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Articles and Publications
"Guidance for Physicians Who Plan to Temporarily Retire Pending Enactment of 2008 Mcare Abatement"
Posted: 3/28/08
This article provides general legal information and is not intended as legal advice. The laws and regulations discussed in the article may be subject to varying interpretations. Physicians should consult their personal attorneys if they are in need of legal guidance on a specific situation. Nothing in this article should be construed as defining a standard of care.Continuation of the Mcare abatement was not enacted before the General Assembly adjourned for the remainder of 2007. Some physicians do not want to risk being liable for the full 2008 assessment and are planning on retiring from practice unless and until the abatement is extended to the 2008 Mcare assessment.
Physicians who plan to retire on a temporary basis should consider following the following steps:
1. Provide notice to patients before retirement or arrange for adequate coverage
Physicians risk disciplinary action and medical professional liability if they abandon their patients. State Board of Medicine regulations define abandonment as occurring “when a physician withdraws his services after a physician-patient relationship has been established, by failing to give notice to the patient of the physician’s intention to withdraw in sufficient time to allow the patient to obtain necessary medical care.”There is no law or regulation that defines adequate notice. What is adequate will vary depending upon the facts and circumstances. Generally speaking, 30 days is the norm. However, shorter notice may suffice if the patient can easily transition to a new provider. Longer notice might be required in circumstances where it will be difficult for the patient to locate and secure timely care with an alternative physician.
For physicians with a Jan. 1 renewal date on their primary policies, it may not be possible to provide adequate notice to many patients. The safest course is to continue to provide care to patients until adequate notice has been provided. While this may require the physician to front the full assessment, the Mcare Fund historically has provided pro-rated refunds when physicians retire prior to the expiration of the term.
The State Society’s website includes legal briefs with more detailed information on how to properly terminate a physician-patient relationship.
2. Keep your active license; do not change to active-retired status
A physician’s obligation to pay an assessment is triggered by the physician practicing in Pennsylvania, not by the physician having an active license. Physicians who retire often request to be placed on active-retired status. However, a request for a reclassification to active-retire status generally is inadvisable for physicians who anticipate that their retirement may be temporary.
Physicians on active-retired status may not return to full practice until the board reclassifies them to full active status. Normally, the licensing boards are able to return a physician to full active status fairly quickly. However, this process may take several weeks or more if the board has a heavy workload, e.g., a large number of physicians seeking to be removed from active retire status.
3. During retirement period, limit medical practice to providing care for yourself and your immediate familyA retired physician’s obligation to pay an assessment will be triggered by the provision of any health care service in Pennsylvania unless the physician qualifies for an exemption. A common exemption utilized by retired physicians is that those with an active license may provide care for themselves and their immediate family, i.e., parent, spouse, child, or adult sibling residing in the same household.
4. Keep primary coverage in place if feasible
Physicians who discontinue practice also are not required to maintain primary coverage. However, it may be difficult to obtain new coverage when they resume practice. To keep primary coverage in place, physicians will need to pay the premium and comply with their carriers’ eligibility requirements.
5. Notify Insurance Department and repay your 2007 abatement unless exempt from repayment obligation
If a physician’s 2007 assessment was abated and the physician discontinues practice in Pennsylvania during the applicable retention period (Jan. 1, 2008, through Dec. 31, 2008), the physician must notify the Insurance Department within 60 days of discontinuing practice and repay the full amount of the abatement, unless one of the following occurs:
The abatement was for a period of time that the physician was enrolled in an approved residency or fellowship program
The physician dies prior to the end of the retention period
The physician becomes disabled and unable to practice prior to the end of the retention period
The physician is called to active military duty prior to the end of the retention period
The physician retires and is at least 70 years of age prior to the end of the retention period.
6. Review medical staff obligations to ascertain whether leave of absence is required
Medical staff members often have emergency coverage requirements that they will not be able to fulfill if they discontinue practicing. Some institutions may take the position that physicians who discontinue practice must obtain a leave of absence. Physicians who retire on a temporary basis should consult their medical staff bylaws and rules and regulations and discuss this issue with the medical staff leadership.
7. Address contract issues
Participating providers in managed care plans typically have availability and related requirements that they may not be able to fulfill if they discontinue practicing. Some health insurers may take the position that physicians at least need to arrange for coverage to continue participation in their networks.
In addition, many physicians have other types of contracts that require them to be available to provide medical care. Any availability requirements in these contracts will need to be addressed to avoid liability for breach of contract. For example:
An anesthesiology group may have an exclusive contract to provide anesthesia services at a hospital
A cardiology group may have a contract to read EKGs at a hospital
An internal medicine group may have a contract to provide services at a nursing home
A family physician may have a contract to serve as the collaborating physician for a nurse practitioner group
8. Address employee issues
Furloughed or terminated employees generally will be entitled to unemployment compensation. They also may be entitled to other benefits, such as payment of unused sick or vacation time, and a severance package. Finally, many furloughed or terminated employees may be unable or unwilling to weather even a short period without full compensation and will look for new work. It may be difficult to replace these employees.
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