OD holding paycheck until I sign (illegal?) form

[ziggy]

Thats why I LOVE optiboard! All of you guys have given some great advice. Sound and rational. William, my two cents is if all else fails let him/her know that you CAN and WILL kick the crap out of them. This approch is NOT civil or gentil but work more times than not. It is a matter of respect and respect is a two way street. Good luck in what ever you decide.

[shanbaum]

Thats why I LOVE optiboard! All of you guys have given some great advice. Sound and rational. William, my two cents is if all else fails let him/her know that you CAN and WILL kick the crap out of them. This approch is NOT civil or gentil but work more times than not. It is a matter of respect and respect is a two way street. Good luck in what ever you decide.

Title XLVI. Crimes (Chapters 775-899)
Chapter 784. Assault; Battery; Culpable Negligence
784.011. Assault

(1) An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

West's F.S.A. § 784.011

[William Walker]

Don't worry, it won't come to that. I spoke to the doctor, who said he spoke with an attorney from the board (of Optometry), and that I have no right to any records. He said I signed an employee handbook which stated that when I signed on, and since that's the case, I could pick up my paycheck.

I told him my thoughts, and that was that. When I picked up my check there was a letter with it. This is what it said:
"Thank you for your service to my company. Your time with us has been productive and we all will miss you. However, our recent communications have led me to some concern. I am led to believe that you may be under the impression that your serviceas an optician under my employ has given you some right to confidential patient information. As you are aware HIPPAA requires that all information remain confidential and remain secure within the medical office. In addition, Florida Statute 456, the governing law for optometry and opticianry, prohibits opticians from claiming ownership of patient records (456.057 P2(j)).
While you served as a non-licensed and recently licensed optician, you at no time were the legal custodian of patient information. Your privelege to that information was only to facilitate your tasks as an employee. If you held ownership of the optical and patients sought your services as in independant entityy, then you would be required by law to maintain your own prescription dispensing information. Obviously, this was not the case.
Furthermore, upon hiring on with my company, you reviewed and signed a handbook that outlines the confidentiality of records and other propriatary information. I consider all patient information, manes, addresses, phone numbers, etc... to be proprietary. I take this very seriously and despite our years of friendship, I would not hesitate to pursue any violation of state law."
Here are my thoughts:
Here is 456: "(1) As used in this section, the term "records owner" means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner; or any health care practitioner's employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner."
(Later in 456):"(18) A records owner shall release to a health care practitioner who, as an employee of the records owner, previously provided treatment to a patient, those records that the health care practitioner actually created or generated when the health care practitioner treated the patient. Records released pursuant to this subsection shall be released only upon written request of the health care practitioner and shall be limited to the notes, plans of care, and orders and summaries that were actually generated by the health care practitioner requesting the record."
This section ties in with the law I previously cited:
"484.012 Prescriptions; filing; duplication of prescriptions; duplication of lenses.-- (1) Any prescription written by a duly licensed allopathic or osteopathic physician or optometrist for any lenses, spectacles, eyeglasses, contact lenses, or other optical devices shall be kept on file for a period of 2 years with the optical establishment that fills such prescription. However, the licensed optician may maintain a copy of the prescription."
I was not stating that I could claim ownership of the patients record. That has tons of things that an optician does not need to see. However, in treating my patients, I have to have access to their Rx. In 456 section 18, it shows that a health care practitioner (Me, the optician) has access to the notes, plans of care, etc... (which is the Rx, type of lens ordered, material, base curve, etc...) In 484.102, it specifically mentions opticians as being entitled to that (optician specific) information. That is decidedly different than being an owner of the patient's record, which would contain that in addition to addresses, phone numbers, insurance info, billing info, diagnosis, etc...
Any thoughts?

[Cindy Hamlin]

William,

Do you have a copy of what you signed in the handbook? If not, you should ask for a copy. You may have signed away your right to work within a certain radius of the office. It is important to know what your rights are and what you signed away.

My last employer had me sign a non-compete. I couldn't solicit their employees for 2 years. I wanted to go into optical recruiting and this would have limited me in my pursuit of a career so I had my friend's attorney look it over.

Good luck to you. Consider it done and move on. I am a firm believer in what goes around comes around. All you have to do is sit back and watch.

[chip anderson]

Cash the check, go on to your next job. And the Dr. is right about who should have records, no one ever gives employees copies of patient files or Rx's unless he buys the practice or dispensary.

As to who owns the records, while I don't at all agree with this, the courts have ruled that the patient owns the records.

Chip

[Stopper]

SOunds like that letter was written by the attorney not the OD. Time to move on. Lessons learned for you and us about employment. Thanks for sharing so others can learn from your struggle.

Cheers

[Dannyboy]

William, technically speaking our licensing (state) laws permit us to keep a copy of the prescription. Hippa is another grey area as you maybe exempt from it for the mere fact that you are aiding to provide services in benefit of the patient. You may have a legal standing.

All healthacre professionals have access to their own produced records (mainly in case of a lawsuit) so up to that point you maybe safe.

The employment agreement is the problem. What did you sign?? If the employment agreement is specific then the OD has a stand.

To rule out confusion here is an explanation: A medical record is the exam notes of the doctor. You are not entitled to that. Opticians in Florida did try to change the ability of the opticians to be the record owner but the courts ruled against us. So for record keeping we are not healthcare providers (we and other professions such as pharmacists were excluded from owning medical records) but for all other matters we are licensed healthcare providers.

The prescription (Rx for eyeglasses, CL etc.. ) you are entitled to have a copy. That includes the patients name and address etc....

The intend of the law is for the optical owner/optician to be accountable to keep the prescriptions on file so that later on patients would have access to them.

Call POF and ask for a referral to a Health care attorney (they have a list at their office of attorneys that represent opticians).

Do not believe that the attorney of this guy as he represents him and not you.

You are indeed allowed to keep a copy of the prescription. The medical record is NOT the prescription (that should be all you care about because that is what you can work with)

I do not know if your intend is to later open an optical using data from patients that you saw at the Ods office but again that is your decision.

One more thing, it is true that an employee of an optometrists/MD is exept from having an opticians license as long as he works for him/her but NOTHING says that if you are licensed optician you cannot exercise good professional judgement which includes record keeping of things YOU have done within the scope of your license.

By the same token the OD cannot be fined by the Opticianry board as he is exempt but nothing says that the Opticianry board cannot fine you even if you are an employee of the OD. The example is a fine that was given to an apprentice optician in which the employer OD put the word OPTICIAN in the business card. The apprentice was fined and I believe denied licensure later on.

If you do decide to a have a legal battle many opticians in our state are going to be taking a close look at the outcome of the ruling as well as many optical owners....so please think this avenue very carefully.

Dannyboy

[drk]

You got your check; he's safe from your terrible record-pilfering. All is good.
Put it behind you, yesterday.

[Andrew Weiss]

I've just read this thread and am impressed, as always, by the quality of advice and the obvious caring.

If the Florida optician's community is anything like the Massachusetts one, it is very small; everyone knows everyone else. Word travels fast, reputations along with them. I agree with drk: put this one behind you, don't stoop to his level. My suggestion is that you pray that he can feel more gratitude and peace in his life, and move on.

A quick lawyer comment (as someone who studied law and practiced as a lawyer for 20 years): Lawyers are trained to see the differences in any situation, not the similarities. They can give you great information, but they should be avoided for conflict resolution. As to the possible conflict between Florida's record-access law and HIPAA: if my understanding is correct, federal law will trump state law if the federal law is more stringent (which, in this case, it sounds like it is).

I wish you the best.