Perceived Risk Outweighs Actual Harm in Assessing $1.5M HIPAA Fine

The Office of Civil Rights’ recent assessment of a $1.5 million fine for HIPAA violations should be a shrill wakeup call to all health care organizations that use (or allow their physicians to use) portable devices containing patient identifiable information.  The sanction stems from a physician’s lost laptop computer containing protected health information (ePHI).

Importantly, the OCR’s investigation could not establish whether ePHI was used or even accessed, partly because the device was lost in a foreign country.  However, it was not necessary to definitively conclude if any data had been compromised; the OCR was more concerned that the offending provider had not implemented appropriate measures mandated by the HIPAA Security Rule which could have reduced, mitigated or eliminated the risk altogether.  For the OCR, the heart of the matter was the fact that the covered entity failed to fully assess and evaluate the risk to the confidentiality and security of ePHI on portable devices used by its physicians in their personal activities, and failed to have a process to address when such devices are lost.  In this case, it was the incident itself that caused the organization to formalize and take responsive measures.  The barn door was closed after the horse got out.  To the OCR, the covered entity’s reactive, rather than proactive approach, was totally at odds with HIPAA Security Rule concerns and the mandated obligations of covered entities.

The facts are fairly simple.  A research physician from a Massachusetts specialty hospital facility was traveling to South Korea to give a lecture when he misplaced his backpack in a public area.  A personal laptop, containing health information of several thousand patients, was in the backpack.  The computer was eventually “detected” a few weeks later when it was connected to the internet, and its hard drive was later remotely “wiped”, however, the device was not recovered.  The incident was then reported to the OCR in accordance with the breach notification requirements of the HIPAA Security Rule.

This is an instructive case for a number of reasons.  For one, it is important to recognize that the OCR’s investigation was prompted by the obligatory “breach notification” it received from the provider.  The OCR’s inevitable investigation in turn revealed that there was significant noncompliance with multiple aspects of the Security Rule.  Notably, the OCR determined that the covered entity had lax control over, and little knowledge concerning its own physicians’ use of laptops issued to them by the organization.  Physicians were permitted unfettered access to the entity’s information, took their devices off-site where they were used for personal activities, and could remotely download information and install applications freely to these personal devices.  Further, while the laptop in question was password protected and had “LoJak” tracking and wiping software, encryption was not employed.  Further, many weeks passed before a hard drive wipe was effectuated and only after it was determined that the device had been connected to the internet.  In short, the OCR concluded that the entity had neither conducted an adequate security assessment nor established necessary policies or procedures addressing laptop use, and had not promulgated an appropriate response procedure.  Instead, it reacted to the lost laptop in a scramble of ad hoc activity and only instituted organization-wide changes as a result of this episode.

The most significant issue for the OCR in assessing a $1.5 million fine was not whether the incident caused actual harm to any patient, but the degree of risk of potential harm and whether reasonable steps and safeguards should have been in place to mitigate any data breach.  In short, the entity should have anticipated laptops would be lost and it should have addressed the attendant risks through a deliberate process and in a manner that is “situationally” appropriate for the organization.  Here, the organization abrogated such a duty, thus prompting a fine that may be disproportional to the perceived harm.  This outcome should prompt providers to seriously regard the HIPAA Security Rule, and the OCR’s enforcement efforts, and to abandon any “no harm, no foul” notions they might apply when security breaches occur and must be reported

What’s Hot on the OIG’s Workplan for 2013

work plan

 It’s that time again, when the OIG publishes its annual Work Plan for the coming year, providing insight and a proverbial “heads up” on the areas where potential concern and program integrity efforts are being focused.  Many of the focus areas are ongoing or have been the subject of previous Work Plans, and come as no surprise.  Nevertheless, it is important for practitioners to familiarize or reacquaint themselves with the 2013 Work Plan projects in order to recognize and prioritize compliance areas currently on the OIG’s radar.

Of particular interest for practitioners are the various OIG review projects involving ancillary services.  For example, the OIG is looking at outpatient therapy services by independent therapists, and will focus on high utilization of physical therapy to determine if claims were reasonable, medically necessary and properly documented.  Similarly, high-cost diagnostic radiological tests ordered by primary care and specialty physicians are being reviewed to determine whether utilization rates match industry practices.  The OIG also will review Part B payments for imaging services with an eye towards determining if utilization rates reflect industry practices and if practice expenses components within payment rates are commensurate with costs incurred.  Electrodiagnostic testing (needle electromyogram and never conduction) is a new area under review, particularly with respect to utilization rates by specialty, the concern being that such services are vulnerable to abuse and inappropriate financial gain.

Errors in billing and claims administration are also the subject of OIG review, with perennially recurring projects directed at incident-to services, place of service coding and E/M services.  A 2009 OIG review of prior claims found that non-physician practitioners often were not properly supervised or that unqualified non-physician practitioners performed services, in each case, resulting in payments that were not compensable.  Since Medicare payment for services in a non-facility setting, like a physician’s office, is often higher than in the rate that applies in other service locations, there is also concern over whether claims for Part B services performed in ASCs and Hospital outpatient departments were coded with the proper place of service.  Another, more recent area of focus involves the documentation supporting E/M services and questions whether Electronic Medical Record documentation processes may result in “cloned” entries (and potentially improper claims) rather than a deliberate process of selecting proper codes based on content of actual service.   Part B payment for chiropractic services are also being reviewed, with this area being the subject of ongoing OIG concern since chiropractic maintenance therapy being considered not medically necessary.

Apparently echoing a series of fairly recent OIG Advisory opinions, the 2013 Work Plan also identifies Polysomnography and Sleep Disorder Clinics as areas of potentially questionable billing patterns and possible overutilization.  High utilization rates have also raised questions regarding whether services are duplicative of diagnostic testing performed previously by attending physicians.  Another ongoing and increasing focus of OIG scrutiny is physician-owned distributors (POD) of high utilization orthopedic implant devices.  The Work Plan for 2013 specifically identifies PODs which provide hospitals with spinal fusion implant devices as being under OIG review to determine if such arrangements are associated with high utilization.

These are just some of the many areas of OIG review with which practitioners and facilities alike should become familiar in order to remain current with the health care regulatory compliance curve.

Doctors: Beware Signing ACO Documents

There continues to be terrific interest in accountable care organizations (ACOs), which are of course a financially risk-based model of providing healthcare to patients who choose to enroll in the Medicare Shared Risk Program.  ACO organizations are often led by hospitals and hospital systems, though occasionally by physician organizations.  One of the key common threads among these provider led ACOs is the fear of being left out of “the game,” the fear of losing out financially.  This fear, however, can lead physicians to run headlong into danger if and when they sign ACO documents.

 

One of the key ways ACOs get formed involves a stack of contracts being created, then shoved under physicians’ noses.  Doctors afraid to lose out tend to just sign.  The organizations are really to blame here, when the documents fail to contain material terms to deal with things like:  credentialing criteria, disciplinary procedures, financial provisions, how the financial up side or down side can affect physician compensation.  The documents are simply slid under their noses and, in fear of being left out, they get signed!  Or, as my buddy Rodger says “Ready, shoot, aim.”

 

Regardless of a doctor’s view of ACOs, no document ought to be signed unless all the questions raised by them are addressed, very clearly and in writing.  Be at the table with ACO organizers and do your best to design a good system, but don’t be naïve to think that the unaddressed portions will magically get filled in somehow in a way that benefits you or that even makes sense.  At the very least, wait until the document is complete, then consider if you want to sign it.

DME Leads: When is a Lead a Referral?

By: David W. Hirshfeld, Esq.

Durable medical equipment is commonly sold through sales leads generated through telephone and/or internet contact.  These leads often begin with a seemingly innocuous internet survey or an application for something unrelated to DME.  This “raw” lead may be as basic as a person’s name, telephone number or email address, and age.  The lead is then further developed and “qualified” by obtaining more details about the subject; such as: whether and by whom the subject is insured, what (if any) medical issues does the subject suffer from, the name of the subject’s physician.  Ultimately, the lead is sold to a DME vendor who uses the lead to accomplish the sale of medical equipment or supplies.  In the course of a lead’s birth and life, it is handled by a chain of companies, some of whom purchase the lead, add a level of detail to it, and sell it for a higher price.  In the past year or so, several lead generation companies from the “middle of the chain” have come to me asking me whether their business model gives rise to an illegal kickback.  After a bit of research, I gave the lawyerly answer: “It depends.”

The Federal anti-kickback statute provides that it is a felony for a person or entity to knowingly and willfully offer or pay any remuneration to induce a person to refer an individual for the furnishing or arranging for the furnishing of any item for which payment may be made under a Federal health care program, or the purchase or lease or the recommendation of the purchase or lease of any item for which payment may be made under a Federal health care program.[1]  Florida’s corollary to this Federal law is the Florida Patient Brokering Act, but the Florida statute applies to all health care services, regardless of whether paid for by a Federal program.[2]  The Federal law creates criminal liability, and includes a knowledge requirement.  Congress recognized that business models exist that may appear as willfully paying remuneration in exchange for a referral, but which have more innocent motivations, and are less likely to result in abuse to the health care program at issue.  In order to give the health care industry a measure of comfort, Congress created several “safe harbors.”  If a business model fits within a safe harbor, then it is deemed to not be an illegal kickback under Federal and Florida law.

The Department of Health and Human Services Office of the Inspector General (“OIG”) is the agency charged with enforcing the Federal anti-kickback statute.  In November 2008 the OIG considered a situation in which an advertising company created a website that would give prospective patients contact information for a list of chiropractors in their area, in response to a zip code entered by the prospect.  The prospect paid nothing for the service, but the chiropractors paid the advertiser a fee for each call or contact from the website that lasted over thirty seconds, regardless of whether the contact resulted in a prospect becoming a patient.  This scenario is as close as the OIG has come to opining on a typical DME lead generation.

The OIG found that the chiropractors’ advertising service was not a prohibited kickback, and cited four factors as convincing: (i) the advertising company is not a health care provider or supplier, and is only affiliated with the health care industry through the arrangement at issue; (ii) the advertising program did not target Federal health care program beneficiaries; (iii) the fees paid by the health care practitioners did not depend upon whether the prospect actually became a patient; and (iv) the advertising program did not steer patients to a particular chiropractor.

When applied to the DME context, the OIG opinion and the anti-kickback statutes suggest that leads can be sold for a per-lead fee as long as the leads are not priced, and do not contain information so detailed, such that the purchaser can cherry-pick those leads it wants to purchase based on the likelihood that the lead will result in an actual sale of covered DME.  For example, a “raw” lead comprised simply of a prospect’s name, contact information, and interest in speaking with a DME supplier is probably the sort of lead that could be sold for a per-lead fee without running afoul of the anti-kickback prohibitions.  As more and more information is added to the lead, such as the type of DME products of interest to the prospect, information regarding the prospect’s insurer and plan coverage, the purchaser will be better able to determine whether the lead is likely to result in a sale of DME (a “qualified” lead).  At a certain level of detail, a lead morphs from lead that can be sold on a per-lead basis, to a referral that cannot.

A lead generation company can sell highly detailed qualified leads if that sales relationship fits within the safe harbor for “Personal Services and Management Contracts.”[3]  That safe harbor requires that: (a) the aggregate compensation to be paid under the contract must be fixed in advance; (b) the compensation must be consistent with fair market value in an arm’s-length transaction; and (c) the compensation must not be determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made by a Federal health care program.  The requirement that the compensation be fixed in advance does not tolerate a per-lead fee.   Fixed in advance would be a weekly, hourly, annual fee.

So, if you are in the lead generation business, your liability for buying or selling health care referrals probably depends upon how detailed and “qualified” the lead is at the time of your transaction.  The safe tack is to structure your transactions so that they fit within the safe harbor for Personal Services and Management Contracts so that just in case your leads are qualified enough to constitute “referrals.”

This article focuses on anti-kickback liability associated with DME leads, but there is also liability attached to how the lead is originated, and how the prospect is contacted.  Lead generation companies are often well-served by committing their relationships to written agreements with advice from appropriate counsel.

[1] 42 U.S.C. §1320a-7b(b)

[2] FL Statutes §456.054 and §817.505

[3] 42 C.F.R. §1001.952(d)

The Florida Healthcare Law Firm Goes National

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Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!

Supreme Court upholds Obama health care law

Via @USAToday

The Supreme Court upheld President Obama’s health care law today in a splintered, complex opinion that gives Obama a major election-year victory.

Basically. the justices said that the individual mandate — the requirement that most Americans buy health insurance or pay a fine — is constitutional as a tax.

Chief Justice John Roberts — a conservative appointed by President George W. Bush — provided the key vote to preserve the landmark health care law, which figures to be a major issue in Obama’s re-election bid against Republican opponent Mitt Romney.

The government had argued that Congress had the authority to pass the individual mandate as part of its power to regulate interstate commerce; the court disagreed with that analysis, but preserved the mandate because the fine amounts to a tax that is within Congress’ constitutional taxing powers.

The announcement will have a major impact on the nation’s health care system, the actions of both federal and state governments, and the course of the November presidential and congressional elections.

A key question for the high court: The law’s individual mandate, the requirement that nearly all Americans buy health insurance, or pay a penalty.

Critics call the requirement an unconstitutional overreach by Congress and the Obama administration; supporters say it is necessary to finance the health care plan, and well within the government’s powers under the Commerce Clause of the U.S. Constitution.

While the individual mandate remained 18 months away from implementation, many other provisions already have gone into effect, such as free wellness exams for seniors and allowing children up to age 26 to remain on their parents’ health insurance policies. Some of those provisions are likely to be retained by some insurance companies.

Other impacts will sort themselves out, once the court rules:

— Health care millions of Americans will be affected – coverage for some, premiums for others. Doctors, hospitals, drug makers, insurers, and employers large and small all will feel the impact.

— States — some of which have moved ahead with the health care overhaul while others have held back — now have decisions to make. A deeply divided Congress could decide to re-enter the debate with legislation.

— The presidential race between Obama and Republican challenger Mitt Romney is sure to feel the repercussions. Obama’s health care law has proven to be slightly more unpopular than popular among Americans.

Full Story Here: http://content.usatoday.com/communities/theoval/post/2012/06/Supreme-Court-rules-on-Obama-health-care-plan-718037/1#.T-xqPhd5F9E

The Florida Healthcare Law Firm Announces National Expansion

NHLFLogo
(Delray Beach, FL) June 21st, 2012 – The Florida Healthcare Law Firm, one of Florida’s leading healthcare law firms, today announced a major increase in their legal practice capabilities with the official launch of the National Healthcare Law Firm, a d/b/a and new portal of the firm. The expansion to a national platform providing healthcare legal services to physicians and healthcare businesses is one that significantly increases resources for clients who lack qualified local healthcare counsel. While the Florida Healthcare Law Firm has for years assisted clients outside the state of Florida*, this new development further cements the firm’s commitment to providing ethical legal counsel in the healthcare industry.

“We are very excited about it. The fact that we serve clients all over the country has been a small secret for a while but we realized there’s a huge demand and decided to just go for it,” said Jeffrey L. Cohen, Esq. Founder and President of Florida Healthcare Law Firm.

According to Cohen, “It’s just a strange area of the law.  Nearly everything in healthcare business is regulated; leases, employment agreements, compensation.  Things you wouldn’t think are regulated are strongly regulated.  And there are large fines and criminal penalties for getting it wrong!  Our clients understand that healthcare business of any kind has serious legal risks and that they need uniquely qualified help.”

To request a service list or for any other firm information, call Autumn Piccolo at 888-455-7702 or visit the firm’s website at www.nationalhealthcarelawfirm.com or www.floridahealthcarelawfirm.com

*     *     *

Acknowledged throughout the country for its service and excellence, Florida Healthcare Law Firm is one of the nation’s leading providers of healthcare legal services. Founded by Jeffrey L. Cohen, Esq and headquartered in South Florida, FHLF provides legal services to physicians and healthcare businesses with the right pricing responsiveness and ethics. From healthcare clinic regulation, home health agency representation and physician contracting to medical practice formation/representation and federal and state compliance matters, the Florida Healthcare Law Firm is committed to bringing knowledge and experience to a diverse group of clients.

How Many Lobbyists Does It Take to Write A Statute ?

change

By: David W. Hirshfeld, Esq.

When the text of the new PIP law became public, our jaws went slack.  The new law imposed incongruous effective dates that would seemingly put many providers out of the PIP business for six months.  How could the insurance industry’s best and brightest have screwed this up?

The new law requires providers to be licensed as “clinics” in order to receive PIP payments, unless an exclusion to that licensing requirement applies.  The incongruity arises because the provision requiring licensure seems to become effective July 1, 2012; but the provision creating the exclusions from that licensure requirement do not seem to become effective until January 1, 2013.  Many providers are rightly concerned that they must either: become licensed as a clinic in order to receive PIP payments, or stop treating PIP patients from July 1, 2012 through January 1, 2013 when an appropriate exclusion will exist.

Thank goodness for Stuart Williams, AHCA’s General Counsel.  In his May 8, 2012 memorandum, Mr. Williams artfully reasons that the statute could and should be interpreted so that both the licensure requirement and its applicable exclusions become effective January 1, 2013.  Now most providers can continue to treat PIP patients without interruption.  Whew!!!

We hope and expect that Florida’s Office of Insurance Regulation will adopt Mr. Williams’ reasoning and educate the PIP insurers.

Medicare Patient PT Supervision is Confusing

attack-of-the-mole people tshirt

 Physicians with Florida medical practices that provide physical therapy must feel at times they are playing “Whack a Mole,” given the many changes to the applicable rules and regulations, especially those that pertain to Medicare patients.  Is it ok for a physical therapy assistant (PTA) to provide the services?  Can the practice provide PT to people who are not patients of the practice?  Does a physician have to be on premises when PT is provided?  It’s just complex.

Let’s start with a couple fundamentals:  first, medical practices that comply with the so called “group practice” exceptions (under both state and federal law) are permitted to provide PT to their own patients.  They are more accurately known as the “In Office Ancillary Services Exception,” but most refer to them as described above.  These exceptions dictate, for instance, the form of the practice and how much time each physician has to spend practicing through the group.  For instance, if the practice does not have at least two of the following, it does not meet the group practice requirements:  physician owner; physician W-2 employee.  Second, PT falls under both the state and the federal definitions of “designated health service” (DHS).  DHS are services that are regulated by the Stark Law and also (at the state level) by the Florida Patient Self Referral Act of 1992 (FPSRA).  They are very similar laws, but with some key differences.  Where many physicians go wrong is to ensure compliance with federal laws but not state or vice versa.

Why is it important to know that this discussion is confined to Florida “group practices” providing PT to Medicare patients?  First, because the laws that apply to group practices are different that those that apply to reference PT businesses.  Businesses that only provide PT are not nearly as regulated as medical practices (especially those in Florida) that provide both medical services and PT to their own patients.  For instance, the issue of “outside referrals” does not arise with respect to reference PT businesses.  Second, because when Medicare patients are involved, both state and federal law come into play.  While state law applies to all services provided in Florida, federal law only comes into play when federal or state healthcare program dollars are involved.

Medical practices in Florida that provide DHS (like PT) to their Medicare patients have to comply with both state and federal law.  And those laws are different.  For instance, while federal law allows up to 25% of the time of doctors in a group practice to be spent providing services outside the group, state law is not so clear.  For instance, federal law allows a practice to provide DHS to a certain amount of patients who are not patients of that group practice (“outside patients), but Florida law allows that sort of flexibility only for “diagnostic imaging services” (up to 15%).  If, for instance, a Medicare patient from Dr. Smith down the street comes to your office only to get the PT your practice provides to its patients (i.e. they are not a patient of your practice), that patient will be turned away.  Isn’t it ok for a Florida medical practice to provide just PT to someone else’s Medicare patient?  No, because state law does not allow it.

Similarly, under federal law, a physician complies with certain supervision requirements if he or she is in the building where the medical practice is located while a Medicare patient receives DHS.  In Florida, the physician in a group practice is required to be in the office (not just the building) when a Medicare (and every other) patient receives DHS in order to comply with the stricter “direct supervision” requirement applicable to patients in Florida that receive DHS (all DHS, not just PT) from a group practice.

Once a physician clears those regulatory hurdles, how can a doctor bill for PT?  Essentially, there are two ways:  under the provider number of the physical therapist or under the provider number of the supervising physician.  The situation gets even more complex when a physical therapy assistant (PTA) gets involved.

Can a Florida medical practice bill under the provider number of a supervising MD for PT provided by a PTA to a Medicare patient?  No.  While applicable law requires an MD or DO to be on premises when a Medicare patient receives PT from the group practice, services provided by a PTA are considered by CMS to be included as part of the covered service under Section 220 and 230 of the Medicare Benefit Policy, Chapter 15.  A Florida doctor may not lawfully supervise the services of a PTA, since PTAs (under federal law) that provide services in a medical practice must be directly supervised by an RPT.

There are also state laws that need to be followed, they differ based on physician specialty.  For instance, a PTA employed by a physician other than a board certified orthopedist, physiatrist or chiropractor certified in physiotherapy must be under the onsite supervision of an RPT.  Though inapplicable to Medicare, there is no provision in Florida law that allows a chiropractor to supervise a PTA.

What about if the PT services are provided by a registered physical therapist (RPT)?   Though CMS does not recognize the term RPT, it does allow the services of a “qualified professional,” which includes a licensed physical therapist, to be billed either under the physical therapist’s provider number or “incident to” the services of the supervising MD or DO.   “Incident to” services are services that are so integral to the services provided personally by the physician that they can be billed to Medicare as though the physician provided the service, even when the physician didn’t provide them.  To comply with the rule (and for the doctor to be able to bill for it as though he or she did provide the service), the services must be:

1.         An integral though incidental part of the physician’s service in diagnosing or treating an illness or injury,

2.         Commonly furnished without charge or included in the physician’s bill;

3.         Commonly furnished in a physician’s office or clinic;

4.         Furnished under the physician’s direct supervision (e.g. physical presence in the office);

5.         Furnished by the physician, practitioner with an incident to benefit or auxiliary personnel.

Though the incident to services rule is materially different from the Florida “direct supervision” requirement under the FPSRA, its effect is very similar:  an MD or DO must be physically present on the premises of the office when a patient receives DHS and it is billed under the provider number of the supervising physician.  One might argue that the PT’s services could be billed under the PT when the MD or DO is not on premises, but this conflicts with the direct supervision requirement of the FPSRA.

What’s the Analysis?

To comply with the State and Federal supervision requirements, group practices in Florida that provide PT to their Medicare patients must ask themselves at least the following questions:

1.         Does my practice comply with the state and federal “group practice” requirements? and

2.         Is an MD or DO in the office when the patient receives PT?  If not, the PT may not be provided at all, since all PT in Florida group practices require direct supervision by a physician.

What are the Penalties?

At the very least, doctors who fail to comply with the supervision requirements for DHS risk (1) AHCA licensure actions; (2) having to repay the money received when they did not comply; (3) having to pay stiff fines, and in some instances (4) criminal prosecution.  There have been many reported cases of physicians being investigated and fined for failing to meet the supervision requirements.  And there have been numerous instances of physicians being prosecuted for failing to meet the “incident to services” rule.

            If you provide PT to your patients, you must be clear about (1) the “group practice” exception provisions that allow you to provide DHS to your patients, and (2) the State and federal supervision requirements.  There is simply too much at stake not to.  Additionally, physicians ought to develop clear and easy to use written guidelines for compliance.

Download a Quick Guide to PT Supervision HERE

Super Group Doctors Beware of Departure Provisions

Healthcare Professionals

 Super groups are in vogue as physicians do their best to reduce costs and enhance revenues.  A “super group” is essentially a collection of previously separate competitors who have joined a single legal entity in order to achieve certain advantages.  Those advantages tend to be (1) reducing overhead expense associated with economies of scale.  Buying insurance for a group of 100 doctors should be far less expensive per doctor than a group of three doctors; (2) gaining leverage in managed care contracting.  20 groups of five physicians each cannot contract with a payer with “one voice” due to the antitrust restrictions, but a single group of 100 doctors can; and (3) finding new revenue sources.  Small groups and solo practices cannot afford revenue producing services like surgery centers, imaging services and such.   When practices combine, they have a greater patient base, which makes the development of new revenue sources feasible.

Physicians join super groups with terrific promise and hope.  They are clearly a good idea, especially if they have solid operations.  That said, physicians who rush to form them rarely consider the risks associated with a physician departing the group.  They need to!

When a doctor joins a super group, she stops billing through her old practice (the “P.A.”) and starts billing through a new group (the “LLC”).  The LLC has a tax ID number and a Medicare group number.  And the LLC enters into lots of managed care payer agreements.  Simply put, the doctor puts all of her eggs in the LLC basket.  So what’s the risk?

When physicians depart super groups, they have to confront difficult facts, like:

  1. It will take months to get a new Medicare provider number.  If they haven’t billed through their “old entity” for a while, that number is gone.  And getting a new number for the departing physician takes time, during which revenues associated with Medicare patients are lost (until the number is obtained);
  1. It takes even longer to get on insurance plans.  If the LLC is contracted (they usually are), how long will it take to get the P.A. fired back up?  It can take as long as six months (and sometimes even more)?  That means the departed doctor is out of network with all the plans!  This exposes her patients to higher costs and may affect referral patterns.  This alone can be crippling to a physician who has left the super group.
  1. Leaving can also mean ending access to patient scheduling and electronic medical records.  Many super groups do not ensure access to patient scheduling or billing to enable a departing physician to get back on their feet; and this can be devastating.
  1. Noncompetes can play a big role in how a departing physician gets back on her feet.  Ideally she will know that being solo is not as good as being part of a larger practice.  But what if the super group imposes a restriction on the departing physician that prevents her from being part of another group?  This is common and often very harmful, since some physicians who depart super groups have no effective options but to join other groups.

Super groups exist to benefit physicians.  It makes no sense that they would be used to harm them, which is precisely what can happen (and sometimes does happen) if physicians do not pay good attention to the “back end” as well as they do to the “front.”  That means things like—

  1. Making sure that, wherever possible, the departing physician is afforded enough time to get back on her feet professionally.  She will need time to get a new practice formed, to get a new Medicare provider number and to get back on insurance plans;
  1. Ensuring the departing physician has adequate access to medical and scheduling records;
  1. Carefully considering whether or not noncompetes make any sense.  Some may say that it is important to protect the new practice (like the old one), but these are different sorts of practices.  They are not built from the ground up.  They are built because successful competitors who have been in business for years decided essentially to “loan” their practices to the super group in order to obtain certain unique advantages.

Super group arrangements continue to grow.  Some of them even develop into fully integrated and sophisticated businesses.  Physicians who join them have to consider all “angles,” not just how good it will be or can be when they join.