When to Call a Business Attorney About Your Medical Practice

There was a time when all you needed was a medical degree and a license to run a medical practice. Now MICA members are inundated with business, reimbursement, employment, and regulatory issues that fall outside the scope of medical professional liability (MPL) but are nonetheless important components for a successful career.

Physicians and staff don’t have the time to monitor non-MPL developments and requirements or to understand their impact. Undergraduate and medical education and training programs cannot keep up with the pace of physicians leaving the practice of medicine. Arizona, Colorado, Nevada, and Utah practices are reporting medical assistant and other clinical personnel shortages. As a result, MICA members are taking on more administrative tasks, including scheduling their own appointments and transmitting prescriptions, and their remaining staff is overwhelmed.

Should You Have a Business Attorney for Your Medical Practice?

An established relationship with a business attorney or a health care law firm can save MICA members steps, money, and heartache. Many practices manage business expenses by dealing with business relationships and transactions, practice operations, labor and employment concerns, billing and coding processes, and regulatory requirements on their own. They believe they are saving money on the front end but generally spend more after-the-fact than they would have spent working with an attorney from the start.

Most physicians and practices don’t have the education, training, experience, or resources to monitor all the legal and regulatory developments and changes affecting their business, employment, financial processes, and other non-medical operations. On the other hand, business and health care attorneys spend a substantial amount of their time monitoring relevant regulatory and legal issues so they can offer timely advice when physicians call. Their fees may seem high but usually reflect their continuous study of statutes, regulations, and court rulings affecting their health care clients.

The Cost of a Business Attorney Can Save You In The End

Short and frequent calls to a business or health care attorney can result in significant cost savings in the long run. Unsound business practices and decisions may lead to litigation or regulatory actions, resulting in a hefty legal bill that may have been avoided with one phone call to an attorney early-on.

Miranda Preston and Robert J. Milligan, shareholders with Milligan Lawless, P.C., a health care law firm in Phoenix, Arizona, shared the following examples of spending on the front end to save on the back end.

• The physician wants to lease office space in a hospital medical office building. The hospital sends the physician a lease but inadvertently leaves out language required for compliance with federal law. A health care attorney could easily identify the omission and prevent an ongoing investigation and the potentially devastating consequences of violating federal law.
  
  
• The medical practice is using an outdated employment contract, which doesn’t include information required by the Arizona Fair Wages and Healthy Families Act but includes an unenforceable noncompete clause. A business or health care attorney could review the contract and assist with negotiations to help the practice avoid fines, other penalties, and investing in a new physician without financial and market protections. A qualified attorney may also provide a template employment contract addressing these and other issues that, along with a follow-up conversation, could result in an employment agreement tailored to the needs of the medical practice and complying with state law.
  
  
• The physicians and practice administrators hire a marketing firm to send emails to patients about a new medical procedure available through the practice. After receiving the email, a patient says he did not authorize the use of his protected health information for marketing purposes and informs the practice that he just filed complaints with the U.S. Department of Health and Human Services Office of Civil Rights and the state medical board. The MICA Claim department is available to take your report of the complaints, but a business or health care attorney could have identified potential HIPAA Privacy Rule violations, problems with the business associate agreement, and notice-of-privacy-practices concerns before the practice hit “Send.”

When to Call Your Business Attorney About Your Medical Practice

In addition to helping you prevent business and regulatory losses, a business or health care attorney can legally protect your conversations and their advice. Most consultants and other professionals cannot. The protection is especially valuable for questions and ideas involving multiple business or regulatory risks. 

A business or health care attorney can help with the following and more:

• Structuring the practice (for example as, limited liability partnerships or corporations, private corporations, sole proprietorships, limited partnerships, or “S” corporations, etc.) to protect owners, principals, and partners, especially when someone leaves.
  
  
• Reviewing contracts (for example, business associate agreements; property, equipment, building, or office space leases; employment or independent contractor agreements; noncompete agreements; agreements to supervise physician assistants; vendor and supplier contracts; agreements to serve as a medical director; agreements to buy or sell a practice or property; fee-splitting agreements; and third-party payor agreements) and assisting with revising, negotiating, or enforcing those agreements.
  
  
• When the physician or practice is served with a non-MPL lawsuit or notice of a non-MPL claim (for example, breach of contract, employment practices liability, workers compensation benefits, and premises liability).
  
  
• Reviewing, negotiating, and/or assisting with enforcing agreements with other physicians or clinicians to share office space, personnel, or equipment, and referrals of patients between the physicians or clinicians.
  
  
• Structuring practice operations and services to comply with federal health care statutes and regulations, including HIPAA, the Information Blocking Rule, the No Surprises [billing] Act, the Stark [physician self-referral] Law, and the anti-kickback statutes. MICA members should report complaints and investigations related to these laws to the MICA Claim department.
  
  
• Responding to any communications from a federal agency such as the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), or Department of Labor (DOL). MICA members should report criminal investigations of patient care or negligent treatment allegations to the MICA Claim department.
  
  
• Suspicion of illegal or fraudulent prescription activity by a practice partner, other licensed practitioner, or employee.
  
  
• Responding to allegations of criminal or sexual misconduct or harassment by a practice partner, other licensed practitioners, or employee.
  
  
• Reporting another licensed physician, clinician, or health care professional to a licensing board as well as defend physicians or clinicians facing disciplinary action from a licensing board. MICA members should still report notifications of board complaints and investigations to the MICA Claim department.
  
  
• Developing a confidential medical practice peer-review process.
  
  
• Product liability issues, such as compounding and dispensing medications, selling skin care products and dietary supplements, and finding the right type of insurance coverage.
  
  
• Offering new ancillary services.

Most MICA members believe capable and experienced practice administrators, coding and billing specialists, and bookkeepers or accountants are essential to a successful medical practice. They can manage many day-to-day problems and issues, but the practice of medicine today involves complex non-MPL statutes with multiple regulations with fines or other penalties for noncompliance, new technologies, and time constraints. A business or health care attorney can free up your team’s time to carry out business and patient care-related tasks and help you avoid non-MPL risks.

If you have received a request by a state medical board for copies of patient records or a notice of an investigation of a patient complaint, you should immediately call the MICA Claim department.

Report all claims, occurrences, and lawsuits, including cyber attacks and data breaches, immediately by calling the MICA Claim department at 602-956-5276 or 800-352-0402.