By: Steven Boyne
When COVID-19 passes and the world begins to return to normal, you can be guaranteed that many of your old “friends” will come to visit you. To minimize future liability, pain and time, you should be preparing today for tomorrow’s visitors:
The Lawyers. Lawyers come in many flavors, and can bring good or bad news. Depending on your initial reaction to the pandemic, and your subsequent actions as the panic started to die down you may see three types of lawyers: (1) Those that represent past or present employees who have lost their job or contracted COVID-19; (2) Those that represent patients who claim malpractice based on the care that you did or did not deliver, and also those patients who assert that they contracted COVID-19 at your office; and finally (3) Those that represent creditors or debtors of your practice. The actions you should take today are many and varied and beyond the scope of this overview, however, you should be asking the following questions of yourself: (i) did you file a claim for business interruption despite the fact that your insurance broker said you were wasting your time? (ii) does your malpractice carrier cover you for liability outside of the normal scope of providing care? (iii) are your documenting your actions throughout the pandemic to demonstrate that you were acting reasonably at a time when you did not have all the facts? (iv) did you look at your business insurance policies for coverage for employee claims, or workers comp claims, or OSHA claims? (v) did you research what other similarly situated companies are doing, as you will most likely be held to the same standards? (vi) did you follow guidance from State and Federal entities? and (vii) did you provide notice during the pandemic to debtors or other parties who have breached their obligations?
The Regulators. Again regulators come in many forms, and include HHS, OSHA, EEOC, State Regulators, CMS, the IRS and they will be asking many questions. These questions may include your office working conditions; your pay and your employee pay, if you have received any governmental assistance (such as the PPP); licensing of employees in light of waivers granted during the pandemic that may ultimately be reversed; your billing procedures; how you terminated your former employees, who you chose to let go and what decision process did you follow to hire them back; and did you change anything in your privacy or HIPAA procedures (e.g. because some folks were working from home). Again this overview does not allow for a detailed response, but at a minimum (i) be aware of the current regulatory environment, document today the fact that you may be changing your business practices in light of COVID-19 and why you made these changes; (ii) monitor and document what other companies are doing; and (iii) did you track down and implement checklists from reputable groups such as the AMA? In short don’t be an outlier.
The Auditors. Again auditors come from many different places, such as CMS, insurance companies, banks, and the IRS. If you applied for any grants or assistance, such as the PPP, they will be looking at your original application, where you spent your money, and who you spent your money on. Insurance companies and CMS may be looking at your billing procedures and coding based on past practices and new waivers that were temporarily or permanently granted, such as Telemedicine. To help you should be listening to professionals such as lawyers and accountants today, documenting your decisions, and making sure that understand what your employees are really doing during the pandemic as many of them have less supervision.
Finally, don’t forget the lawyers, regulators, and auditors will all have 2020 hindsight, so you should be putting on your glasses today.