Answers to Questions that St. Vincent's Residents Are Asking about the Residency Program Closures
(HOUSING QUESTIONS updated 5/5/2010)
HOUSING QUESTIONS
Can the hospital evict me if I don’t sign a Lease Modification Agreement?
The hospital can initiate eviction proceedings against a tenant who
does not sign a Lease Modification Agreement (LMA). The legal basis
for this is the Staff House lease, which residents signed before moving
in, which ends tenancy rights as soon as residency employment ends for
any reason. If a tenant does not sign a LMA but pays their rent for
the month of May and the hospital accepts the payment, the tenant
becomes a month-to-month tenant. As such, the hospital must serve a
30-day notice to terminate before it can properly initiate an eviction
proceeding. If this notice is served in May, the notice period would
be the full calendar month of June. So long as the resident moves out
before July 1st, the tenant should not be sued in Housing Court since
they would no longer reside in the premises when the case is ready to
initiate.
Will my rent stay the same if I sign a Lease Modification Agreement?
The Lease Modification Agreement (LMA) provides for rents to remain the
same through June. However, if a tenant stays in Staff House beyond
June 30th or otherwise breaches a term of the LMA, the hospital can
retroactively increase rents for May and June to unsubsidized rates.
What will happen to my security deposit if I sign a Lease Modification Agreement?
Paragraph 7 of the Lease Modification Agreement (LMA) states that
security deposits will be applied to rent. Be sure that the LMA lists
the month’s rent to which the security deposit will be applied before
signing the agreement.
What if I have claims against the hospital related to my apartment?
The Lease Modification Agreement (LMA) expressly provides that by
signing, tenants agree that the hospital is in compliance with the
terms of their lease and the tenant won’t raise counterclaims or
defenses to the enforcement of the lease or the LMA. As such, tenants
may be abandoning claims against the hospital related to your apartment
if they sign the LMA.
Q: I have a lease through June 30, 2010. Will I be able to stay at Staff House until then?
A: The Hospital has consistently maintained that residents will be able
to stay at Staff House until June 30, 2010. Residents will have to
leave the premises on June 30 however.
Q: I have received a very long bankruptcy court document from the
Hospital that addresses the sale of Staff House. If Staff House is
sold before June 30 will that effect my ability to stay until June 30?
A:CIR has retained a bankruptcy attorney. He has advised us that there
is little or no chance that the sale of Staff House will result in
residents having to leave before June 30, 2010. The attorney explained
that the sale will involve a complicated procedure in which the Court
must set a date to auction off Staff House, the auction must occur
(probably not until the end of May), the sale has to close (probably
not until mid-June), and the bankruptcy court judge has to approve of
the sale (probably not until the end of June or early July).
Accordingly, it is very likely that the sale process won’t be completed
before June 30. Our attorney states that even if the sale does close
before then, residents will not be able to be made to leave prior to
June 30 without the approval of the bankruptcy court judge. It is
extremely unlikely that the judge would grant her approval.
Q: Will I get my security deposit back?
If you have maintained your apartment in good condition, beyond normal
wear and tear, and don’t owe any back rent or other monies to your
landlord, you are entitled to receive a refund of your security
deposit. We have been told by St. Vincent’s attorney that residents
should request security deposit refunds from the Staff House managing
agent and that refunds will be issued without regard to the bankruptcy
proceeding.
Q: Are we able to leave Staff House if necessary?
A: Yes.
Q: Grove Pointe says we need to give thirty days notice to terminate
the lease but we got the notice about programs ending on April 30th a
week ago. I may need to leave sooner than that to find a new program.
What should I do?
A: If you give notice before April 30, you will only be liable for rent
for the month of May. IF that is not satisfactory, contact the lawyer
hired by CIR on your behalf, Joan Pransky,
pransky@verizon.net
QUESTIONS REGARDING MEDICAL MALPRACTICE
Q: Does St. Vincent’s have medical malpractice insurance that covers the resident physicians?
A: Yes. The resident physicians at St. Vincent’s are covered by the
same insurance as the staff physicians and nurses. But there is a
significant problem with the coverage.
St. Vincent’s medical malpractice insurance coverage is in 3 layers.
The first layer consists of a policy purchased from MLMIC. That policy
provides coverage of $1 million per incident and $12 million in the
aggregate. The second layer consists of “self-insurance;” it is
supposed to cover individual claims between $1 million and $9 million.
We have been told that an excess insurance policy exists that would pay
the amount of a claim above $10 million, but only if the first $10
million has been paid from other sources (here the purchased insurance
and the self insurance). (We have not yet seen that excess policy and
will report further when we have obtained and reviewed it.) St.
Vincent’s self-insurance layer is not adequately funded. In other
words, the self-insurance is not likely to have enough funds to pay any
individual medical malpractice claim above $1 million.
Coverage for claims that accrued (stem from incidents that occurred)
before July 1, 2005 and those that accrued after July 1, 2005 are
treated differently. July 1, 2005 is the date of St. Vincent’s first
bankruptcy filing. The self insurance fund for claims before July 1,
2005 created in 2007 through the first bankruptcy plan, although
insufficient, may be more likely to pay claims then the “self
insurance” for claims that arose after July 1, 2005, which is likely to
be wholly insufficient.
Q: Does St. Vincent’s have an occurrence malpractice policy or a claims-made malpractice policy?
A: The hospital has a claims-made insurance policy. The two types of
policies are very different. A claims-made policy covers only claims
that are made while the insurance policy is in effect. If a claim is
made after a claims-made insurance policy is terminated, it is not a
covered claim. In contrast, an occurrence policy covers claims that
accrued (stem from incidents that occurred) while the policy was in
effect, regardless of when the claim is made. So even if a claim is
made after an occurrence insurance policy is terminated, the claim is
covered, as long as it accrued while the policy was in effect.
In short, an occurrence policy is better for the insured,
particularly in a situation like at St. Vincent’s which is closing and
where the MLMIC insurance policy will be terminated. When St. Vincent’s
terminates the MLMIC insurance policy, resident physicians, like the
staff physicians and nurses, could become personally liable for medical
malpractice damages as well as the defense costs associated with a
medical malpractice lawsuit.
Q: Is St. Vincent’s doing anything to prevent the exposure of
resident physicians and others to medical malpractice liability after
it terminates the claims made insurance policy?
A: Apparently. St. Vincent’s has informed us that it is taking
steps to purchase “tail” insurance. Tail Insurance would cover all
claims that accrued during the period the claims-made insurance policy
was in effect. Tail insurance essentially transforms a claims made
policy into an occurrence policy. According to Dr. Akram Boutros, St.
Vincent’s Chief Medical Officer, St. Vincent’s has set aside money for
purchase of tail insurance. It has an application before the New York
State Department of Insurance to allow it to purchase tail insurance
from a certain insurance company. If this application is approved,
then St. Vincent’s will seek approval of the purchase of the tail
insurance policy from the Bankruptcy Court. That approval is not
assured
Q: Is there anything I can do to protect myself if St. Vincent’s does not purchase tail insurance?
A: Possibly. Sometimes physicians who may be exposed to personal
liability by the termination of a claims-made policy will file timely
notices of claims for incidents that they know could actually ripen
into a lawsuit. The idea is that if the notice of claim is filed on
time, that is, before the termination of the policy or no later than
the end of the notice period provided after the termination of the
policy, then it will arguably come under the coverage of the claims
made policy even though the actual lawsuit is filed after the end of
the policy. However, there are possible downsides to this course of
action. Each person should make their own decision on whether it is
right for them. Resident physicians should seek independent advice on
whether to file notices of claims, and if so, how to distinguish the
incidents that are worthy of filing notice of claims. If a resident
physician chooses to file a notice of claim, it should probably be
filed with the St. Vincent’s risk management office, with a copy to
MLMIC.
That being said, it is CIR’s position that St. Vincent’s must
purchase tail insurance. CIR will monitor the situation closely and do
what it can do to make that happen.
Q: Is there anything I can do to protect myself if I don’t now know of any claims?
A: Yes. Provided there are no pending claims, you may want to
seek independent legal advice on estate planning. Many times, a side
benefit of a good estate plan is the protection of assets against
future claims.
QUESTIONS REGARDING ORPHAN STATUS AND OUT-PLACEMENT
Has the decision been made to close the St. Vincent's ACGME residency programs?
Yes, due to the hospital’s financial condition residency programs will terminate effective April 30th, except for Psychiatry. It is still unclear at this time when the Psychiatry program and the relating fellowships will end.
Displaced Resident Status Letter
If your program is ending on April 30th, use this letter when applying for other programs.
When will I officially have displaced (“orphan”) status?
May 1st for all programs except Psychiatry
Will fellows be eligible for "displaced resident" ("orphan") status?
If the fellowship is ACGME-accredited, yes; if it is not, no. ACGME-accredited fellowships are subspecialty residencies and are supported by federal funding for residencies. If a fellow is in a program when it closes, then that fellow will be eligible for "displaced resident" status.
Are St. Vincent's and New York Medical College responsible for finding new positions for all the residents displaced by the potential program closures?
ACGME requires St. Vincent's and New York Medical College to have a written policy that addresses program closure. It is in your best interest to take personal responsibility for finding a new position for yourself. You should speak with your program director. Your program is in the best position to give you advice and assistance. You should use all available sources and networks at your personal disposal.
What is the hospital doing to help us find placements?
The hospital has been actively working with Greater New York Hospital Association (GNYHA) since the beginning of March to make the transition go as smoothly as possible for you, and assure that you have the best options available. GNYHA is a trade association comprised of nearly 300 hospitals and continuing care facilities, both voluntary and public, in the metropolitan New York area and throughout the State, as well as New Jersey, Connecticut, and Rhode Island. The association is assisting St. Vincent’s Medical Center in the placement of residents by reaching out to program directors in each of its member institutions.
GNYHA has been sending out weekly packets of information that includes a list of available residents and their contact information, a letter from the hospital about closure, and an explanation of orphan status. In addition, the hospital hopes that there may be programs that would accommodate several residents or a group of residents and might want to arrange that with your Program Director. The hospital is committed to help all residents find placements and available options.
The hospital is also organizing career fairs in conjunction with GNYHA and NYMC.
Will the Residency Review Committee (RRC) for my specialty help me find a new position?
No. The RRCs are not in the business of finding new placements for residents displaced by program closures. They will not provide any assistance. ACGME may be able to send notification throughout the country, and request help from other programs in placing residents.
Will CIR help me find a new position?
To a limited degree. CIR is a labor union that does collective bargaining for 13,000 residents at numerous hospitals around the country; unfortunately, we are not set up to act as a resident placement service. Nonetheless, CIR has been in contact with programs in all CIR hospitals to ask if they can take on more residents and then share their responses with St. Vincent's residents. After that it will be up to each resident to take steps to secure a placement for him or herself at any of these hospitals. Please check out the Programs Accepting Applications from St. Vincent's Housestaff page for information on programs that are interested in accepting St. Vincent’s residents and fellows.
What should I be doing to find placement?
The hospital, GNYHA, and CIR has put out the alert about St. Vincent residents' displaced status. Some programs may contact you or your program director for interviews but residents must be proactive in searching for a new placement, including contacting programs. If you haven't done so yet, the hospital asks that you:
1. Check your e-mail regularly!! (both SVCMCNY and private)
2. Prepare an up-dated CV:
3. Reach out to program you are interested in. The hospital and GYNHA have done their outreach and area hospitals are well aware of the situation of St. Vincent’s residents. You are free to contact programs directly. You can look
here for open positions.
Can a program, together with its residents be moved entirely to a new hospital so that I won't have to look for a position on my own?
Theoretically, it is possible, but it is very unlikely. Don't count on it.
Won't we be forced to compete for the same few PGY 2 and higher PGY residency slots that open up each year around the country?
Not exactly. When residency programs close, other programs may add residency slots temporarily, that is long enough for one or more displaced residents they take in to complete their training. All programs need to be mindful of not diluting the training experience of their existing residents by adding too many new slots and have to get formal approval from their RRC before adding any new slots.
Why would another program temporarily add a residency slot?
First, residents provide an economical labor pool for hospital medical services. But there's another financial incentive at work in this situation. Generally, each residency slot is supported by federal money. When a program closes, each resident is deemed a "displaced resident" (or "orphan") and federal money for the displaced residents' slots can be transferred to receiving programs. Federal money for the displaced slots are available to the receiving program only long enough for each displaced resident in the receiving program to complete their residency. Two examples: A Medicine resident entering her PGY 2 year would have funding for 2 years, to cover her remaining PGY 2 and PGY 3 years. A Surgery resident entering his PGY 2 year would have funding for 4 years, to cover his remaining PGY 2, 3, 4 and 5 years.
Does the receiving program qualify automatically for the transferred federal funds for my residency slot from the first day I work there?
Not exactly. First, the original program has to close completely. So if your program closes on June 30, 2010, and you enter the new program afterward, on July 1, 2010, the new program can receives the transferred funds for your residency slot for the period beginning July 1, 2010. Second, both the closing program and the receiving program have the affirmative obligation to make applications to the federal government within 60 days of the program closure date.
If I leave before the program closes, am I entitled to "displaced resident" status?
No. A "displaced resident" is defined as a resident who was training at a hospital up to the point that the program completely closed. If you discontinue your training at St. Vincent's prior to your program or hospital closing, you are not considered a "displaced resident."
Q: Do we have the option to finish early?
A: It depends. For example, if you have finished all of your requirements and have some vacation time then you can. If you have rotations you need to complete, you must do them.
Q: Can something be worked out so that I can do a last rotation here at St. Vincent’s?
A: No, you will have to secure placement elsewhere.
Q: Can we finish the last two months at one of our rotation sites?
A: The hospital is absolutely working on that as a solution and many programs are open to the idea.
Q: What will my diploma say?
A: If you are a graduating from a categorical position, are finishing a fellowship or are in preliminary or transitional program and you are able to do didactics or research to complete the year. Your diploma will be from New York Medical College and St. Vincent. If you will continue your training at another institution, you will receive a diploma for the training you completed at St. Vincent and issued a certificate of completion will be from your accepting institution.
For those in the last year, an option has been laid out in which you would be doing research and/or didactics for the last months to complete the year. Here are some questions that have come up:
Q: Will I get paid if I choose to do the didactic option?
A: No. The didactic option will be most likely like be unpaid. You will have access to unemployment benefits.
Q: If we choose not to take the didactic option are we free to take our status and funding to another spot?
A: Yes. You will qualify for “displaced resident” status.
Q: Does the didactic option apply to preliminary and transitional year residents too?
A: Yes. This option is being worked out for all residents and fellows in their last year of training as well as preliminary and transitional residents, but only for those who have otherwise completed their requirements.
Q: If we choose the didactic option will it be ACGME accredited?
A: Yes, AGMCE gave the hospital permission to sign off on a certificate of training that includes the didactic option.
Q: If we choose the didactic option will I be board eligible?
A: This is still being worked out. Some specialties have gotten the approval. You should speak with your program director.
Q: If we are eligible to do didactic and/or research for the next few months, can we get something in writing to verify this will count toward training?
A: Yes. That will be signified by the diploma that you will receive from St. Vincent. If you need proof before your receive your diploma; for example to show to a new program, that can be arranged. Speak to your program director.
Q: What about medical malpractice insurance since I will no longer be an employee of St. Vincent’s and therefore no longer covered under that commercial policy?
A: If you are on a didactic rotation or doing research you will not be touching patients and you won’t need to be covered by malpractice insurance.
Questions that have come up from Residents who still have training to complete after July 1:
Once I am orphaned how long does my funding carry with me if I do not have a position on the day of closure?
There is no"cutoff date" in connection with orphan/displaced residents, and the ability of a receiving hospital to obtain the temporary increase in its Medicare FTE cap when it takes on residents who come from a training program that has closed. The only time requirement is that the Medicare regulations require the receiving hospital, no later than 60 days from when it begins to train residents from the closed program, to submit to its fiscal intermediary the necessary request for the temporary adjustment to its FTE cap. Notice that this time requirement is measured from the point at which the residents from the closed program begin their training at the new hospital. The time limit does not reference when the residents actually discontinued training at the old program. (
Regulation 42 CFR 413.86(g)(9))
Q: I have secured a placement for July 1st, but the receiving institution will not take me any earlier. What does that mean for me?
A: You will need to find a placement for 2 months, or speak with your new program about other options that may be available to you, such as doing some requirements at the end of your training.
Q: Will I still have CMS funding if I go to interim program now for 2 months and continue at another program afterward?
A: Yes, the funding will follow you and will continue for the duration of your training, even if you go to an interim program. It stays with you.
Q: Will I get paid if I have to work in an interim program before starting my new program?
A: Interim program positions will mostly likely be paid, as the receiving institution will be receiving CMS funds for your time there.
Q: Are the interim programs going to honor our work schedules if I have vacation scheduled?
A: It is not guaranteed that you will be able to take a vacation at a certain time if you have time-off scheduled at St. Vincent. This will be up to your receiving institution.
Q: Can I use vacation to fulfill some of the time requirements if I can’t find a program or program takes me later than May 1st?
A: Yes, you can use the vacation time, if needed, to fulfill some time requirements; however, time taken off after May 10st will be unpaid.
Q: Who is the contact person regarding CMS funding transfer if accepting programs have questions?
A: Dr. Margaret Smith. She can be reached at
marsmith@svcmcny.org.
WAGES and HEALTH INSURANCE QUESTIONS:
Q: Through what period will I be paid?
A: You will be paid through the pay period ending May 10.
Will I be eligible to continue my health insurance? What happens to my health insurance when the hospital closes?
You will have health insurance through the hospital through the end of May. After that you will need to COBRA your coverage. COBRA coverage is a continuation of the same group coverage you had when you were working. In general, employers with 20 or more employees who provide group health plans must offer each "qualified beneficiary" who would otherwise lose coverage under the plan because of a "qualifying event", which in this case would be a layoff, an opportunity to elect and pay for a continuation of the coverage received immediately before the qualifying event. You should get in touch with the benefits office at the hospital for information.
Click Here to see St. Vincent’s COBRA policy rates. Please check out information on COBRA coverage from the Department of Labor and the New York State website.
Isn’t St. Vincent’s obligated to pay me through June 30, since I have a contract with them?
A: No. St. Vincent’s will be filing for bankruptcy shortly. As a debtor filing for bankruptcy protection, St. Vincent’s will be entitled to reject contracts it has entered into, including residency appointment agreements. Residents whose contracts have been rejected will have what is called a pre-petition “rejection claim” against the hospital. The rejection claim would include what the resident lost in salary and benefits. The claim could also include damages caused by the rejection, including claims of lost earnings. However, pre-petition claims are on the bottom of the list of claims to be paid. This typically results in pre-petition claims being paid a fraction of what they are worth. Sometimes parties with pre-petition claims get pennies on the dollar or nothing at all.
I’ve incurred expenses that St. Vincent’s was supposed to reimburse me for, what happens to them?
Once St. Vincent’s declares bankruptcy, which is imminent, St. Vincent’s will not, in all likelihood, reimburse residents for expenses they incurred, even if the hospital contractually obligated to provide those reimbursement, such as education allowances and board review reimbursements.
Residents will have the option of filing a pre-petition claim in bankruptcy court for money they are owed. However, pre-petition claims are on the bottom of the list of claims to be paid. This typically results in pre-petition claims being paid a fraction of what they are worth. Sometimes parties with pre-petition claims get pennies on the dollar or nothing at all.
VISA QUESTIONS:
Do residents who are in H-1B status have any additional issues to consider?
Yes. In order to remain in the United States, residents in H-1B status cannot have any time gap - not even one day - between the date they finish at the closing program and the date they start at the receiving program. Residents in H-1B status cannot start work before a new H-1B petition has been filed by the receiving program. Residents in H-1B status must get accepted by a receiving program sufficiently in advance of the closure of their existing program to allow time for a new H-1B petition to be filed before they begin work at the receiving program. The hospital is working on a solution to keep some residents on payroll at minimum pay to avoid a gap in employment. If you have question about visas, please call CIR @ 212-356-8100 and ask to speak with an Immigration Attorney.
What additional issues are there for residents in J1 status to consider?
Like residents in H-1B status, residents in J-1 status cannot have any time gap between the date they finish at the closing program and the date they start at the new program. Before they start at the new program, they must have applied for and received approval from the Educational Commission for Foreign Medical Graduates (ECFMG) for the new program. ECFMG takes about four weeks to process an application. Therefore, it is essential to secure a position in a new program sufficiently in advance to allow time for the ECFMG approval to be issued before the conclusion of your residency work at St. Vincent's. The hospital is working on a solution to keep some residents on payroll at minimum pay to avoid a gap in employment. Please call CIR @ 212-356-8100 and ask to speak with an Immigration Attorney.
What if I have other questions that aren't answered by this Q&A?
Please speak with your program director, or email
stvincent@cirseiu.org.