Guidance: after the death of a Doctor
Guidance: Legal and Business Requirements After the Death of a Doctor
Planning Ahead
There are proactive measures physicians and chiropractors (collectively, “practitioners”) can take to ease the stress of loved ones closing or transferring their medical practice after their death. Measures include:
Select another practitioner who can be on-call to step in for patients that need immediate attention soon after the passing of the practitioner.
Create and maintain copies of insurance policies, contracts, licenses, passwords, etc. and keep with a trusted person. This information will be vital in the immediate days and weeks following the death of the practitioner.
Make sure the commercial lease for the medical practice has a clause that allows for termination upon death of the practitioner or owner.
Complete estate planning that encompasses all business assets.
For multi-owner practices, have solid buy-sell agreements in place so that the tough decisions as to who will take over the business are already decided.
Consult with a life insurance agent about including business expense coverage in life insurance policies.
After Death
There are many important tasks that must be completed after the passing of a practitioner to ensure that the practice is closed correctly, and that patients’ rights are maintained pursuant to relevant law.
Notify Patients
If the practitioner’s death was untimely, notify patients who were scheduled to be seen immediately after the death and arrange for alternative forms of care. Regardless of the matter of death, send written notification to all patients notifying them that the practice will be closing or that the deceased doctor will no longer be part of the practice.
Properly Maintain Medical Records
Physicians Licensed by the Texas Medical Board (TMB)
§ Under TMB rules, medical records must be maintained for a minimum of seven years from the date of the least treatment of the patient (or, if the patient is a minor, until the patient reaches the age of 21 or seven years from the date of the last treatment, whichever longer). Texas Administrative Code Rule §165.1. If medical records are “abandoned” for more than two weeks by the physician’s estate, the Texas Medical Board may appoint a temporary or permanent custodian for the records. Texas Administrative Code Rule §165.4. Thus, it is important that the medical records be transferred to someone who will be able to properly maintain them immediately.
§ Although not specifically addressing death of a doctor, Rule 165.5 of the Texas Administrative Code addresses what must occur with patient medical records “when a physician retires, terminates employment, or otherwise leaves a medical practice.” Rule 165.5 requires that patients receive notification as to where they can obtain their medical records and/or how they may arrange for the records to be transferred to another provider. Rule 165.5 also lists appropriate ways in which to give patients notice. Additionally, copies of the posted notices must also be provided to the Texas Medical Board within 30 days of the termination or sale of a medical practice.
Chiropractors Licensed by the Texas Board of Chiropractic Examiners (TBCE)
§ Pursuant to TBCE Rules, chiropractors must maintain patients records for six years after the date of the least treatment with the patient (or, if the patient is a minor, until the patient reaches the age of 21 or six years from the date of the last treatment, whichever longer). Texas Administrative Code Rule §76.2.
§ The TBCE does not specifically state what must happen with patient medical records upon the death of a chiropractor. However, Rule 76.2 states, “All licensed chiropractors shall observe and comply with all documentation laws pertaining to health care providers under state and federal law.” Thus, it is advisable to follow the same requirements regarding medical records as prescribed by the TMB (above).
Notify Third Party Payors
Some third-party payors such as Medicare, Medicaid, or Tricare require that claims for payment be made within certain strict timeframes. As such, it is important to submit all outstanding claims on behalf of the practitioner as quickly as possible to ensure all appropriate payments to the medical practice are made.
Notify Licensing Boards
Notify the TMB or TBCE of the passing of the doctor or practitioner passing. Steps will be taken to inactive their license.
Notify the DEA if Applicable
If the practitioner is a DEA Registrant and/or is in possession of controlled substances, notify the DEA of the practitioner’s passing. The registration will be inactivated, and the DEA will provide guidance as to how dispose of any controlled substances that were in the practitioner’s possession pursuant to 21 C.F.R. § 1317.05.
Check Malpractice Insurance
Medical malpractice claims remain viable until the applicable Statue of Limitations has passed. Make sure that the practitioner’s medical malpractice coverage is in place and effective until any potential SOL expires, not just through the date of death of the doctor.
Winding Up
If the doctor was a sole practitioner and/or the practice is not being transferred or sold, it will be necessary to close the practice and wind up the business entity. Texas Business Organizations Code Section11.052 requires that the entity, “(1) cease to carry on its business, except to the extent necessary to wind up its business; (2) if the domestic entity is not a general partnership, send a written notice of the winding up to each known claimant against the domestic entity; (3) collect and sell its property to the extent the property is not to be distributed in kind to the domestic entity's owners or members; and (4) perform any other act required to wind up its business and affairs."
A Certificate of Termination will need to be filed with the Secretary of State, which will require a certificate from the Texas Comptroller evidencing that all taxes have been paid by the entity.
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