American Association for Physician Leadership

Questions Physicians Should Ask Their Healthcare Attorney

Timothy E. Paterick, MD, JD, MBA


Feb 1, 2024


Healthcare Administration Leadership & Management Journal


Volume 2, Issue 1, Pages 40-41


https://doi.org/10.55834/halmj.3730656252


Abstract

This article addresses compliance, employment, HIPAA, and contract negotiation. It begins with a brief introductory overview of complex topics that physicians should consider and then digs deeper with advice on how to survive in today’s complex, ever-changing medical world.




Physicians are drowning in regulations; guidance recommendations from federal agencies such as the Equal Employment Opportunity Commission, Department of Justice, the Consumer Financial Protection Bureau, and the Federal Trade Commission; and constantly evolving state and federal laws.

This overload of regulatory and legal transformation has physicians feeling worn down and out of control; the risks they fear are scary and real. These challenges contribute to burnout, apathy, and, ultimately, reduced effectiveness in providing their passion—patient care.

This article addresses compliance, employment, HIPAA, and contract negotiation. It begins with a brief introductory overview of complex topics that physicians should consider and then digs deeper with advice on how to survive in today’s complex, ever-changing medical world. It is no longer enough just to stay on top of the changing landscape of medicine and surgery.

The World of Compliance

Physicians are confronted with constantly changing billing, coding, privacy laws, and Medicare and Medicaid regulations. It is important to develop a compliance plan to stay on top of these complex needs. Although the Affordable Care Act requires a compliance plan, most physician groups lack one that is solid and comprehensive. The Office of Inspector General has defined the seven essential elements of a strong, effective compliance plan:

  • Implementing written policies, procedures, and standards of conduct;

  • Designating a compliance officer and compliance committee;

  • Conducting effective training and education;

  • Developing effective lines of communication;

  • Conducting internal monitoring and auditing;

  • Enforcing standards through well-publicized disciplinary guidelines; and

  • Responding promptly to detected offenses and undertaking corrective action.

The following five practical tips help to create a culture of compliance:

  • Make compliance plans a priority now;

  • Know your fraud and abuse risk areas;

  • Manage your financial relationships;

  • Don’t do what the competition does until you know it is in compliance with federal regulations and laws; and

  • When in doubt, ask for help.

Employment Law Issues

Employment law is a very complex area and demands a knowledgeable and capable human resources department. Educate yourself on whether key players in the health system should be employees or should be contracted out. An employment manual that comprehensively outlines the rules and regulations of the practice is mandatory. A healthcare employment lawyer should review it and annotate as necessary.

Listen carefully to your staff, and, if there is an issue, handle it promptly to try to resolve the problem early and quickly before it escalates out of control.

Do not allow employee problems to fester, rankle, and mature, thinking they will work themselves out. Listen carefully to your staff, and, if there is an issue, handle it promptly to try to resolve the problem early and quickly before it escalates out of control. A non-retaliation policy is crucial so that someone who reports a complex issue in good faith will not be punished. Carefully consider whether you want at-will employees, who can be let go at any time, versus employees who are bound by an employment agreement. The employment arena requires an experienced employment lawyer to review policies and procedures that define the employment relation at your organization.

HIPAA

HIPAA is a federal law that requires the creation of national standards to protect sensitive patient health information from being disclosed. HIPAA and data breaches are difficult areas for physicians to navigate. Mobile information technology continues to expand exponentially, and it is expected that lost or stolen mobile devices will occur in healthcare institutions. The Department of Health and Human Services estimates that about 25% of data breaches occur as a result of the theft of laptop computers. Mobile devices that contain patient or institutional data should have robust encryption capacity, and the medical staff should be educated and trained to appreciate the dangers of physically removing devices from institutional topography.

Physicians who are involved in financial relationships within the industrial–medical complex must understand the kickback statutes that often govern such financial relationships. Hospitals and health systems must ensure that financial relationships are not rewards for physician referrals to the institution. These laws are similar to the Stark Law prohibition against self-referral. Some healthcare institutions have run afoul of the law by providing free services to a physician practice.

To meet the spirit and agenda of the law, payment to physicians must meet a fair-market valuation test and be reasonable compared with the local marketplace. Under the Stark Law, physicians may not refer patients to entities in which they have a financial interest. Physicians also should be aware of the danger from arrangements in which they are hired as medical directors of health systems. The hiring entity must be able to show that the physician’s activity as medical director provides direct services and there is a record of the time spent in the directorship role.

A number of exceptions are built into the Stark Law that allow physicians and healthcare institutions some flexibility in developing financial relationships between institutions and physicians and in how physicians may legally refer patients. The Sherman Act provides antitrust laws that prohibit anticompetitive behavior such as restraint of trade. The complexity of the financial relationships and these laws make it prudent for physicians to have all financial relationships reviewed by expert legal counsel.

Negotiating Employment Contracts

There are four areas in a physician employment contract that you can and should negotiate:

  1. Compensation: Is it fair? Does the compensation package comport with fair market value in your area of expertise? Are you receiving a sign-on bonus? Are you receiving a relocation bonus?

  2. A notice without cause provision: This means that either party can walk away without any reason, as long as you give the proper notice. Ninety days is standard. This length of time is important so you have enough time to interview, get hired, sign a new contract, and start the credentialing process. You simply put in your notice and have an end in sight.

  3. Noncompete clause: It is important to narrow the noncompetes. Noncompete clauses vary from state to state in terms of temporal broadness and distance range. How many years are you bound by the noncompete clause? You need to know before you sign the contract. Narrow the noncompete as much as possible, and, if possible, weave in exceptions. This is a very tricky part of the contract. We hope the Federal Trade Commission will eliminate noncompete clauses as they have caused much pain for many physicians over time.

  4. Leverage: Know your leverage. Use whatever leverage you have before you sign the contract. Once you sign the contract, all leverage disappears. And if you are going to raise good faith issues of compliance, billing, coding, or sexual harassment before you walk away, consider raising those issues before you put in your notice so that you have some leverage to negotiate.

This surface view of extremely complex legal topics of compliance, employment law, HIPAA, and contract negotiation should prompt the reader to seek expert legal advice when confronted with nuanced topics that have a huge impact on their medical and surgical lives and livelihoods.

Timothy E. Paterick, MD, JD, MBA

Timothy E. Paterick, MD, JD, professor of medicine, Loyola University Chicago Health Sciences Campus in Maywood, Illinois.

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Topics

Health Law

Risk Management

Critical Appraisal Skills


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