the breach.
  2. Notifying the media if the incident involved the PHI of more than 500 individuals.
  3. Notifying Secretary of HHS of the incident (there are different processes depending on whether the breach involved PHI for more or less than 500 individuals).

There is specific information required in each notice and that information is specified in the notification section of the rules starting at 45 CFR 164.404. Click here for a link to these rules. Additional information on reporting information is available from DHHS regarding reporting a security incident, including a link to provide the notice to the Secretary of DHHS of the security incident (click here for this information). There are, of course, many more details that go along with HIPAA, including whether a provider is a "covered health entity," whether an event must be reported, whether the PHI can identify an individual, etc. Even if HIPAA does not apply, working with law enforcement and providing the basic information required for the individual notification would be advisable. In summary: An optometrist should work with law enforcement, check that providing the HIPAA security breach notices will not impede an investigation, provide the HIPAA notices, and check with his/her insurer to determine if there is coverage for the costs of recovering from a security breach and complying with the notice requirements.

Q: Do we have any laws regarding the release of prescription when billing a refraction? In many states, ODs have to be willing to release the prescription if you charge a refraction fee.

In MI a prescription is considered a part of a patient's medical record and is their property. The only time you do not have to release a refractive prescription is if you do not perform a refraction as a part on the patient encounter.

Q: A patient contacted my office, via email, asking questions regarding her eye condition and requested I fwd her a copy of her records. Can I do this via email if I do not have an encrypted system?

You may exchange email and send medical records electronically, but you should be aware of the requirements under the Health Information Portability and Accountability Act (HIPAA).The United States Department of Health and Human Services (DHHS) has adopted two sets of administrative rules under HIPAA that are relevant to electronic communications with patients: the Security Rule, 45 CFR 164.300 et seq., and the Privacy Rule, 45 CFR 164.500 et seq. DHHS interprets the Privacy Rule to permit providers like optometrists to communicate with their patients via email as long as they take reasonable safeguards to prevent unintentional disclosure of protected health information. Reasonable precautions may include checking the patient's email address, verifying that it is the patient with whom the provider is corresponding, and omitting any confidential information not necessary to the communication.An optometrist may use an encrypted or otherwise secure email platform if he or she wants to do so - and it is a good idea if it is available. The optometrist can also let the patient know that he or she does not have a secure email system, allowing the patient to make the choice regarding whether to communicate in that less-secure format. To the extent that optometrists find themselves sharing electronic records outside of their own office on more than an occasional basis, they may want to use a secure file transfer system.Regardless of encryption, the optometrist should exercise caution when using mobile devices like smartphones and tablets. Hacking is a possibility, but less exotic risks are more likely: smartphones and tablets are easily lost or stolen. Minimally, an optometrist should consider using a secure password on whatever computers or device used to send or receive protected health information in case it is lost or stolen.In the event that there is a breach of security with an electronic communication involving protected health information, the Security Rule prescribes procedures for how providers must respond. Depending on the nature of the breach of security, the breach must be reported to the patient, DHHS, and potentially law enforcement. The Security Rule applies regardless of whether the security breach and disclosure occurred using a computer, mobile device, or other system.To read more on the HIPAA Privacy Rule and email, visit the DHHS website. To read more on the HIPAA Security Rule, visit this section of the DHHS website.DHHS also has a website devoted to HIPAA and mobile devices.