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In fact, violations of Federal laws governing employee regulations is not uncommon in medical practices, says Patricia Trites, CEO of Healthcare Compliance Resources in August, Mich. "I know a number of physicians who have gotten into hot water for failing to comply. In 99 percent of cases, the source of the complaint is a disgruntled employee," she says. "Employees are becoming more savvy now about the rules and are more likely to file complaints." According to Paul VanGrunsven, an attorney with Kasdorf, Lewis & Swietlik S.C. in Milwaukee and chair of the firm's health law section, there is a general misunderstanding of what's necessary regarding employee regulations. "A lot of physicians don't know it is necessary to regularly update their internal employee practices to comport with changes in the law," he says. "Others have become overwhelmed with providing care to patients; they know they have to comply, but the problem is finding the time and resources." Compliance with employee regulations, say these two consultants, may be more problematic than compliance with other Federal regulations. That's because employee regulations come from several different sources, which makes it harder to keep up with changes. The most common violation of employee regulations that Ms. Trites sees involves overtime rules set forth under the Fair Labor Standards Act, administrated by the Department of Labor (DOL). The rules state that nonexempt employees, which include hourly workers, must receive overtime pay "at a rate of not less than one and one-half times their regular rates of [pay after] 40 hours of work in a workweek." (More information on the rules can be obtained from www.dol.gov/dol/esa/public/regs/compliance/whd/hrg.htm). "Most practices are out of full compliance either because they aren't aware of the law or don't want to pay time and one half," Ms. Trites says. It doesn't matter if there is one physician or 100 in the practice, if they have even one employee, they need to be aware of overtime rules, she says. Some practices try to get around the law by making hourly employees salaried, but to qualify as salaried, employees must fit into one of several classifications. For instance, they are exempt if they are an executive, professional, administrative or in sales. But to qualify as an executive, they must supervise two or more employees and use judgment. In other words, the receptionist who supervises no one and does not exercise judgment in her work activities cannot qualify as a salaried employee, Ms. Trites says. In some states, such as California, the rules about paying overtime are even more strict, notes Ms. Trites, so physicians need to know their state laws, too. If an employer is investigated for possible violations of Federal overtime rules, the Government will look retroactively at the employee's work history in the practice and perhaps all other employees in the practice. "They'll check time cards and records, and if the practice doesn't have those, it's whatever the employees say it was," she says. If violations are found, DOL can assess what the overtime pay should have been as well as fines and penalties. The Internal Revenue Service could also come in and impose fines for taxes not paid on overtime wages. "You could get hit from two agencies," she says. When DOL comes to investigate a charge of failure to comply with overtime rules, Ms. Trites says, they'll also look for a poster that certain Government contractors -- which includes many if not most physicians -- are required to post as employers. It's DOL's "Equal Employment Opportunity Is the Law" poster, which addresses discrimination in the workplace. If the poster isn't displayed, a fine may be imposed, she says. (More on this poster is available from DOL's www.dol.gov/dol/osbp/public/sbrefa/poster/main.htm.) According to Ms. Trites, another common violation in medical practices is the failure to comply with garnish or wage orders. These might be from a court and involve parental child support, or might be an IRS court order or a state income tax order, Ms. Trites says. Too often, practices fail to comply because they either forget to do it or the employees involved assure the practice they "took care of it." Employers that fail to abide by these orders, however, can be held liable for the money they were supposed to garnish. If the IRS is involved, penalties could be imposed, Ms. Trites says. Too many physician practices fail to conduct required background checks, say Ms. Trites and Mr. VanGrunsven, the Milwaukee attorney. The purpose of background checks, says Mr. VanGrunsven, is to assure that people who have been excluded from Federal healthcare programs don't get back into the system. The reason for exclusion could be defrauding the Government or misuse of drugs, Ms. Trites says. The issue of background checks, says Mr. VanGrunsven, has been addressed under a variety of Federal laws over the years, including the Federal False Claims Act, the Civil Monetary Penalties Law and the Balanced Budget Act of 1997, but in more recent years, the stakes for noncompliance have soared, he says. Under the Balanced Budget Act of 1997, violators could face up to $50,000 in civil penalties per instance, he says. "There is potential exclusion from participation in Federal health programs. Realize that these laws are not mutually exclusive. Healthcare providers can be prosecuted under one or all of them." The laws require background checks on all potential and existing employees whether they are a bookkeeper, physician or someone who the practice does business with, such as a durable medical equipment provider. It might be hard to imagine that someone applying for a job as a nurse or receptionist could be on an exclusion list, but it is possible, Mr. VanGrunsven says. If the employee will be involved in billing or handle the mail, there is the possibility that Medicare checks could be withheld and fraudulently cashed. Just where to draw the line regarding background checks is not clear, he adds. "The laws are written so broadly that one wonders if this type of background check is needed for the janitorial service that cleans the office suite after everyone's gone home," he says. "The fines, penalties and risk of exclusion [from Government programs] make these laws worth paying attention to." Conducting background checks, however, is not complicated, Mr. VanGrunsven says. There are two sources, both available via the Internet, where physicians can check out existing and new employees. One is the Health and Human Services Office of Inspector General Cumulative Sanction Reports (oig.hhs.gov/oig/who.htm); the other is the U.S. General Services Administration List of Parties Excluded from Federal Procurement and Nonprocurement Programs (epls.arnet.gov/epl/owa/epls_login.display_intro). Using these Internet sites to check out employees is the "accepted practice," he says. Ms. Trites also cautions doctors to abide by regulations governing the hiring of illegal immigrants. In some areas, where the labor shortage is acute or where there is an urgent need for foreign-speaking staff, some medical practices are violating Federal immigration and naturalization laws, which can result in stiff fines and penalties. Practices should be sure to obtain all the documents necessary that show a potential new employee's right to work in the United States, she says. If compliance sounds like a major pain in the neck for practices, Mr. VanGrunsven says, keep in mind that practices with effective compliance programs have better morale and profits because business is conducted in a systematic, orderly fashion and there is a higher rate of reimbursement. "Frankly, I'm sympathetic to physicians with all the paperwork and red tape that has to be done, and compliance is lumped on top of that. But it's important to take the time and invest the money to implement compliance programs. Designate someone to manage compliance for the practice," he advises. Once a program is in place and the practice is in compliance with all the various Federal and state regulations, "you can sleep a little better at night," he says. To keep up with compliance issues that may require changes in the practice, Ms. Trites and Mr. VanGrunsven advise turning to professional publications, associations and consulting firms. Ms. Trites' company, for instance, publishes the Medical Office Compliance Program Guide, which costs $295 and includes one year of updates (1-800-973-1081). The Internet is another good source for keeping up with compliance law, she says. Written by: Joan Szabo-------------------------------------------------------------------------------- What Is Not Required The Federal Fair Labor Standards Act (FLSA) sets the basic minimum
wage and overtime pay standards and regulates the employment of minors.
There are, however, a number of employment practices that FLSA does not
regulate.
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Journal ads, recruiters, the Internet and colleagues all can offer
solid leads. Like many of today's physicians, you may be ready for a
job switch. Staying with the position you took right out of medical
school is no longer viable. In addition to the unpredictability of
today's healthcare marketplace, shifting supply and demand ratios are
making job security a thing of the past.| < Previous | Next > |
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