Closing a Practice & Patient Issues
Health Law Talk Presented by Chehardy Sherman Williams
In today’s episode, Conrad Meyer, George Mueller, and Rory Bellina discuss closing a practice & patient issues.
+ Full Transcript
Welcome to Health Law Talk, presented by Chehardy Sherman Williams health Law. Broken down through expert discussion, real client issues and real life experiences, breaking barriers to understanding complex healthcare issues is our job.
Conrad Meyer (00:24):
And good afternoon, or good morning, whenever you’re listening. Uh, this is Conrad Meyer on another episode of Health Law Talks, Chehardy Sherman Williams. And in the studio today, we have all of them, all of the moderators in today for a group discussion. Uh, Rory Bellina, George Mueller in the house. How are you guys
Rory Bellina (00:44):
Doing? All morning. Happy Friday to everyone.
Conrad Meyer (00:46):
Yes, this is a Friday.
George Mueller (00:48):
Absolutely great weather here. Not in other places, so we’re grateful
Conrad Meyer (00:52):
For that. Amen. Amen. It is too, It’s beautiful outside. Absolutely. You know, uh, we’re, we we’re referring to is if, if, depending on when this gets published, this is, uh, right after a hurricane Ian with Ian, Ian. Ian, Ian, which, um, you know, we pray for those in Florida. I mean, we, we’ve lived through this in Katrina. It’s terrible. So, um, but we’re here in the studio ready to go and talk about what are we talking about today, guys?
George Mueller (01:19):
I think we’re gonna talk about, um, the how to close a medical practice. Right. And was there another piece that y’all were gonna talk about
Rory Bellina (01:27):
As well, closing a medical practice and then wrapping up either closing a practice or dismissing a patient, terminating a physician patient relationship, kind of goes hand in hand sometimes. Sure. Or,
Conrad Meyer (01:38):
Or terminating a patient in an active practice if they’re unruly or what have you. Correct.
George Mueller (01:41):
Right. Not compliant.
Conrad Meyer (01:43):
That would be a good
Rory Bellina (01:43):
One. Yeah. We’ve spent a few episodes talking about how to start a practice, how to get credentialed, billing, all that good stuff. But we haven’t ever talked about either dismissing a patient or closing your practice. And I think it’s a, it’s a good topic to, uh, to get on today. So, Connor, do you wanna take us off?
Conrad Meyer (02:00):
Yeah, sure. Uh, I mean, I, I think, you know, I think all of us have come full circle in this, in some form point where we, we’ve gotten a call on closing a practice and, and one of the biggest questions, you know, we can start off with, you know, getting rid of patients, or how do you get rid of patients or advise them, or what’s the, what’s the proper way to do it so that you don’t get in tru in trouble or there’s no liability issues and, and so forth. And, and, and, or, or just having what, just a moment ago, an unruly or non-compliant, or do what I call difficult patient. Right. And, and there’s specific things you have to do for that. So, uh, especially from what the board says here. Um, have you guys, you know, do y’all have any, I guess, war stories from clients? I mean, you know, with respect to someone, rurally patients or some issues when you’re closing a practice?
Rory Bellina (02:51):
George Mueller (02:51):
Go ahead, George. No, I was gonna say it, it seems like two separate, but somewhat related issues. Certainly, I, from my standpoint, typically I’m dealing with people who may be closing a practice, and the immediate thought comes to mind is what’s the reason they’re closing the practice? And, um, it could be that they’re being bought out. It could be that they’re retiring, or it could be some version of that where they’re kind of passing the torch and, uh, all that in the background, you start thinking about a couple of things. One is continuity of care of the existing patient panel, which is very important. And then, uh, depending on whether or not the physician is doing a full exit, uh, continuity of maintenance of medical records, those two things kind of from a backing into what the board wants to see, Right. And what other laws require.
Uh, you’re dealing with, again, making sure that nothing happens to harm the patient and the continuity of their care. And then nothing happens to those medical records, which of course have all sorts of privacy obligations attached to them. And then, so we find that some of our deal documents have a tendency to build those things in medical records, maintenance agreements, I’m sure you’ve all seen them. Whereas who’s gonna pay for them? Who’s gonna sweep the dust off of them? Who’s gonna go get them when a subpoena comes or when a file is requested? And then for how long is that obligation? And I’d be to go to six or seven years, and that’s right, Right. They add a year, or, you know, depending on what state you’re in or who has the records, et cetera. Um, and so that, that generally speaking, is how we deal with it.
But, uh, you know, rapid up a medical practice, it’s a, uh, it’s a big deal. And frankly, I think it’s also an emotional thing for a physician. If you’ve practiced for that, you know, 20, 30 years and you’re kind of stepping into your next, One of the things we’ve noticed is that physicians, you know, it’s, it’s a big deal for them, right? So outside of that, you’ve gotta deliver some good advice on what to do when they need to do it. Um, and then speaking to the things about continuity of care and making sure you comply with the board and with state laws, uh, is also kind of there.
Rory Bellina (04:56):
Yeah. And I think, you know, we, we tend to see a lot where instead of, you know, closing a practice of physicians retiring, bringing, bought out, selling their practice. So we work into the deal documents, what happens with the patient records, the patient notices that go out saying that, you know, you have an option to continue on with, you know, the, the buying doctor, uh, or get your records transferred out somewhere. But in the case of an instance of a doctor that’s literally closing the doors, not selling his practice, maybe unexpectedly passes away, that’s the situation where you have a little bit more, um, kind of reaction thing to do. Right. Work. Um, you know, I’ve experienced a physician that unexpectedly passed away very unexpectedly. And, um, the, the process was, you know, essentially you, you have to notify the board. They want to know where the records are gonna go.
So you have to figure out where they’re gonna go. Are you gonna keep them at the clinic for, you know, 30, 60, 90 days, allow patients to come get them or put in their transfer request and then send them off to a storage company where you can contact the storage company for, you know, requesting those records. Um, but I think it’s important if, if you’re in that situation to definitely talk with someone because there’s some specific things that the board wants to see happen. Uh, if you don’t have a plan in place, just like with a legal practice transferring over, uh, patient or client files, but Sure, same thing in, in a medical practice. So that’s typically what, what I’ve seen, um, in, in the unexpected death of someone.
Conrad Meyer (06:22):
You know what, I guess one thing I want to ask, if either of y’all, and, and I don’t know this talking here, um, have you seen situations where what you both describe or something that’s very, very controlled, right? You get, you’re given the advice, you get enough time to close the practice, uh, Rory in your situation, I mean, even though it’s unexpected, you’re controlling it, right? What about the, the, the, the call where you get, if you ever, if you’ve ever gotten this, um, you know, George, Rory Conrad or whoever, did we, we have a situation here, this clinic or Dr. So Soandso is, it seems to be closed, their patient records in the dumpster. Um, we have a serious situation here.
George Mueller (07:04):
Is this like the windbreaker people are coming to
Conrad Meyer (07:07):
Get ’em, right? So, so I guess the que have y’all ever dealt with that? I mean, is that even real? Do you think that actually goes on? I,
George Mueller (07:13):
I know that, uh, you know, anecdotally, certainly certain practices have a tendency to draw a little bit more regulatory scrutiny. You know, we, we speak of pain management and, uh mm-hmm. , other things are maybe, you know, high DME type practices where enforcement actions are there. Um, I, you know, I have been around or involved one that involved kind of a joint enforcement action related to, um, the IRS and the ATF at the same time. And because Oh, wow. Yeah. And so what was
Conrad Meyer (07:45):
George Mueller (07:45):
Well, it was interesting to say the least because it was a, it was a call, you get it one morning and someone, the position actually wasn’t there. Someone else, something else was going on in that position’s life and said, Wow, every, all the windbreakers showed up this morning, pull all the records and everything. And I think you just, what you do is you want to advise people to be as compliant and as cooperative as possible, because, you know, at that point in time, if you’re ever in a heavily regulated practice, non-compliance is highly inadvisable and it’s probably only going to worsen whatever scenario it is you’re in. And it could be just, you know, surprise inspection of records because a controlled substance, uh, prescriptions and whatnot. Or it could be something that’s more specific to who and how they’re operating. Right. And so you don’t know that because clients don’t always tell the truth, right? So you’ve gotta kind of piece through, while at the same time, I think advise them not to do anything too worsen any non-compliance that they may have committed or be, you know, have, have done. Right.
Conrad Meyer (08:44):
No, hear what, what about the, and, and I, I get that on an investigation. I, I get that mm-hmm. , but what about the, you know, closing in the shop at midnight, turning off the lights, and suddenly patients are looking, pull the
George Mueller (08:55):
Conrad Meyer (08:55):
Got the plug, and yet went to Central America. Correct. And all of a sudden you see the dumpster filled with, with stuff and then happens to be patient records.
George Mueller (09:02):
I don’t know, you know, we’ve certainly heard of at other places, uh, you know, tax returns being thrown in the dumpster and whatnot. Different things here. I, depending on who you represent with your scope of representation is, I don’t know what you can do to kind of sue a spae, try to mitigate, right? Or, I mean, is that your charge? Are you capable of doing that? Um, or do you just have to try to get the next best level of information with respect to authority as to who’s operating that practice and what’s happened, Rory? Yeah,
Rory Bellina (09:31):
I’ve had two, um, instances where something similar has happened. One where a building was being demolished, and in the demolition they found patient records and someone found it. And of course, instead of contacting the company, demolished or the, or the owner, they, they call the news and say, I found these patient records. So we had to, we had to deal with that. Um, and then the other one was a kind of closing medical practice or terminating someone. I think this comes up a lot. If a provider’s unexpectedly terminated is there was a provider who was taking home paper medical records and would not return them. And the practice wasn’t really sure what records they, they had didn’t have, because they were all on paper and he had physical paper files at his house. So that process was really, really interesting. Um, it involves contacting the Office of Civil Rights and essentially saying, We have a data breach.
We don’t know exactly how many patient records were, uh, sent home, but we think we know. And it, I mean, there’s a process involved. They assign an investigator, you have to answer questions. Um, in this instance, we thought it was below a threshold that they said of 500 more or less. And so, um, basically we, we had to send out letters to every patient in their billing system because that’s the only way we really knew saying, Hey, we think your records may have been compromised, so call this number, if anything happens, we’ll sign you up for credit monitoring for a year and pay for, I mean, it’s a, the Office of Civil Rights has a whole process. In that case, we self-reported, we mitigated, um, we did everything that we could to get those records back. They didn’t administer a fine against the practice for that. They, you know, they said you’ve done everything correctly. Um, but it could happen. And, and I think it happens a lot when you’ve got a doctor that’s fired, a doctor that just kind of goes rogue. Maybe they’re stealing the files and they’re gonna go open up their own shop down the street. So, um, those are all real life scenarios that have actually played
Conrad Meyer (11:23):
Out. So what about bankruptcy? I mean, so in other words, like in the case of bank, it’s closed the shop right into the scenario that you described, which I, is kind of what I’m, I’m, I’m driving at is, is when you have a situation where you just have these derelict patient records, he’s these physical records, right? With an orphan an or, Right? And, and suddenly you have an obligation, let’s say it happened within the last seven years with which still within the statute, right? Um, who’s gonna, where, where, first off, where do they go? Yeah. And if they get, what do they go to a storage? And who’s the, who is sort of the, the record supervisor and who pays for
Rory Bellina (11:56):
That? It’s funny you mentioned bankruptcy. A few, right out of law school, I worked at a firm that did a lot of bankruptcy work, and we had a trustee in the office, and there was actually a medical practice involved in a bankruptcy, and it, it ultimately became the custody of the trustee. And so he didn’t have the, the paper files in his office. They were offsite at storage, but if a patient wanted them, they had to go through him to go through the process,
Conrad Meyer (12:19):
Even if there’s no money left in the kitty to pay for that.
Rory Bellina (12:22):
Yeah. I mean, because the trustee gets money from the court that, uh, essentially gets, you know, billed to the debtor in that case, but yeah.
Conrad Meyer (12:30):
Rory Bellina (12:31):
Interesting. It’s, it’s a trustee’s job to administer and, and manage the, the assets which include the records.
Conrad Meyer (12:38):
Well, guys, what about cloud? I mean, now, right, I mean, most of the time most practices like on, on Athena or some sort of other ehr, they’re not really an ehr, but, but some sort of an ehr. So how would, you know, let’s just say, just like we talk about losing the records or going turning lights off, what happens if suddenly you close the practice and you lose access to the cloud?
George Mueller (13:02):
Yeah, I was gonna say, it’s a point, it’s a matter of access, right? And then who, right? Who has the ability to get that and instead a function of, well, you haven’t paid, so everything’s still locked up in the cloud when you or you’re
Conrad Meyer (13:12):
Authorized user, right? I mean, come on.
George Mueller (13:14):
And certainly a patient’s not gonna be an authorized user, right?
Rory Bellina (13:17):
That’s, and I see that in, in pretty much every data agreement or EHR agreement that I review. It always talks about, you know, if you terminate or if you’re terminated, or if this contract just ends, you switch to another vendor, they’ll
George Mueller (13:31):
Give you the just some portability. Yes.
Rory Bellina (13:33):
George Mueller (13:33):
Rory Bellina (13:34):
That, right? The, Yeah. And, and the government has stepped in and, and, and kind of said that these records need to be able to transfer from one to another and not have a special algorithm or, or code that prohibits that. But it’s still very burdensome to do. And a lot of times they’ll, these EHR companies will give you a super small window of, you have 10 days to let us know if you want your records. And if you do, it’ll be, you know, $1 per megabyte. And if you don’t, they’re destroyed and they’re gone forever. And so that’s always something that we have to push back on and negotiate. Say, Hold on a second, if we’re closed to practice, we’ve got a hundred things going on. One
George Mueller (14:07):
Of them, that window is completely insufficient. Correct. To be satisfied the spirit and stuff. It’s the short
Rory Bellina (14:12):
Few. And to get those records before they’re destroyed and you want, you know, your, your new IT vendor or wherever you’re sending them to be able to look and see, okay, I can access these or I can’t. Because a lot of times they really don’t work with other
George Mueller (14:24):
Systems, speak to each other, right?
Rory Bellina (14:25):
George Mueller (14:26):
Sure. I think I, you know, I was thinking one issue that, uh, came to mind while worry was talking about his earlier issue. One thing, the thing that I was involved in prior to I was discussing anecdotally was the IRS and the dea, not the atf, it was a separate set of alphabet soup, but that was a, ah, um, is insurance and tail
Conrad Meyer (14:46):
Coverage. I can’t keep Oh, that is a good point.
Rory Bellina (14:48):
George Mueller (14:48):
Think about, I mean, that’s a
Conrad Meyer (14:49):
Huge point on the course,
George Mueller (14:50):
You know, and, and obviously state to state it varies, but I know in Louisiana, and Conrad, you can speak to this better than me, but the manner in which coverage is maintained and the manner in which, and the timing and the time period for which you advise a physician or practice that they need to continue to maintain that. And they start using the T word tail coverage mm-hmm. and, uh, how long, how much does it cost? And, and what are they gonna do? And that, are they truly sunset setting their practice? Are they moving to a different model where say it’s an out-of-state private equity company that has all their own insurance. What happens to that local insurance? And then, you know, is the quality of that insurance the same? Right. Or do they have access to the same learn to Louisiana council that your local insurer does? Right. I mean, we had talked about that earlier with local insurer,
Rory Bellina (15:37):
And that’s important to look at from the beginning because a lot of times when you’re buying your malpractice, you’re not paying attention. You want the cheapest plan. So are you gonna go a current based claims made? But then when you go to clothes, you find out, well, hold on, now have to buy a tail policy for all this, and they catch you on the back end. I know. Con you’ve gone through that and you know, we always get the questions. Maybe you could explain to people listening the difference between claims made or an occurrence based policy and how tail kicks into that.
Conrad Meyer (16:04):
Well, I think, I think it’s interesting. So, so tail, tail, the whole purpose of tale is to cover your, your, the time period that you were previously employed, uh, or with a group. And, and in Louisiana it’s really interesting cuz Louisiana has a three year preemptive period. Preemptive period, not, you know, preemptive that’s said it. Right? So, um, so that means what it means. That means there, there’s a maximum of three years that a at a, a patient can bring a claim, uh, against a medical provider. Uh, but only one year from the day of one year from the date of discovery, maximum of three years on the Parenter
George Mueller (16:42):
Period. And but where’s that three years measured from?
Conrad Meyer (16:44):
Measured from the time the services are rendered?
George Mueller (16:46):
Does the last time they were the last patient visit they had or is it the, Cause I always get a little foggy about it, is when is a preemptive, cuz obviously, uh, counsel who might want to keep a claim alive or say that they’re within the time period is gonna argue that the, the last touch, or the last word or the last advice or the last reliance was,
Conrad Meyer (17:05):
Interestingly you say that I had a case about this. This is very interesting. So doctor did surgery back in 2017, let’s just say it was January 1st, 2017 mm-hmm. . Okay. So technically the surgery, the, the encounter was the surgery. Mm-hmm. , uh, the patient, um, knew that there was a problem almost maybe a year after that they had some complications but never brought suit. Okay? Mm-hmm. . So it, the clock started from when the patient reasonably would’ve known that there was an issue from the surgery. So, so it’s a reasonable standard. Uh, right. And, and, and so you got it. And so they, they, they should have brought suit within a year, within that year, cuz they, within that time, the three, three year time frame, but they didn’t mm-hmm. and in fact they didn’t wait to bring the claim until 2021, which was interesting.
So I’m like, well wait a minute, you know, something’s not, I didn’t pass the smell test, right? Mm-hmm. . So I went back and looked at the medical records and, and sure enough what the patient did, I think that they knew that it was wrong. Like, in other words, they knew the claim had prescribed. So, because they found out about it that the surgery was a January 1st, 2017. They discovered it January 1st, let’s say 2018. So they had one year, January 1st, 2019 to file a lawsuit. While in the fall of 2019, the patient scheduled a clinic visit with the doctor to discuss the surgery. Nothing else, no other services were brought his to discuss. And, and during that meeting, it got very heated. It was documented in the record and the, and the, and the physician terminated the patient, which we’re gonna, you know, go into a little more.
Uh, but they tried to use that date on the, uh, on the 20, in the 21st December of 2021. Uh, to say that it stripped the three year parental, that was the date that, that, that actually services. And they lost. I mean I, we brought that up to the court, the court obviously agreed with us that it was prescribed and was done. So people try to do this. So that’s the gray area. And why tail’s so important. Tail covers you. If you uh, if you, if you don’t have, I can’t, I always get claims made in occurrence space. I always get those mixed up sometimes. So, uh, but anyway, if, if you have claims made, covers you for the time, uh, I think it, I, you know, I can’t, I just can’t recall. I can just confused. Sorry.
Rory Bellina (19:24):
Conrad Meyer (19:25):
Gonna remind you. Rory’s gonna remind me all that. But anyway, the point is, is if if, if you, you need tail coverage. If you, uh, if you, if you think if you have a cur, maybe it’s a occurrence based that, uh, that you, that you need tail coverage for the three years. Either way I
Rory Bellina (19:37):
Can hear all the other attorneys are
Conrad Meyer (19:39):
Shouting and they are like, say it. Right. You know, and I’m just like, wait, it’s a Friday. So, um, anyway, the point is the tail coverage is very expensive and in a employment contract, it’s, it’s sort of the gotcha moment where we try to negotiate that to see, to make sure that our, you know, your, your, your employee doesn’t pay that if they don’t have to depending on who, who you represent. So you know that that’s the best explanation I can give a
Rory Bellina (20:02):
Tale. Yep. So, and like, but
Conrad Meyer (20:04):
Roy’s looking at me right now. He’s like, I got it Conrad, I got
Rory Bellina (20:06):
No, So what you’re no, you’re, you’re on the right path. Um, no claims made is the policy where you’re gonna have to by tail. So it’s typically okay, it’s it’s cheaper on the front end. Yeah. Right. You swapped the economic burden. Correct.
Conrad Meyer (20:20):
So I was wrongs, actually it is claims made. So they thank you for correcting me. Yeah,
Rory Bellina (20:24):
No, no, no problem.
Conrad Meyer (20:24):
I would’ve failed the bar exam on that. This no,
Rory Bellina (20:27):
It gets, it gets a, it gets confusing occurrence is based on its coverage occurring during the term, regardless of when the actual claim is made.
Conrad Meyer (20:35):
Rory Bellina (20:36):
Is, was made as when the claim, when the claim is made, which makes tail very important in that case. So, uh, no, that’s no problem at all. That’s interest. See, But, but yeah, bringing, bringing that back to,
Conrad Meyer (20:46):
I’m glad Lori was here. He got
George Mueller (20:47):
That. I’m glad I brought the issue up.
Conrad Meyer (20:48):
You did. Cuz it made me look
Rory Bellina (20:50):
Really kind of foolish.
George Mueller (20:50):
Not at app, it’s not the point. It was an opportunity to freshen, refresh and sharpen your knowledge on
Conrad Meyer (20:57):
That good teaching point.
Rory Bellina (20:58):
Uh, bringing it back to, you know, closing a practice or, or terminating that that patient, um, your insurance is an important part to find out what you want to do. Because like you mentioned Conrad, you don’t want to close the door and cancel it, turn off all the lights, cancel all your utilities, cancel your insurance, and then catch something a year or two later. You know, you
George Mueller (21:20):
Don’t want that. And it speaks to, again, I’ve got dual track going on. One part of me wants to ask what sort of form letter and what sort of criteria do you have to document in your notes, in your prior visits in order to be able to quote unquote terminate a patient Sure. For the type of willful non-compliance and or something. And then my other thought is, um, to the point of about not wanting to pull the plug, um, you also just don’t want to get rid of that entity that you have, Right? Cause that’s your shield. And so a lot of people wanna pull the plug on it immediately.
Rory Bellina (21:50):
That’s important. I think that’s important to talk about because I have had that, that phone call where, you know, you’re, you’re shutting down the shop and they’re like, Okay, I want you to cancel the policies and can you dissolve my entity? And that’s when I know George, you’ve got the expertise on that to talk about why to not dissolve an entity for a while and the benefits of of not doing it.
George Mueller (22:12):
Yeah. So I think generally speaking it, and it applies to just about any business, but certainly in one where potential exposure and liability, you know, really does exist, um, is that entity. And I, I realize to a certain degree for medical malpractice that that is, you know, you can’t really use an entity to shield a professional from that. We know that is embodied in Louisiana law. Um, but for all other types of liability that could be entity specific, you don’t wanna expose yourself to that personally. And we we’re talking about tort liability, slip and fall liability. I mean, technically, um, you can get sued for a breach of contract, I think 10 years in Louisiana, which is almost seems like 10 years. Goodness. That’s crazy. Sure. We tell people one to three years and you’re pretty much done for everything. But there are some things that have four year and six year, you know, prescriptive periods, contracts have 10 years. I think practically speaking, you can deal with the allocation of risk and likelihood of exposure and get it to the point where it’s remote to nonexistent. When you get past three years, you can really kind of advise a client, but telling them that they’re gonna have to pay the secretary of state three more years of fees and file three more years of, you know, no activity, tax returns, et cetera. It becomes a little, you know, they don’t like that. So they wanna pull the plug mentally they just want to be
Rory Bellina (23:28):
George Mueller (23:28):
Right. But you have to remind people, this is almost like an insurance policy in itself. You wanna keep that open. Said if you had a slip and fall or you had an employment claim that you didn’t know about because there was a hostile work environment issue, you had no clue about any of these things. They could be kind of rats in the wood, wood pile waiting to Sure. Start smelling. And so we try to assess that and, and some, look, we, as a practical matter, you do get emails from people. So I just want to get rid of this llc. It’s all fine. I don’t have anything, You have some minimums attorney you have to document. Are you sure you have don’t have any liabilities, any un performed contracts, any, you know, employees or other, any things that are back to haunt You get rid of this and you know, you could arguably be liable personally, at least to the extent you got money from the llc, which I think is what the LLC law says. Sure. Um, but as a practical matter, you’re, you’re there without the shield of a limited liability company or corporation to protect you. And
Rory Bellina (24:22):
Kind of what are your thoughts on that from a payer perspective of not wrapping up your llc, not essentially terminating your end recruitment? Holy cow. From a recruitment standpoint,
Conrad Meyer (24:32):
Yeah. You’re in a quagmire. I mean, you’re in a real, first off, you know, you’re gonna have to have time to continue to have your receivables come in. I mean, you’re lucky if you’re on, if you’re between, you know, 30 and 60 days. I mean, that’s pretty good. That’s really good. I mean, that’s like excellent, really. So, so let’s just, you’re so you’re not likely in that window, you know, if you’re even 80 or 90 days out. So that’s three months and then you pretty much get all the stragglers in at 120 days. But then you have appeals so you, you know, you gotta appeal. You might have a lot of appeals. So depending on, you know, your current ar you’re gonna wanna make sure to, to at least hold open that so you don’t lose the opportunity to appeal and, and or recoup refund all those
George Mueller (25:13):
Issues. What about Medicare and Medicaid heavy practices that have kind of that annual sort of true up and refund process? I mean, if you really have to, I think let the air fly out of the balloon for
Rory Bellina (25:25):
A while. Right? And I always advise the same thing, especially patient populations that are heavy on Medicare is, you know, don’t wipe the bank account yet, Hold some money in there cuz there could be a recruitment, they could just funnel it back. And if that, if that bank account’s empty or if that entity’s gone. I know George, this has come up on a couple of deals that were worked on. Everyone wants to sweep that bank account in and closing the practice. I’m moving it over to my personal account. What are your thoughts on that?
George Mueller (25:49):
I think you’ve gotta build in your time and you gotta build in some money there. Much the same as we’re always chasing a working capital adjustment and how much is enough to leave in, I think when you have these government payers and or any if, and now people are switching to value based arrangements, Right. And most of ’em are upside only. I think eventually gonna be moving a downside, which is gonna be another way of, of just kind of putting recoupment into all the payer deals.
Conrad Meyer (26:17):
I hate that word. Sure. It’s, I mean, as a, in a healthcare setting, I mean how the recoupment
George Mueller (26:22):
Yeah. So Conroe, you have, uh, you’ve done some rack audit work before. Yeah. And how long after say the payment event can those come up? I think that’s another point where you start to look at what is the outside limit of time and then how can we move that time inward to get the entity done.
Conrad Meyer (26:39):
I think the look back, I mean, I wanna say, oh man, not getting me terrible today. I think the look back is, I wanna say at least what, three years or two? I can’t
Rory Bellina (26:48):
George Mueller (26:48):
Is the point. Every time I think we think about something that is an anecdote that we talked about at our practice point, we find another reason to say, please don’t pull a plug in. Sure. And if you’ve just done a deal, you’ve probably gotta,
Conrad Meyer (26:59):
George Mueller (27:00):
18 months to two or three years
Conrad Meyer (27:01):
On. But then it’s arguing the hold back though guys, it’s arguing the hold back and and how and, and how much because you know, nobody wants to do that. Yeah,
George Mueller (27:10):
No, that’s a certainly a deal point to always how much is the hold back. We have percentages that act as thresholds from a negotiation standpoint to start at. Right. And they usually go up or down and as we know, if the healthcare regulatory attorneys or turn loose in the last 10 days of deal , they come up with, we’ve gotta return everything. Full disclosure, we’ve gotta double a hole back and oh goodness. It’s, you know, all that. So, um,
Conrad Meyer (27:33):
Well look, I, I, I get all that and, and, and you know, because of course, you know, we’re here to plant, you know, the traps, right, Rory? Yeah. I mean the traps and the deal that’s,
Rory Bellina (27:42):
Well I think it’s just, it’s important to, there’s just so many aspects of opening a practice. Everyone’s excited. You’re getting all figure out going. And then when you’re, when you want to close it, you know, you just wanna be done with it. You want, you wanna be done with it yesterday. And unfortunately it’s not a fast process. There’s things to keep open just for like an employment standpoint, You know, if you’ve got a disgruntled employee or you didn’t pay out all their vacation or, you know, anything like that, the, those issues can always come up too. So I think it’s important to not hurry to close as much as fast as you wanna turn off those
George Mueller (28:16):
Lines. You’re not doing yourself any favors by trying to quote unquote shut the entity down. And for whatever, like I said, whatever normal charges you’re gonna incur over that two or three year period, uh, uh, it’s essential. But you know, your reps and warrants that you make, I mean, the entity makes a lot of reps and warranties, the fundamental reps never go away. So that that’s, you know, you’re not gonna get rid of those. But a lot of the operating warranties reps and warranties and maybe even some of the qualitative reps and warranties that you make about some of the assets that are conveyed and or lack of liability, et cetera, all those, you know, have a pretty slow burning fuse on them. So the reasons to kind of begin argue against the go dark.
Rory Bellina (28:52):
Yeah. And, and what about the, I know we’re pivoting a little bit from closing to the sale of a practice, but if you’re selling a practice, how important is it? And I, I know where the answer is gonna be, but how important is it to keep that entity alive for any liabilities that could come? I know we’ve all had deals where they try to get the individual physicians liable on those schedules and those reps and warrants just as much as the entity. And, and if we’re representing seller, we try to pull that back and say, No, this is a rep and warrant of the company, not of the individuals, but keeping that entity alive for those reasons. You know, if they’re withholding money in escrow, what are your thoughts
George Mueller (29:29):
On that? I, you know, I think if the, keeping them separate wherever possible is really good. Uh, the use of knowledge qualifiers is probably your second best line of defense. And the third best line of defense is to shorten the time period for which they exist and apply post-closing. Um, you’d like to have them kind of be up and two and prior, and then you get the issue of when something first discovered, can you get some anti sandbagging language in there so that they haven’t gotten something that you haven’t realized and they come after you after the fact. They already knew about it, they closed the deal anyway. Um, we try to get that to kind of balance the allocation of risk there a little bit. Um, but yeah. But, but in the, in the sale of a practice where it necessitates a closing again, I think we’ve, you know, you really gotta advise people to keep the window open a little longer. Yeah. Let things, it’s, it’s more of a glide path and a wind down than it is. Uh, shut the door, if
Conrad Meyer (30:23):
You will. Yep. Speaking of winding down, I wanna pivot for a second. Let, let’s talk about disgruntled patience. Okay. Because part of that too, I mean, we talk about sale of practice and how we transfer records and, and all that, but what about the, what about the call you get from the doctor saying, I have a patient in my waiting room who has, you know, decided they wanted to have a, a, um, uh, a pet, you know, or, you know, they, they, those little feel good pets, they make ’em feel good, but they’re not, they don’t really, they’re not really allocated. In other words, they comfort but not certified comfort. But not certified. Right. Or they just truly, or they just call the time whatever, whatever, pick, pick your disgruntled or, or, or complaining patient,
George Mueller (31:03):
Be care, be careful about pets because people are very sensitive about their comfort pets and uh,
Conrad Meyer (31:07):
Well, I’m, I’m not So we don’t wanna that segment. I’m not offending that. No, we did not wanna do that. No, but pick your whatever a whatever, whatever patient type of complaint you could think of. And finally the doctor says, I’m done. I want to get rid of the patient. Sure. How many of you have dealt with
Rory Bellina (31:25):
That? I had that, um, not too long ago. And it was actually in a, uh, dental practice with a patient. Oh wow. With a, with a male patient who
Conrad Meyer (31:34):
You wouldn’t think of that in the dental practice.
Rory Bellina (31:36):
Well, in the dental practice,
George Mueller (31:38):
Who wants to go to the dentist?
Conrad Meyer (31:39):
Nobody wants to go,
George Mueller (31:41):
I like to go, I’ve been able to get my teeth clean and
Conrad Meyer (31:43):
Everything that that’s one thing. But when they bring the drill
Rory Bellina (31:45):
Out, this was a, this was a male patient who was being inappropriate with the dental hygienist and the
George Mueller (31:52):
Whoa. Yeah. That’s
Rory Bellina (31:53):
Not good. And it became, it became an issue where no one wanted to work on the patient and it was, it became an issue of, okay, well we need to terminate you. And
George Mueller (32:01):
That’s, that almost sounds like criminal behavior.
Rory Bellina (32:05):
George Mueller (32:06):
Was borderline manifestation of it. You
Rory Bellina (32:07):
Watch that. Yeah. It was very borderline to that. Yes. Um, but so but’s terrible. You know, our client didn’t want to have to go that Right. They just said, We just want to, you know, terminate the patient and Well, does
Conrad Meyer (32:17):
The dental board have any guidance on that? Did you have to look to that
Rory Bellina (32:20):
Or? Yeah, so the, the, you know, the dental boards says the, you know, obviously if you’re gonna discharge a patient, there should be reasons for it to document it. And, and then we, we, we talked with the dental board about, you know, uh, being professional with the different hygienist. What, what really came up was the practice wanted to discharge the patient. They didn’t wanna make a whole thing about it. So the patient, when he found out he was being discharged, decided to, uh, file a complaint against the practice as well as, uh, dispute all his credit card charges that he made at the practice for, for payment.
Conrad Meyer (32:55):
And no good deed goes unpunished. Right?
George Mueller (32:57):
Yeah. That’s, um, yeah.
Rory Bellina (32:58):
Wow. Yeah. But so what, what what became very important though in discharging a patient, kind of just like anything else, is documenting it. So this practice, they had the hygienist write a statement. They had the doctor I statement. He actually had, um, you know, you know, a lot of things to back that up and was able to, cuz when the dental board said, Well, you know, what happened? He was saying, Well, here’s my statement, here’s the hygienist statement, here’s what was going on. And, and, and that’s why we discharged the
George Mueller (33:26):
Patient. And as a practice owner, you have an affirmative duty to provide a safe worker,
Conrad Meyer (33:31):
George Mueller (33:32):
For your employee. Correct. And to protect them and to, to swiftly quickly and, and adequately Correct. Respond to that. Cause that’s a threat is what that is. That is a, it could be apprehension, harm gonna be an assault, uh, if if it’s unwanted touching that is a battery of a, a potentially very aggravating nature, not situation. Yeah, yeah. No, you’ve got a,
Rory Bellina (33:54):
So it became something where the patient was discharged, received a letter, and um, was sold. He can go pick up his records, they’d be there no charge and, and, and to move on. And the patient eventually did, but was not happy about
Conrad Meyer (34:08):
It. Now see, it’s the board now here, the board of medicine actually has an advisory opinion directly on this. And so when physicians call, if you ever get this call, you can always point them to the advisory opinion. It lays out a, a literally six step process to terminate a patient. And, and it’s, it’s got all the things we talk about. You know, it talks about notifying the patient and writing of your intention to dismiss or fire them and give them a specific date. I’m firing you as of this date and give them notice for 30 days. Okay? Uh, you know, it’s upcoming. So in other words, you can say, I’m gonna fire you within this 30 day period, period.
George Mueller (34:41):
Fire them for any reason Or does it list reason criteria? So you
Conrad Meyer (34:44):
Just, you could just terminate ’em if you just don’t wanna work with them anymore or whatever your, whatever the reason is,
George Mueller (34:50):
Conrad Meyer (34:51):
There’s, there’s no, there’s no, doesn’t matter. It doesn’t matter. Doesn’t matter. Okay. Uh, you gotta provide, but you have to give an explanation of why, you know, So, so it doesn’t, doesn’t say it
George Mueller (35:02):
Can be any reason, but you better,
Conrad Meyer (35:03):
You better tell why. Right. And so that way, if they make a complaint to the board, they can understand why. They can show them the reason. Mm-hmm. , um, document the notification in the medical record. That’s very important. Uh, I mean you might have the pa the, the, the letter, right? You write in a file, you
George Mueller (35:19):
Need a note with a date,
Conrad Meyer (35:19):
But you need to put it in the, make it part of the record, right? Mm-hmm. , um, and then locate another physician for that patient. That’s the continuum of care that we talked about. We wanna make sure we have continuum of care. Okay. And then, um, or just say, look, here’s some other doctors in the field you can contact. Um, and then transfer all medical records when they get a valid release from the new provider and they close it out. Lastly, assure that they have adequate refills of their medication. So,
George Mueller (35:43):
And, and so what, is there any threshold that you all can think of practically other than obviously if someone is in dire health traits where if you terminate right, their, the patient relationship somehow it’s like some component of abandonment by the physician. Where where does that turn into? I have the ability to legally terminate my patient relationship with you versus I can’t terminate right now because it would be deemed abandonment. If you can imagine,
Conrad Meyer (36:10):
I think it would deal with the
George Mueller (36:11):
Just acute care scenario where someone,
Conrad Meyer (36:13):
A acute care scenario where someone external, it’s sort of like a legal case, you know? I mean, in other words, if you get so far in a case and trials pending, you know, and you tell the judge, I have to withdraw from the case, the likelihood of the al he did is very small. You said that’s what I was saying. Similar, similar situation with a, with a doctor. If you, if you have been treating this patient in, in, in sort of an acute setting or there’s, there’s a time issue or time variant to a, to a treatment plan that requires that kind of intervention by the provider mm-hmm. right Then I think it would, it would not be looked, I think the board might have a problem, you know, with the termination event in that situation. Mm-hmm.
Rory Bellina (36:51):
. Yeah. I think like you said, I think timing is everything. It’s it’s
George Mueller (36:54):
Case circumstances, right? Right.
Rory Bellina (36:56):
Making sure that, you know, you’re not terminating them and they had a, a very important appointment on the books and them
George Mueller (37:03):
Medically because of it Right.
Rory Bellina (37:04):
Could harm them
George Mueller (37:05):
Medically transition or replace or
Conrad Meyer (37:07):
How about this
Rory Bellina (37:08):
Conrad Meyer (37:09):
How about a cancer patient who was coming in for their follow up PET scan and they have to get it every six months, right? Per, per protocol, right? Mm-hmm. sure. And suddenly that doctor, whatever it is, cause I’m not seeing you, maybe it’s a radiation oncologist or your oncologist, I’m not gonna do it anymore. And then you go to another doctor, whoever they recommend, they say, I can’t see you for another four or five months. You’re
Rory Bellina (37:31):
Yeah. You’re, Yeah, I think that’s a problem. That’s a problem.
Conrad Meyer (37:32):
That’s a problem. And, and, and if you, if he was that doctor who’s terminating was, was my client, I would tell him, you can’t do that. Right. You have to at least get ’em in for the scan. Do the scan and then make sure that you can get him involved so he doesn’t miss the protocol.
Rory Bellina (37:46):
Sure, sure. I think, like I said, case that’d be a huge problem. That would be a problem. I think that’s an abandonment. Yes. You’re harming the patient. You could be harming the patient if their conditions getting worse.
Conrad Meyer (37:56):
You can’t wave a letter at that point. Yeah, I terminated, I terminated ’em right
George Mueller (38:00):
In in that diagnostic hiatus. Something pops up and then they come back and you’re like, oh, you missed it. Right. Sure. And then that, that obviously is, you certainly wouldn’t want that for the patient, but it’s potential liability for the
Rory Bellina (38:10):
Physician. What are your thoughts on terminating a patient for, you know, if they’re not paying copays at the time of service and they get behind copays or deductibles, what are your thoughts on that? Is there, do you set a threshold of, you know, if if we, uh, I know a lot of practices as opposed to like taking a card at the counter. They, they they bill you or, and that’s popular I know in a lot of pediatric practices cuz you’re in and out with your kids and like it’s, it’s, you know, your kid’s sick and they just don’t have time to do
Conrad Meyer (38:37):
It. I want to go to those practices cuz doesn’t do that. I mean, I’m, I’m gotta pay up front.
Rory Bellina (38:42):
Well what are your thoughts on discharging for financial reasons?
George Mueller (38:48):
I, you know, I
Conrad Meyer (38:49):
It’s a tough call.
George Mueller (38:49):
I would imagine it, it that invokes a couple of different things. One, you know, from an ethical standpoint, the Hippocratic oath and everything, I think a lot of physicians, uh, take that very seriously and we’re very glad they do. And, uh, maybe reluctant to, they feel like it’s their calling their duty and they would like to get the copay, but they probably aren’t going to if they feel you can’t and it’s actually an economic hardship. Sure. I would imagine in that scenario you can wave it, you know, it’s
Conrad Meyer (39:16):
Physician, you the document why though you have the well, Medicare the document, let’s assume
Rory Bellina (39:19):
George Mueller (39:20):
Assume in trouble if you don’t take ’em. That’s, so you’re kind of,
Conrad Meyer (39:23):
Especially if you’re in network. I mean, if you’re a network under an in-network agreement Yeah. And you don’t take them that, that, that could be a problem. And
George Mueller (39:30):
So what I was kind of going to, and y’all are stealing my thunder. Okay. Cause we’re all a team here. That’s right. But the, so you see where I’m going though, That’s how, which I think is positive. I
Conrad Meyer (39:39):
George Mueller (39:40):
Good thought. Yeah, no, it, it is. You’re backed into ethically what you want to do versus what you’re legally required to collect. Right. At the, at the point of service at that and those things, they kind of conflict. I I think you would be looked at favorably if you didn’t collect that. But you know, depending on what your payer’s doing in terms of evaluating your compliance with their payer agreement and or recruitment issue or whatever, it may not look favorable. So you try to, I guess you try to get what you can.
Conrad Meyer (40:08):
George Mueller (40:08):
I mean it’s like great legal advice, but I think
Conrad Meyer (40:10):
It No, well, I mean, but if you did, I think the, that payers, right, because I know you’re very familiar with that. Both of you are, you’ve dealt with this, payers look for systemic waiving of, of copays versus isolation versus an isolated transaction.
George Mueller (40:24):
And that’s where I think you’re probably gonna be
Conrad Meyer (40:26):
Fine. That’s gonna be fun, right?
George Mueller (40:27):
Yeah. It’s right. If you were doing it all the time, they’re gonna say, but
Rory Bellina (40:30):
Terminating a patient or saying, We’re canceling your next appointment if you don’t get caught up on these copays that we’ve you for,
George Mueller (40:37):
I don’t know, it goes off in my brain. Is that, is that legal? Right? It may be good business.
Conrad Meyer (40:42):
Well also, is it, is it in network or outta network? So I need more facts. So if, you know, if you wanna do in-network, I think your in-network agreement would, would obviously hold right George?
George Mueller (40:52):
I think so, yes.
Conrad Meyer (40:53):
Just what about outta network?
George Mueller (40:55):
Conrad Meyer (40:56):
Tough, I don’t know. Tougher
George Mueller (40:57):
Call. Yeah, it’s a tougher call. I’d want to know facts and circumstances and I’d want to know if it’s chronic and willful or if it’s, you know, something. Bottom line is I don’t want to expose my client, the physician to any legal action because they did this. And so I, you know, off the cuff, I don’t have a good answer for you, but I think it, I think we’d know where to get the answer to look at.
Conrad Meyer (41:19):
Interesting. We always have good topics, you know. Sure. I mean, if it’s
George Mueller (41:24):
Conrad Meyer (41:25):
A little bit, that’s another thing. You know, I want see can I have George in, in the studio more?
Rory Bellina (41:29):
He has a good third voice to the podcast.
Conrad Meyer (41:30):
He does. He does. He knows his stuff.
Rory Bellina (41:32):
He got a voice for radio. He
George Mueller (41:34):
Oh boy. Has face to match
Conrad Meyer (41:36):
. That’s good. That’s good. Well, I think, I think, you know here any final thoughts, gentlemen, on practice closing or terminating patients? Um, interesting one to worry about the dental board. I didn’t know that. Yeah, that’s
Rory Bellina (41:51):
Good. I think the big thing, my big takeaway for closing a practice, selling a practice terminating a relationship is that it’s not gonna be as fast as the client or the provider wants it to be. It never is. And there’s gonna be steps involved and you just wanna be done with it. You wanna be done with the patient or the practice, but, um, unfortunately you need to follow guidance from whoever you get it from because you don’t wanna fall into a trap a year or two down the road or, or get a complaint against you or not have a patient record and then they, you know, there becomes an issue with that George.
George Mueller (42:27):
Um, uh, I think you’ve gotta remember that the entity’s your friend and, um, you want it to be around for a few years to take some, uh, flack for you, so to speak. And, um, winding it down. Otherwise, I think you should view it as a wind down and not as a, uh, pull, pull the plug, so to speak. And some of the examples that Rory cited though, I mean, it’s, it’s unfortunate, but, you know, people leave us sometimes and, and it’s unexpected. And, uh, so you’ve gotta kind of deal with that in, in a more reactive scenario. Um, what you hope for is that there are enough business processes in place to where the office manager, um, who has all the keys, hand the passwords and knows where everything is, can still provide the continuity of information necessary to transition the practice in a legal manner. Um, sometimes maybe that not available or if it’s more of a sole practitioner with a little less sophistication, um, that yeah, you could have some issues where you just don’t know where stuff is, right. Um, but I think nowadays, uh, I think there’s bit more practice automation. A lot of things have software and, uh, so hopefully the ability to transition those things, even in the most unfortunate scenarios is, uh, you know, gonna be mitigated.
Conrad Meyer (43:42):
Interesting. All right, well I think that’s gonna wrap it up here. I want to thank, uh,
George Mueller (43:46):
Yeah, we went 20 minutes times too.
Conrad Meyer (43:48):
I know. Isn’t that great? And with George Mueller, I mean, I mean, I’m happy, I’m so excited he’s in the studio. This is great, you know,
George Mueller (43:55):
Kept more hot air in here than the Hindenberg
Conrad Meyer (43:58):
. Well, that’s gonna wrap it up with, uh, with us here, folks, uh, another very good, very good episode of Health Law Talk here at Chehardy Sherman Williams. We hope that you, uh, got out of this as much as we did. Very good. Yes, sir. And, uh, look forward to another episode coming soon. Enjoy the weekend. Enjoy your time with family and enjoy just life. Have a good day.
Thanks for listening to this episode of Health Law Talk, presented by Chehardy Sherman Williams. Please be sure to subscribe to our channel. Make sure to give us that five star rating and share with your friends, Chehardy Sherman Williams is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does this podcast establish an attorney client relationship. Reference to any specific product or entity does not count as an endorsement or recommendation by Chehardy Sherman Williams. The views expressed by guests on the show are their own, and their appearance does not imply an endorsement of them or their entity that they represent. Remember, please consult an attorney for your specific legal issues.
Health Law Talk, presented by the Chehardy Sherman Williams law firm, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.
We handle everything from regulatory and compliance check-ups to employment matters, Medicare and Medicaid issues to state and federal fraud and abuse regulations. Our healthcare attorneys are always staying up to date on the latest state and federal regulations to ensure that our knowledge is always accurate.
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