Episode Transcript
[00:00:01] Speaker A: You're listening to the Doc Lounge Podcast. This is a place for candid conversations with the healthcare industry's top physicians, executives and thought leaders.
This podcast is made possible by Pacific Companies, your trusted advisor in physician recruitment.
[00:00:20] Speaker B: Welcome back to the Doc Lounge Podcast. I'm your host, Stacey Doyle, and today we have a truly insightful episode lined up for you as part of our.
[00:00:28] Speaker A: Ask the Expert series.
[00:00:29] Speaker B: I'm thrilled to introduce our guest attorney, Kevin S. Little, founder of Little Health Law. Kevin is a highly respected healthcare attorney specializing in helping physicians and healthcare providers navigate the complex and ever changing world of healthcare regulations. Whether it's guiding practices through medical board cases, defending professional licenses, negotiating employment contracts, or handling reimbursement disputes, Kevin and his team at Little Health Law are dedicated to protecting healthcare professionals and ensuring they remain compliant while running profitable practices. Today, Kevin will be sharing his expert insights on some of the most common legal challenges physicians face when establishing or expanding their practices, as well as proactive steps to avoid medical board investigations and legal pitfalls. We'll also be discussing how to strategically approach employment negotiations and ensure compliance compliance while managing specialized services like med spas and pain management clinics. We are so grateful to have him on the podcast today. Welcome, Kevin. Thanks for joining us.
[00:01:32] Speaker C: Thank you, Stacy. I appreciate the opportunity to talk with you. Glad to be here.
[00:01:37] Speaker B: Well, tell us. I mean, there's a lot of different ways you can go with, you know, when you're studying law and then you become a lawyer and you obviously go through and get, you know, graduate from the bar and get all that, which is, I know a ton of work. So what made you decide? Okay, I'm going to specialize more in the healthcare provider side of things.
[00:01:55] Speaker C: Well, it happened as things do sometimes for lawyers, by sort of by chance and then it, then by intention in this way. So when I, when I finished law school, after a couple of clerkships, I began with a litigation firm. My, my, my role as a lawyer with that firm was predominantly doing business litigation and did that for a number of years and, and at some point, by happenstance, had an engagement representing a group of physicians. There were, in fact, in this particular matter, there were 65 physicians in an IPA and we represented these physicians in a lawsuit against the third party payer.
And through that engagement, I was exposed to these physicians who, following that engagement, began to send me different types of matters that I would style as helpful things unique to healthcare providers. And it could have been for any of these doctors. I'm alluding to contract issues, employment issues, and compliance related matters. And so forth. So that morphed over a course of years into something that became exclusively what I style as health law, which just means representing providers who are delivering healthcare services to patients.
And now, and for many years, for about 15 years, that's all that we've done. We're exclusively a health law firm. There are eight of us in our firm and we have what we call a multi jurisdictional practice, meaning that although we're based in Georgia, we help providers throughout the country and that's all that we do.
[00:03:48] Speaker B: Fascinating. And such a need, I'm sure, as obviously healthcare needs across the country continue to expand. Obviously we talk about all the time, all the hard work that all of our healthcare providers do from a day to day standpoint. And then I'm sure with everything from kind of the legal landscapes set up and obviously payers and insurers and kind of putting that into the mix, it can make things quite complicated. So tell us a little, what are some of the most common legal challenges that physicians or healthcare providers face?
[00:04:27] Speaker C: I think the gut reaction to that question is the most common word we hear from prospective clients and compliance is this, this notion of compliance. Like what, what, what do, what do I do as a provider to be compliant?
I think our clients hear that they have to be compliant, they have to check the boxes, they have to follow the rules, so they, they want to be compliant. In fact, I don't think I've had one that said they didn't want to be compliant. So the challenge is always, well, you know, what does that mean once you get past an abstract concept like I want to be compliant, so how do you do that? You know, what does that mean? And for healthcare providers, unlike any other industry probably there's a lot of regulations, as we all know, and regulations that you wouldn't face if you were selling widgets for a living. But because you opt to provide healthcare services, you have to wrestle with this subject of compliance.
And the baskets are varied. It includes self referral prohibitions, prescription issues, prescribing issues, scope practice issues, licensure matters, and so forth. So what we try to do when we're viewing a so called compliance matter is think of it not as just looking at the rules and trying to check the boxes. That's certainly a part of what we always have to do, but also to think about it from a medical board, lawyer's standpoint or perspective in that, you know, having been before the medical board in different matters, we always want to think if this particular practice by this licensed professional or scrutinized by the medical board.
And the medical board were to answer, were to ask questions of that provider, what would the answers need to be in the view of the medical board? And so we're trying to think ahead as medical board lawyers to what ditches our client might step in if they do X, Y or Z and help avoid those ditches. That's kind of abstract way to think about it, but that's the practice that we undertake when we're trying to help providers with these type matters.
[00:07:05] Speaker B: That's a really great summary. And you lead me to my next question. And that really is about obviously these medical board cases and licensure. Licensure issues, I'm sure they can be, you know, really daunting to providers. So tell us, I mean, how does the medical board typically work? I mean, is it, I'm assuming it varies by state.
[00:07:28] Speaker C: Yeah. So medical board process is a state based thing. Each state is going to have its medical board. In Georgia, where our offices are located, it's the Georgia Composite Medical Board, and then there's a nursing board and other boards. Each board is charged with a responsibility to, as I think of it, to be gatekeepers, a crucial role to make sure that the interest of patients in that state are advanced. And typically, and certainly in Georgia, I imagine in every state, by state law, the medical board is given broad latitude to serve as sort of the governor of the practice of medicine in that state. And there's going to be a medical practice act. And the medical board's role is to enforce that act and to make sure that the providers who have licensure in the state are properly licensed and that they conduct themselves to the proper standards that the state requires. And that's a, you know, a crucial role for a medical board. And so we, we find in every matter that we handle for the medical board, the medical board is intending to adhere to that duty. They're not, you know, we tell our clients that the medical board, in our view, is not against doctors. They're not trying to get in the way. They just want good doctors. They want or other licensed professionals. They want, you know, good professionals providing health care in their state, as they should.
[00:09:19] Speaker B: It sounds like they're there obviously to uphold, you know, the quality of care that providers are providing. So tell us, if a medical professional, you know, does have an issue, you know, or a case come up with the medical board, what is the first thing they should do, especially if they're working with a firm like yours?
[00:09:43] Speaker C: I think there are a few best practices Type concepts to bear in mind each time there's a medical board matter.
Number one, perhaps above all, to be candid, if they have healthcare counsel with their counsel, what we tell our clients in medical board matters especially, but not just medical board matters, but other dispute matters, litigation, other administrative matters, is that what we need to know in order to help our client are the bad facts, the granular details of the bad facts, the good facts tend to take care of themselves. So we need to understand what the difficult points are factually from our clients side of things and dealing with the medical board, both from what comes from our client. In speaking to a board, perhaps in an interview or a hearing, or what we say as counsel, if we're presenting to a medical board, it's crucial that we're candid.
We want to convey the impression that we're transparent, that we, our legal team and our client have nothing to hide, that facts that are mistakes or bad facts are things that we own. We take ownership of those things and that above all our client is credible. I think the board generally is not against doctors. And the last thing you want to do, generally speaking, is cause the medical board to be adverse to a client based on perceptions that the client, the doctor or other licensed professional is not forthcoming, not transparent, not candid. So those are broad concepts that we find are often crucial in medical board matters.
[00:11:52] Speaker B: And I'm assuming that these cases can take a while to go through. Typically, how long do these play out.
[00:12:01] Speaker C: Well in a medical board matter? Well, you know, for if you're a participant in a legal proceeding and you're dealing with the stress of that, the distraction of that and so forth, it's always going to feel like a hurry up and wait game. It's always going to take too long in your mind.
Actually a medical board matter compared to, you know, we do a lot of litigation too for physicians and medical practices. And you know, compared to litigation, a medical board matter typically is very quick in that it may last, you know, a few months. Yes, sometimes maybe not that long, but typically medical board matters will last a few months.
In Georgia, for example, the medical board meets the first Thursday of every month.
You can't necessarily have your matter come up immediately if you need it to, but you're not often going to have to wait months for the medical board to get to your matter. Whereas with court, you know, we may have litigation that lasts, you know, many years.
So it's not, in our view as lawyers, the medical board process is fairly efficient most of most of the time and fairly Fairly prompt, fortunately, because, you know, the stakes are always high for the provider who's being scrutinized.
[00:13:33] Speaker B: I was going to say, there does seem to be a lot at stake with the medical board cases. I'm assuming typically you're defending their professional licenses.
So tell us, are there any key legal strategies you know, that you think are really effective that you, you know, for some of the cases that you've.
[00:13:54] Speaker C: Worked on for medical board matters, right.
[00:13:58] Speaker B: Or for medical boards specifically?
[00:14:00] Speaker C: Yeah, well, the, the same broad concepts I've said. I mean, of course, every medical board matter is going to be inherently individualized in this way these ways.
The, the licensed professional, the doctor or nurse or whomever is an individual, they have a particular personality, they come across a certain way to a medical board. If, for example, we have a hearing or an interview, the details of their matter will be very unique, of course, and the continuum could be from, you know, the not seemingly that bad, they failed to pay a fee and their license was non renewed. It was inadvertence to something very severe like over prescribing or, you know, something of that nature. So kind of depends on the factual details, what approach will be best in dealing with the medical board. But obviously in every medical board matter, what we're trying to do, what the provider should be trying to do with or without counsel, and what we're certainly always trying to do if we're representing someone is figure out how to put their best foot forward, how to accept responsibility for any mistake made, how to take ownership of bad facts, how to demonstrate to the medical board that you're a good doctor, you're not a bad doctor. Above all, you're a consummate professional in addition to being a good healthcare provider. And in a serious way trying to win over the medical board, you're trying to show the medical board that you're the type of provider that citizens of that state want, would want. And if you made a mistake, you know, that can be an opportunity, an opportunity to show that you, you know how to take ownership of a mistake and move past it. And that's what you're trying to do. So those are, those are things that are in the fabric of what you want to try to do in a medical board hearing. And what we're trying to do if there's an interview or hearing or any written presentation to the board. But it's never, it's never dodging, it's never concealing, it's never failing to be responsive and so forth. And those elements of best practices can add up so that in the aggregate you have the best shot possible of convincing the medical board that the answer to you should be yes, you get your licensure or whatever the issue may be a favorable outcome.
[00:16:56] Speaker B: Great advice there. Thank you for that.
I know your firm covers so much and so there's also the litigation side of things as well that you were speaking to previously. Tell us a little bit about that. I mean, obviously I'm sure that there's a lot that you deal with. I'm thinking a few things. Maybe on the third party payer reimbursement disputes, things like that. What are some broad things or suggestions that you would give physicians that may be going through something like that and when is the best time to really engage a firm like yours?
[00:17:34] Speaker C: Well, it's a third party payer disputes. My, my gut reaction to the question is this. Probably in each instance, depending upon the the money and the stakes involved, if it's really small$, then the following may not apply. But then again it may. I would probably always tend to, if I'm the provider. Consider hiring a billing consultant, an expert in coding, for example.
Typically there's a very cost effective way to do that. It's not necessarily something that should be a great expense, but the cost of not doing that could be significant.
So you know, if there's for example, a documentation issue that's giving rise to a third party payer issue, reimbursement that a third party payer contends is an overpayment, or the third party payer won't pay something, Hiring a billing consultant, an entity or individual with true expertise in this area can be beneficial by allowing them to dig into the billing records or a sample of billing records to extrapolate what's going on in terms of both mistakes made by the practice that are, you know, might be the subject of a fraud allegation or the other, other end of that spectrum, missed opportunities. Sometimes there are billing opportunities that aren't being lawfully utilized. So a billing consultant can identify that it can be done proactively before there's a dispute. Certainly if there's a dispute with a third party payer, that's a great starting point and something most of the time we would recommend. If it's higher stakes like big numbers or the federal government's involved, like a Medicare third party payer's Medicare or Tricare or something like that, then my advice would switch to it's crucial to get a proper billing consultant. And it may need to be that that consultant's Retained through council to protect attorney client privilege. If there's that type of dispute, then, you know, at the risk of sounding self serving, since I'm a lawyer, I would always hire a lawyer under a circumstance where the numbers are large or the government's involved with Medicare involved. I would always hire healthcare counsel with experience in the field to help mitigate my risks.
[00:20:24] Speaker B: Thank you for that great, great insight there. We've heard a lot about obviously this growing demand for medical spas and pain management clinics and other specialized healthcare systems and services like that.
What are some of the strategies you give to physicians to ensure they're obviously profitable but then still being compliant? Are there any general suggestions you have?
[00:20:52] Speaker C: Well, both, both categories, med spa stuff, or sometimes physician practices like to refer to it as aesthetics and pain management issues are in my view potentially exposed to heightened compliance risk, but for different reasons.
In the case of med spas, actually this is what I'm about to explain is more dealing with non physician ownership. But we see that there's, there can be a lot of scrutiny by medical boards about cosmetic things, med spas, aesthetics, because often there are entities that do this that are non physician owned and there's nothing, you know, wrong with that if that complies to state law. It's just that, you know, a medical board comprising doctors often will look at, you know, the ownership structure a little bit differently if it's owned by non doctors and doctors. So cosmetic businesses can be subject to more scrutiny by medical boards in my personal view, from my experience.
And therefore it's more important to be vigilant about checking all the compliance boxes and doing things the right way in the case of pain management due to, you know, that those are not going to be non physician owned enterprises. But typically there will be some state law that's geared specifically for pain management and those laws are, you know, crucial to comply with. I think due to the opiate crisis, it will always be something that's heavily scrutinized by the medical board. So I guess as to those two categories, med spas and pain management, while it's always important to adhere to this concept of compliance and to be vigilant about being compliant, it's more important in the case of med spots and pain management. So, you know, I would just elevate the importance of it in my view if I'm the provider that owns one of those businesses.
[00:23:10] Speaker B: Thank you.
That's an important one. I know we have a lot of providers that are looking into other ways to obviously bring in revenue and I think it's an important thing to point out.
So tell us, in terms of. I know you also get involved with employment negotiations and some medical practice deals. Tell us, are there any things that you would recommend if some, you know, provider or app is going to start going through, you know, an employment negotiation to make sure that they're getting, you know, the best from a compensation standpoint?
[00:23:46] Speaker C: You bet. So we handle a lot of physician employment matters, both representing a physician or employee, or often representing a medical practice employer.
And usually at either end of a continuum, one is signing and the other is leaving. It's not so much in between and it's signing. It's important to not think of the position employment agreements as the word we hear a lot as standard from 10,000ft. They all look the same same sections of these contracts, same kind of concepts covered. But we see that there's potentially great variance in different provisions. Like a non compete, for example, one can be severely onerous and another one quite reasonable. So if you're the doctor signing the non compete, you shouldn't assume that it's not. You shouldn't assume it's written in stone. It may be so the employer will say. So often it's a matter of looking at something like that and deciding if this were to apply one day and I have left employment, you know, how will it impact me and could I live with it? And if the answer is no, then trying to figure out before you sign a proper pathway to perhaps diluting the severity of it or negotiating aspects of it with the employer. With regard to, and there are many other examples, of course, of things to consider when signing a physician employment agreement or preparing one if you're the employer with regard to the other end, leaving. Usually in our experience as healthcare counsel, there are lots more issues to deal with, a lot more risk. But broadly speaking, if we're representing the employee, the doctor, the two categories of things we might be dealing with most are money, making sure they're paid properly and then, you know, making sure that their future employability is protected. That if, for example, they were terminated for calls, you know, we as council want to understand and evaluate whether there was actual calls, if there was not, whether it makes sense to try to negotiate the nature of the agreed, the nature of the termination to something that is agreeable to both sides in order to protect future employability of the doctor, which can be adversely impacted by foreclose termination.
And from the employer's standpoint, we're looking to provide as much as possible a clean break in the relationship with the doctor to avoid a dispute, to try to make sure that, you know, there are no compliance issues and that there's a continuity of care problem and so forth. So you know, either throughout physician employment, that life cycle, there could be many different issues but most of the issues we see are going to be exciting or when the doctor's exiting.
[00:27:07] Speaker B: Are most of the non competes that you've dealt with, are they typically, you know, enforceable?
[00:27:13] Speaker C: We're asked that a lot. Yeah, we're asked about the FTC rule a lot. The FTC rule is non final at this point. It's our view that it should just be assumed that a non compete agreement is not affected by the FTC rule as to whether it's enforceable. It's a state law question and the tricky part of answering that question is, you know, it doesn't, it doesn't really.
If the question is is it enforceable? It really doesn't matter what Kevin says, what I think it matters what a judge would say. If it goes to the mat in court, if a non compete is actually litigated, there's a lot of ways to, you could theoretically attack any non compete.
But before it goes to the mat and you have a judge that parties draw and the lawsuit is filed and you have a hearing and evidence is presented and witnesses are heard, until that point you don't really know that it's enforceable. It's just, it's just a lawyer declaring his or her opinion that it is enforceable in theory or it's not. So the better approach we find if we represent the doctor is to assume that it is enforceable, that if it were litigated that a judge would enforce it by its terms and to figure out is there if the doctor wants to go do X, whatever X is, is there a way for the doctor to do that without it, you know, ideally with the consent of former employer and then if, if that can't be had, figuring out a way to negotiate a pathway, a lane that the doctor can travel in without a dispute. Now that's easy to say when we're conversing about it. It's not always easy to do. But that's a goal, that's a starting point. And so how we go about doing that depends upon many details each time that are individualized based on what the doctor wants to do, his or her career trajectory, what the objections to perceived competition may be by the employer, the medical practice or hospital system and so forth. But each matter has to be treated ad hoc case by case to figure out what the right approach is.
[00:29:35] Speaker B: Great advice. Thank you for that. I think that will be a really great tip for everyone that's listening to hear. So appreciate your insights there. Wrapping this up, I want to just, I want to get your thoughts about, you know, obviously, you know, healthcare law is always evolving. How can physicians stay informed of what the newest laws are?
[00:30:00] Speaker C: Unfortunately, I can't think of a more dry subject for doctors to have to deal with and staying abreast of all the regulations and so forth. But, but, but I think from a realistic and practical standpoint, the best thing that any licensed professional could do is just to try to be disciplined and set aside some time here and there to, to, to read, to find a reliable source of information about such subjects as, you know, the evolving healthcare regulatory world, you know, some podcasts, some, some seminars, some, some books on the subject perhaps and, and then collaborating. I think it would be very useful for any licensed professional to have like I do in my law business. You know, I have other licensed professionals, not, not just lawyers but, but consultants and some doctors who, if I really need to understand something that I can't get on my own, self directed research, somebody I can call, somebody I can spitball things with to get their point of view.
So just have, just developing, cultivating and maintaining good reliable sources of information that affect that physician's, you know, their world professionally. That would be the best thing to do. Be vigilant about it.
[00:31:35] Speaker B: Well, you are an amazing reliable source for us at the Doc Lounge podcast. So we really appreciate your time and insights and definitely want to hear from our listeners. So if there are specific topics that you know, we can go into more detail with Kevin and Little Health Law. So Kevin, tell us how any physician that's listening can get a hold of you and your practice to, you know, engage any agreement.
[00:32:01] Speaker C: Sure. Well, thank you for that Stacy. We again appreciate you having me.
I always like somebody to reach out to me directly. Probably the best way is my, my email address which is k little health law.com and you know, that's, that's the always the best way, you know we'd be our, our website has a lot of information and resources on it so I would encourage anyone to take a look at it, see if on the nav buttons, you know, hit resources. There's a lot of useful information there I think and, but we'd be delighted to speak with anyone to see if they have, you know, a need that we can help them meet.
[00:32:51] Speaker B: Thanks so much Kevin. Appreciate your time today.
[00:32:54] Speaker C: Thank you Stacy. It's a pleasure to be with you. I really appreciate it.
[00:32:58] Speaker A: Thank you to all of our listeners. If you would like to be notified when new episodes air, make sure to hit that subscribe button. And a big thank you to Pacific Companies. Without you guys, this podcast would not be possible. If you would like to be a guest, Please go to www.pacificcompanies.com. thank.
[00:33:23] Speaker B: You.
