your healthy practice newsletter may-june 2012 edition

4
The age of technology has brought about many good things. The ability to search, find, save and retrieve information in a flash has made us more efficient in many ways. But, it has also opened us up to risks we may not have anticipated. For years, businesses, including medical practices, have dealt with the necessity of record retention. There are rules and regulations in many fields about how long certain types of information should be kept. It has always been good practice to establish and adhere to an official record retention policy, but that is more critical today than ever because of a concept called e-discovery. E-discovery refers to the search and retrieval of electronic information for use in civil or criminal proceedings. Think about it. Every email, Word document, spreadsheet, text message, Tweet, calendar entry – the list goes on – could be subjected to e-discovery if you or your practice were ever party to a dispute. You don’t necessarily even have to be the main parties named in the dispute. Your records could be subpoenaed if you have any relevant connection to a third party’s dispute. This concept presents several serious issues that bear consideration: Quantity of data available. Because electronic records are so easy and inexpensive to keep, many businesses never purge their electronic libraries of files. This means that years and years of data could be accessible if requested for a legal purpose. If it is accessible, you’ll most likely be required to make it available. For instance, a litigant might subpoena all electronic documents dealing with a certain patient or transaction file that covered several years. The task of locating and retrieving that data would be cumbersome and expensive. Type of data available. Technology changes over time, and our ability to retrieve information from old programs is some- times difficult. However, if we have kept the data, on a backup tape for instance, we may have to make it available to the party requesting it. That means finding a way to retrieve it and make it readable for the other party. This could be time-consuming and expensive. Informality of data available. Many of the electronic files that may be requested are informal files like emails, text messages, IM’s and so on. Often, the language used in those communications is less precise and sometimes lax. Because the “conversations” are documented as electronic files, they are discoverable, and can be damaging in many cases. Permanence of data available. Electronic files are difficult to destroy. Even deleting a file doesn’t completely destroy it and make it See E-discovery on page 4 Inside Inside May/June 2012 Bankruptcy: What to know when all else fails What if your practice is one among many creditors? E-discovery may complicate your record retention A financial and management bulletin to physicians and medical practices from: 100 Second Avenue South, Suite 600, St. Petersburg, Florida 33701 | (727) 821-6161 | www.gsscpa.com

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In this newsletter: • E-discovery may complicate your record retention • Bankruptcy: What to know when all else fails • What if your practice is one among many creditors? • What do patients want, and is it good for them?

TRANSCRIPT

Page 1: Your Healthy Practice Newsletter May-June 2012 Edition

The age of technology has brought about many good things. The ability to search, find, save and retrieve information in a flash has made us more efficient in many ways.

But, it has also opened us up to risks we may not have anticipated.For years, businesses,

including medical practices, have dealt with the necessity of record retention. There are rules and regulations in many fields about how long certain types of information should be kept.

It has always been good practice to establish and adhere to an official record

retention policy, but that is more critical today than ever because of a concept called e-discovery.

E-discovery refers to the search and retrieval of electronic information for use in civil or criminal proceedings. Think about it. Every email, Word document, spreadsheet, text message, Tweet, calendar entry – the list goes on – could be subjected to e-discovery if you or your practice were ever party to a dispute.

You don’t necessarily even have to be the main parties named in the dispute. Your records could be subpoenaed if you have any relevant connection to a third party’s dispute.

This concept presents several serious issues that bear consideration:

➨Quantity of data available. Because electronic records are so easy and inexpensive to keep, many businesses never purge

their electronic libraries of files. This means that years and years of data could be accessible if requested for a legal purpose. If it is accessible, you’ll most likely be required to make it available. For instance, a litigant might subpoena all electronic documents dealing with a certain patient or transaction file that covered several years. The task of locating and retrieving that data would be cumbersome and expensive.

➨Type of data available. Technology changes over time, and our ability to retrieve information from old programs is some-times difficult. However, if we have kept the data, on a backup tape for instance, we may have to make it available to the party requesting it. That means finding a way to retrieve it and make it readable for the other party. This could be time-consuming and expensive.

➨Informality of data available. Many of the electronic files that may be requested are informal files like emails, text messages, IM’s and so on. Often, the language used in those communications is less precise and sometimes lax. Because the “conversations” are documented as electronic files, they are discoverable, and can be damaging in many cases.

➨Permanence of data available. Electronic f i les are dif f icult to destroy. Even deleting a file doesn’t completely destroy it and make it

See E-discovery on page 4

I n s i d e

I n s i d e

May/June 2012➜Bankruptcy: What to

know when all else fails

➜What if your practice is one among many creditors?

E-discovery may complicate your record retention

inaccessible in e-discovery. A computer forensics expert can access deleted files from hard drives with relative ease. If the data was also stored on a server, it can be accessed from there. Messages that were sent to others, like emails, are available from their computers.

The metadata also can be problematic. (Metadata consists of the tags, dates, change notations, etc., that a computer records about the files it stores.) Even without opening a specific file, much can be learned about it.

Another complicating factor in this e-discovery puzzle is that this data becomes relevant as soon as a dispute arises. The knee-jerk reaction of many people, when alerted to a problem, is to start deleting electronic files, thinking them to be private and untraceable. This is unwise because you have a duty to preserve such data if you are aware of the dispute.

In fact, particular steps should be taken to be sure the data is preserved, like changing automatic record-deletion settings on computers or scheduled destruction of backup tapes that contain relevant data.

Even turning on a computer that has relevant information can change the metadata related to the dispute. In some

cases, that could be considered tampering with evidence. Of course, if any legal issue arises, you should contact your attorney at once for specific counsel on the matter at hand.

Failure to preserve data can be a very serious matter. In some cases, a judge may instruct the jury to assume you destroyed data on purpose because it would have been damning in nature. This is referred to as “spoliation” and can do serious damage to an individual’s case.

In other instances, failure to preserve data could result in dismissal of a case to the detriment of the party that compromised the data. In short, it is unwise to do any-thing that would delete evidence, once an issue has been made known.

And that brings us back to the initial advice of this article. Businesses and medical practices should have a well-documented and well-implemented record retention policy that includes all of the electronic data produced. This is a complex issue that should be well thought out and rigorously enforced.

Failure to address this issue could cost your practice time, money, reputation and more. – Denise Altman, CPA, M.B.A.

E-discovery continued from page 1

A financial and management bulletin to physicians and medical practices from:

The technical information in this newsletter is necessarily brief. No final conclusion on these topics should be drawn without further review and consultation. Please be advised that, based on current IRS rules and standards, the information contained herein is not intended to be used, nor can it be used, for the avoidance of any tax penalty assessed by the IRS. © 2012 CPAmerica International

Your Healthy Practice

100 Second Avenue South, Suite 600, St. Petersburg, Florida 33701 | (727) 821-6161 | www.gsscpa.com

100 Second Avenue South, Suite 600, St. Petersburg, Florida 33701www.gsscpa.com | [email protected]

(727) 821-6161

If we may answer any of your questions on the information contained in this publication, please contact us.

Page 2: Your Healthy Practice Newsletter May-June 2012 Edition

With bankruptcies being filed in large numbers, one or more of your patients may be among them. It’s important to understand the debtor’s legal rights and the steps you should take in these cases.

If the debtor has named you as a creditor in court docu-ments, you will receive a notice of commencement of case, a notice of the creditors’ meeting and the closing document.

An automatic stay is issued as soon as a debtor files for any chapter of the bankruptcy law. All billing and collection activity – formal and informal – for any outstanding debts incurred prior to that date must stop.

No employee or collection agency contracted by you can seek payment. Any attempt to collect money owed – even if unintentional as an automated billing statement – can put you at risk for thousands of dollars in court penalties.

Medical bills are classified as unsecured debt. Depending

on the amount owed and the possibility of a distribution, it may not be worth the time to try to recover monies owed. You will get a distribution only if, for example, there are assets to liquidate under Chapter 7.

To pursue recovery, you must file a proof of claim with the bankruptcy court within 90 days after the first date set for the creditors’ meeting. You must attach all information required. The federal rules for filing a proof of claim were

amended on Dec. 1, 2011, increasing the amount of information to be documented and imposing sanctions for failure to comply.

Claims are prioritized by class (e.g., government, secured, unsecured). Each class must be paid in full before the next lower class can be paid.

Unfortunately, most experts say medical bills are usually discharged completely in Chapter 7 bankruptcies and may be repaid only partially in a Chapter 13 filing. Once the court has discharged the debt, any effort to collect it can subject you to punishment for contempt.

How you report income determines whether you can write off the uncollected debt. Those on a cash basis pay tax only on income received. Therefore, no tax write-off is available.

Those on an accrual basis pay income tax on revenues earned and not collected. Therefore, an uncollected debt can be written off. – Irene E. Lombardo

Among the nearly 1.38 million bankruptcies filed in the United States in 2011 were a number of physicians and group medical practices.

It is a trend spurred by the rising cost of technology, decreasing reimbursements and uncertainty about the effects of healthcare reform.

Chapter 7Individuals, sole proprietors, partnerships and corporations

(including limited liability companies) planning to cease operation can file under Chapter 7, a process known as “liqui-dation.” However, this decision is less appealing to partnerships and corporations because they cannot discharge their debts under Chapter 7.

Unless it plans to reorganize, a corporation can simply dissolve and distribute its assets to creditors. And because corporations exist separate from their owners, or shareholders, creditors cannot seek nonbusiness assets.

Partnerships and corporations may benefit from a Chapter 7 filing in a scenario in which the business or practice owes certain taxes, such as federal withholding. The IRS can come after the owners as “responsible persons.” A Chapter 7 filing ensures that taxes are paid first.

Individuals filing under Chapter 7 must meet a “means test” to qualify. Their current monthly income cannot exceed the state median. Failing that, the case is dismissed or converted to Chapter 13.

In liquidation proceedings, a court-appointed trustee takes over a debtor’s assets, reduces them to cash and uses the proceeds to pay creditors. Certain assets are exempt under either federal law or the debtor’s home state law. If the debtor doesn’t have any nonexempt property to liquidate, the court may discharge the debts, releasing the debtor from personal liability.

Chapter 11A corporation, sole proprietorship or partnership seeking

to remain in practice may consider Chapter 11, known as “reorganization.” The practice maintains possession and control

of its assets while seeking to reduce debts or extend the time for repayment. Chapter 11 is not available to individuals.

As a debtor in possession, the filing entity works with advisors to develop a plan to pay all or part of the debt owed over a period of time and to restructure the practice for profit-ability. A reorganization plan must be presented to the court for approval within 120 days from the initial filing.

The personal assets of a corporation’s stockholders are not at risk in a Chapter 11 filing. The same is not true for a sole proprietorship or partnership. However, an individual can file for personal bankruptcy to protect personal assets.

When a debtor files for reorganization, a creditors’ committee is formed to negotiate the terms of the plan and ensure the best interests of all unsecured creditors. No committee is formed if a practice qualifies as a small business debtor owing less than $2,343,300. In this case, the practice is subject to additional U.S. trustee oversight and has 180 days to file a plan.

Chapter 13Only individuals, including sole proprietors, are eligible for

Chapter 13 – provided they do not exceed certain periodically adjusted debt limits. Currently, unsecured debts must be less than $360,475 and secured debts less than $1,081,400.

Dubbed the “wage earner’s plan,” Chapter 13 enables those with regular income to develop a plan to pay all or part of their debts over three to five years.

Another difference between Chapters 7 and 13 is that the debtor maintains possession of assets and pays the trustee, who distributes the money to creditors. In addition, more types of debts can be discharged under Chapter 13.

The debtor has only 14 days to submit a repayment plan to the court and must begin making payments to the trustee within 30 days of the original filing. In most instances, the debtor must pay in full priority claims, such as taxes.

An attorney can advise a debtor about the proper treat-ment of secured claims in the plan. The debtor may pay back unsecured debt in full or in part if projected disposable income is not enough to cover payment over five years.

DischargeWhile most debts will be discharged once a bankruptcy case

is closed, certain debts cannot be discharged. These include alimony and child support, among others.

Filing Chapter 7 or 13 as an individual will affect a physician’s FICO score. Bankruptcy will remain on the individual’s credit report for at least seven years.

Physicians should seek counsel on nonbankruptcy options to reduce debt, tax consequences of filing and actions to avoid should they choose to proceed with their filing.

When healthcare providers declare bankruptcy, they also must address issues related to patient privacy and health records. It’s important for them to consult with an attorney knowledgeable in healthcare law. – Irene E. Lombardo

Once the court has discharged the debt, any effort to collect it can subject you to punishment for contempt.

What if your practiceis one among many creditors?

Bankruptcy: What to know when all else fails

Two recently released reports have interesting things to say about what contributes to patient satisfaction.

But the question remains: Should doctors give patients what they want?

If what they want is improved communication with their physicians, the answer is yes.

Overall doctor ratings have increased 0.5 percent, and low ratings have decreased more than 2 percent since 2010, based on DrScore’s 2011 Annual Report Card on Patient Satisfaction. And a lot of face-to-face time with the doctor is the strongest contributor to 2011’s higher patient satisfaction.

The expected length of a patient visit is at least 10 minutes, according to the study of 36,000 patients. If the visit is longer than 10 minutes, the doctor scores a 9.2 mean rating out of a possible 10. For five-to-10-minute visits, the mean rating is 6.7, and for five minutes or less, the rating is 2.7.

Another study, The Cost of Satisfaction: A National Study of Patient Satisfaction, Health Care Utilization, Expenditures, and Mortality, published in February 2012 by Archives of Internal Medicine, found that satisfactory doctor-patient communication depends on whether the doctor:

➧ Listenedcarefully➧ Providedeasy-to-understandexplanations➧ Treatedwhatthepatientsaidwithrespect➧ SpenttimewiththepatientThe nationwide survey of 51,946 adults used in the study

also asked patients to rate their health care from all healthcare providers, including physicians, on a scale of 0 to 10 from the worst to the best health care.

In general, the patients who expressed higher satisfaction:➧ Usedtheemergencyroomlessoften;➧ Usedinpatientservicesmoreoften;➧ Hadhigherhealthcareandprescriptiondrugexpenditures;➧ And, surprisingly, had increased mortality risk (26 percent greater than

theleastsatisfiedpatients)asagroup.The study saw a correlation between “the extent to which

physicians fulfill patient expectations” and the level of patient satisfaction. In addition, patient satisfaction appears to be “strongly linked to prescription drug expenditures.”

It’s also important to note that, in regions of greater intensity of care, patients took advantage of more discretionary health services, “with attendant risk of adverse effects, than similarly ill patients in lower-intensity regions.”

Both of these findings may help to explain the increased mortality risk among the study’s most satisfied patients – even though they tended to rate their health as excellent.

Conclusions drawn from the study are that:➧ Itisn’talwaysclearwhypatientsaresatisfiedwiththeirmedicalcare.➧ Ratherthanseekpatientsatisfactionthroughrequestfulfillment,physicians

shouldprovidepatient-centeredcommunicationandevidence-basedcare.➧ Preferences of patients should be based on straightforward information

fromtheirphysicians–evenwhenpatientsdon’tlikewhattheyhear.❚

What do patients want – and is it good for them?

May/June 2012 Your Healthy Practice2 May/June 2012 Your Healthy Practice 3

Page 3: Your Healthy Practice Newsletter May-June 2012 Edition

With bankruptcies being filed in large numbers, one or more of your patients may be among them. It’s important to understand the debtor’s legal rights and the steps you should take in these cases.

If the debtor has named you as a creditor in court docu-ments, you will receive a notice of commencement of case, a notice of the creditors’ meeting and the closing document.

An automatic stay is issued as soon as a debtor files for any chapter of the bankruptcy law. All billing and collection activity – formal and informal – for any outstanding debts incurred prior to that date must stop.

No employee or collection agency contracted by you can seek payment. Any attempt to collect money owed – even if unintentional as an automated billing statement – can put you at risk for thousands of dollars in court penalties.

Medical bills are classified as unsecured debt. Depending

on the amount owed and the possibility of a distribution, it may not be worth the time to try to recover monies owed. You will get a distribution only if, for example, there are assets to liquidate under Chapter 7.

To pursue recovery, you must file a proof of claim with the bankruptcy court within 90 days after the first date set for the creditors’ meeting. You must attach all information required. The federal rules for filing a proof of claim were

amended on Dec. 1, 2011, increasing the amount of information to be documented and imposing sanctions for failure to comply.

Claims are prioritized by class (e.g., government, secured, unsecured). Each class must be paid in full before the next lower class can be paid.

Unfortunately, most experts say medical bills are usually discharged completely in Chapter 7 bankruptcies and may be repaid only partially in a Chapter 13 filing. Once the court has discharged the debt, any effort to collect it can subject you to punishment for contempt.

How you report income determines whether you can write off the uncollected debt. Those on a cash basis pay tax only on income received. Therefore, no tax write-off is available.

Those on an accrual basis pay income tax on revenues earned and not collected. Therefore, an uncollected debt can be written off. – Irene E. Lombardo

Among the nearly 1.38 million bankruptcies filed in the United States in 2011 were a number of physicians and group medical practices.

It is a trend spurred by the rising cost of technology, decreasing reimbursements and uncertainty about the effects of healthcare reform.

Chapter 7Individuals, sole proprietors, partnerships and corporations

(including limited liability companies) planning to cease operation can file under Chapter 7, a process known as “liqui-dation.” However, this decision is less appealing to partnerships and corporations because they cannot discharge their debts under Chapter 7.

Unless it plans to reorganize, a corporation can simply dissolve and distribute its assets to creditors. And because corporations exist separate from their owners, or shareholders, creditors cannot seek nonbusiness assets.

Partnerships and corporations may benefit from a Chapter 7 filing in a scenario in which the business or practice owes certain taxes, such as federal withholding. The IRS can come after the owners as “responsible persons.” A Chapter 7 filing ensures that taxes are paid first.

Individuals filing under Chapter 7 must meet a “means test” to qualify. Their current monthly income cannot exceed the state median. Failing that, the case is dismissed or converted to Chapter 13.

In liquidation proceedings, a court-appointed trustee takes over a debtor’s assets, reduces them to cash and uses the proceeds to pay creditors. Certain assets are exempt under either federal law or the debtor’s home state law. If the debtor doesn’t have any nonexempt property to liquidate, the court may discharge the debts, releasing the debtor from personal liability.

Chapter 11A corporation, sole proprietorship or partnership seeking

to remain in practice may consider Chapter 11, known as “reorganization.” The practice maintains possession and control

of its assets while seeking to reduce debts or extend the time for repayment. Chapter 11 is not available to individuals.

As a debtor in possession, the filing entity works with advisors to develop a plan to pay all or part of the debt owed over a period of time and to restructure the practice for profit-ability. A reorganization plan must be presented to the court for approval within 120 days from the initial filing.

The personal assets of a corporation’s stockholders are not at risk in a Chapter 11 filing. The same is not true for a sole proprietorship or partnership. However, an individual can file for personal bankruptcy to protect personal assets.

When a debtor files for reorganization, a creditors’ committee is formed to negotiate the terms of the plan and ensure the best interests of all unsecured creditors. No committee is formed if a practice qualifies as a small business debtor owing less than $2,343,300. In this case, the practice is subject to additional U.S. trustee oversight and has 180 days to file a plan.

Chapter 13Only individuals, including sole proprietors, are eligible for

Chapter 13 – provided they do not exceed certain periodically adjusted debt limits. Currently, unsecured debts must be less than $360,475 and secured debts less than $1,081,400.

Dubbed the “wage earner’s plan,” Chapter 13 enables those with regular income to develop a plan to pay all or part of their debts over three to five years.

Another difference between Chapters 7 and 13 is that the debtor maintains possession of assets and pays the trustee, who distributes the money to creditors. In addition, more types of debts can be discharged under Chapter 13.

The debtor has only 14 days to submit a repayment plan to the court and must begin making payments to the trustee within 30 days of the original filing. In most instances, the debtor must pay in full priority claims, such as taxes.

An attorney can advise a debtor about the proper treat-ment of secured claims in the plan. The debtor may pay back unsecured debt in full or in part if projected disposable income is not enough to cover payment over five years.

DischargeWhile most debts will be discharged once a bankruptcy case

is closed, certain debts cannot be discharged. These include alimony and child support, among others.

Filing Chapter 7 or 13 as an individual will affect a physician’s FICO score. Bankruptcy will remain on the individual’s credit report for at least seven years.

Physicians should seek counsel on nonbankruptcy options to reduce debt, tax consequences of filing and actions to avoid should they choose to proceed with their filing.

When healthcare providers declare bankruptcy, they also must address issues related to patient privacy and health records. It’s important for them to consult with an attorney knowledgeable in healthcare law. – Irene E. Lombardo

Once the court has discharged the debt, any effort to collect it can subject you to punishment for contempt.

What if your practiceis one among many creditors?

Bankruptcy: What to know when all else fails

Two recently released reports have interesting things to say about what contributes to patient satisfaction.

But the question remains: Should doctors give patients what they want?

If what they want is improved communication with their physicians, the answer is yes.

Overall doctor ratings have increased 0.5 percent, and low ratings have decreased more than 2 percent since 2010, based on DrScore’s 2011 Annual Report Card on Patient Satisfaction. And a lot of face-to-face time with the doctor is the strongest contributor to 2011’s higher patient satisfaction.

The expected length of a patient visit is at least 10 minutes, according to the study of 36,000 patients. If the visit is longer than 10 minutes, the doctor scores a 9.2 mean rating out of a possible 10. For five-to-10-minute visits, the mean rating is 6.7, and for five minutes or less, the rating is 2.7.

Another study, The Cost of Satisfaction: A National Study of Patient Satisfaction, Health Care Utilization, Expenditures, and Mortality, published in February 2012 by Archives of Internal Medicine, found that satisfactory doctor-patient communication depends on whether the doctor:

➧ Listenedcarefully➧ Providedeasy-to-understandexplanations➧ Treatedwhatthepatientsaidwithrespect➧ SpenttimewiththepatientThe nationwide survey of 51,946 adults used in the study

also asked patients to rate their health care from all healthcare providers, including physicians, on a scale of 0 to 10 from the worst to the best health care.

In general, the patients who expressed higher satisfaction:➧ Usedtheemergencyroomlessoften;➧ Usedinpatientservicesmoreoften;➧ Hadhigherhealthcareandprescriptiondrugexpenditures;➧ And, surprisingly, had increased mortality risk (26 percent greater than

theleastsatisfiedpatients)asagroup.The study saw a correlation between “the extent to which

physicians fulfill patient expectations” and the level of patient satisfaction. In addition, patient satisfaction appears to be “strongly linked to prescription drug expenditures.”

It’s also important to note that, in regions of greater intensity of care, patients took advantage of more discretionary health services, “with attendant risk of adverse effects, than similarly ill patients in lower-intensity regions.”

Both of these findings may help to explain the increased mortality risk among the study’s most satisfied patients – even though they tended to rate their health as excellent.

Conclusions drawn from the study are that:➧ Itisn’talwaysclearwhypatientsaresatisfiedwiththeirmedicalcare.➧ Ratherthanseekpatientsatisfactionthroughrequestfulfillment,physicians

shouldprovidepatient-centeredcommunicationandevidence-basedcare.➧ Preferences of patients should be based on straightforward information

fromtheirphysicians–evenwhenpatientsdon’tlikewhattheyhear.❚

What do patients want – and is it good for them?

May/June 2012 Your Healthy Practice2 May/June 2012 Your Healthy Practice 3

Page 4: Your Healthy Practice Newsletter May-June 2012 Edition

The age of technology has brought about many good things. The ability to search, find, save and retrieve information in a flash has made us more efficient in many ways.

But, it has also opened us up to risks we may not have anticipated.For years, businesses,

including medical practices, have dealt with the necessity of record retention. There are rules and regulations in many fields about how long certain types of information should be kept.

It has always been good practice to establish and adhere to an official record

retention policy, but that is more critical today than ever because of a concept called e-discovery.

E-discovery refers to the search and retrieval of electronic information for use in civil or criminal proceedings. Think about it. Every email, Word document, spreadsheet, text message, Tweet, calendar entry – the list goes on – could be subjected to e-discovery if you or your practice were ever party to a dispute.

You don’t necessarily even have to be the main parties named in the dispute. Your records could be subpoenaed if you have any relevant connection to a third party’s dispute.

This concept presents several serious issues that bear consideration:

➨Quantity of data available. Because electronic records are so easy and inexpensive to keep, many businesses never purge

their electronic libraries of files. This means that years and years of data could be accessible if requested for a legal purpose. If it is accessible, you’ll most likely be required to make it available. For instance, a litigant might subpoena all electronic documents dealing with a certain patient or transaction file that covered several years. The task of locating and retrieving that data would be cumbersome and expensive.

➨Type of data available. Technology changes over time, and our ability to retrieve information from old programs is some-times difficult. However, if we have kept the data, on a backup tape for instance, we may have to make it available to the party requesting it. That means finding a way to retrieve it and make it readable for the other party. This could be time-consuming and expensive.

➨Informality of data available. Many of the electronic files that may be requested are informal files like emails, text messages, IM’s and so on. Often, the language used in those communications is less precise and sometimes lax. Because the “conversations” are documented as electronic files, they are discoverable, and can be damaging in many cases.

➨Permanence of data available. Electronic f i les are dif f icult to destroy. Even deleting a file doesn’t completely destroy it and make it

See E-discovery on page 4

I n s i d e

I n s i d e

May/June 2012➜Bankruptcy: What to

know when all else fails

➜What if your practice is one among many creditors?

E-discovery may complicate your record retention

inaccessible in e-discovery. A computer forensics expert can access deleted files from hard drives with relative ease. If the data was also stored on a server, it can be accessed from there. Messages that were sent to others, like emails, are available from their computers.

The metadata also can be problematic. (Metadata consists of the tags, dates, change notations, etc., that a computer records about the files it stores.) Even without opening a specific file, much can be learned about it.

Another complicating factor in this e-discovery puzzle is that this data becomes relevant as soon as a dispute arises. The knee-jerk reaction of many people, when alerted to a problem, is to start deleting electronic files, thinking them to be private and untraceable. This is unwise because you have a duty to preserve such data if you are aware of the dispute.

In fact, particular steps should be taken to be sure the data is preserved, like changing automatic record-deletion settings on computers or scheduled destruction of backup tapes that contain relevant data.

Even turning on a computer that has relevant information can change the metadata related to the dispute. In some

cases, that could be considered tampering with evidence. Of course, if any legal issue arises, you should contact your attorney at once for specific counsel on the matter at hand.

Failure to preserve data can be a very serious matter. In some cases, a judge may instruct the jury to assume you destroyed data on purpose because it would have been damning in nature. This is referred to as “spoliation” and can do serious damage to an individual’s case.

In other instances, failure to preserve data could result in dismissal of a case to the detriment of the party that compromised the data. In short, it is unwise to do any-thing that would delete evidence, once an issue has been made known.

And that brings us back to the initial advice of this article. Businesses and medical practices should have a well-documented and well-implemented record retention policy that includes all of the electronic data produced. This is a complex issue that should be well thought out and rigorously enforced.

Failure to address this issue could cost your practice time, money, reputation and more. – Denise Altman, CPA, M.B.A.

E-discovery continued from page 1

A financial and management bulletin to physicians and medical practices from:

The technical information in this newsletter is necessarily brief. No final conclusion on these topics should be drawn without further review and consultation. Please be advised that, based on current IRS rules and standards, the information contained herein is not intended to be used, nor can it be used, for the avoidance of any tax penalty assessed by the IRS. © 2012 CPAmerica International

Your Healthy Practice

100 Second Avenue South, Suite 600, St. Petersburg, Florida 33701 | (727) 821-6161 | www.gsscpa.com

100 Second Avenue South, Suite 600, St. Petersburg, Florida 33701www.gsscpa.com | [email protected]

(727) 821-6161

If we may answer any of your questions on the information contained in this publication, please contact us.