Before You Lock the Door and Turn Out the Lights . . .

Necessary Steps When Closing a Physician Practice

The Gilberto Sanchez Story [1]

Shortly after a group of DEA agents and other law enforcement personnel sporting tactical gear arrived in the parking lot with search and arrest warrants on a Tuesday early in August, Dr. Gilberto Sanchez was hauled away from his medical practice in the 4100 block of Atlanta Highway in Montgomery, Ala. Dr. Sanchez had been indicted for operating a medical clinic that dispensed controlled substances inappropriately, unlawfully, and for non-medical reasons. Since his arrest, Sanchez has pled not guilty and been released on bond.

The unfortunate saga of Dr. Sanchez highlights a difficult issue for both physicians and patients — who takes care of a physician’s patients when his or her practice closes shop, whether voluntarily or otherwise? Montgomery news sources reported on a patient of Dr. Sanchez who encountered this exact struggle. After Sanchez was arrested, the patient and his wife (also a patient of Sanchez) began the arduous search for another physician. They also encountered trouble getting their medical records from Sanchez’s office, reporting that they received no answers beyond a voicemail box too full to receive additional messages.

Dr. Sanchez’s story is unique in many regards, but it highlights the need for an effective transition plan upon the closing of a physician practice. Doctors sell practices, retire, die, seek the protection of the United States bankruptcy laws, and generally quit practicing medicine all the time. Whether you’re packing up to hit the links or being packed up and hauled to jail like Dr. Sanchez (let’s hope it’s not the latter), here are a few things to think about in order to wind up your practice’s affairs in accordance with applicable legal and ethical considerations.

A Few Things Before You Leave

A number of factors come into play when you decide to close your practice. Below we consider legal and ethical requirements regarding continuity of patient care and access to records from the Alabama Board of Medical Examiners (“BME”) and the American Medical Association (“AMA”), notification requirements for various government and third-party payors, and miscellaneous corporate formalities that must be undertaken when dissolving a business.

Board of Medical Examiners Requirements and AMA Ethical Considerations

Perhaps the most important part of closing down your practice (maybe for you, but certainly for your patients) is making sure that your patients have adequate notice and opportunity to find a new doctor, as well as access to their medical records. These notice and access considerations are addressed on the state level by the BME in accordance with ethical opinions issued by the AMA.

Consider the following items when closing your practice. Take note of whether each is a suggested best practice or a mandatory requirement.[2]

1. Notify the BME. You need to advise the BME of any change in your status (closing practice, retiring, etc.) and of your new address, if applicable, and you are required to notify the Medical Licensure Commission within 15 days of a change in your address.[3] You may also submit a request for the removal and disposal of unused medications, especially controlled substances.
2. Notify Your Patients. To ensure continuity of care for your patients, they have to receive a reasonable notification that your practice is closing and an opportunity to arrange for the transfer of their medical records.[4] The BME recommends that (i) each active patient of the practice receive a direct mail notification of the practice’s closing at their last known address and that (ii) the practice issue a public advertisement (e.g. in the local newspaper) about the closing of the practice to notify the public more generally. All notices (public or direct notice to active patients) should indicate the expected date the practice will close, and the direct notice to active patients should specifically identify instructions for how patients can access or transfer their medical records, and, if the medical practice is being assumed by another physician or practice, the name, address, and telephone number of that physician or practice.[5]
3. Notify the Drug Enforcement Administration (“DEA”). Notify the DEA of the closing of your practice. This notification can be especially important as you plan for the appropriate disposition of unused medications, including controlled substances.
4. Post a Written Notice at the Practice. After you actually close your practice, you should consider posting a written notice of its closing on the door or other visible areas of the office/building where your practice is located. The notice should contain instructions for patients to transfer or obtain copies of their medical records, as well as the current location of such records. These instructions must be made available to leasing agents, new tenants, or new owners of the building where the practice is located.
5. Records Management. As mentioned briefly in the description of notices above, you have to maintain and provide access to patient medical records for a period of time after you close your practice. The BME generally recommends maintaining such records for a period of 10 years after your practice closes. However, some types of medical records (e.g., pediatric records and immunization records) may have different retention requirements, and records associated with anticipated litigation should be kept until the litigation is resolved, even if such resolution does not occur until after the regular record retention period. In addition, BME regulations and AMA ethics opinions require that you make records available to a patient’s succeeding physician, to third parties as requested by your patients or their authorized representatives, and as otherwise required by law.[6]

These record maintenance practices serve multiple purposes: (i) you can satisfy your ethical obligation to provide access to medical records for your patients so they can obtain copies or transfer copies of their medical records to their new physician; and (ii) you fulfill applicable recordkeeping requirements for government and other third party payors in the event of an audit.

6. Provide Access to Patient Records.  Your patients have a right to access their medical records, or at least a copy of them. This right extends to any person who has a properly executed authorization from the patient to access such records.[7] According to state law and regulations, when providing copies of patient records, you may charge up to $1.00 per page for the first 25 pages, up to $.50 for each page after that, and up to $5.00 as a search fee.[8] The costs of mailing the medical records to the requestor or their designee may also be included in the copying charges. However, state regulations (and in some cases HIPAA) require physicians to consider the needs of their patients and waive the fees where appropriate.[9]

Notify Government and Third Party Payors

There are several parties in addition to your patients who want to know if you close your practice. Medicare, Medicaid, and private insurers will want to know when you close your practice in order to terminate your provider agreement. There are likely requirements in your provider agreement with each payor regarding what you should do when closing your practice. However, generally you need to take the following steps for each payor below:

1. Medicare. File a form 855B within 30 days of a change of ownership or practice location and within 90 days of other changes in enrollment, as required by 42 CFR § 424.516.
2. Medicaid. There are no general requirements for closing a physician practice in the Medicaid Administrative Code or the Medicaid Provider Billing Manual. However, providers should notify HPE/DXC (Medicaid’s fiscal agent) on the provider disenrollment form.[10]
3. Private Insurers. Frequently, insurance payors require notices prior to termination. For private insurers, such as Blue Cross Blue Shield of Alabama, check your provider agreement for the applicable notice requirements, if any.

The “Business” Side of Things

As if the steps listed above were not enough, you still have to think about what you want to do with the business entity from which you operated your practice. Unless you sold your practice, your name is probably still in a partnership, limited liability company, or professional corporation somewhere. To fully dissolve the business entity that formed your practice, you have to file articles of dissolution (or their comparable form for other types of business entities).[11] Be sure to file a copy of the articles of dissolution (or their comparable form) with the BME within 30 days of the effective date of dissolution.[12] In addition, you may be required to file notices with applicable federal and state taxing authorities, local governmental entities, and other agencies, as well as known creditors.

In addition to the above, there are several other nuances that must be explored when dissolving your practice. These nuances can be different based on the type of entity you chose to form your practice and may very well be different between two practices formed of the same type of entity. Consult counsel to look at the relevant provisions in the applicable statutes and the governing documents for your practice.

Lights Out, Lock the Door

As you can see, closing a physician practice is not as simple as turning off the lights and locking the door when you leave. There are a number of legal, ethical, and practical considerations you have to be aware of as you close or transition away from your practice. It may seem like a daunting task at first, but it has to be done in order to provide continuity of care for your patients and to provide for the orderly winding down of your practice’s affairs. To accomplish these objectives, be sure to plan ahead, consult counsel in the planning and implementation process, and don’t leave any stone unturned. It could be the one that trips you up unexpectedly.

For additional inquiries regarding this article or the steps to close a medical practice, please contact Christopher Richard or Gregg Everett at:

Christopher Richard, Esquire
Gilpin Givhan, PC
P.O. Drawer 4540 (36103-4540)
2660 EastChase Lane, Suite 300
Montgomery, Alabama  36117
Telephone: (334) 244-1111
Direct Dial: (334) 409-2233
Fax: (334) 244-1969
E-mail: crichard@GilpinGivhan.com

Gregg B. Everett, Esquire
Gilpin Givhan, PC
Lakeview Center, Suite 300
2660 EastChase Lane
Montgomery, Alabama  36117
Telephone: (334) 244-1111
Direct Dial: (334) 409-2228
Fax: (334) 244-1969
E-mail: geverett@GilpinGivhan.com

Article contributed by Christopher Richard, an attorney at Gilpin Givhan. Gilpin Givan is a Bronze Partner with the Medical Association.

REFERENCES

[1] Jennifer Horton, Alleged AL pill mill doc’s patients lined walls, sat on floor, U.S. attorney says, WSFA12 News (August 1, 2017), http://www.wsfa.com/story/36021670/alleged-al-pill-mill-docs-patients-lined-walls-sat-on-floor-us-attorney-says; Samantha Day, Patient of alleged Montgomery pill mill doctor speaks out, WSFA12 News (August 4, 2017), http://www.wsfa.com/story/36066718/patient-of-alleged-pill-mill-doctor-speaks-out.

[2] These action items come from a publication by the Alabama State Board of Medical Examiners, available on the BME website. Recommended Procedure in Closing/Discontinuing a Medical Practice, Alabama State Board of Medical Examiners, available at http://www.albme.org/closeprac.html (last visited September 5, 2017).

[3] Ala. Code § 32-24-338 (1975).

[4] Ala. Admin. Code r. 540-X-9-.10(3). See also AMA Code of Medical Ethics, Opinion 1.1.3: Patient Rights (stating the patient’s right to continuity of care, as well as sufficient notice and reasonable assistance in making alternative arrangements for care prior to a physician discontinuing care); AMA Code of Medical Ethics, Opinion 1.1.5: Terminating a Patient-Physician Relationship (requiring physicians to notify the patient or an authorized decision maker sufficiently in advance to permit the patient to secure another physician and to facilitate transfer of care where appropriate).

[5] Ala. Admin. Code r. 540-X-9-.10(3); AMA Code of Medical Ethics, Opinion 3.3.1: Management of Medical Records.

[6] Id. With regard to disclosure as required by law, check the record management requirements in your provider agreements with Medicare, Medicaid, and private third party payors, as applicable, to confirm the minimum length of time you should preserve records and make them available for inspection. However, in most cases, the 10 years recommended by the BME should suffice.

[7] See Ala. Admin. Code r. 540-X-9-.10(2); Ala. Admin. Code r. 545-X-4-.06 (including in the definition of “unprofessional conduct” any refusal to comply, within a reasonable time, with a request from another physician for medical records or information when such request is accompanied by a properly executed authorization from the patient).

[8] Ala. Code § 12-21-6.1 (1975); Ala. Admin. Code r. 540-X-9-.10(2).

[9] Ala. Admin. Code r. 540-X-9-.10(2); AMA Code of Medical Ethics, Opinion 3.3.1: Management of Medical Records(d)-(e).

[10] http://medicaid.alabama.gov/content/9.0_Resources/9.4_Forms_Library/9.4.16_Provider_Enrollment_Forms.aspx. The form contains additional instructions regarding the disenrollment process.

[11] As a practical matter, your business will be “dissolved” once the articles of dissolution are approved, but the entity will continue to exist for a period of time for purposes of winding down its affairs by paying off creditors and distributing remaining assets to the owners, among other things.

[12] Ala. Admin. Code r. 540-X-9-.01(5).