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Health Law Pointers - Volume VII, No. 1

EMPLOYEE PERSONNEL FILES

How should an employer in New York State respond to an employee’s request to review his or her personnel file?  The answer likely depends on whether your practice has adopted a policy concerning access to personnel files.

In many states, laws have been enacted granting employees the right to inspect the information contained in their personnel files.   However, New York is not among those states.  In New York, the general rule is that an employee is not entitled to review his or her personnel file, absent an agreement or other policy of the employer providing for such access.   

Some employers believe that permitting employees to review their personnel files results in better communications with employees and reduces the potential for employment disputes or litigation.  Other employers have adopted policies because they operate in multiple states where access is required by law. 

A typical personnel file access policy will include the following:  

·        Right of Access.  The policy should identify the circumstances under which an employee will be granted access to his or her personnel file.  Some policies allow for an annual inspection only, while other policies simply require prior notice to the employer. 

·        Inspection Location.  The policy should indicate where the employee may inspect the personnel file.  The employer’s place of business is the most appropriate place for inspection. The policy should provide that the inspection will be conducted in the presence of an employer representative.

·        Limiting Access. An employer may desire to restrict an employee’s access to certain documents in the employee’s personnel file, such as written evaluations of the employee’s performance that identify the specific evaluator.   In such instances, the employer can include in its policy a provision that allows the employer to redact portions of documents or exclude certain documents from the personnel file.  Where documents are excluded from the personnel file, the policy can also include a provision allowing the employer to provide a written summary of the excluded document instead.     

·        Copying.  The policy may include a provision concerning whether the employee may make a copy of his or her personnel file.           

Since New York has not enacted a statute governing employee access to employee files, New York employers have wide latitude in developing policies to fit their needs.  Employers are encouraged to consult with counsel prior to adopting any policy granting employee access to personnel files.

 

SUCCESSFUL PHYSICIAN RECRUITMENT

            Successful physician requirement involves a number of factors. One aspect of physician recruitment frequently overlooked by physician practices is the need to engage in an honest assessment of their physician requirements.  Simply put, the practice should assess why it is seeking to recruit and employ another physician.   It may be that the practice needs to replace a physician that withdrew or retired from the practice.  In that instance, the new physician will, in many cases, simply be expected to replace the departed physician. 

However, if the practice is recruiting in order to expand the practice, it is important to first consider the impact the additional physician will have on practice operations.  The practice should run revenue projections based on the anticipated additional income to be generated by the new physician.  The practice should also assess the impact of hiring a new physician on its overhead costs, including the physician’s salary and fringe benefits and the physician’s equipment and staffing requirements.   

Once the practice has completed its revenue projections and overhead cost assessment, the practice will be better positioned to assess whether it is economically feasible to hire the physician, and what it can afford to pay in terms of salary and benefits.  Following these guidelines can help practices avoid making hasty decisions that may otherwise result in a negative recruitment experience for both the practice and the recruited physician.

 

BILLING AGENT AGREEMENTS

Professional practices frequently enter into agreements to have medical billing and related services performed by medical management companies.  These agreements often include a multi-year commitment on part of the practice. It is therefore important to review these agreements with counsel prior to entering into the agreement. 

A typical agreement will address the following: 

·        Description of Services.  The agreement should include a detailed description of the services to be provided by the management company.  The description of services should be thoroughly reviewed to ensure that each service described corresponds with the services being sought by the practice.  For billing related services, the agreement should designate the billing agent as agent for the practice to collect payments for medical services provided by the practice.  The agreement should also set forth how the management company will collect, deposit and disburse the payments received on behalf of the practice. 

·        Financial Terms.  The agreement will need to identify how the management company is compensated.  The structure of the fee arrangement should be closely scrutinized in light of the prohibition against fee-splitting.  In particular, certain percentage fee arrangements have been found to violate fee-splitting laws.  

·        Term and Termination Provisions.  The agreement will include a provision setting forth the duration or term of the agreement.  For multi-year agreements, it is important that the practice negotiate a termination provision into the agreement that permits the practice to terminate the agreement without penalty if the services are not provided in accordance with the agreement or if the management company has otherwise breached the agreement.  The practice may also desire to include a provision allowing the practice to terminate the agreement without cause upon reasonable prior notice.

·        HIPAA Compliance.  The agreement should include a provision requiring the management company to maintain the confidentiality of patient records and to otherwise comply with the applicable provisions of the Health Insurance Portability and Accountability Act of 1996  (“HIPAA”).  Under certain circumstances, the management company may also be considered a business associate under HIPAA regulations, therefore requiring the practice to enter into a business associate agreement with the management company.

·        Insurance and Indemnity.  It may be appropriate for the practice to require the management company to maintain liability insurance, particularly if the management company will perform services at the practice location.  The practice should also require the management company to indemnify the practice for any billing errors attributable to the management company or other acts or omissions of the management company causing damage to the practice.  

·        Post Termination Obligations.  The agreement should require the management company to return all of the practice’s billing and collection data in the possession of the management company upon termination of the agreement.  The practice may designate the format in which these records will be returned, including any electronic data requirements that the practice may have.   

 

Copyright © 2005 Hurwitz & Fine, P.C. All Rights Reserved.

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