Wayne J. Miller, Esq., a healthcare transaction and regulatory attorney and founding partner of Compliance Law Group in Los Angeles, Calif., discusses 10 essential elements of hospital on-call contracts for spine surgeons.
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1. Cover the scope of services. Clearly define the services surgeons will provide with their on-call coverage. If the hospital expects surgeons to take on more than just emergency room coverage, it should be clearly defined in the agreement.
"Coverage might entail not just patients in the emergency room, but patients already in the hospital that don't have a physician or spine specialist assigned to them," says Mr. Miller. "Sometimes hospitals want the on-call surgeons to be available for consultation for inpatients or outpatients involving spine surgery."
As the on-call specialist, decide whether these additional duties are commitments you are willing and able to make 24/7/365, especially if you have obligations elsewhere.
2. Agree upon coverage expectations. The contract should include expectations for how quickly surgeons will be expected to respond in person or by telephone while on call. In person obligations are usually expressed in travel time, i.e., how far away from the hospital they're allowed to be while on call. Depending on the type of surgery, in-person response obligations could be relatively immediate, typically within 30 minutes or less. Telephone response obligations may be even faster, typically within 10 to15 minutes.
"Surgeons must be sure about what the agreement states about in-person availability," says Mr. Miller. "Some agreements may stipulate the surgeon must be onsite for certain amounts of time. Your practice might dictate whether you can live up to those terms, such as whether you have clinic or surgery time scheduled elsewhere during those hours."
3. Find appropriate and fair compensation. As a response to antikickback and Stark Law concerns with hospitals paying physicians for on-call coverage, the federal government has indicated in opinion letters that they acknowledge that hospitals may pay for coverage when necessary, but have not issued "safe harbors" for the calculation and valuation of coverage services.
"They have given some concepts, including that you should look at a survey of coverage rates in your area to decide upon fair compensation," says Mr. Miller. "However, in urban markets where the cost of living is very expensive, using national or regional surveys purchased from an association may not be the real fair market value as determined by your area. The hospital may have to hire a consultant to conduct its own survey to determine the value of services locally to establish a defensible rate to pay specialists for adequate coverage."
Compensation can become a source of tension between the physicians and hospital executives because each party may have a different view of the value of on-call availability, particularly of specialists like spine surgeons. However, it's important that both parties agree upon a defensible methodology to determine the fair market value to avoid regulatory issues.
4. Know how compensation is calculated. Some contracts may compensate surgeons just for covering the on-call duty per hour. Others pay a fee-per-day of coverage. Typically the fee is compensating solely for availability and does not include the separate performance of professional services. If the surgeon does perform professional services while on-call, the surgeon can bill for those separately.
"However, surgeons see many patients while on-call who are uninsured or have insufficient insurance coverage for surgery services," says Mr. Miller. "Sometimes coverage agreements must go further than just providing the availability fee and address whether the surgeon will be compensated for the care that isn't otherwise paid by the payer or managed care provider."
5. Decide what happens when the coverage period ends. Surgeons often consider the patients they operate on as "their patients," but when they finish their on-call period, who takes responsibility of the patient? The on-call agreement should be clear about the surgeon's responsibility beyond the coverage period itself.
"Patients coming into the emergency room can lead to medical staff fights in terms of patient 'handoff'," says Mr. Miller. "Part of that may be dictated by the payer that says once the patient stabilizes, they want the physician covered within their provider network to see the patient. Or other physicians on staff may want to take over care."
Clarify these circumstances where the patient stays in the hospital beyond the call coverage period.
6. Consider whether patients will fall into your provider network. On-call surgeons must take care of all emergency room patients, whether the patient participates in their managed care contracts or not. Oftentimes, patients coming in have PPO or HMO plans, and if surgeons don't contract with those payers they may not receive full payment for professional fees for their services.
"It may be important to require the surgeon to be a participating provider in an applicable plan to avoid situations where they are providing care for patients they aren't getting paid for," says Mr. Miller. "The level of participation the surgeon has in managed care might be a factor in whether the on-call agreement will work out."
Hospitals don't want to step into the role of addressing disputes for payment of professional services for on-call surgeons who aren't contracted with managed care providers. "Whatever a surgeon can do to ensure he participates will put him in the best situation to get paid, particularly for managed care patients," says Mr. Miller.
7. Decide whether to be exclusive. Some hospitals are looking for exclusivity in their on-call providers. They want the same surgeon on call several nights per week or an entire month as a time. Consider whether this commitment will impact your practice and existing relationship with other providers in the community.
"The physicians may feel it's not feasible or conflicts with his practice to make that commitment," says Mr. Miller. "In some surgical subspecialties, it's not realistic to be exclusive to one facility if other facilities in the area need the same coverage."
8. Don't stretch obligations too thin. On-call coverage at one hospital may require you to go above and beyond your obligations as a medical staff member. If you're already on staff at the hospital, you have a level of commitment already and taking on-call hours would snatch up what little free time you do have.
"The agreement might require surgeons to be on-call on the weekends or every other weekend," says Mr. Miller. "Surgeons must think about whether that's a feasible use of their time. It may prevent them from having a personal life or continuing their private practices."
If the surgeon is required to spend a portion of the on-call hours at the hospital, consider whether that's the type of practice you would like to engage in, or whether you prefer being in your own clinic. On-call coverage may change the nature of your practice and that should be consistent with your career vision.
9. Stipulate protocol for absences. The contract should state how surgeons should handle absences, such as vacation time, conference time or sick days. Both parties should understand the necessary steps to make sure there is a qualified substitute for on-call coverage during anticipated and unanticipated periods of absence. Also the compensation of the substitute needs to be specified.
"Usually the surgeon is responsible for providing a hospital-approved locum to assume those responsibilities," says Mr. Miller. "The locum must meet the same qualifications as the contracting surgeons. Typically the contracting surgeon takes financial responsibility for compensating the locum."
For anticipated absences, the contract should specify the advanced notice period of 60 to 90 days, especially if the surgeon will be gone for several days at a time. "Because these are independent contract agreements, this is not something the hospital should dictate," says Mr. Miller. "It should be up to the surgeon to figure out their schedule and develop a procedure for letting the hospital know."
If the surgeon will be absent and doesn't follow appropriate protocol set by the hospital or medical staff to properly notify the hospital administration and nursing staff of an absence and his substitution, the surgeon could be accused of not fulfilling contracted responsibilities.
10. Specify the contract length. To meet regulatory requirements, the contract must last at least one year. New contracts may typically last one or two years to make sure the relationship will work while leaving room to renew the contracts later on.
"The hospital has to have confidence that the surgeon will live up to obligations and the surgeons must make sure the agreement can be fulfilled in light of practice needs," says Mr. Miller. "It could be longer than that, but often both parties want to reevaluate the relationship. Typically contracts with established covering physicians last from three to five years and have a renewal term, even after the short periods, to continue on a year-to-year basis."
Some hospitals have forgotten to renew the agreement, but the physician continued to provide services and the hospital continued to compensate the physician; this is against Stark Law, which requires a written agreement for the whole period the physician is compensated.
"Make sure the contract is renewed or has an evergreen clause that allows for automatic renewal at the end of each term so that you never have any point where there isn't a written agreement between the parties," says Mr. Miller.
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