Four Legal Lessons From COVID for Medical Practices

Ericka L. Adler, JD


January 18, 2022

For almost 2 years, healthcare practices and many other businesses have struggled to adapt and survive in the face of COVID-19.

As a lawyer who works extensively with physician practices and other healthcare entities, I'd like to share some important lessons learned as a result of the pandemic.

Seek Out Knowledgeable Advisors

Many practices, even those of substantial size, do not have knowledgeable advisors to turn to in a time of need. Whether it was seeking out PPP funds or obtaining guidance on handling employment issues, OSHA compliance, or sick leave, many practices scrambled to find meaningful and expert support. By the time some clients found the help they needed, they had missed loan application deadlines, already acted on poor legal advice, or even violated the law.

Physician practices and other healthcare businesses must develop relationships with experienced and qualified financial and legal advisors. In addition to being available and helpful in a time of crisis, there may be guidance from which they could benefit even during quieter times.

Handle Human Resources Issues Properly

Too many practices lack a single employee trained and knowledgeable about handling HR matters. The pandemic introduced a variety of employment issues all at once: layoffs, furloughs, unemployment claims, COVID testing requirements, mask-wearing, vaccination policies, and similar issues.

Employers unfamiliar with the law did not know how to accommodate or inquire about illness or disability and may have engaged in conduct which was inappropriate or illegal. Other employers failed to manage employees whose work conduct was unprofessional (COVID-inspired) or didn't properly respond to claims of a hostile work environment created as a result. The lack of proper handling of such workplace scenarios has led to legal claims and litigation against practices and other businesses across the country.

Training staff members and business owners to handle basic HR issues is advisable, especially if a relationship with counsel is not firmly established. All employers should also make sure they have appropriate insurance in place to cover employment claims.

Track Down Your Contracts

A lot of businesses have no idea if they have (or they cannot locate) contracts for their employees and contractors. Even worse, they do not understand what the documents require. Improper modification and termination of contracts during the pandemic has led to a multitude of employment claims for wrongful termination and breach, which could easily (and less expensively) have been avoided by following the contract(s).

Businesses should understand the contracts they have in place and, going forward, revise and/or draft new contracts that take into account the lessons learned during the pandemic.

Many new contracts being prepared at this time include provisions such as the employer’s right to immediate termination for unexpected events like a pandemic or war (sometimes called force majeure provisions); a unilateral right by the employer to adjust schedule, location, and compensation of a worker; and even requirements that an employee be vaccinated in order to commence work.

Cross-Train Nonclinical Duties

There is a lack of cross-training in many businesses. Healthcare practices often cross-train clinically but do not think of the other roles as important. Are there multiple people that can handle billing, payments, contracting, payroll, etc.? The pandemic layoffs, illness, and other factors left many businesses unable to function when the individual who typically handled the role was unavailable.

There are many reasons to cross-train staff. Certainly, making sure that there is coverage and knowledge for every role is key. But cross-training also is important to limit the potential for fraud in the practice by assuring that there is never one person with excessive control or knowledge, particularly over financial functions of the practice.

There were many important lessons learned as a result of the pandemic. Some were operational and many were legal, but all can be addressed through proper planning and advice. Though we do not expect a repeat of the pandemic, there is no doubt that the pandemic exposed cracks and weaknesses in every business, which can and should be addressed.

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About Ericka Adler
Ericka L. Adler, JD, is a shareholder and health law practice group manager for Chicago-based law firm Roetzel. She has nearly 25 years representing individual providers, physician groups, and other healthcare entities, focusing on regulatory and transactional healthcare law. Adler is also skilled in compliance counseling, handling mergers, sales and acquisitions of healthcare entities, and has deep experience with Stark, Anti-Kickback Statute, and other challenges facing healthcare professionals.

She also works with providers in HIPAA, fraud and abuse, billing audits, government investigations, and contract disputes.

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