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| Dear Friend,
Work.
That's the subject of this past Monday's blog post, which you can read at the following link,
I came up with the idea for this post on my way into work while thinking about work.
No, not thinking about my work, but about yours. In fact, I’m thinking about your work to the extent that you’re using physicians as independent contractors.
In general, the issue of classifying a worker as an independent contractor versus an employee is determined both by federal law and by state law, for example, the Labor Code changes in California brought about a few years ago by a bill referred to as AB5.
In a general, non-state specific sense, it’s far easier to successfully engage an independent contractor physician than, let’s say, an independent contractor office worker for your back office. That’s because of the issue of direction and control. Historically, physicians have exercised independent direction and control over their work circumstances.
Here are two new elements for you to consider:
The first is that, unfortunately, I’ve seen many medical groups engaging independent contractor physicians — in other words, people who are treated economically as independent contractors — using documents that they have entitled “Employment Agreement,” or documents that they have entitled “Professional Services Agreement”, that then refer to the independent contractor physician as “the employee.”
Bad.
The second, is about the imposition of control over the way physicians exercise, or don’t exercise, their professional discretion.
For example, more clinical pathways, and more control by lay entities, by hospitals and their captive medical groups, over physicians destroys many of the elements of professional discretion. Has so much discretion been removed that physicians, under whatever labor category title, are as likely to be treated as employees as those on the office staff?
What this really means is that you need to do significant planning in advance of engaging anyone, even a physician, as an independent contractor.
And, under any circumstance, don’t make the foolish mistake of referring to an independent contractor as an “employee”, whether in an independent contractor agreement or anywhere else. Only bad can come from that. Why weren’t you withholding? Why weren’t you turning over those withholdings to the federal government or to the state? What sort of penalties do you owe?
A big mess.
Apply my usual metaphor: Before engaging a physician as an independent contractor, think like in carpentry: measure twice, cut once.
Don’t do what usually happens the real world, which is measure incorrectly to begin with, and then cut away.
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| | | Business Life in the Time of Coronavirus Mini-Series
The coronavirus crisis caused a short term economic crisis for many medical groups. Our mini-series shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
[If you haven't already seen them, follow this link to watch our entire series.] |
| | Tuesday – Walmart Explores New Healthcare Delivery Concept – Success in Motion Watch Tuesday's video here, or just keep reading below for a revised, more polished transcript:
I read a news release about another healthcare venture by Walmart. This one’s interesting.
Picture a large Walmart store with an extremely large parking lot sitting in front of it. In some cases that parking lot is even bigger than what’s required by codes.
Walmart's exploring the concept of creating Walmart “town centers” which are essentially the creation of a parking lot “mall” around a Walmart store, in which they’ll lease space to stores that don’t compete, but complement, the offerings of the Walmart. Healthcare practices are on the list.
Here are a few takeaways for you:
1.) Once Walmart establishes proof-of-concept, you can be pretty sure they’re going to big or go home. In other words, it’s either going to be something they pursue in many areas of the country, or it’s going to be something that they discover doesn’t work and they’ll simply lease to non-healthcare ventures or even drop the whole initiative.
2.) Even more importantly, it means an interesting type of new opportunity for physician-led ventures. Certainly, it could be the establishment of a clinic or an office location at a Walmart town center. But it can also be looking at locations adjacent to other big-box type anchor tenants, as in a mall, in which a mall developer places very large department stores at key points in the center and then leases at far more profit to lots of specialty retailers in between. Maybe that’s a model that’s dying in parts of the country due to Amazon, but certainly the Walmarts and other similar big-box draws pull in tremendous foot traffic – patient traffic.
Ask yourself what kind of deals can be made with those types of patient magnets for more consumer-type medical facilities.
For example, in concert with my development colleague, we’re looking at existing surgery center ventures as well as at a wide range of real estate-oriented ventures, whether it’s built-out space for surgery centers, medical office buildings, imaging facilities, or what I call “Massive Outpatient Clinics”, ventures with all of the elements of a hospital without the money-sucking sorts, the type that requires union labor and too much investment.
Get in touch if you want to discuss your situation. Consider these sorts of opportunities as new ways of looking at your practice, business, or simply at what you do.
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| | How to Deploy the Secret Sauce of Opportunistic Strategy
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They say that COVID-19 has changed the world, creating the "new normal." Many of your colleagues and many hospital administrators are running scared.
Others, leaders like you, know that crisis means opportunity.
Let me provide you with the strategic tools and insights that you need in order to seize opportunities, whether they’re in the context of your current business relationships, the expansion of your business activities, or the creation of new ventures.
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•Defense as a defective default: It’s necessary, but not sufficient.
•Exploiting weakness: Drop the guilt and identify opportunity.
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Others see a crisis and freeze in fear. Learn how to see the opportunities and obtain the tools to increase your odds of obtaining them.
The price to attend is $479. The cost of not attending is astronomical. |
| | | Wednesday – Adopting the Contingency Mindset to Improve Your Business– Medical Group Minute
Watch the video here, or just keep reading below for a slightly polished transcript:
Let’s talk about contingency fees. No, not contingency fees in the sense of a personal injury or a medical malpractice lawyer. And no, not contingency fees in the sense of the type of contingent and blended fee deals that I do on transactions with clients from time to time.
Instead, I want to talk about you being on a contingency fee.
I certainly know that my audience is comprised chiefly of physician leaders, as well as the owners of healthcare facilities who don’t consider themselves on contingency unless you do some workers’ compensation work — which is sometimes a form of contingency work.
But what I’m talking about is a contingency mindset.
How would you conduct yourself and your practice/business if you were compensated only for a successful outcome? For purposes of this mind experiment, this thinking tool, it doesn’t matter how you measure “success.” It could be a happy patient, it could be a successful treatment or successful procedure, it doesn’t matter. But if that were the case, that you were only paid upon “success,” how would you organize things and operate differently?
It seems simple. It seems like it is a game. But think about it, because the reality is that you are on that contingency basis. Referral sources could leave you and facilities can terminate your contract. Patients could walk for someone across the hall or across town.
So spend some time thinking about it: How would you reorder your business, your practice, and your relationships, if the only way that you got paid was based on a successful outcome?
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| | Thursday – Surgeon Gets Just Desserts for Healthcare Fraud – Podcast |
| Listen to the podcast here, or just keep reading for the transcript.
What is your favorite dessert, something that goes well with barbecue? Whether it’s pie or vanilla ice cream (or both!), it’s probably not 10 years in federal prison. That is the just desert dished out to spine surgeon Mark Kuper, D.O. in late February 2021 for his role in a conspiracy to defraud Medicare, Medicaid, and Tricare. Front and center in the story are Mark Kuper, D.O., and his wife (and errant barbecue pit-master) Melissa Kuper. The Salad DaysDr. Kuper, trained as an orthopedic surgeon, initially practiced in that medical specialty, but, apparently, as a result of medical malpractice lawsuits, gave up his surgical practice. Instead, in 2014, he began operating a pain management practice, the Texas Center for Orthopedic and Spinal Disorders (“TCOSD”), from two clinic locations. Mrs. Kuper served as TCOSD’s office manager. In 2016, a TCOSD employee, Richard Brown, filed an original, sealed whistleblower complaint against Dr. Kuper, alleging a host of False Claims Act violations. As a result, in spring and summer 2017, the U.S. Department of Health and Human Services and the Texas Attorney General’s Medicaid fraud unit issued subpoenas to Kuper and TCOSD seeking medical and billing records related to federally funded healthcare programs. It is reported that, after receiving the subpoenas, Dr. Kuper paid his staff overtime to put the practice’s records into cardboard boxes which were then taken by Dr. and Mrs. Kuper to their approximately 7,800 sq. ft. home outside of Fort Worth. OvercookedOn what was probably a breezy day in October 2017, Mrs. Kuper decided to barbecue some medical records in their home’s outdoor fireplace in a misguided (on multiple levels) attempt to destroy evidence. Apparently forgetting one of the basic rules of starting a fire, she left it unattended. Before long, their mansion was in flames. In no time at all, it burned to the ground. But not all of the medical records did; firefighters found a recognizable pile of them in the fireplace. At the end of May 2020, the U.S. Government intervened in the whistleblower suit brought by Mr. Brown. And, on June 17, 2020, both of the Kupers as well as a physical therapist associated with TCOSD practice, Travis Couey, were criminally indicted for conspiracy to commit health care fraud, for health care fraud itself, and for unlawful distribution of controlled substances. Just DesertsThree months after the indictment, Dr. Kuper pleaded guilty to one count of conspiracy to commit healthcare fraud. In late February 2021, he was sentenced to 10 years in federal prison. In connection with his plea, Dr. Kuper admitted: - That he fraudulently build insurance for services that were never rendered, including physical therapy and psychotherapy.
- That patients were required to attend bogus appointments in order to obtain prescriptions for Schedule II controlled substances.
- That he used a boilerplate template for physical therapy plans although he submitted claims stating that TCOSD developed individualized plans for each patient.
- That TCOSD billed for one-on-one therapy, even though patients met in groups with a trainer, not a physical therapist.
- That he gave his wife access to the secure device and passcode he used to sign controlled substance prescriptions, allowing her to improperly dispense pain medications on her own initiative, without his input.
- That although he billed insurers for professional 60-minute psychotherapy sessions, most patients actually spoke with unqualified professionals for just 15 to 20 minutes – often when he was out of the office.
According to the Department of Justice’s press release, Dr. Kuper billed as though he’d provided more than 100 hours’ work in a single 24-hour day. From 2014 to 2017, he submitted more than $10 million in claims to Medicaid, Medicare, and TRICARE. The DOJ also stated that Dr. Kuper tried to cover up evidence of the fraud by accessing hundreds of electronic patient records and altering the purported treatment notes to make them appear more comprehensive. Melissa Kuper pleaded guilty in September 2020 and received an 18 month sentence. Travis Couey, the TCOSD physical therapist, pleaded guilty in September 2020 and received a 36 month sentence. |
| | | Calibrate Your Compass
Read our exclusive RedPaper to guide you through this evolving situation.
The coronavirus crisis caused a short-term economic crisis for many medical groups. Our RedPaper shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
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| | Help Us Help You With Helpful Content
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| | | | We all hear, and most of us say, that the pace of change in healthcare is quickening. That means that the pace of required decision-making is increasing, too. Unless, that is, you want to take the “default” route. That’s the one is which you let someone else make the decisions that impact you; you’re just along for the ride. Of course, playing a bit part in scripting your own future isn’t the smart route to stardom. But despite your own best intentions, perhaps it’s your medical group’s governance structure that’s holding you back.
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| In fact, it’s very likely that the problem is systemic. The Medical Group Governance Matrix introduces a simple four-quadrant diagnostic tool to help you find out. It then shows you how to use that tool to build your better, more profitable future. Get your free copy Free.
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| | | | Whenever you're ready, here are 4 ways I can help you and your business:
1. Download a copy of The Success Prescription. My book, The Success Prescription provides you with a framework for thinking about your success. Download a copy of The Success Prescription here.
2. Be a guest on “Wisdom. Applied. Podcast.” Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.
3. Book me to speak to your group or organization. I’ve spoken at dozens of medical group, healthcare organization, university-sponsored, and private events on many topics such as The Impending Death of Hospitals, the strategic use of OIG Advisory Opinions, medical group governance, and succeeding at negotiations. For more information about a custom presentation for you, drop us a line.
4. If You’re Not Yet a Client, Engage Me to Represent You. If you’re interested in increasing your profit and managing your risk of loss, email me to connect directly. |
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