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Physicians
CMS offers accelerated payments to providers affected by the Change Healthcare ransomware attack. Many of our clients have experienced cash flow disruptions due to the ransomware attack on Change Healthcare, a subsidiary of UnitedHealth Group. Change Healthcare is the largest health care billing clearinghouse in the country, processing 14 billion transactions annually. The system suffered a cyberattack on February 21, 2024, and has still not recovered operations. Because of the significant financial losses being experienced by health care providers, the Centers for Medicare and Medicaid Services (CMS) has set up an accelerated payment program for Part A and Part B providers and suppliers, called the Change Healthcare/Optum Payment Disruption (CHOPD) program. Advance payments may be up to thirty days of claims payments to eligible hospitals, physicians and other providers and suppliers. (Providers that receive Periodic Interim Payments [PIP] are not eligible.) The program will be administered by the Medicare Administrative Contractors (MACs). To be eligible for CHOPD payments, the provider/supplier must submit a certification to the MAC stating, among other things, that: The provider/supplier is not able to submit claims to receive Medicare payments due to a business relationship involving Change Healthcare The provider/supplier has been unable to obtain sufficient funding from other sources to cover the disruption in claims processing The provider/supplier is not insolvent and does not intend to cease operations. The maximum allowable amount will be 30 days of Medicare claims payments based on total claims paid to the provider/supplier between August 1, 2023, and October 31, 2023, divided by three. Payments under the CHOPD program are not loans but rather advances of Medicare payments. They will be recovered through recoupment as claims are processed and if any balance remains unpaid after 90 days, interest will accrue. Health care providers experiencing disruption in claims submission should submit the form required by the MAC covering their area. A list of MACS is available at https://www.cms.gov/mac-info . For further information, contact us .
Operating a medical practice is not for the faint of heart. On the revenue side, practices are constantly squeezed by cost pressures from government programs and private payors. These same payors impose growing administrative burdens, such as reporting quality metrics and complex coding, that increase the cost and complexity of administering the practice. Practices need substantial operating capital to maintain electronic medical records, recruit staff in a challenging environment, and manage operating costs in an age of inflation. As a solution, some practices may look to contract with a Management Services Organization (MSO), also known as a physician practice management company (PPMC), to deal with these pressures. MSO arrangements may appeal to physicians who want to focus on caring for their patients while shedding the administrative burdens of running the practice. However, in the continually changing health care regulatory environment, it is important to understand all details of the transaction and potential legal implications. Strategic reasons for considering a relationship with an MSO include the potential for obtaining greater leverage in managed care contract negotiations through representation by an experienced negotiator; decreasing routine costs by realizing economies of scale in supply purchasing and office leasing; and relieving administrative burden by shifting billing, staffing and other functions to the management company. These potential benefits must be weighed against the risk of loss of autonomy of the practice. There is no "one size fits all" when it comes to MSOs. Some provide limited specific services, such as revenue cycle management (which may include coding, billing, collection and maintenance of accounts receivable records). Others provide a broad range of services, including supply purchasing, management of human resources and accounting. On the most comprehensive side of the scale, some MSOs may purchase the physical assets of the practice and then provide all administrative services, including leasing of office space, furnishing of equipment and supplies, employment of nonclinical staff, in addition to financial management. There is also great variation in the entities operating MSOs, which can include nonprofit health systems, health insurance companies, and private equity firms. Entering into any business transaction requires due diligence, and a physician considering a contract with an MSO should look into the background, experience and resources of the company. The contract terms should receive close attention , in particular with regard to termination rights if the contract does not work out as planned. This is especially the case if the MSO has purchased the physical assets of the practice. There also are many legal considerations for MSO contracts. In particular, it is important to make sure that the contract does not violate state law provisions regarding fee splitting and the corporate practice of medicine. The transaction must also be analyzed to assure it complies with federal law, including the Stark law and anti-kickback statute. For further information contact us .
What if a patient refuses to be treated by a provider of color? As unbelievable as it may seem in this day and age, there are patients who make it clear that they do not want to be treated by providers of color or of certain nationalities. This issue can put clinics, hospitals and health systems in a difficult catch-22 -- respecting the desired preferences of patients while respecting the rights of those employed to provide care to those patients. This is an issue that involves ethics as well as the law. As to the ethical issues, it is left to the employers of health care providers to determine what duties may be owed and to whom. As to the legal issues, the courts and the Equal Employment Opportunity Commission have begun to consider the impact of Title VII of the Civil Rights Act on assigning patients according to their preferences on race or membership in other protected classes. Once a patient expresses a preference to not be treated by a provider of color (or an outright refusal to be treated by such a provider), it becomes an employment issue for the employer of the provider. Some health care employers have gone so far as to create policies to deal with that issue. Some policies require the reassignment of patients to a provider with which the patient is more comfortable. While that may not necessarily affect the income of the provider, as that provider may see other patients, it does, without a doubt, have an impact on other aspects of that provider’s employment. Although well-intentioned, those policies will likely violate state and federal anti-discrimination laws. To reassign a patient to a provider to whom the patient does not object due to the race or national origin of the provider (or membership in any other protected class) would clearly discriminate against that provider. In the non-health care setting, moving an employee of color because another employee objects to working with the employee of color would be discriminating against the employee of color. Likewise, not allowing an employee of color to interact with certain customers would also be discriminatory. Although this is a decision to be made by employers of health care providers, the best advice from a legal (and likely an ethical) standpoint is to respect the employee and refuse to accede to the wishes of patients who express a preference, or make demands, about who should be providing them care. Race, nationality, religion or membership in any other class of individuals protected under law should not play a part in determining which provider is assigned to which patient. The policy should be that, if the patient refuses treatment or care by a provider based upon that provider’s membership in a protected class, that patient should be informed that the health care employer does not discriminate against patients or employees based upon race, color, national origin or membership in any other protected class and that the patient is free to obtain care elsewhere. That should satisfy the ethical obligations of the employer of health care providers while protecting health care employers of liability for violations of those federal and state laws governing discrimination in the workplace. In cases in which a patient is abusing or otherwise mistreating a provider, the patient should be discharged from the practice consistent with the requirements concerning patient abandonment. For further information contact us .
On November 1, 2022, the Centers for Medicare & Medicaid Services (CSM) published its final rule on updates under the Physician Fee Schedule (PFS) and other Medicare Part B issues. The final rule is effective January 1, 2023. (CMS also published its 2023 final rule for updates to the outpatient prospective payment system and payments to ambulatory surgical centers; we will address these changes in a separate summary.) Generally, CMS calculates payments to physicians and other billing practitioners by applying a conversion rate to the relative value units (RVUs) required for a service. The PFS final rule decreases the conversion factor by $1.55 (from $34.61 to $33.06). This decrease is largely due to the expiration of the 3% supplemental increase in PFS payments for 2022. The PFS final rule also implements changes in several areas, including the following: Telehealth The Consolidated Appropriations Act for 2022 required that some of the expansions to coverage for telehealth services implemented during the Covid-19 Public Health Emergency (PHE) continue for 151 days following the end of the PHE. These include: Allowing telehealth services to be furnished in any geographic area and in any originating site, including the patient's home Allowing certain services to be furnished via audio-only telecommunications Allowing physical therapists, occupational therapists, speech-language pathologists and audiologists to furnish telehealth services Delaying the in-person visit requirement for mental health services furnished via telehealth until 152 days after the end of the PHE (The in-person visit requirement had applied to the first visit; thereafter mental health visits can be furnished virtually on a permanent basis.) Allowing payments to rural health clinics and federally qualified health centers for furnishing telehealth services as distant site practitioners. CMS has also updated the Telehealth Originating Site Facility Fee for 2023. Behavioral Health Services CMS implemented some revisions to improve access to behavioral health services, including the services of behavioral health professionals such as licensed professional counselors (LPCs) and licensed marriage and family therapists (LMFTs). CMS will allow services of LPCs and LMFTs to be furnished under the general supervision of a physician or non-physician billing practitioner (NPP), rather than under direct supervision. In addition, CMS added a new general behavioral health integration (BHI) code to cover service personally performed by a clinical psychologist or clinical social worker for monthly care integration. Evaluation and Management (E/M) Visits CMS adopted updates to coding for Other E/M visits (including hospital inpatient, hospital observation, emergency department, nursing facility, home or residence services, and cognitive impairment assessment). CMS delayed its split (or shared) visits policy for another year. Until 2024, physicians and NPPs who furnish split or shared visits can continue to define the substantive portion of a visit based on either the history, physical exam, medical decision-making, or time spent. Quality Payment Programs CMS established five new Merit-based Incentive Payment System Value Pathways (MVPs), and revised the seven previously announced MVPs. CMS also implemented changes to the Medicare Shared Savings program intended to increase participation in rural and underserved areas. Other Changes CMS adopted changes in several other areas, including the following: Chronic pain management and treatment: CMS finalized codes for a bundle of services furnished during a month for holistic care of chronic pain. Audiology services: Beneficiaries will have direct access to an audiologist without an order from a physician or NPP for non-acute hearing conditions. Audiologists may bill for prescribing, fitting or changing hearing aids once per year per beneficiary. Dental services: While most dental services are not covered, CMS finalized a rule to provide for Medicare payment for dental services when the service is an integral part of treatment for the beneficiary's primary medical condition (such as oral exams preceding kidney transplantation), or when needed prior to or contemporaneously with organ transplants, cardiac valve replacements, and valvuloplasty procedures. Colorectal cancer screening: The minimum age is decreased from 50 to 45 years, and the definition of colorectal cancer screening tests is revised so that beneficiary cost sharing will not apply to either an initial non-invasive stool-based test or a colonoscopy following a positive result from the initial test. Opioid treatment programs: CMS revised payment rates to increase payments for medication-assisted treatment and other treatments for opioid use disorder. For further information contact us .
Physician Contract Review
We are frequently asked by clients whether the restrictive covenants (non-compete provisions) in their employment agreements are enforceable. The answer varies from state-to-state and must often be evaluated on a case-by-case basis. Generally, a non-compete provision restricts an employee from engaging in competitive activities for a period after the employment relationship terminates. Recent amendments to the Illinois Freedom to Work Act (“Act”) impose new restrictions on non-compete provisions in effect after January 1, 2022. Below are the highlights: Salary Thresholds As amended, the Act prohibits restrictive covenants with employees earning less than $75,000 annually. The salary threshold amount will increase by $5,000 in 2027, 2032, and 2037. By January 1, 2037, a restrictive covenant will not be enforceable for employees earning less than $90,000 per year. Notice Requirements The Act requires that all employees be given time to think over a proposed restrictive covenant before signing a contract. Restrictive covenants are only valid if the employer (1) advises the employee in writing to consult an attorney before signing the Agreement and (2) provides the employee a copy of the restrictive covenant 14 days before the employee is required to sign it. COVID-19 Restrictions The Act prohibits employers from entering into restrictive covenants with employees who are terminated, furloughed, or laid off as the result of business circumstances or governmental orders related to the COVID-19 pandemic. If the employer wants to enforce the restrictive covenant in such circumstances, the employee must receive compensation equal to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement. Otherwise, the restrictive covenant is void and unenforceable. Adequate Consideration and Reasonableness The Act requires adequate consideration, which means the employees must either work for the employer for at least two years or the employer must offer some other valuable consideration that is tied specifically to the non-compete. In addition, the Act provides that a restrictive covenant is reasonable if it is no greater than is required to protect the legitimate business interest of the employer. The reasonableness of the restrictive covenant is determined by looking at the totality of the facts and circumstances, which include, but are not limited to, the following: 1. The employee’s exposure to the employer’s customer relationships or other employees, 2. The near-permanence of customer relationships, 3. The employee's acquisition, use, or knowledge of confidential information through the employee's employment, 4. The time restrictions, the place restrictions, and the scope of the activity restrictions. Remedies The Act provides that an employee is entitled to recover all costs and all reasonable attorneys’ fees if an employee prevails on a claim to enforce a non-compete. Enforcement In the event the Illinois Attorney General has reasonable cause to believe that an employer is violating the Act, the Attorney General may pursue action and impose monetary penalties. Recommendation Illinois employers and employees should have their agreements reviewed by an experienced health care attorney to ensure compliance with the new law. For further information contact us .
“It’s the least I can do. If there were anything less, I’d do that.” - Georg Osterman One of the most important, yet overlooked, parts of a physician employment agreement is the list of job duties. The reason it is often overlooked is primarily due to the general belief that the duty of a physician is to practice medicine. The lack of a job description or the inclusion of a loosely drafted job description can cause problems for the physician as well as the employer. In short, job duties are material terms of a contract that can be enforced by the employer. When reviewing a proposed employment agreement, a physician may be focused intently on compensation and benefits and not pay attention to the list of “job duties” that could have a significant legal impact on the physician. Likewise, the absence of a list of duties may result in the employed physician being required to spend time engaged in activities that he/she did not consider when accepting employment. A common example is an employment agreement that dictates the number of hours in a day to be worked but does not take into consideration expected call coverage or practice development activities. Another example is “administrative duties” that are often listed but not clearly defined. Although not an exhaustive list, the following should be clearly understood and defined if contemplated as a job duty: Where will the services be performed? This is important if the practice has multiple offices or a hospital has multiple clinics. The agreement should state if services will be provided only at one location or if the physician may be required to travel to other locations. This is even more important if the employment agreement includes a non-compete clause. How much call will the physician be expected to take? What administrative duties may be required of the physician? Will the physician be expected to spend additional time promoting the practice and, if so, how much time and what activities will be expected? Will the physician be required to supervise Advance Practice Providers? What is the specific area of practice that the physician will be expected to provide services? What are the minimum and maximum number of hours per day/week expected of the physician for patient encounters and other required activities? The definition of these duties is as important for the employed physician as it is for the employer. For instance, if the employer wants the physician to travel to another location, the physician may properly refuse if the employment agreement only lists one address at which the physician will be working. On the other hand, if the employment agreement is not specific as to where the physician will be working, the employer could take the position that the physician will be expected to work at any location directed by the employer. If the physician is expected to enter into collaborative agreements with Advanced Practice Providers, those duties should be set forth in the agreement. If those duties are included, they should specify the number of Advance Practice Providers for whom the physician will be responsible, as many states have laws defining the maximum number allowed. If those duties are not listed, the physician can theoretically refuse to fulfill those duties unless additional compensation is offered. If those duties are set forth in the agreement, but no limitation on how many Advance Practice Providers will be assigned to the physician, the physician will not be able to refuse even if those additional duties create a hardship on the physician. CAUTION: The balance between clarifying job duties and appearing to be a “team player” is delicate during the contract negotiation process. A physician who wants the job does not want to be perceived as being lazy. A common example of this is “call time.” For some physicians, the amount of “call” required is very important to lifestyle. However, for other physicians it is not an issue because the specialty does not demand arduous call. In the latter situation, there is no reason to strenuously negotiate the details of call in the contract. Your attorney can help decipher these issues with you. For further information, please Contact Us .
Often, physician employment agreements refer to the potential of an employed physician acquiring an ownership interest in the employer’s business if certain conditions are met. As an example, a condition may include a requirement of working for the practice for a certain amount of time or achieving satisfactory results on performance reviews before qualifying for potential ownership. Unfortunately, in too many instances due to very subjective language, the employee never actually becomes eligible for ownership. If owning part of a practice could be a material reason for you to accept a position please read further. Here is an example of an ownership option that cannot be enforced: “If Employee remains in the employ of the corporation for ___ years and if Employer in its sole discretion wishes to offer ownership to Employee it may do so subject to a transaction that is separate from this Agreement.” Compare this to an example of an ownership option that is clearer and can more easily be enforced: “If Employee remains in the employ of the Corporation for ___ years, Employee shall be entitled to purchase an ownership interest in the Corporation in an amount of ownership equal to the other owners.” Recommendations: Decide how important it is for you to become an owner while negotiating an employment agreement. To some, for their own personal reasons such as moving and building a career, this is very important. To others it is a “take it or leave it.” In our view, if it is on the table, you should take it because if the contract is constructed correctly you can leave it later. If an employer promises you ownership it must be in writing. Otherwise, you do not have a legally binding and enforceable agreement. True options to purchase include specific language. For example, after “X” amount of years, the Physician shall have the option to purchase an ownership interest in the practice. In our experience, these true options are less common than others. Most options to purchase are vague and include discretionary and subjective language. For example, if the Physician meets the Practice’s expectations, in Practice’s sole discretion, then the Physician may be presented with an ownership option. This language is discretionary and unenforceable for the physician. Keep in mind that if you are working for a practice over several years as an employee, you are helping to build equity for the practice. Thus, the fruits of your labor will be part of the value. Remember, you are not forced to use an option to purchase even if you have one. If the agreement is construed properly, you can walk away from that opportunity. As always, we recommend having your contract reviewed by an experienced health care attorney. For further information about estate and legacy planning, please Contact Us .
Due to the pandemic, many jurisdictions including Illinois are postponing jury trials until sometime in 2021. But not all contract disputes allow for jury trials or bench trials. Many physician employment agreements require that binding arbitration be the sole method of dispute resolution. What does this mean for you? An agreement to arbitrate is a contractual agreement between two-private parties, and courts have made clear an intent to uphold arm’s length negotiated contracts and to hold parties to their agreement. Parties should carefully weigh the potential upsides and downsides of agreeing to arbitrate disputes instead of going to civil court. Arbitration is a form of alternative dispute resolution whereby parties to a dispute agree to submit their respective positions and evidence to a neutral third-party arbitrator (or panel of arbitrators) who then considers the evidence and makes a binding decision resolving the parties’ dispute. Decisions are considered final and binding on the parties. Arbitration provisions can be found in many professional agreements, including independent contractor and employment agreements. Arbitration is potentially a more efficient, less costly method to resolve disputes. However, a party who agrees to arbitrate typically waives certain rights such as to have a dispute be heard by a jury, and potentially certain types of damages that can be awarded in civil court. Illinois has new restrictions with respect to arbitration clauses in employment agreements under the Illinois Workplace Transparency Act which took effect this year. It applies to full-time and part-time employees, apprentices, unpaid interns, and to consultants and contractors who perform work for the employer pursuant to a contract. It does not apply to collective bargaining agreements. Under the Illinois Transparency in the Workplace Act, any arbitration clause will be void if it is presented as a unilateral condition of employment or continued employment. An arbitration clause may still be valid if it (1) is mutually agreed upon, (2) is in writing, (3) demonstrates actual, knowing and bargained-for consideration from both the employer and the employee, and (4) acknowledges the right of the employee or prospective employee their rights under discrimination laws and to seek confidential legal advice. Employers and prospective employees should consider both the advantages and disadvantages to arbitration when deciding whether to agree to arbitrate their claims. In addition, parties should consider how certain contingencies might be handled by including certain provisions in an arbitration clause. For example, the parties can decide what law will apply to the arbitration clause, what subjects are arbitrable and which party or both will pay for the arbitration. For further information about estate and legacy planning, please Contact Us .
New Physicians
By now all health care providers have become painfully aware of the pitfalls of not being vigilant when it comes to considering the release of patients’ health information kept in electronic form (Electronic Health Information or “EHI”). Caution being the better part of valor, many physician providers and hospitals take the position that, when they aren’t sure whether or not they can release EHI, they choose to not release it. Welcome to the new world of “Information Blocking” (“IB”). A part of the Federal 21st Century Cures Act, the Information Blocking (IB) Rule now forces providers to begin with the presumption that EHI is to be disclosed unless they can clearly determine that the EHI should not be disclosed. We now must shift from a “may disclose” attitude to a “shall disclose unless an exception to disclosure applies or disclosure is prohibited by law” attitude. Information Blocking means a practice that: Except as required by law or covered by an exception, is likely to interfere with access, exchange, or use of electronic health information; and, If conducted by a health information technology developer, a network or exchange knows, or should know that such practice is likely to interfere with, prevent, or materially discourage access, exchange or use of EHI; or, If conducted by a health care provider, such provider knows that such practice is unreasonable and is likely to interfere with the access, exchange, or use of EHI. The definition of EHI is based upon the HIPAA definition of Designated Record Set (DRS) but is not limited to HIPAA Covered Entities. DRS includes medical and billing records of a covered health care provider, specific health plan records such as enrollment, payment and claims records and records used by a covered entity to make decisions about individuals. Also included will be pricing information, algorithms or processes that create EHI as well as information resulting in clinical interpretation or relevance of algorithms or processes. If the data that is requested is completely de-identified (meaning identifying information such as names, addresses, telephone numbers, social security numbers, etc. is removed), it is not subject to the IB rule. If disclosure of requested information is blocked pursuant to law, it is not subject to the IB rule. In order to be considered blocked as required by law, the right to interfere with access, exchange or use of the EHI must be explicitly required by state or federal law. Note that blocking as required by law is not the same thing as blocking that may be allowed under law. The law states that Information Blocking will almost always be implicated if a provider interferes with: the access, exchange or use of EHI for patient access to their own EHI and use without special effort; treatment and care coordination; payers obtaining EHI to assess clinical values/promote transparency, quality improvement; and the support of patient safety and public health. The IB Rule states that a provider will be in violation if it knows that its practice is unreasonable and is likely to interfere with the access, exchange or use of EHI. Question: What do medical practices and hospitals need to do? Answer: Assess their policies and processes to ensure that they are compliant with the IB Rule and to prevent the improper refusal to disclose EHI. For further information, please Contact Us .
Undoubtedly, along with the COVID-19 pandemic will come a wave of malpractice lawsuits where the theory of negligence against the provider will be based on the treatment provided. We expect to see at least the following theories: failure to diagnose, failure to treat and failure to treat in a timely manner. Much will depend upon the creativity of plaintiff attorneys; however, we are already seeing COVID theories related to non-COVID issues, such as failure to monitor a patient post-operatively which allowed a patient to contract the virus. We offer below some suggestions for our clients. To prevail in a medical malpractice case the plaintiff must prove that the physician or provider: • had a duty to provide care according to a certain standard • strayed from that standard, and • due to the physician or provider’s conduct, • caused an injury to a patient. To protect you from malpractice claims and to place yourself in a strong defense position, thorough documentation is critical. You should operate under the assumption that a judge or jurors will conclude that if something is not documented it was not done even if it was, in fact, done. We offer the following suggestions to help you mitigate your risk: • Use a waiver form. Providers are well advised to consider updating their patient consent forms for patients receiving care and treatment during the pandemic. These forms should include an acknowledgement of the potential risks of becoming infected with COVID-19. • Always document the events of a patient encounter including at least: date, time, signs and symptoms, plan of treatment, recommended follow up, patient’s understanding and agreement. If you change your plan of treatment that should also be documented in the medical record. Such documentation should include instructions provided via telephone. • Have the patient sign discharge or other instructions indicating understanding and agreement. • Document failure to follow up. Reach out to the patient via phone and in writing to state that the patient has not followed up as recommended. Note that such communications must be confidential due to HIPAA and privacy laws. As always we are available to assist with any of the above. For further information, please Contact Us .
The COVID-19 pandemic has had a significant effect on the economy and has forced practices to downsize and reduce expenses. In the face of these changes, the question arises from our physician clients: which status is best - an employee or an independent contractor? Are you an entrepreneur? Do you like to manage people? Do you like to handle finances? Are you the type of person who does not need to predict his/her income or expenses? Are you a business risk-taker? Do you consider yourself a rainmaker? If you answered "yes" to all of these questions, perhaps you should consider being an independent contractor. Being an independent contractor is like having your own private practice in many ways including covering your overhead costs and taking on personal liability. On the other hand, if you prefer to know how much and when you will be paid, if you like to “disconnect” at the end of the day and be flexible with your work life, if you do not like taking business risks, and if you prefer to leave administrative issues to others, then the employee route may be the best option for you. The legal distinction between an independent contractor and an employee is an important one. An employee (W-2) works under the control and direction of the employer; whereas, an independent contractor (1099) works independently and has greater control over his/her own time. Worker classification also affects how taxes are paid and by whom, and whether someone is eligible for social security, Medicare and other types of benefits. The IRS distinguishes between the two and uses a three-part test to determine whether a worker should be classified as an employee or independent contractor which has tax consequences. The benefits of an independent contractor versus an employee vary on a case-by-case basis so we highly recommend you discuss the financial and tax benefits with your accountant. Aside from the financial aspect of deciding whether you should be an employee or independent contractor, your personal desires and goals should also be factored into the decision-making process. Each of our provider clients are unique. It is important for you to recognize your personal preferences when it comes to deciding whether to be an independent contractor or an employee. We are here to help you and to draft or review your agreements. For further information, please Contact Us .
Telemedicine is growing in popularity in the healthcare industry as physicians decide whether to use telemedicine to care for patients during the COVID-19 public health emergency. Before making any decision, you should consult with an attorney regarding the various legal implications since the laws surrounding telemedicine are constantly changing and vary from state to state. Telehealth v. Telemedicine Just as the laws surrounding telemedicine vary from state to state, so do the definitions of telehealth and telemedicine vary. Generally, telehealth refers to a broader scope of remote healthcare services, which includes both clinical and non-clinical services; whereas, telemedicine refers to remote clinical services. Thus, telemedicine is the subset of telehealth. Some states refer to telemedicine as telehealth; whereas, other states distinguish the two terms. For example, the Illinois Telehealth Act (225 ILCS 150/5) defines telehealth as “the evaluation, diagnosis, or interpretation of electronically transmitted patient-specific data between a remote location and a licensed health care professional that generates interaction or treatment recommendations.” On March 19, 2020, Illinois Governor Pritzker passed Executive Order 2020-09, which expands the definition of telehealth services “to include the provision of health care, psychiatry, mental health treatment, substance use disorder treatment, and related services to a patient, regardless of their location, through electronic or telephonic methods, such as telephone (landline or cellular), video technology commonly available on smart phones and other devices such as FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, and videoconferencing.” Distant Site v. Originating Site The terms distant site and originating site are also used frequently when discussing telemedicine. The distant site is the location of the physician at the time the service is provided; whereas, the originating site is the location of the patient. Main Categories of Telemedicine The three main categories of telemedicine include: (1) interactive medicine, (2) store and forward, and (3) remote patient monitoring. First, interactive medicine, also known as “live telemedicine”, allows patients and medical professionals to communicate in real-time through audio and video technology. Second, the store and forward category allows medical professionals to collect data from a patient, such as blood glucose levels, and forward the data to another licensed professional for assessment. Third, the remote patient monitoring method allows a medical professional to monitor a patient remotely using various medical devices to capture blood pressure, glucose levels, etc. Legal Implications As mentioned above, telemedicine laws vary from state to state, especially now as many states remove certain restrictions and barriers during the COVID-19 pandemic. Physicians must abide by the laws of that state where the patient is located. For instance, if an Illinois physician provides telemedicine services to a Michigan patient, the Michigan laws apply. Several legal issues must be considered before implementing a telemedicine program. 1. Physician-Patient Relationship Before providing telemedicine services, a physician-patient relationship must be established. A physician-patient relationship is established when a patient knowingly seeks a physician’s services and the physician knowingly accepts a patient. While some states require an in-person examination prior to providing telemedicine services, Illinois laws do not have such a requirement. As a best practice, when establishing the physician-patient relationship via telemedicine, the physician should verify the identity and location of the patient at the time of service to ensure compliance with the laws of the state where the patient is located. 2. Informed Consent Informed consent is the process in which a patient is made aware of the risks and benefits of undergoing a medical service, treatment, or procedure. A physician has a duty to disclose all reasonable information to a patient in order for the patient to make an informed decision about a particular medical service, treatment, or procedure. However, when it comes to specific requirements regarding informed consent for telemedicine services, some states require providers to give patients specialized, informed consent regarding the potential risks, benefits and limitations of telemedicine practice. When providing telemedicine services, it is important to have an attorney review the consent forms to ensure the appropriate language is included for virtual visits. While Illinois does not have specific requirements for informed consent via telemedicine, a best practice before the first telemedicine visit is to explain to patients how telemedicine works (i.e. when service is available, scheduling, privacy/security measures etc.), any limits on confidentiality, the possibility for technical failure, protocols for contact between virtual visits, prescribing policies, and coordinating care with other health professionals. 3. Licensure Telemedicine services must be provided by a health care professional who is licensed, registered, or otherwise authorized to engage in his or her health care profession in the state where the patient is located. The key factor in determining whether the physician may provide telemedicine services is the location of the patient. In addition, if services are conducted through an entity, the entity must be active and registered in the state where telemedicine services are provided. However, amid the COVID-19 pandemic, some states waived the licensure requirements and permit out-of-state physicians to provide telemedicine services. Licensing requirements vary from state to state so you must ensure that you comply with the laws of the state where the patient is located. 4. Teleprescribing Given the declaration of a public health emergency by the U.S. Department of Health and Human Services (HHS), DEA-registered practitioners may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met: The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice; The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and The practitioner is acting in accordance with applicable Federal and State laws. 5. Medical Malpractice Liability Before providing telemedicine services, a physician should check with his or her professional liability carrier regarding liability coverage for telemedicine services. By providing telemedicine services, the physician is subjecting himself/herself to the laws of the state where the patient is located and its jurisdiction. The physician should verify that he/she meets the other state’s requirements and that the insurance carrier provides coverage for the work in the other states. 6. Privacy The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Health Information Technology for Economic and Clinical Health (HITECH) sets rules for how patient information must be protected. Since physicians are responsible for protecting patient information, they should ensure that patient information in telemedicine visits are safeguarded in the same manner that in-office visits are safeguarded. As of March 6, 2020, the HHS Office of Civil Rights announced that physicians and clinicians may use any audio or video communication technology that is “non-public facing” to care for patients for any reason (not just COVID-19 patients). Some examples of these non-public facing platforms include Apple FaceTime, Skype, Zoom and Google Hangout video. Facebook Live and TikTok are excluded from the permissible non-public facing platforms. Even though HHS relaxed the penalties for using non-public facing technology during the COVID-19 outbreak (which may not be fully compliant with HIPAA regulatory requirements), it is still important for physicians to enable application privacy and encryption settings when possible. With various technologies, there is a risk of a data breach, which may put sensitive patient information at risk of exposure. As a best practice, physicians should ensure the technology being used is fully secure and HIPAA-compliant. Furthermore, physicians should consider updating consent forms to ensure patients are notified of the privacy and security risks associated with telemedicine. Also, when allowing electronic personal health information to be stored by a third-party, physicians should ensure that a Business Associate Agreement (BAA) is signed by both parties. The BAA should discuss how the third-party will safeguard patient information and how often audits will be conducted to ensure the data’s security. 7. Non-Compete Provisions in Personal Service Agreements to Provide Telehealth Services for a Company as an Independent Contractor or as an Employee Contracts to provide Telehealth Services which contain non-compete provisions should be scrutinized carefully. Restrictive Covenants or “noncompete” language in contracts dictate where and when a former employee or contractor can work after a contract terminates, often for any reason or no reason. If you are entering into an agreement, consulting an attorney for advice is recommended to help limit personal legal exposure. The legal issues mentioned above are just a few examples of what needs to be considered when deciding whether to implement or be involved in a telemedicine program. Since each state has different requirements with telemedicine and the requirements are rapidly changing during the COVID-19 pandemic, please contact Malecki & Brooks Law Group, LLC to find out the specific requirements for a particular state. For assistance in telemedicine matter please contact Natalie Ficek or call us at 630-948-4807.
Advanced Practice Providers
Effective immediately, Advanced Practice Registered Nurses (APRNs) are now allowed full practice authority provided they meet certain education and training requirements. On September 20, 2017, Governor Bruce Rauner signed HB313 (Public Act 100-0513) which allows certain Advanced Practice Registered Nurses, certified as a nurse practitioner, nurse midwife, or clinical nurse specialist, to practice without a collaborative agreement with a physician. The new law requires APRNs to have a written collaborative agreement with a physician unless they complete 250 hours of continuing education or training and at least 4,000 hours of clinical experience after first attaining national certification in their area of certification. Once the APRN achieves these milestones, the APRN and collaborating physician(s) will sign an attestation that the training was completed. This attestation must be available upon request by the Illinois Department of Financial and Professional Regulation. The Act also advises an APRN must have a consultation relationship with a physician if the APRN will prescribe benzodiazepines or Schedule II opioids. The consultation relationship must be recorded in the Prescription Monitoring Program website. The APRN must identify the specific Schedule II narcotic drugs, such as opioids, he or she prescribes, and the APRN may not administer them via injection. And, at least monthly, the APRN and the physician must discuss these patients’ benzodiazepine or opioid therapy. The law also states that while APRNs may identify themselves as a “doctor” in a clinical setting, they must clearly state are not a medical doctor or physician, nor may they advertise with the title “doctor” or “physician”. The new law takes a big step in allowing APRNs greater autonomy to treat and prescribe, but does not grant them complete independence. The above information may trigger a need for change in your corporate and/or medical staff bylaws. For further information about APRN practice authorities contact Melinda Malecki .
Heads Up: APRNs Granted "Full Practice Authority" In Illinois Effective June 14, 2019, advanced practice registered nurses (APRNs) who have completed the necessary training and education may now be granted full practice authority. This change to the Nurse Practice Act allows APRNs with full practice authority to practice without a collaborative agreement with a physician. In order for an APRN to obtain full practice authority, the APRN must submit to the Illinois Department of Financial and Professional Regulation (IDFPR) an application and a notarized attestation that they completed "at least 250 hours of continuing education or training and at least 4,000 hours of clinical experience after first attaining national certification." (225 ILCS 65/65-43(b)). The prescriptive authority for an APRN with full practice authority is no longer limited provided the APRN has a practitioner license under the Illinois Controlled Substances Act. APRNs with a practitioner license may prescribe, administer, and dispense over the counter medications, legend drugs, and Schedule II through V controlled substances. APRNs may also prescribe benzodiazepines or Schedule II narcotic drugs, such as opioids, but only in a consultation relationship with a physician. To apply for full practice authority, the APRN must have a current Illinois Registered Nurse License and a current Illinois Advanced Practice Registered Nurse License. The Illinois Advanced Practice Registered Nurse – Full Practice Authority Licenses will expire on May 31 of every even-numbered year. The IDFPR Instruction / Information sheet can be found at: https://www.idfpr.com/Renewals/Apply/Forms/APRN-FPA.pdf For further information, please contact Aileen Brooks .
Labor & Employment
A Primer to Navigate Your Employment Contract/Personal Service Agreement
The Corporate Transparency Act (“CTA”) became law effective January 1, 2021 when Congress overrode President Trump’s veto. The purpose of the CTA is to eliminate money laundering and other illegal criminal and terrorist activities that are often conducted through anonymous shell companies. Under the CTA, business entities will be required to report certain information to the Financial Crimes Enforcement Network (“FinCEN”) of the Department of Treasury. Said information will not be publicly available but may be distributed in a limited number of instances. Who is subject to the CTA and who is exempt? FinCEN has adopted the Beneficial Ownership Information Reporting Rule (the “Reporting Rule”) by virtue of the authority granted to it under the CTA. According to the Reporting Rule, a “reporting company” is subject to the requirement of the CTA. Generally, a reporting company falls into two categories: A domestic reporting company - an entity such as a corporation, limited liability company, partnership, or other such entity that is created by filing a formation document with a state’s Secretary of State or equivalent agency; or A foreign reporting company – an entity such as a corporation, limited liability company, partnership, or other such entity that is created by filing a formation document in a foreign country but which is qualified or registered to do business in a state by filing appropriate paperwork with a state’s Secretary of State or equivalent agency. While a company may be considered a domestic reporting company or foreign reporting company at first glance, a company may be exempted from the CTA’s requirements if the company falls under any of the twenty-three (23) exemptions set forth in the Reporting Rule. Example of exemptions include, but are not limited to, certain tax-exempt entities, inactive entities, certain large operating companies, insurance companies, banks, and credit unions. In almost all cases, a for-profit entity, such as a medical practice or a practice providing other professionally licensed services, will be considered a reporting company that is subject to the CTA reporting requirements. Not-for-profit entities will be considered exempt from the CTA reporting requirements if they meet any of the following requirements: The entity is an organization that is described in Section 501(c) of the Internal Revenue Code of 1986 (the “Code”), determined without regard to Section 508(a) of the Code, and exempt from tax under Section 501(a) of the Code; The entity is an organization that is described in Section 501(c) of the Code, and was exempt from tax under Section 501(a) of the Code, but lost its tax-exempt status less than 180 days ago; The entity is a political organization, as defined in Section 527(e)(1) of the Code, that is exempt from tax under section 527(a) of the Code; or The entity is a trust described in paragraph (1) or (2) of Section 4947(a) of the Code. What is required under the CTA? Reporting companies are required to file beneficial ownership information (“BOI”) reports with FinCEN. These BOI reports shall include the following: Information about the reporting company itself; Beneficial owner information; and Company applicant information. What are beneficial owners and company applicants? A beneficial owner is any individual that: Owns or controls at least twenty-five percent (25%) of the ownership interests of a reporting company, whether directly or indirectly; or Exercises substantial control over a reporting company. Even if an individual meets the above requirements, there are five (5) exemptions including, but not limited to, if the individual is a minor or an agent acting on behalf of a beneficial owner. A reporting company will have at least one (1) beneficial owner, may have multiple beneficial owners and every beneficial owner must be included in the BOI report. A company applicant must be included in the BOI reports filed by domestic and foreign reporting companies that are created on or after January 1, 2024. Company applicants fall into two categories: Direct filers – the individual who physically or electronically filed a reporting company’s formation or registration document with the Secretary of State or similar office; and An individual who directs or controls the filing action – the individual who was primarily responsible for directing or controlling the filing of the reporting company’s formation or registration document with the Secretary of State or similar office. What specific information is required for the filing? For the reporting company itself, The full legal name; All trade names or assumed (DBA) names; The current principal place of business address in the United States, or if the principal place of business address is not in the United States, the primary location in the United States where the company conducts its business; State, tribal, or foreign jurisdiction of formation; For a foreign reporting company, the state or tribal jurisdiction of first registration; and the Employer Identification Number (EIN) or Taxpayer Identification Number (TIN) issued by the IRS and, if a foreign reporting company does not have a TIN, then a tax identification number issue by a foreign jurisdiction and the name of the foreign jurisdiction. For each beneficial owner or company applicant, The beneficial owner or company applicant’s full legal name; The beneficial owner or company applicant’s date of birth; The beneficial owner or company applicant’s current residential address; provided, however, that if the company applicant forms or registers a reporting company in the course of their business, then the company applicant’s business address; Unique identifying number from an acceptable non-expired document such as: • A U.S. passport • A State issued driver's license • An identification document issued by a state, local government or tribe • If a beneficial owner has none of the above, a foreign passport; and 5. An image of the document from which the unique identifying number came from. Notwithstanding the above, a beneficial owner or company applicant may provide their respective information directly to FinCEN and obtain a “FinCEN Identifier,” which will be a unique identify number. Reporting companies can these use these FinCEN Identifiers in lieu of providing the above-required information for beneficial owners and company applicants. This is beneficial for a few reasons: (1) filing BOI reports will be faster and more streamlined; (2) it is easier for beneficial owners and company applicants of multiple reporting companies; and (3) it prevents reporting companies access to a company applicant’s personal information. When must BOI reports be filed? Domestic and foreign reporting companies created before January 1, 2024 must file a BOI report by January 1, 2025. Domestic and foreign reporting companies created on or after January 1, 2024 must file a BOI report within thirty (30) days of receiving actual or public notice that the creation or registration of the reporting company is effective. Penalties for not filing The willful failure to file a BOI report or to report false, fraudulent or incomplete beneficial ownership information may result in criminal and civil penalties such as: Up to $500 for each day violation continues; Imprisonment for up to two (2) years; and A fine of up to $10,000 If a reporting company discovers that it reported inaccurate or incomplete information, there is a ninety (90) day safe harbor from the date of the original deadline to provide corrected information. Conclusion This is a broad overview of the CTA and Reporting Rule requirements. More detailed descriptions, exemptions, and requirements are set forth in the CTA and the Reporting Rule. For further information contact us .
We frequently provide legal counsel to physicians and other healthcare practitioners when their employment has been terminated or is about to be terminated. Unless the practitioner has an employment contract with the employer which clearly sets forth the circumstances under which employment may be terminated, terminations can generally be for any reason that is not illegal (e.g. illegal discrimination based upon membership in a protected class such as race, sex, religion, etc. or because the practitioner was a “whistleblower”). A termination from employment does not have to be because the practitioner has done something medically wrong. In fact, it is rarely about that. Most of the time, terminations occur because a practitioner is a “bad fit” for the employer, a determination which is made, like it or not, unilaterally by the employer. These terminations are characterized as “termination without cause,” legally meaning “for any reason or no reason,” but they occur because there is just a “bad fit.” As an example, an employer may not like how a practitioner speaks to patients or other practitioners (or both). If that is not corrected in the eyes of the employer, the practitioner may be terminated for cause (doing something wrong), but employers often use the “without cause” termination provision instead to avoid legal hassles and to prevent ruining the practitioner’s career. If you are terminated, regardless of the reason, it is very important to seek legal consultation. You will need to take the necessary legal steps to protect your career and reputation. You will likely need to consider a settlement agreement, release of liability and issues including pay, benefits pay out, malpractice tail coverage, noncompete provisions, reference letters, medical staff privileges and more. Walking away from a job without an agreed upon and executed separation agreement is NOT recommended because you will not have a documented understanding of what to expect and you will have nothing to enforce. Legal skills and experience with this type of matter are necessary to navigate this situation just as having an acute illness needs to be treated by a trained healthcare practitioner. Being terminated from a job is tough emotionally and dealing with legal issues on top of that is stressful. Following are some suggestions to help you should you find yourself terminated: Do not ruminate about how you have been unfairly treated. Instead, focus on moving forward and securing your next job position. Do not think that because your last job was a poor fit that they will all be that way. Instead, look for a work culture that is a better fit for your skills and personality. Do not be tone deaf. If you have been told that you "don’t get along well with others" but you do not see your own role in this, consider executive coaching. Tuning In To Your Own Behavior: Are You Tone-Deaf? (mbhealthlaw.com) Do not expect the legal necessities to be completed overnight. Instead, let your attorney guide you and aim for a Separation Agreement that is in your best interest but keep moving on. Do not think that being terminated makes you a loser and defines you or makes you unemployable. Instead, think that in the not-too-distant future (usually about one year) you will look back on what you will later call a "character building experience." You might even say, “Why didn’t I leave sooner?” Do not be a George Costanza and burn your bridges no matter how tempting. Instead, stay professional and courteous throughout the separation process and after. You do not know when you will need to reconnect. Do not sit around reliving the angst. Instead, do something constructive—what have you been putting off that will make you feel better? Give Me a Minute to Think: The Value of a Month Off (mbhealthlaw.com) Do not be unrealistic about expectations and expect an economic windfall from your employer. Instead, recognize that often the leverage is on the side of the employer and aim to negotiate and resolve the issues that are most important to you. Last but not least, always have your employment agreement reviewed by an attorney BEFORE YOU SIGN. I Did Not Have My Contract Reviewed By An Attorney Before I Signed It. Now I Need To Pull A Rabbit Out Of My Hat! (mbhealthlaw.com) For further information contact us .
You may have seen or heard the term “PLLC” used in connection with your profession and wondered what it is and whether you should have one. This article provides basic information about PLLCs and whether one may be right for you. “PLLC” stands for “professional limited liability company” and provides the same liability protections as a limited liability company, or LLC. However, under the Illinois Professional Limited Liability Company Act, a PLLC is intended to be used in lieu of an LLC when the owners (members) are using the company to provide professional services that are required to be licensed under Illinois law, such as medical services. Accordingly, there are restrictions as to who can own a PLLC in general and who can own a PLLC together. Only people who are licensed to provide a professional service may own a PLLC. For example, an unlicensed person cannot own a PLLC that operates as a medical practice, even if they hire licensed physicians as employees. Additionally, an unlicensed person cannot own a PLLC with a licensed person if that PLLC is providing professional services. So, for example, a husband MD and a wife who runs the medical practice cannot own the PLLC together. Only the husband MD may own the PLLC. Going a step further, Illinois law also restricts which professional licensed persons may own a PLLC together. A PLLC can be owned by multiple people if those people are all licensed under the same Illinois law or if they are all licensed under related professions. These related professions fall under the following categories: Engineering/architecture Physician/podiatrist/dentist/optometrist Psychologist/social worker/marriage-family therapy/sex offender evaluations Acupuncture/massage/naprapathy/OT/PT/ST To further illustrate this, a physician can own a PLLC with a podiatrist but a physician cannot own a PLLC with a registered nurse. After determining that a PLLC is an appropriate legal entity, the next step is to file Articles of Organization with the Illinois Secretary of State. These Articles vary slightly from the traditional LLC Articles in that they require some specific information. First, instead of the company name ending in “LLC”, the company name must end in “PLLC” or an approved designation thereof. Second, the Articles of Organization must contain a specific purpose clause. This clause provides details about the type of professional services to be rendered and under what law those professional services are governed. Third, the Articles of Organization require the PLLC to list a principal place of business address. In LLCs, people often use their home address or a virtual office address as the principal place of business address. However, in a PLLC, that is not acceptable. Instead, in Illinois, the Articles of Organization must list the address where the professional services are actually rendered. In Illinois, once the Articles of Organization have been filed with the Illinois Secretary of State, the PLLC must also be registered with the Illinois Department of Financial and Professional Regulation (“IDFPR”). It is not enough to have an individual license; the PLLC itself must also be licensed. IDFPR requires a copy of the filed Articles of Organization to verify the name matches, the specific purpose clause is included, and the principal place of business addresses matches the registration. In addition, IDFPR requires every owner of the PLLC to provide their respective individual license number in order to tie the individual to the PLLC. Now, what if you currently have an LLC but it really should be a PLLC? The Articles of Organization must be amended to include the new “PLLC” ending and to include the specific purpose clause if one has not yet been adopted. Once the amendment is filed, the name change must be updated with IDFPR, the IRS, all other state and federal government agencies for which the LLC/PLLC deals with, insurance companies, credentialing companies, etc. Please reach out to our office if you have any questions, wish to form a PLLC, or wish to convert your existing LLC to a PLLC. For further information contact us .
Estate & Legacy Planning
Are you one of the roughly 70% of US Households that have a pet or pets? Although we may see our pets as solid family members, the law has traditionally regarded them as mere property, to be treated as chattel along with other household goods. If you have loved and been loved by an amazing furry friend or two it may be a comfort to you to know that you can ensure their wellbeing should they survive you. Up until fairly recently, there was no enforceable arrangement to provide for pets after the death of the pet owner. A valid trust required a beneficiary, that is, a human beneficiary. However, in 2005, Illinois passed the Pet Trust Act (760 ILCS 5/15.2). (As of 2016, all 50 states have Pet Trust laws.) This statute allows a Testator (person making a Will or Trust) to set aside funds and instruct a trustee to manage the funds for the benefit of an animal. The trust remains in effect until there is no longer a designated living animal. What must one consider in order to set up a Pet Trust? First, one must designate a person or organization to be the trustee. This is the person charged with following your instructions. Be sure to name a contingent or two as well. The trustee may be given custody of the pet, or simply be charged with overseeing the pet’s care. If the trustee will also be the custodian of the pet (not required and not always the case), you might name another person or organization to check up on the welfare of the pet from time to time. The person having physical custody of the pet should care about your pet (or at least care about animals) and also have the time and circumstances to be able to carry out your wishes. Obviously, one would want to designate a person whose living arrangement allows for pets and who is healthy enough to care for the pet. What are your pet’s needs? Presumably you would want the pet to go to a loving home. But what else? Does your pet have special dietary needs? Medications? Physical predispositions? Does your pet get along with other animals? Do you have more than one pet and would you like them to stay together? Would you like to specify when and how the pet might be euthanized and where the remains would go? You may give direction on any of these issues and more; or simply direct the trustee and/or custodian of the pet to do whatever he/she determines to be in the pet’s best interests. Finally, and importantly, your Pet Trust needs to be funded with a sufficient amount of money in order to accomplish your objectives. Upon the death of the pet, any excess funds will be distributed as you direct. The remainder beneficiary may be an Animal Rescue or Anti-Cruelty organization or a family member or friend. Malecki Brooks Law Group, LLC can assist you with estate planning including the creation of a Pet Trust. For further information contact us .
Client: What if I get sued in a medical malpractice case? How do I protect my house? Attorney: You need an Asset Protection Plan. Client: But I have a will. Attorney: A will is not for protection from lawsuits. Client: Oh, well, I will get around to it at some point. Attorney: You need to create your Asset Protection Plan before there is a legal crisis. Our clients often ask about how their assets, such as their homes, can be protected from lawsuits. We say that they should create an Asset Protection Plan which is part of an Estate Plan. Attorneys can do great service to their clients by working with them to create an Estate Plan that maximizes protection of assets, both currently and upon the death of the client. It is often surprising to clients when they learn how a few, small, easy steps can make a big difference in the event of a lawsuit or a divorce. However, it is critical to engage in this planning before there are problems. Estate Planning is not necessarily Asset Protection Planning although it can include Asset Protection Planning. Effective Asset Protection Planning is always based on the premise that at the time the planning is implemented no known or should-have-known creditors will be left holding the bag. Any plan that includes a fraudulent transfer (one made after the person should have been aware that a potential lawsuit existed) will not provide creditor protection, may cause the recipient of a transfer (such as a spouse or child) to be brought into the legal action, and is more likely to give the creditor access to the transferred assets. If it smells bad, the court will most likely see through that and that fragrance will color all of the court’s decisions – and not in your favor. Time is your best friend and worst enemy in creating an effective Asset Protection Plan. The greater amount of time that elapses between the transfer and the creditor claim, the better. Patterns of account deposits of paychecks, contributions to 529 accounts for children (to save for college) and donations to charity are not only more difficult for a creditor to attack in whole, but they also add credibility to statements that transfers were made without any intent to defraud. For many people, no issue is more emotionally charged than ensuring the protection of the home from the reach of creditors. Protecting the home can be harder than protecting liquid assets but there are many everyday steps that can help reduce the likelihood that your home will be up for grabs in a lawsuit. Lastly, the way assets are held and invested can make a big difference. Many states, like Illinois, have protections in place for life insurance, retirement accounts and annuities. Understanding the protections available with state law and maximizing the use of those protections is a smart and easy way to sleep better at night. In short, Asset Protection does not have to be complex or convoluted, and it does not require shipping all your assets offshore to an island thousands of miles away. For professionals whose careers place them at higher risk of lawsuits, consulting with an Estate Planning professional knowledgeable about Asset Protection and tax law can make an enormous difference for the financial health of you and your family. For further information contact us .
“Lack of planning is the cause of most failures.” - Brian Tracy Clients often ask us about “asset protection.” Because our clients are mostly health care providers who can be sued for malpractice, their concern is about exposing their personal assets, such as their home, to plaintiffs in a lawsuit. A common misconception is that forming a corporation will shield a physician owner of the corporation from exposure in a malpractice case. This is not correct. In order to shield personal assets from being taken in a malpractice case, an estate plan which includes “asset protection” should be developed by an attorney who performs estate planning legal services. We recommend that our clients create an estate plan that includes asset protection. And we even encourage our young clients who are just starting out to do so as well. But we do not just recommend it because of potential malpractice exposure. Read on. Who needs an Estate Plan? Almost everyone but for different reasons. For some, the most urgent motivation is to provide for guardianship of minor children and for the administration of trust funds on their behalf. For spouses in second marriages with children from a previous marriage, an effective estate plan can ensure fair treatment of all concerned. Many families have special circumstances like siblings who cannot get along, a special needs child, or addiction/codependency issues. For persons of great wealth, it is important that complex assets (including business assets) are managed for future generations and that unnecessary taxes are not incurred. A session with a knowledgeable estate planning attorney can help sort out the issues and address them accordingly. Ensuring that family dynamics and difficult personalities do not interfere with your wishes is a primary objective. You have the right estate planning attorney if he/she listens, asks the right questions, communicates in a manner you can understand and has the necessary experience in Estate Planning. The following are the basics of Estate Planning : Last Will and Testament Power of Attorney for Property Power of Attorney for Health Care/Living Will HIPAA Patient Authorization Revocable Living Trust A step beyond the basics of Estate Planning is Legacy Planning . Some considerations may be: Have you written down your family history? Or memorialized important events in your life? Have you provided gifts for your favorite charities? Have you planned for the care of your pets? (a Pet Trust) Perhaps your good friends would like a little, inexpensive item that belonged to you like a handkerchief, knick-knack or small item of apparel. Give your executor the authority to make these gifts. Instead of simply bequeathing your estate to the people you love, you can direct that your estate be used for a purpose which is important to you. You can leave an education fund for future generations, for example, or provide for an enhanced retirement income for older family members. Would you like to donate your organs for transplantation or research? Have you taken the time to tell your family how you feel about hospice care or end of life decisions? Would you like to fund a party in your memory at your “local” restaurant or tavern? Would you like to give your family a special vacation to celebrate your life? Would you like to fund a special project at your church? Library? Or Museum? What legacies would you like your family and friends to remember about you? For further information about estate and legacy planning, please Contact Us .
Miscellaneous
Prior to the Covid-19 pandemic, many strict rules limited the ability to provide services via telehealth. When the pandemic made it very difficult to provide access to in-person care, state and federal agencies introduced flexibilities so that patients could retain access to care. Now that the public health emergency has ended, regulators will face difficult questions about which telehealth flexibilities to retain. On the one hand, both health care providers and patients have come to rely on telehealth for convenient access to care. On the other hand, some limitations may be needed to protect quality and limit potential for abuse. An especially difficult question is, when can a practitioner prescribe a controlled substance to a patient whom the practitioner has never seen in person. The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 provides that, with limited exceptions, a practitioner could prescribe controlled substances only after conducting an in-person examination of the patient. During the pandemic, the Drug Enforcement Administration (DEA) created temporary exceptions so that practitioners could prescribe Schedule II-V controlled medications via audio-video telemedicine encounters, without requiring an in-person medical evaluation. Also, practitioners could prescribe medications approved for treatment of opioid use disorders via audio-only telemedicine encounters. The DEA, along with the Substance Abuse and Mental Health Services Administration (SAMHSA), published temporary rules on May 10, 2023, allowing telehealth flexibilities to remain in place for a limited time. Under the temporary rules, the telemedicine flexibilities on prescription of controlled medications will remain in place through November 11, 2023. Also, if a patient and practitioner established a telemedicine treatment relationship prior to November 11, 2023, the flexibilities will remain in place for a one-year grace period ending November 11, 2024. Prescriptions for controlled substances without an in-person evaluation are permitted only for a legitimate medical purpose, and pursuant to communication between the practitioner and patient using an interactive telecommunications system meeting the requirements established in DEA regulations. These requirements permit use of audio and video equipment permitting two-way, real-time interactive communication; or, for treatment of a mental health disorder (including but not limited to prescriptions of buprenorphine for opioid use disorder), two-way real-time audio-only telecommunications if the patient is not capable of, or does not consent to, use of video technology. The DEA and SAMHSA plan to issue final regulations defining when telemedicine prescribing of controlled substances is permitted, which will supersede these temporary rules. For further information contact us .
We frequently receive inquiries about how a person can own or start a medical spa (“med spa”). A “med spa” can take many forms, from practices providing IV infusions for energy and hangover relief, to Botox injections, to laser treatments, and more. Medical spas may look like a day spa and may only offer low-risk procedures that don’t even seem like they would be considered medical procedures, such as IV infusions, but don’t let the “aesthetics” fool you. Any entity that renders medical services, regardless of whether it is dubbed a “med spa,” is a medical facility, and, therefore, subject to the same rules and regulations as your typical doctor’s office. If you are considering owning or working for a med spa, here are a few important legal aspects you should consider before making your decision. If you are a licensed medical professional, before you open a med spa or begin working for one, you must ensure that the ownership structure does not violate any law. Otherwise, your license to practice may be at risk for discipline, and you could lose your license or be charged with fines and penalties; this is the case even if you had no idea that you or the owner were breaking the law. In many states, including Illinois, med spas must be 100% physician-owned; otherwise, the entity and owner are violating the law by engaging in the unauthorized practice of medicine. Unfortunately, this means if you are not a licensed physician, you should probably rethink owning a med spa business. As an example, in Illinois, the Illinois Department of Financial and Professional Regulation (IDFPR) regulates physician and nursing licensing. In Illinois, only a physician (medical doctor, osteopathic doctor, or doctor of chiropractic) or a physician-owned entity may be an owner or co-owner of a medical practice because the “corporate practice of medicine” doctrine prohibits a lay entity (i.e., one that is owned by non-physicians) from practicing medicine, either through the entity itself or by employing or contracting licensed physicians. Therefore, in Illinois and in states with similar laws, it is important for physicians and other licensed medical professionals to verify that a med spa is 100% physician-owned before considering working with or at a med spa. Individuals who are not legally allowed to own a medical business but want to be operationally involved with a med spa may choose to create management relationships with the spa. This concept should be discussed and vetted with legal counsel. In particular, care must be taken to avoid violating the fee-splitting prohibition in the Illinois Medical Practice Act. Another thing to consider is that medical care at a med spa, no matter how simple or low risk, must be provided under a licensed physician’s supervision and oversight. Under the Illinois Medical Practice Act, physicians may delegate medical treatments to an appropriately trained and experienced health care professional, provided the physician is available for consultation or collaboration. There are special rules for invasive procedures, such as the use of lasers. The physician must also have experience and training in aesthetic medicine. Just as you wouldn’t want a physician specializing in urology doing brain surgery, physicians not trained in aesthetic medicine should not be overseeing the operations of a med spa, and the law tends to agree. How a medical spa is advertised should be carefully considered, particularly if the spa works in conjunction with a non-medical business, such as a hair salon. As an example, a hair salon may not hold out a physician or practitioner who owns or works in the medical spa as an employee or agent of the hair salon because, as a lay entity, a hair salon is not permitted to employ a physician. The physician is considered to be engaging independently in his/her own practice, even though it is conducted at the salon location. With the current trend toward cross marketing, this is an often overlooked area and legal advice should be sought regarding this issue. Very tricky questions can arise when a non-physician licensed professional, such as a chiropractor or advanced practice nurse, wants to provide aesthetic services similar to a med spa. First, the business should not call itself a “med spa.” Regulators could regard that as representing that the business engages in the practice of medicine. Second, the procedures performed at the facility must be within the scope of practice of the licensed professional and not the practice of medicine. Illinois now permits an advanced practice registered nurse (APRN) to obtain a license for full practice authority. The APRN must be certified as a nurse midwife, clinical nurse specialist or nurse practitioner and have completed at least 250 hours of education and 4,000 hours of clinical experience after obtaining national certification. An APRN with full practice authority may practice without having a collaborative agreement with a physician and may order and perform tests and procedures, not including procedures defined as the practice of medicine (such as operative surgery). The medical spa industry has been booming for the past several years, and medical professionals are taking advantage of the rising market. Most procedures are provided on a cash basis (as they are rarely covered by insurance) and can be very lucrative. The decision to own or work for a medical spa should not be taken lightly, but, with proper legal guidance, practitioners can minimize the risk of regulatory pitfalls in this type of practice. For further information contact us .
The COVID-19 pandemic brought about wide scale social, political, economic and legal disruption. While COVID continues to be a public health concern, many of the extraordinary legal developments brought on by the public health emergency (PHE) declaration are winding down. Although the federal Department of Health and Human Services (HHS) had planned to end the PHE on May 11, 2023, the President signed the joint Congressional resolution ending the PHE on April 10, 2023. HHS published a COVID-19 Public Health Emergency Transition Roadmap, summarizing what will and won't change when the PHE expires. What won't change: Access to COVID-19 vaccinations and certain COVID treatments Emergency Use Authorizations for COVID-19 tests, vaccines and treatments Most Medicare and Medicaid telehealth flexibilities Expanded access to buprenorphine and methadone for opioid use disorder treatment What will be affected: Medicare and Medicaid waivers and flexibilities for health care providers Coverage for COVID-19 testing Reporting of COVID testing and immunization data Certain Food and Drug Administration guidance on clinical practice and supply chains Liability protections Dispensing controlled substances via telemedicine. In Illinois, many of the COVID-19 special measures have already expired. The Illinois Department of Financial and Professional Regulation (IDFPR) issued temporary practice permits up until March 31, 2023, but applications for temporary permits are no longer being accepted and those that were issued will expire on May 11, 2023. Physicians and other licensed health care professionals who obtained temporary practice permits will need to obtain a full Illinois license in order to continue practicing after that date. Information on licensure can be obtained on the IDFPR website at https://idfpr.illinois.gov/dpr.html . Health care facilities in Illinois, including but not limited to hospitals, nursing home, ambulatory surgery centers and laboratories, are licensed by the Illinois Department of Public Health. Information on licensure can be obtained at https://dph.illinois.gov/resource-center/licensing-certification.html . For further information contact us .
Current Topics
We have received questions from many of our clients about how to properly respond when patients and visitors bring guns into their offices. Here are some facts you need to know in grappling with this complex issue. (This discussion deals with Illinois law; firearm regulations vary greatly from state to state.) The Firearm Concealed Carry Act was passed in 2013, and allows a licensee to carry a loaded or unloaded firearm on his/her person or in a vehicle. However, the Act specifies several prohibited areas where it is illegal for a licensee to knowingly carry a firearm. The list includes medical clinics, hospitals and laboratories. Signage must be clearly and conspicuously posted at the entrance of a facility where concealed carry is prohibited. The required sign must be at least 4 x 6 inches. The Illinois State Police has developed standardized signage, available on their website at https://www.ispfsb.com/Public/Signage.aspx. The Act specifies that when a licensee is prohibited from bringing a firearm into a prohibited area, the person is allowed to store it in their vehicle in a parking facility, provided that it is stored inside a case, not in plain view, and the vehicle is locked. This parking lot exception does not apply to federal property. When law enforcement officials are on duty, they may carry a weapon as part of their official duties, not as a personal right under the Concealed Carry Act. An officer who is off duty coming to a facility as a patient or visitor would be subject to the same restrictions as any other person. Clinics should make sure that the required sign is prominently posted at the entrance. If a patient or visitor brings a weapon onto the premises, staff can point out the sign. Of course, front line staff should not be put in danger themselves and may need the assistance of security or law enforcement if the patient or visitor does not comply. If a patient repeatedly violates the law by bringing a weapon onto the premises, it would be appropriate to terminate the patient relationship. For further information contact us .
The IRS recently announced that it has suspended processing applications for the Employee Retention Credit (ERC) until at least the end of 2023. The agency claims that it has been inundated by a flood of improper ERC claims, which are being aggressively promoted by companies offering to file claims for a percentage fee. The IRS states that for claims that were filed before September 14, 2023, the agency will continue processing them, but due to increased fraud concerns, processing time will increase from 90 to 180 days. Processing could take much longer if the claim is audited. Auditors have been trained to identify claims posing the greatest risk, and as of the end of July, 252 investigations have been referred to the IRS Criminal Investigation division. The ERC is a refundable tax credit that is available to certain businesses that continued paying employees during the COVID-19 pandemic. To be eligible, the business must have fully or partially suspended operations due to a government order limiting commerce, travel or group meetings due to the pandemic during 2020 or the first three quarters of 2021; experienced a significant decline in gross receipts during that period; or qualified as a recovery startup business for the third or fourth quarters of 2021. Any organization that improperly claimed the ERC must pay it back, possibly with penalties and interest. The IRS stated that it is seeing repeated instances of entities citing supply chain issues as a basis for an ERC claim, which is not a basis for eligibility. For businesses that have filed a claim for the ERC, the IRS urges them to review the program guidelines with a tax professional to determine whether they are eligible. If the criteria were not met, the claim can be withdrawn. The IRS plans to finalize a settlement program in fall 2023 to allow businesses to repay inappropriate ERC claims.
The Illinois Department of Financial and Professional Regulation (IDFPR) recently announced that due to “technological system challenges,” it is extending the expiration date for physician licenses from July 31, 2023, to August 31, 2023. This extension does not apply to all physicians. Physicians who are licensed through the Interstate Medical Licensure Compact are not affected by the technology issues, and so the July 31, 2023, deadline remains in place for those physicians. Also, we've been informed that IDFPR is not extending the deadline to complete continuing medical education requirements; those should have been met by July 31, 2023.
Roar Lights: Practitioner's Spotlight
Malecki Brooks Law Group, LLC is proud to continue our communication highlighting the backgrounds and accomplishments of our clients. Name: Don Kalish, CPA, President of the board of the Path to Recovery Foundation (PATH). A 50l(c)(3) organization, PATH is committed to supporting, educating, and promoting recovery for individuals and families struggling with substance use disorders. Known for: Finance and accounting expertise. Being the father of a 29-year-old son who died of an accidental opioid-fentanyl overdose. Business Background: 48 years of financial and accounting expertise in executive positions. He recently retired as the Assistant Vice President of Finance and Controller at Rush Copley Medical Center and is currently acting in a finance and healthcare consulting role with Rush Copley and Rush University. Previous Volunteer Work: With four sons, Don was actively involved in coaching and running youth sports organizations for more than 20 years and held positions on the boards of the Naperville Little League Baseball and Naperville Youth Basketball Association. He was awarded the Distinguished Service Award for Youth & Family by the Naperville Jaycees in 2001. His life changed on May 16, 2016, when his youngest son, Randy, accidentally overdosed. New Focus: Don and his eldest son, Cliff, raised more than $23,000 in donations at the 2017 Naperville Half Marathon and 5K Run for a different recovery organization. Don joined the PATH Board in 2018. Current Role: As PATH Board President, Don leads the foundation in governance decisions and serves as administrator. “We have a great team of clinicians, coaches, and volunteers who work directly with the clients. That’s not my skill set. I provide the support they need to keep doing the great things that they do for clients. I help with structure, organization, finance, and fundraising. Running a not-for-profit is very different than operating a business—completely different rules. I go to Mindy and Malecki Brooks Law Group, LLC, for advice to keep us out of trouble.” His passion: Helping other families to not experience what his family went through with the death of a young adult. Don wants to help prevent overdosing and keep kids free from substance abuse. The PATH helps, but he knows it’s an uphill battle. Opioid relapse is at 70 percent. Colleagues: “Don is a compassionate leader who follows up on commitments and assists those who are in need of guidance. I have always admired Don for his passion for life and dry sense of humor.” Eddie Bedford Supervisor and Director of Road Services, Naperville “Don's role as board president of PATH is fundamentally what elevated PATH from being a small group of passionate individuals supporting a cause to being a structured organization. Don brought his financial and managerial expertise and provided the structure necessary to successfully run a foundation. Aside from Don's professional contribution, his passion and compassion for helping those struggling with substance use disorder is what is most admirable.” Leslie Kawar, Vice President, PATH Board Roar: “Families are ashamed of addiction,” Don said. “At PATH, they can talk with people who understand. You don’t have to go it alone. We have the resources to help. I can’t be prouder of our team and the important work they’re doing to tackle substance use disorders head on.” August 31 st is International Overdose Awareness Day (IOAD). It is a day intended to remember individuals lost to overdose, acknowledge the grief of the family and friends left behind, and renew commitment to end overdose and related harms.
Malecki Brooks Law Group, LLC is proud to continue our new communication highlighting the backgrounds and accomplishments of our clients. Name: Brent Nathan, MD, FACP. Board certified in Internal Medicine. Partner in a concierge medical practice at North Shore Medical Associates (Bannockburn). Education: Dr. Nathan received his bachelor’s degree from Lawrence University in Wisconsin, his medical degree from Rush University Medical College, and completed an Internal Medicine Residency at Rush University Medical Center. While in residency, Dr. Nathan enrolled in the specialized Patient Safety and Quality Improvement track. Little Known Fact: “I joined AmeriCorps after graduating from Lawrence. I taught in a high school in Milwaukee’s northside where the majority of students were people of color. Teaching there was such an enlightening experience for me that I suggest students consider performing public service in an environment unfamiliar to them. I was exposed to a variety of other walks of life, and it broadened my perspective.” Positions: Assistant Professor, Rush University Medical College; Medical Staff, Rush University Medical Center, Northwestern Medicine, and NorthShore University HealthSystem. His Focus: Concierge Medicine. With Concierge Medicine, patients pay an annual fee and receive highly personalized healthcare and greater access to their doctor. Dr. Nathan and his partner have a limited number of patients so they can be more accessible, attentive, and advocate strongly on their behalf. Practice Model: “Care so personal, it’s like having a doctor in the family.” In the Family: Dr. Nathan’s grandfather was a doctor, practicing medicine in a rural community. “He didn’t have access to testing and specialists. He had to come up with creative solutions, and he made house calls.” His Passion: “When I’m in the office, it’s my patients. When I’m at home it’s my family. I’m lucky that I get to do something I like every day. Every day is a good day.” Colleague: “Dr. Nathan’s experience and expertise, combined with his high level of personalized patient care, saved my life. When I was diagnosed with cancer in 2021, he guided me through all the procedures, from radiation to chemotherapy to surgery. Dr. Nathan simplified the process for me and my family. He allowed me to focus on my recovery while he coordinated all the moving pieces. Like his grandfather, Dr. Nathan came up with creative solutions to improve my recovery, and that’s why I am here today.” Roar: “I care for my patients beyond the acute or chronic illness they have. I care about their goals—where they are, where they want to go. The most rewarding part of being a physician is the lifelong relationships with patients and the privilege of being a part of their lives.”
Malecki Brooks Law Group, LLC is proud to continue our new communication highlighting the backgrounds and accomplishments of our clients. Name: Annie Huang, MD Known for: Pediatrician, pianist, and author of books to introduce children to basic musical concepts. Positions: Partner/shareholder at Duly Health and Care (formerly DuPage Medical Group). On staff at Northwestern Medicine Central DuPage Hospital and co-chair of its Credentialing Committee. Background: Dr. Huang’s father left Taiwan with her mother, a nurse, to get his master’s degree in Mechanical Engineering in the United States. She and her brother, a radiologist, are first-generation Americans. She graduated from Northwestern University, Feinberg School of Medicine’s Honors Program, with degrees in Medical Education and Piano Performance. Music: At five years of age, Dr. Huang started playing her parents’ piano. Showing promise, they enrolled her in lessons and soon after, she began gaining recognition. “Once you win a contest, you want to keep going,” she said, eventually studying under Emilio de Rosario at the Music Center for the North Shore (now known as the Music Institute of Chicago). A contemporary of Rachel Barton Pine, Dr. Huang didn’t think she was good enough to make a living at the piano, however, and chose medicine. Books: While on maternity leave with her first child, she noticed books for toddlers on “first colors” and “first shapes,” but nothing on music. She wrote My First Music Book, Notes and the Keyboard, followed by a second, My First Music Book , Instruments. A third book is “percolating.” Her Focus: “I’m still trying to figure out my calling in life’s journey. What is God’s will? God has blessed me greatly and continues to bless me, but is there something else? I could see myself as an administrator. I liked organizing my kids’ Chess Club and the PTA Reflections Program. I Iike to put things together and see a plan come together. I might even want to do wedding planning. I dabble a lot!” Colleague : “I have been a colleague of Dr. Annie Huangfor many years and have come to know her as a knowledgeable physician and a talented individual. I have immense respect for her dedication to her patients and the field of medicine. She is also a super mom and a great friend.” Roar: “As a mother of three children, I have learned the need to balance the realities of life with the ideals of medicine. I seek to forge a partnership with every parent to jointly care for their child’s needs from birth to young adulthood. I am constantly amazed by the wondrous changes in these early years of life.”
Fiercely Loyal
Fiercely Loyal.
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Malecki Brooks Ford Law Group LLC
205 E Butterfield Rd, Suite 225
Elmhurst, IL 60126
