Answered Questions about Managing Risk

Can a provider moonlight at a cash pay I&FM practice while working at a Medicare-participating practice?

Technically, a provider can work at both a cash pay practice and a Medicare-participating practice, but there are important considerations, such as what services are being provided at the cash pay practice and how the Medicare-participating practice is billing for the provider. These issues are covered in more detail on e3Business’ page Opting Out of Medicare & Moonlighting (CLICK HERE). It is important to be compliant, because providers and practices could be liable for submitting false claims if they are not compliant.

Does a practice or provider have to worry about liability from a sub-lessee? 

A practice’s liability should be separate from a sub-lessee provided that: 1) The sub-lessee is presented as distinct from the practice and 2) The sub-lessee and practice are consistent in their messaging to patients. I&FM services can make this issue tricky because many I&FM services operate independent of physician offices and may not recognize the increased exposure for the practice when the I&FM service becomes a sub-lessee. The sub-lessee should have distinct signage, contacts (phone and email) and, if necessary, staff. All of these steps help to avoid vicarious liability for the practice. For more on vicarious liability, read Question #9 of e3Business’ Medical Malpractice Q&A (CLICK HERE).

It is also important to make sure that the messaging between the sub-lessee and practice is consistent. If the sub-lessee is telling patients that their services cure cancer, (for an extreme example), and the practice continues to refer patients to the sub-lessee, the practice could be drawn into litigation based on the sub-lessee’s statements that the patient believed were supported by the practice.

Does a practice or provider have to worry about liability from selling supplements? 

In general, a provider’s medical malpractice policy should cover the provider from claims related to supplement sales if the provider’s insurance carrier has been made aware that the provider is selling supplements. If the provider’s insurance carrier has not been notified that the provider is selling supplements, any claim related to the supplement sales could theoretically be denied as outside of the policy coverage.

In addition, if the provider or practice are selling supplements from another entity–and not the professional entity employed or contracted with the provider–the provider may not have coverage unless the entity selling supplements was named on the policy.

Finally, be sure to check that practice agreements with supplement companies do not include an indemnification clause that would require the practice to defend the supplement company in the event of a claim related to the provider’s service. Such defense costs arising from a separate agreement are unlikely to be covered by the provider’s malpractice policy.