Top questions doctors ask health care attorneys [PODCAST]

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“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.”

Amanda Hill is a health care attorney.

She shares her story and discusses her KevinMD article, “Top 4 burning questions doctors ask health care attorneys.”

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Transcript

Kevin Pho: Hi, and welcome to the show. We share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at kevinmd.com/rate. Subscribe at kevinmd.com/podcast. Today we welcome back on the show Amanda Hill. She’s a health care attorney, and we’re going to talk about her KevinMD article, “Top 4 burning questions doctors ask health care attorneys.” Amanda, welcome back to the show.

Amanda Hill: Thank you. Exciting to be here.

Kevin Pho: So we’ll get into the article in a little bit. First off, for those who didn’t get a chance to listen to our first episode, briefly share your story and journey to where you are today.

Amanda Hill: Sure. I’m a health care attorney in Austin, and all I do is work for physicians. I absolutely adore trying to help doctors work through problems. In fact, I just started a company where I have 15-minute videos for doctors, because I realize that I can’t help enough people just doing one-on-one attorney-client issues. So that’s why I’m here. I really want to try to help demystify hard things for doctors.

Kevin Pho: What would be the top three problems doctors come to you for?

Amanda Hill: First and foremost, I’d probably say contracts. I review a lot of contracts. I feel like I can write contracts in my sleep. One of the things I hear is, “Is there any negotiation room? Is there anything I can do?” I feel like a lot of systems, especially hospital systems, are telling doctors, “There’s no negotiating. You just sign it. You DocuSign it.” I disagree, because it changes all the time, and it’s always about leverage. So I always talk to my docs about, “What leverage do you have?” Because trust me, they want you. They will move. And you don’t want to sign an agreement that’s unreasonable. So contract negotiation is probably one of the biggest things I do.

Second, I would probably say a compliance issue that got out of control, right? Doctors always say, “Oh, I don’t really have any issues with compliance,” or “I have a person that takes care of that,” or “I don’t sign bad deals, so I don’t have any problems.” And they have no idea what they may be in trouble for until it hits them, and they come to me freaking out, and they say, “Oh my gosh, now I’ve gotten this auditor. They’re sending me a letter,” or “I’m in trouble because of a billing issue, and I didn’t know I was doing anything wrong.” And then it becomes a huge crisis. So fraud and abuse slash compliance is probably a really big area.

And lastly, if you’re picking the top three, I would probably say an employment law issue. I think doctors forget sometimes that they’re running a business with people, and anytime you’re dealing with human beings, you’re going to have some tension and some stress. You need to know: Are you classifying them correctly? What do you do when they file an employment discrimination case? How do you deal with labor and employment issues as they pop up? Because a lot of times, doctors just say, “I want them gone. I’ll fire them. I don’t have time for this. I’m running a medical practice,” like somehow they’re immune from having interpersonal conflict with their staff. So that comes up a lot, and I have to walk them through it: “Let’s go step by step. Let’s see if we can solve this problem before it escalates.” So those are three hot-button issues that I deal with every day.

Kevin Pho: We’ll get into the article in a little bit, but I do want to ask one question. Of all the contracts where the employer said there’s no negotiating room, what percentage of those contracts have you negotiated something in favor of the physician?

Amanda Hill: Almost 80 to 90 percent, I’d say, get changes. And I don’t want to be bragging, but it’s not always every change, right? They may say to me, “Amanda, I absolutely cannot budge on this one issue, because we’ve established as a system we cannot change that provision.” But there might be three other really important things that they will budge on. I have changed hospital contracts left and right, and so it depends on how much they need this doctor. If I’m like, “Look, you have a female interventional cardiologist that you have been looking for for years. Here is the most phenomenal doctor we’re putting in front of you. But she’s not going to sign a contract without an exit clause. She’s not going to sign a contract that has the MGMA value of 25. The salary is not acceptable. You’re not giving her a bonus, and there’s no way out of this contract. She’s not going to give you eight months’ notice before she leaves. So we will be changing these, or you won’t get this great hire.” Trust me, they listen.

Kevin Pho: All right, let’s talk more about that KevinMD article, titled “Top 4 burning questions doctors ask health care attorneys.” Now, for those who didn’t get a chance to read your article, why don’t we go into those questions?

Amanda Hill: As I was saying, I tried to summarize what I hear most often. Contracts are always at the top, and typically it has something to do with the non-compete. Is there any movement? Or sometimes they’ve already signed the contract, and they come to me and they say, “Did I mess up? How do I know what I signed is market or appropriate?” So it’s always a good idea to have a health lawyer, not a regular business lawyer who might not understand the nuances. Get a good health lawyer in your state to review your contract. A lot of times, health lawyers know what this hospital system will budge on and what they want, and they can help you negotiate in that realm. I had a doctor in Colorado. She wasn’t my client, but I helped her find a lawyer in that state who had already negotiated against her employer like three different times, so he knew what they would budge on. And that’s really important.

When you’re dealing with employment contracts, it’s always a good idea to pick your battles. I don’t want to get too much into it, but doctors want to just add all the changes, right? They want to edit the whole thing. They don’t like this word or this section. Pick what’s most important and fight for those things. You’re going to have more luck if you narrow it down and stick with what’s really important.

Kevin Pho: All right, what’s the second area, or the second most common question that you get?

Amanda Hill: You know, a lot of times when doctors call me, and what I found over the years, is doctors are not great with compliance, because it seems like there’s no return on investment. It’s a bunch of gobbledygook, right? They don’t think they’re doing anything wrong, so, “Why would I waste the energy or money on having a compliance plan?” And yes, you can hire a lawyer at an expensive hourly rate to get you out of a jam, but how do you know what you don’t know? So I always encourage doctors, after we solve that immediate crisis, you have to form a compliance plan in your practice. You have to be able to identify problems before they get out of control.

That’s something I deal with all the time. I have a new client, and I’ll say, “Tell me more about this relationship you have with the lab company, or this ownership interest that you have that you tell me is perfectly fine, and all your buddies are also investing.” But it looks like it may be a disguised referral pattern, and that might be an anti-kickback problem, and they don’t know. So it’s really important, just for a takeaway, if you are signing any contract with someone where money flows and you’re in health care, to get it reviewed to make sure there’s not a fraud and abuse problem, and to have a compliance plan in your clinic or system. That’s really valuable, so you can have people alert you to problems.

Kevin Pho: So give us a story or an example of a typical jam a clinician or physician has found himself or herself in that required your services to get out of.

Amanda Hill: Sure. I had this one client who called, a brand-new client. I had never represented them before, but they had heard that I might be able to help. They told me that they had a meeting with a vendor who had this iPad with certain questions on it. This is a neurology practice, right? So they deal a lot with brain health, with possible dementia, Alzheimer’s, brain issues. The vendor had convinced my client that if you give the iPads to the patients in the waiting room and they fill out a survey, there’s a CPT code for that, and you can bill for it. It’s sort of a mental acuity test that’s now billable, and you can bill Medicare or commercial payers, and here’s the CPT code. And they attached a letter from a former auditor that used to work for the Office of Inspector General saying this was perfectly reasonable. They also included a letter from their lawyer which said, “I’ve already vetted this, and there are no fraud and abuse concerns.”

Now, that should have been a red flag, right? Nobody should have the lawyer letter right off the bat saying this is fine, any of it. My client signed up, and they got the iPads, and they had their patients fill out these mental acuity tests, and they billed and they collected. And then a year later, they realized it was all a scam. There was no CPT code for that. That was a forged letter that wasn’t correct. The letter from the lawyer was cut and pasted from some other issue. It was a nightmare, and we had to refund all the money that they had made from this. They learned a valuable lesson to not believe people who come into their clinic and say this is perfectly reasonable. So that was a good example of having to clean up that mess. And then we said, “OK, from now on, we’re going to have a strong compliance program.” Have your lawyer vet these documents, because you cannot trust a lawyer that does not work for you.

Kevin Pho: All right, let’s move on to the third question that you typically get asked by physicians.

Amanda Hill: A lot of times, doctors forget that they, “But somebody takes care of that,” or “I don’t know why we’re having all these employment problems. This is a medical clinic,” like somehow medical clinics are immune from normal workplace issues. So I get a lot of questions about, “What do I do about this employee issue? It’s freaking me out. Can I just fire everyone?” or “Why do I have to care whether they’re a contractor or an employee? That shouldn’t matter.” And it does matter. So I get a ton of questions about employment law issues every day, because doctors don’t understand that they’re running a business, and you’re going to have employment issues. You need to classify people correctly. You need to be watching people working off the clock.

I had a medical practice where a nurse was working off the clock for a year, and they thought she was just being really diligent and really working hard. And then at the end of the year, she turns in a spreadsheet, well, actually a spiral notebook, with all these hours, and she went to the Workforce Commission and said that my client had no policy, they never told her not to, and, “Oh, by the way, you owe me all this money.” You have to treat your medical practice as any other business, with employment manuals, knowing how to do the interactive process if they have a disability. So a lot of times, you just need to do a brush-up, just employment issues 101. How do you deal with problematic staff, or even issues that come up with your staff? And definitely attack those things before they get out of control.

Kevin Pho: So I’m going to assume that a lot of scenarios are with private practice physicians, who essentially are running their own business. So in terms of starting a practice, it sounds like having a legal team on board from the very beginning to avoid a lot of issues would seem like a prudent step.

Amanda Hill: I’m obviously biased as a lawyer, and I don’t care if they use me. I just want them all to be represented by someone who can give them good advice. So yes, you need someone who can help with your credentialing. You need a good CPA that does health care, not just a random CPA that you find in a phone book. You also need a good lawyer. And a lot of it is setting up your policies from the get-go, right? Setting up your compliance plan, reviewing the contracts, getting it set up. Have a program right up front where you know you’re going to spend the money, hire the lawyer, the accountant, all the documents, get all the notice of privacy practices drafted, so you’re setting yourself up for success.

And yes, I get a lot of questions from people that own their own practices or are in a small partnership, but I also get a lot of these questions from doctors that work for a big hospital system, right? “I don’t know how to deal with this compliance issue. Do I report it to HR? Do I call the hotline? Am I going to get retaliated against? How do I communicate this compliance problem?” Especially the bigger the group you’re in, you feel a little bit lost. “I’m afraid if I go to HR with this problem, I’m going to get shunned and ostracized.” So it’s not about the big or small. It’s just knowing and understanding how to deal with these issues. That’s the hard part.

Kevin Pho: And let’s move on to the final question that you typically get asked about by physicians.

Amanda Hill: So I still get tons of questions about HIPAA. HIPAA has been in the world for 20-something years, and you’d think it would be better understood, but I still get questions, everything from, “I’m getting subpoenaed. Do I have to testify at this? Wait, it’s a mental health issue,” or “It’s about a child, and I don’t feel qualified,” or “Do I have to release these records to this deceased person’s spouse?” Every day I get a HIPAA question. So it’s really important, in my opinion, to not just take an online HIPAA class that you don’t really understand, or you think it’s so dull, or you think, “Oh, of course we’re not going to violate it,” but obviously, click, click, push, end of test, you’ve fulfilled your duty, and you don’t know one more thing than when you started. Every few years, maybe hire someone to come in and do a really engaging talk where they talk about security issues as well as privacy, right? They talk about how to protect your data if you get into a big breach, or you get a hacker and you don’t know if you have any backups or how to protect your information. So it’s really important that you do audits in this area, but that you understand HIPAA and don’t just check the box, because it can really hurt you if you have a HIPAA breach.

Kevin Pho: When one goes about looking for a health care attorney to address some of the issues that you describe, what are some of the questions that they should be asking to ensure that it’s the right fit for them?

Amanda Hill: You always need to ask, “Do they represent physicians?” Sometimes they say health care, but they really represent insurance companies, or maybe nursing practices, or home health or hospice. And you say, “Do you represent doctors? Do you know the world of contract and transactional health care?” Because there’s a difference, even within health care lawyers, between people who litigate, lawyers who help doctors in front of their medical licensing boards, and then also health care lawyers that just do transactional work. So try to find a transactional health care lawyer who can help you with your practice and the infrastructure, because that’s really important.

And again, it’s just knowledge. Even if you work with a lawyer for a short period of time, you can still learn online. You can still take classes. I’m not saying go to your lawyer with everything, because that’s a pet peeve of mine. This is not one big advertisement for law firms. It’s really, empower yourself in these areas that I hear about, because I don’t want a doctor to feel hopeless and like they have to go to a lawyer for everything they need. You need to be able to find the resources, get the training, and educate yourself, so that when you do need a lawyer, you’ve already done a lot of the work, and you’ve already educated yourself enough to know what to ask. Because I don’t think that it’s fair or a reasonable expectation to say to a doctor, “Just go talk to your lawyer every day,” because there are always going to be issues that pop up.

Kevin Pho: Now, regarding contracts specifically, I see national firms offering their services to physicians. What’s the advantage of going to a national firm versus staying local when looking for attorney help when it comes to contract negotiations?

Amanda Hill: Well, first, probably money. I mean, the bigger the law firm, the more expensive the rate. And you also want to be really practical about contract negotiations. So if you have someone local, they’re going to know the internal pressures that group is facing. They’re going to say, “Wait a minute. I know this other group over there has just set up a clinic, and that’s two miles away. So if this group can get this doctor, from a business perspective, that’s going to be huge marketing power.” How would you know that if you hire some national law firm? So get someone in the community that understands the dynamics. For example, I know which health systems and hospital systems and groups are going to negotiate more than others. I also know what the leverage means in this community, and I know how hard it is, for example, to find a job in a certain area, so, “Are you going to get a bonus? Are you going to get more money?” You need to find someone that lives there, works there, breathes there, because that’s going to help you a lot more.

Kevin Pho: We’re talking with Amanda Hill. She’s a health care attorney, and we’re talking about her latest KevinMD article, “Top 4 burning questions doctors ask health care attorneys.” Amanda, what are some of your take-home messages that you want to leave with the KevinMD audience?

Amanda Hill: I think my biggest takeaway for doctors is to empower yourself. Empower yourself so you do not feel lost in a world of complicated health care regulations. It’s really difficult to be a doctor today, right, with fraud and abuse laws and HIPAA and statutes and employment law issues, and you just want to give up, and it becomes high burnout, high stress. So if you can just take a moment and break them down and try to learn a little bit more about these areas, so you feel more confident, you’re going to have less burnout. You’re going to be less scared. And I think that’s really important. If I can just empower my doctors to negotiate more on their behalf, to stand up and know what they’re worth, to fight more for themselves and their practices, and to say, “I’m going to have some basic information about compliance so I don’t get myself into these sketchy deals,” then you’re going to be way beyond the curve.

Kevin Pho: Amanda, thank you so much for sharing your time and insight. Thanks again for coming back on the show.

Amanda Hill: You’re so welcome. Thank you.

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