Slide Instructions

Instructions are not visible during Show Mode

To insert images

A different image can be placed in each section

of the Presbyterian Health Services logo

If you do not want to put any photos in, it will

remain red

Drag the image from your source folder onto the

slide or click the placeholder and select the

photo

To reposition your photo, click “Picture Format”

and then “Crop”

If the image overlaps/hides the text, click “reset”

or right click on the image and select Arrange >

Send to Back

Top 10 Employment issues in Healthcare Lorena Sandoval OCTOBER 11, 2019

2

Goals

Top 10 Employment issue

Tips for mitigating risk

when workforce has made bad choices

3

Best Practices

10 – Hiring

• Job Profile - who is the best qualified?

o Work, Responsibilities, Characteristics for success = essential functions

o Exemption status

• Reference checks

• Research and background checks

o Google – learn stigmatizing behavior or beliefs

o Social media – 57% of employers screen out due to review

o Consumer report – 7 year limit?

• Criminal charges, arrests and convictions

o Criminal Caregivers screening

o Licensing boards

o Ban the Box

4

Personal Service Arrangements (42 C.F.R. §411.357(d))

9 – Contracting with Doctors

• Written, Signed by the parties, at least 1 year term

• Defines ALL the services

o May have multiple arrangements between entity and physician

o Physician or family member can “furnish” services through employees whom they have hired for the purpose of performing

the services; ex. wholly-owned entity; or locum tenens physicians

• Aggregate services do not exceed those reasonable and necessary for the legitimate business purposes of the

arrangement(s).

• Services to be furnished under each arrangement do not involve counseling or promotion of a business arrangement or other

activity that violates any Federal or State law.

• Compensation is: set in advance; does not exceed fair market value; does not take into account the volume or value of any

referrals or other business generated between the parties.

5

Bona Fide Employment (42 C.F.R. §411.357(c))

9 – Contracting with Doctors

* • The employment is for identifiable services.

• The remuneration is:

o Consistent with the fair market value; and

o Is not determined in a manner that takes into account (directly or indirectly) the volume or value

of any referrals by the referring physician (except for certain productivity bonuses for personally

performed services).

• The remuneration is provided under an agreement that would be commercially

reasonable even if no referrals were made to the employer.

6

Reduce exposure: Contracts

9 – Contracting with Doctors

• Not fully signed/executed

• No documentation of review and approval per policy

• Lack of review by legal

• Modifications to standard forms/approved templates do not follow guidelines

• Legitimate business need or FMV not documented

• FMV data used is not current

• Terms modified during the first year

• Amendments not documented

• Multiple arrangements or roles for physicians that exceed actual need

• For Independent, contracts not timely renewed

• Contracts stored in multiple locations and not easily retrieved

7

Commercial Reasonableness Questionnaire from Halifax Health case

9 – Contracting with Doctors

• Is the compensation FMV? FMV opinion? (Yes or No)

• What is the business purpose of this arrangement?

• Does this arrangement further mission and/or pursuit of strategic goals?

• Justify the amount of services?

• Can the function be performed by a non-physician? If yes, discuss why you are seeking a

physician.

• If services are rendered on an hourly or part time basis, are there mechanisms in place to ensure

the services are actually performed by the physician? If yes, describe.

• Is there a continued need for the services? If yes, describe.

• Are these services duplicated elsewhere? If so, does this new agreement create an excessive

supply of services given our facility's need?

8

FMV and Stark exceptions

9 – Contracting with Doctors

• Value in arms-length transactions consistent with the general market value

o Price is the result of bona fide bargaining between well informed parties

o Market comparables - National benchmark (e.g., MGMA, Sullivan Cotter)

o Valuation experts (e.g., real estate appraisers)

• Processes for making and documenting reasonable, consistent, and objective

determinations of FMV

• Avoid distorted market rate for comparable services.

9

Data and Disparate Impact

8 – Discrimination

• Use of analytics

• Bias in algorithm

• Hidden assumptions

• Lack of intent and Data driven decisions

o Consider results as evidence of bias

10

Job protection?

7 – Leave

• Mental Health

o ADA – mindful of “regarded as disabled”

o Fitness for Duty evaluation – clearly articulated business concern

• Substance use/abuse

• FML – current job protected

o 12 weeks

• ADA accommodation?

o Ineligible for FML

o Run out of FML

o If leave is an ADA accommodation – right to return to a job protected

11

Document, document, document

6 – Behavior and Performance issues

• Clearly communicate standards of conduct and consequences

o Is there a pattern?

o Guard emotional reactions

• Any discipline is commensurate and remedy infraction (re-training? counseling?)

• Fair

• Non-Discriminatory

• Not infringe on rights – leave for illness, complaint

• Avoid opinion, legal conclusions, exaggeration – be clear, connect to policy

12

Confidential information, HIPAA, and right to privacy

5 – Privacy

13

Confidential information, HIPAA, and right to privacy

5 – Privacy

• HIPAA - Standard: Sanctions. A covered entity must have and apply appropriate

sanctions against members of its workforce who fail to comply with the privacy

policies and procedures of the covered entity or the requirements …45 CFR

§164.530(e)(1)

• Privacy – avoid interference with right to privacy

o Balance business needs (including safety)

o Avoid disclosure of private facts

Minimum necessary for legitimate business needs

14

Yes, investigate

4 – Investigations

• Clarity of allegations

• Timely

o Set expectations

o Closure

• Complete

o Pull all data

o Interview folks with knowledge

• Who conducts?

o HR, Manager, Legal?

o At direction of counsel?

15

Conflict of conscience and passionate political affiliations

3 – Politics and Religion

• Refusal to participate in care or training

o LGBTQ

o Sec. 1557

o NM Human Rights Act

• Political statements at work

o “ I felt compelled to express my opinions”

16

Legal and Illegal drugs

2 – Impairment

• Reasonable suspicion

• Terminate?

o When?

• Drug free workplace

• Informing licensing boards

o Encourage self-report

17

Legal and Illegal drugs

1 – Workplace Violence

• OSHA guidance

• Responding to credible threat of imminent harm

o Nurses

o Security

o Physicians

• Relationship with law enforcement

• Expectations of employees that Employer responsible for their safety

o Training - Walkthroughs

o Active shooter training

o Reasonable control over who is on property

Questions?

18