Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 1                   ADVERTISEMENT                            January 2015

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In This Issue
Government Investigations: Subpoenas and Requests for Information
Physician Employment Contracts
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

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Government Investigations: Subpoenas and Requests for Information

By: Jo Ann Halberstadter, Esq. 

 

 

The Department of Health and Human Services, Office of Inspector General (OIG) has broad authority to request access to examine records, information, and documents relating to the programs and operations within its jurisdiction.  The request can come in the form of a Request for Information, Administrative Subpoena, Demand for Immediate Access, HIPAA Administrative Subpoena, or a Grand Jury Subpoena.  Regardless of which type of request is used, it is important to always keep in mind the following:

 

  1. Always seek legal counsel immediately upon learning of  such request;
  2.  Denying or ignoring a request can result in suspension or exclusion from government health programs;
  3. It is important to limit your response or production only to those materials being requested and to consider potential patient confidentiality and privacy issues;
  4. DO NOT destroy or alter ANY documents or materials in anticipation or as a result of the request;
  5. And finally, document, document, document!  This includes documenting all efforts to locate and produce the materials or records requested and all efforts taken to protect against destruction or modification of information.  It also includes documenting the name of every person and government agent who contacts you or appears at your facility.

 

The OIG has authority to request information without issuance of a subpoena.  As a general rule, this request comes in the form of a letter requesting records and documents.  The letter can also include a request to interview certain employees.  It is important to know that an OIG must limit a Request for Information to information and materials relating to the Medicare and Medicaid programs.  Also, it is important to know that the OIG cannot compel an employee interview.  The employee has the right to refuse or request the presence of an attorney without negative repercussions.  However, a facility is not permitted to interfere with an employee's decision to be interviewed or answer questions.

 

The OIG has the authority to subpoena all information, documents, reports, answers, records, accounts, papers and other data and documentary evidence related to an Inspector General's investigation.  However, the OIG is not authorized to subpoena a witness for deposition or to compel testimony.  Therefore, if under investigation, it is often prudent to let your employees know that there is an ongoing investigation and that they should be prepared for unannounced interviews by government agents who may appear at their homes or at other non-work related locations and times.  All interviews with employees are completely voluntary.  An employee has the right to request that the interview take place at a different time/location and to have an attorney present at the time of the interview.  It is intimidating to be approached by a government agent.  Advanced notice and a discussion of their rights with your employees will help prepare them in the event of an unannounced visit/interview.

 

The OIG and State Medicaid Fraud Control Units (MFCU) can request "immediate access" to a healthcare provider's office.  Such request for immediate access must be in writing, detailing the scope of the request, and signed by an OIG or state MFCU representative.   "Immediate Access" usually means within 24 hours of receipt of notice/letter.  When faced with a Request for Immediate Access, it is important to gather the documents outlined in the request and have them all in one place for the agent to inspect so as to limit the agent's exposure to other documents or evidence.  In the event of an unannounced agent visit, it is important to request: 1) the presence of your attorney; 2) a business card identifying each person present and his/her position and contact information; 3) all questions and requests be put into writing for review by counsel; and 4) that copies are made of any document produced by the facility for the agent.

 

Responding to an OIG request for information or subpoena is a time consuming and difficult task.  It requires identifying all information requested and ensuring that procedures are put in place to prevent destruction/modification of the information as well as for limiting production of information to the scope of the inquiry.  It also requires a documentation system of all efforts taken by a facility to identify, protect, produce and otherwise comply with the subpoena or request.  Such documentation is often requested by the OIG and also demonstrates a good faith effort to comply with the investigation. 

 


 

If you have any questions regarding this article, please contact    Jo Ann Halberstadter, Esq., at jhalberstadter@barmak.com or call (609) 454-5351.

 

Physician Employment Contracts
By: Gerald V. Burke, M.D., Esq.

 

Medicine is rapidly moving away from a cottage industry of solo and small group medical practices into an era of large, corporate entities providing healthcare by contracting physicians and other health care providers as employees of the corporate entities.  This change of medical practice venue results in dramatic alterations not just in the physician's professional experience and satisfaction, but in the very core of the doctor-patient relationship.

 

This employed-physician practice model may be attractive to physicians who are looking to avoid the responsibilities of running their own medical practice or find themselves economically squeezed and no longer financially competitive in the current health care environment. Unfortunately, prior to entering into an employment contract with a corporate healthcare entity, the physician frequently has not obtained adequate legal counsel regarding the ramifications of the current day physician employment contract. The contractual review and modifications that a skilled healthcare attorney can provide the physician in this process will frequently uniquely alter the terms of the employment contract to the significant benefit of the physician. 

 

Based on feelings of either indifference or helplessness, physicians find themselves bound to terms of employment that are unfair and onerous. Employment agreements between physicians and employing corporate entities that are amicable throughout their duration are infrequent.  Instead, physicians find themselves pressured to meet production goals that change the nature of their practice of medicine from being a pleasure to a stressful nightmare.  All too often, these employment relationships end with the physician being discharged "out onto the street" with an inability to retain their patients or enter a new practice within a reasonable geographic distance of their patients, homes and communities.  They quickly learn that, unmodified, restrictive covenants are very binding and enforceable.

 

Fortunately, most, if not all of these issues can be avoided if appropriate contracting is carried out under the tutelage of a healthcare law attorney skilled both in the area of contracting and the practice of medicine within a business employment model.  This individual not only knows the law, but understands the practice of medicine from his personal experience as a physician, not just a receiver of medical care.  This unique position empowers the physician/attorney to negotiate terms of an employment contract directly with the attorneys representing the employing healthcare entity.  Attorney to attorney discussions will frequently be much more pliable and productive as regards the ability to effect changes beneficial to the physician within the contract.  As a physician with experience working within a business model of medicine, the physician/attorney has an intimate understanding and ability to anticipate many of the problems that are unforeseen by either the physician or a general healthcare attorney.

 

By recognizing potential and real issues and addressing them in advance, attorney to attorney, binding language will only be inserted into the contract that will control and direct how these issues will be resolved in a fashion most favorable to the physician. This serves to prevent an employer from imposing terms on the physician or other health-care provider that are unexpected or unwanted.  Short, vague contracts or overbearing, one-sided contracts are to be avoided. Signing these contracts is usually to the peril of the physician.

 

Examples of modifications that can be enacted in physician employment contracts resulting in dramatic results include modifications to standard restrictive covenants, (so important when the employment agreement ends), on-call requirements, (including frequency, duration, and days off after call), medical malpractice insurance terms (including tails for "claims made" policies), and issues such as sick days, disability, and funds for professional fees and conferences.  While it may appear to the contracting physician that these issues are not negotiable, when handled by a skilled healthcare attorney, particularly one who is also a practicing physician, many very beneficial modifications can be achieved.

 

If you would like to explore the benefits of a practicing physician/attorney to your personal situation, please contact Gerald V. Burke, MD., Esq., Chairperson of the Physicians and Practitioners Section at the law firm of of Barmak and Associates at 609-454-5351 or gburke@barmak.com. 

 

 

Barmak and Associates, LLC      

 

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.

   

Representative Clients: 

Entities:  Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

 

Providers: Physicians; Therapists; Orthotists and Prosthetists

 

Suppliers:  Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

 

Businesses: Billing; Management service organizations; Independent provider associations

 

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

 

Transaction Issues: General Counsel Services; Contracts.
          
Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

  

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.
  
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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

  

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com

  
  
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