June 27, 2012
Steve has a national reputation as an advisor to business and professional organizations, and counsels privately and publicly owned corporations and healthcare clients on contractual and regulatory issues, succession planning, and related transactional matters. He represents clients in acquisitions, divestitures and contract disputes.
You wrote an article in May of 2010 called "Ending a practice relationship doesn't end liability." Can you give our readers a quick overview of what are some of the main legal issues that arise when ending a practice?
Whether you are leaving your practice for new employment or retirement, selling your practice to other physicians or to a hospital, you must consider these 3 key issues before making that leap:
First, have a game plan. You should consider where you envision yourself at the end of this transition. It is important to fully flush out what the endgame looks like before embarking on this new journey. Remember, the grass is not always greener. Good advisors like an attorney and accountant, can assist you in this endeavor.
Second, review all legal documents (e.g., employment, bank, shareholder, member, real estate) to identify a baseline for understanding your rights, obligations and liabilities with regard to your soon-to-be former practice. Of particular importance is protection for continuing professional liability. Coverage needs to be secured in the form of a tail or continuing coverage through the same insurance company used by your former group. In some instances, tail is provided free of charge if you are retiring and have been a policy holder for a specific period of time set by the insurance company. Remember, however, even though contracts may say one thing, if all involved parties agree to other terms, the contracts can be modified to reflect the new intentions of the parties.
Third, remain tight-lipped. Deliberations on the transition should be kept within a small, need-to-know circle. There will likely already be chatter in the hallways, so if you can limit the discussions around the water cooler, that is always recommended.
When marketing a practice online, what are some of the legal issues that a physician can face?
With any use of the internet for marketing and publicity purposes, there are legal risks. These include potential claims by competitors and others for false advertising, copyright and trademark infringement, defamation and invasion of rights of publicity. However, marketing a medical practice on-line has additional risks. First, medical practices must be careful not to violate HIPAA disclosure rules in such marketing. Obviously, any practice should take care that its staff and employees are trained to not voluntarily reveal protected health information while marketing the practice on-line. The use of blogs or other social media outlets where third-party comments or posts are allowed can lead to the inadvertent disclosure of such information. Second, rules regarding physician marketing vary by state and can limit a physician's ability to market, in some cases via testimonials, which patients may with good intentions post on the website, even those that are unsolicited.
Many of our readers and office managers worry about being HIPAA compliant. What areas do you think they should concentrate on to ensure their practice stays compliant?
While HIPAA compliance is critical, the Health Information Technology for Economic and Clinical Health Act (HITECH Act, for short) and state data privacy and security laws must also be observed.
It is important to have frequent training sessions for physicians and staff on what it means to be "compliant" and how to maintain the privacy and security of patient protected health information (PHI, for short). The key issues to be addressed in the training sessions include:
- Who is covered under HIPAA, HITECH Act and applicable state law? - What information is protected? - How can PHI be used and disclosed? - What safeguards must be in place to ensure appropriate data protection?
Oftentimes, attorneys will lead these training sessions or assist practice office managers and compliance officers in educating the practice's personnel on how to comply with federal and state laws.
As a regular speaker at some of the industry's big events, what are a few points that you hope your attendees take from your presentations?
Teaching attendees to issue spot is key. My goals are to introduce business and legal strategies (and pitfalls) so attendees may be at least familiar with concepts while attending to matters at their practices. Trying to overeducate should be avoided. It simply will turn an audience off. They are not interested in going to law school. They are, however, anxious to hear a speech that presents a basic understanding of the dos and don'ts of the subject matter. The balance between the two is sometimes difficult.
As someone who is heavily involved in Contract Law, what do you think should be included in employee contracts for office managers, billers, coders, etc. when they are being hired into a new practice?
For non-physician personnel, the most important provision in a contract is confidentiality. The practice should also maintain an up-to-date employee manual which should be followed. One of the most frequent problems a practice faces is providing its employees with a well developed manual and then not following it. In such cases, the well-meaning document may be used as a powerful tool against the practice should contentious employment issues arise.
Do you have any tips for "protect patient data" for our office managers to keep an eye out for?
If you've answered "No" to any of the following questions, you are not protecting your patient's information as well as you should (and can) be:
- Does your practice have a written information security program? - Have you established clear data security procedures? - Does your practice have an incident response plan? - Are you aware of the myriad of federal and state laws that require data breach notification? - Do you have appropriate IT and electronic policies concerning patient information, whether the information is in electronic form (e.g., electronic health records) or hard copy (e.g., physical medical records and charts), or stored on laptops or other portable devices (e.g., thumb drive)? - Does your practice properly train its employees on its data security program and policies?
I am sure many practices have yet to get onboard with social media. What do you mean when you talk about "Social Media-cine: Get your practice on board with an Internet policy"?
Every business today, like it or not, is connected to social media. Employees and staff are using it and may mention where they work, or what they did at work on a particular day. In addition, more and more companies, including physician practices, are using social media for marketing purposes. Given its increasing use, physician practices should have policies regarding social media. Such policies should address, in a manner consistent with the practice's needs and culture, employee use of social media (including whether and when it can be used at work, and what employees can say about the practice) and the practice's use of social media (including what social media will be used and who will be responsible for its content). In addition, physician practices should ensure that social media policies are integrated and accounted for in the practice's other employment policies such as its harassment and discrimination policy as well as policies relating to hiring and firing employees.
Many states have advertising laws in place for physicians. Can you give us some legal examples on what physicians need to think about before marketing themselves? Physician advertising is regulated by state law. Before a campaign is launched, be sure to check with counsel to confirm the specifics of the advertisement comports to state law. Some states, for example, may prohibit patient testimonials. Others require the physician's name appear prominently within the advertisements. Do not trust the advertising firm alone. While the agency may have effective strategies, it is probable that it will not know specific state regulations concerning physician advertising.
As a business advisor, what do you see as the major issues that a physician's office will face in the upcoming months and years?
Consolidation is the key word. Practices merging with each other or selling to hospitals will be in vogue for at least the immediate future. A combination of increased costs and shrinking reimbursements are the key reasons practices are contemplating such moves.
If you could give any advice to a practice, what would it be?
Maintain core principles while delivering quality patient care. Focus on aspects of the practice that are controllable and watch the bottom line. If a practice is contemplating a merger or sale, be mindful of traps with regard to the new affiliation. Oftentimes, physicians are so anxious to leave a bad situation; little diligence is committed to the new venture.
Steve M. Harris has a national reputation as an advisor to business and professional organizations, counsels privately and publicly owned corporations and healthcare clients on contractual and regulatory issues, succession planning, and related transactional matters. He represents clients in acquisitions, divestitures and contract disputes. e may be reached at (312) 280-0111 or firstname.lastname@example.org.
Rachel H. Yaffe is an associate with McDonald Hopkins LLC in the Health Law Department. Rachel represents billing and coding companies, physicians, medical practices and other healthcare clients in corporation, transactional and regulatory matters. Rachel has counseled clients on employment matters, mergers and acquisitions, regulatory compliance and various corporate and healthcare issues.
McDonald Hopkins -- A business advisory and advocacy law firm. Please visit their web site at http://www.mcdonaldhopkins.com for more information and services.