20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we often receive calls from physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Physician employment agreement, physician employment contract, health professional contracting, negotiating business transactions, physician contracts, contracting tips, legal representation for physician contracts, legal representation for negotiating physician contracts, contracting defense attorney, physician contract attorney, legal representation for contract litigation, legal representation for business litigation, legal counsel for contract terms, legal representation for physician agreements, legal representation for business transactions, legal counsel for restrictive covenants, legal counsel for noncompetition agreements, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, health law defense attorney, health law attorney

“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

Advertisements

Florida Gov. Rick Scott Makes Changes to Florida Impaired Practitioners Program

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 31, 2017, Florida Governor, Rick Scott, signed into law House Bill 229 (Ch. 2017-41, Laws of Florida), which made changes to the statutory basis for Florida’s impaired practitioner programs. The impaired practitioner program for nurses in Florida is the Intervention Project for Nurses (IPN), which is a for-profit corporation, The impaired practitioner program for doctors, dentists, pharmacists, optometrists, and all other licensed health professionals is the Professionals Resource Network (PRN), a non-profit corporation.

The program, as envisioned in the statute, is designed to assist health care practitioners who are impaired as a result of the misuse or abuse of alcohol or drugs, or of a mental or physical condition, which could affect the ability to practice with skill and safety.

Revisions to the Program.

The new law requires DOH to establish terms and conditions of the program by contract, provides contract terms, requires DOH to refer practitioners to consultants and revises grounds for refusing to issue or renew license, certificate, or registration in health care professions.

A significant change in the program involved a licensee’s duty to report colleagues that have or are suspected of having an impairment. The new law creates an exception to the mandatory reporting of an impairment to the DOH. The new revision will allow a licensee who knows that a person is unable to practice with reasonable skill and safety due to an impairment, to report such information to the consultant, rather than DOH. Both the core licensure statute and individual practice acts are amended to include this language.

Be sure to check Florida’s DOH website regularly for news and updates, here.

To learn more about how The Health Law Firm can help you with matters involving the DOH, click here.

If You Are Instructed to Contact IPN or PRN, Call an Attorney First.

If you are ever instructed by your employer or anyone else to report yourself to the Intervention Project for Nurses (IPN) or to the Professionals Resource Network (PRN), consult with an experienced health law attorney first. There are many problems that you can avoid by having good legal advice before you make a stupid mistake. We are often consulted and retained by clients when after they have made mistakes in talking to the wrong people about the wrong things and are in a situation they could have avoided.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers. We represent impaired physicians and other health professionals in Professional Resource Network (PRN) and disruptive physician matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Sources:

“Changes to Florida Reporting for Impaired Practitioners.” Holland & Knight LLP. (June 7, 2017). Web.

Mckown, Mia. “Changes to Florida Reporting for Impaired Practitioners.” Lexology. (June 7, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for impaired physicians, Legal representation for Department of Health (DOH) investigations, Intervention Project for Nurses (IPN) attorney, Professionals Resource Network (PRN) defense legal counsel, DOH investigation defense attorney, legal representation for investigations against health care professionals, legal representation for Florida DOH investigations, Florida DOH representation, DOH complaint defense, legal representation for DOH complaint, Florida impaired practitioners program, legal representation for PRN matters, legal representation for IPN matters, legal representation for disruptive physician issues, health law defense attorney, legal representation for health care professionals, changes to Florida impaired practitioners program, legal representation for health care investigations, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

 

Jury Convicts Doctor and Medical Billing Company Owner for $28 Million Medicare Fraud Scheme

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 1, 2017, a federal jury in Michigan found a Detroit-area doctor and owner of a medical billing company guilty of perpetrating a $28 million health care fraud scheme. The scheme involved billing Medicare for pain treatments that weren’t actually provided, the U.S. Department of Justice (DOJ) said.

Health Care Fraud Scheme.

Dr. Johnny Trotter and Elaine Lovett were both convicted after a four-week jury trial on one count of conspiracy to commit health care and wire fraud and three counts of health care fraud. In addition to the fraud scheme, both Trotter and Lovett also worked to dodge Medicare’s investigation into Trotter, according to the DOJ.

Evidence at the trial showed that between May 2008 and May 2014, both Trotter and Lovett fraudulently billed for services that were never provided. These services were predominantly nerve block injections, which treat pain by numbing groups of nerves.

In 2009, Medicare grew suspicious and began to require that claims submitted by Trotter satisfy a medical review prior to payment pre-payment review). As a result, both Trotter and Lovett conspired to dodge this investigation by starting fake medical centers, according to the prosecution said.

Trotter and Lovett attempted to hide their involvement by recruiting family members and employees to serve as “straw owners” of the companies. Meanwhile, the two fraudsters continued receiving payment for services that weren’t provided, the government said.

To learn more about health care fraud and the repercussions of Medicare fraud, click here to read one of my prior blogs.

Watch our short video blog on Medicare fraud and the audit process here.

 

Contact a Health Care Attorney Experienced in the Representation of Medicare and Medicaid Fraud.

The Health Law Firm and its attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicare and Medicare investigations, audits and recovery actions.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Kennedy, John. “Jury Convicts 2 Over $28M Medicare Pain Treatment Fraud.” Law360. (May 1, 2017). Web.

“Jury Convicts 2 Over $28M Medicare Pain Treatment Fraud.” Lexis Nexis. (May 1. 2017). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Medicare audit defense attorney, Medicare fraud defense attorney, legal representation for Medicare fraud, legal representation for Medicare fraud investigation, Medicare Strike Force, legal representation for fraudulent claims, prepayment review attorneys, legal representation for submitting false claims, Medicare overbilling defense attorney, Medicare audit defense lawyer, legal representation for allegations of Medicare fraud, health care fraud defense attorney, Medicare fraud defense attorney, legal representation for Medicare termination, Medicarelegal representation for Medicare exclusion, OIG exclusion defense attorney, The Health Law Firm, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.