Because of their relatively small size and close working relationships, physician practices are less likely than larger healthcare entities, such as hospitals and nursing homes, to find themselves in an employment suit.
However, employment suits do happen, and practices should watch for the following employment mistakes to reduce their likelihood:
1. Failure to properly pay nonexempt employees for breaks, lunch, and overtime training. "This is a ripe area for litigation right now," says Cherie L. Silberman, attorney at Florida-based Constangy, Brooks & Smith, LLP (CBS).
2. Inappropriately classifying hourly employees as salaried employees to avoid overtime and other compensation. Just because you slap an "assistant to the assistant manager" title on somebody's name tag doesn't make him or her exempt from overtime and other benefits. Juries salivate over this issue. CBS attorney Michael D. Malfitano recommends that physician practices undertake annual or biannual audits to ensure that they haven't improperly classified employees as exempt.
3. Failure to implement, disseminate, and follow personnel policies. What are your harassment and discrimination policies? What are your corrective action and disciplinary policies? You might have the most progressive and comprehensive personnel policies in the business, but they're useless if you don't follow them.
4. Failure to train employees. Do your employees understand the finer points of the Americans with Disabilities Act? Do they understand that harassment is not limited to sex, but can include religion, age, race, ethnicity, disability, and marital status? This training should apply to all supervisors and managers, as well as HR.
5. Failure to document promptly and accurately. Prepare every document regarding warnings, complaints, and disciplinary action as if it is being introduced at trial and you are the jury. Be objective. Get the facts, not the conclusions. The document should include the date it was created, the name and signature of the author, the name and signatures of the witnesses (when applicable), and the stated purpose of the document.
6. Failure to appropriately evaluate employee performance. Make sure your assessment of your employees is accurate. Don't fudge over the problem areas because it's difficult to refute a former employee's complaint of being wrongfully denied a promotion after a soft-hearted supervisor gave a glowing, but undeserved, appraisal. "If they make a decision adverse to that employee later on because of poor performance but there is no documentation to support that, that could look like discrimination," Silberman says.
7. Failure to adequately discipline employees. Remember, the purpose of the discipline, beyond covering your own liabilities, is to help the employee improve. Juries really dislike it when they believe that employees are blindsided with punitive actions.
8. Failure to conduct thorough investigations into employee complaints and, if necessary, take prompt remedial action. If an employee tells you he or she is being harassed, look into it immediately. Again, this is not a difficult concept, but some employers hope to avoid confrontation at all costs, often to their own detriment. Establish ground rules for the interviews, including providing the employee with an explanation about the complaint. Don't make judgments or draw conclusions. Make sure the employee answers the questions posed; listen carefully and take notes.
9. Failure to correctly designate absences under the Families and Medical Leave Act (FMLA). Eligible employees can take up to 12 weeks off under FMLA at companies with 50 or more employees if they have been employed there for at least one year, including 1,250 hours in the previous 12 months. Eligible categories include the birth of a child, placing a child for adoption or foster care, caring for a close relative with a serious health condition, and the employee's own serious health condition. This probably won't affect many of the smaller physician practices, but it's still a good idea to be aware of the law.
10. Failure to prepare for foreseeable employee terminations. If you see an employee that might be a good candidate for termination, plan for it. Document your case for termination. Provide that employee with the necessary notices, releases, and waivers. Determine whether the employee is in a protected class and ensure that the termination is not discriminatory. Make sure the fired employee's severance and vacation pay is ready and accurately assessed at the time of termination.
This article was adapted from one that originally appeared in the November 2009 issue ofThe Doctor's Office, a HealthLeaders Media publication.
Senate Majority Leader Harry M. Reid presented an $848 billion healthcare overhaul package that would extend coverage to 31 million Americans and reform insurance practices while adding an array of tax increases. The Senate measure is similar in scope to legislation the House approved earlier in November. It would require most people to buy insurance, and if their employers did not offer affordable coverage, they would be able to shop for policies on new state-based "exchanges" that would function as marketplaces for individual coverage. Insurance companies would have to abide by new rules that would ban practices such as denying coverage based on preexisting conditions.
Democratic leaders in the Senate have unveiled their proposal for overhauling the healthcare system, outlining legislation that they said would cover most of the uninsured while reducing the federal budget deficit. Democrats expressed confidence that they would have the votes needed to move forward when the legislation hits its first test in the Senate. To get past that first procedural hurdle, Reid will need the votes of all 58 Democratic senators and the two independents aligned with them, the New York Times reports.
Health and Human Services Secretary Kathleen Sebelius said that the controversial new guidelines for breast cancer screening do not represent government policy. In a written statement, Sebelius said the new guidelines had "caused a great deal of confusion and worry among women and their families across this country," and she stressed that they were issued by "an outside independent panel of doctors and scientists who . . . do not set federal policy and . . . don't determine what services are covered by the federal government." The U.S Preventive Services Task Force had recommended that women in their 40s not undergo routine mammograms and instead individually discuss with their doctors whether to have the exams. The panel also said that women in their 50s should have routine mammograms every two years, instead of annually.
Members of the University of California Board of Regents meeting at UCLA said that they were cautiously optimistic that they would vote to partner with Los Angeles County to reopen Martin Luther King Jr. Hospital. Under the proposal, the county and the University of California would create a nonprofit entity to run the hospital, with the university providing physician services and medical oversight. The agreement specifies that the hospital would have 120 beds, an emergency room, three operating rooms, and no trauma center.
Due to a loss of Minnesota healthcare funds, Hennepin County Medical Center plans to stop seeing uninsured, nonemergency patients from other counties, cut 150 to 200 jobs, and close two clinics on its downtown campus. HCMS faces a 2010 budget that is "not sustainable," officials said. The changes, which would take place in 2010, were approved by the hospital's board and go to the county board next month for final approval. HCMC officials have warned for months that the hospital, which sees 140,000 patients a year in its emergency department alone, cannot continue to absorb losses in state funding and still continue to care for the uninsured patients, the Minneapolis Star Tribune reports.