Law, rules and regulations, not Guidelines, specify the requirements for practice and violating them constitutes professional misconduct. Not adhering to this Guideline may be interpreted as professional misconduct only if the conduct also violates pertinent law, rules and regulations, some citations of which are listed at the end of this Guideline.
Guideline 9: Closing a Practice
Advisory Notice: The following guideline constitutes a general discussion of the issues that may arise when a licensee ceases to practice. The discussion is intended to alert practitioners to questions and concerns that they may want to consider with their legal counsel, and is not to be construed as a directive or other requirement to take any particular action. The Advisory cannot be used as the basis for a charge of professional misconduct. The statements are generally based upon statutory and regulatory provisions relating to the practice of physical therapy, but are not legal interpretations of any of these provisions. The citations to the provisions are included to add clarity to the discussion. Practitioners are advised that if they decide to pursue any course of action based upon this discussion, private counsel should be consulted. There are many factors to be considered in designing a plan to deal with the termination of a practice. Among these factors is the mode of practice, i.e., - sole practitioner, partnership, professional service corporations, professional limited liability company, professional limited liability partnership. The legal structures involved in these practice forms may have a strong influence on the design of any practice termination plan. Moreover, there may be many issues germane to individual practitioners that should be considered. It is important, therefore, that private counsel be consulted in these matters since there may be legal issues beyond those directly inherent in the practice of physical therapy that should be considered.
- A physical therapist’s professional practice may cease due to illness, disability, retirement, death, or as the result of a disciplinary action. This may occur either gradually or abruptly and may have profound ramifications. There are many legal, ethical, clinical and personal issues for the practicing physical therapist to consider. An overriding issue is that physical therapists have an obligation to their patients to have an organized plan to ensure that the termination of services does not create patient harm. An organized, comprehensive plan should ensure that the needs and rights of patients are recognized and protected, which may be a fundamental aspect of competent service.
While physical therapists frequently turn to the ethical codes of professional associations or consider other standards of good practice when planning for the termination of practice, they may not recognize the need to incorporate applicable laws, Rules, or regulations of professional licensing in those plans. In preparing for a temporary or permanent cessation of a professional practice (including planning for a 'what if' scenario), physical therapists should be concerned about patient confidentiality, the maintenance and disposition of patient records, patient abandonment, and limitations on the sale of a practice.
- No personally identifiable information about a patient may be revealed to anyone without the patient's written permission unless required by other laws or regulations. Court orders, subpoenas and investigations by the Office of Professional Discipline are examples of disclosures that may be required even in the absence of the patient's consent.
Physical therapists are obligated to maintain the communications of their patients as confidential. Patient information, written or electronic, must be kept secure from loss, theft, or unauthorized access, use or disclosure. Confidential information should be kept out of plain view, and stored in a secure environment. Care should be taken not to talk about patients in public places, even if you are not using the patient's name.
Physical therapists should be aware of the laws regarding patient confidentiality when authorizing individuals to act on their behalf in maintaining patient records, collecting unpaid funds, and responding to inquiries about the patients.
Accurate and complete patient records serve many purposes. For example, patient records can protect both the consumer and the practitioner, guide professional treatment, and facilitate professional consultations. Patient records are important documents in matters pertaining to professional liability and professional discipline.
Practitioners and their patients should be aware that under some conditions other parties might have reason to have access to patient records. For example, in some cases, patient records may be needed by other professionals to provide requisite patient care. Your records, therefore, should be an accurate and legible account of the evaluation and treatment of the patient.
Patient records must be maintained for at least six years and obstetrical records and records of minor patients must be retained for at least six years and until one year after the minor patient reaches the age of 21 years. This protects the rights of patient, ensuring their access to information for treatment, legal or personal needs, and also protects practitioners in case of charges of professional misconduct or lawsuits against the practitioner's estate.
Under Section 18 of the Public Health Law, patients have the right of access to their records under most circumstances. If you deny access to records to a patient, you have an obligation to inform the patient of his/her right to appeal to the Office of Record Access of the Department of Health. Contact information is available on the New York State Department of Health Web site.
If you dispose of records when there is no longer any obligation or need to maintain them, they should be properly destroyed to safeguard patient confidentiality.
Physical therapists who retire or sell their practices must make provisions for records to be maintained and accessed, if requested. The obligation to maintain records is not changed by the retirement or sale of a practice by a physical therapist.
Your records may be your principal defense to charges of professional misconduct. There is no statute of limitations for charges of professional misconduct.
Physical therapists should also make provisions for the maintenance and destruction, as appropriate, of their patients' records in the event of the physical therapist’s death.
Confidentiality and the Transfer of Records
- Patients possess the right to have all identifying personal information maintained as confidential. This mandate to maintain confidentiality applies to the physical therapist who is responsible for assuring that all persons engaged or employed within the professional business practice maintain information needed by them in their work as confidential. For example, a secretary who does billing could have access to the name, address and other demographic information of a patient, but the physical therapist would be responsible for preventing the revelation of this information by the employee. Personally identifying information and the contents of records should not be given to anyone outside the physical therapy practice without the consent of the patient, except as otherwise required by law.
The executor of an estate acts to carry out the wishes of the deceased physical therapist and may implement or carry out the physical therapist’s directions regarding the patient. This can include creating a location where patient records can be stored, notifying patients of the death of the physical therapist and the location of the records, seeking information from patients regarding the disposition of records, and obtaining the consent of patients to transfer records. Section 18 of the Public Health Law identifies specific reasons why patients may not have access to records and provides a means of appeal for the patients to obtain the records.
Records of patients should not be transferred to other professionals without the consent of the patient, both to transfer the record and to permit the other practitioner to read the record. Patients should have the option of receiving a copy of their record, having their record transferred to another practitioner of their choice, or leaving their record in storage. If the records are stored in the office of another practitioner, the patient should be notified of the location.
Whether records are transferred to another practitioner, sent to the patient, or stored elsewhere, the estate of the physical therapist may wish to maintain an accessible copy since it is possible for the estate to be sued after the death of the physical therapist. The record could become the estate's most important defense.
- The abrupt cessation of services by physical therapists who unexpectedly become ill, disabled, or die normally would not be considered abandonment as it is defined, but appropriate planning for such events early in the professional relationship can ensure that patients receive the essential services they need when such emergencies do occur.
Physical therapists who surrender or lose a license as a result of professional disciplinary action should also provide patients with the means to obtain essential professional services.
Planning for the Unexpected
- Illness, injury or death may occur abruptly. To prevent harm to patients and to assist others in implementing a transition plan, physical therapists may want to consider identifying a person who would have access to names of patients, the means of contacting patients, the needs of each patient in the event of an emergency, and the process to follow in responding to requests for records or information about patients/s. Those person(s) who are expected to implement these actions would need to agree to this arrangement and should know how to access addresses, records, and other files. Such persons would be acting for the physical therapist and should be made aware of the laws, Rules and regulations regarding confidentiality and the use and release of records, as well as a patient's right to access records.
Selling a Professional Practice
- Physical therapists who are planning to terminate a practice may consider selling the practice. The tangible assets of a practice may be sold, but the patient's names and records may not be sold. Physical therapists who wish to transfer patient records to another practitioner's care could do so by following the recommended process for making this kind of transfer, which includes patient consent for both the release of their name to the other practitioner, as well as consent for the other practitioner to view their records.
Citations of Pertinent Law, Rules or Regulations:
Public Health Law, Section 18 - "access to patient records"
Regents Rule, Part 29.2(a)(3) - "failing to maintain a record"
Regents Rule, Part 29.1(b)(8) - "revealing personally identifiable facts, data, or information"