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Thanks to changes in the law implemented in 2013, terminating the employment of a physician got a little harder in Ohio. Health care entities from which a physician’s employment is terminated are now required to notify patients or assist in the notification of patients that the physician’s employment has been terminated. Prior to the passage of this new law, health care employers in Ohio had no legal obligation to notify patients of the departure of a physician from the practice. Under the new law, a health care employer must send notice of the termination of a physician’s employment to each patient who received physician services from the physician in the 2-year period immediately preceding the date of termination. In lieu of such notice, the health care employer may provide to the terminated physician a list of such patients and their contact information and require that the physician send the required notice.
Such notice must be provided (a) on or before the later of (i) the date of termination of the physician’s employment, and (ii) 30 days after the health care entity has actual knowledge of termination or resignation of the physician, by (b) (i) a letter, sent via regular mail to the last address for the patient on record, with the date of mailing of the letter documented, or (ii) an electronic message sent via a HIPAA-compliant electronic medical 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 patient’s portal.
The notice must include at least the following information: (1) a notice to the patient that the physician will no longer be practicing medicine as an employee of the health care entity and the date on which the physician ceased or will cease to practice as an employee of the health care entity; (2) except where the health care entity has a good faith concern that the physician’s conduct or the medical care provided by the physician would jeopardize the health and safety of patients, the physician’s name and if known by the health care entity, information provided by the physician that the patient may use to contact the physician; (3) contact information for an alternative physician or physicians employed by the health care entity or contact information for a group practice that can provide care for the patient; and (4) contact information that enables the patient to obtain information on the patient’s medical records.
For a physician who is an independent contractor or who has an ownership interest in the health care entity, the new law requires that such physician provide notice when leaving, selling, or retiring from the health care entity, which notice must be sent via one of the methods referenced above to all patients who received physician services from the physician within the 2-year period immediately preceding the physician’s last date for seeing patients with/for the health care entity. The notice must be sent no later than 30 days prior to the last date the physician will see patients or upon actual knowledge that the physician will be leaving, selling, or retiring from the health care entity, whichever is earlier; provided, however, that a physician who, because of acute illness or unforeseen emergency is unable to provide the notice 30 days prior to the last date of seeing patients, may satisfy the notice timing obligations by providing the notice no later than 30 days after it is determined that the physician will not be returning to the health care entity.
Notice from an independent contractor- or owner-physician must include at least the following information: (1) a statement that the physician will no longer be practicing medicine at the health care entity and the date on which the physician ceased or will cease to provide health care entity; (2) except where the health care entity has a good faith concern that the physician’s conduct or the medical care provided by the physician would jeopardize the health and safety of patients, the physician’s name and if known by the health care entity, information provided by the physician that the patient may use to contact the physician; (3) contact information for an alternative physician or physicians employed by the health care entity or contact information for a group practice that can provide care for the patient; and (4) contact information that enables the patient to obtain information on the patient’s medical records.
There are some exceptions to the above-referenced notice requirements, including physicians who provide emergency care, urgent care, or episodic services, medical students, interns and fellows, hospice medical directors, physicians working for community health agencies, drug or alcohol addiction programs, or federally qualified health centers, or physicians, after termination, continue to provide medical services to patients of the health care entity on an independent contractor basis.
This leads to the question “What do these changes mean for health care employers?” The answer is that health care employers can no longer fail or refuse to cooperate with departing physicians in notifying patients of the termination of such physician’s employment, even if such termination is by reason of the physician’s resignation. Further, the health care employer cannot hide from the patients the location of the departing physician’s practice. An additional concern is the effect of the new notice requirements on a health care employer’s ability to enforce non-solicitation covenants relating to solicitation of patients of the practice. Prior to the passage of the new law and regulations, if a departed physician’s patients decided to move their care to that physician without notice of his or her departure or the location or contact information for his or her new practice, there was a decent likelihood that such decision was prompted by solicitation by the departed physician. Now that the physician or the physician’s employer is required to provide notice of departure and include in that notice contact information for the departed physician, deciphering physician solicitation from unsolicited patient choice requires patient confirmation of the solicitation. Not only could this create HIPAA issues, especially if the patient’s confirmation comes by way of subpoena and testimony, but it could create patient relation concerns as patients will not look favorably upon being involved in an employer-employee dispute. Based on the foregoing, it is increasingly important for health care entities that are terminating or otherwise losing physicians to make sure that they craft and provide notices to such physicians’ patients that both satisfy their legal obligations and look to preserve the relationship with the health care entity post-termination.
Should you have any questions, please contact your healthcare attorney at Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. at 330-497-0700.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.