Closing a practice: how to prepare for Death, Disability and Retirement

MENTAL HEALTH RISK MANAGEMENT 1 For more information about Wilson Elser’s Medical Malpractice & Health Care practice visit our website. Scott D. Hammer Of Counsel, Chicago 312.821.7617 scott.hammer@wilsonelser.com 55 West Monroe - Suite 3800 Chicago, IL 60603 Closing a Practice July 2015 How to Prepare for Death, Disability and Retirement Believe it or not, the chances of becoming disabled, dying or retiring are pretty good. Although some therapists believe their therapeutic efficacy will lead to immortality, I hate to tell you, but one day your caring heart will cease beating. Either death or your patients will eventually kill you. This article focuses on how to plan for Death, Disability and Retirement (DDR). Retirement is usually planned, but death and disability often come without warning. Your sudden and unexpected death or disability as a therapist will leave your family with a large number of professional and personal tasks needing attention. Those burdens on your family are heavy enough, and then they have to contend with the needs and nonsense of your patients. Numerous decisions have to be made quickly, and during the period of mourning. Advance planning is the best solution for dealing with the complexities of your death. You need to understand and appreciate how your DDR will affect your family, friends, colleagues and, equally important, your patients. Clients often suffer feelings of loss, abandonment and grief surrounding the DDR of their therapist. Closing a practice for expected or unexpected reasons must be done carefully to protect the patient, the clinician and the clinician’s family. Although most mental health providers have their personal probate affairs in relatively good order, few will have any professional probate documents or directions prepared…and then they die. When closing a practice, the clinician’s first and foremost duty is to the patients. Therapists must never abandon their patients. Closure of the practice due to retirement should be accomplished in a manner that allows patients sufficient time to secure Continued 2 MENTAL HEALTH RISK MANAGEMENT July 2015 the services of another mental health practitioner of their choice. However, even after death, the mental health professional cannot abandon their patients. If you die, don’t worry, your patients will still blame you: “How dare you die in my time of need.” So alive or dead, you still have the responsibility not to abandon your patients. If you don’t make proper professional probate plans for your patients during your life, they will haunt you from death to eternity. My client Dr. Michael recently passed away. Like many mental health professionals, he was a solo practitioner with no assistant. He died suddenly on a Sunday, and I received a frantic call from his son on Monday. Patients were standing outside Dr. Michael’s office. With his attention focused on burying his father and supporting his mother, the son was confronted with the fact that his father’s patients were like family members who needed to be comforted and consoled. But the son soon realized he didn’t have basic information to tend to his father’s practice. The son didn’t know which of his father’s keys opened the door to his office; the password for his father’s computer; the password to his father’s desk phone and cell phone; where his father kept his calendar; how to contact his father’s patients; and what to tell the patients. GENERAL GUIDELINES FOR CLOSING YOUR PRACTICE Here are some general guidelines to consider for DDR. If you are planning to retire, you or your staff can accomplish all of these actions. If you die or become disabled, someone should be “appointed” now to take on these activities. Short-term coverage: In the case of death or disability, who can provide short-term coverage for your practice? For long-term treatment, to whom are you going to refer your patients? You should contact a number of colleagues to determine who can take on new patients and how many. My late client Dr. Michael told his son to transfer all his patients to his colleague Dr. Greene. When I called that therapist to facilitate the transfer, he told me, “I might be able to take on 2-5 patients, total.” Dr. Michael had 300 “current” patients. Notify all employees: If possible, retain one key employee full time to open mail, respond to patients, and handle all documentation, file transfers and billing. Notify all patients: If you retire, send out notice/letters to all patients at least 90 days before retirement. This will allow the patients to hopefully have a final session with you and transfer to a new clinician. For death and disability, notice should go out immediately. The notice sent to patients regarding DDR should be a standard termination letter and provide at least three referral sources. Written notice must include an explanation of how copies of the therapist’s records may be accessed by patients. Patients should be informed that copies of their mental health records may be obtained and sent to a clinician of their choice with proper consent and payment of a reasonable fee. Copies of the letter should be placed in each patient’s file. The individual who takes on this job should also personally, and with therapeutic sensitivity, contact each patient over the phone to advise of the death or disability. The question is always who is a “current” patient? Some patients are seen very rarely, others are seen too often. Although termination with patients who have not been seen for more than 12 months is more the subject of another article, for DDR purposes, the person in charge should contact all patients seen in the past two years. Send notice to a local newspaper: Illinois Statutes require notice be given by publication in a newspaper of general circulation in the geographical area in which the health care professional is located. Staff privileges: Call all medical staff of all hospitals and other facilities where the clinician had membership and privileges. Continued 3 MENTAL HEALTH RISK MANAGEMENT July 2015 Pharmacies: Contact local pharmacies so no further prescriptions can be obtained. Insurance networks: Contact all insurance networks. Contact all health care plans, HMOs and PPOs and Medicare and Medicaid. Also determine what needs to be done to “process” recent bills that have not been sent for payment. Licenses: For those with a license issued by the Illinois Department of Financial and Professional Regulation and/or an Illinois Controlled Substance License issued by the IDFPR and Federal Drug Enforcement Administration (DEA), notice should be given to the IDFPR at the time of DDR. Prescription pads and medications: All prescription pads and all (sample) medications must be disposed of appropriately. For controlled substances, federal rules require notification to the DEA prior to disposal of controlled substances in a specific manner. Non-controlled medications may be destroyed in any appropriate manner. Donate: Continue to bring hope to the hopeless by donating the stored medications, books, supplies and furniture. A donation may be tax deductible and is definitely good for the soul. Professional and business insurance: The professional liability insurance company must be notified upon DDR; there may be a partial refund of unused premiums. More importantly, inquire and purchase “tail” coverage for all “claims made” insurance policies. Also, check the “occurrence” policy to make sure there is coverage after the therapist’s DDR. Attorneys and accountants: Contact the clinician’s personal and corporate attorney along with the business’s accountant. Review all tax considerations, legal requirements for closing a practice, and the clinician’s own life, disability and employment contracts. Records and files: Document all computer usernames/ passwords/logins/security questions (What’s your first dog’s name?) /social security number/email accounts. Record all bank account information. If you do nothing else today, write down this information where someone can find it. It’s easier to do now than after you’re dead. Utilities and vendors: Contact public utilities, landlords, vendors, creditors, phone/cell companies, equipment vendors, Internet providers, etc. Referral sources and professional colleagues: Notify other clinicians who were close associates of the therapist or were a source of referrals. Professional societies: Inform state and national professional societies (IPS, APA) where the clinician had membership. Post office: Contact the local post office and other delivery contractors and arrange for all mail to be forwarded to a new address or PO Box. PROFESSIONAL WILLS It’s in the therapist’s best interest to create a “Professional Will” that dictates the steps needed to close their practice and assist their patients and, indirectly, help their own family. Professional Wills are not recognized in Illinois. They cannot be probated and court-directed. Therefore, they have no “legal” meaning or standing. However, a Professional Will can provide direction following death or disability and should specifically address all issues regarding the clinician’s patients and records. Items to consider in a Professional Will Name an executor/administrator: It may be beneficial to name a trusted colleague who understands the nature of your practice. You should consider compensation for the executor’s time and expense. Obviously, this person should confirm that they are willing to take on these responsibilities and tasks. Name a records custodian: Most of your patients will request a transfer of their charts to their new therapist. Furthermore, you can still be sued after you die, so records should be kept for at least four years after your death. Records custodians should notify all patients of death, offer referrals, send copies of records to new therapist (with proper authorization/consent), arrange for storage of charts and files, and have keys to all locked filing cabinets. Therapists still have a duty to maintain and retain records after death or disability. Below is basic information that can be used to create a Professional Will. My suggestion is to keep this document with your personal will and treat it with equal respect. The following sample contains items you might want to include, but keep in mind it is not intended to be a legal document or offer legal advice. Each practitioner should consult an attorney regarding professional practice issues. Continued MENTAL HEALTH RISK MANAGEMENT 4 July 2015 SAMPLE PROFESSIONAL WILL Date Created: Created By: My Professional Will Can Be Found At: All Other Legal Documents Involving My Practice Can Be Found At: (employment contracts, leases, real estate contracts, rental agreements) My Illinois State License Number: My Office(s) Are Located At: Office 1: Office 2: Office 3: The Keys To My Office Can Be Found At: The Keys To My Locked Patient File Cabinets Can Be Found At: My Professional Executor/Adminsitrator: Name: Telephone Number: Address: My Instructions to Professional Executor: Name: Telephone Number: Address: My Records Custodian: Name: Telephone Number: Address: My Instructions To Records Custodian: My Attorney: Name: Telephone Number: Address: My Tax Accountant: Telephone Number: Password: My Financial Records Are Located At: Name: Telephone Number: Address: Continued 5 MENTAL HEALTH RISK MANAGEMENT July 2015 SAMPLE PROFESSIONAL WILL My Business Bank Account Number(s): Account Number: Password: Bank Information: My Office Telephone: Telephone Number: Password: My Business Cell: Telephone Number: Password: My Answering Service: Telephone Number: Password: My Practice Computer: Username: Password: My Email: Username: Password: My IT Person: Name: Telephone Number: Address: Software Billing Program: Name: Telephone Number: Address: My Appointment Book/ Professional Calendar Is Located At: My Billing Service: (Should be told to make final balancing of all accounts.) Name: Telephone Number: Contact: My Short-term/Emergency Covering Practitioner: Name: Telephone Number: Address: My Key Employee/Office Manager/Assistant: Name: Telephone Number: Address: My Landlord: Name: Telephone Number: Address: My Vendors: Name: Telephone Number: Address: Name: Telephone Number: Address: My Old Files Are Located In Storage: Name: Telephone Number: Address: Continued 6 MENTAL HEALTH RISK MANAGEMENT This article is intended for the clients and friends of Wilson Elser. It is designed to keep our clients generally informed about developments in the law relating to this firm’s areas of practice and should not be construed as legal advice concerning any factual situation. Representation of individuals by Wilson Elser is based only on specific facts disclosed within the attorney/client relationship. This article is not to be used in lieu thereof in any way. Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 27 offices in the United States and one in London, and through a network of affiliates in key regions globally. Founded in 1978, it ranks among the top 200 law firms identified by The American Lawyer and is included in the top 50 of The National Law Journal’s survey of the nation’s largest law firms. Wilson Elser serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses. This communication is for general guidance only and does not contain definitive legal advice. © 2015 Wilson Elser. All rights reserved. 549-15. July 2015 SAMPLE PROFESSIONAL WILL My Professional Liability Insurance Carrier: Name: Telephone Number: Policy Number: My Business Insurance Broker/Agent: Name: Telephone Number: Address: My Utilities: Name: Telephone Number: Address: My Magazine Subscriptions: Name: Name: Name: My Corporate Credit Card Information: My NPI Number: My FEIN: My Social Security Number: I Practice At The Following Hospitals, Clinics, Nursing Homes, etc. Name: Telephone Number: Address: Name: Telephone Number: Address: Name: Telephone Number: Address: Persons To Contact With Questions/Information: Name: Telephone Number: Address: Name: Telephone Number: Address: Name: Telephone Number: Address: By: Date: