Helping You Find True North in Healthcare Compliance
Flourish by Hiring Help in This Crucial Compliance Area
When you’re thinking about growing your practice and building up your staff to handle more patients, it’s easy to overlook a critical role—a job so important to your practice’s solvency and profitability that without that position filled, you can pretty much scrap your plans for a successful expansion. The role? Human resources specialist.
It’s tempting to cut corners as you look at growth expenses and simply assume that any added HR duties can be easily allocated to your practice manager or that the physician owners can manage
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the hiring and firing. It’s not that complicated, right, and anyone can take this on with a little extra training? Wrong. Without a dedicated HR specialist on your team, the risk you’d be taking on would be like driving blindfolded.
You need someone who understands employment law, emphasizes Suzanne Rupert, director of human resources and recruiting for Eye Care Leaders, a source for ophthalmology-specific EHR and practice management systems. Healthcare laws are changing all the time, so you need an HR person who is staying up to date and keeping your staff informed.
You also need a mediator, particularly in an expanding practice where new employees are brought into an existing office culture. More people will be working closely together, and there will be flare-ups, Rupert says. “The HR person has to listen, they have to mediate, and they have to be able to mitigate risk, which is really important.”
Your HR hire needs the full support of your physician staff and your board of directors. Doctors often function as employees for larger institutions and may not think like employers, advises Kat Park, Director of RCM Services at Eye Care Leaders. They’re more concerned with patient lawsuits and aren’t thinking about employment lawsuits and frequently don’t have training in employee issues.
Early in the hiring process for new doctors, there needs to be buy-in to understand the value and necessity of an HR specialist so your doctors are open to advice and training from this staffer, says Park. If HR exists in a vacuum, then there’s no physician buy-in.
You can’t run your practice, much less grow it, without properly managing your employees and clearly understanding how to protect yourself against liability. “If you have an employee, you have a risk of being sued in an employment related matter,” attorney Marcus Crider with Waller Lansden Dortch & Davis recently told attendees of his HR session at the 2017 Ambulatory Surgery Center Association annual meeting. The more employees you have, the greater your risk of being sued, said Crider, who has practiced employment law for over 20 years.
The hard truth is that no matter how great an employer you are, you could find yourself with a federal lawsuit on your hands from an angry employee who filed a claim against you via the U.S. Equal Employment Opportunity Commission. The EEOC cites retaliation as the leading claim filed against employers, Crider says. And it’s the leading claim for a very logical reason: It comes from a natural tendency to get back at somebody. “Retaliation is often an add-on to another claim and it is more difficult to defend against,” he adds. It’s hard to get a court to throw it out, and it ends up going to a jury, which is usually not good for defendants.
Having a seasoned HR specialist on board can help alleviate and even defuse a litigious employee situation that could sideline your expansion efforts and cost your practice a bundle in attorney fees. And while EEOC claims are often filed in spite of superlative HR, you’ll find the risk is diminished when you have experienced HR personnel who can provide necessary staff instruction on some specific trouble areas, including:
Disabilities: If your practice has 15 or more employees, the Americans with Disabilities Act (ADA) “prohibits discrimination in hiring, promotions, training, pay, social activities, and other employment privileges” based on disability, speaker Marcia Brauchler, MPH, FACMPE, CPC, COC, CPC-I, CPHQ told attendees at MGMA16. Doctors often aren’t aware of ADA and will say things that could get them in trouble, according to Park. Staff need adequate training on what they can and can’t say.
Medical Leave: Under the Family Medical Leave Act (FMLA), if your practice has 50 or more employees, your employees are entitled to up to 12 weeks of “job-protected leave during any 12-month period for the birth of a child, care of an immediate family member, the employee’s own serious health condition, or immediate family member is on active military duty,” Brauchler advises. The law was passed in 1993 and is enforced by the Department of Labor, Wage and Hour Division. Non-compliance can result in civil actions by employees. So, for instance, if someone’s having a baby, you have to make sure you’re initiating the correct paper work in the correct amount of time, says Rupert. If someone’s hospitalized, have to tell them if they’re eligible, and so on.
Generational Triggers: Loyalty toward your practice can have a lot to do with whether or not an employee turns into a retaliator and files an EEOC claim against you. Your younger employees’ may view their jobs as a temporary means of supporting their lifestyle, an attitude quite different from your older staffers’ view which is that their work for you is a career and they’re in it for the long haul. What this means is that a younger employee may be more likely to stand up for “my concerns and causes,” and if you do something to me because I did that, that's retaliation, Crider observes.
Sexual harassment: “Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964,” Brauchler explains. Penalties that can result from litigation against your practice include lost wages, compensatory damages, and punitive damages. Given human nature, these complaints aren’t going to go away, Crider emphasizes. It’s fundamental to a workplace. What’s evolving is the way harassment is communicated. “Twenty years ago, it may have been an actual love letter; now it’s texts. Texts (and email) sometimes lack context. You can make them mean anything you want,” which could lead to harassment claims.
Gender Stereotyping: This is the next wave of concern. Practices need to be ready to address and define what sex or gender means and think about ways this issue could come up in the workplace. What happens, for instance, if there’s a male or female who doesn't conform to the stereotype of what men and women look like, act like, talk like, and so on, asks Crider.
Court decisions are showing that we are coming closer and closer to interpreting Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, religion, sex, or national origin, as also including sexual orientation, according to Crider. While the Supreme Court has yet to make a formal ruling on this addition, practices need to be aware that discrimination on the basis of sexual orientation can "no longer be tolerated."
Minimum Salary Threshold: Your practice needs to comply with the Fair Labor Standards Act (FLSA), which governs minimum wage and overtime pay and is enforced by the DOL Wage and Hour Division, Brauchler says. The minimum salary threshold for full-time salaried employees under the new overtime rule is $913 per week (translates to $47,476 annually), which is the minimum salary you must have to be exempt under the FSLA, confirms Crider.
The DOL dropped a bombshell on employers in May 2016 when it issued final regulations under the FLSA that doubled the minimum salary threshold for full-time salaried employees to that figure. Employers scrambled to comply with the December 2016 deadline to pay full-time executive, administrative, professional, outside sales and computer employees more in order to keep them exempt from overtime pay requirements. The situation became even more complicated after lawsuits were filed to enjoin implementation of the rules, and were successful – the rules are currently on hold.
While the Trump administration has been less than quick to respond to the suits, seeming to leave the impression that the final regulations may never make it out of court or may ultimately be struck down, employers must still be prepared to comply with these regulations, or some version of them, say attorneys. As the issue works its way through the courts, HR staff can help guide practices – many of which may have already changed their pay structures – figure out what to do next.
Assuming that the minimum salary threshold is just a payroll issue is a naïve approach that can get you into trouble if employees aren’t being compensated properly, so having an HR specialist involved in overseeing eligibility is a very prudent idea. Techs who are paid hourly are non-exempt, which means they’re eligible for overtime, which also means their hours have to be tracked, says Rupert. You have to really make sure that’s tracked and logged.
Privacy: And don’t forget HIPAA. Your HR person needs to understand HIPAA compliance—what’s allowed to be shared and what’s not, so this can be conveyed to staff, Rupert adds.
So you’ve made the decision to add an HR pro to your staff. Where do you begin? The first step is to stop thinking you can do it all yourself – especially if you ever want your business to grow. An HR hire could be the only thing standing between you and your practice or organization’s future success. And not having a professional dedicated to keeping you compliant will only become more dangerous as you grow and enter more complicated employment waters.
Our AudioEducator Blog is updated almost every day with new posts related to a range of practice areas and fields. Here are the highlights in healthcare compliance from this month:
First Article in Our Series on MACRA & MIPS
Around November 1, 2017, the Centers for Medicare & Medicaid Services (CMS) is expected to release its final rule implementing the Medicare Access and CHIP Reauthorization Act (MACRA) and its quality-based measures for paying providers. In June, the agency released a proposed rule that would make 2018 another transition year for practices that are having a difficult time adapting to the new Medicare payment system. As providers ready for the final rule, this series of posts on MACRA and its Merit-based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APMs) will explore the background of the framework and explain what you can expect if you take the MIPS or the APM route. (Spoiler alert: You still have to deal with MIPS!) Read More
Penalties Delayed, but Compliance Headaches Remain
The Centers for Medicare & Medicaid Services posted changes to its State Operations Manual this year, and those involved in managing long-term care facilities will want to take a close look at it. Nursing directors, MDS personnel, administration personnel in nursing homes and interdisciplinary team management shouldn’t be surprised by the changes at this point, but they should be ready for a looming November deadline.Read More
Increasing Price Pressures Compete With Complicated Compliance Issues
Ambulatory surgical centers (ASCs) continue to undergo decreasing reimbursements, increasing regulatory and industry changes, and other industry pressures. Many ASCs are uncertain of whether they should enter into contracts with insurers, including Medicare, or remain out of network. Here are some of the main things ASCs should consider when making that call.Read More
Major Changes Go Into Effect This Fall, Others Are on the Table
Healthcare workers are continually challenged to remain compliant with the ever changing regulations that impact the services they provide, but it seems the hospice industry has been particularly impacted by new regs and changes in the recent year that are now going into effect.
In early August, the Centers for Medicare & Medicaid Services (CMS) released its FY 2018 payment and quality reporting final rule. The Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements are effective October 1, 2017. In addition to the yearly updates, this final rule includes new survey measures that hospices must give to families and patients so they can compare facilities. The new Hospice Compare website is a game-changer: Is your facility ready? Read more
Final Article in Our Series on Telehealth & Telemedicine
Navigating regulations is nothing new to physicians and other providers, but adding telemedicine capabilities to your practice will add a few new compliance concerns. From federal requirements at the Centers for Medicare & Medicaid Services (CMS) and privacy concerns under HIPAA to various state regulations and Medicaid requirements, you will need to devote some resources to properly planning and training. Here’s a round-up of the key compliance topics you’ll face when delivering telemedicine and telehealth services to your patients.Read more
What’s happening around the healthcare compliance water cooler this month:
AudioEducator covers the latest developments in healthcare compliance across a range of specialties and topics. Check out our other resources:
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