David M. Rosenberg-Wohl

It can be difficult when you’ve tried to accommodate a member of your staff with psychological issues again and again, and then something happens and you feel that enough is enough. What do you do?

If you fire her, you’re looking at a discrimination lawsuit. If you don’t, you’re looking at an employee who is unproductive at best (with the accompanying challenges of fellow employee morale) and dangerously inattentive at worst.

Get help. You are already at the point of financial exposure. The question now is how best to minimize it. Let’s consider the two obvious possibilities.

First, the employee brings a claim against you for disability discrimination. Perhaps you will have told the employee upon termination that the reason is her psychological condition. You may need to, especially since, if you are like many employers, you will not have documented sufficiently the employee’s performance difficulties or your own goals for the employee. Providing her “help” with reassignments and relaxed requirements for this individual may come back to bite you, as those steps have shown to your employee (and quite possibly to a judge or jury) that you could easily “accommodate” his particular idiosyncrasies.

Second, you don’t fire the employee, and the employee makes an error with a patient that leads to the patient bringing a claim against you. That’s certainly a horror. Even that risk can lead most employers to err on the side of caution, as it were, and risk a lawsuit from the employee as opposed to one from a patient.

There is another possibility, though, which is both more conservative legally and more humane: medical leave and evaluation. Depending on your policy manual, the size of your practice and your state, different laws will apply regarding paid or unpaid medical leave. The point remains, though, medical leave provides time for an independent expert to evaluate your employee and help you do the right thing.

A consult by an independent medical examiner, a so-called “fitness for duty” evaluation in some jurisdictions, puts in a third party’s hands the comparison of the employee’s skills and challenges with the “essential functions” of the job he holds. This independent examiner can help you integrate the employee, whether temporarily or permanently, or provide objective support that the condition of your employee is simply not conducive to performing any part of the requirements of the job. There may be local legal requirements on how to do this, but it’s worth exploring.

You could suggest that the employee consult her own physician too. There is no reason to create unnecessary distance between the employee and your office. And with the appropriate medical consent obtained from your employee, you could integrate the employee’s physician’s observations and recommendations with that of your independent examiner.

The key here is to try to help, not discipline, your employee. It’s not that costly, it helps you legally, and it’s kind. All in all, it’s the right thing to do.

The above article is not to be taken as professional legal advice.

, A Professional Corporation. HRW specializes in representing physicians in all aspects of their business. Its attorneys have nearly 50 years of experience in matters of direct relevance to medical practice, principally (1) practice formation, partnership and employment relationships; (2) leases, billing and collection; (3) risk, liability and unfair competition; and (4) purchase and sale. David Rosenberg-Wohl is a graduate of Harvard University and Harvard Law School. Joseph Hershenson is a graduate of Harvard University and Stanford Law School. Both come from medical families. He can be reached at 

Articles

A member of your medical staff has potentially dangerous psychological issues. You don't want to be insensitive, what are your choices?

The Psychologically Impaired Staffer: Risks and Choices

If you know your patient, this article may not apply to you.

Ordinarily, your patient has selected you because you are on the health plan or insurance company’s panel. You are a “network” physician. You know what you will be paid because your fees have been negotiated with the payer, whose policy makes clear the patient’s share of deductible and co-payment.

But you may not know your patient. You may be a hospitalist. You may be an emergency surgeon. You may practice a surgical specialty that is of assistance to general surgeons. You may be a radiologist, anesthesiologist, or pathologist. Your world is becoming increasingly complex. Why? Because while you know the health plans and insurers with whom you contract, you don’t know if the patient you are seeing is covered.

If you don’t have a contract, you do not know what you will be paid, whether it is fair, and what portion you can seek from your patient. Here’s why:

Caveat: This article focuses on California law. The issues, however, are national. States address these problems in different ways, and national efforts are underway as well.

Emergency Care: “Reasonable and Customary” Payments and Balance Billing:

In California, as in many other states, emergency medical care is required without inquiry into a particular patient’s insurance status. Providers of this care are due compensation, but the question is how much? (Another question is whether care provided in relationship to emergency care, but not provided under the direction of the emergency care provider, comes under this system).

In California (and other states), this amount may not be either what you decide to bill (i.e., your gross billed charge) or what the insurer or health plan decides to pay. In the context of HMOs, for example, California has a system under which payers are permitted to pay less than the gross billed charge so long as it is a number developed under a methodology, submitted in confidence to the regulating agency, that takes certain factors into account -i.e., meets a definition of “reasonable and customary” payment - and the agency has not said "no." This may be challenged, both internally and in court. But you are restricted from billing the patient for the balance due.

Elective Care: “Surprise Billing,” compulsory contracted rates, and explicit consent:



These days, there has been quite a lot of press concerning the issue of “surprise billing” - which usually means billing received by patients from providers they do not know. Quite often, this happens where a patient plans an operation in a hospital or ASC and knows that the facility and even the provider doing the surgery are both covered under a plan or policy, but a non-insured provider is called in to assist. Or someone who provides ancillary services, such as radiology, anesthesiology and pathology, takes part in the patient's care.

If you provide care to a patient who has contracted coverage at the facility, but you don’t have contracted coverage for that patient, it is now the law in California that your payment will be determined as if you did have a contract. 

Payment here may be less than even a plan’s “reasonable and customary” determination for the emergency setting, because the requirements for payment are less. Payment is linked to either the average contracted commercial rate in the geographic area for the specialty or 125 percent of the Medicare fee for service rate. You will not know what the average contracted rate is because that submission is confidential. But given that provider rates can quite commonly be 400 percent Medicare, the limitation on payment here can be quite significant.

Here too, the determination is preliminary, in that it can be challenged, whether internally and in court. But the burden is on you to obtain greater payment.

There are challenges too with your patients. You cannot bill your patient or collect for any balance due. This applies even if your patient has conventional insurance and not, as with the emergency care situation discussed earlier, a health plan. If by chance your patient has coverage with the facility but not with you, there is also the possibility that you have collected too much from the patient and owe a refund.

Whether in California or elsewhere, the trend is toward not just limiting non-contracted care but doing so based upon Medicare - i.e., some multiplier of Medicare, as opposed to some discount of either gross billed charge or even contracted rate. And Medicare payments, as we all know, are not very likely to become more generous.

There are ways to preserve your reimbursement rate, but it depends on your state and on the nature and setting of the care you provide. But one thing is clear: the more that legislation dictates a downward cap based on Medicare, and the more than providers accede to this “preliminary” step, the more this becomes not just what is accepted but what is acceptable.

The above article is not to be taken as professional legal advice

 A Professional Corporation. HRW specializes in representing physicians in all aspects of their business. Its attorneys have nearly 50 years of experience in matters of direct relevance to medical practice, principally (1) practice formation, partnership and employment relationships; (2) leases, billing and collection; (3) risk, liability and unfair competition; and (4) purchase and sale. David Rosenberg-Wohl is a graduate of Harvard University and Harvard Law School. Joseph Hershenson is a graduate of Harvard University and Stanford Law School. Both come from medical families. He can be reached at 

If you aren't a patient isn't on your insurance panel, for whatever reason, how can you expect to be fairly paid?

Balance Billing and Surprise Billing: Developing Issues

What is arbitration and should I use it in my contracts?

Arbitration is an alternative to court, which is a public process. Arbitration involves the use of a private decision-maker selected by the parties. Increasingly, arbitrators are retired judges, but they are also lawyers experienced in the field. Two well-known organizations that provide arbitration are the AAA (the American Arbitration Association) and JAMS (Judicial Arbitration and Mediation Services). Most of the time, an arbitration clause in a contract will identify a particular organization from which an arbitrator is to be chosen.

Because arbitration is a private process, there are a few advantages. First, it is easier to keep the process and its results confidential than in a lawsuit. Second, it can be faster: the arbitrator is available in short order, whereas there are often long delays in court. Third, it can be cheaper. While there is a modest administrative fee and a significant hourly fee for the arbitrator, the time spent on the dispute with your own attorney is likely to be appreciably less than in court because of the arbitrator’s use of a simplified process of preparing for trial.

First of all, the arbitration agreement must be fair for it to be enforced. If it is not fair and you try to arbitrate a dispute, your opponent may be able to ask a court to disregard the agreement. Fairness has two component parts: substance (what is arbitrated) and procedure (how it is arbitrated).  If your agreement requires disputes against you to be arbitrated but allows you to bring a lawsuit, it is unlikely to be enforced. If your agreement says that no depositions can be taken by either side, it is also unlikely to survive court scrutiny. Some courts pay attention to details such as the prominence of the arbitration clause in the contract, the font size of the language, and the length of time someone has to review the contract before signing it. There are other issues as well.

Second, there is the issue of cost. While arbitration isoften cheaper than court, some courts require the party drafting the arbitration agreement to pay all costs of the arbitration.

Third, there is the real possibility the arbitrator will “split the difference." Arbitrators, like judges, are trained to determine who is right and who is wrong, but there are two differences. First, arbitrators are often mediators, who see the best resolution as a compromise. Second, arbitrators are paid for their work privately - there is a temptation not to fully alienate the losing party.

How to evaluate if it’s right for your practice?

There are many examples of arbitration agreements out there online and in practice manuals prepared by professional organizations. One size does not fit all.  Don’t make the decision without advice specific to your practice.  For example, you may wish to require non-binding mediation before arbitration can take place. It adds only a modest level of expense, but it may allow the parties breathing space to resolve their dispute before positions harden. And if arbitration may end up in a “split the difference” result, it is faster, cheaper and more “patient friendly” to get there by way of mediation.

If your organization is seeking to add arbitration clauses to its contracts and manuals, be sure to know the advantages and disadvantages first.

Is Arbitration an Option for a Practice's Contracts?

By some estimates, half of the cases in trial courts are employment disputes. If you have employees, more likely than not, you will fire an employee during the time that you practice. The loss of a job is not just financially disastrous, it is ego-shattering. When you have this much power, the possibility that you'll face a lawsuit for your decision should come as no surprise.

Many physicians treat employment as simply a human resources issue, something for someone else to handle. They rely on policies, even forms or checklists that come from professional associations. But people can tell when they're treated interchangeably, like objects - and they don't like it. And you can be sure they don't like being fired. When the gripe for unfair treatment meets a plaintiff's lawyer, or a friendly ear of an agency administrator, you're in for a fight.

Consider a matter in which a doctor had repeated conversations with an administrator about the administrator's need to take time off to care for a disabled child. From the perspective of both the physician and the administrator, all seemed to be clear: she needed to take time off and was going to get it. The problem came with the "legal" form the physician had in his files. It had boxes for "resign" and "terminate," but had no box for taking time off.

The administrator was furious. She thought the doctor had previously agreed to give her as much time as she needed to take care of her child and now the doctor was forcing her to quit. She sued for disability discrimination. The doctor then faced significant legal liability.

Was the "form" to blame? Yes and no, but mostly yes. The form allowed the doctor to believe he was acting reasonably, but he didn't take into account that his administrator could see things differently.

Forms and policies do not provide legal advice - lawyers do. Any time you take significant action, action that can lead to problems down the road, it's wise to consult a lawyer.

Only a lawyer can help you adjust the form you may have in your binder (or have found on the internet) to the specifics of your situation and minimize risk.

Physicians who solely rely on forms and checklists to terminate an employee are making a huge mistake, says this lawyer. 