Healthcare professionals and businesses are routinely barraged with people who claim to be able to generate business for them. The business of healthcare is like none other in its abhorrence of anything that even smells like payment for patient referrals, so professionals and businesses alike have to be extremely cautious and well advised in crafting marketing and related business-enhancing relationships.
The key here is to realize that, while the laws haven’t changed, what regulators are doing with them has! The environment of healthcare marketing has never been more treacherous than it is today. So what’s changed? How about:
Commission based marketing and sales involving federal or state payers, even those that arguably comply with the personal services arrangement and management contract safe harbor, are detested by federal regulators;
The regulators will look to pierce any enterprise, including those consisting of multiple tax ID entities, in hopes of making the case that commercial based marketing payments were in exchange for even one drop of federal/state payer money;
Both health insurers and large providers (e.g. labs, pharmacies) work hand in hand with federal regulators to pursue suspicious activity, the result of which is to support the large provider; and
Targets of enforcement activity who have obtained good legal advice often pay just to put an end to the enforcement because there’s a risk of losing and “winning” can feel like losing when one considers the enormous defense costs.
Super groups are in vogue as physicians do their best to reduce costs and enhance revenues. A “super group” is essentially a collection of previously separate competitors who have joined a single legal entity in order to achieve certain advantages. Those advantages tend to be (1) reducing overhead expense associated with economies of scale. Buying insurance for a group of 100 doctors should be far less expensive per doctor than a group of three doctors; (2) gaining leverage in managed care contracting. 20 groups of five physicians each cannot contract with a payer with “one voice” due to the antitrust restrictions, but a single group of 100 doctors can; and (3) finding new revenue sources. Small groups and solo practices cannot afford revenue producing services like surgery centers, imaging services and such. When practices combine, they have a greater patient base, which makes the development of new revenue sources feasible.
When a doctor joins a super group, she stops billing through her old practice (the “P.A.”) and starts billing through a new group (the “LLC”). The LLC has a tax ID number and a Medicare group number. And the LLC enters into lots of managed care payer agreements. Simply put, the doctor puts all of her eggs in the LLC basket. So what’s the risk?
When physicians depart super groups, they have to confront difficult facts, like:
It will take months to get a new Medicare provider number. If they haven’t billed through their “old entity” for a while, that number is gone. And getting a new number for the departing physician takes time, during which revenues associated with Medicare patients are lost (until the number is obtained);
It takes even longer to get on insurance plans. If the LLC is contracted (they usually are), how long will it take to get the P.A. fired back up? It can take as long as six months (and sometimes even more)? That means the departed doctor is out of network with all the plans! This exposes her patients to higher costs and may affect referral patterns. This alone can be crippling to a physician who has left the super group.
Leaving can also mean ending access to patient scheduling and electronic medical records. Many super groups do not ensure access to patient scheduling or billing to enable a departing physician to get back on their feet; and this can be devastating.
Super groups exist to benefit physicians. It makes no sense that they would be used to harm them, which is precisely what can happen (and sometimes does happen) if physicians do not pay good attention to the “back end” as well as they do to the “front.” That means things like—
Making sure that, wherever possible, the departing physician is afforded enough time to get back on her feet professionally. She will need time to get a new practice formed, to get a new Medicare provider number and to get back on insurance plans;
Ensuring the departing physician has adequate access to medical and scheduling records;
Carefully considering whether or not noncompetes make any sense. Some may say that it is important to protect the new practice (like the old one), but these are different sorts of practices. They are not built from the ground up. They are built because successful competitors who have been in business for years decided essentially to “loan” their practices to the super group in order to obtain certain unique advantages.
Super group arrangements continue to grow. Some of them even develop into fully integrated and sophisticated businesses. Physicians who join them have to consider all “angles,” not just how good it will be or can be when they join.