In our experience at Jackson LLP, rarely are any two non-solicitation clauses alike. Yes. Title: Retention of medical records and patient notification upon closure of a practice Number: OP04 -29 References: Board Minutes January 23, 2004, April 2, 2004; November 7, 2014; September 11, 2020 . We understand the process can feel daunting. Even without these prohibitions, you should not actively solicit the employment of existing employees, especially prior to your departure. Determine whether solicitation of employees is prohibited. Notifying Patients of Practice Closure When closing a practice, you should send a notification letter to the patients you have seen in your practice within the last three years. We can help you assess your rights and responsibilities. Accessed January 18, 2023. The comparison is intended to serve as a resource to help retiring physicians and closing practices navigate their obligations and avoid regulatory penalties as a result of the patient notification process. These rule changes also apply when leaving a group practice, as the departing physician is responsible for providing proper notification. It is not just a piece of advice; several state and federal regulations make it a mandate. A physicians list of patient names by itself is not PHI, but if the physicians practice only serves patients with a certain health condition, then it may be reasonable to assume that every patient on the list must have the condition. The court, however, disagreed. The case of Bloomington Urological Associates, SC v. Scaglia, 686 N.E.2d 389 (Ill. App. During your review, pay careful attention to information about advance notice provisions, retirement plan details and noncompete covenants, to name a few key elements. Perhaps youre already a party to a non-solicitation agreement, and youre wondering how it will affect your future opportunities. All of this increases the likelihood that you or one of your colleagues will leave your current practice. While some employers will contractually agree to pay tail insurance in certain events, a thorough review of your employment agreement, and sometimes the shareholders or operating agreement, will determine who is responsible for procuring tail coverage. (ii) Publishing a notice in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area; AND Even if a communication is arguably solicitous, it might fall outside the scope of a non-solicitation clause if it pertains to services not offered by the employer. The Florida Medical Association (FMA) recommends to a practitioner who wishes to terminate a relationship that the practitioner should give the patient adequate notice in writing, and the practitioner should remain available to the patient for at least 30 days in order to allow time for the patient to find a new practitioner. In any case, some of the most effective notification arrangements you can make include: As you look for notification guidance on the internet, carefully assess the credibility of the source for information. Board Rule 540-X-9-.10 states reasonable notification must be provided. In addition to reviewing any documents you have signed, you should review any of the practices policies applicable to employment and departures. To prevent this, you need to procure a supplemental endorsement policy, commonly referred to as tail coverage, which appends to the primary policy and insures you for claims made after your employment terminates. Proactive [], American Medical Association (AMA) guidelines, https://www.cms.org/uploads/BME_Policy_40-8.pdf, https://drive.google.com/file/d/0B-K5DhxXxJZbZGZUdllNbUFvdDg/view, https://www.ama-assn.org/delivering-care/ethics#Chapter%201:%20Opinions%20on%20Patient-Physician%20Relationships, https://cdn.ymaws.com/lsms.site-ym.com/resource/resmgr/resources/lsms_resource_closingamedica.pdf, http://www.lsbme.la.gov/content/health-care-resources-practitioner, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6140270/, https://www.msma.org/guide-to-closing-a-medical-practice.html, https://www.njconsumeraffairs.gov/bme/Pages/FAQ.aspx, http://164.64.110.134/parts/title16/16.010.0017.html, http://www.nmms.org/wp-content/uploads/2018/08/closing_your_practice_2016_revised_-_pcs_0.pdf, https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=190&rl=8, https://www.texmed.org/Template.aspx?id=6676, State offers no guidance, but association guidelines available. The notice must include an explanation of how copies of the facilitys records may be accessed by patients. (ii) Sending an email to each patient, in a manner that is compliant with state and federal law. is an individual issued a license allowing them to practice medicine. Colorado provides a combination of guidelines and state laws, and while their categorization in terms of whether its a law or mere guidance isnt completely clear, when considering the information as a whole it compels Colorado physicians to make provisions to ensure the physician (or estate) isnt liable for abandoning patients or their records. Connecticut Code of Medical Records Regulations Number 19a-14-44 states, Upon the death or retirement of a practitioner, it shall be the responsibility of the practitioner or surviving responsible relative or executor to inform patients. An example letter . 115(4): 325327 advises, practices must notify patients as soon as possible to facilitate continued patient care. It is, however, not uncommon for employees to solicit the departing physician prior to departure. This makes it very unfair to a physician closing their practice and illustrates why the steps outlined here are important to help closing practices avoid trouble, ensure continuity of patient care, and achieve peace of mind. Cover your tail. At the mediation, the single specialty practice initially took the position that: (1) if a patient contacted them asking for an appointment with one of the departing physicians, the practice would . Each state treats notification guidance differently, but their approach generally falls within four distinct categories. Non-solicitation clauses are a type of restrictive covenant (meaning legally that they forbid a party from doing something). The following are best practices for notifying patients: Send current patients (i.e. a physician departing a practice to notify her patients that the physician is leaving, the address of the new practice, and offer the patient the opportunity to have medical records forwarded to the new practice. While the Board rule does not specify the mode of notification, it would be difficult to ensure patients received notification by a newspaper ad. However, the provider can arrange for the employer to give the notice on the providers behalf. http://164.64.110.134/parts/title16/16.010.0017.html, Additional Resources: The New Mexico Medical Society offers, Closing Your Practice Guide: Litigating a covenant, either from the employer or employees perspective, is expensive. On the other hand, a notice directed to specific patients that informs them that the provider is leaving the employer's practice and identifies a new practice where the patient can receive the same or similar services is much closer to the line of solicitation. Such clauses generally cover a specific geographic area and period of time. One in five physicians say it is likely they will leave their current practice within two years. How long must a healthcare practitioner maintain a patients records? The legal guidelines regarding patient notification vary for each state. Approximately ninety days is suggested whenever possible. URMCs Privacy and Security Executive Committee formed a task force to review the hospitals privacy and security requirements and the protocol for disclosure of PHI with respect to departing and incoming workforce members. 1. For example, the Ohio Medical Board has adopted specific rules about the content of the notice, which must include the following (Rule 4731-27-03): The Ohio rules require the health care entity to send the notice to patients, but it may satisfy its statutory obligation by providing patient contact information to the departing physician and requiring the physician to send the notice to patients. What should be in the notice? Call 713-524-4267, ext. Mind These Legal Issues. The health care entity, which is the party responsible for maintaining custody of the medical record, should send the notice. Notice to Patients. Can a health care practitioner terminate a patient relationship? In fact, you must notify them- you can't just leave and let them find out you're no longer their provider. Yes. A physician may choose whom to serve. If youre in one of the states where we practice, schedule a complimentary phone consultation with one of Jackson LLPs healthcare attorneys. Which patients should be notified? The notice must be published at least 1 time per month over a 3-month period in advance of discontinuing the business or leaving the State and must explain how a patient can procure that patients patient records. In this situation, the provider might not be precluded from soliciting that practices patients for services at the medical spa. She can be reached at laura-brockway@tmlt.org. 1. Some states even require or suggest 30 days prior written notice before a departure so that patients will have sufficient time to transfer their records if they desire to change physicians. Texas Medical Board Rules Chapter 165.5(c)(1-2) Prohibition Against Interference. These assets belong to the practice and cannot be taken by the physician without the practices consent. Health care entities must be prepared for the departure of physicians and other health care professionals. Ensure that their records can be transferred to another health care provider as requested by the patient, and c. Whenever possible, notice shall be provided at least 30 days prior to cessation of treatment; and (10) After transfer of the licensees medical records which meets the requirements of (9) above, the licensee shall be relieved of further responsibility for complying with requests for copies of records., http://www.gencourt.state.nh.us/rules/state_agencies/med100-600.html, State advises in Section 1-15, The doctor must notify the patient, in writing, that he/she will no longer provide care as a date certain, which cannot be less than thirty days prior to the termination date. In these cases, patients do not expect the same provider to perform related services in the future. Notice to Patients on the Departure of a Physician September 2007 Texas Medical Board Regulations When a physician departs a group, the issue of continuity of care for patients should be considered. A threshold requirement for a malpractice claim premised on patient abandonment is that there is a patient-provider relationship. Ensuring that patients receive reasonable notification; Ensuring that patients are given an opportunity to obtain copies of their records or arrange for the transfer of their medical records to another physician; Specifying who has custodianship of the records; and, Advising how copies of the medical records may be obtained.. Most practices only close once. This must be done by placing a notice in a daily local newspaper published in the community which is the prime locus of the practice. Keep a step ahead of your key competitors and benchmark against them. The practice should also provide a script for receptionists on what to say. Generally, tail coverage costs between 1.5 and two times a physicians annual premium. Through our years of experience in the custodial records field, we have worked with clients in almost every health care arena and handled the full spectrum of records management needs. The newspaper ad may have been effective in 1990 when daily newspaper circulation in the US was over 62 million, but with that figure now less than 20 million and declining rapidly, newspaper alone is no longer practical. Keep the phone number of the closed practice active for a minimum of 90 days and include key information on the voicemail after the practice has closed. Normal workplace stresses are exacerbated by longer hours, less pay and zero tolerance for error, which can lead to fractured relationships among partners or employed physicians in a group practice. Having undertaken the care of a patient, the physician may not neglect the patient. Once a decision has been made to discharge a patient from the p ractice, the practice will need to notify the patient of the termination in writing. In contrast, our goal is to help closing practices gain a better understanding of the process and guidelines when it comes to patient notification. 2) The state offers guidelines, but without any statutory requirements or law enforcing notification practices. Can a medical doctor work as a chiropractor? This letter must be sent by certified mail, return receipt requested. It must protect the patients medical record and not release it without patient authorization. Thus, regardless of who is responsible for procuring tail coverage, that party should provide a certificate of insurance to the other party. https://www.leg.state.nv.us/nrs/nrs-630.html#NRS630Sec304, NH Rev Stat 329:9 Section: Med 501.02 Standards of Conduct. These policies and others are discussed separately below. A physician can perform acupuncture under his/her medical license as long as he/she is properly trained and educated in the field of acupuncture. The answer is yes. A 24-year-old pregnant woman came to her ob-gyn with a headache and high blood pressure. If you would like to learn how Lexology can drive your content marketing strategy forward, please email [emailprotected]. On June 11, 2015, URMC reminded its workforce that all patient information was the property of URMC and could not be copied, shared, removed, or transferred without the permission of both URMC and the patient. When possible, the outgoing provider should try to time their exit so that patients can arrange continuity in care. For example, including the date in which your Drug Enforcement Administration (DEA) license will expire within the notification message could help patients avoid unexpected disruptions in access to life-saving medications. Many states defer to their state medical society or American Medical Association (AMA) guidelines, which are not legal requirements, and typically do not cover all of the potential variables that may exist in your situation. Copyright 2006 - 2023 Law Business Research. No. (B) Placing written notice in the physician's office; AND The content of the notice will depend upon state law. Texas Medical Board Rules Chapter 165.5(a)(1-3) Transfer and Disposal of Medical Records. The health care entity has the dual role of safeguarding the medical record while facilitating continuity of care. Further, many deferred-compensation arrangements are linked to the amount of notice given. Non-Solicitation and Confidentiality Clauses. A long notice period is often difficult for a non-retiring physician to give, but these issues deserve consideration. Why? https://www.health.ny.gov/facilities/adult_care/dear_administrator_letters/acf_closure_guidelines.htm, The North Carolina Medical Society advises, practitioners and other parties that may be involved to ensure that: patients are notified of changes in the practice, sufficiently far in advance (at least 30 days) to allow other medical care to be secured, which is often done by newspaper advertisement and by letters to patients currently under care (Sample letter Attachment A); patients clearly understand that the choice of a health care provider is the patients; patients are told how to reach any practitioner(s) remaining in practice, and when specifically requested, are told how to contact departing practitioners; and patients are told how to obtain copies of or transfer their medical records., https://www.ncmedsoc.org/wp-content/uploads/2013/06/Closing-a-Medical-Practice.pdf, Rule 4731-27-03 states, When () a health care entity provides to patients a notice of the termination of a physicians employment, the notice shall be provided in one of the following ways: (1) A letter sent via regular mail to the last address for the patient on record, with the date of mailing of the letter documented; (2) An electronic message sent via a HIPAA compliant electronic medical record system or HIPAA compliant electronic health record system that provides a means of electronic communication between the health care entity and the patient and is capable of sending the patient a notification that a message has been received and is in the patients portal., https://codes.ohio.gov/ohio-administrative-code/rule-4731-27-03, State advises, Whenever a physician is leaving or has left practice and the actual office is being closed, several different methods of patient notification can be used. Every state has a long list of requirements to obtain and maintain a license to practice medicine, but when it comes to closing a practice, most states only offer (at best) guidelines for what to do when ending a practice, and some states offer no guidance at all. Common questions include: Navigating the line between non-solicitation and patient abandonment poses a challenge. [], Smart hospitals and medical facility managers already know how to capture savings in health information management by [], Hospitals and healthcare providers are aways looking for opportunities to increase savings. Notify other patients who won't be receiving a letter by placing a notice in the local newspaper with the largest circulation, putting a sign up in the lobby and preparing a patient handout. The requirements of this rule shall not apply to a physician who has retired from or sold his or her medical practice if: Such physician has notified his or her active patients of retirement from or sale of practice by mail. What can I tell my patients when Im leaving my employer? Med 10.03.2 (o) states, Patient abandonment occurs when a physician without reasonable justification unilaterally withdraws from a physician-patient relationship by discontinuing a patients treatment regimen when further treatment is medically indicated and any of the following occur: 1. Post the notification on the practice website. Posted 3:52:36 PM. For TMB rules on notification requirements and more, refer to Chap 165.5 - Transfer and Disposal of Medical Records. All patients of record who have not requested their records 30 days before the person discontinues the medical-practice business or leaves the State must be notified by first class mail by the person to permit that persons patients to procure their records., http://delcode.delaware.gov/title24/c017/sc05/index.html, Florida Statute Title 32 Ch. Approximately sixty days prior to closure, patients who require frequent follow up should be referred to other physicians and patients with acute medical problems should have appropriate follow up arranged., https://www.maine.gov/md/sites/maine.gov.md/files/inline-files/2017summer_0.pdf, State advises, adequate time must be given to allow the patient to obtain a new practitioner. 2023 Jackson LLP Healthcare Lawyers. When a physician retires or dies, patients should be notified and urged to find a new physician and should be informed that upon authorization, records will be sent to the new physician. Hear from top leaders in medicine Some require an extraordinarily long notice period (such as one year) before the physician can qualify for deferred compensation payments. In April 2015, GRN sent letters to the patients whose names were on the spreadsheet announcing that the NP had joined the practice and advising them of how to switch to GRN. In this way, the provider might avoid claims of patient abandonment. If you use certified, return receipt mail, you can place a copy of the letter and return receipt in the patients file in case there is ever an issue of notification., https://www.albme.gov/resources/licensees/practice-issues, Alaska State Medical Board adopted AMA policy No. https://docs.legis.wisconsin.gov/code/admin_code/med/10/03/3/j. 10. Review noncompetition covenants. 7.03. According to TMB Rules Chapter 165.5(a)(1-3): When a physician retires, terminates employment, or otherwise leaves a medical practice, he or she is responsible for: (2) Notification shall be accomplished by: (A) EITHER: As this case shows, the interests of an employer in enforcing a restrictive covenant must be balanced by a providers duty not to abandon their patients. In healthcare, this tug of war can implicate another stakeholder: the patient. Become your target audiences go-to resource for todays hottest topics. This will ensure that your departure date does not result in unnecessary forfeitures. The answer is yes. For instance, general advertisements, mailings to certain zip codes, and routine marketing activities normally would not meet this standard. Although the Health Information Portability and Accountability Act of 1996 (HIPAA) prohibits the unauthorized disclosure of PHI, the NP disclosed the PHI to her new employer, GRN, without the patients authorization. It does not create an attorney-client relationship between our firm and the reader. There is a range of activities and provider-patient communications that can continue after an exit without breaching the non-solicitation restriction. 1 Required notification of discontinuation of practice 456 057 subsection 13 states, records owners shall place an advertisement in the local newspaper or notify patients, in writing, when they are terminating practice, retiring, or relocating, and no longer available to patients, and offer patients the opportunity to obtain a copy of their medical record., https://www.flsenate.gov/Laws/Statutes/2011/456.057, Rule 360 3-.02 (16) states, O.C.G.A 43-1-19 and 43-34-37 authorize the Board to take disciplinary action against licensees for unprofessional conduct. Unprofessional conduct shall include, but not be limited to, the following: Failing to maintain patient records documenting the course of the patients medical evaluation, treatment, and response. The Medical Center suspended and ultimately terminated the nurse practitioner and treated the incident as a reportable breach. We are looking for outstanding providers with leadership experience, who are committed to delivering high quality and compassionate patient care, to join our team. https://www.texmed.org/Template.aspx?id=6676, The Vermont Guide to Healthcare Law by the Vermont Medical Society advises, In order to avoid a claim of abandonment, the physician should take several steps to terminate the physician-patient relationship. Web Design Trundlemedia, Health Insurance Portability and Accountability Act(HIPAA). Review your content's performance and reach. The physician must notify the TMB and his/her patients, and advise who has custodianship of the medical records and how a copy may be obtained. The Florida Medical Association (FMA) recommends to a practitioner who wishes to terminate a relationship that the practitioner should give the patient adequate notice in writing, and the practitioner should remain available to the patient for at least 30 days in order to allow time for the patient to find a new practitioner. For the states that do not offer specific guidance on closing a medical facility and simply defer to AMA or state medical society guidelines, understand these are third-party sources are merely providing general guidance, and not legal or practice-specific advice. Notify Third Parties Dependent upon the provisions of contracts and state law, the insured physician and practice may need to notify various third parties. There is no specific time period required. Readers should consult their healthcare attorney to obtain advice with respect to any legal matter. The cost of successfully defending a medical malpractice action is lifestyle altering. A clean departure will save you headaches and possibly dollars in the immediate future and in the long run. You may start by searching for your state requirements, but quickly end up at a third-part source that has paraphrased or misinterpreted the laws. Podiatrists are licensed and regulated by the Florida Board of Podiatric Medicine. HIPAA protects information that relates to the past, present, or future physical or mental health or condition of an individual when there is a reasonable basis to believe the information can identify the individual. This may be a requirement in your state, but make sure your plan also includes more effective notification methods that contain modern avenues of communicating that will more likely reach your patients. This material may not otherwise be downloaded, copied, printed, stored, transmitted or reproduced in any medium, whether now known or later invented, except as authorized in writing by the AAFP. Each patient should receive a letter and notices should appear in local newspapers at least three times over a few months or more. URMC responded by sending breach notification letters to the affected patients and notifying the media. Some practices display placards in the waiting room informing patients of a physicians departure. Can a medical doctor perform acupuncture? is regulated by the Florida Board of Nursing. The statute adopts the concept of a "records owner." A "records owner" may or may not be a physician. https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=190&rl=8, Additional Resources: Texas Medical Association advises, Texas Medical Board (TMB) regulations say a physician leaving a group must notify his or her patients by: Publishing a notice either: On the physicians or practices website or In the newspaper of greatest general circulation in each county in which the physician practices or practiced, and in a local newspaper that serves the immediate practice area; and Placing a written notice in the physicians office; and Sending patients the physician has seen in the last two years either: A notice in a letter or A notice in an email in a manner compliant with state and federal law. A critical criterion for patient abandonment claims is the need for further treatment. Please contact [emailprotected]. The usage and disclosure of patient information, including patients medical records, are often limited by another form of restrictive covenant in employment agreements: confidentiality clauses. Your contract may require that you give your practice advance written notice of your departure. Has caused to be published, in the newspaper of greatest circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area, a notice which shall contain the date of such retirement or sale that offers to provide the patients records or copies thereof to another provider of the patients choice, and if the patient so requests, to the patient. Or, in limited circumstances, the new practice may provide coverage through a new policy with a retroactive endorsement date. Likewise, physicians often agree to pay for tail coverage if they terminate their employment without cause. Notices to Patients When a Physician Leaves a Group Practice When a physician leaves a group practice, the physician has a duty and a right to notify his or her patients. A non-solicitation restriction may prevent the provider from issuing such notice directly. 1, Required notification of discontinuation of practice. Although he did not directly treat any patients within the restricted geography, the urologist did perform various administrative functions relating to his practice out of a home office with that radius. As these examples show, non-solicitation does not mean no contact. It also informed URMCs workforce of its policy that information regarding continuity of care was to be communicated to patients by URMC, not the individual health care providers.