Avoiding legal trouble in your practice

March 5, 2015
Carl H. Spear, OD, MBA, FAAO

Dr. Spear owns a multi-location group practice with his wife Dr. Katie Gilbert Spear in Pensacola, FL. Dr. Spear is commander of the 919th Special Operations Medical Squadron at Duke Field in Florida and chairman of the American Academy of Optometry Exhib

When you’re caring for your patients and running your practice from day to day, legal protection may not be at the front of your mind, but there are steps you can take to protect yourself and your practice from litigation.

Atlanta-When you’re caring for your patients and running your practice from day to day, legal protection may not be at the front of your mind, but there are steps you can take to protect yourself and your practice from litigation.   

Shauna Harrington, certified senior professional in human resources (SPHR) with VSP, shared her advice for managing the human resources aspect of a practice during a special session at SECO, while Carl Spear, OD, FAAO, shared his advice for understanding the new world of medical billing and tips for avoiding an audit.

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HR: Set the expectations

Harrington’s first piece of advice is to have an employee handbook, no matter the size of your practice. The handbook will set expectations and define your practice policies.

 

Once you have those policies in place, regularly ask yourself:

• Are those policies being administered fairly?

• Are procedures followed consistently?

• Are you practicing what you preach?

Related: 4 steps to adjust staff salaries

Discrimination

Harrington explained that a protected class is a group of individuals who are protected from discrimination by federal or state law-religious groups, women, those with disabilities, LGBT, various age groups, etc.

“Almost everyone in your practice is likely part of a protected class,” she says.

That is something you need to keep in mind in order to avoid finding yourself accused of discrimination. Harrington also says you need to make a point of treating everyone on your staff fairly and equally.

In order to avoid being accused of discrimination, Harrington offered what she described as 40 hours of legal training in 30 seconds-when interacting with your employees (including prospective employees), ask yourself two questions:

1. Is it job related?

2. Are you asking a special person a special question?

When hiring, Harrington says be clear about the occupational qualifications in the job description. There may be qualifications for the job that would reasonably eliminate someone from consideration.

Next: Harassment

 

Harassment

Different types of harassment occur in the workplace, and you need to be vigilant to protect your employees, your practice, and yourself.

Physical harassment includes both violent and sexual harassment. Visual harassment could be an employee leering at another, or it could be something less direct such an offensive poster in the office. And there is also verbal and written harassment, which can include e-mail and social media.

But in order for an action to be considered harassment, a reasonable person would need to find that the following conditions were met:

• Severe and pervasive

• Based on a protected class

• Adversely affect working conditions

So, what do you do if someone in your practice makes an accusation of discrimination or harassment? Most important, Harrington says, is finding someone who has experience with these claims.

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“You are legally required to investigate and take appropriate action when dealing with any complaint of discrimination or harassment,” Harrington says. “You are always going to want to talk to the accused individual to get his side of the story-there are always two sides to every story.”

But you need to have a tough policy when it comes to harassment, she says. While your employees may think something is “just a joke,” that joke is putting you and your practice in harm’s way should someone make a harassment claim.

“Once you allow any sort of harassment in your practice, your employees are going to think it’s OK,” she says.

Whenever you’re working with an employee, whether you are hiring, giving a promotion, offering feedback, or firing, make sure you document the interaction in the employee’s file. Your notes should consist only of facts and observations, not judgments.

Next: The bottom line

 

The bottom line

Harrington says that protecting yourself from litigation stemming from HR problems comes down to a few simple principles:

• Treat all people fairly and equitably in all terms and conditions of employment

• Be inclusive and respectful

• Don’t say anything in the workplace you wouldn’t say in front of your own grandmother

• Ask yourself whether you’d want someone to behave that way toward you

• Ask yourself whether the particular behavior belongs at work

Related: Get your staff off to a great start

As an eyecare practitioner, you’re probably not an HR pro, but that’s OK. Organizations out there can help. For additional information and guidance, Harrington recommended the following resources:

U.S. Department of Labor

Society for Human Resource Management (SHRM)

• Local SHRM chapter

• Local chamber of commerce

• Local universities

• HR consultants (Harrington cautions that you should do your due diligence to find a reputable consultant who will give you meaningful, practical advice.)

Next: Protecting yourself from audits

 

Protecting yourself from audits

Says Dr. Spear: “First, you need to understand the system. The government is broke; you are a rich doctor; the government wants to take their money back from you.”

A number of organizations are affiliated with the Centers for Medicare & Medicaid Services (CMS):

• Medicare Administrative Contractors (MAC) contract with CMS to administer Part A and Part B claims in specific geographic regions throughout the country

• Recovery Audit Contractors (RAC) identify and correct improper Medicare payments

• The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services  protects the integrity of Department of Health & Human Services (HHS) programs as well as the health and welfare of program beneficiaries

Related: 7 financial challenges ODs will face in 2015

Dr. Spear says you need to know which MAC you belong to based on your region, and you need to understand the national and local carrier determinations and the established CMS policies inside and out.

When it comes to a RAC audit, talk to someone who knows what they’re doing before you submit your paperwork for the audit. Another tip: never destroy records because if you are audited for fraud, the RAC audit will go back as far as 10 years.

According to its 2015 work plan, OIG is specifically looking at ophthalmologists and chiropractors for questionable billing. For the purposes of these investigations, optometrists will fall into the same category with ophthalmologists.

“The Office of Inspector General is a very well-run, very focused organization that is targeting you,” he says.

While some doctors might assume that because Medicare paid for a test, then it must be allowed. Wrong, says Dr. Spear. You’ll be sure only after an audit. In order to show the test was medically necessary, you’ll need to know the national and local coverage determinations, and you’ll need to prove it through documentation, with which Dr. Spear says most ODs struggle.

“I think ICD-10 is going to be a good thing for us-a terrible pain initially, but it will help us be better documenters,” he says.

Next: More advice from Dr. Spear

 

Dr. Spear recommended looking at the American Academy of Ophthalmology’s Preferred Practice Patterns. He recommends printing them out, keeping them in your office, and using their words in your documentation. And the words you use are very important.

Tips for documentation:

• Possible progression over time

• New problem

• Pain

• Change in…

Don’t say:

• Rule out

• Stable

• No change

• No symptoms

• No problems

Be as specific as you can.

He also noted that both fundus photography and comanagement are often areas of interest for audits. Fundus photography is often denied because of failure to submit within 30 days, the documentation does not support medical necessity, or there was no signature, an illegible signature, or failure to attest. Repeat fundus photography should be performed only at clinically reasonable intervals if it’s consistent with a noted change on examination. And to prevent denial for comanagement, make sure you have a transfer of care and a comanagement agreement on every patient.