Avoid inviting scrutiny to your clinic by following these tips
ASSOCIATE DOCTORS ARE THE PATHWAY to growth and freedom in many practices. They bring to a practice renewed energy, extra hands and more flexible scheduling. If you have the right associate doctor, it is a win-win for both parties. The upside is what an associate doctor can do for your practice; the downside is what they can do to your practice.
Onboarding an associate appears to be a simple process, yet it can leave you in legal jeopardy if not done correctly. Too many hiring practices designate an associate a 1099 for tax purposes to save some money in matching FICA, etc. The goal is to circumvent paying taxes and, on the surface, appears to be a “shrewd” business move. The numerous well-respected accountants, health care lawyers, and employment and labor lawyers I have interviewed have warned against this practice. An associate doctor does not qualify as an independent businessperson, and there are potential self-referral issues as an example.
Developing a proper contract
Should you choose to adopt this relationship with an associate — caveat emptor. Additionally, I would get an opinion letter (in writing, not verbal) from your accountant and health care lawyer on the safe practice of employing this model. A W-2 relationship is the only bulletproof relationship.
No associate doctor should work in your office without a written contract, and a health care or employment lawyer must prepare this agreement. “Handshake agreements” rarely end well. Do not use a personal injury, general, elder care, family or any other type of lawyer. Our industry is very specific and requires legal counsel with intimate knowledge of restrictive covenants, fee-splitting laws, and regulations at the state and national levels, etc.
Once onboarded, training is critical to ensure compliance. Too many owner doctors focus on patient care and ignore the No. 1 source of liability in your office — your associate.
Most associates, even those fresh out of doctoral training, know how to use adjunctive therapies, evaluate a patient and practice the basics of adjusting. To get better at adjusting, they need repetition, which will come over time. That repetition will also help them be more efficient and go faster. Initially, they should shadow you and you should allow them to treat a few patients during the first few days. Eventually, they should start with a small patient population and add cases over a few weeks. More experienced associate doctors should undergo the same process but compress the time so you can directly observe how they approach patient care. Also, do not use the deceptive practice of using your name on their work. Whoever touched the patient is who is on the note and HCFA.
You also cannot have two names in an encounter. You can have a supervisory note or signature on the note, but not as a treating provider. There are “incident to” rules that may apply; however, they typically end up problematic.
Documentation and follow-through
The above scenario is not the No. 1 issue of liability — it is documentation and triage. Once doctors leave academia, too often, much of what was learned is either forgotten, considered too cumbersome (lazy), or has been deemed bad advice from others in the industry.
I call this “corner cutting,” a practice employed by most in our industry based upon performing thousands of compliance reviews with doctors. No matter the corners cut by the owner doctor, associates typically cut more because too many are ambivalent toward this practice component and feel they are not ultimately liable. Although they are correct, as they aren’t ultimately liable, it can cost them their license if a pattern of insufficient documentation is determined.
To ensure compliance from the start of the relationship, you and your associate must take formal education (continuing education) in documentation and diagnosing. Many new requirements have been enacted in 2021-22, and both of you must be on the same page. For you, it will probably be minor changes, but your associate too often will be functioning at this level for the first time and needs additional training you cannot provide. Should there be a problem, you can also say your intent was not to defraud anyone, as you provided additional training to your associate. Education does not exonerate you from wrongdoing, as you are responsible for every word and action of your associate. You have a supervisory role that must be adhered to.
The importance of CE
Patient management is another potential liability of associates. During their training, new doctors do not often see complicated cases and, no matter the case, they have a clinic director approving everything before treatment.
Most experienced associate doctors have also not undergone training in triage and managing complicated cases. Therefore, formal continuing education in various topics will protect the patient and the owner doctor from this lack of experience. A very specific course of instruction is strongly recommended and should be at the expense of the owner doctor. Courses in triage, MRI interpretation, spinal biomechanics, spinal trauma pathology, stroke evaluation, and spinal disc and ligament pathology should be considered initially during the onboarding process.
Doctors who have legal or licensure issues with associates too often call me and say, “I should have listened to you initially and done this first. If I did, I wouldn’t have had the problems getting out of this mess (which often takes years).”
Too many doctors consider these scenarios an “urban myth,” that all these things can happen because you never hear of them. If you got into trouble, had licensure issues and got sued for RICO under the Federal Organized Racketeering Act, who would you tell? The answer is no one.
All you share with friends, colleagues and family is that you had 30-40-50 new cases last month, and typically that is often inflammatory. I get frequent calls about doctors being served or investigated and what they should do next. My answer is to call your malpractice carrier or a criminal defense lawyer (mostly the latter).
Onboarding correctly, then focusing on documentation and triage as the “first order of business,” can save you years of legal issues and unnecessary costs, allow you to focus on patients and give you the freedom and flexibility an associate offers.
MARK STUDIN, DC, is an adjunct assistant professor of chiropractic at the University of Bridgeport, College of Chiropractic; adjunct professor at Cleveland University – Kansas City, College of Chiropractic; and educational provider for the State University of New York at Buffalo, Jacobs School of Medicine and Biomedical Sciences, Post-Doctoral Division. He is the president of the Academy of Chiropractic, teaching doctors of chiropractic and interfacing with the medical and legal communities (DoctorsPIprogram.com). He can be reached at DrMark@AcademyOfChiropractic.com or at 631-786-4253.