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Medical Office Compliance Plan: A Primer for Healthcare Business Owners

State and federal laws heavily regulate the healthcare industry in the United States. As a result, if you are involved in any level of providing healthcare services in our country, you must always remain aware that there are complex compliance issues you must adhere to. Here is a look at some of the basic regulatory issues you might encounter and how a healthcare law specialist can assist you in addressing them. Specific Issues and Risks Regarding Regulatory Compliance as a Healthcare Business Owner Complying with general contract and business laws and rules when you are a healthcare business owner is not enough. Medical offices deal with numerous other levels of compliance issues specific to their field. For instance, based on your business, you may find that you have to pay particular attention to rules regarding: Medicare billing for services; Facility licensing and certification; Hospital-physician contracting and alignment, and other non standard contract laws; Provider formation, operations, and acquisitions; Managed care compliance; Medical coding compliance plans and intricacies; Compliance with federal and state laws regulating HMOs and insurance companies; and E-health regulations. The examples listed above are just the tip of the iceberg. The number of compliance plans your healthcare business must put in place are extraordinary and often changing. Violations, even unintended, can lead to serious consequences. For instance, a compliance plan for a medical office, should be sure to address the Stark Law. Under provisions of the Stark Law, a doctor may not refer a Medicare or Medicaid patient to an entity in which the provider or an immediate family member has a financial interest for the provision of designated health services. This is one of several important Federal fraud and abuse laws that apply to healthcare businesses. Your office must have a medical compliance plan with checks and balances in place to ensure compliance with this law. Punishments for violating the Stark Law could include: Prosecution before the Department of Justice, Criminal penalties,  Civil fines, and Loss of your medical and business licences. These punishments can doom a healthcare business owner.  How a Lawyer Can Help Your Office With Medical Compliance Healthcare attorneys are trained, experienced, and focused on helping healthcare business owners create compliance plans and address non compliance accusations. Medical offices must be proactive in seeking legal assistance regarding formation of compliance plans and operating in alignment with those plans. It is also essential that your medical office have attorneys ready to defend you regarding non compliance claims. Proactive Legal Support If you are starting or already own a healthcare business, it is best to engage healthcare lawyers. Among other things, they can evaluate your business and provide services surrounding: Drafting and implementing a full compliance plan; Creating medical office contracts for transactions; Addressing medicare provider enrollment compliance; Preparing and negotiating full preferred provider agreements; Constructing physician compensation arrangements; Implementing mergers of medical groups; Purchasing equipment and lease agreements; Producing written policies, procedures, and standards of conduct documents; and Providing training and education on updated medical compliance. You need a law firm with healthcare expertise to address, review, or create a comprehensive medical compliance plan for your healthcare business. Doing so will aid you in avoiding critical issues in the future. Help During Regulatory Compliance Issues Along with providing early and ongoing support, healthcare lawyers can assist with representation and legal advocacy if you face an audit or legal challenge. These may include addressing issues such as: Disputes over department closure and scope of exclusive contracts; Joint venture litigation; Voluntary disclosure of Stark violations and refunding overpayments; Failure to comply with Medicare coding and billing requirements; Inquiries regarding state licensing laws;  Medicare and Medicaid suspension actions;  Dissolution of corporations and partnerships; Accusations of HIPPA compliance failures; Dispute resolution involving a medical code compliance plan; Shareholder (“buy-sell”) partnership and operating agreement choices; and Handling of provider payment disputes. The above list is not all inclusive. A lawyer who works with healthcare entities can provide timely and responsive legal representation for any issue you might face regarding audits, investigations, and alleged violations.  Whether you are part of a sole practice, medical group, hospital, managed care organization, or other healthcare related businesses, you need a medical compliance plan. Once that is in place, you should have ongoing assistance to ensure continued compliance with the ever changing regulations. If you find yourself in need of representation, you want a firm with excellent reviews you can trust to handle your case. But do not wait until you reach that point. Seek out help now to address your medical office compliance plan needs.  Massingill Attorneys & Counselors at Law: Providing the Massingill Difference Massingill Attorneys & Counselors at Law is an Austin, Texas-based law firm focusing on healthcare business law throughout the state. Clients provide the firm with an ongoing top notch rating, and view us as exceptional legal professionals who are also personable and caring. Along with healthcare law, the firm addresses family estate planning and an array of general business and employment law areas.  When you need trusted, experienced legal counsel, look no further. Massingill Attorneys & Counselors at Law offers a flat fee arrangement and quality representation. Reach out to us today online or at 512-410-0343. We are available via video, phone, or in-person consultation. 

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| Read Time: 4 minutes | Articles

FAQ: Medical Power of Attorney in Texas

There may come a time when a person loses the ability to communicate his or her health care decisions. Whether the person loses capacity as a result of an accident, disease, or old age, it can be a difficult time for everyone involved. To ease the emotional stress of these types of situations, Texans should consider completing a medical power of attorney.  What Is a Medical Power of Attorney in Texas? A Texas medical power of attorney (POA) is a legal document that authorizes a person (the agent) to make medical decisions on behalf of someone else (the principal) when they are incapable of doing so. A medical POA in Texas is sometimes referred to as an advance directive. How Do You Create a Texas Medical Power of Attorney? To create a medical power of attorney, Texas law requires that you either sign the document in front of two witnesses or have a notary public acknowledge your signature. Your signature is confirmation that you read and understand the information in the disclosure statement, which is a required part of the medical power of attorney. Texas Health and Human Services (HHS) provides a medical power of attorney form for Texas residents that is modeled off of the Texas medical power of attorney statute. Who Can Witness My Medical Power of Attorney in Texas? Any competent adult may witness a medical power of attorney. However, the following persons cannot be one of the witnesses: Your agent; A person related to you by blood or marriage; A person who could inherit a portion of your estate; A person who has a claim against your estate; Your doctor or one of your doctor’s employee’s; or A health care provider or their employee at a health care facility where you’re a patient. Remember, you also have the option to sign your medical power of attorney in front of a notary public.  Who Can Serve as My Agent? Anyone 18 years or older can serve as your agent, except for the following persons: Your doctor or other heath care provider; An employee of your doctor or health care provider, unless that person is your relative; Your residential care provider; or An employee of your residential care provider, unless that person is your relative. If you designate your spouse as your agent and later divorce, your spouse is no longer the agent.  When selecting an agent, choose someone you trust. Healthcare agents must make medical decisions per your instructions and in accordance with your wishes, which includes your religious and moral beliefs. However, if you do not have instructions on how to handle a certain situation, the agent must make the decision based on what the agent thinks you would want. This is quite a significant amount of responsibility.   What Medical Decisions Can My Agent Make for Me? Your agent can make almost any medical decision you could. However, your agent cannot consent to the following: Committing you to a mental health institution; Convulsive treatment or psychotherapy; An abortion; or Withholding care intended to provide comfort.  Keep in mind that you can limit the agent’s decision-making authority within your medical power of attorney. When Does the Texas Medical Power of Attorney Go into Effect? The Texas medical power of attorney goes into effect immediately once you sign the document and deliver it to your agent. However, the agent can make healthcare-related decisions only once your doctor certifies in writing that you are unable to decide for yourself. Up until that point, you have complete control over your own medical decisions. If you are deemed incompetent but later regain competency, then your agent loses the authority to make health care decisions for you.  Can I Revoke My Medical Power of Attorney? Your medical power of attorney lasts until it is revoked (i.e. canceled), you become competent, or upon a set expiration date. If at the specified termination date you are incompetent, the medical power of attorney remains in effect until you become competent or revoke it.  You can revoke it at any time. To revoke a medical power of attorney in Texas, you can do any of the following: Destroy the document; Sign a new medical power of attorney; Sign a written revocation; or Tell your agent or doctor that you intend to revoke your medical power of attorney.  A written or oral revocation takes effect once your doctor is made aware and records the revocation in your medical file. Is My Texas Medical Power of Attorney Valid in Another State? A medical power of attorney executed in Texas is only valid in a different state if that state allows it. Under Texas law, a medical power of attorney that is validly executed in another state has the same effect in Texas.  What Happens If I Don’t Have a Texas Medical Power of Attorney?  If you are unable to make your own health care decisions and you do not have a medical power of attorney, the following persons (listed in priority) will make decisions for you: Your spouse, Your adult children, Your parents, or Your nearest living relative. These people will have the decision-making power to withhold or withdraw life-sustaining treatment. All medical decisions must be based on what your wishes and desires might be.  Contact Massingill Attorneys & Counselors at Law If you need a Texas medical POA, the estate planning attorneys at Massingill Attorneys & Counselors at Law are here to help. We offer flat fee pricing and a personalized approach that will leave you feeling confident in your estate planning decisions. Our 5-Star Google rating speaks to the success we bring to our clients. Contact us today or give us a call at (512) 410-0343 to schedule your consultation.

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| 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 in Texas. Retaining a physician employment contract attorney’s services to identify the obligations and expectations of either party to physician employment agreements can minimize future disputes.  For assistance, please don’t hesitate to contact our firm online or call (512) 410-0343 today. 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 healthcare 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 employment contract or agreement, 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 healthcare 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 physician employment agreement. Arbitration is generally a less expensive and more efficient resolution to disagreements than litigation. An experienced healthcare business 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 or call our firm at (512) 410-0343 to discuss...

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| Read Time: 7 minutes | Healthcare Business Law

How to Sell a Medical Practice in Texas: Step by Step Guide

This comprehensive guide explains how to Sell a Medical Practice in 2021. We will review the most important things to consider before you move forward with your decision. A physician may sell their medical practice for a variety of reasons. For some, a well-deserved retirement is on the horizon, while others may be seeking a better opportunity elsewhere. A sudden illness or relocation are also motives to sell. Our guide is intended to help physicians navigate this complex process. Related Article: How to Buy a Medical Practice in 2021 [What You Should Know] For assistance, please don’t hesitate to contact us online or call (512) 410-0343 today. Build Your Team Selling a medical practice involves many legal, financial, and practical considerations. To navigate through these issues, you should recruit a team of professionals to assist you. Having experts to guide and advise you through the process will maximize the value of your practice.  The key is to build your team early in the process. While it may be tempting to jumpstart the sale process by guesstimating your practice’s value and seeking potential buyers, you could get stuck in an unfavorable situation. What may start as an informal negotiation could end up as a legally binding obligation. At a minimum, your team should consist of an attorney, accountant, and valuation expert.  Healthcare Business Law Attorney A competent healthcare attorney, experienced in the purchase and sale of medical practices, is invaluable. An attorney can assist you with the following: Compliance with state and federal healthcare laws, Due diligence, Employee and staff relations, Management of patient records,  Open contracts with third parties, and All legal documents related to the sale. Your attorney will help negotiate the terms of the sale and ensure that you do not have any unexpected obligations after it is complete. Certified Public Accountant (CPA) A CPA is integral to determining the accurate value of a medical practice. Having a CPA to create financial statements will provide a clear picture of the business’s financial status. Your CPA will also explain the tax implications of the transaction, which will help determine the type of agreement you enter into and how to structure the sale. Valuation Expert  Your medical practice’s value is the core of the entire transaction. The value affects the list price, attracts buyers, and sets the standard for the final purchase price. A health care valuation expert will perform extensive research and analysis on your medical practice to determine its fair market value, considering both tangible and intangible assets.  Valuing Your Medical Practice The valuation of the medical practice is what drives most of the negotiations toward a final purchase price. The fair market value (FMV) is the standard for valuing a practice. FMV is defined as the result of an arms-length transaction between an informed, willing buyer and an informed, willing seller. To value a medical practice, an appraiser will consider many factors, including: The nature and history of the business, Book value and financial condition, Economic outlook, Earning capacity, Fixed assets such as equipment and real estate, Goodwill and other intangible assets, Post-transaction compensation, and  Market comparables.  It is important to note that the FMV of the medical practice is not the same as the purchase price. Rather, the FMV is the basis upon which the parties determine the purchase price.  Find Multiple Buyers Having multiple offers could increase the value of your practice. The best way to locate potential buyers is to contact prospects, such as hospitals, colleagues, and competitors, and let them know you are considering selling your practice. Pre-Purchase Steps Many preliminary steps lead up to the final purchase of the medical practice. Preliminary Agreements To provide security for yourself, there are several preliminary agreements you should consider before investing time and money into the potential sale of your medical practice.  Letter of intent  Once you have a prospective buyer, consider executing a non-binding letter of intent. The parties can preliminarily resolve issues within the letter and outline the tasks to complete before entering into a purchase agreement. The letter of intent serves as a roadmap for the transaction.  Confidentiality and non-solicitation agreement As part of the due diligence process, the buyer will have access to confidential information of the practice, such as financial statements and employee and patient lists. To protect this information, you may want the buyer to sign a confidentiality and non-solicitation agreement. The terms of the agreement would prohibit the buyer from disclosing the information for purposes other than performing due diligence. The agreement would also bar any solicitation of employees and patients of the practice until after the sale. Structure of the Sale  You and the buyer must agree on whether the medical practice’s sale will be a stock purchase or asset purchase. A stock purchase is when the buyer purchases the entire business, taking complete ownership and acquiring all assets and liabilities. In an asset purchase, the seller remains the practice’s legal owner and the buyer purchases only specific assets, such as equipment, licenses, inventory, and goodwill. There are significant legal and tax implications to either type of sale. Your CPA and attorney can guide you on this and advise on which option best suits your needs. Due Diligence Both the buyer and seller will go through their own due diligence process. The buyer’s due diligence will involve learning the ins and outs of the medical practice to ensure that the business is accurately portrayed. To accomplish this, the buyer will do the following:  Examine financial records, including tax returns and financial statements; Review all assets and liabilities;  Ensure compliance with applicable healthcare laws and regulations; Understand the billing and coding process of the practice; Assess all current working relationships; Review all open contracts, such as supply contracts and lease agreements; and  Analyze any ongoing litigation matters. The seller’s due diligence is not quite as lengthy as the buyer’s but just as important to the transaction’s success. Ensure compliance with the corporate practice of medicine The corporate practice of...

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| Read Time: 6 minutes | Healthcare Business Law

How to Buy a Medical Practice in Texas [Step by Step]

This is a step-by-step guide on How to Buy a Medical Practice in 2021. Purchasing a practice is an incredible undertaking and a complex process. In this guide, you will learn how to acquire a medical practice and better understand the factors you should consider before making a final buying decision. Whether you want to expand your current practice or go completely solo, there are many practical, legal, and financial considerations. Our guide is intended to help you navigate this purchasing process. Related Article: How to Sell a Medical Practice in 2021 [Step by Step] For further assistance, please send us a message or call (512) 410-0343 today. Decide What You Are Looking For When considering a practice to purchase, you need to determine whether it fits your lifestyle and personality, not just your medical expertise. Here are some important considerations: Culture—do you see yourself working in that kind of atmosphere? Location—are you happy with the location of the practice, from the neighborhood to the actual building itself? Management style—are the services, policies, practices, and procedures within your skillset and something you are comfortable with? Staff—will the staff remain with the practice, or will you have to hire new employees? Patients—are the current patients the demographic you are comfortable providing medical care to long term? You also need to know whether you want a stock purchase or asset purchase. In a stock purchase, the buyer takes full ownership of the entire practice, including all assets and liabilities. In an asset purchase, the buyer purchases only certain assets, such as customer accounts, medical equipment, and services contracts. There are significant legal and tax consequences to both options. An experienced Texas healthcare attorney can walk you through both purchase types and make recommendations based on your goals.  Corporate Practice of Medicine There are limitations on who can practice medicine and provide medical services. The Corporate Practice of Medicine (CPOM) is a legal doctrine that protects patients from the commercialization of medicine. Creators of the CPOM feared that health care providers would make decisions based on increasing profits as opposed to providing quality care. Under Texas’s CPOM doctrine, unless they meet an exception, corporations and business entities cannot practice medicine in the state. Additionally, corporations and non-physicians cannot employ a physician to provide health care services in Texas.  The CPOM is applicable when choosing how to structure the purchase of a medical practice. If the transaction is an asset purchase, you need to select an entity type that will be buying the assets. This entity must comply with the CPOM. Letter of Intent Once you choose a medical practice to purchase, you may consider agreeing to a non-binding letter of intent. The letter memorializes certain expectations and obligations of the parties. It is also a way to preliminarily resolve issues before going further into the purchase process. A comprehensive letter of intent sets the groundwork for the purchase agreement. Valuation The practice’s valuation is at the center of most negotiations in the purchase of a medical practice. Appraisers use the fair market value standard, which is the price that results from a bargained-for exchange between a willing, informed buyer and a willing, informed seller.  It is best to hire your own valuation expert to confirm the seller’s value of the practice. Do not blindly agree to the seller’s valuation. The seller’s broker may inflate the valuation because most brokers are commission-based, so they have an incentive to increase the value. Additionally, medical practice owners often include their sweat equity in the valuation. When you work with an appraiser, as a neutral party, he or she can provide a more accurate valuation.  Due Diligence Due diligence is an investigation of the facts and details of a company. The buyer’s due diligence process is more extensive than the seller’s. For the purchase of a medical practice, the buyer’s due diligence typically requires a review of the following: Financial statements, Assets, Books and records, Tax returns, Accounts receivable, Personnel files, Employee agreements, Patient charts, Insurance policies, and List of creditors. The buyer will also want to perform a physical inspection of the premises where the medical practice is located. The building and premises should be in compliance with all applicable building and zoning ordinances, For any third-party leases or contracts belonging to the medical practice, the buyer should know which contracts are assignable. Some contracts are essential to the operation of the practice, so the buyer will want to include those as part of the purchase. Examples include equipment and services contracts, real estate leases, software licenses, and marketing and advertising agreements. The most important contract is the real estate lease. Do not make assumptions about the property on which the practice is located. It is best to negotiate a new lease with the landlord, which may be as simple as the seller assigning his interest to the buyer.  Another part of the due diligence process is conducting a search on the medical practice as an entity and the principal owners to learn of any liens or lawsuits. This information will help you spot potential risks and give you tools to negotiate a fair purchase price and sale terms of the medical practice.  Lastly, the buyer should ensure that the practice is in compliance with all applicable state and federal healthcare laws and regulations. An experienced healthcare business attorney will be invaluable at this stage based on the volume of information to be evaluated. The Purchase and Sale Agreement Once all due diligence is complete, the parties will negotiate the terms of a purchase and sale agreement to finalize the transaction. This document encompasses all due diligence findings, negotiations between the parties, and legal responsibilities and obligations.  Basic Terms  As with any contract, the purchase and sale agreement will have basic provisions regarding the sale, like what is being sold, the type of sale, and the sale terms. Some of these terms might include: Consideration,  Purchase price,  Time limits on financing,  Important dates, and  Consequences of failure to secure financing. The parties...

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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. 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.

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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. 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.

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