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1 Employment and Compensation Prepared for the American Academy of Orthopaedic Surgeons Business, Policy, and Practice Management in Orthopaedics Lecture Series By Bonnie Simpson Mason, MD, Kim Boike, Esq., Hasham M. Alvi, MD Objectives 1. To understand the basics of physician employment, including terms and options. 2. To understand the core aspects of compensation, including which compensation model is being used to determine salary and how relative value units (RVUs) are calculated. 3. To understand the key distinctions between employment in private practice and employment in a hospital setting. 4. To review the necessity of keeping a patient log, including diagnosis and procedure codes, from all clinical locations and the importance of comparing this log to the organization s productivity report. Table of Contents 1. Practice Trends 2. Employment Basics Definitions Contracts Locations, Practice Types and Salary 3. Compensation Basics Offers Benefits Calculation 4. Conclusion Key Takeaways 1. More orthopaedic surgeons are joining mid-size group practices. 2. Negotiating an employment contract requires an understanding of key terms with respect to employment and compensation basics. 3. Compensation models, including use of Relative Value Units (RVUs), are evolving.

2 Chapter 1: Practice Trends Health care reform and accountable care organizations (ACOs) along with increasing financial pressures on health care providers have led to increased consolidation across the health care industry. Hospital and health systems have been acquiring physician groups en masse. Despite the trend in consolidation, orthopaedic surgeons have generally resisted the temptation to merge their practices into a hospital or health system. The American Academy of Orthopaedic Surgeons (AAOS) 2011 census 1 shows that the majority of orthopaedic surgeons are in private practice with 44.3% in a private orthopaedic group and 20.9% in private solo practice. However, likely due to increased financial pressures, the proportion of physicians in solo and two-physician practices decreased significantly, from 40.7% in to 32.5% in At the same time, practice sizes have begun to increase in size. 15% report working in groups of 3-5 physicians and 19% practice in midsized, single-specialty groups of 5 to 60 physicians 2. The proportion of physicians with an ownership stake in their practice has declined from 56% to 44% as more physicians opt for employment without the financial risks associated with ownership. 3 For that reason, this chapter offers practical knowledge for contract negotiations, including what to look for when finding and joining a practice or becoming an employee of a hospital or health system. The goal of this chapter is for you to understand the basic terms and options of physician employment, including important aspects of compensation. This includes differentiating between employment terms such as wages vs. salary and employee vs. contractor; defining aspects of compensation, including resources you can use to research average compensation for orthopaedic surgeons across the country; and understanding key metrics and concepts and employment contract terms such as income guarantee, productivity measure, standard compensation offer, line items, average, and typical buy-in agreements. Common employment and compensation arrangements are also discussed. Chapter 2. Contracting Basics As a preliminary matter, it is important to understand that there are two types of relationships that you can have with a hiring organization for which you render services: (1) an independent contractor relationship; or (2) an employment relationship. As an independent contractor, the hiring organization does not withdraw taxes or contribute towards benefits. Examples of contractors are locum tenens and moonlighting positions. Since the hiring organization does not withhold taxes, it is important to speak with an accountant prior to entering into such a relationship, to

3 ensure that you make appropriate arrangements to remit any taxes owed on the compensation you receive. Unless you are starting your own practice or consulting as an independent contractor, most orthopaedic surgeons will take their first position out of training as an employee. Accordingly, the focus of this chapter will be on the key issues of an employment relationship. Location, Practice Types, and Salary Your initial career decisions are often the most important career decisions. In making your initial career decision, the primary decisions you need to make relate to selecting a location and deciding on a practice type that is right for you. Practice types. There are several options available to you with respect to what practice types you may consider joining. These practice types include solo practice, group private practice, academic practice, hospital (non-academic), or large multispecialty group, such as an HMO. When deciding between employment with a private practice versus employment with a hospital, the following are some key differences that you should take into account: Compensation. As you progress in your career, it is natural to assume that your compensation will continue to increase. However, as an employee of a hospital, the hospital is required to pay you no more than fair market value in order to comply with the Stark law [42 U.S.C. 1395nn]. In order to determine fair market value, a hospital will often review compensation surveys to see what other comparable organizations in the area a paying their orthopaedic surgeons. In reviewing compensation offered to you by a hospital, it is important to know how valuable you are to a hospital. Orthopedic surgery is the #3 revenue generator by specialty for a hospital system, grossing $2,117,764 per full-time employee (FTE) surgeon, depending on the market 4. Unlike a hospital, a private practice is not subject to the fair market value restriction. Accordingly, if you become an employee of a private practice and eventually become a shareholder, your compensation can increase with the profitability of the practice and is not subject to a fair market value restriction. Ownership. As an employee of a physician practice, it is fairly standard that you will be offered the opportunity to buy in as a partner after 2-5 years of employment with the practice. Some of the benefits of ownership include increased compensation based on profitability of the practice and the ability to participate in the business making decisions of the practice. As an employee of a hospital, you will not have the opportunity to become an owner. However, if participating in business decisions is important to you, there may be opportunities within the hospital in which you could participate in business decisions, such as performing services under a co-management agreement or acting as a medical director.

4 Location. Selecting a location from which you will practice will depend on a number of factors based, to some extent, on the type of practice you select. For example, you may wish to practice in a small, rural hospital or a large, urban academic center. Or, you may prefer to establish a group practice in your hometown or join a health maintenance organization (HMO) in a specific state. In determining a location in which you wish to practice, you should factor in availability of other types of practices, physician saturation, and patient demographics. In addition, compensation for orthopaedic surgeons varies greatly by location, so it is important to review a compensation survey, which sets forth the compensation range for the location in which you desire to practice. Chapter 3. Employment Contract Once you have decided on the location and practice type, the next things to consider are the terms of the employment agreement offered to you by your prospective employer. Since the employment agreement can have both legal and financial consequences to you, you should understand basic terms of the employment agreement and how to analyze the employment agreement so you can have an informed discussion with your attorney about the employment agreement you are reviewing. The following discusses some of the key items to review and understand in your employment agreement. Please note that compensation will be discussed in detail in Chapter 4. Unlike an independent contractor relationship, as an employee, your employer is responsible for withdrawing and paying federal and state taxes, FICA (Social Security and Medicare) and for funding specific benefits (e.g., malpractice, life, disability and health insurance, worker s compensation, retirement contributions) from each of your paychecks. Insurance Coverage. It is important to understand what type of insurance coverage you are required to have while performing services for your employer, who is responsible for obtaining the insurance coverage and who is responsible for paying for tail coverage, if such tail coverage is required. There are two types of professional liability insurance policies: claims-made insurance and occurrence insurance. Claims-made insurance provides coverage for incidents arising on or after the policy date and which are reported during the term of the policy. Occurrence insurance provides coverage for incidents arising on or after the policy date and through the term of the policy- regardless of when those claims are reported. Occurrence insurance is more expensive than claims-made insurance, so it is typical that coverage from your employer is provided on a claims-made basis. In the event insurance is provided on a claims-made basis, it is typical for the employment agreement to require that upon termination of the agreement that a tail policy (also called an extended reporting endorsement ) is purchased. A tail policy provides coverage for incidents that are reported to an insurer beyond the original policy

5 termination date. Tail policies can be expensive, and it is important to understand whether you or your employer will pay for such cost. The following is an example of a tail policy provision in a physician employment agreement that requires the physician to pay for the tail coverage: Physician shall pay the appropriate reporting premium for an unlimited extended reporting endorsement (known as tail coverage ) for medical malpractice insurance carried by Employer on Physician if determined to be necessary by the Board of Directors for medical malpractice coverage after the effective date of termination of this agreement. Physician shall pay to Employer the portion of professional liability insurance paid by Employer on Physician s behalf covering any period after termination. Employer may in its discretion withhold the amount of such premiums or fees from the compensation of Physician and pay it directly to the insurance carrier for such additional or extended periods of insurance coverage as Employer may deem reasonable. Restrictive Covenants. There are generally two types of restrictive covenants: non-competition provisions and non-solicitation provisions. Non-competition provisions generally require that you agree that for a period of time you will not compete with the employer in a specified geographic location. Non-solicitation provisions generally require that you agree that for a period of time you will not solicit your employer s employees, referral sources or patients. The general rule from a legal perspective is that restrictive covenants must be limited in time and scope. With respect to reasonable time limitations, the general rule is that between 0-5 years is enforceable. In addition, the geographic restriction must be reasonable which varies based on the location (rural or urban). The following is an example of a non-competition provision in a physician employment agreement: During the term of this Agreement and for a period of two (2) years after its expiration or termination (the Restricted Period ), Physician shall not, without the written consent of Company, directly or indirectly, as a sole proprietor, partner, employee, shareholder, principal, agent, consultant, manager, member, advisor, director, officer, control person, operator, or in any other capacity or manner whatsoever furnish or supervise the same or similar professional medical services, by any treatment method, for which Physician is or was employed by Company at any location that is within a twenty (20) mile radius of any of the Company s practice sites (the Non- Compete Area ). The following is an example of a non-solicitation provision in a physician employment agreement:

6 During the Restricted Period, Physician shall not, without the prior written approval of Company, directly or indirectly: (a) market or advertise to patients residing in the Non-Compete Area services that would be competitive with Company s business in the Non- Compete Area, regardless of whether such patients are currently patients of Company; or (b) market or advertise to referral sources services that would be competitive with Company s business in the Non-Compete Area, regardless of whether such sources of referrals are currently referral sources of Company. When reviewing restrictive covenant provisions, it is very important to understand how the restrictions will affect you after termination of your employment agreement. Never sign an agreement that contains terms you are not prepared to comply with, especially with respect to restrictive covenants. Litigating the enforceability of restrictive covenants can be very expensive and you may be prohibited from working in the restricted area while the litigation about such restrictive covenant in ongoing, which can often take years. Key Performance Standards. When reviewing your employment agreement, it is important that the performance standards be clearly articulated so both you and your prospective employer have a clear understanding of the commitments you are making under the agreement. The following are some questions that should be clearly set forth in your employment agreement: (1) how many hours per week are you expected to work? (2) how is call coverage divided? (3) how often will I be on call? (4) what locations are you expected to work at? Termination Provisions. It is important to understand how and when your employment agreement can be terminated. There are generally two ways in which an employment agreement can be terminated: for cause or without case. With respect to without cause termination provisions, the following are some questions you should ask yourself when reviewing your employment agreement: (1) is the without cause termination provision mutual or one-sided (i.e. can only the employer terminate the agreement without cause or do you have the right to terminate without cause as well? (2) does the without cause termination provision give you sufficient time to locate new employment? (3) does your restrictive covenant still apply in the event you are terminated without cause? (4) do you have an obligation to purchase tail coverage if you are terminated without cause? With respect to termination for cause, the following are some questions you should ask your self when reviewing your employment agreement: (1) do you have the right to terminate if they violate the agreement? (2) are the reasons that the employer can terminate you for cause clearly stated and objective?

7 Termination of Medical Staff Privileges. Many employment agreements contain a provision that states that your medical staff privileges will automatically terminate upon termination of employment. This is a complete prohibition on your ability to exercise clinical privileges at the hospital after termination of your employment agreement. It is important to carefully review these provisions in your employment agreement to understand the impact they will have on you after your employment agreement terminates. Chapter 4: Compensation Basics This chapter reviews the components of compensation packages, including compensation offers, benefits, and income guarantee. Salary. The highest salary earners among all physicians are orthopaedic surgeons and cardiologists. Mean salaries for orthopaedic surgeons vary according to geography; in rural and smaller populations, mean salary averages may be higher than in more dense and urban areas. According to the 2011 Medscape Physician Survey 5, average salaries for practicing orthopaedic surgeons are $350,000 annually; with 20% earning more than $500,000. For new orthopaedists, average salaries range around $327,000. The AAOS 2011 census found that annual net salaries of practicing orthopaedists aged years was a mean of $484,000 for an average of 62 hours per week; for those ages years, the mean was $438,000 for an average of 60 hours per week. New orthopaedists (i.e., age <40 years) had a mean annual income of $391,000 for an average of 63 hours per week. Definitions Difference between a wage and a salary. A wage is defined as payment for an entry or unskilled position. An employee earning wages receives a set dollar amount per hour and is eligible for overtime. A salary is defined as a set amount over a specified time interval and represents payment for a skilled position or, for those with an advanced degree, for professional or management positions. Salaried employees are not eligible for overtime. 6 Net salary vs. gross salary. Gross salary is the total amount of compensation offered as payment for a position, before tax and benefits income has been withdrawn. Net salary is the amount of compensation that you actually take home after taxes and benefits contributions have been deducted. Therefore, you must understand basic terms and how to analyze the contract so you can have an informed discussion with your attorney about the contract you are reviewing.

8 Offers. When you receive an offer of employment, your employer may offer you base pay; for example, a salary of a set amount over a set time interval, such as $5,000 every 2 weeks; or an income guarantee. As discussed above, it is important to differentiate between gross and net pay; gross pay is likely to include base pay, benefits, and/or bonuses. Bonus pay is pay that is variable; for example, a signing bonus or productivity bonus. A contract separate from your employment contract, known as an income guarantee contract, may be offered 7. Also known as hospital assistance or relocation assistance, common elements of this type of contract include a guarantee of income or collections for 1 or 2 years as well as marketing and relocation expenses, practice management and software, and malpractice insurance. The income guarantee contract imposes a number of conditions to the hospital s ongoing obligations, such as maintaining a full-time practice in the hospital s community, maintaining your medical license, maintaining enrollment in Medicare/Medicaid programs, and maintaining active staff privileges with the hospital. Revenues are measured monthly and the hospital will pay you the balance if monthly revenue target is not reached in the next month (i.e. in arrears). However, this should be considered a monthly LOAN amount, one you will be expected to repay. This hospital payment is not in addition to how much you generate; the guaranteed amount should be a combination of your salary + practice expenses. The total amount will be tabulated at the end of the guarantee period and you will be required to provide an accounting of your billing and collections. Loans are repayable over the term of the contract, usually without interest; however, if there is a breach of contract, the loan comes payable with interest. If the loan is forgiven, this amount is reported to the Internal Revenue Service (IRS) as taxable income on Form Benefits. Benefits offered by your employers may include malpractice insurance as well as life, disability, health, unemployment insurance and worker s compensation. Contributions to retirement plans, such as 401k, and 403b pension funds, may or may not be matched by your employer. Other benefits include administrative leave or time to garner continuing medical education credits, for which fees may or may not be paid. Sick leave, maternity leave, and personal leave are also open to negotiation. Professional dues and license fees may also be paid, and you should also inquire about moving expenses, cell phone plans, meals, and travel, including airfare and/or use of a company car.

9 Calculation. Most new physicians are challenged to understand the compensation models used in various employment situations. To date, volume-based compensation models (i.e., based on the number of patients seen and the amount billed or collected by a physician) have formed the primary basis of most physician compensation models. The Relative Value Unit, or RVU, is used as a measurement of the amount or volume of your work or intensity of your healthcare effort and takes into account relative time, skill and training, and intensity of effort required to care for a patient. RVUs can be increased or decreased based on the complexity of the patient s medical condition. For example, a physician treating a patient with mild osteoarthritis of the knee will be allotted fewer RVUs when compared with treating a patient with moderate to severe osteoarthritis of the knee complicated by a previous intra-articular knee fracture with a history of diabetes and peripheral vascular disease. Treatment of the latter patient obviously requires more work on behalf of the physician; the relative value of the care rendered is higher for this patient (i.e. a higher RVU would be assigned). The Centers for Medicare and Medicaid Services have used RVUs for years to calculate reimbursement payments for provider services and have standard RVU calculation formulas. Additional resources on use of RVUs include the American Medical Association, which has an RVU Calculator, and PedSource/Physician s Computer Company, which offers a RVU Calculator spreadsheet. RVUs are now being used more frequently as the basis of productivity-based compensation models 7, and many physician-employers are moving toward models based on RVUs. However, most practices and employers utilizing an RVU basis of compensation have their own model, and there is no one set formula or standard set of rules in place to calculate RVUs. Make sure that you understand the compensation model, the formula being used, and who is monitoring the RVUs generated within the institution in which you are considering becoming an employee. To date, the issue with most volume-based compensation models is that with increased volume, quality may as a result be often compromised because the physician is forced to see as many patients as possible in a short period of time. Compromised quality in healthcare is unacceptable by both patients and physicians; however, many physicians often feel stuck by the pressure from administrators to see more and more patients in a limited time frame. Physicians know well that building the coveted physician-patient relationship takes time, but more and more physicians are becoming disenchanted by the limited opportunity to build these vital relationships with their patients, which are necessary to render the best patient care possible. Here s how you can stay on top of your RVUs: ask for a monthly report reflecting the number of RVUs that you generated over the month from all sites or, the amount

10 billed based on the number of patients you treated over the past month, if you are under a productivity-based compensation model. If you are starting a practice or becoming a partner in a practice, your second contract will likely be your partnership contract. The details of the partnership should be outlined during your initial negotiations. These details should encompass ownership opportunity, percentage of equity, the formula, and what components of the practice and its assets are parts of the buy-in agreement (e.g., accounts receivable, real estate, equipment). Quality Measures. Yet a third model of compensation has begun to evolve which will impact how physicians are compensated, and that is the integration of Quality Measures. The discussion on improved quality of care with lower costs and higher efficiency are aspects of care now being promoted by the ACA and by hospital systems. Examples of quality measures include: -Administration of pre- or post-operative antibiotics -Hospital length of stay -Patient readmissions post-operatively -Documentation of standards of care Quality measures such as these are now being included in physician employment contracts as yet another component of one s compensation package. Be sure to fully assess all of the components that will form your basis for compensation, including RVUs, Quality Measures, on-call coverage etc., so that you will have a clear understanding and can manage your expectations accordingly. Chapter 4: Conclusion When it comes to taking your first step into the real world of practicing medicine, be sure to identify the key steps to getting started the right way. Namely, consider which type of practice is right for you (i.e., a private practice - small, mid or large number of physicians - or a hospital-based practice, such as an employed position, etc). After deciding on a practice type, consider the regional location specifics of where you are looking to practice (i.e., physician saturation, insurer saturation, patient composition). Completing this due diligence will assist you in identifying practices within regions that may be open to new physician employees. Once you have identified a practice that is right for you and have done your due diligence, understand the key aspects of your first employment contract that are important to you other than compensation (i.e., benefits, liability insurance, leave,

11 etc.). Also, remember that negotiating an employment contract requires an understanding of your complete compensation package. Finally, understand the basis for your compensation, and remember that the various compensation models, including the calculation and reporting of Relative Value Units (RVUs) as well as quality and value-based measures, are evolving.

12 References 1. AAOS Member Census National Study from the Center for Studying Health System Change [HSC], September HSC Health Tracking Physician Survey, orthopaedics Kreager, MK. The Physician Employment Contract. Copyright Merritt and Hawkins, RVU Based Physician Compensation and Productivity Report, 2011.

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