Discovering Your Leadership Superpowers and 'Origin Story'

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Discovering Your Leadership Superpowers and ‘Origin Story’ J. Bryan Bennett, MBA, CPL, CPA, LSSGB Founder and Executive Director, Professional Leadership Academy UME 6 | ISSUE 3 UME 6

VOL Superhero movies capture our imagina- tions and entertain us with ever-improving special effects and the age-old story of good versus evil. One of the most interesting components is the origin story, wherein heroes discover their superpowers and learn how to master or control them. While watching a couple of the latest origin stories, I was reminded of an exercise we do in our leadership training classes called “Leadership Superpowers.” In this exercise, we examine the leadership styles of several of the exceptional leaders I’ve had the opportu- Those 12 abilities fall into two catego- nity to meet and identify their leadership ries: “who they are” and “what they do.” superpower. Class members are then charged Who they are. These are abilities that with determining their personal superpower are innate or come naturally, although leaders and explaining why they chose it. can get better at them with training. The Leaders should be on a continuous abilities in this category include: journey to discover their personal leadership • Humility superpowers. Each journey is different. Just • Empathy like no two superheroes have the same • Vision powers, no two leaders utilize their leader- • Risk-Taking ship abilities in the same way. I cannot lead What they do. These are abilities that like you and you cannot lead like me. leaders can learn, develop and master over Identifying Specific Leadership time. They include: • Communication Superpowers • Motivation Our research has identified 12 leader- • Observation ship superpowers. These abilities are • Empathy non-industry-specific, and all leaders can use • Storytelling them to be successful. The best leaders • Social leadership usually master two or more and have a • Reflection SUMMER 2020 working knowledge of when and how to use • Coaching/mentoring many of the others. Continued on page 4

➤ INSIDE THIS ISSUE:

Discovering Your Leadership Superpowers and ‘Origin Story’ ...... 1 A Special Message from Tony Mira: We’re Standing with You ...... 2 Five Creative Ideas to Address the Global Talent Shortage ...... 3 Consumerism has a Cost in Revenue Cycle Management: Is your organization in front of the change? ...... 6 You Have Enough Problems . Why Buy Compliance Risk? ...... 8 Managing Data Privacy Complexity by Creating a Privacy Culture ...... 12 Fork in the Road: What To Do (And Not Do) When You Get Sued ...... 14 WINTER 2018 | 2 SUMMER 2020 | 2

A Special Message from Tony Mira: We’re Standing with You

This edition of Focus contains articles that were authored just prior to the coronavirus (COVID-19) crisis now sweeping our country and currently dominating the national consciousness. We at MiraMed are mindful of the fact that our readers are presently preoc- cupied by the demands this virus has placed upon them and their colleagues. Standard business strategies may no longer apply. We are all rushing to catch up, scrambling to put together a coherent and cohesive game plan for whatever may be coming at us in the days and weeks ahead. Many of those holding leadership positions in the clinical and financial sectors of our health systems are working overtime to address a myriad of potential concerns. We know you are facing challenges Beyond COVID-19, there are still ing an article for an upcoming edition. that are altogether unique. We know the “normal” issues that health facilities With that, we at MiraMed extend to the situation is changing daily, some- must invariably face. To help you meet you our best wishes for your times hourly. Your ability to leverage these other obligations, we have assem- safety and prosperity. critical information and adjust quick- bled what we believe to be a dynamic ly to the shifting reality will test you. slate of articles, written by some of Best wishes to all, During this time of loud voices and the best thinkers in the industry. They dire warnings, during this time of great touch on the following topics: Lead- uncertainty, we want you to know that ership Superpowers, Addressing the Tony Mira you are not alone. We are in this with Provider Shortage Crisis, the New CEO and Founder you. Consumerism’s Impact on Hospitals, MiraMed Global Services cannot Avoiding Compliance Risks, Manag- cure what ails America, but we stand ing Data Complexity and Privacy, and ready to assist you if you need a special What to do When You Get Sued. partner during this difficult time. We We’re glad to offer you such a have solutions from process manage- wide-ranging and thought-provoking ment to remote coding and AR collection of articles, and we want to services to clinical staffing solutions give a special thanks to our esteemed and so much more. We want to help authors. We hope you enjoy this issue, where we can—even if on a temporary and please feel free to contact us at basis. We might be the perfect solution [email protected] if you have a during this difficult period. comment or are interested in provid- WINTER 2018 | 3 SUMMER 2020 | 3

Five Creative Ideas to Address the Global Talent Shortage

Chris Gardner Co-Founder & CEO, Artemis Consultants and Mellody Melville, Freelance Writer

Believe it or not, in today’s world of automated everything, what our global job market needs most is human beings. According to research from the Korn Ferry institute, by 2030, the global talent shortage could reach 85.2 million people. This would result in trillions of lost dollars (kornferry.com). The talent shortage is due in part to demand for specialized skills, low unem- ployment rates, and an increase in baby boomer retirements. Areas of biggest impact include highly skilled healthcare workers, high-tech workers (i.e., IT specialists), skilled technicians and engi- neers (pridestaff.com). In today’s job market, highly skilled candidates call the shots. And employers need to sell themselves to attract top talent. It’s time to get creative. As hiring managers advertise posi- Could the position be described as a tions and conduct interviews, they should long-term project vs. a full-time position? Tip #1: Meaningful Work is Valued tap into what is meaningful about the This is a great way to entice a solid candi- position—why it matters to the company, date without making a huge commitment Today’s candidates value meaningful why it matters to the team, and why it for either party. work, and studies show that this is even matters to the industry and beyond. more important than money. A recent Tip #3: Social Media is a Power- study conducted by BetterUp surveyed Tip #2: Job Description Includes ful Tool over 2,000 professionals and found that Transferrable Skills nine out of 10 employees “are willing to Most places of business use social trade a percentage of their lifetime earn- Get creative with individual job media in marketing, but how often are ings for greater meaning at work.” descriptions. Are you posting descrip- these platforms used in hiring? With the Respondents even put a number on this tions that turn candidates off? Candidates influx of Generation Zers to the job meaning, stating that “they’d be willing to want progressive work environments, to market, social media should be a big part forego 23 percent of their entire future include market-value compensation and of any recruiting plan. A full social media lifetime earnings in order to have a job flexibility. Could job descriptions change hiring strategy should include strategic that was always meaningful” (Harvard to include candidates with transferrable ways to advertise positions on the Business Review, Anchor, et al.). Oppor- skills outside the industry, like communi- company website, on business LinkedIn tunities for meaning in a work cation, leadership and organization? pages, Facebook pages and Twitter, along environment taps into employees’ intrin- These candidates are often overlooked, with the use of targeted career search sic motivation and leads to extra hours but with a little training, could become sites. Today’s most popular job search worked and increased job satisfaction. huge assets. Continued on page 5 SUMMER 2020 | 4

Discovering Your Leadership Superpowers and ‘Origin Story’ Continued from page 1

Examples of leaders that we use in defining moment in their lives that Today, I treat people with respect the class, include: helped shape them into the leader they and make sure I get to know co-workers • Toby Cosgrove, MD, former pres- became. It could be overcoming a chal- by listening carefully to what they say and ident and CEO of the Cleveland lenging situation, meeting a mentor or don’t say. This approach has helped me Clinic. Cosgrove is a very hum- even coping with a tragedy. become the empathetic and effective ble person. He doesn’t take credit Knowing your leadership origin leader I am today. for his organization’s success but story is important because it defines you What are your leadership superpowers? gives all the credit to the people as a leader and directly impacts how you Start the discovery journey with 50% off our who work with him. lead. This knowledge helps you under- Leadership IMPACT Assessment using the stand your underlying beliefs and how code ‘miramed02’ at proleadershipacademy. • Laura Forese, MD, chief operating you influence decisions, guide problem- com/assessment. officer with New York-Presbyteri- solving and drive behavior across an. Forese is a strong proponent seemingly unrelated situations. of coaching and mentoring with J. Bryan Bennett, No one story completely defines a MBA, CPL, CPA, people both inside and outside of leader, but here are a couple of leadership LSSGB is the her organization. origin stories I’ve found interesting in my Founder and Execu- tive Director of the interviews: I consider my superpower to Professional Leader- be . I like to connect and build • Dave Raymond, founder of Sweet ship Academy, an empathy organization dedicat- relationships with the people I work Baby Ray’s (SBR) barbecue sauce, ed to delivering a with and the people I meet. grew up in a tough neighborhood personalized, adaptable and measurable in Chicago. His resilience helped approach to leadership development based on the innovative Professional Leadership The Significance of the Origin Story him take a $2,000 investment and Process™ detailed in his books. turn it into a market-leading prod- He is a highly requested international In addition to discovering and uct. Now owned by Ken’s Foods, speaker on the subjects of healthcare mastering their superpowers, superheroes SBR has a higher market share transformation, leadership, healthcare analytics and customer management. He also have an origin story. For example: than its next four competitors com- is a course developer and adjunct instruc- • Superman came from the planet bined, while Raymond still owns tor for Northwestern University and the catering portion of the business. Judson University where he develops and Krypton, which has a higher level teaches domestic and international courses of gravity than Earth and thus al- • Chris Van Gorder, CEO of Scripps in analytics, leadership and marketing. lows him to fly despite Earth’s Health, was working as a security His presentations are engaging and witty as he challenges his audiences to think in gravity. Our yellow sun gives him guard at a hospital when he saw the different ways to reach better solutions. superhuman strength. CEO walking in his direction. He He is the author of the books Prescrib- ing Leadership in Healthcare: Curing the • Spider-Man was bitten by a radio- stood up straight and got ready to shake the man’s hand and say hello, Challenges Facing Today’s Healthcare Leaders active spider, which gave him the and Competing on Healthcare Analytics: The ability to walk on walls and pro- but the CEO walked right past him Foundational Approach to Population Health Analytics. Gartner, Inc. has recognized his vided him with heightened senses. like he wasn’t even there. Van Gorder decided that if he ever rose visionary customer relationship manage- At a young age, he had to cope ment work and his academic study was with the death of his uncle. to a leadership position, he would published in Capco’s Journal of Financial treat his people differently, and he Transformation. • Batman witnessed his parents be- has lived up to that pledge. He has a Master of Business Adminis- ing killed in a mugging, an event tration from the Northwestern University that eventually turned him into a My leadership origin story is similar. I Kellogg School of Management and a Bachelor degree from Butler University. vigilante with great fighting skills was a tall, skinny, nerdy high school kid He is a Certified Lean Six Sigma Green and stealthy movement. (before nerds were cool), but I didn’t let Belt, Certified Data Scientist, Certified teasing by other students define me. I was Professional Leader and Certified Adjunct Just like superheroes, all leaders have Faculty Educator. He can be reached at determined to follow my own path and [email protected]. a leadership origin story—usually, a refused to let what others said be my truth. SUMMER 2020 | 5

Five Creative Ideas to Address the Global Talent Shortage Continued from page 3 sites include: Indeed, Glassdoor, LinkedIn, Google for Jobs and Monster. For the healthcare industry, popular sites include Health eCareers, JAMA Career Center, MedicalJobs.org, MomMD and Medzilla. Remember, social media is highly visual. Add photos and videos to attract attention.

Tip #4: Utilize Current Employees Networking (and who you know) is a major factor in finding a job, and it is the same in finding someone to hire. Compa- nies should consider directly asking employees for candidate leads. If the workplace is positive, employees will naturally want to bring others into the fold. Testimonials from current employ- Tip #5: In-House Promotion/Training Ideas for in-house training include mentoring programs, apprenticeships, ees about why they chose the company There is nothing better than training training seminars or incentives for self- and how they are having success is an someone who already has company expe- guided learning. excellent way to attract new hires. rience. Promote from within. Build on Let Artemis Consultants help you get Creative and fun networking events that employees’ current knowledge by cross- creative! We offer professional recruiting current employees can attend along with training with other employees. “Focus on strategies to help you attract and hire your candidates can offer living testimonials. upskilling new and current employees, ideal candidate. Depending on the situation, current because finding talent with the skills you employees may also want to share need will only grow harder and harder” company news and postings on personal (McLaren, business.linkedin.com). LinkedIn pages. Chris Gardner is the Co-Founder & CEO of Artemis Consul- tants. He is original- ly from Wheeling, West Virginia and has called Columbus home since 1995. Soon after earning his Bachelor of Arts in Psychology and a Minor in Business, he joined an executive search firm in down- town Columbus. After becoming the firm’s top producer, he learned his true passion in becoming an executive match maker between companies and senior level professionals. In 2005, he started Artemis Consultants to help software, technology and B2B service companies find industry-specific talent in areas of executive leadership, sales, analytics and professional services. He can be reached at [email protected]. SUMMERFALL 20202015 | 6

Consumerism has a Cost in Revenue Cycle Management: Is your organization in front of the change? Lyman G. Sornberger President and CEO, LGS Health Care and Chief Strategy Officer, Capio Partners, Cleveland, OH

Reimbursement, compliance and cost have been at the top of the list for the healthcare provider for decades. Now we must add healthcare consumerism or patient empowerment to the set of healthcare industry challenges that are slated to change the way medical professionals approach their jobs and patients in the near future, according to Definitive Healthcare’s 2019 Annual Healthcare Trends Survey. Patient consumerism, aka patient experience, will shape the future of care delivery, reimbursement and cost. In essence, patients will define the future of the revenue cycle. The Definitive survey of 1,000 healthcare leaders, including those from the biotech, provider, financial services, IT, consulting and life sciences • Governance—that is, medical human capital, technology, regula- sectors, revealed that consumerism will group leadership—can be critical in tory compliance, administrative be one of the primary forces shaping the determining the profitability of requirements or even the mentality future of medicine. providers, but there are minefields that third-party support amounts to Without question, patients with to overcome. Group presidents and “vendors and not partners.” It’s a fact high deductible plans (HDP) and administrators are faced with the that consumerism has a cost and is increased out-of-pocket expenses bear challenges of branding, internal turf difficult to measure in healthcare more financial responsibility for their issues, risk aversion and prioritiza- with a return on investments. Did own healthcare. As a byproduct, they are tion of practice parameters; and we you know that 30 percent of pa- demanding more of their providers. are just recently grasping the con- tients do not return for care due to Patients are transforming into what tradi- cept of consumer appreciation. price, billing or lack of convenience? tion has known as healthcare payers who • Reimbursement models continue to are actively searching for the most conve- change to bundled payments, value- Here are some simple facts to consider nient, lowest cost and best value regarding based care, telemedicine, population as we move into this new era of health- their care. health and wellness. Again, provid- care delivery: ers are now having to take into 1. The top three provider/patient Why Some are Losing Ground consideration the “patient control leadership trends are: healthcare element” as a further component in industry consolidation, telehealth, There are three reasons why today’s the overall financial equation. and consumerism. providers lose revenue: governance, reimbursement and cost. These are outlined in • The third reason for revenue loss is 2. Eleven billion is spent annually a bit more detail below: cost. That can come in the form of reworking denials/appeals. SUMMERFALL 20202015 | 7

3. In the last decade, write-offs related to denials increased by 80 percent. 4. Some 35 percent of payer rejec- tions are never reworked and resubmitted. 5. Over 300 billion U.S. provider claims were denied last year.

Healthcare organizations must respond in kind with more price and care quality data transparency, while offering convenient care options, such as neighborhood clinics and health IT tools. “It’s no surprise that industry consolidation is top-of-mind for healthcare professionals,” said Jason Krantz, CEO of Definitive Healthcare. “As the industry organizations are slipping on providing a These pitfalls suggest a more pa- continues to evolve and shift, and health positive consumer experience. tient- and consumer-centric approach systems and Integrated Delivery Networks Although healthcare consumerism is is required. As healthcare consumerism increase in complexity, all participants in viewed as a key industry trend, hospitals and continues to be a key industry trend, the industry need to stay abreast of what’s clinics are falling short of serving patients, organizations must focus on both the happening in order to make the best stra- separate reports state. The Trends in elements that will make for a better care tegic decisions for their businesses.” Healthcare Payments Ninth Annual Report experience, as well as a better consumer Telehealth was likewise ranked as a from InstaMed revealed that healthcare experience. top healthcare industry trend, with 13.8 organizations are slipping on providing a percent of respondents reporting such. positive consumer experience. As more Lyman G. Sornberger, Telehealth has the ability to connect patients assume financial responsibility for President and CEO patients to care in a more convenient way, their care, organizations are still hosting for LGS Health Care allowing them to meet with providers consumer experiences that neglect price and Chief Strategy Officer for Capio from their own homes or from a clinic or transparency and patient-centered billing. Partners. Prior to his hospital that is more centrally located. Seventy percent of patient respon- roles at LGS Health- Patients, too, value the use of tele- dents said their medical bill was confusing, care and Capio health in the changing healthcare market, while another 93 percent did not expect Partners, Sornberger according to a previous Definitive was the Executive Director of Revenue their medical bill. Sixty-one percent of Cycle Management for Cleveland Clinic HC report. A 2017 survey conducted by patients received a bill they did not Health Systems (CCHS) from 2006 – 2012. HIMSS Analytics, recently acquired by believe would be so high, while 50 percent This role comprised the Revenue Cycle Definitive, revealed that 70 percent of received bills they did not expect at all. A Management for all 11 Cleveland Clinic patients would prefer a telehealth visit total of 24 percent of patients were sent to Health Systems Ohio and Florida Hos- pitals and 1,800 Foundation Physicians. over an in-person visit. collections. His responsibilities included all CCHS “Very few consumers have been left Patient Access Services, Health Informa- Falling Short of Expectations unburdened by the increases in payment tion Management and Billing. Prior to responsibility,” the report noted. “The his affiliation with CCHS Mr. Sornberg- Although healthcare consumerism is viewed er was with the University of Pittsburgh as a key industry trend, hospitals and clinics trends in healthcare payments show no Medical Center for 22 years as a leader in are falling short of serving patients. signs of the increases slowing down. As revenue cycle management. Sornberger is the majority of consumers owe something a graduate from the University of Pitts- The Ninth Annual Report regarding for their medical visits and health plan burgh with a BS and a Masters Degree in Business. He can be reached at 216-337- from premiums, consumer choice will be king Trends in Healthcare Payments 4472 or [email protected]. InstaMed revealed that healthcare — as it is in most other industries.” SUMMER 2020 | 8

You Have Enough Problems. Why Buy Compliance Risk?

Mark F. Weiss, JD The Mark F. Weiss Law Firm, Dallas, TX, Los Angeles and Santa Barbara, CA

In his 1796 farewell address, president George Washington warned about the danger of foreign entanglements. In this article, I warn about an anal- ogous issue: The danger of taking on, or of actually buying, the entanglements of federal Anti-Kickback Statute compliance risk. In particular, we’ll address entanglements inherent in physician-to- physician dealings when either recruiting physicians to your facility, or in investing in facilities, such as in physician-owned hospitals or ASCs.

Background It’s no secret that the hospital business, whether for-profit or nonprofit, is becoming tougher each year. Hospitals located in large urban ASCs because reimbursement is much avoid Anti-Kickback Statute (AKS) areas face competition from their compet- lower and because outcomes are much liability as a result of physician-to-physi- itors in the market. Hospitals in rural greater: less chance of infection, more cian dealings that are essentially areas face climbing costs that outstrip efficiency and happier patients paying self-created when recruiting physicians reimbursement. lower copays and having much better under the first strategy, or purchased (for And all hospitals, in whatever patient care experiences. real, hard cash) when buying an interest setting, face the new reality that any case Among the strategies that hospitals in physician owned or co-owned facility, that can be performed on an outpatient are engaging in to counter these threats whether a physician-owned hospital or an basis will, today, or in the very near future, are the aggressive recruitment of “star” ASC. be performed in a freestanding ambula- physicians/medical groups with signifi- We’ll use two real-life situations as tory surgery center and not on an cant referral and patient bases [addressing avatars for your avoidance. inpatient basis or even on an outpatient the issue of competition by other hospi- basis in a hospital outpatient tals], and the pursuit of investments in Creating Kickback Situations department. either existing, or planned, physician- When Recruiting Physicians As technology advances and as the owned ASCs [an “if you can’t beat them, safety of procedures in the ASC setting Consider the following set of facts. join them” strategy] to at least share in increases, more and more procedures are Prior to the 2010 recruiting efforts that what would otherwise be business lost to being added to Medicare’s list of approved led to the creation of the compliance the hospital. outpatient surgery center procedures. issue, an anesthesia group held the exclu- Although the universe of compli- Because many, if not all, private payers sive contract to provide all anesthesia ance issues in connection with either follow Medicare’s lead on this, private services at a hospital that we’ll refer to strategy is broad and expanding, this payers, too, are pushing procedures out to using the fictitious name “St. Marks.” article focuses on the need for hospitals to SUMMER 2020 | 9

In late 2010, a psychiatry group with Subsequently, the psychiatry group proposed arrangement, the psychiatry a practice centering on performing ECT informed the anesthesia group that an group would have the opportunity to procedures relocated to St. Marks. “Dr. additional anesthesiologist was needed. generate a fee equal to the difference X,” board-certified in both psychiatry and The parties began negotiating and arrived between the amount it would bill and anesthesiology, was one of the owners of at a proposed contractual arrangement collect and the per diem rate paid to the the psychiatry group. under which the anesthesia group would anesthesiologists. In 2011, the anesthesia group began provide the additional ECT anesthesia The OIG found that the proposed negotiating with St. Marks for the services. The anesthesia group would arrangement would not qualify for renewal of its exclusive contract. St. reassign to the psychiatry group its right protection under the AKS’s safe harbor Marks demanded an initial carve out to bill and collect for the services. The for personal services and management from the scope of the exclusive contract: psychiatry group would pay the anesthe- contracts. Those safe harbors protect only Dr. X would be allowed to independently sia group a per diem rate. The psychiatry payments made by a principal (here, the provide anesthesia services to ECT group would retain the difference psychiatry group) to an agent (here, the patients. between the amount collected and the anesthesia group). No safe harbor would The following year, when negotiat- per diem rate. protect the remuneration the anesthesia ing the 2012 renewal, St. Marks Before finalizing the deal, the anes- group would provide to the psychiatry group demanded amendments to the carve-out thesia group presented the proposed by way of the discount between the per diem provision. Among the expanded carve- arrangement to the Office of Inspector rate their group would receive and the outs, Dr. X would be allowed to provide General of the U.S. Department of amount that the psychiatry group would anesthesia services to ECT patients, and Health and Human Services (OIG) for collect. the anesthesia group would be required to an advisory opinion, which resulted in the Because failure to comply with a safe provide coverage for Dr. X. issuance of Advisory Opinion 13-15. harbor does not necessarily render an And, pursuant to what was called the [Author’s Note: I represented the anesthe- arrangement illegal, the OIG analyzed “Additional Anesthesiologist Provision,” sia group in its request for Advisory whether, given the facts, the proposed the psychiatry group would determine if Opinion 13-15.] arrangement would pose no more than a an additional anesthesiologist was needed minimal risk under the AKS. for ECT anesthesia. If so, the anesthesia The OIG’s Analysis The OIG flatly stated that“the group would negotiate with the psychia- The OIG has stated on numerous proposed arrangement appears to be try group to provide those services. If the occasions that the opportunity to gener- designed to permit the psychiatry group anesthesia group and the psychiatry ate a fee could constitute illegal to do indirectly what it cannot do direct- group did not agree on terms, the psychi- remuneration under the AKS even if no ly; that is, to receive compensation, in the atry group or Dr. X could contract with payment is made for a referral. Under the form of a portion of the anesthesia group’s an additional anesthesiologist. revenues, in return for the psychiatry group’s referrals of patients to the anesthesia group for anesthesia services.” The OIG concluded that the proposed arrangement could potentially generate prohibited remuneration under the AKS and that the OIG could impose administrative sanctions in connection with the proposed arrangement. In other words, the OIG declined to approve the arrangement.

Potential Impact on Your Hospital Although it might appear that the fact situation and the OIG’s analysis

Continued on page 10 SUMMER 2020 | 10

You Have Enough Problems. Why Buy Compliance Risk?

Continued from page 9

The cost of the potential settlement? Tenet’s 10-Q filing states that it’s $66 million with another $2 million reserved for the relator’s attorneys’ fees and other costs. A review of court’s docket in the case, discussed below, indicates that no settlement has been finalized. As of this writing, the court has granted a lengthy stay, presumably for the parties to come to terms. The lawsuit, entitled U.S. ex rel. Wayne Allison, etc., et al. v. Southwest Ortho- paedic Specialists, PLLC, et al., centers around numerous Oklahoma orthopedic surgeons, their practice, Southwest Ortho- paedic Specialists (SOS), and the surgical hospital they created, Oklahoma Center for Orthopaedic and Multispecialty Surgery (OCOM) with United Surgical presented previously implicate only the the recruitment of ECT performing Partners, Inc. (USPI). psychiatry group and the anesthesia psychiatry groups and the impact on Among other things, the lawsuit group, had they entered into the proposed anesthesia groups. alleges that SOS and other defendants, transaction, a hospital in the position of The warning applies to any situation including USPI, entered into an anesthe- St. Marks could easily be seen to have in which a hospital enters into an arrange- sia company scheme under which they conspired with the psychiatry group to ment under which it can be seen as formed and operated an entity called permit it to obtain remuneration in viola- rewarding a physician or medical group Anesthesia Partners of Oklahoma, LLC, tion of the AKS. with contract rights (or freedom from to which OCOM granted the exclusive But there are other dangers as well for existing contract rights in favor of a third anesthesia contract. The complaint alleges a hospital in this seemingly physician-to- party) in return for referrals. that, as a result, anesthesia company profits physician situation: Although not officially were distributed to those owners in a within the scope of the opinion, the OIG Buying Kickback Situations manner directly related to the volume and also stated in Advisory Opinion 13-15 that When Acquiring Interests in value of referrals by the SOS surgeons. it could not exclude the possibility that (i) Physician-Owned Facilities Subsequent to the commencement of the the hospital pushed for the carve out to alleged illegalities, Tenet Healthcare reward the psychiatry group for its referrals Tenet Healthcare Corporation’s acquired majority ownership of USPI and of patients to the hospital and that, (ii) the quarterly report for the period ended was thus drawn into the fray. Stated hospital leveraged its control over anesthe- September 30, 2019, indicates that it’s in differently, it appears as if Tenet essen- sia referrals to induce the anesthesia group the process of settling a whistleblower tially bought the problem when it acquired to agree to the carve out. suit involving, among other serious alle- USPI, the co-owner of OCOM. In other words, the OIG points out gations, that it participated in a so-called Although it must be stressed that that there are significant stand-alone “company model of anesthesia services” Tenet is in the process of settling the case, AKS compliance issues for a hospital in scheme. That’s an arrangement in which, certainly without any admission of liability, the position of St. Marks. roughly speaking, the surgeons working $66 million is no small chunk of change. Note well that there’s nothing in at a facility, usually owners of the facility, A similar amount could destroy Advisory Opinion 13-15 that limits its and perhaps the facility itself, own the many facilities, including many already warnings to dealings in connection with entity providing anesthesia services. fragile community hospitals. SUMMER 2020 | 11

Takeaways for You 1. Hospital executives often wonder, after the fact, of course, why their attorneys didn’t sound the alarm prior to the hospital entering into a non-compliant deal. Or, even worse, after someone points out the compliance issues inherent in the situation, why counsel didn’t tell them to unwind the deal. Unfortunately, it’s often the case, even in today’s supercharged compliance sensitive world, that regular hospital counsel are disposed to say “yes” rather than risk souring the client relationship. And, once they bless the structure, they suffer not only from conformity bias when presented with valid arguments challenging the deal as illegal (e.g., “we the firm that structured the arrangement might not be readily apparent, and which told them the structure was OK, so it is in the first place. might “live” outside the four walls of the OK”), they also suffer from fear of losing 2. Even if your hospital or health facility, in addition to the usual review of the client or, even worse, of malpractice system doesn’t profit from a questionable relationships between the target facility liability (e.g., “we told them the structure deal between physicians, permitting it to and the providers. was OK, so it has to be OK and we’re never occur within your facility (e.g., giving a 4. And, last, on a personal level, per- going to agree that it’s not”). carveout from an exclusive contract, or sonal for you, that is, note that OCOM’s Just as the first thing to do when you even granting an exclusive contract) can CEO, Michael Kinsey, a USPI employee, find yourself in a hole is to stop digging, pull you into the mess. and its former CEO, Steve Hendley, also the first thing to do when considering a For example, granting a gastroenter- a USPI employee, were personally named fact situation that presents significant ology group the right to bring its captive as additional defendants in the Oklahoma compliance concern is to bring in special anesthesia providers into your facility can whistleblower lawsuit. Only time will tell if counsel not dependent on saying “yes” to be seen as conspiring with the gastroen- those USPI “suits” are hung out to dry. retain your business. In like manner, if a terologists to violate the AKS as to the third party points out a potential problem inherent discount in the relationship with an already existing arrangement, it between the anesthesia providers and the Mark F. Weiss, JD, is an attorney who spe- only makes sense to bring in different gastroenterologist owners. Separately, the cializes in the busi- counsel to advise you on the situation, not arrangement itself can be interpreted as a ness and legal issues kickback from the hospital to the gastro- affecting physicians enterologists. In addition, if the “favor” and physician groups for the gastroenterologists is a carve out on a national basis. He served as a clinical from an exclusive contract with a third- assistant professor of party anesthesia group, then the contract anesthesiology at USC Keck School of rights themselves can constitute illegal Medicine and practices with The Mark F. remuneration in violation of the AKS. Weiss Law Firm, a firm with offices in Dallas, Texas and Los Angeles and Santa 3. Investigate, then investigate some Barbara, California, representing clients more, before your hospital invests in across the country. He is also the co- another facility, especially one that’s founder of a healthcare mergers and ac- physician-owned. Due diligence in quisitions advisory firm, Steering Advi- sors. He can be reached by email at connection with any proposed transac- [email protected] or at tion must include a deep dive into the [email protected]. relationships between providers, which SUMMER 2020 | 12

Managing Data Privacy Complexity by Creating a Privacy Culture

Candace Bonnis, CHC, CHPC Healthcare Privacy and Compliance Leader

The headlines are hard to miss; concerns over data privacy increase year after year. Thankfully, much of the concern is matched with awareness and action. Over 100 countries have privacy legislation in place.1 Notably, in 2018 data privacy and security professionals anticipated the European Union’s General Data Privacy Regulation (GDPR). In the U.S., absent a federal standard addressing general data privacy, individual states took charge by enacting their own privacy laws; and we can expect this trend to continue. In healthcare, privacy advocates and specialists were pleased to see some of those state laws, like the California Consumer Privacy Act (CCPA), include designed exceptions for medical information. However, healthcare organizations Creating a privacy culture means not People must be careful to assume these excep- settling for bare minimum compliance, tions apply to all information collected Like your organization’s culture as a but instilling an organization-wide within their organization. whole, a culture focused on data privacy commitment to privacy in any organiza- With each new, privacy-focused law, begins with people, starting with top tional decision. This approach not only you may find that your obligation to meet leadership and trickling through all levels. reduces complexity and costs, but also data privacy requirements has rapidly Aside from your designated privacy protects your organization’s reputation by expanded beyond HIPAA. And as with compliance team, your organization will meeting patient, employee and societal every new piece of legislation, the applica- benefit from having a group of leaders expectations. If your organization is tion of the laws and regulations will continue dedicated to setting priorities and making client-driven, a privacy culture can help to evolve with each enforcement action. recommendations around data privacy. to address contractual obligations around As each new data privacy standard is This might include evaluating new laws patient and data privacy, not just the legal implemented, the most challenging and business processes, planning activi- ones. problem will be managing the complexities for privacy awareness weeks, or So what’s the recipe for establishing ties each adaption brings to the table. analyzing privacy trends and reported a privacy culture focused on driving align- Primarily, this means privacy standards concerns within the organization. ment and bettering business outcomes all are not only significant for technical Senior leaders and privacy officers around? The priorities and details will experts and industry specialists. They aren’t the only ones who can drive a vary from organization to organization, matter to everyone. privacy culture. Get individuals at all but you should consider a few basic, The best way to combat the ever- levels in the organization involved by structural elements. changing privacy environment is to make privacy part of your everyday culture. 1 https://unctad.org/en/Pages/DTL/STI_and_ICTs/ICT4D-Legislation/eCom-Data-Protection-Laws.aspx SUMMER 2020 | 13

designating “privacy champions.” Privacy • Use a standard questionnaire dur- personal data. You can use this tool to help champions serve as a beacon for other ing new business development identify the privacy outcomes your organi- employees and lead by example. They can initiatives to understand the per- zation wants to achieve and then prioritize assist by serving as the privacy team’s eyes sonal information that will be the actions needed to do so while carefully and ears, as well as intake questions and collected and used in the project so maintaining the balance between business report concerns. that privacy issues can be identi- innovation and data protection. fied at the conceptual stage. Finally, and perhaps most important- Master the Essentials • Work with project managers to ly, you should view these strategies with a “rinse and repeat” mindset. Cultures After you’ve designated your privacy demonstrate value of “privacy by are not created in an instant. They de- leaders, focus on mastering the essentials. design” and imbed formal re- velop over time, nurtured by leaders and While healthcare organizations have had quirements for privacy risk influenced by the environment in which an obligation to maintain privacy programs assessments within project man- they live. Often, a culture change clashes for decades, you should analyze your agement deliverables. with an existing, hard-to-change culture. current state. Consider refreshed training, • Streamline contracting processes by Stay strong and keep pushing. Privacy policies and breach response protocol that supplying the contracts teams with specialists expect the requirements and raises your employee awareness to data standard list of privacy require- complexities of privacy legislation to privacy requirements beyond HIPAA. ments, and work collaboratively to grow, and imbedding privacy practices Data mapping is another essential develop standard contract clauses. within your organization’s business pro- that should not be ignored. Organiza- cesses now will sharpen and help shape tions are required to understand what • Tap into your organization’s al- your privacy culture for the future. Soon, data types you collect, where you store it, ready-defined incident response you’ll notice a culture where data privacy who processes it, where the access points processes. Your employees will be is not an afterthought, but top of mind are and what your data retention practices familiar with the protocols and for everyone across your organization. are. This can be a challenge for large will know exactly what to do if a healthcare organizations managing a privacy incident arises. myriad of locations and patient, employee • Set accountability and define mea- Candace Bonnis, and vendor information. Using tools and sures of success for performance CHC, CHPC, is a existing business processes should make improvement. Be sure to report skilled Compliance and this challenge easier to digest. regularly using existing perfor- Privacy Officer and has mance measurements. more than a decade of healthcare experience Business Integration with an operational and Tools Building a privacy culture doesn’t compliance back- To help you set the foundation of your ground and a special have to start from the ground up. You’ll focus on data privacy. Her history in the gain support and find success by integrat- privacy program, the National Institute of industry includes serving as Vice President, ing your privacy program within existing Standards and Technology (NIST) have Compliance and Privacy, for MiraMed business processes. Some examples to published their long-awaited Privacy Global Services as well as Vice President of 2 Compliance for ConcertoHealth, a complex consider for your own organization are: Framework, version 1.0. Released in integrated healthcare model based in Aliso January 2020 and akin to NIST’s Cyberse- Viejo, CA. Candace also held multiple roles curity Framework, the Privacy Framework with increasing responsibilities for the is a voluntary tool that can help your organi- CommuniCare Family of Companies in zation manage privacy risks and demonstrate Cincinnati, Ohio where she played a key role in supporting litigation, compliance, compliance with applicable laws. and privacy oversight activities for 40+ care The tool has received strong support centers spanning four states. Candace is a from privacy professionals because it graduate of the Ohio State University, a provides a useful set of privacy protection member of the Health Care Compliance strategies for organizations to improve Association, and holds active certifications in Healthcare Compliance and Healthcare their approach to using and protecting Privacy Compliance. She can be reached at [email protected]. 2 https://www.nist.gov/privacy-framework SUMMER 2020 | 14

Fork in the Road: What To Do (And Not Do) When You Get Sued

Christopher J. Ryan Dickinson Wright PLLC, Ann Arbor, MI

You’re in your office and an office staff member approaches you with a strange look on her face. You are told that there is a man at the front desk with some documents for you. She explains that the individual holding the documents will not leave them with her; he will only give them to you. You reluctantly approach the individual. He hands you an envelope and you soon learn you have been sued. It turns out the delivery man was, in fact, a process server. (And sorry to disappoint, but unlike what may be portrayed in the movies, in this author’s experience, he won’t be wearing a disguise.) If you have never been involved in litigation, when you find out you are being sued your heart probably starts individual served with a lawsuit must file a business. Individuals may be sued for any pounding. Alarm bells in the back of your formal response within a certain amount of number of reasons: perhaps six months head ring out of control. What should time (generally a few weeks or slightly ago they got into a fender bender, they you do, and more importantly, what more). The “clock starts ticking” on your forgot to pay a bill, or because a tree on should you not do? deadline to file a response when you are their land is overhanging onto their neigh- This article will outline some of the served with the papers. If you fail to file a bor’s property. Whatever the reason, it is actions you should consider taking, and response because you stuck the lawsuit in very possible that you have insurance to just as importantly will outline some your desk drawer, it may mean that you not only cover a judgment, but to pay for actions that many people are tempted to forfeit the right to put up a defense to the your legal fees along the way. Some insur- take but almost certainly should not. suit or to dispute the allegations in the ance policies are obvious (think auto, boat, Don’t Play Ostrich. When faced lawsuit. The court may simply enter a home and malpractice). But what those with danger, some ostriches bury their judgment against you for the amount policies cover may surprise you. For heads in the sand so they do not have to demanded in the suit. Even if you ignore example, your homeowner’s policy may be face the danger. Believe it or not, many the suit for a few weeks but act on it before broader than you think. Your malpractice humans do something similar when served the deadline expires, you have just cost policy may provide you with an attorney if with a lawsuit. This author has seen very yourself precious time to start gathering you are subpoenaed to give testimony, even successful and very intelligent business- documents and formulating your response. if there is no claim that you did anything men, physicians and even law firms who, Do Think About Insurance. There wrong. If you are not sure whether you after being served with legal process, stick are many reasons you could be sued. have any insurance policies that apply, call the documents in a drawer and pretend Physicians are sued for malpractice with your agent or your insurance company, or they do not exist. But a lawsuit will not go increasing regularity (for many special- ask an attorney. away simply by disregarding it. ties, the question is not if they will be Don’t Alter Records. Don’t Alter Ignoring a lawsuit only makes a tough sued, but when) and lawsuits between Records. It’s not a typo. It appears twice situation worse. In most jurisdictions, an businesses is often seen as a cost of doing because it is that important. SUMMER 2020 | 15

Lawsuits are usually filed months or years after the events took place that are at issue in the lawsuit. For example, in Michigan, a patient generally has two years or more to file a medical malpractice lawsuit. An individual may have six years to file a lawsuit alleging that a contract was breached. That means that when you find out you are being sued, you may not even remember being involved in the events at issue in the lawsuit. It is natural if your first inclination is to look up all the documentation and records you can to remind yourself about your Most organizations have retention ney as early as possible after being served involvement or to determine whether you policies in place, but given that a lawsuit with legal process. As indicated, there are were even involved at all. But resist the may be filed years after the conduct at issue, usually deadlines requiring you to respond temptation, and under no circumstances it is important to make sure that informa- to most legal process, and the longer you should you alter the records. tion is not purged (even inadvertently) after wait to contact an attorney, the less There are many reasons not to alter notice of the lawsuit is received. If neces- amount of time the attorney has to records. Depending on the jurisdiction sary, discuss your retention policies with prepare and file an appropriate response. and type of record, odds are altering your lawyer and ensure that information If your insurance company hires a records is illegal and could subject you to relating to the lawsuit is exempted from lawyer to represent you, consider whether civil or criminal penalties. In addition, routine periodic destruction/shredding. you need personal counsel. Most insur- altering records makes you look dishonest Don’t Discuss the Lawsuit. It is ance companies hire good attorneys, and even if your alteration is accurate and well quite natural, especially among health- the attorneys are hired to look out for intentioned. For example, you may be care providers, to discuss adverse your best interests. However, if you feel tempted to add entries that you may have outcomes. Many states encourage open you need to retain your own personal forgotten to put in the record in the first and frank discussions about adverse attorney, you should do so. place. Or perhaps you see something in outcomes in order to reduce morbidity Don’t Let the Lawsuit Define You. your records that you no longer believe is and mortality and improve patient care. Lawsuits can be extremely stressful. accurate. Do not make any changes, and For that reason, many jurisdictions Although you should respect the legal do not delete or destroy the records. protect information gathered by a peer process and give the lawsuit the attention Instead, talk to your attorney about your review entity from disclosure in a subse- it deserves, avoid letting it define you. For specific situation. Explain your concerns quent litigation. However, after a lawsuit some, this is easier said than done. Discuss and work with her or him in order to is filed, if meetings are held to discuss the your stress level with your attorney, and convey full and complete information. lawsuit, the information discussed at the seek professional medical/mental health Do Preserve Records. Increasingly, meeting may very well be discoverable by assistance if you need it. jurisdictions are imposing an affirmative the opposing party. Even if the purpose of duty upon participants in a lawsuit to the meeting is above board, the opposi- preserve data and records, including elec- tion may try to argue that you held the Christopher J. Ryan is an attorney and Of tronically stored information. In the meeting to get your story straight or cover Counsel at Dickinson healthcare context, most people associate something up. Your attorney will be able Wright PLLC. He is electronically stored information with the to help you navigate when and with an experienced litiga- electronic medical record. While electron- whom it is okay to discuss the lawsuit, tor who has spent most ically stored information certainly includes and to preserve all available privileges. of his career representing individuals and the medical record, it may be broader than Do Contact a Lawyer. Whether businesses involved in that. Emails, text messages, pictures or you contact a lawyer through your insur- the healthcare industry. Chris can be con- other types of electronically stored infor- ance company or on your own, it is tacted at [email protected]. mation may be relevant to the case. recommended that you consult an attor- MiraMed Global Services, Inc. 255 West Michigan Avenue Jackson, MI 49201 517-787-7432 www.MiraMedGS.com

At the time of publishing, we find ourselves in mid-June and are able to look back on what has been an extraordinary time for our country and global community. Our readers—most of whom work in the hospital environment—have just lived through an unparalleled experience and faced an unprecedented challenge due to the coronavirus pandemic. You had to deal with new care delivery models, constructed on the fly. There was a whole new set of supply issues you had to work through and worry over. The extended suspension of elective surgeries was devastating to your facility’s profitability. Perhaps worst of all was the uncertainty that you faced. Not knowing what to expect as far as the number of COVID cases or the acuity of such cases—not knowing how many in your own facility would be exposed or die—could not help but to have a debilitat- ing effect on your entire team.

One of things I love about human nature is our resiliency, our ability to look into the abyss and determine to survive. We saw that determination most clearly displayed in the heroic efforts of our healthcare workers, especially in the hospital sector—the front lines of the battle against COVID. At the time of this writing, we are seeing an easing of restrictions and an uptick in elective surgeries, but the danger still persists. No matter how long the threat from the virus lasts, we know we can count on our hospital employees to be there for the rest of us, providing expert healing and genuine care. We at MiraMed Global Services salute you for your valiant efforts during the national health emergency, and we wish you success in all you do.

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