| Read Time: 4 minutes | Healthcare Business Law

Physician Employment Contracts and Your Healthcare Business

Over the years, doctors signing physician employment contracts with small practices has become increasingly commonplace. Retaining an employment law attorney’s services to identify the obligations and expectations of either party to physician employment agreements can minimize future disputes.  What Is a Physician Employment Contract? A typical physician contract agreement dictates the relationship between a physician and their employer. These employment contracts provide provisions outlining the terms of employment, such as compensation, job requirements, benefits, termination, non-compete clauses, and professional liability insurance. The terms of all physician employment contracts are negotiable and ensure the final agreement is fair to both parties.   Important Terms in a Physician Employment Contract There are several typical provisions you should consider when drafting a physician employment contract. Duration Physician employment contracts can specify the length of time the physician will provide services for your business. Additional terms may address other considerations relating to the duration of a physician employment contract, such as  whether the term can be automatically renewed or what notice is required for cancellation. Services Ensure that the contract includes a detailed description of the expectations of the physician. This may include details such as The type of medicine the physician will practice, The number of hours the physician must work each day or week, and The physician’s on-call obligations.  It may also address whether you will expect the physician to undertake outpatient care or administrative duties. Compensation What will be the compensation for the physician you hire? Compensation elements in physician employment contracts may cover a few areas. Base compensation  Base compensation is a guaranteed salary. However, base compensation is a negotiable element of physician contracts. Negotiations regarding base compensation must always consider state and federal compliance, industry pay standards, and inflation if the contract reflects multiple employment years.   Productivity incentives Productivity incentives base compensation on productivity. These types of incentive clauses in physician contracts must include a clearly defined productivity formula for calculating payment. Productivity measurements must consider the equitable scheduling of patients and not negatively impact the quality of patient care. Benefits You may include benefits in your physician contract, such as: Retirement,  Health insurance,  Disability,  Reimbursement for travel or continuing medical education,  Paid time off,  Vacation, and  Sick pay.  Depending on the physician you plan to hire, you may wish to include these types of benefits in your physician employment contract. Other benefits Other types of bonuses might include student loan reimbursement, reimbursement for relocation expenses, severance pay, and many others. These types of benefits may incentivize employment with your business.  Buy-in clause Buy-in clauses provide physicians the opportunity to buy into your business. Determining whether or not to include this type of clause in your physician employment contract requires careful consideration of employees’ buy-in parameters and requirements.  Physician employment contracts may vary; however, clearly defining compensation details assures clarity between you and your employee.  Termination Rights Every contract should include a termination clause outlining the terms and conditions of terminating employment. For example, early termination may be permitted “for cause” or “without cause.” Circumstances prompting early termination may include: Revocation of medical license,  Malpractice,  Drug use,  Violations of the physician contract, and  A felony conviction.  Additionally, without-cause provisions may provide that either party may terminate the agreement if sufficient notice—for example, 60 days—is provided.  Professional Liability Insurance Typically, the employer will insure the physician employee with professional liability insurance. Professional liability insurance considerations to address in the employment contract might include the following: Type of insurance, The amount of coverage, and Whether coverage continues after the physician leaves employment.  Since both the employee and the physician are liable to a patient, carefully review professional liability insurance obligations.  Non-Compete Clause A non-compete clause in a physician employment contract limits an employee’s ability to work elsewhere after employment termination. Special conditions exist for valid non-compete clauses in employment contracts, including the following:  They must be limited to a reasonable geographic area;  The scope of the restrictions must be reasonable; and Their applicability must be limited to a reasonable time frame.  An experienced business law attorney provides industry-specific guidance on non-compete clauses in physician employment contracts.  Dispute Resolution While disputes between parties to a contact may resolve in court proceedings, you may consider including an arbitration clause in your employment agreement. Arbitration is generally a less expensive and more efficient resolution to disagreements than litigation. An attorney can help you determine whether an arbitration clause is appropriate for your physician employment agreements.  Why Should Employers Have Their Contracts Reviewed?  Retaining a skilled business attorney’s services to review your physician employment contract protects you and your business. Failure to properly identify responsibilities and obligations in a physician employment agreement can result in disagreements and, potentially, litigation.  It’s important to critically analyze compliance with federal and state laws to prevent exposure to potential violations. Also, an attorney may provide insight as to the following areas:  Fair market value compensation,  Creating and reviewing compensation plans, Non-compete clauses, and Dispute resolution and litigation.  The attorneys at Massingill Attorneys and Counselors at Law ensure you create a comprehensive physician employment contract protecting your business interests and interests. Employers need to address these and multiple other issues regarding physician employment contracts before offering an employment contract.  Why Massingill Attorneys and Counselors at Law?  The attorneys at Massingill Attorneys and Counselors at Law possess extensive experience in business and healthcare law across Texas. We understand the expense and stress resulting from a weak contract. That’s why we draft rock-solid agreements for our clients, protecting you and your business from future litigation. Additionally, we revise existing contracts and review new contracts to remedy gaps in potential liability.  Massingill Attorneys and Counselors at Law provides superior legal services to clients for reasonable fees. We understand how important your business is to you. Contact us today to discuss questions regarding your physician employment contract.

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| Read Time: < 1 minute | Healthcare Business Law

Texas Chiropractors: Protect Your Practice During the COVID-19 Pandemic

On Monday, March 23, Texas healthcare attorney Joshua Massingill joined Darla Sees, an organizational development and human resources consultant, in a webinar hosted by the Texas Chiropractic Association: Protecting Your Practice During the COVID-19 Pandemic. The webinar featured important legal, financial, and human resources updates related to the novel coronavirus crisis and is essential viewing for Texas chiropractors. Also, the Texas Chiropractic Association maintains an up-to-date COVID-19 resource page, which doctors are encouraged to visit frequently for important updates and helpful resources. Finally, doctors should stay current by visiting the Texas Board of Chiropractic Examiners (TBCE)  web site. TBCE continues to post helpful information for its licensees during this pandemic. If you have questions about complying with state or local rules related to COVID-19, contact an attorney.

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| Read Time: 4 minutes | Healthcare Business Law

Texas Stem Cell Law Update

THE FOLLOWING IS AN EDUCATIONAL ARTICLE INTENDED TO HIGHLIGHT RECENT DEVELOPMENTS THAT MAY BE OF INTEREST TO PHYSICIANS AND OTHER HEALTHCARE PRACTITIONERS. IT IS NOT A LEGAL OPINION AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. THE HEALTHCARE INDUSTRY IS CONSTANTLY CHANGING SO FACTS, CIRCUMSTANCES, RULES AND REGULATIONS MAY CHANGE THAT WOULD ALTER THE ANALYSES BELOW. In recent weeks, the Texas Medical Board (“TMB”) has notified several physicians of complaints it has received alleging that the physician has been “aiding/abetting the unlicensed practice of medicine.” Specifically, the complaints allege that the physician is supervising midlevel practitioners (APRNs/PAs) who are “administering stem cells illegally in violation of HB 810” (emphasis added). TMB, like all licensing boards, has a duty to investigate complaints that are filed against its licensees. After receiving a complaint, TMB notifies the physician identified in the complaint, who is then given an opportunity to “furnish a narrative” responding to the allegations. Many complaints are dismissed at this stage, without TMB having ever initiated a formal investigation. In other words, these complaint letters do not necessarily indicate discipline is forthcoming. Nevertheless, they are a troubling development. The most pressing question is whether TMB’s reference to midlevel practitioners “administering stem cells illegally in violation of HB 810” is a mere restatement of the complaint it received (which is certainly possible) or whether it is telegraphing an aggressive new interpretation of HB 810 as precluding the delegation of all “stem cell” treatments. The legislation referenced in TMB’s complaint, HB 810, was passed by the 85th Texas Legislature and became effective on September 1, 2017. This bill – nicknamed “Charlie’s Law” – concerned “investigational stem cell treatments” and specified that patients are only eligible to receive such treatments if they have “a severe chronic disease or terminal illness” and their physician has “considered all other treatment options currently approved by the [FDA] and determined that those treatment options are unavailable or unlikely to alleviate the significant impairment or severe pain associated with the severe chronic disease or terminal illness” and if their physician recommends or prescribes the treatment in writing. Tex. Health & Safety Code § 1003.053. This statute defines “investigational stem cell treatments” as “adult stem cell treatment[s] that [are] under investigation in a clinical trial and [are] being administered to human participants in that trial [and have] not yet been approved for general use by the [FDA].” Tex. Health & Safety Code § 1003.051 (emphasis added). Texas stem cell laws are not a model of clarity. Nevertheless, it has been widely presumed that HB 810’s onerous restrictions do not apply to the types of “stem cell” products most commonly used in regenerative medical clinics and integrated medical-chiropractic practices, which are regulated by the U.S. Food and Drug Administration (“FDA”) as Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) under Section 361 of the Public Health Service Act (PHSA). There are several reasons to conclude that HB 810 does not apply to these so-called “361 products.” First, HB 810 specifically refers to treatments “not yet approved” by the FDA. 361 products do not require FDA approval; they must simply be registered with the FDA and comply with infection-control procedures. And because clinical trials are not required for 361 products, it seems unlikely such products would meet the definition of “investigational stem cell treatments” in HB 810. Second, it is abundantly clear that the purpose of Charlie’s Law was to circumvent FDA restrictions and thereby increase patient access to certain stem cell treatments. Again, the particular FDA restrictions at issue in the legislation do not even apply to 361 products and interpreting the law in this way would necessarily decrease patient access to such products. Third, TMB published a bulletin in May 2019 lamenting “concerns, highlighted by several recent news stories, related to a lack of proper supervision while patients are receiving treatment for certain cosmetic procedures and purported stem cell treatments.” Dr. Sherif Zaafran, M.D., FASA, Message From the TMB President: Mental Health Questions and Supervision Issues, TMB Bulletin, May 2019, at 2 (emphasis added). TMB’s concern relating to improper supervision, leads one to assume it believes that the procedure is, in fact, delegable under proper supervision. If HB 810 applies to every type of “stem cell” product, the use of all such products is restricted to physicians only, and it would therefore be illegal to delegate the administration of any “stem cell” product to a midlevel practitioner. If that were the case, it seems unlikely that TMB would suggest it is concerned about “a lack of proper supervision” when such treatments are delegated. Fourth, 361 products have been in widespread use in Texas and are commonly administered by midlevel practitioners. HB 810 became effective nearly two years ago, and until recently it did not appear that TMB was concerned about the legality of this arrangement. In short, a plain reading of the statute, a basic understanding of the legislative intent of Charlie’s Law, the recent statement published by TMB in its May 2019 bulletin, and common sense all suggest that HB 810 does not preclude a physician from delegating the administration of 361 products to midlevel practitioners. However, it is possible that TMB and/or a reviewing court might disagree with this analysis and subject delegating practitioners to discipline. Time will tell.

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| Read Time: 3 minutes | Healthcare Business Law

Sex and Subluxation: A Legal Guide for Texas Chiropractors

Engaging in sexual activity with patients is, as we say in the legal field, a very bad idea. Sexual misconduct can trigger severe disciplinary action by the Texas Board of Chiropractic Examiners (“TBCE”) and civil liability for damages. Doctors who behave responsibly with patients can nevertheless face liability for sexual discrimination and harassment in the workplace. And even doctors whose personal conduct is unassailable can face liability for the actions of their employees. The risks are real. Learn how to protect yourself. SEXUAL MISCONDUCT WITH PATIENTS TBCE Rule 78.1 prohibits sexual misconduct with a patient within the chiropractic/patient relationship. “Sexual misconduct” is defined broadly to include both sexual intimacy (any conduct that is intended to cause or reasonably interpreted to cause stimulation of a sexual nature) and sexual impropriety (any behavior, gestures, statements, or expressions through any medium of communication towards a patient which may reasonably be interpreted as inappropriately seductive, sexually suggestive or demeaning). The following are examples of prohibited sexual intimacy: sexual intercourse; genital contact; touching breasts; masturbation; and any bodily exposure by licensee of normally covered body parts. The following are examples of prohibited sexual impropriety: inappropriate sexual comments about or to a patient or former patient including sexual comments about an individual’s body which demonstrate a lack of respect for the patient’s privacy; requesting unnecessary details of sexual history or sexual likes and dislikes from a patient; making a request to date a patient; and initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee. There is one affirmative defense to disciplinary action enshrined in rule – if the patient is “no longer emotionally dependent on the licensee when the sexual impropriety or intimacy [begins] and the licensee [terminates] his or her professional relationship with the person more than three months before the date the sexual impropriety or intimacy [occurs].” Notably, the following excuses are not a defense to disciplinary action: the patient’s consent; the activity occurred outside professional treatment sessions; or the activity occurred off the premises regularly used by the licensee for the professional treatment of patients. HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS Thoughtful, proactive behavior can minimize your risk of patient complaints. Communicate clearly with your patients before performing procedures in sensitive areas. Most complaints allege unwanted and inappropriate touching of breasts, buttocks, or genital areas. Before palpating pectoral muscles or lymph nodes, or treating iliopsoas muscles or anterior hip flexors, tell the patient what you’ll be doing and why. Consider having a chiropractic assistant present when treating patients of the opposite sex. If you don’t have a chiropractic assistant, consider leaving the exam room door open. Do not ask patients to disrobe unless it is absolutely necessary. If you determine that a patient should disrobe, Rule 78.1 (1)(E) obliges chiropractors to “respect a patient’s dignity at all times and […] provide appropriate gowns and/or draping and private facilities for dressing and undressing.” SEXUAL HARASSMENT In 2017, the Equal Opportunity Employment Commission (“EEOC”) recovered sexual harassment damages totaling over $46 million for aggrieved employees – and this amount only includes cases that were settled with the EEOC and does not reflect monetary benefits obtained through litigation or other means. Put simply, sexual harassment is a major problem for employers. There are two types of sexual harassment: quid pro quo harassment (in which the employee faces a negative employment consequence for refusing to submit to a harasser’s demands) and hostile work environment harassment (gender-based conduct that is pervasive or severe and interferes with an employee’s work performance). Even jokes about exchanging sexual favors for a raise have led to employee complaints against chiropractors for quid pro quo harassment. And doctors may be liable for hostile work environment harassment to an employee even if he/she was not the target of the inappropriate behavior. HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS In general, doctors should be wary of the following: Making disparaging comments to women; Displaying sexually explicit or female-objectifying materials in the office; Showing employees and co-workers inappropriate images on your phone or other device; Using sexually explicit language in the office; Making inappropriate comments to female employees about their appearance (e.g., telling a female employee that she “has a good body”); Staring at employees in a sexually suggestive manner; Asking sexual questions of an employee; Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person; and Making offensive comments about someone’s gender or sexual identity. CONCLUSION In the wake of recent scandals in Hollywood and the burgeoning #metoo movement, our culture is reconsidering the “rules” of workplace behavior. Actions that may have seemed appropriate in previous eras are now considered taboo. Doctors should exercise caution to avoid liability for sexual harassment. Sexual misconduct – it goes without saying – should be strictly avoided. Doctors should familiarize themselves with TBCE’s (justifiably) broad definition of the term and employ the common-sense strategies in this article to mitigate the risks of patient complaints.

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| Read Time: 2 minutes | Healthcare Business Law

Employment Law Basics: Tips for the Entrepreneurial Doctor

Note: This article first appeared in the Fall 2016 edition of the Texas Journal of Chiropractic, the premier resource for Doctors of Chiropractic in Texas. To read the article in its entirety, click here. In his book The E Myth Revisited, Michael E. Gerber opines that the fatal assumption made by many small business owners is that “if you understand the technical work of a business, you understand a business that does technical work.” According to Gerber, this fatal assumption causes the technician to have an “entrepreneurial seizure” and start his or her own business. The problem, he explains, is that it takes much more than technical proficiency to operate a successful business. Many entrepreneurial Doctors of Chiropractic have lamented that their extensive (and expensive) education focused almost exclusively on technical proficiency. As a result, they graduated well-prepared to deliver excellent chiropractic care to patients, but poorly-prepared to operate their own clinic. The solution to this problem, according to Gerber, is to envision your business as a franchise from day one. This philosophical shift in your thinking will encourage the implementation of systems that will make your business more profitable and efficient. This article will discuss some key components of one of the most important systems in a chiropractic practice: human resources. Many entrepreneurs dream of becoming the boss. Fewer actively fantasize about becoming the HR Director. But if you intend to hire and fire employees, you’ll need to familiarize yourself with the basic tenets of employment law and develop systems to retain happy, qualified staff and minimize your legal liability. […] To finish reading this article, visit the Texas Journal of Chiropractic.

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| Read Time: 2 minutes | Healthcare Business Law

Starting a Business: Tips for the Entrepreneurial Doctor

Note: This article first appeared in the Summer 2016 edition of the Texas Journal of Chiropractic, the premier resource for Doctors of Chiropractic in Texas. To read the article in its entirety, click here. Many new doctors graduate from chiropractic school, decide to launch their own practice, and subsequently discover that while their education prepared them to deliver quality care to patients, it did not prepare them to own and operate a business. Doctors of Chiropractic aren’t the only victims of this curse. I spent more time in law school learning about the medieval roots of modern property law than managing a law firm. But while the former is an interesting conversation topic (perhaps), it’s the latter that keeps me from filing for bankruptcy. The legal profession has historically relied on apprenticeship to fill the gaps in law schools’ practical training. The same goes for Doctors of Chiropractic, who typically learn how to operate a clinic by working for an established practitioner. But what about the doctor who opts to start his or her own practice immediately after graduation? Or the doctor whose boss spent more time on the golf course than mentoring employees? Where do they begin? The first step is to assemble a team of professionals to guide you to success. Most small businesses need an attorney, banker, and CPA from day one. Identify professionals who have experience working with healthcare practitioners and understand their unique needs. Place an emphasis on the professional’s ability to speak clearly and concisely – because advice you can’t understand is worthless. Don’t overpay, but remember that the hundreds you save by filing your own business formation papers with LegalZoom, or your own business taxes with TurboTax, may cost you thousands in the long run. […] To finish reading this article, visit the Texas Journal of Chiropractic.

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