Krisi Hutson, product line developer at Availity, discusses how providers—in health systems and private practice—can reduce the likelihood of surprise billing occurring.

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How providers can reduce the likelihood of surprise billing.

How providers can reduce the likelihood of surprise billing

What are the best states for physicians to practice in? Find out in 

 Best States to Practice 2021 exclusive data project.

For our analysis, our editors ranked the states based on 2020 data covering five categories:

Tax climate (state collections per capita)

Physicians Practice obtained the data from publicly available sources and partner organizations. The Cunningham Group provided malpractice premiums for each state. Averages, published in the report, were calculated by 

Here’s a brief description of our methodology: We ranked each state on the criteria described desirable outcome per criteria, then averaging those scores resulted in the ranks of the states below and in other sequences in the slideshow series.

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Which states do you think ranked among top this year?

The best states for physicians in 2021: The top 10

In this clip, Krisi Hutson, product line developer at Availity, explains what a surprise billing scenario may look like in small, independent practices.

What a surprise billing scenario may look like in small, independent practices. 

Surprise billing in independent provider practices

, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, 

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its 

Technical Assistance Questions and Answers

 (hereinafter “EEOC Guidance”) in relation to COVID-19. There are a few notable items, some of which seemingly intersect with the Health Insurance Portability and Accountability Act (HIPAA).

First, the EEOC Guidance serves as a reminder that the Americans with Disabilities Act (ADA) “applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act.” 

Second, it answers the question regarding how much information an employer may request from an employee who calls in sick in order to protect the rest of its workforce. The EEOC’s answer:

“[d]uring a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. 

Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA

This is sage advice, regardless of the size of an organization—treat all sensitive medical information as if it were a patient’s protected health information. Even though 

 does not apply to employment records, the Privacy Rule does apply to medical or health plan records if a workforce member is a patient of their provider-employer or a member of a health plan. In light of various state laws, as well as general privacy considerations, employers should always remember not to mention an individual employee by name, even if other workforce members need to be tested as a result of a potential exposure.

As far as COVID-19 vaccinations are concerned, as indicated in the EEOC Guidance, “federal EEOC laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” This notion applies whether or not the employer administers the vaccine, or the employee gets the vaccine elsewhere. The critical considerations for employers are to require the vaccine of all employees in order to avoid a discrimination suit, have a process defined in a policy and procedure to address potential accommodations and expressly state that the accommodation may be granted so long as it “does not pose an undue hardship on the operation of the employer’s business.” In sum, these items are particularly notable in a healthcare setting and providers are encouraged to consult outside counsel if a situation arises that cannot be reasonably accommodated.

, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at

in Houston. Rachel can be reached through her website,

A few notable items seemingly intersect with the Health Insurance Portability and Accountability Act (HIPAA).

EEOC releases updated COVID-19 guidance for employers

One of the criteria for determining state rankings in our Best States to Practice for 2021 was tax collections per capita.

These are the five states which collect the least.

The best states for physicians in 2021: The 5 states with the lowest state tax collections per capita

Which state do you think takes the least?

James R. Embrey, Jr. is a Partner at Hall Booth Smith, P.C. who defends Fortune 500 companies and other businesses of all sizes in medical malpractice litigation, general liability, insurance coverage and transportation matters. He previously worked in-house as a Managing Counsel and General Counsel, and earlier in his career he served as an Airborne Infantryman in the United States Army with the 101st Airborne Division (Air Assault) and was awarded the Combat Infantryman’s Badge for his service in the Middle East. He can be reached at

 had received at least one dose of a COVID-19 vaccine, and around 115 million people were fully vaccinated, according to the U.S. Centers for Disease Control and Prevention (CDC).

As the long lines of patients seeking a life-saving vaccine begin to shorten, the physicians, nurses, pharmacists, medical technicians, and other health care professionals who have been working tirelessly to administer all those shots in the arm are bracing for a new threat: liability lawsuits.

Most of the risk of medical malpractice litigation related to COVID-19 vaccines comes from the possibility that staff did not follow their own best practices, and this risk can be greatly reduced by meticulous adherence to procedures.

Here are a few things your medical practice needs to know and prepare for as the public health campaign to quickly administer COVID-19 vaccines spurs a wave of litigation.

Here’s why social media is important to your practice

Public Readiness and Emergency Preparedness Act

 (PREP Act) provides immunity from legal liability for covered persons who work on the development, testing, manufacturing, and distribution of the vaccine (e.g., wholesalers, retailers, re-packers, common and contract carriers), plus those who are authorized to administer or dispense the vaccine.

There have been several amendments to the PREP Act to expand the list of professionals who are qualified to administer the vaccine as part of the public health push to get more people vaccinated quickly. In addition to physicians, physicians’ assistants, nurses, and emergency medical technicians, the list now includes dentists, podiatrists, veterinarians, midwives, healthcare students trained on vaccine injections, recently retired professionals, and others.

There is much of confusion and uncertainty about whether normal medical malpractice insurance covers litigation related to the COVID-19 vaccines.

If a professional is authorized to administer vaccines, they would be a “qualified person” under the PREP Act’s immunity, so it may be a moot point; however, if a lawsuit is filed against a vaccine administrator, they would still need a defense attorney to file the necessary Motions to Dismiss while invoking the PREP Act. This costs money. It is anticipated that these types of lawsuits would fall under medical malpractice and/or ordinary negligence, depending on the wording of the Complaint. In any event, it would be prudent for a practitioner to have this discussion with his or her insurance carrier to be sure coverage exists in the event a lawsuit is filed against them.

Despite the PREP Act’s broad immunity coverage, plaintiffs’ attorneys have already been filing complaints in many jurisdictions in an effort to test the waters for possible wins that could set precedent in other venues.

There will also likely be litigation around the one exception to the PREP Act where liability immunity gets suspended: death or serious physical injury caused by “willful misconduct.” In order to overcome the willful misconduct hurdle, a plaintiff must show that the vaccine administrator acted intentionally to achieve a wrongful purpose; knowingly without legal or factual justification; and, in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit, all of which results in serious physical injury or death. Serious injuries include those that are life threatening, permanently impair a body function, permanently damage a body structure, or one which requires medical intervention to avoid such permanency.

Even if there are some isolated cases where serious injury or death can be conclusively tied directly to the administration of a COVID-19 vaccine, those individuals may be eligible to receive compensation through the 

Countermeasures Injury Compensation Program

Medical practices must be able to demonstrate that they have fully trained their staff and adopted protocols to carefully follow the 

CDC’s COVID-19 Vaccine Storage and Handling Toolkit

. Those guidelines were developed in collaboration with vaccine manufacturers, scientific studies, and public health officials, and are revised or updated periodically.

Each practice should write and adopt standard operating procedures (SOPs) for vaccine storage and handling and document the dates of staff training for each person who will be involved in their vaccine program.

It’s also important to look for and adopt updated guidelines from the CDC when they are issued.

The early toolkits didn’t address the importance of maintenance and temperature validation checks to vaccine storage units, for example, but that issue is addressed in the 

A faulty seal on the door of a cold storage unit could compromise the potency of the vaccine, and dormitory-style combination refrigerator/freezer units are specifically banned. Practices must only use purpose-built or pharmaceutical-grade units.

Five things physicians should consider when creating their financial plan

As always, the best defense is a good offense. Encourage all staff to have meticulous record-keeping practices and proactively look for opportunities to spot check or conduct double verification of important data or documents.

Something as simple as sloppy handwriting could be problematic in front of a jury. A carelessly scribbled number nine might look like a seven on first glance, for example. If there is ever any doubt, pause, double check, and verify.

Should a patient complaint, threat of a lawsuit, or litigation occur, ensure that all staff follow protocols for preserving patient charts, check-in and release logs, handwritten notes, notes about verbal conversations, voicemails, emails, and other records that will be discoverable. Never alter a record or perform an unscheduled records purge.

Every physician practice should be working proactively with an attorney who is experienced in medical malpractice and liability litigation defense to plan and prepare for possible COVID-19 vaccine litigation.

That preparation should include a comprehensive review of current policies, procedures, staff training, documentation practices, and other areas of potential exposure. Having a solid plan in place improves the defensibility of any claim that could arise and allows health care professionals to deal with possible litigation in a more confident way.

James R. Embrey, Jr. is a Partner at Hall Booth Smith, P.C.

Despite the PREP Act’s broad immunity coverage, plaintiffs’ attorneys have already been filing complaints in many jurisdictions. 

COVID-19 Vaccines and Liability: What your medical practice needs to know

Telehealth has gained a lot of attention during the COVID-19 pandemic, and rightly so. It has been incredibly beneficial—critical, really—for enabling patient care while reducing coronavirus exposure risk.

Audio-only communication is the most common form of telehealth being used in physician practices, with video communication used as necessary. This makes sense with respect to patient preferences and practice efficiency. What’s misguided, however, is the continued use of the terms “telehealth” and “virtual care” interchangeably.

With advances in digital health technology, these terms are no longer synonymous, if they ever were. Given recent advances in digitally supported care, we should be much more deliberate in how we define the broader concept of virtual care.

How to improve your practice’s online presence post-pandemic

Most telehealth solutions today are essentially “paving a cow path,” so to speak. Typically, they digitize existing workflows rather than address the central question, “What’s the 

 way to provide a virtual patient care experience that promotes health, value and convenience?” Answering that requires a more expansive view of virtual care that includes not only telehealth, but remote patient monitoring (RPM) and digital therapeutics as well.

Here’s why: time-strapped physicians are under pressure to drive better patient journeys and outcomes without additional operational lift. RPM addresses those needs by balancing synchronous telehealth and in-person visits with asynchronous, digitally enhanced patient support, thereby fueling improved outcomes without adding to physicians’ workloads.

Although it’s a common misperception that RPM is time-intensive, with the correct partner the virtual care enabled by RPM saves time and yields substantial clinical and financial benefits. The key is to use solutions that are clinically validated, have a low operational lift, and demonstrate proven ROI. RPM solutions with these attributes can help practices:

Gathering data in-between patient visits frees physicians from the traditional limitations of in-office physiological assessments. It ensures a more accurate picture of patient health because it’s not dependent on patient memory, transparency, or context.

While the data itself is beneficial, even greater value should come from the actionable intelligence derived from it. Data can be synthesized into intuitive formats that take seconds to understand rather than precious minutes spent sifting through logbooks. The 

 from data often are counterintuitive, which is precisely when they’re most valuable. The gold standard is to arrive at those findings without extra work by physicians or staff.

To improve outcomes, providers need tools that permit proactive decision-making and interventions. RPM gives providers the ability to review real-time trends, insights, and patient data.

The impact of patient behavior on outcomes is well established. Tools that leverage behavior science—such as those that use reminders or goal-setting—support providers’ care recommendations by making it far more likely that patients will adhere to them. RPM tools built on sound behavioral science principles guide patients at a personal level to form healthier habits.

Solutions should be backed by published outcomes, not just marketing material. The best RPM tools will be part of replicated research published in peer-reviewed journals that indicates they deliver significant clinical advances over time and at scale.

In addition to clinical improvements, solutions should be capable of establishing revenue streams through billable CPT codes (e.g., 99453-99454, 99457-99458), grant funds, and other reimbursement mechanisms including value-based care contracts. By empowering patients during the 99.9% of the time they aren’t in a doctor’s office, RPM tools can help practices gain some influence over the hundreds of daily patient choices that ultimately impact value-based cost and quality metrics.

 Fundamental revenue cycle management metrics

Telehealth plays an important role in patient care, but it’s a mistake to equate it with virtual care. By conflating the two, we set unintended limits around the scope of support we deliver to patients. Telehealth lets us connect with patients wherever they are at any given moment in time, but truly virtual care surrounds patients with support at 

Why the conflation of “telehealth” and “virtual care” is misguided.

Beyond Telehealth: Expanding the definition of virtual care

Krisi Hutson, product line developer at Availity, outlines the concept of Balance Billing and how it relates to surprise billing.

The concept of Balance Billing and how it relates to surprise billing.

Balance billing defined

These states represent the bottom 5 states which collect the most per capita.

The best states for physicians in 2021: The 5 states with the highest state tax collections per capita

These states will claim more from your paychecks.

The best states for physicians in 2021: 5 states with the highest state tax collections per capita

When we think about everything that’s changed since early 2020 for primary-care and specialty physician practices, our minds might drift to the “clinical” issues. We might think about care gaps, which resulted from patients putting off wellness visits. Or we might consider the surge in telehealth, which helped 

more than half of all Medicare beneficiaries

 receive much-needed care during the pandemic.

Yet some the biggest changes and challenges providers have faced over the past year have been financial in nature. Most practices entered 2021 operating within razor-thin margins and needing an overhaul of revenue cycle management (RCM) strategies to ensure accurate and complete capture of all reimbursement opportunities.

The coronavirus pandemic introduced new billing codes and claim types to the healthcare industry, which led to disruptions to cashflow, and delayed payments. There were other shifts, too, as healthcare organizations adjusted to pandemic-based legislation, such as Coronavirus Aid, Relief, and Economic Security (CARES) Act, which called for emergency expansion of telehealth coverage.

Yet many physician practices are still running their RCM program like it’s 2019.

Trending: Best practices for switching to cloud-based documentation

Practices we work with have expressed fatigue and frustration over the trends that rocked operations and RCM in 2020. 

One issue at the top of the list: the growth of high deductible health plans, heftier out-of-pocket costs, and self-pay. As many as 

 said in a September survey conducted by the Healthcare Financial Management Association (HFMA) that they anticipated self-pay patients to grow, which would have a ripple effect on practices when patients receive unexpected bills for once-covered medical procedures.

This and other factors, including the increased strain of prior authorizations when COVID-19 peaked in the “first wave,” have also contributed to a rise in denials and big drops in other financial key performance indicators (KPIs), such as “Average Days in A/R.”

Meanwhile, national care trends that began in March 2020 have influenced 2021 payment woes.

When the pandemic arrived last spring, patients began putting off in-person wellness visits, elective procedures, and other non-urgent but wholly necessary medical encounters. Revenues, in turn, declined and made cashflow delays painful to bear. A recent 

 estimated a 2020 gross revenue loss in U.S. primary-care practices of $67,774 per full-time primary care physician.

As a result, practices have no choice but to become more proactive and adapt to industry norms, to ensure profitability and make up for lost revenue opportunities.

Now, here’s what hasn’t changed: physician practices have the ability to make key moves to ensure RCM runs like a well-oiled machine. While change is never easy, it’s not too late to improve billing efforts and maximize reimbursements.

Admittedly, it’s impossible to fix everything at once. But what practices can do right now is address four areas that will have the biggest impact on the bottom line and ensure they’re staying ahead of the curve amid shifting billing and payment dynamics.

The more practices can do on the front end, before a patient sees a physician, the less likely they will encounter problems on the back end. Eligibility checks— reaching out to the billing clearinghouse, checking on deductions and coverage, and so forth‑are probably the most important step. But rechecking eligibility is just as important as the initial check (e.g., to ensure a payer will cover X visits over a six-month interval). This is especially true in 2021, when job losses and health plans can change as quickly as an individual’s COVID or vaccine status. If a patient doesn’t get reauthorized, the doctor is doing their visit for free, and will have to write it off later.

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Patient-responsible balances were on the rise before the pandemic. And as expected, the number of self-pay patient patients grew as unemployment rose in 2020, but that didn’t mean that patients were prepared to pay out-of-pocket healthcare costs. In one pre-pandemic study, as many as 68% of consumers said they 

 to pay surprise medical bills of $500 or less.

In addition to checking and rechecking eligibility, practices need to be up front about the costs of their services and offer plenty of opportunities for pre-payment and financing health procedures.

Coverage fluctuated so frequently in 2020 that many common errors were missed. But as a Medical Group Management Association (MGMA) correspondent 

 in a recent op-ed, “Most practices find that 80% of their denials are a result of 20% of the problems.” In 2021, providers should pay closer attention to trends such as telehealth claims from a Medicare Advantage plan taking longer to get paid. Analytics platforms, which comb through claims data and identify codes and procedures associated with common denials, can help.

Considering we’re in the midst of a health crisis with economic repercussions, collecting unpaid balances and addressing debt will only become more difficult the longer we wait. Practices need to follow up on unpaid claims sooner rather than later and work out plans with patients that are fair and manageable. 

Keep in mind that additional training may be necessary to ensure administrative and billing teams are up to speed. Physician practices may consider connecting with a third-party RCM vendor partner to address issues such as common billing errors, if they’re struggling to meet KPI goals.

While many of changes and challenges in RCM may be hard to adjust to and accept, the more work practices put in now, the greater the financial rewards will be in the third and fourth quarters of 2021.

Many physician practices are still running their RCM program like it’s 2019. It’s time to get up to speed with the ‘new normal’ in claims and collections. 