Health Law Pointers - Volume XII, No. 1

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New Physician Obligations Under

New York’s Family Health Care Decisions Act


As New York law currently stands, absent a health care proxy or living will, a physician can only withdraw or withhold life-sustaining treatment from an incapacitated patient if the patient’s wish to forego such treatment is established by clear and convincing evidence. However, effective June 1, 2010, a family member or close friend of a hospital or nursing home patient who lacks decision-making capacity may act as a “surrogate” and make health care decisions on behalf of the patient, even in the absence of a health care proxy or advance directive.


Under the Family Health Care Decisions Act, the surrogate has the same authority the patient would have to make medical decisions, including the decision to withhold or withdraw life-sustaining treatment, as well as access all medical records and information. As the attending physician, the law still permits you, not the surrogate, to make “routine” medical decisions on behalf of your patient.   


The hierarchy of eligible surrogates, in order of priority, is as follows:


1.      A court-appointed guardian of the person under Article 81 of the Mental Hygiene Law

2.      A spouse, if not legally separated, or domestic partner;

3.      A son or daughter, 18 years of age or older;

4.      A parent;

5.      A brother or sister, 18 years of age or older;

6.      A close friend, 18 years of age or older, who has maintained regular contact and is familiar with the patient’s activities, health and religious or moral beliefs, and who signs an affidavit to that effect.   


Under the new law, if you are the attending physician of a patient who potentially lacks capacity, you must first make reasonable efforts to determine whether the patient has appointed a health care agent via a health care proxy. If the patient has a valid health care proxy, it must be honored. If no health care proxy has been executed, then you are required to make an initial determination as to whether the patient lacks individual decision-making capacity to a reasonable degree of medical certainty. If it is determined that the patient lacks capacity, then you must obtain a concurring determination from either a health or social services practitioner. However, if the patient is in a general hospital and the decision does not involve the withdrawal or withholding of life-sustaining treatment, such concurring opinion is not necessary. If a concurring determination is obtained, you are required to give notice to: the patient; at least one person on the surrogate list, highest in order of priority; and, if the patient was transferred from a mental hygiene facility, the director of the mental hygiene facility and the mental hygiene legal service. If the health or social services practitioner does not concur with the determination, the matter is referred to the hospital ethics committee.


If no available surrogate is identified, the attending physician may make decisions regarding major medical treatment if another physician designated by the hospital or the medical director of the residential health care facility (or physician designated thereby) concurs with the decision. 


For patients with mental retardation or developmental disabilities, any guardian appointed under Article 17-A of the Surrogate’s Court Procedure Act has authority to make health care decisions. If no guardian has been appointed, a qualified family member has authority to make decisions regarding life-sustaining treatment. The new law also requires that any nonhospital DNR be recorded in the patient’s medical record. 


The law, which languished in the legislature for 17 years before being passed, has finally brought New York into step with the rest of the country and the 48 other states that have enacted similar laws. While a helpful “default” for those who do not have advance directives, patients should be reminded that executing a health care proxy and living will is the best way to ensure their wishes are carried out. If you have questions about the Family Health Care Decisions Act, please call Jennifer A. Kelleher, an attorney with the firm’s Estate Planning & Administration Practice Group at 716-849-8900.   

Compliance with No-Fault Regulations:
Taking a Proactive Approach When Accepting a No-Fault Patient


           Many practitioners are faced with ascertaining what to do when presented with a new patient or an established patient who discloses that she has been involved in a motor vehicle accident. Generally, there is insurance coverage under the personal injury protection endorsement of the automobile liability insurance policy for medical expenses, lost wages, and other necessary expenses, as defined by the Insurance Law and implementing regulations. However, practitioners should understand that there are a host of issues that arise once that No-Fault patient is accepted for treatment even before you try to be compensated for your services.


This article is one of a series with the purpose of identifying issues that practitioners should be thinking of to develop a proactive strategy when it comes to treatment of a No-Fault patient.


The predominant issue when treating a No-Fault patient is how the bill for the service rendered is going to be paid. In many instances, the practitioner’s immediate response is to accept an Assignment of Benefits (“AOB”) from the patient, submit the bill the No-Fault insurer, and wait for payment.


While a practitioner has the right to accept an AOB from her patient, many providers do not know that they are not required to accept the AOB. There is nothing in the Insurance Law or the implementing No-Fault regulations requiring a practitioner to accept an AOB from the patient. This point is emphasized because many practitioners may not appreciate what they are undertaking by routinely accepting an AOB. As with any contract, it is important to understand your duties and responsibilities under the contract. When was the last time you carefully read an AOB? Other than it being a mechanism for receiving reimbursement directly from the insurer are you aware of what other rights, and potential liabilities, you have taken on?


When accepting an AOB from a No-Fault patient you are stepping in the shoes of that patient and accepting all of that patient’s rights and remedies for the No-Fault claim. Thus, if your patient receives a denial from the No-Fault insurer for lack of medical necessity or lack of causal relationship it is your responsibility to challenge the sufficiency of that denial. Are you fully prepared to challenge that denial?


In addition, contrary to the course of conduct that we have seen over the years, the practitioner, upon receipt of a denial, cannot assert a lien against the patient or make the patient and/or attorney sign an agreement to pay the outstanding bill from any personal injury proceeds. A practitioner is PROHIBITED from trying to recover the bill from the patient when it has accepted an AOB. A careful review of the AOB form that is routinely distributed to the patient provides in part:




Accordingly, a practitioner cannot accept an AOB from the patient and also demand that the patient sign another form in which she agrees that if she receives money from her personal injury action and the provider’s bill is denied by No-Fault she will pay the bill from her personal injury proceeds. Likewise, the practitioner cannot assert a valid lien against the patient when the bill is denied so as to ensure recovery when the patient’s personal injury suit is either settled or tried.


Now, you may be thinking that there is still a “work around” – releasing the AOB back to the patient and letting her personal injury attorney handle challenging your denied medical bill(s). While commonly done it may not be the best strategy. Initially, you are completely dependent upon your patient’s choice in counsel once you have released the AOB and chose not to take control of the legal action challenging the denial. In many instances the patient is using his or her personal injury attorney to handle the No-Fault arbitration or lawsuit. The statutes, regulations, and legal burdens pertaining to a No-Fault claim are vastly different from those governing a personal injury claim. In essence, you have no idea if your patient’s attorney is experienced in No-Fault or is merely dabbling in No-Fault because his client is complaining that her medical bills are not being paid. Ultimately, this may not be a viable work around for you.


Overall, a practitioner should consider upfront on a case by case basis whether she wishes to accept an AOB from a No-Fault patient. In understanding the potential issues associated with accepting the AOB you can make a proactive business decision on how you are going to manage this aspect of your practice.


The question then becomes: “If I do not accept an AOB, then how do I submit my bill for services rendered to be reviewed and paid?” Stay tuned for Part II of this series wherein we continue to discuss the practitioner’s rights when it comes to submitting a bill for services rendered for payment.


Physician Assistants


            Physicians in private practice should be aware of New York State imposed limitations on the employment of physician assistants (PAs). State law considers PAs to be “dependent” practitioners, required to work under the supervision of a licensed physician. As such, PAs are not authorized to engage in “independent practice.”


            Two of the more important rules are noted below:


(1)  A supervising physician may delegate to the PA only those medical procedures or tasks (i) for which the PA is appropriately trained and qualified to perform, and (ii) that are routinely performed within the normal scope of the physician’s practice.

(2)  No physician may employ or supervise more than two PAs in his or her private practice.


            What is meant by this latter rule? May a physician employ or supervise more than two PAs if each one is employed on a part-time basis?


            No. The rule (based on statute) is considered fixed and unalterable, and not dependent on the full-time status of the employed PA, or the number of hours each PA works.


Sales of Professional Practices


            As our population of seasoned professionals approaches their retirement years, the lure of a quick sale of their professional practice may be overwhelming. Before deciding on a sale of a professional practice, however, the professional should consider the following:


1.   Give yourself sufficient time to find a qualified buyer and consummate a sale on favorable terms.


            Too often, a decision to retire is made hastily, before a proper framework for the sale is established. Give yourself time to find a buyer and develop a proper transition plan. Don’t wait until your health or other unfavorable factors dictate action.


2.   Engage in an in depth analysis of your practice with a view towards (i) establishing its marketability and value, and (ii) determining its features and benefits.

3.   Don’t overlook the importance with maintaining confidentiality during the process, especially at the beginning.


            All information furnished should be treated as secret and confidential by those involved. No portion of it should be disclosed to others who do not have a “need to know.” Nothing can hurt the value of a practice more, or limit your options for sale, than premature word “on the street” of your forthcoming retirement from the active practice of medicine.


4.   Retain competent professional advisors to assist you in the process.


Patient Notifications – A Primer


            The proper discharge or discontinuation of patient care is a recurring problem for many professionals when a patient fails to follow what the professional believes to be a reasonable therapeutic program. Less well known are patient notifications recommended when a professional withdrawals from practice or relocates his or her practice out-of-state. In such cases, the practice leadership is well advised to send written notice of withdrawal (or relocation from the area) to its patients, both by first class mail and certified mail, return receipt requested.


            At a minimum, the patient notification should offer the following information:


(1)  The fact that the professional will cease care as of a specific date;

(2)  The reason for withdrawal;

(3)  His/her availability for emergency or urgent care for a reasonable period of time;

(4)  The availability of other professionals in the practice to assume patient care;

(5)  The telephone number of the local professional society for names and telephone numbers of other competent practitioners in the area; and

(6)  A willingness, if necessary, to forward copies of the patient records to the new professional upon receipt of a signed HIPAA compliant authorization to release patient records.


            Consideration should also be given to mailing variations of the patient notifications to different “classes” of patients, such as:


·        Active and existing patients with previously scheduled appointments;

·        Active and existing patients without established appointments; and

·        New patients.


Please do not hesitate to contact us if you have questions about written patient notifications, charges of abandonment or other questions on separation from employment.


Key Considerations in the Hiring of a New Employee


            Professional practices often encounter unanticipated hurdles in the recruitment of a younger professional. Based on our experience in working with medical and dental residents, we have compiled a list of the “top 10” concerns identified by these younger professionals.


General Concerns (An Honest Assessment of Needs)

1.   Family considerations

2.   Financial goals (the compensation package)

3.   Professional goals (advancement)

4.   Intangibles (atmosphere, work habits, and chemistry)

5.   Geographic location


Specific (Contract) Concerns

1.   Clinical responsibilities (practice setting, hours of service, practice pace)

2.   Coverage arrangements (“on call” related issues)

3.   The range of fringe benefits

4.   Termination provisions

5.   Restrictive covenants


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