what happens to medical records when a practice closes
The 10 Biggest Legal Mistakes Physicians Brand in Closing or Leaving a Medical Practice
Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avert Them
Edited past Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
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Executive Summary
Every yr, thousands of physicians retire, sell or motility their practices, or they quit their jobs for more lucrative opportunities. In doing then, they usually focus on the new position that seems more than exciting or satisfying. Nonetheless, it is a error to neglect the details of closing the existing exercise or otherwise exiting the old position. Many physicians make serious mistakes when closing practices or leaving jobs, mistakes that can touch them for years to come.
Error ane Abandoning Patients
Once a doc has established a doc-patient relationship, the dr. must non "carelessness" the patient. Abandonment is a problem when a doc terminates a relationship with an individual patient, but tin also be a problem when a medico closes a exercise, thereby terminating all relationships with all patients. Abandonment is a item trouble if a doctor abruptly closes a medical practise without prior notice to patients, or fails to properly notify some segment of the patient population (e.g., where a physician closes the practice just fails to notify nursing home patients).
Abandonment is oft defined every bit "the unilateral severance of the professional person relationship…without reasonable notice at a time when there is however the necessity of continuing medical attending" [Lee five Dewbre, 362 SW2d 900, 902 (Tex. Civ. App.‑Amarillo 1962, no writ)]. To prove abandonment, a dr. must fail to provide "an adequate medical attendant" and also neglect to give acceptable detect. Finally, as in any negligence action, the plaintiff must prove he or she suffered injuries or damages that were acquired by the physician'due south conduct.
Action Pace Physicians should requite the entire active patient load reasonable detect before closing the office doors and leaving the area. The length of observe depends on the types of patients in the exercise, their amass need for continuing intendance, and the difficulty of finding replacement care. A surgeon, whose typical involvement with patients is of fairly short duration, might find a short find catamenia acceptable, whereas a family medico or a physician in some other specialty in which dr.-patient relationships are of long duration might not consider a brusk notice catamenia acceptable. A hospital-based md might accept an easier time with the notice menstruation if another physician, such as a radiologist, is set up to begin piece of work the solar day after the medico departs.
In addition, physicians should cheque the laws of their particular country. Texas, for case, has a rule requiring physicians to post a sign in their offices, publish a detect in two newspapers, transport letters to all patients seen within the last two years, and furnish evidence thereof to the medical board.
Error 2 Violating Noncompete Clauses
A noncompetition clause (besides called a "covenant not to compete") prohibits the departing physician from competing with either an existing do or the purchaser of a practise, for a specific time and in a specific area. Physicians frequently overlook these clauses when they leave jobs with other practices, and sometimes find themselves on the receiving stop of injunctions and lawsuits.
Action Stride Physicians should consult counsel. In some states, judicial doctrines prohibit enforcement as between persons of a "common calling" in an employment setting. Most states require that noncompetition clauses have reasonable limitations as to fourth dimension, geographical expanse, and the scope of activity to be restrained. It may well be that the physician has signed a contract containing an arguably unenforceable clause because it is not reasonable. Some states require that noncompetition clauses take mandatory buyout provisions. Texas law, for example, requires that physicians not be denied admission to a list of patients who they had seen or had treated within one year of termination and that they be given access to the medical records of their patients upon dominance of those patients. On the other paw, noncompetition clauses are most typically enforced strictly where the sale of a business is concerned, so competing with the heir-apparent of a medical practice is a bad idea.
Fault 3 Insisting on Accounts Receivable When In that location Is No Right to Them
Insisting on accounts receivable when in that location is no right to them occurs often in separation from employment situations. If there are services rendered only not billed, or billed simply not yet collected every bit of separation, it is tempting to lay claim to them if they are substantial. However, when i is an employee, the payment of bacon is usually full bounty for services rendered.
Action Pace Physicians should read the employment contract carefully. Some contracts are contradictory, having the usual provision that employees are non entitled to accounts receivable, but are entitled to them if they are also a member or a shareholder, and this provision may provide some leverage. If there is a dispute over whether one has become a member or a shareholder, notwithstanding, laying a strong claim is doubtful. Making an aggressive claim in which legal entitlement is shaky is a slap-up way to "fire bridges behind yous."
Fault 4 Not Understanding the Tail Coverage Obligation
Departing physicians generally want their former employers to pay for extended reporting, or "tail coverage," when they leave a practice.
Action Stride Again, physicians must read the employment contract carefully. The obligation to pay tail coverage, if whatsoever, must be clearly spelled out in the employment contract if a physician wants to brand a strong claim for information technology. Oftentimes the employer'due south obligation to pay is conditioned on the employee's having fulfilled sure weather, such as giving notice of intent to depart for a certain period. However, physicians should non let coverage lapse considering of a dispute over payment.
Mistake five Declining to Make Proper Arrangements for Medical Records
When a physician relocates a do to a new area, it is tempting to leave the records with some other medico under some kind of breezy agreement. This can backfire. What happens if the other doc discards the records because the patients don't like him or her? Or what happens if the other physician gets tired of storing the records? Or what happens if the other doc closes his or her exercise and access cannot be gained?
Action Step Physicians should have a very articulate understanding of what it means to be a medical records custodian. Even if no money changes hands, they should have a contract that conspicuously delineates responsibilities to store records (including protection from devastation), release them in response to subpoenas, retain them for required periods, and provide admission in case there is a need to answer to a suit, audit, complaint, or so along.
Mistake 6 Failing to Provide Adequate Contact Information
When physicians leave a practice situation they are dissatisfied with, in that location is a temptation to make it hard for that do to contact them, such as by leaving a forwarding address that is a post part box, a phone number that is an answering service, and so along.
Activeness Footstep Even when leaving a position under less-than-ideal circumstances, physicians should leave adequate forwarding information. Patients may need to contact them. Payors may need to contact them also, especially where audits and adjustments are concerned that are the responsibleness of the departing physician. If the practice has to say that it doesn't know where the departing physician is, complaints to the medical board are a certainty. And a physician doesn't want a complaint when he or she is trying to go licensed in another land.
Error 7 Violating Fraud Laws When Selling a Practice
The federal government believes that some do sales are the source of illegal kickbacks. It could piece of work like this: The selling doctor is in a position to make referrals of Medicare and Medicaid patients to the buyer, and the purchase price of the practice could exist considered a payment for those referrals. This is a especially sensitive issue where a physician sells his or her practice to a infirmary, and so goes to piece of work in that location as an employee, or where an ophthalmologist purchases the practice of an optometrist to ensure a steady referral stream.
Action Stride There is a rubber harbor to protect practice sales from allegations of illegal kickbacks then long as the sale has been completed no more than than one year from the date of the agreement pertaining to the sale, and the selling physician will not be in a position to brand Medicare or Medicaid referrals to, or otherwise generate business for, the purchasing physician afterward ane twelvemonth from the date of the agreement pertaining to the sale. This means that the payout of the purchase price must terminal no more than one year, which could be a problem depending on the valuation method used. Information technology should be noted that a percent of revenue over the one year is not a prohibited means of payment.
Mistake viii Not Notifying Appropriate 3rd Parties
Sometimes physicians are so anxious to retire or exit a job that they don't brand advisable notifications beyond their patients. This can lead to issues after retirement, often non major, but abrasive nonetheless, and usually entirely preventable.
Activity Pace Hospital medical staff bylaws may take an honorary membership classification if a certain notice period is observed. Payer contracts typically have voluntary no-fault termination provisions; again, if a certain notice period is observed. A notification of retired status (or alter of part address) is required for federal Drug Enforcement Assistants registration. And it may be advantageous to fourth dimension the retirement date with the renewal date for professional liability insurance, so that the physician would pay only for a tail policy. If a practice is closed due to catastrophic illness, surviving family members may not be aware of all that needs to be done, especially if they have not been involved in the management, so physicians should seek competent assistance.
Fault nine Prescribing for Family after Retirement
When physicians retire simply proceed their license active, there is e'er the temptation to prescribe drugs for themselves and family members. Doing so can lead to allegations of declining to go along adequate medical records, nontherapeutic prescribing, and worse. Medical boards are afraid that retired physicians will try to rely also much on their experience and not keep upwards with new drug data.
Action Step Treating one's own family members is a bad idea when one is in active practice. After retirement is no better.
Mistake x Assuming All Legal Obligations End on Retirement
Many physicians assume that, because they take retired, they no longer need to respond to subpoenas, respond complaints filed with the medical lath, or do the other things they had to do while practicing. For case, if a retired dr. receives a subpoena for medical records, the physician must reply to it, for at that place is no "retired person" exception to the rules of discovery in lawsuits.
Action Stride Physicians should consult counsel. They should know how long they have to go on medical records if they choose to keep the records afterwards they retire. Physicians who are likely to go subpoenas should consider having a third political party respond for them under a medical records aegis understanding. They should too consider putting their medical license on "retired" or "inactive" status, or consider letting it lapse altogether. The medical board doesn't have jurisdiction over nonlicensees; yet, a plaintiff can still sue a retired md, so physicians should maintain tail coverage.
Conclusion
Physicians contemplating retirement, selling, or leaving a medical practice for any reason should carefully plan their actions to avoid these mistakes. Ideally, competent assist should exist sought earlier making a firm conclusion to sell or brand a motility. In the case of a sudden, unforeseen issue, such as a catastrophic illness, counsel should be consulted as soon as possible after medical weather are stabilized, considering the stress of the disease can lead to bad decisions. In any upshot, jerky decisions and actions, while expeditious at the fourth dimension, tin atomic number 82 to problems afterward that can be avoided with proper planning.
Written by: Hugh Thousand. Barton, Esq.
Peer reviewed by: Jeff Avant, Esq.
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Source: https://seak.com/blog/uncategorized/10-biggest-legal-mistakes-physicians-make-closing-leaving-medical-practice/
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