The case of the so-called "expert": How hiring a non-lawyer as your lawyer can sabotage your practice.

Overview

Rule #1: Don’t break the law.
Rule #2: Don’t let people who’re breaking the law help you organize your business.
Rule #3: Either do it yourself, or use an attorney.  When in doubt, don’t Google it.

Saying my peace…

Working as an attorney for healthcare providers, more than one of my clients have approached me with business documents or preconceptions based upon the advice of another member of their healthcare profession.  Some providers have created spin-off businesses where they offer consulting services to other providers, where they educate them about compliance with insurance, Medicare, or regulatory laws.  The individual offering those services is doing so illegally.

If you’re offering these services and you aren’t also a licensed attorney, I implore you to stop doing so before you land yourself in hot water.

If you have received these services from a non-lawyer, whether you paid for them or not, and whether they were offered via face-to-face consulting, an online chat, a newsletter, a blog, Twitter, a book, or a conversation at a conference… read on.

When I encountered this again this week, I realized that I should break it down on here and explain why it’s important to hire a lawyer to do “lawyer things.”  With this post, I hope to protect providers from either (a) relying on advice that is unreliable, or (b) illegally encroaching on “the practice of law.”  I’d also like to dispel the myths about providers being in a better position to provide advice on healthcare topics than an attorney.

While this certainly doesn’t only happen in physical therapy, I use PT as my example here.  In working with providers who are establishing their own practices, I have been routinely astounded to hear that they have relied upon (and paid for) the legal advice of non-lawyers.  Remember: the fact that something is common practice doesn’t make it ok.

If a patient told you that, prior to visiting you for help with a spinal injury, they consulted with their lawyer to determine which treatment was most appropriate, you would be dumbfounded.  That’s how I felt the first time someone told me that a PT-consultant was the source of their knowledge about the legal repercussions of their business operations. What?!

In Illinois, the purview of a lawyer is when one gives advice or services “when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.”  People ex rel, Illinois State Bar Ass’n v. Schafer, 404 Ill. 45, 50 (1949).  Texas includes in its “not exclusive” definition “the giving of advice or the rendering of any service requiring the use of legal skill or knowledge.”  Tex. Code 81.101.

These definitions are very broad, and they encompass much of the work performed by “consultants.”  The penalties range from a fine to criminal prosecution for fraud and investigation by the state attorney general.


"The other trend we are seeing in health care is for consultants to broaden the scope of the services that they offer into areas that traditionally require the services of attorneys and a license to practice law...The ethical implications of these relationships are highly questionable."

Ruder Ware, LLSC, Health Law Practice Across State Lines – Ethical Considerations for Health Lawyers, Health Law Blog (July 2012).

“Many independent legal nurse consultants offer their services to the public. …[and] this type of advocacy requires that the legal nurse consultant comply with statutes prohibiting the unauthorized practice of law.  Legal nurse consultants may not give legal advice….”

Cynthia Weishapple, Introduction to Legal Nurse Consulting 19-20 (2001). 

FAQs + myths:

Non-lawyers and fellow providers often sell their consulting services at a lower rate than an attorney.  If they are the one breaking the law, and not me, then why should I use a lawyer?

  •  Lawyers have doctorate-level education in interpreting statutes and regulations like the ACA, the Medicare and Medicaid rules, and state insurance laws
  • Lawyers carry malpractice insurance that covers the advice that they give you about legal matters.  Healthcare professionals’ malpractice insurance covers their treatment of patients, not their legal advice.
  • Lawyers have access to legal research software that allows us to investigate the consequences of various interpretations of laws, look to the courts’ rulings on these laws, and review past disciplinary proceedings.

But isn’t an attorney more expensive?

Not necessarily.  First, after you finish paying a non-lawyer to answer your Medicare compliance questions, you may still need to hire an attorney.  Second, many lawyers offer flat-fee services very affordably.  After reviewing the hourly rate that some consultants charge for their services, I can confirm that my flat-fee services are very often the cheaper option.

So, what sorts of things can a fellow provider not advise me about?

  • Medicare and Medicaid
  • Insurance contracts (interpretation, negotiation)
  • HIPAA compliance (creating your HIPAA forms, talking you through a breach)
  • Scope of practice
  • Cash-pay practice rules (Medicare, etc.)
  • The best corporate entity for your practice
  • Which forms you should complete to legally create your practice
  • Which forms you should complete to contract with an insurance company

What can a fellow provider advise me about? Anything?

  • Strategies for boosting business
  • Strategies for improving the patient experience
  • Strategies for ensuring patient compliance with HEPs
  • Strategies for decreasing no-show, no-call patients
  • Mentorship is great! They can tell you about their experiences and can give you advice based upon their relationship with you and your goals. 
  • Industry impressions of the various health insurance companies
  • How the recent healthcare laws have changed their practice

A PT/doctor/chiropractor/dentist wrote a book about how to ensure compliance in my field.  Certainly they researched that sufficiently and I can rely on it, right?

No.  Anyone can write a book about anything, of course.  But that doesn’t make them an expert, and it shouldn’t legitimize them as an “expert” on your legal issues.  If I wrote a book about ACL recovery, would you trust that I’d done my research and must know what I’m talking about?  You most certainly would not.

I’ve relied on a non-lawyer to help organize my practice, and now I’m worried.

First, call a healthcare attorney.  Many offer free initial consultations.

If a non-lawyer’s advice was incorrect and caused you to incur additional fees, headaches, or injured your practice, you should contact your state’s attorney licensing organization.  They can explain that you may have opportunities to pursue recourse against the non-lawyer

 

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