Starting Work Under a Physician Employment Agreement

By Dennis Hursh | Physician Contracts

Jan 16
can't start work

It may seem like an obvious question, but many first drafts are not clear as to the date of starting work under a physician employment agreement. While many physicians may view the first position after training as a reward from the universe for all those years of medical school and beyond, employers have a somewhat different perception. To be blunt, employers hire physicians to generate revenue.

To protect the employer, many physician employment agreements provide a physician start date, but contain conditions that may move that date back. Virtually no employer wants a physician starting work under a physician employment agreement if the physician is not yet licensed to practice medicine in that state, for example. Similarly, few employers want a physician starting work under a physician employment agreement if the physician does not have federal DEA (and state equivalent) authority to prescribe medicine. These requirements are not a problem for most physicians, given the normal timeframe for recruitment and negotiation of physician employment agreements. As long as the physician is reasonably diligent in applying, the DEA and most state boards of medicine will process the application fairly quickly. Expecting a physician to be diligent in applying is hardly an unreasonable request from the employer’s perspective.

Starting Conditions Beyond the Physician’s Control

However, many physician employment agreements also impose starting conditions that are at least partially out of the control of the physician. One very common condition that must be met before starting work under a physician employment agreement is the requirement that the physician obtain hospital privileges and become accepted as a participating provider on major payor panels. Depending on when the physician executes the physician employment agreement and its proposed effective date, this can become an issue.

If the physician is executing a physician employment agreement in November with an assumed start date the following July or August, this condition should not be a problem.

Hospital Credentialing Issues

However, many physician employment agreements are not made final until April or May, with an assumed starting date of July or August. Hospital credentialing moves at a snail’s pace. Most hospitals require “primary verification” of the physician’s training, which means they need an official copy of the physician’s transcript directly from each school, residency, and fellowship program that the physician attended. They may also require a letter from the director of the residency/fellowship program(s). Obtaining those documents may take months.

Once the documents are obtained, and the physician’s file is complete, one or more committees will examine the files; then, they may want more information (elaboration on a less-than-ringing endorsement from the fellowship program director, for example). Although the hospital will have paid staff handling the credentialing file’s organization, physicians who are already on staff in the relevant department will perform much of the credentialing  analysis – and they are frequently not paid for this thankless task. The hospital staff will generally try to avoid imposing on the physicians any more than necessary, so the staff won’t give committee members a credentials packet until the staff feels it is complete. The staff will also schedule meetings to be convenient for committee members.

Although it may be a foreign concept to physicians coming out of training, working physicians engage in a practice called “vacation,” where they frequently hit little balls with expensive sticks at exotic locations. While engaged in this pursuit, these physicians are not available for meetings to look at credentials. Worse, from the new physician’s perspective, there is no “Dean of Vacations” to assure that the physicians all take their vacations at the same time, thereby assuring convenient availability for meetings. Hospital staff members, who are used to working at a glacial pace normally, refer to the summer as a “slow period.” If a physician’s credentials packet lands at the hospital during the summer, it can take months to get it in front of the committee.

As a result of such delays, some physicians with contractual start dates in July, August, or even September find that they have not been granted privileges when they are supposed to start work. The physicians may have moved into town and signed a long-term lease by then, all in anticipation of being employed at the start date. A similar phenomenon can occur with managed-care credentials.

Physician Employment Agreement Provisions

The physician employment agreement provisions regarding what happens if a physician doesn’t obtain hospital and managed-care credentials become critical if the physician finds him or herself in such a position. Physicians need to recognize the employer’s legitimate interest in not being forced to pay a physician when that physician is unable to generate revenue. At the same time, the physician should not be forced to continue in unpaid limbo while the process grinds forward. Negotiations around this issue can be tricky because of the economic importance of the matter to both the physician and the employer.

First, let’s talk about what the physician employment agreement should not provide. The physician employment agreement should not automatically terminate if the physician is not credentialed by the effective date, nor should it give the employer the unilateral right to terminate the physician’s employment agreement. Ideally, the physician employment agreement should also not be simply suspended until all credentialing is completed.

The physician employment agreement should distinguish between a failure to become credentialed and a denial of credentials. If the physician has been denied hospital credentials, that physician probably has some major problems in the credentialing file; it may be reasonable for the employer to refuse to wait for the physician to fix those issues. The physician employment agreement should also distinguish between failing to obtain credentials because of a lack of responsiveness on the physician’s part, and failing to obtain credentials because the hospital or managed care company is slow to process an application. The employer should agree to provide administrative assistance to the physician in credentialing and to use best efforts to expedite the process. Finally, the physician employment agreement should only require credentialing with major payors, not every payor the employer has dealings with.

Needed Flexibility

When negotiating a physician employment agreement, I always try to insert a provision requiring both parties to sit down in good faith and attempt to negotiate a mutually satisfactory arrangement allowing the physician to start at the original start date, even if credentialing is not complete. For example, if the physician has hospital credentials and has been accepted by every major payor of the employer except one, the employer may be able to schedule patients for that physician who are not covered by the slow payor. This may not be possible if a dominant payor has not credentialed the physician, of course. The failure to be credentialed by Medicare is going to have a lot more impact on a geriatrician than on a pediatrician, for example.

Similarly, if all the payors have credentialed the physician but the hospital has not, perhaps another physician can admit patients and do rounds until the new physician gets privileges. Both parties likely can find creative ways to work out something acceptable if the physician employment agreement is flexible enough.

The physician may need to be flexible as well. If the employer is willing to make concessions to allow starting work under the physician employment agreement, the physician must be prepared to make concessions as well – these concessions might include reduced hours and compensation until all the conditions provided for starting work under the physician employment agreement are satisfied.

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About the Author

I am a healthcare attorney with over 35 years of experience, focusing on physician employment contracts.

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