Top 4 burning questions doctors ask health care attorneys

Being a transactional lawyer for physicians is never dull because the more the regulations, guidance, and laws change, the more questions everyone has. But it’s more than just getting an answer to a question and being in compliance. Doctors are feeling overly worn down and out of control, and the risks that face their practice are real. It contributes to burnout and apathy, as it’s hard enough to keep track of the changing landscape of clinical medicine. Now you have to become a financial, employment, and legal whiz? It’s a lot.

So as a health care attorney who has been doing this for over twenty years, I wanted to give you the top four questions that I hear and how I can help you in these areas.

The first and largest area has to do with contract negotiations. Do I really have any room to negotiate this agreement? Can I get out of the non-compete and other onerous terms? Am I just a pawn in the system, or do I have actual leverage?

My answer to this is simple: You absolutely have room to negotiate. But you have to find your leverage. Always think like your employer and try to find a way to set yourself apart from your peers and use that leverage to your advantage. And remember – some things have specific state law rules (like non-competes) so get an attorney to review it before you sign. Once the ink dries and you’ve signed the agreement, there is no going back. But please, whatever you do, make sure there is a back door to the agreement without a lot of strings attached. You need to be able to walk away from any job with a certain notice period.

The second area I get asked about all the time is how, with all the regulations, a doctor can feel secure in the world of compliance. I get it – between billing and coding, privacy laws, and Medicare regulations – it’s a lot to keep up with. My biggest advice is to form a compliance plan. It’s required by the Affordable Care Act (ACA), but a lot of doctors still lack a solid compliance plan. Make sure it contains the seven required elements by the Office of Inspector General, and actually use it! Encourage your staff to report issues as they see them rather than being scared they will get in trouble. Assign the duties of compliance to a staff member and provide them the resources to keep track of moving targets and at least issue spot red flags you can track down. Education is key.

Next, I am always asked about employment law issues. Educate yourself on whether you should hire key staff as a contractor vs. an employee, and have a basic employment manual that outlines the rules of your practice. Don’t let employee problems fester and grow thinking they will work themselves out. Listen to your staff and if there is an issue, see if you can resolve it early and quickly before it escalates out of control. And make sure you have a non-retaliation policy so that if someone reports something in good faith, he or she won’t be punished. And think through whether you want someone to be an at-will employee where they can be let go at any time and whether you want them to be bound by an employment agreement.

Despite this law being around for over two decades, I get HIPAA questions daily. Yes, people are still confused about what records can be released and to whom. What about if someone dies? What about mental health notes? This is really an area where it helps to have a quick call with your attorney. But the basics can be done within the walls of your practice. Instead of subscribing to an online (and often boring) training your staff will likely not retain, invite a solid speaker to come in every few years, and really train on this subject in a way they will remember. And remember – it’s not just privacy that’s an issue, but security risks that are important to recognize. Are you performing solid security audits? Do you even know if your data is appropriately backed up in case of a cyber attack? Watch the sharing of protected health information over phones, general unprotected email, and text messages.

Health care is full of complexity, and it often takes a team of people to help you navigate the waters. But you’re likely to ask your lawyer fewer questions by understanding you have a voice in contract negotiations, developing a compliance plan, thinking through your employee relationships, and brushing up on HIPAA. And that will, in the end, save you money and allow you to focus more on treating patients.

Amanda Hill is a health care attorney.

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