Einiger & Associates

New York Healthcare Law

Category Archive for ‘Scott Einiger’

Are you an Authorized Provider?by Scott Einiger, Esq.

Are you an Authorized Provider of an Office Based Surgery Accredited Facility?

I Background
Private practices that perform office-based surgery (OBS) as defined by PHL § 230-d must be accredited by one of the DOH designated accrediting agencies. (Joint Commission, AAAASF or AAAHC)

Multiple aspects of practices seeking to provide office-based surgery are evaluated and surveyed as part of the accreditation process including, but not limited to: the legal structure of the practice; the education, training and licensure of physicians, podiatrists and other health care practitioners providing care to patients; policies, procedures and protocols used to guide selection and care of patients and operations of the practice; physical plant and equipment used in the care of patients, etc.

All office locations of the OBS practice must be accredited and any/all new locations where OBS will be performed must be accredited before any OBS procedures are performed.

Once a practice is accredited the question arises: what practitioners are permitted to utilize its space? For example may a practitioner who rents space at an accredited facility utilize its space to perform OBS procedures.

II Definition of covered OBS procedures
As set forth on the Department of Health Q and A section of its website:
Examples of procedures that fall under the OBS law include but are not limited to: upper endoscopy, colonoscopy, rhinoplasty, mammoplasty, lithotripsy or vascular access related procedures when accompanied by moderate or deep sedation, major upper or lower extremity nerve blocks, neuraxial or general anesthesia. Most procedures like botulinum toxin injections and minor integumentary procedures are performed with minimal or no sedation therefore can be performed in offices not requiring OBS accreditation. Generally, magnetic resonance imaging (MRI) procedures are not subject to this law. However, MRIs and other imaging studies that involve administration of intravenous contrast must be performed in an accredited OBS office if the patient involved receives moderate or deep sedation, major upper or lower extremity nerve blocks, neuraxial or general anesthesia.

PHL § 230-d indicates that OBS does not include minor procedures and procedures accompanied by minimal sedation. The statute defines minor procedures as: (i) procedures that can be performed with a minimum of discomfort where the likelihood of complications requiring hospitalization is minimal, and (ii) procedures performed with local or topical anesthesia; or (iii) liposuction with removal of less than 500 ml of fat under unsupplemented local anesthesia.

Presently PHL § 230-d onl applies to physicians, physician assistants and specialist assistants. As of February 17, 2014, the OBS law also applies to podiatrists privileged by the State Education Department to perform ankle surgery. This law does not apply to procedures performed by dentists, or podiatrists not performing ankle surgery or other health care professionals.

III. Who may Practice in an OBS setting
Only those practitioners who are “part of the practice”, as defined below, may perform procedures or provide anesthesia services in an accredited OBS office. Renting space in and of itself does not permit a licensed practitioner to otherwise perform OBS in an accredited facility.

Physicians or non-physician licensed health care practitioners may not perform OBS unless they are part of the practice or affiliated with the practice as employees of the OBS practice or working under a contractual arrangement with the OBS practice to perform procedural and/or sedation/anesthesia services, as applicable.
The contractual agreement must at a minimum spell out the terms of the affiliation between the accredited OBS practice and the affiliated physician or non-physician health care provider(s) and at a minimum require the following:

• Credentialing and privileging of all licensed independent practitioners (physicians, podiatrists, nurse practitioners, certified registered nurse anesthetists);
• Adherence to the accreditation related policies, procedures and protocols of the accredited practice including but not limited to patient rights, provision of care, infection control and record keeping;
• Participation in the quality management and performance improvement activities of the OBS practice, and;
• Reporting of adverse events identified in PHL § 230-d (See Q&A 23 above).
Physicians/licensed practitioners who are not part of or affiliated with an accredited OBS practice as set forth above may not perform procedures or provide anesthesia services in an accredited setting on their own behalf simply because they have entered into arrangements such as real estate leases that allow them to use space in an accredited OBS setting. The accrediting agency of the OBS practice must be made aware of all OBS practice affiliations and credentialed/privileged practitioners.

Failure to properly structure your Accredited facility contractual arrangements with other practitioners in accordance with the law may result in licensure investigations or civil actions that could result in catastrophic liability for both parties.

(1)Public Health Law (PHL) §§ 230-d defines Office-based Surgery as “any surgical or other invasive procedure*, requiring general anesthesia, moderate sedation, or deep sedation, and any liposuction procedure, where such surgical or other invasive procedure or liposuction is performed by a licensee** in a location other than a hospital, as such term is defined in article twenty-eight*** of this chapter, excluding minor procedures**** and procedures requiring minimal sedation

(2) Invasive procedures are: procedures performed for diagnostic or treatment purposes which involve puncture, penetration or incision of the skin, insertion of an instrument through the skin or a natural orifice, or insertion of foreign material other than medication into the body.

• Invasive procedures include, but are not limited to, the injection of contrast materials such as used for an MRI or CT scans when these imaging procedures are accompanied by moderate or deep sedation, major upper or lower extremity nerve blocks, neuraxial or general anesthesia

For New York Doctorsby Scott Einiger, Esq.

For New York Doctors

The NYCMS is dedicated to making it members’ practices more structurally sound and financially efficient, especially in these challenging times for physicians.

In an environment of decreasing reimbursements, increasing compliance and practice overhead costs, physicians need to employ best practices to reach higher levels of financial success. Not only is the NYCMS dedicated to this proposition, but this is the premise behind the new book For New York Doctors: A Guide to Asset Protection, Tax Reduction, Practice & Wealth Management.

The society is very excited to announce that NYCMS members have access to a free copy of For New York Doctors which is the only book of its kind written specifically for New York physicians.

To access the E-book: For New York Doctors, click here.

Identity Theft Preventionby Scott Einiger, Esq.

The Federal Trade Commission promulgated regulations which require financial institutions to develop and implement a written Identity Theft Prevention Program (by May 1, 2009) in order to detect, prevent and mitigate medical identity theft. The FTC has taken the position that health care providers (physicians, nursing homes, hospitals, etc.) are creditors if they bill patients following appointments rather than at the time of their appointments, and so takes the position that the new rule applies to them. The AMA and the American Academy of Family Physicians have written to the FTC seeking an exemption for physicians from the Identify Theft Program Rule but at this time it does not appear likely that the exclusion will be granted.
Medical identity theft can occur when someone uses a person’s identity, such as their name, insurance information or Social Security number, to obtain medical services or goods without the victim’s knowledge or consent. It also occurs when someone uses the person’s identity to obtain money by falsifying claims for medical services and falsifying medical records to support those claims.

Under the Government’s new regulations, the Identity Theft Prevention Program must include reasonable policies and procedures for detecting, preventing, and mitigating identity theft so as to enable the health care provider to:

  1. Identify relevant patterns, practices, and specific forms of activity that are “red flags” for possible identity theft;
  2. Detect red flags that have been incorporated into the Program;
  3. Respond appropriately to any red flags that are detected to prevent and mitigate identity theft; and
  4. Ensure that the Program is updated periodically to reflect changes in risks from identity theft.

Upon development, the Program must be formally authorized and adopted by the entity’s governing body or senior management, and such body or persons are required to provide ongoing administrative oversight of the Program’s implementation, which includes staff training and designation of an oversight employee, audit compliance, and the generation of annual assessment reports.
The new regulations are designed to give physician practices and other health care providers, the opportunity to design and implement a compliance program that is appropriate to their size and complexity, as well as the nature of their operations. Failure to comply could mean administrative penalties of up to $2,500 per violation.

Billing Disputes with Managed Care Organizationsby Scott Einiger, Esq.

Billing Disputes With Managed Care Organizations–How To Avoid Scrutiny

As most physicians know, governmental agencies have heightened scrutiny and emphasis on health care fraud and abuse. The Health Care Financing Administration (HCFA) has instructed Medicare carriers to focus their efforts on where there may be significant, potential abuse. Additionally, commercial “for profit” insurance carriers are actively seeking ways to contain costs and reduce payment to providers in this managed care environment.
Needless to say, these efforts surround services that insurance carriers may deem to be excessive, non-covered and/or medically unnecessary and the carrier accomplishes this task through utilization of claims data. Data obtained is analyzed and compared against both local and national claims data, looking for and identifying any possible patterns or aberrancies in terms of CPT codes submitted.

The insurance carriers review, typically look at the most commonly performed procedures for your practice and/or specialty based on the number of charges or number of services rendered. In an ongoing effort to focus and address compliance in your practice, it is recommended that a check be done regularly (e.g., monthly, semi monthly, quarterly, and/or annually) and compare the physicians utilization patterns, as well as the entire practice’s patterns against this local data.

By performing this exercise and monitoring, your practice, you will be in a better position to identify any areas that may possibly be viewed as potential aberrancies within the practice’s data. This can then prompt an investigation of these patterns further by comparing medical record documentation to determine if the services have been coded according to the documentation present.

Generally, the result of this activity prepares you to determine any necessary corrective action plans, which often result in increasing physician and staff awareness and education on coding and documentation as well as increased/implementation of quality assurance checks on any coding personnel.

Today, many multi-specialty groups have or are in the process of planning and/or implementing a comprehensive billing compliance plan as part of their overall corporate compliance initiatives. Typically, these types of billing compliance plans require that billing trends and patterns be reviewed regularly and that medical record documentation be assessed to determine and verify coding and documentation accuracy.

Once a carrier has determined that group or individual provider has an unusual billing pattern, an expanded investigation is warranted. Most carriers will then select a relatively small sample of claims at random from all claims submitted during a particular period. At that point, documentation will be requested from the physicians to determine whether or not the documentation supports the service to be billed. In these instances, the physician will be required to respond with any supporting and complete documentation typically within 45 days of the request.
( Special Note: In the event that you receive a request for refund from the carrier without any details supporting their request for refund, you should demand a specific accounting in writing of the patients and services involved in the carriers audit/refund request prior to undertaking any dialogue or settlement negotiation with the carrier.)
Many medical societies have peer review and ombudsman programs to assist you in reviewing your billing and coding practices with medical and billing experts to guide you along the way.

For those claims that are included in this payment review, a final determination should not be made until all documentation is received and reviewed.

The carrier should then contact you in writing within a reasonable amount of time to notify you of their final review determination. 1 If not provided, physicians should request a detailed breakdown of the points that the carrier still feels is owed.

In the event that the physician still feels that the carrier determination is still inappropriate, the physician should be aware of the appeals mechanism at the carrier and should avail themselves of a formal appeal.

If after the appeal, the physician feels that the determination is being made in bad faith, without rational criteria being applied, or as a harassing tactic, its is recommended that the Office of the Attorney General and the State Insurance Department be apprised in writing of the specifics issues under review.
Given all of the above criteria, one must ensure that all physicians are aware and understand not only the requirements but also the consequences of noncompliance.

There is a need to be proactive with education and monitoring of services now more than ever. If your physician group practice does not have a plan in place for conducting these activities, it is highly recommended that you revisit these issues and obtain support and authorization to do so.

Most carriers and regulatory arms of the federal government are targeting their efforts on compliance, audit, and recoupment with an emphasis o the following coding particulars:

• Medical necessity issues
• Allegations of procedures not being performed
• Incident To services
• Procedures purposely not covered under carrier policy (experimental or elective procedures)
• Coding accuracy of physician/patient encounters (Evaluation & Management)
• Utilization of modifier 25 (Medical care & procedure – same day)
• Correct Coding Initiatives (Bundling)
• Diagnosis code utilization by physicians and other providers
• Billing services

At a minimum, comprehensive risk management and compliance programs should include the following seven elements to avoid the untoward scrutiny of the insurance carriers that you participate with:

• the procurement and distribution of written policies and procedures that outline the carrier’s particulars for claims submissions, and applicable coverage policy and that address specific areas such as claims development and submission processes, code gaming, and that this information be distributed to key office personnel responsible for claims and billing procedures as well as the physician and other health care professionals providing services.
• the designation of a chief compliance officer (i.e. the Office or Billing Manager) charged with the responsibility of operating and monitoring the compliance program to insure that the individuals responsible will be adhering to standards of the carrier. (Note: There are different standards for each carrier so it is important that one staffer be assigned the critical task of monitoring the particulars of each plan).
• the development and implementation of regular, effective education and training programs to update all affected employees to the changing rules;
• the regular use of audits and/or other evaluation techniques to monitor compliance and assist in the reduction of identified problem areas on an ongoing basis; and
• the development of a system to respond to allegations of improper/illegal activitiesand the enforcement of appropriate disciplinary action against employees who have violated internal compliance policies, applicable statutes, regulations or federal health care program requirements;
• the investigation and remediation of identified systemic problems and the development of policies addressing the non-employment or retention of sanctioned individuals.
• the development of a system to respond to insurance carrier inquiries regarding allegations of improper claim submissions and/or requests for refunds (i.e. designating a formal contact person and notifying other employees not to discuss cases under review and not to address any inquiries from carrier personnel without proper clearance.
• the maintenance of a process, such as a hotline, to receive complaints, and the adoption of procedures to protect the anonymity of complainants and to protect whistleblowers from retaliation;

1 As of July 1999, New York State has created an external review process for patients and physicians to review certain adverse decisions by managed care plans by an independent review body.

Limiting Professional Liabilityby Scott Einiger, Esq.

Limiting Professional Liability in Third Party Examinations

By following a few simple rules physicians in New York who perform examinations at the request of a third party (such as an Insurance Company, Employer or Workers Compensation Board) can greatly reduce Professional Liability exposure to the individual examined. Such examination does not establish a “physician-patient relationship” within the meaning of the law (which is a necessary element to establish an action for medical malpractice).

The cases consistently hold that the examining physician in the above instances will not be held liable for a misdiagnosis or an erroneous report to the third party. Rather the physician will be responsible only if (s)he causes an actual physical injury to the individual during the examination; Twitchell v. MacKay, 78 A.D.2d 125, 434 N.Y.S.2d 516 (4th Dept. 1980); or if (s)he gives negligent (although not required) medical advice to the individual which would then create a physician-patient relationship;(Hickey v. Travelers Ins. Co, 158 A.D.2d 112, 558 N.Y.S.2d 554 (2nd Dept. 1990); or if (s)he discovers an illness or disease of which the examinee should be advised of, in good conscience, for his safety;McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d. 538 (1st Dept. 1992).
To demonstrate, in one case, a physician was retained to provide an expert opinion in a litigation before the Workers’ Compensation Board; to examine the plaintiff and then render a report concerning plaintiff’s degree of disability, if any. The physician submitted a written report that included his findings and his opinion that individual could return to work. The individual did not challenge the physician’s conclusion but instead sued him for failing to diagnose an existing (non apparent) brain-stem tumor which, plaintiff alleged, defendant should have discovered during the physical examination he conducted. The Appellate Division held that no malpractice claim could be maintained against the physician who examined the plaintiff at the request of the worker’s compensation carrier. LoDico v. Caputi, 129 A.D. 2d 361, 517 N.Y.S. 2d 640 (4th Dept. 1987).

Therefore, unless:
• the examining physician injured the person during the examination
• actually offered some medical advice or treatment to the individual that goes beyond the scope of the third party examination (thus acting as a physician with an expectation of treatment by the individual) and/or
• the examining physician actually discovers an illness or disease which the individual should be advised about to protect them from subsequent harm, the courts consistently find no physician-patient relationship (which then prevents a malpractice recovery).

A good practice for the examining physician to follow is to advise the individual both verbally and in writing that the examination is for a limited purpose, is not being undertaken to diagnose or treat their medical conditions (if any), that no physician/patient relationship is being created or intended, that they should see their own physician for their treatment needs and that ultimately the examination results will be forwarded to a third party (Employer, Insurance carrier, Workers Compensation Board etc.).

Since a physician can ultimately be responsible for unauthorized disclosure/ of medical information without the individuals authorization, a written consent form should be completed by the examinee authorizing the physician to release the medical information or report to the third party (See CPLR 4504), Tighe v. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d 99 (4th Dept. 1989).

New Law, New Liability, New Economicsby Scott Einiger, Esq.

Office-Based Surgery: New Law, New Liability, New Economics

The recent amendment of Subsection 48 to New York Education Law, Section 6530 and Section 230-d to the Public Health Law will likely have far ranging implications to physicians 1 who perform office-based surgery 2 The new law requires accreditation on or before July 18, 2009 for the physician seeking to perform office-based surgery (OBS) in his or her office. Additionally, practitioners must consider prior opinions from the Department of Health (DOH) governing corporate structure and the New York State self-referral laws (“mini-Stark”) to avoid potential violations of the corporate practice of medicine doctrine, illegal fee sharing and licensure requirements that could have repercussions to the physicians’ license and his or her livelihood. Finally there will be an enormous economic impact as the market shifts to embrace this new facility construct as cost containment is a central feature of the evolving health care delivery system.

While seemingly an unimportant decision, the designation of the name of the facility and the corporate structure is crucial to communicating clearly who you and your facility are, as the name of the OBS practice is how the practice will be known to the world. Therefore, providers need to be aware of certain prohibitions in the name which can automatically result in accusations by carriers of misrepresentation and may even lead to licensure issues with the DOH, as certain words specifically implicate that the OBS practice is an Article 28-licensed facilities and are hence “off limits”. Further disclosure of ownership of the new facility needs to be made under federal self referral laws (“Stark”) and mini-Stark to avoid violations of federal and New York State law.

Specifically, use of the words “center” or “clinic” in New York are prohibited as they are presumptive of an Article 28-licensed facility, and carriers will suggest that providers are fraudulently misleading them into paying licensed rather than accredited facilities. Under Section 600.8 of the New York Compilation of the Codes, Rules, and Regulations, “Criteria for determining the operation of diagnostic or treatment center under Article 28 of the Public Health Law”, the rule states that “It shall be prima facie evidence that a diagnostic or treatment center is being operated when any provider of medical health or health services describes itself to the public as a ‘center’ or ‘clinic’ ….” By this rule, “center” or “clinic” is strictly reserved for an Article 28-licensed facility. Thus, physicians should not use “center” or “clinic” for an OBS facility to prevent any confusion by carriers that might be seeking to use this technical violation as an opportunity to reclaim monies paid for professional or facility fee charges, or allegations by DOH of any misrepresentation by the OBS facility trying to mislead the public that it is an Article 28-licensed surgical center.

Additionally, prior to the new law’s implementation, the Department of Health had opined as to the nature of the entity which engages in office-based surgery. In a March 21, 2006 opinion, the DOH’s general counsel stated that the corporation designated for office-based surgery must be owned as a professional entity. As explained by the DOH, if a physician is sharing fees with a general business corporation, he or she might be viewed as engaging in illegal fee splitting with the lay entity (e.g. LLC or Inc). 4 While our firm continues to view the facility fee charge as a technical component, the DOH has made clear that the safest course of action for a provider is to form a professional entity.

In selecting a professional entity, the physician has the choice of a professional corporation (PC), a professional limited liability corporation (PLLC) and a limited liability partnership (LLP) 5 . It would be prudent for the physician to consult with an accountant before selecting a corporate form, as each professional entity has different tax consequences. Notably, each of the aforementioned corporate forms is approved by the Department of Education, which is responsible for the licensing and the regulation of licensed professionals.

The corporate form is also crucial since your professional corporation may employ nurses, physicians’ assistants, other physicians or health care professionals. In New York, under the corporate practice of medicine doctrine, only a professional entity may employ health care professionals. 6 As such, it would be a violation of the corporate practice of medicine doctrine for a lay entity to employ medical professionals. Moreover, the nurse or professional hired by the general corporation could also be guilty of professional misconduct for sharing fees with the corporation, which are criminal and licensure violations.

According to the Board of Regents, the unauthorized practice of medicine by a nurse would be a crime. Moreover, the facility and/or physician could be referred to the Attorney General’s office resulting in criminal implications and possibly referred to the Office of Professional Medical Conduct for licensure implications of the owner/practitioner. Therefore, the ramifications of failing to comply may be severe.

Failing to correctly structure the facility or selecting a name that is misrepresentative of the medical practice can also lead to problems with reimbursement or a recoupment demand by a managed care carrier. In a decision by the New York Court of Appeals in Mallela v. State Farm (“Mallela”) 7 providers were deeply impacted as the Court held that, at least in the no-fault insurance context, where a medical entity is intentionally fraudulently incorporated and where insurers show such “behaviortantamount to fraud”, insurers may recoup monies paid for services rendered. While the judicial guidelines are somewhat vague, it is clear that technical violations as to corporate structure are not sufficient for insurers to pursue recoupment attempts from providers. Noteworthy to providers, subsequent rulings have indicated that this pursuit of overpayment demands by carriers based on corporate structure may be expanded beyond the no-fault world and have import for private carriers. As such, corporate structure becomes crucial to avoid such Mallela-type issues and a carrier’s attempt to recoup reimbursement.

The proper corporate structure may be handled seamlessly with the right team in place to assist in this process. The physician should work with healthcare legal counsel and with an accreditation consulting company to assist them throughout the corporate structuring and accreditation process.

As a fully integrated healthcare firm, we have available a network of consultants willing and able to help you with the accreditation and corporate structure process. We would be more than happy to discuss any of the aforementioned or matters incident thereto. For accreditation consultation and billing, as well as accreditation questions, the firm has an affiliation with high quality consultants who can provide such information.

1 The new law applies to licensed individuals who are authorized to practice their profession underArticles one hundred thirty-one or one hundred thirty-one-B of the Education Law, which include any licensed physicians (i.e., an M.D., or D.O.) and licensed physician assistants and/or specialist assistants. Practitioners such as dentists, podiatrists or chiropractors are not covered under the office-based surgery law.
2 Office-based surgery is defined in the new law as any “surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation, and any liposuction procedure, where such surgical or other invasive procedure or liposuction is performed by a licensee in a location other than a hospital […] excluding minor procedures and procedures requiring minimal sedation.”
3 Please note that approval of any specific name requested by a provider is subject to the approval by the Department of Education.
4 Notably, the Department of Health stated in its March 21, 2006 opinion that “[a] physician who shares with a [general] business corporation a portion of an additional or enhanced fee for the physician’s costs to perform professional services in the physician’s office might be sharing fees in violation of Education Law § 6530(19).”
5 Please note a LLP is required to have at least two partners.
6 In a 1998 Report by the Board of Regents, Sections 6512 (stating it is a felony for an unlicensed person to practice medicine) and 6513 (stating the unauthorized practice of medicine is a crime) of the Education Law, “it is clear that business corporations cannot hire a licensee to provide professional services because the law neither authorizes such action nor provides an exemption.” Indeed, as highlighted by the Board of Regents, the corporate practice of medicine doctrine “serves to protect the public from a business relationship that could place constraints upon professional judgment, unduly limit professional practice, invade the professional integrity of the professional, or permit the business to make professional decisions.”
7 After many lower court decisions and appeals, Mallela (known as “Mallela III”) was ultimately decided by the United States Court of Appeals for the Second Circuit. 4 N.Y.3d 313 (NY, 2005).

Advice for Young Physiciansby Scott Einiger, Esq.

Physician Employment Agreements: General Advice for Young Physicians

As a young physician going into private practice, one of the first and most important decisions you will make is selecting a professional affiliation with another physician, group practice or hospital. This decision will have far-reaching effects and may likely shape the course of your professional career. It should not be undertaken lightly.

In deciding which employment offer to accept, meeting with your prospective employer, visiting his/her office and speaking with other employees of the Practice is critical in gaining a comfort level with the Practice philosophy and with the professional work environment. An equally important reflection of the Practice to be considered is the employment agreement presented by the employer. This document will govern the relationship between the parties and should incorporate all verbal representations to ensure that each party understands what benefits (s)he is entitled to and what duties each party is required to perform.

Most employment agreements to some degree contain many similar clauses. However, in order to ensure that your agreement incorporates all of the issues that you have discussed with the prospective employer, it is imperative that the document be reviewed carefully with your attorney to better understand what your primary objectives are, what you are seeking to accomplish and what promises have been made (e.g. of the employment agreements presented what is your geographic preference, what salary range are you seeking, what benefits are most important to you, how soon do you expect to become partner, etc.).

While there are many similarities in general provisions of employment agreements, careful analysis of the specific provisions is critical in ensuring that the agreement meets the expectations and verbal promises that have been made. For example, in most employment agreements the employer agrees to pay for the malpractice insurance of the employee during employment. Knowing whether this insurance coverage is claims made or occurrence coverage, is critical for the young physician who ultimately may leave the Practice, move out of State or no longer practice medicine. If the malpractice coverage provided to the employee was claims made coverage in some instances “tail” insurance is required to keep the policy in effect for prior acts after the employment terminates which can be very expensive to the party responsible. Clarifying what type of malpractice insurance is being offered and who pays for the tail coverage (if applicable) is critical. (See Frederick v Clark et al 150 AD 2d 981)

Some of the other pertinent clauses of an employment agreement include the length of the agreement; duties to be performed; whether it is an exclusive employment; what your compensation consists of (annual salary, bonus (objective v. subjective), benefits); when partnership will be offered and what the buy-in will be; the covenant not to compete (to be enforceable, it must be reasonable as to duration and geographic area); as discussed above the type of malpractice insurance offered (claims made v. occurrence policies); termination provisions (for cause); and severance pay.

Paying careful attention to the contract details will ensure that you achieve the terms you desire.

Are You Structured for Office Based Surgery?by Scott Einiger, Esq.

The ability to perform office-based surgery is extremely valuable, not only from a financial standpoint, but from a patient care standpoint as well. By cutting the hospital out of the equation, money is saved by the patient, by the doctor and even by the insurance company. Perhaps more importantly, it allows the patient to be monitored more closely by the doctor.

In the past, the primary method of being authorized to perform office-based surgery was certification as an ambulatory surgical center (ASC). These certifications are available in limited quantities and are a challenge to obtain. Now, the law allows a new option: accreditation for office-based surgery.

At the law firm of Einiger & Associates, health law attorneys know how to work quickly to help medical practices become authorized to perform office-based surgery.

Structuring Medical Practices for Office-Based Surgery
A medical practice cannot simply request to be accredited to perform office-based surgery. There are regulatory compliance issues that must be addressed first, regulatory compliance issues that require a specific corporate structure.

Our attorneys can assist in structuring medical practices appropriately in order to obtain certification to perform office-based surgery, while avoiding liability related to Stark and anti-kickback laws, as well as other regulations.

Becoming Accredited to Perform Office-Based Surgery
Becoming accredited to perform office-based surgery can take a significant amount of time. Our experience means that we know how to maneuver through the process in an efficient manner.

Our lawyers will work with the appropriate accrediting bodies to demonstrate that our clients have the knowledge and the equipment to perform office based surgery.

Asset Protectionby Scott Einiger, Esq.

Asset Protection-It’s all about the PLAN

If you would like more information about this topic or any other topic contact Scott Einiger

Fear of litigation and rising verdicts is cause for concern for any individual interested in protecting substantial business or personal assets. Physicians and dentists are certainly two groups targeted for litigation because of the large damage potential if a mal-occurrence should arise during treatment. As well, physicians and dentists remain personally liable for their professional negligence even if they incorporate their professional practice.
The risk of personal financial exposure for any business such as physicians or dentists is relatively small for risks that are carefully assessed and planned for. Medical or Dental Malpractice almost never causes asset depletion (as most practitioners have obtained adequate malpractice and excess insurance coverage to limit their personal exposure). Unforeseen and non protected exposures are much more likely to result in large out of pocket expenditures that can cause the greatest financial loss. Planning is Key!

Physicians and Dentists can expend substantial defense costs related to matters where no insurance coverage has been obtained. Areas including work related employment disputes, licensure investigations and insurance carrier refund demands are a few examples of areas that have resulted in large out of pocket expenditures for our professional business owners.

Last year in New York there were approximately 6000 licensure investigations brought against physicians many of whom did not have adequate insurance to cover the cost of the investigation. In the event that you are targeted and go through the full investigatory process, (including a licensure hearing), a licensee could literally spend hundreds of thousands of dollars in legal costs to defend against such charges that could affect their professional license. As well, most providers do not have insurance coverage to defend against claims made by commercial insurance carriers who seek refunds relating to coding disputes for medical services rendered. Refunds sought can go back six years and can accrue into hundreds of thousands of dollars as carriers allege the same mistake was made over and over through extrapolation. In both of these areas, clients may expend a significant portion of their savings simply because they didn’t anticipate such liability potential and purchase the requisite insurance.
That’s why a well thought out and comprehensive approach (PLANTM) to asset protection not solely limited to malpractice is critical. Professionals who wait until they are in the midst of litigation to implement an asset protection plan have lost valuable strategies that would have otherwise protected their assets.

PLAN — The P (Proactive Planning)
Being Proactive and implementing a PLAN before trouble is on the horizon is the first step to implementing an enforceable asset protection strategy. There are two primary reasons. First, the civil courts in New York have the power to set aside what is known as a fraudulent conveyance (i.e. where a transfer of assets made by a defendant or debtor occurs with the intent to subvert the plaintiff or creditor from collecting what is due). “Under fraudulent conveyance provisions of New York’s debtor and creditor law, a creditor is permitted to trace the transferor’s transactions over a period of 6 years”. In re All American Petroleum Corp., 259 B.R. 6 (2001). In this case, a Chapter 7 trustee moved the court to set aside, as alleged fraudulent conveyances, the transfer of a customer list which was made by the debtor’s president and sole shareholder to seize for himself the benefits of this list.
Reactive individuals who wait to attempt to implement an asset protection strategy when the issue has already arisen will likely be frustrated in their attempts to insulate the transferred assets since the courts can void such transfers.

Second, if a person is sued or is about to be sued and attempts to purchase insurance coverage, the insurance carrier will likely disclaim any such responsibility to cover that event (as a preexisting condition).
So being Proactive (PLAN'” well in advance of trouble) is critical first step to proper implementation of an effective asset protection strategy. Often times, clients spend so much time growing their businesses and net worth, they lose sight of the need to protect their growing assets. Starting early provides time to create a strategy to insulate assets from creditors.

PLAN – The L (Less/Liability)
Protecting against Loss requires anticipating the most likely Liability exposures that an individual or business may be prone to. It can involve a business asset and/or personal liability exposure that has grave consequences. As an example, an automobile accident can be devastating financially whether the accident occurred during business hours or occurred on the weekend at a family outing if not adequately anticipated. Either of which can cause grave financial hardship to the individual and his/her family if proper insurance and planning was not in place.
In assessing a person’s liability loss potential one must give thought to both the personal as well as the business exposures. Evaluating the individual’s totality of assets accrued in personal and business, as well as how those assets are currently being held is therefore critical. So the L in PLANTM stands for Liability Loss potential. Assessing an individual’s assets is the critical next step to create the strategies needed to properly protect against Loss and potential Liability.

PLAN – The A (Asset Assessment)
The asset protection strategies an individual can implement range from common sense simple solutions (putting assets in separate corporations) to implementation of the most sophisticated and expensive strategies (off shore trusts).

Asset Assessment is key in implementing strategies that are practical and always will depend on the individual’s goals and evaluating the Assets involved. Knowing the client and where they are in there career stage is critical to implementing a cost effective practical asset protection strategy solution. Doing an assessment of assets acquired and by a general knowledge of your states rules about what assets can be legitimately insulated and what other states provide with regard to asset protection is important for anyone interested in creating a comprehensive approach to asset protection. As an example, a primary residence in New York receives a $10,000 exemption of value from creditors whereas a domicile in Florida would receive unlimited protection from a creditor attaching that asset. However a New York resident if marred and holding the real estate in a joint tenancy with their spouse can prevent a creditor from attaching that asset until sale.

PLAN – The N (Nothing)
Business owners and individuals who have acquired substantial assets typically spend a great deal of time acquiring these assets and very little time planning how to protect them… sometimes until it’s too late. In order to effectively create an asset protection strategy that will insulate your growing assets being proactive, understanding the liability potential and assessing your particular assets is critical to avoid devastating loss that can result in your being left with nothing.

Grow Your Business without Endangering Your Licenseby Scott Einiger, Esq.

Marketing Your Practice through the Internet: Grow Your Business without Endangering Your License

If you would like more information about this topic or any other topic contact Scott Einiger.

I. Introduction
The advent of the internet has led to enticing advertising and communication prospects. Through this forum the medical community has access to an unlimited patient market that reaches out across the globe. Persons with professional licenses, however, need to be wary of the potential liability faced when marketing a medical practice across state lines. While utilizing this medium has a huge potential upside, the myriad of laws, both state and federal, create liability exposure that can implicate civil, licensure and even criminal laws.

Physicians have strict rules governing their advertising, both ethical and legal that can gravely impact their livelihood. This article addresses examples of real life landmines which lead to scrutiny of the unwary physician.

II. The Unauthorized Practice of Medicine
One of the major benefits of the internet is also one of its biggest detriments: the internet has no boundaries. A physician in New York can attract business anywhere in the world by placing information about themselves or their practice on a website. Problems arise when the information being placed on the internet crosses the boundaries from mere promotional or educational material to the “practice” of medicine in a state where the professional is unlicensed.

As each state requires the formal application and payment of a licensure fee by a physician to practice medicine in that state, and it is a rare occurrence that a physician placing information on the internet is licensed in every state, physicians must avoid “practicing” on the internet. Placing content on the internet, including offering diagnoses or treatment information to out of state “patients”, may constitute “practicing across state lines without a license, which can give rise to potential liability that could affect your professional license or perhaps violate a criminal statute. As an example, the unauthorized practice of medicine in NY State is a violation of civil, licensure and criminal law.

Each state draws its own line through statute or case law as to what constitutes treatment and/or services rendered on the Internet. Clear disclaimers (i.e., this site provides educational information only and is not intended to create a physician patient relationship) are recommended to our clients to limit the information to be used as general information.

The potential for unauthorized “practice” which could negatively impact ones license is not the only concern for physicians promoting their practice on the internet.

III. Advertising or Soliciting on the Internet
Issues with advertising or soliciting on the internet will be more prevalent than advertisements in other forms of media which are more short lived; the internet not only has a broad reach to a broader audience, but the message is available 24/7 to anyone, anywhere, at anytime to access the physicians message, be they competitor or patient. As such, what makes the internet such an attractive forum also makes it a liability trap if used inappropriately.
In New York, Education Law § 6530(27) establishes guidelines that control improper advertising or soliciting in any forum. Areas covered that may cause problems pertinent to advertising or soliciting on the internet are as follows:

a. Advertising that is false, fraudulent, deceptive, misleading, sensational, or flamboyant
As a proactive measure, any claims purported as true, such as positive treatment results, must be substantiated. Failing to substantiate claims will likely lead to a slue of liability for claims, such as, having “perfect results”, or offering treatment that “does not cause any pain”. Further, many physicians proffer themselves as “the top of the field”, or “world-renowned”, but to do so, means you must have the substantiating data to support your claims.

As an example of recent case law on the matter, a physician was convicted of deceptive advertising when he stated in a newspaper advertisement that he was “subspecialty trained in allergy, immunology, and rheumatology – children and adults.” Saunders v. Administrative Review Board for Professional Medical Conduct, 265 A.D. 2d. 695 (Dept. 3, 1999). The petitioner never completed the training in these specialties and further, did not retain hospital privileges in these specified areas. Id. The advertising was misleading “insofar as it implied that petitioner has the expertise to practice in specialty areas which he, in fact, does not possess.” Id. As such, the Third Department concluded that the finding in a disciplinary proceeding that the doctor engaged in deceptive advertising did not “lack…a rational basis in fact.” Id.

A health care provider must be careful in how he words advertisements. A dentist had a newspaper advertisement that stated the following: “When you buy one set of custom dentures at our incredible low price of $169, you get another set absolutely free.” Dubrowsky v. Ambach, 88 A.D.2d 1004, (Dept. 3, 1982). The dentist did not intend to give the patient a free bottom denture with the purchase of a top denture. Id. He merely would copy the denture that the patient was paying for, i.e. if the patient paid for a top denture then the dentist would give the patient another top denture free of cost. The State Board of Dentistry found that this advertising had been misleading. Id.
By contrast, a dentist was not convicted of false and misleading advertising when the information contained in the advertising was up for scientific debate. Callahan v. SUNY, 129 A.D,2d. 241 (Dept. 3, 1987). The court also said that “the capacity of advertising to mislead is judged by the entire context.” Id. The court declined to intervene in a “purely professional dispute concerning the effectiveness of two accepted methods of treatment.” Id.

b. Use of Testimonials
The use of testimonials has always been a popular method of conveying to the public positive results seen in practices, however, many physicians are unaware that under Education Law § 6530(27)testimonials are not allowed in physician advertising. While the statute does not define testimonials, the definition of a testimonial in the Merriam-Webster dictionary is expansive and may include: (1) a statement testifying to benefits received; (2) a character reference; or (3) a letter of recommendation. Further, through our communication with the Office of Professional Medical Conduct (“OPMC”), their position is that they read the education law as a literal definition of the statute, which states that “Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that: (iii) uses testimonials.”

Therefore, although physicians oftentimes may use testimonials on their websites, advertisements or other statements in their notices to the public, according to the enforcement agencies this could be the source of investigations involving licensure actions in the future. Unless the statute is amended or a definition limiting what testimonials are off limits (i.e., guarantees, etc.) testimonials are an improper means of promoting ones practice, which seems to fly in the face of the current trend, but nevertheless is prohibited under New York Law. As such, if you are currently using testimonials in advertisements or your website or are planning to do so in the future, we recommend you reconsider until this area of exposure is further clarified.

c. Guarantees of Service
Education Law § 6530(27), will feature potential liability for problems associated with guarantees of service. In many physician websites already up and running, doctors are publishing statements that may be interpreted as guarantees of service.

Guarantees of service may include the guarantee of end results, the guarantee of recovery time, and the guaranty of price and so on. It is unclear how/if the term “guarantee of service” will be interpreted. It is clear, however, that no matter how it is interpreted, physicians must be wary of the claims made on their websites.

d. Claims Relating to Products and Prices
As with services, physicians must be careful when marketing products online. Without properly substantiating claims concerning projected product results, physicians face a mountain of potential liability. Unlike other industries that may or may not be held liable for such claims, as such a highly regulated profession, medicine is held to a higher standard. Doctors cannot simply think just because other professions can sell products on ebay or make claims of success rates on personal websites it is alright for them to do so as well. All claims in physician advertisements MUST be substantiated.

e. Claims of Professional Superiority
If you are advertising on a website, any claims of professional superiority should be substantiated by your license. If you are not an anesthesiologist, but have one on staff it is imperative that such information is evident on your website.

f. Offers, Bonuses or Inducements
An offer, bonus or inducement in any form other than a discount or reduction in an established fee or price for a professional service or product may lead to potential liability. When trying to market towards the public, and attempting to bring in business by lowering product prices, or even treatment/service prices, physicians must be careful not to incentivize in an inappropriate way.

IV. Communication Via Internet
Using the internet as a means of communication with patients may result in liability by your office for breach of confidentiality if forwarded to unauthorized person. While email can be a valid, convenient, and inexpensive mechanism for communication with patients, at issue are privacy, confidentiality and security, which must be addressed to ensure the efficacy and effectiveness of email.

Currently, the Health Insurance Portability and Accountability Act (HIPAA) privacy and security regulations apply to email communications that contain a patient’s protected health information (PHI), as defined in HIPAA privacy regulations. [1] HIPAA requires encryption of messages when sending PHI over the Internet. [2] Therefore, if your practice is using a third party to manage your email system, HIPAA privacy regulations require a written business associate agreement with the service provider. Also, HIPAA requires physician office networks to have appropriate protection (firewalls and physical security) to prevent unauthorized individuals from gaining access to clinical email or medical records, and to have appropriate safeguards to prevent the loss or unauthorized access to or distribution of PHI. Moreover, as a practical concern, it is virtually impossible to ensure your patient is the one receiving properly sent messages; anyone could be on the receiving end, capable of viewing confidential information, which is why safeguards must be in place.

V. Conclusion
The aforementioned issues are by no means an exhaustive list of areas that present potential liability risks when utilizing the internet for personal or professional gain as a physician. These are but a few samples of real life issues that have arisen in our representation of clients involved in licensure proceedings and reported cases. The truth of the matter is, as an emerging area, the internet is still categorized as a vastly unknown quantity. The potential for advertising and communication for physicians is just beginning to be seen: pro and con. The coming years promise an enormous increase in both Telemedicine (mainly for hospitals and the government) and Telehealth (mainly for individual providers, currently being used predominantly for monitoring).

As such, please allow the information in this article to serve as a general alert when working with your marketing team to take into account your legal responsibilities to avoid additional cost and liability.
[1] 45 CFR § 160, 164
[2] Id.

Copyright © 2014 — EEMDLAW