Physician leadership—required more than ever

In today’s healthcare environment, as attorneys and consultants, we seem to deal as much with the regulatory aspects of managing an ophthalmology practice as the general legal or business aspects. Too often, however, the largest issue as we see it is the amount of leadership responsibility and decision making delegated to non-physicians managers.
Unfortunately, there have been many regulatory changes that your practice should be routinely following and implementing. Are you aware that within the past year, over a dozen laws have been changed or implemented that affect your ophthalmology practice? Do you also know that some of these require the authority and signature of the responsible governing board to make them effective?
For example, the Red Flags Regulations (expected to become effective June 1, 2010), require medical practices to implement a written identity theft precaution program which is then approval by the Board of Directors. Assuming you elected to comply with the Red Flags (as you are required to) has your practice executed the written program? Has your Board executed it? Do you oversee its implementation? The answer to each of these is most likely “sort of.”
What about HIPAA and the new obligations imposed by law on business associates, as opposed to just contractual obligations? Do you know what your agreements say? Would you recognize a business associate if you tripped over one? How involved in the decision-making in these areas are you? Do you know that your Professional Courtesy Plan (if you have one) should also be approved and executed by your Board? Did you know that the Patient Protection and Affordable Care Act (PPACA) gives the Department of Health and Human Services (HHS) the authority to require that as a condition to enrolling in Medicare, the new provider must establish a compliance plan?
While certainly it is the manager’s responsibility to manage the practice, to remain aware of any changes and how they may affect the practice, and to keep the Board apprised of changes. On the other hand, it is absolutely the Physician-owners responsibility to understand what is happening in the practice and why. While your manager should gather the information, create the plans and write them up, the owner physicians must be actively involved in the decision-making as it regards implementation. Too often, we see the “Board of Directors” merely rubber-stamping plans without really understanding them. Clearly the rules of the game are changing, but know that with each change (or failure to change) your potential liability exposure increases.
To alleviate some of this, add an updates section to your meeting agenda to discuss practice regulatory issues. Most issues are researchable on the Internet, although many of the regulatory directives require tailoring to the individual practice. In this case, it should be a manager’s responsibility to review and stay abreast of the regulations, contacting whomever would help to save time, and then fully explaining the new changes to the Board. It is up to the Board then to understand the issues and make the final decision as to how it wishes to implement the change(s). After all, should there be a breach or failure to comply with the regulations; it is rarely the manager who is likely to be sued. It is the entity, the practice, and what is at stake can be huge.
Even staying up to date on your own buy-in and pay-out agreements, requires a periodic evaluation of those documents. Many times, when a physician leaves, the other newer physician seem almost astounded to see what the agreement stated, or the commitments the practice has made, financially or otherwise. Periodically (perhaps every four to five years) going through the agreements and being sure you are all onboard with what they say, is the sign of a well run practice, as the physicians are actively engaging in the practice of reviewing the status of their relationships. While this is an arduous task, and can be painful, it at least realigns the common interests in the group.
Also, as leaders, do not waste your time. This is critical because physicians also play the role of “producers.” As a transactional attorney, I cannot tell you how many times I have been asked to interpret an agreement that looks vaguely familiar in the sense it looks like one I had drafted a number of years ago, although that has clearly been revised. Often, dates do not match, issues do not dovetail, and legally it must be rewritten. It would seem to be easier if the practice called their attorney, had the new agreement written, and held the attorney responsible for these problems rather than getting the practice bogged down trying to sort them out later.
You must also look forward to the future. With all the changes in healthcare, it is too early to prophesize as to how things will shake out. However, with all of the available resources, from ASCRS, ASOA and elsewhere, your practice should be able to stay abreast of the changes, and to find instructions and plans to deal with these changes, which require only tailoring, as opposed to wasting time starting from scratch.
The bottom line at the end of the day is that leaders lead. They do not sit back and let other people make decisions for them that could personally expose them or their businesses to liability. They get out there ahead of the issue, and take a position.

ABOUT THE AUTHOR

Sandra E. D. McGraw, Esq., M.B.A., is a principal consultant with The Health Care Group Inc., and a principal attorney with Health Care Law Associates P.C., both based in Plymouth Meeting, Penn. She can be contacted at 800-473-0032.