Articles

Planning to Leave Your Group Practice or Terminate a Physician Employee? Then Plan on Issuing the Patient Notices Required by the Texas Medical Board

Kathleen Quiroz and Jerry B. Cohen

M.D. News Magazine (November 2009)

Most physicians know that they are required to notify their patients and the Texas Medical Board if they retire or sell their medical practice. Often, however, our clients are surprised when we inform them of the notices a physician must give to patients and the Medical Board if the physician is terminated or chooses to leave his or her medical practice.

Notices to Patients
When a physician leaves a medical practice, Rule 165.5 of the Medical Board Rules requires the physician to ensure that their patients receive reasonable notification and are given the opportunity to obtain copies of their medical records or arrange for the transfer of their records to another physician. More specifically, the Medical Board Rules require the departing physician to:

• Publish notice in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area;
• Place written notice in the physician’s office; and 
• Send letters to patients seen by the physician in the last two years.

The notice posted in the physician’s office must be placed in a conspicuous location in or on the façade of the physician’s office. Such notices must be posted at least 30 days prior to the physician’s departure and must remain until the date of the physician’s departure.

If the departing physician’s Employment Agreement includes a non-competition covenant, the agreement should include a provision which requires the employer to provide the physician with a list of the patients seen by the physician in the last year. Notwithstanding such a provision, unless the employer has contractually agreed to provide the notices required by Rule 165.5, the employer must give the departing physician a list of the patients seen by the physician in the last two years.

The Medical Board Rules do not specify the exact language that must be included in any of the notices required by the Rules; however, at a minimum, Rule 165.5 requires that such notices (i) inform patients of the date on which the physician intends to leave the practice and (ii) offer patients the opportunity to obtain a copy of their medical records or have their records transferred.

If the departing physician’s Employment Agreement includes a non-solicitation covenant which prevents the physician from soliciting his or her patients, notices given by the physician pursuant to Rule 165.5 must be carefully drafted to comply with the requirements mandated by the Rule165.5 without violating the physician’s non-solicitation covenant. The same applies with respect to any other restrictive covenant included in the Employment Agreement.

The Medical Board Rules do not require the employer of a departing physician to give patients any of the notices required by Rule 165.5. Often, however, physician groups that want control over the content of such notices will include a provision in their Employment Agreements which gives them the right to send the notices. If a physician’s Employment Agreement includes such a provision, the agreement should require the employer to provide the notices required by Rule 165.5 by the deadline established by that Rule. The agreement should also specify which of the parties will bear the financial responsibility for publishing notices in the required newspaper(s) and mailing the patient notification letters. Typically, if the employer has control over the content of such notices, the employer bears the associated expenses.

Notices to Medical Board
When a physician leaves a medical practice, the Medical Board Rules require the physician to notify the Medical Board within 30 days of his or her change of address. This notice should be faxed to the Customer Information Center of the Medical Board at 512.463.9416. Although a physician has up to 30 days to notify the Board of a change of address, we recommend that the departing physician notify the Board as soon as possible.

The Medical Board Rules also require a physician to submit to the Board within 30 days from the date of his or her departure a copy of the notices given by the physician pursuant to Rule 165.5. To satisfy this requirement, a physician should send a letter to the Board enclosing a copy of the notice published in the required newspaper(s), the sign posted in the physician’s office, and the letter mailed to his or her patients. The letter should specify who has custodianship of the medical records and how such records may be obtained. The letter should be faxed to the Investigations Section of the Medical Board at 512.305.7123.

If a physician’s Employment Agreement includes a provision which gives his or her employer the right to send the patient notices required by Rule 165.5, the physician will still need to submit samples of those notices to the Medical Board within 30 days of his or her departure. A departing physician should obtain a copy of such notices from his or her employer before the physician leaves the practice.

Prohibition of Interference
Rule 165.5 of the Medical Board Rules prohibits the physicians remaining in the practice from preventing the departing physician from posting in his or her office the notice required by Rule 165.5. The remaining physicians and the physician group are also prohibited from withholding information from a departing physician that is necessary for the physician to provide the notices required by Rule 165.5 (e.g., the physician’s patient list).

Sanctions
A person who violates Rule 165.5 is subject to criminal penalties under the Medical Practice Act. Violations of Rule 165.5 may also result in the imposition of sanctions by the Medical Board. The failure to provide the required notices may also result in a claim of patient abandonment.

Jerry B. Cohen and Kathleen Quiroz are Shareholders with Oppenheimer, Blend, Harrison and Tate, Inc. - a top ranked Health Care law firm in San Antonio and Kerrville. Collectively, they have served Corporate and Health Care clients for 39 years and have been recognized by their peers in the legal industry as leading attorneys at both the local and national level. You can reach the Health Care Practice of Oppenheimer, Blend, Harrison and Tate, Inc. at 210.224.2000.