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No one intentionally hires a bad seed, but it happens — unfortunately far too often. Take the case of a Wisconsin doctor who managed to get hired three times following a conviction for sexual assaults on patients. His record was available for anyone who cared to look. Unfortunately, none of the three practices that hired him did. The result? A string of sexual assaults on patients. While an extreme example, there is much to learn from this and other cautionary tales.
When a practice hires a new employee, everyone expects that that person will conduct himself or herself in a professional and appropriate manner. Unfortunately, many practices are faced with employees who are continually tardy with chart submission and violate other practice policies, as well as the more serious concerns such as threats to the safety and well-being of patients, employees and partners of the practice.
While most practices will (and should) take the threats of safety seriously, some practices turn the other cheek when a less-serious problem comes to their attention. That is a mistake. Problem behavior not only can create legal and medical liabilities, but also sends the wrong message: that rules can be broken without consequence.
The solution is to anticipate as many “bad” behaviors or problems as possible and attempt to formulate an approach or philosophy to handling such problems in advance. The sooner you deal with these issues, the better.
An Ounce of Prevention
Background checks must be conducted on all prospective hires. The greater the level of responsibility and trust, the more the vetting required. Background checks, however, won’t always eliminate the bad apples. Employers, therefore, should always establish boundaries at the onset of an employment relationship. This creates clear expectations for employees’ behavior and the resulting actions if behavior does not comply with those expectations.
The best way to do this is to spell things out in the employment and partnership agreement. Your agreements should set forth both general guidelines and specific policies as to what behavior is expected, as well as the consequences for not complying with those expectations. Agreements should specifically list the actions, events or omissions that will lead to termination. For example, if a physician commits or has committed any materially dishonest or fraudulent act in the course of his/her employment or commits acts which, in the reasonable opinion of the practice, endanger the well-being and/or safety of the practice’s patients or physicians, then he or she may be subject to termination. Other, more-specific triggers should be listed as well — billing misconduct, sexual harassment etc.
Indeed, agreements should provide, in addition to normal termination language, for indemnification by a partner for any fines or losses due to his or her actions — billing misconduct, sexual harassment, non-compliance with policies or other “bad” behavior. Unless practice documents are clear on this point, subsequent actions to recover from the problem employee will be difficult.
Some practices will implement policies that will allow a practice to impose financial penalties or make adjustments to compensation in the event of continued non-compliance or problematic behavior. Other options include suspension, buy-back of stock or ownership interest, reduction in any pay-out and requiring problem employees to undergo addiction counseling, anger management or other therapy/counseling.
Even such specific provisions may not be enough, so we recommend that the practice be given as much discretion as possible to deal with such issues as they arise. This means making sure that a group’s documents don’t inadvertently hinder that discretion. For example, if a change in compensation is warranted, the underlying agreements should not allow such changes to be blocked by virtue of a unanimous vote requirement (including the vote of the offending parties).
Even if the policies and guidelines are well expressed in an employment agreement, it can be beneficial to reinforce their importance by creating policy manuals or employee handbooks — especially for the rank and file whose employment is not by contract. These policy manuals should be given to each employee when they start. They should be regularly reviewed and all changes should be documented as having been provided to all employees. When problems arise, the solution is in writing right in front of you and your employee.
Another way to make sure that associates and partners are aware of policies is to send office memos describing or explaining policies and the consequences if non-compliance becomes an issue. While employees have access to their own copies of handbooks and manuals, sending out memos restating specific policies or changes in policies refreshes and emphasizes their importance.
“Do as I Say and as I Do”
Once policies and guidelines have been expressed to employees in their employment agreements and policy manuals, you must reinforce those policies by modeling the expectations. Not only does this create a model for employees to follow, but it also shows the importance you and the practice place on these policies. For instance, if timeliness is important to your practice, make sure the practice owners are arriving to work on time, not making patients wait and completing charts on time. It’s easier to enforce rules if employees do not see you or others breaking them as well.
Along the same lines, consistency in enforcing policies is extremely important. If you are going to discipline one employee for improper coding, make sure you are disciplining all employees who are not coding correctly. Singling one person out not only raises the specter of unlawful discrimination, but also, as stated above, does not reinforce the importance of everyone following the practice’s policies.
Actions Have Consequences
Careful hiring, the establishment of clear expectations and rules and the proper modeling of behavior are all very important. But if you’re not willing to actually enforce the rules, you might as well resign yourself to problems. Most of us want to be liked, and we find it difficult to take action against our employees for “minor” infractions or against our partners for even egregious violations of the rules. We may feel sympathy for the underlying problems that give rise to the bad behavior (“He’s under a lot of stress.” “She has a sick mother.”) No one would suggest that leniency is always a bad thing.
Sometimes it is the right thing. However, while it may be difficult and uncomfortable to take a stance since it may mean discipline or even termination, you must be willing to take action when a problem becomes apparent, and the sooner the better. Employees who do not comply with the norms, ideas or the practice’s policies ultimately lead to more trouble than they are worth.
The amount of time, money, energy and so on that you have invested in the employee may be factors to consider in how to proceed with non-compliance and how quickly you turn to termination as a solution. For example, if the problem is that a physician is not coding properly or completing charts in a reasonable amount of time, immediate termination may be premature. However, it can’t be allowed to continue. An intermediate solution for that practice must be to hire a scribe for that particular physician, but deduct the cost for that out of the physician’s pay.
Unfortunately it is not possible to anticipate every possible situation that may arise, but with a well-drafted employment agreement, employee policy manual and consistent enforcement, most employees will have adequate notice of what is expected of them and the consequences of non-compliance.
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About the author: Robert A. Wade, Esq., Robert J. Landau, Esq., and Jill Patterson are partners in the boutique health care law firm Wade, Goldstein, Landau and Abruzzo, P.C. in Berwyn, Penn., and members of the AAOE Consultant Directory. Get more of Wade’s advice at the Joint Meeting’s YO Program, where he will be one of the featured speakers. Editor's note: Originally published under the title, "Addressing Policies in Your Practice Agreements."