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-nity to meet and identify their leadership superpower. Class members are then charged with determining their personal superpower and explaining why they chose it. Leaders should be on a continuous journey to discover their personal leadership superpowers. Each journey is different. Just like no two superheroes have the same powers, no two leaders utilize their leader-ship abilities in the same way. I cannot lead like you and you cannot lead like me.

Identifying Specific Leadership Superpowers

Our research has identified 12 leader-ship superpowers. These abilities are non-industry-specific, and all leaders can use them to be successful. The best leaders usually master two or more and have a working knowledge of when and how to use many of the others.

Those 12 abilities fall into two catego-ries: “who they are” and “what they do.” Who they are. These are abilities that are innate or come naturally, although leaders can get better at them with training. The abilities in this category include:

• Humility • Empathy • Vision • Risk-Taking

What they do. These are abilities that leaders can learn, develop and master over time. They include:

• Communication • Motivation • Observation • Empathy • Storytelling • Social leadership • Reflection • Coaching/mentoring

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Continued on page 4

Discovering Your Leadership Superpowers and ‘Origin Story’

J. Bryan Bennett, MBA, CPL, CPA, LSSGB Founder and Executive Director, Professional Leadership Academy

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

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

This edition of Focus contains arti-cles 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 that are altogether unique. We know the situation is changing daily, some-times hourly. Your ability to leverage critical information and adjust quick-ly to the shifting reality will test you. During this time of loud voices and dire warnings, during this time of great uncertainty, we want you to know that you are not alone. We are in this with you. MiraMed Global Services cannot cure what ails America, but we stand ready to assist you if you need a special partner during this difficult time. We have solutions from process manage-ment to remote coding and AR services to clinical staffing solutions and so much more. We want to help where we can—even if on a temporary basis. We might be the perfect solution during this difficult period.

Beyond COVID-19, there are still the “normal” issues that health facilities must invariably face. To help you meet these other obligations, we have assem-bled what we believe to be a dynamic slate of articles, written by some of the best thinkers in the industry. They touch on the following topics: Lead-ership Superpowers, Addressing the Provider Shortage Crisis, the New Consumerism’s Impact on Hospitals, Avoiding Compliance Risks, Manag-ing Data Complexity and Privacy, and What to do When You Get Sued. We’re glad to offer you such a wide-ranging and thought-provoking collection of articles, and we want to give a special thanks to our esteemed authors. We hope you enjoy this issue, and please feel free to contact us at info@miramedgs.com if you have a comment or are interested in provid-

ing an article for an upcoming edition. With that, we at MiraMed extend to you our best wishes for your safety and prosperity.

Best wishes to all,

Tony MiraCEO and Founder

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Five Creative Ideas to Address the Global Talent Shortage

Chris GardnerCo-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.

Tip #1: Meaningful Work is Valued

Today’s candidates value meaningful work, and studies show that this is even more important than money. A recent study conducted by BetterUp surveyed over 2,000 professionals and found that nine out of 10 employees “are willing to trade a percentage of their lifetime earn-ings for greater meaning at work.” Respondents even put a number on this meaning, stating that “they’d be willing to forego 23 percent of their entire future lifetime earnings in order to have a job that was always meaningful” (Harvard Business Review, Anchor, et al.). Oppor-tunities for meaning in a work environment taps into employees’ intrin-sic motivation and leads to extra hours worked and increased job satisfaction.

As hiring managers advertise posi-tions and conduct interviews, they should tap into what is meaningful about the position—why it matters to the company, why it matters to the team, and why it matters to the industry and beyond.

Tip #2: Job Description Includes Transferrable Skills

Get creative with individual job descriptions. Are you posting descrip-tions that turn candidates off? Candidates want progressive work environments, to include market-value compensation and flexibility. Could job descriptions change to include candidates with transferrable skills outside the industry, like communi-cation, leadership and organization? These candidates are often overlooked, but with a little training, could become huge assets.

Could the position be described as a long-term project vs. a full-time position? This is a great way to entice a solid candi-date without making a huge commitment for either party.

Tip #3: Social Media is a Power-ful Tool

Most places of business use social media in marketing, but how often are these platforms used in hiring? With the influx of Generation Zers to the job market, social media should be a big part of any recruiting plan. A full social media hiring strategy should include strategic ways to advertise positions on the company website, on business LinkedIn pages, Facebook pages and Twitter, along with the use of targeted career search sites. Today’s most popular job search

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Examples of leaders that we use in the class, include:

• Toby Cosgrove, MD, former pres-ident and CEO of the Cleveland Clinic. Cosgrove is a very hum-ble person. He doesn’t take credit for his organization’s success but gives all the credit to the people who work with him.

• Laura Forese, MD, chief operating officer with New York-Presbyteri-an. Forese is a strong proponent of coaching and mentoring with people both inside and outside of her organization.

I consider my superpower to be empathy. I like to connect and build relationships with the people I work with and the people I meet.

The Significance of the Origin Story

In addition to discovering and mastering their superpowers, superheroes also have an origin story. For example:

• Superman came from the planet Krypton, which has a higher level of gravity than Earth and thus al-lows him to fly despite Earth’s gravity. Our yellow sun gives him superhuman strength.

• Spider-Man was bitten by a radio-active spider, which gave him the ability to walk on walls and pro-vided him with heightened senses. At a young age, he had to cope with the death of his uncle.

• Batman witnessed his parents be-ing killed in a mugging, an event that eventually turned him into a vigilante with great fighting skills and stealthy movement.

Just like superheroes, all leaders have a leadership origin story—usually, a

defining moment in their lives that helped shape them into the leader they became. It could be overcoming a chal-lenging situation, meeting a mentor or even coping with a tragedy. Knowing your leadership origin story is important because it defines you as a leader and directly impacts how you lead. This knowledge helps you under-stand your underlying beliefs and how you influence decisions, guide problem-solving and drive behavior across seemingly unrelated situations. No one story completely defines a leader, but here are a couple of leadership origin stories I’ve found interesting in my interviews:

• Dave Raymond, founder of Sweet Baby Ray’s (SBR) barbecue sauce, grew up in a tough neighborhood in Chicago. His resilience helped him take a $2,000 investment and turn it into a market-leading prod-uct. Now owned by Ken’s Foods, SBR has a higher market share than its next four competitors com-bined, while Raymond still owns the catering portion of the business.

• Chris Van Gorder, CEO of Scripps Health, was working as a security guard at a hospital when he saw the CEO walking in his direction. He stood up straight and got ready to shake the man’s hand and say hello, but the CEO walked right past him like he wasn’t even there. Van Gorder decided that if he ever rose to a leadership position, he would treat his people differently, and he has lived up to that pledge.

My leadership origin story is similar. I was a tall, skinny, nerdy high school kid (before nerds were cool), but I didn’t let teasing by other students define me. I was determined to follow my own path and refused to let what others said be my truth.

Today, I treat people with respect and make sure I get to know co-workers by listening carefully to what they say and don’t say. This approach has helped me become the empathetic and effective leader I am today. What are your leadership superpowers? Start the discovery journey with 50% off our Leadership IMPACT Assessment using the code ‘miramed02’ at proleadershipacademy.com/assessment.

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

J. Bryan Bennett, MBA, CPL, CPA, LSSGB is the Founder and Execu-tive Director of the Professional Leader-ship Academy, an organization dedicat-ed to delivering a personalized, adaptable and measurable approach to leadership development based on the innovative Professional Leadership Process™ detailed in his books. He is a highly requested international speaker on the subjects of healthcare transformation, leadership, healthcare analytics and customer management. He is a course developer and adjunct instruc-tor for Northwestern University and Judson University where he develops and teaches domestic and international courses in analytics, leadership and marketing. His presentations are engaging and witty as he challenges his audiences to think in different ways to reach better solutions. He is the author of the books Prescrib-ing Leadership in Healthcare: Curing the Challenges Facing Today’s Healthcare Leaders and Competing on Healthcare Analytics: The Foundational Approach to Population Health Analytics. Gartner, Inc. has recognized his visionary customer relationship manage-ment work and his academic study was published in Capco’s Journal of Financial Transformation. He has a Master of Business Adminis-tration from the Northwestern University Kellogg School of Management and a Bachelor degree from Butler University. He is a Certified Lean Six Sigma Green Belt, Certified Data Scientist, Certified Professional Leader and Certified Adjunct Faculty Educator. He can be reached at bbennett@proleadershipacademy.com.

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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 natu-rally want to bring others into the fold. Testimonials from current employ-ees about why they chose the company and how they are having success is an excellent way to attract new hires. Creative and fun networking events that current employees can attend along with candidates can offer living testimonials. Depending on the situation, current employees may also want to share company news and postings on personal LinkedIn pages.

Tip #5: In-House Promotion/Training

There is nothing better than training someone who already has company expe-rience. Promote from within. Build on employees’ current knowledge by cross-training with other employees. “Focus on upskilling new and current employees, because finding talent with the skills you need will only grow harder and harder” (McLaren, business.linkedin.com).

Ideas for in-house training include mentoring programs, apprenticeships, training seminars or incentives for self-guided learning. Let Artemis Consultants help you get creative! We offer professional recruiting strategies to help you attract and hire your ideal candidate.

Five Creative Ideas to Address the Global Talent ShortageContinued from page 3

Chris Gardner is the Co-Founder & CEO of Artemis Consul-tants. He is original-ly from Wheeling, West Virginia and has called Columbus home s ince 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 chris.gardner@artemisconsultants.net.

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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 profes-sionals 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 sectors, revealed that consumerism will be one of the primary forces shaping the future of medicine. Without question, patients with high deductible plans (HDP) and increased out-of-pocket expenses bear more financial responsibility for their own healthcare. As a byproduct, they are demanding more of their providers. Patients are transforming into what tradi-tion has known as healthcare payers who are actively searching for the most conve-nient, lowest cost and best value regarding their care.

Why Some are Losing Ground

There are three reasons why today’s providers lose revenue: governance, reim-bursement and cost. These are outlined in a bit more detail below:

• Governance—that is, medical group leadership—can be critical in determining the profitability of providers, but there are minefields to overcome. Group presidents and administrators are faced with the challenges of branding, internal turf issues, risk aversion and prioritiza-tion of practice parameters; and we are just recently grasping the con-cept of consumer appreciation.

• Reimbursement models continue to change to bundled payments, value-based care, telemedicine, population health and wellness. Again, provid-ers are now having to take into consideration the “patient control element” as a further component in the overall financial equation.

• The third reason for revenue loss is cost. That can come in the form of

human capital, technology, regula-tory compliance, administrative requirements or even the mentality that third-party support amounts to “vendors and not partners.” It’s a fact that consumerism has a cost and is difficult to measure in healthcare with a return on investments. Did you know that 30 percent of pa-tients do not return for care due to price, billing or lack of convenience?

Here are some simple facts to consider as we move into this new era of health-care delivery:

1. The top three provider/patient leadership trends are: healthcare industry consolidation, telehealth, and consumerism.

2. Eleven billion is spent annually reworking denials/appeals.

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 neigh-borhood clinics and health IT tools. “It’s no surprise that industry consol-idation is top-of-mind for healthcare professionals,” said Jason Krantz, CEO of Definitive Healthcare. “As the industry continues to evolve and shift, and health systems and Integrated Delivery Networks increase in complexity, all participants in the industry need to stay abreast of what’s happening in order to make the best stra-tegic decisions for their businesses.” Telehealth was likewise ranked as a top healthcare industry trend, with 13.8 percent of respondents reporting such. Telehealth has the ability to connect patients to care in a more convenient way, allowing them to meet with providers from their own homes or from a clinic or hospital that is more centrally located. Patients, too, value the use of tele-health in the changing healthcare market, according to a previous Definitive HC report. A 2017 survey conducted by HIMSS Analytics, recently acquired by Definitive, revealed that 70 percent of patients would prefer a telehealth visit over an in-person visit.

Falling Short of Expectations

Although healthcare consumerism is viewed as a key industry trend, hospitals and clinics are falling short of serving patients.

The Ninth Annual Report regarding Trends in Healthcare Payments from InstaMed revealed that healthcare

organizations are slipping on providing a positive consumer experience. Although healthcare consumerism is viewed as a key industry trend, hospitals and clinics are falling short of serving patients, separate reports state. The Trends in Healthcare Payments Ninth Annual Report from InstaMed revealed that healthcare organizations are slipping on providing a positive consumer experience. As more patients assume financial responsibility for their care, organizations are still hosting consumer experiences that neglect price transparency and patient-centered billing. Seventy percent of patient respon-dents said their medical bill was confusing, while another 93 percent did not expect their medical bill. Sixty-one percent of patients received a bill they did not believe would be so high, while 50 percent received bills they did not expect at all. A total of 24 percent of patients were sent to collections. “Very few consumers have been left unburdened by the increases in payment responsibility,” the report noted. “The trends in healthcare payments show no signs of the increases slowing down. As the majority of consumers owe something for their medical visits and health plan premiums, consumer choice will be king — as it is in most other industries.”

These pitfalls suggest a more pa-tient- and consumer-centric approach is required. As healthcare consumerism continues to be a key industry trend, organizations must focus on both the elements that will make for a better care experience, as well as a better consumer experience.

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Lyman G. Sornberger, President and CEO for LGS Health Care and Chief Strategy Off icer for Capio Partners. Prior to his roles at LGS Health-c a r e a n d C a p i o Partners, Sornberger was the Executive Director of Revenue Cycle Management for Cleveland Clinic Health Systems (CCHS) from 2006 – 2012. This role comprised the Revenue Cycle Management for all 11 Cleveland Clinic Health Systems Ohio and Florida Hos-pitals and 1,800 Foundation Physicians. His responsibilities included all CCHS Patient Access Services, Health Informa-tion Management and Billing. Prior to his affiliation with CCHS Mr. Sornberg-er was with the University of Pittsburgh Medical Center for 22 years as a leader in revenue cycle management. Sornberger is a graduate from the University of Pitts-burgh with a BS and a Masters Degree in Business. He can be reached at 216-337-4472 or lyman.sornberger@aol.com.

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You Have Enough Problems. Why Buy Compliance Risk?

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

In his 1796 farewell address, presi-dent 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 compli-ance 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 busi-ness, whether for-profit or nonprofit, is becoming tougher each year. Hospitals located in large urban areas face competition from their compet-itors in the market. Hospitals in rural areas face climbing costs that outstrip reimbursement. And all hospitals, in whatever setting, face the new reality that any case that can be performed on an outpatient basis will, today, or in the very near future, be performed in a freestanding ambula-tory surgery center and not on an inpatient basis or even on an outpatient basis in a hospital outpatient department. As technology advances and as the safety of procedures in the ASC setting increases, more and more procedures are being added to Medicare’s list of approved outpatient surgery center procedures. Because many, if not all, private payers follow Medicare’s lead on this, private payers, too, are pushing procedures out to

ASCs because reimbursement is much lower and because outcomes are much greater: less chance of infection, more efficiency and happier patients paying lower copays and having much better patient care experiences. Among the strategies that hospitals are engaging in to counter these threats are the aggressive recruitment of “star” physicians/medical groups with signifi-cant referral and patient bases [addressing the issue of competition by other hospi-tals], and the pursuit of investments in either existing, or planned, physician-owned ASCs [an “if you can’t beat them, join them” strategy] to at least share in what would otherwise be business lost to the hospital. Although the universe of compli-ance issues in connection with either strategy is broad and expanding, this article focuses on the need for hospitals to

avoid Anti-Kickback Statute (AKS) liability as a result of physician-to-physi-cian dealings that are essentially self-created when recruiting physicians under the first strategy, or purchased (for real, hard cash) when buying an interest in physician owned or co-owned facility, whether a physician-owned hospital or an ASC. We’ll use two real-life situations as avatars for your avoidance.

Creating Kickback Situations When Recruiting Physicians

Consider the following set of facts.Prior to the 2010 recruiting efforts that led to the creation of the compliance issue, an anesthesia group held the exclu-sive contract to provide all anesthesia services at a hospital that we’ll refer to using the fictitious name “St. Marks.”

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In late 2010, a psychiatry group with a practice centering on performing ECT procedures relocated to St. Marks. “Dr. X,” board-certified in both psychiatry and anesthesiology, was one of the owners of the psychiatry group. In 2011, the anesthesia group began negotiating with St. Marks for the renewal of its exclusive contract. St. Marks demanded an initial carve out from the scope of the exclusive contract: Dr. X would be allowed to independently provide anesthesia services to ECT patients. The following year, when negotiat-ing the 2012 renewal, St. Marks demanded amendments to the carve-out provision. Among the expanded carve-outs, Dr. X would be allowed to provide anesthesia services to ECT patients, and the anesthesia group would be required to provide coverage for Dr. X. And, pursuant to what was called the “Additional Anesthesiologist Provision,” the psychiatry group would determine if an additional anesthesiologist was needed for ECT anesthesia. If so, the anesthesia group would negotiate with the psychia-try group to provide those services. If the anesthesia group and the psychiatry group did not agree on terms, the psychi-atry group or Dr. X could contract with an additional anesthesiologist.

Subsequently, the psychiatry group informed the anesthesia group that an additional anesthesiologist was needed. The parties began negotiating and arrived at a proposed contractual arrangement under which the anesthesia group would provide the additional ECT anesthesia services. The anesthesia group would reassign to the psychiatry group its right to bill and collect for the services. The psychiatry group would pay the anesthe-sia group a per diem rate. The psychiatry group would retain the difference between the amount collected and the per diem rate. Before finalizing the deal, the anes-thesia group presented the proposed arrangement to the Office of Inspector General of the U.S. Department of Health and Human Services (OIG) for an advisory opinion, which resulted in the issuance of Advisory Opinion 13-15. [Author’s Note: I represented the anesthe-sia group in its request for Advisory Opinion 13-15.]

The OIG’s Analysis

The OIG has stated on numerous occasions that the opportunity to gener-ate a fee could constitute illegal remuneration under the AKS even if no payment is made for a referral. Under the

proposed arrangement, the psychiatry group would have the opportunity to generate a fee equal to the difference between the amount it would bill and collect and the per diem rate paid to the anesthesiologists. The OIG found that the proposed arrangement would not qualify for protection under the AKS’s safe harbor for personal services and management contracts. Those safe harbors protect only payments made by a principal (here, the psychiatry group) to an agent (here, the anesthesia group). No safe harbor would protect the remuneration the anesthesia group would provide to the psychiatry group by way of the discount between the per diem rate their group would receive and the amount that the psychiatry group would collect. Because failure to comply with a safe harbor does not necessarily render an arrangement illegal, the OIG analyzed whether, given the facts, the proposed arrangement would pose no more than a minimal risk under the AKS. The OIG flatly stated that “the proposed arrangement appears to be designed to permit the psychiatry group to do indirectly what it cannot do direct-ly; that is, to receive compensation, in the form of a portion of the anesthesia group’s revenues, in return for the psychiatry group’s referrals of patients to the anes-thesia 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

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You Have Enough Problems. Why Buy Compliance Risk?Continued from page 9

presented previously implicate only the psychiatry group and the anesthesia group, had they entered into the proposed transaction, a hospital in the position of St. Marks could easily be seen to have conspired with the psychiatry group to permit it to obtain remuneration in viola-tion of the AKS. But there are other dangers as well for a hospital in this seemingly physician-to-physician situation: Although not officially within the scope of the opinion, the OIG also stated in Advisory Opinion 13-15 that it could not exclude the possibility that (i) the hospital pushed for the carve out to reward the psychiatry group for its referrals of patients to the hospital and that, (ii) the hospital leveraged its control over anesthe-sia referrals to induce the anesthesia group to agree to the carve out. In other words, the OIG points out that there are significant stand-alone AKS compliance issues for a hospital in the position of St. Marks. Note well that there’s nothing in Advisory Opinion 13-15 that limits its warnings to dealings in connection with

the recruitment of ECT performing psychiatry groups and the impact on anesthesia groups. The warning applies to any situation in which a hospital enters into an arrange-ment under which it can be seen as rewarding a physician or medical group with contract rights (or freedom from existing contract rights in favor of a third party) in return for referrals.

Buying Kickback Situations When Acquiring Interests in Physician-Owned Facilities

Tenet Healthcare Corporation’s quarterly report for the period ended September 30, 2019, indicates that it’s in the process of settling a whistleblower suit involving, among other serious alle-gations, that it participated in a so-called “company model of anesthesia services” scheme. That’s an arrangement in which, roughly speaking, the surgeons working at a facility, usually owners of the facility, and perhaps the facility itself, own the entity providing anesthesia services.

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 Partners, Inc. (USPI). Among other things, the lawsuit alleges that SOS and other defendants, including USPI, entered into an anesthe-sia company scheme under which they formed and operated an entity called Anesthesia Partners of Oklahoma, LLC, to which OCOM granted the exclusive anesthesia contract. The complaint alleges that, as a result, anesthesia company profits were distributed to those owners in a manner directly related to the volume and value of referrals by the SOS surgeons.Subsequent to the commencement of the alleged illegalities, Tenet Healthcare acquired majority ownership of USPI and was thus drawn into the fray. Stated differently, it appears as if Tenet essen-tially bought the problem when it acquired USPI, the co-owner of OCOM. Although it must be stressed that Tenet is in the process of settling the case, certainly without any admission of liability, $66 million is no small chunk of change. A similar amount could destroy many facilities, including many already fragile community hospitals.

Takeaways for You

1. Hospital executives often wonder, after the fact, of course, why their attor-neys 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 told them the structure was OK, so it is OK”), they also suffer from fear of losing the client or, even worse, of malpractice liability (e.g., “we told them the structure was OK, so it has to be OK and we’re never going to agree that it’s not”). Just as the first thing to do when you find yourself in a hole is to stop digging, the first thing to do when considering a fact situation that presents significant compliance concern is to bring in special counsel not dependent on saying “yes” to retain your business. In like manner, if a third party points out a potential problem with an already existing arrangement, it only makes sense to bring in different counsel to advise you on the situation, not

the firm that structured the arrangement in the first place. 2. Even if your hospital or health system doesn’t profit from a questionable deal between physicians, permitting it to occur within your facility (e.g., giving a carveout from an exclusive contract, or even granting an exclusive contract) can pull you into the mess. For example, granting a gastroenter-ology group the right to bring its captive anesthesia providers into your facility can be seen as conspiring with the gastroen-terologists to violate the AKS as to the inherent discount in the relationship between the anesthesia providers and the gastroenterologist owners. Separately, the arrangement itself can be interpreted as a kickback from the hospital to the gastro-enterologists. In addition, if the “favor” for the gastroenterologists is a carve out from an exclusive contract with a third-party anesthesia group, then the contract rights themselves can constitute illegal remuneration in violation of the AKS. 3. Investigate, then investigate some more, before your hospital invests in another facility, especially one that’s physician-owned. Due diligence in connection with any proposed transac-tion must include a deep dive into the relationships between providers, which

might not be readily apparent, and which might “live” outside the four walls of the facility, in addition to the usual review of relationships between the target facility and the providers. 4. And, last, on a personal level, per-sonal for you, that is, note that OCOM’s CEO, Michael Kinsey, a USPI employee, and its former CEO, Steve Hendley, also a USPI employee, were personally named as additional defendants in the Oklahoma whistleblower lawsuit. Only time will tell if those USPI “suits” are hung out to dry.

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Mark F. Weiss, JD, is an attorney who spe-cializes in the busi-ness and legal issues affecting physicians and physician groups on a national basis. He served as a clinical assistant professor of anesthesiology at USC Keck School of Medicine and practices with The Mark F. Weiss Law Firm, a firm with offices in Dallas, Texas and Los Angeles and Santa Barbara, California, representing clients across the country. He is also the co-founder of a healthcare mergers and ac-quisitions advisory firm, Steering Advi-sors. He can be reached by email at markweiss@advisorylawgroup.com or at markweiss@steeringadvisors.com.

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Managing Data Privacy Complexity by Creating a Privacy Culture

Candace Bonnis, CHC, CHPCHealthcare 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 informa-tion. However, healthcare organizations must be careful to assume these excep-tions apply to all information collected within their organization. With each new, privacy-focused law, you may find that your obligation to meet data privacy requirements has rapidly expanded beyond HIPAA. And as with every new piece of legislation, the applica-tion of the laws and regulations will continue to evolve with each enforcement action. As each new data privacy standard is implemented, the most challenging problem will be managing the complexi-ties each adaption brings to the table. Primarily, this means privacy standards are not only significant for technical experts and industry specialists. They matter to everyone. The best way to combat the ever-changing privacy environment is to make privacy part of your everyday culture.

Creating a privacy culture means not settling for bare minimum compliance, but instilling an organization-wide commitment to privacy in any organiza-tional decision. This approach not only reduces complexity and costs, but also protects your organization’s reputation by meeting patient, employee and societal expectations. If your organization is client-driven, a privacy culture can help to address contractual obligations around patient and data privacy, not just the legal ones. So what’s the recipe for establishing a privacy culture focused on driving align-ment and bettering business outcomes all around? The priorities and details will vary from organization to organization, but you should consider a few basic, structural elements.

People

Like your organization’s culture as a whole, a culture focused on data privacy begins with people, starting with top leadership and trickling through all levels. Aside from your designated privacy compliance team, your organization will benefit from having a group of leaders dedicated to setting priorities and making recommendations around data privacy. This might include evaluating new laws and business processes, planning activi-ties for privacy awareness weeks, or analyzing privacy trends and reported concerns within the organization. Senior leaders and privacy officers aren’t the only ones who can drive a privacy culture. Get individuals at all levels in the organization involved by

1 https://unctad.org/en/Pages/DTL/STI_and_ICTs/ICT4D-Legislation/eCom-Data-Protection-Laws.aspx

designating “privacy champions.” Privacy champions serve as a beacon for other employees and lead by example. They can assist by serving as the privacy team’s eyes and ears, as well as intake questions and report concerns.

Master the Essentials

After you’ve designated your privacy leaders, focus on mastering the essentials. While healthcare organizations have had an obligation to maintain privacy programs for decades, you should analyze your current state. Consider refreshed training, policies and breach response protocol that raises your employee awareness to data privacy requirements beyond HIPAA. Data mapping is another essential that should not be ignored. Organiza-tions are required to understand what data types you collect, where you store it, who processes it, where the access points are and what your data retention practices are. This can be a challenge for large healthcare organizations managing a myriad of locations and patient, employee and vendor information. Using tools and existing business processes should make this challenge easier to digest.

Business Integration

Building a privacy culture doesn’t have to start from the ground up. You’ll gain support and find success by integrat-ing your privacy program within existing business processes. Some examples to consider for your own organization are:

• Use a standard questionnaire dur-ing new business development initiatives to understand the per-sonal information that will be collected and used in the project so that privacy issues can be identi-fied at the conceptual stage.

• Work with project managers to demonstrate value of “privacy by design” and imbed formal re-quirements for privacy risk assessments within project man-agement deliverables.

• Streamline contracting processes by supplying the contracts teams with standard list of privacy require-ments, and work collaboratively to develop standard contract clauses.

• Tap into your organization’s al-ready-defined incident response processes. Your employees will be familiar with the protocols and will know exactly what to do if a privacy incident arises.

• Set accountability and define mea-sures of success for performance improvement. Be sure to report regularly using existing perfor-mance measurements.

Tools

To help you set the foundation of your privacy program, the National Institute of Standards and Technology (NIST) have published their long-awaited Privacy Framework, version 1.0.2 Released in January 2020 and akin to NIST’s Cyberse-curity Framework, the Privacy Framework is a voluntary tool that can help your organi-zation manage privacy risks and demonstrate compliance with applicable laws. The tool has received strong support from privacy professionals because it provides a useful set of privacy protection strategies for organizations to improve their approach to using and protecting

personal data. You can use this tool to help identify the privacy outcomes your organi-zation wants to achieve and then prioritize the actions needed to do so while carefully maintaining the balance between business innovation and data protection. Finally, and perhaps most important-ly, you should view these strategies with a “rinse and repeat” mindset. Cultures are not created in an instant. They de-velop over time, nurtured by leaders and influenced by the environment in which they live. Often, a culture change clashes with an existing, hard-to-change culture. Stay strong and keep pushing. Privacy specialists expect the requirements and complexities of privacy legislation to grow, and imbedding privacy practices within your organization’s business pro-cesses now will sharpen and help shape your privacy culture for the future. Soon, you’ll notice a culture where data privacy is not an afterthought, but top of mind for everyone across your organization.

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Candace Bonnis, CHC, CHPC, is a skilled Compliance and Privacy Officer and has more than a decade of healthcare experience with an operational and compli ance back-ground and a special focus on data privacy. Her history in the industry includes serving as Vice President, Compliance and Privacy, for MiraMed Global Services as well as Vice President of Compliance for Concerto Health, a complex integrated healthcare model based in Aliso Viejo, CA. Candace also held multiple roles with increasing responsibilities for the CommuniCare Family of Companies in Cincinnati, Ohio where she played a key role in supporting litigation, compliance, and privacy oversight activities for 40+ care centers spanning four states. Candace is a graduate of the Ohio State University, a member of the Health Care Compliance Association, and holds active certifications in Healthcare Compli ance and Healthcare Privacy Compliance. She can be reached at cjbonnis@gmail.com.

2 https://www.nist.gov/privacy-framework

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

Christopher J. RyanDickinson 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 pounding. Alarm bells in the back of your head ring out of control. What should you do, and more importantly, what should you not do? This article will outline some of the actions you should consider taking, and just as importantly will outline some actions that many people are tempted to take but almost certainly should not. Don’t Play Ostrich. When faced with danger, some ostriches bury their heads in the sand so they do not have to face the danger. Believe it or not, many humans do something similar when served with a lawsuit. This author has seen very successful and very intelligent business-men, physicians and even law firms who, after being served with legal process, stick the documents in a drawer and pretend they do not exist. But a lawsuit will not go away simply by disregarding it. Ignoring a lawsuit only makes a tough situation worse. In most jurisdictions, an

individual served with a lawsuit must file a formal response within a certain amount of time (generally a few weeks or slightly more). The “clock starts ticking” on your deadline to file a response when you are served with the papers. If you fail to file a response because you stuck the lawsuit in your desk drawer, it may mean that you forfeit the right to put up a defense to the suit or to dispute the allegations in the lawsuit. The court may simply enter a judgment against you for the amount demanded in the suit. Even if you ignore the suit for a few weeks but act on it before the deadline expires, you have just cost yourself precious time to start gathering documents and formulating your response. Do Think About Insurance. There are many reasons you could be sued. Physicians are sued for malpractice with increasing regularity (for many special-ties, the question is not if they will be sued, but when) and lawsuits between businesses is often seen as a cost of doing

business. Individuals may be sued for any number of reasons: perhaps six months ago they got into a fender bender, they forgot to pay a bill, or because a tree on their land is overhanging onto their neigh-bor’s property. Whatever the reason, it is very possible that you have insurance to not only cover a judgment, but to pay for your legal fees along the way. Some insur-ance policies are obvious (think auto, boat, home and malpractice). But what those policies cover may surprise you. For example, your homeowner’s policy may be broader than you think. Your malpractice policy may provide you with an attorney if you are subpoenaed to give testimony, even if there is no claim that you did anything wrong. If you are not sure whether you have any insurance policies that apply, call your agent or your insurance company, or ask an attorney. Don’t Alter Records. Don’t Alter Records. It’s not a typo. It appears twice because it is that important.

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 malprac-tice 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 involvement or to determine whether you were even involved at all. But resist the temptation, and under no circumstances should you alter the records. There are many reasons not to alter records. Depending on the jurisdiction and type of record, odds are altering records is illegal and could subject you to civil or criminal penalties. In addition, altering records makes you look dishonest even if your alteration is accurate and well intentioned. For example, you may be tempted to add entries that you may have forgotten to put in the record in the first place. Or perhaps you see something in your records that you no longer believe is accurate. Do not make any changes, and do not delete or destroy the records. Instead, talk to your attorney about your specific situation. Explain your concerns and work with her or him in order to convey full and complete information. Do Preserve Records. Increasingly, jurisdictions are imposing an affirmative duty upon participants in a lawsuit to preserve data and records, including elec-tronically stored information. In the healthcare context, most people associate electronically stored information with the electronic medical record. While electron-ically stored information certainly includes the medical record, it may be broader than that. Emails, text messages, pictures or other types of electronically stored infor-mation may be relevant to the case.

Most organizations have retention policies in place, but given that a lawsuit may be filed years after the conduct at issue, it is important to make sure that informa-tion is not purged (even inadvertently) after notice of the lawsuit is received. If neces-sary, discuss your retention policies with your lawyer and ensure that information relating to the lawsuit is exempted from routine periodic destruction/shredding. Don’t Discuss the Lawsuit. It is quite natural, especially among health-care providers, to discuss adverse outcomes. Many states encourage open and frank discussions about adverse outcomes in order to reduce morbidity and mortality and improve patient care. For that reason, many jurisdictions protect information gathered by a peer review entity from disclosure in a subse-quent litigation. However, after a lawsuit is filed, if meetings are held to discuss the lawsuit, the information discussed at the meeting may very well be discoverable by the opposing party. Even if the purpose of the meeting is above board, the opposi-tion may try to argue that you held the meeting to get your story straight or cover something up. Your attorney will be able to help you navigate when and with whom it is okay to discuss the lawsuit, and to preserve all available privileges. Do Contact a Lawyer. Whether you contact a lawyer through your insur-ance company or on your own, it is recommended that you consult an attor-

ney as early as possible after being served with legal process. As indicated, there are usually deadlines requiring you to respond to most legal process, and the longer you wait to contact an attorney, the less amount of time the attorney has to prepare and file an appropriate response. If your insurance company hires a lawyer to represent you, consider whether you need personal counsel. Most insur-ance companies hire good attorneys, and the attorneys are hired to look out for your best interests. However, if you feel you need to retain your own personal attorney, you should do so. Don’t Let the Lawsuit Define You. Lawsuits can be extremely stressful. Although you should respect the legal process and give the lawsuit the attention it deserves, avoid letting it define you. For some, this is easier said than done. Discuss your stress level with your attorney, and seek professional medical/mental health assistance if you need it.

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Christopher J. Ryan is an attorney and Of Counsel at Dickinson Wright PLLC. He is an experienced litiga-tor who has spent most of his career represent-ing individuals and businesses involved in the healthcare industry. Chris can be con-tacted at cryan@dickinsonwright.com.

MiraMed Global Services, Inc.255 West Michigan AvenueJackson, MI 49201517-787-7432www.MiraMedGS.com

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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.