In this episode, hosts Brad and Michael, and series regular Jay Reyero share the story of a reconstructive plastic surgeon who joined a cosmetic surgery practice. Although initially excited about the opportunity, he soon encountered unexpected challenges as the practice shifted from a cash-based model to accepting insurance for his procedures. Tune in as we explore the complexities of in-network vs. out-of-network billing, the critical compliance requirements surrounding insurance regulations, and the importance of accurate billing and coding practices. Learn how these insurance-related compliance issues can impact financial outcomes when shifting a medical practice’s model.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Transcript
*The below transcript has been edited for readability.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. This season’s theme is Compliance Fundamentals. We’ll take real client stories, scrub their names, and we’ll build these stories around kind of navigating compliance obstacles in the business of health care.
Brad: Yeah. And we’ll be talking about compliance a lot this season, Michael. Remind everyone again, what does compliance mean?
Michael: Well, it’s a broad word that we use to capture the state and federal laws that govern the practice of medicine or other health care practices. So, yeah, as we’ve talked about, health care is one of the most heavily regulated [00:01:00] industries in the United States. And if you’re being compliant, it means you’re running your practice consistent with these various laws.
Brad: Excellent. And as a reminder, compliance is not stagnant.
Michael: Yeah, I mean, the misconception that we’re constantly battling is this idea that it’s a check the box, you do this thing and then you’re good. And so you have to, as a business owner, understand that it’s ongoing and you have really to be successful embrace that it’s almost a way of life if you’re going to be in this line of business.
Brad: Awesome. Well done, Michael. Now, before we get started for the first time this season, we welcome back our series, regular and partner Jay Reyero.
Jay: Hey guys. Love compliance, so super excited about this season.
Brad: Yes. Compliance #WeLoveIt. Gents, have you seen this lawsuit where Buc-ee’s is suing Duckee’s? Apparently it’s very confusing logos is the heart of [00:02:00] all this. The lawsuit really alleges that the use of Duckee’s and Duckees’ World trademark and Duckee’s logos are confusingly similar to Buc-ee’s trademarks. And honestly, we just got a real dilemma here.
Michael: Okay. Well ,for the audience that doesn’t know Buc-ee’s, and our people in Texas will for sure know, and they’re starting to scale from what I understand outside of Texas. But Buc-ee’s, it’s a mega gas station, is that the way to say it? I mean, it’s the biggest gas station you’ll ever seen if you’ve ever been to one. But as far as the number of gas pumps, they’re randomly known for their clean bathrooms, and their bathrooms are also massive. And then it’s almost like going into a mini mall or something when you shop in there between the food and the other items. But Jay, I feel like I’m kind of being sucked into Brad’s inner mind [00:03:00] right now. I can just picture him having a showdown between the sound effects of a beaver, which is Buc-ee’s and a duck fight. And I actually don’t like it. I need to bail.
Jay: I kind of feel like it’s Mardi Gras on steroids with drew Brees kind of the king of the land. This sounds like a serious case of mistaken identity that’s going to cost Duckee’s a lot.
Brad: Yeah. And apparently Duckee’s logo is, is a duck in sunglasses with a bow tie inside of a yellow circle, which is for those who don’t know, very similar to Buc-ee’s Beaver’s logo. And the article mentioned that Buc-ee’s claims that Duckee’s uses all the most important aspects of the iconic Buc-ee’s logo, like all of it. So talk about some bad case of, I guess, beak envy here.
Michael: Brad, please. No. Well, I clearly Duckee’s is trying to [00:04:00] draft off of the infamy of Buc-ee’s, so I think that part’s obvious, but I wonder how many people have actually confused the two.
Jay: Yeah. I mean, obviously Buc-ee’s, so, because they’re concerned about protecting this brand and their valuable reputation and goodwill that it’s built, so they’re taking it serious.
Brad: Yeah. And that’s what the lawsuits is trying to do. Stop Duckee’s from using the logo to destroy or fringe on what basically Buc-ee’s is built and obviously they’re worried about Duckee’s destroying that. Even though Buc-ee’s start in Texas as Michael you mentioned earlier, it’s expanding rapidly, so it obviously wants to protect its brand name. And as I understand it from the article, they’ve actually opened one about a year ago in Missouri, and they’re about to open up another Buc-ee’s in Kansas City.
Michael: This whole thing reminds me of Coming to America, McDowell’s. You remember that? Yeah, the owner in the movie you know, was claiming that they were different than McDonald’s, even though the [00:05:00] logo was identical. But he said that McDonald’s had golden arches, but McDowell’s had golden arcs. And he said, “They have the Big Mac. I have the Big Mic”
Brad: Michael, I’m so proud of you. I want to give you two gold stars for bringing a classic movie Coming to America.
Michael: I know my audience, my inner audience. Maybe not the outer audience.
Brad: Yes, that’s true. That’s a good point. And speaking of brand fights, you know, we talked about this last week about Trader Joe’s tote bags, which brings us to another similar case. Another article I read about Trader Joe’s is suing a new New York City wine shop called Joe’s Wine Co., and they have an all-too-familiar name and I wonder how many different “Joe’s” are out there anyway.
Michael: I remember there was a big controversy, it might have even been some litigation a few years ago about the Trader Joe’s wine. I think it had something to do with the preservative they were putting in the wine and I don’t know, but this also is starting to sound like another [00:06:00] McDowell situation with the Joe’s wine.
Brad: I wonder if there’s a secret society of litigious mascots out there.
Jay: Oh man. We’re going further into the void. Brad’s cartoon mind here is firing up again.
Brad: I think it’s a good thing. And maybe it’s not just the name. Like, apparently the Wine Shop’s logo is apparently similar to Trader Joe’s. However, the wine store claims Joseph is a family name that has been the history dating back to the 12th century Espanol or Spain, for those who don’t speak Spanish. The wine shop lawyer counter that many New York City businesses use the word Joe in the name. There’s even a Joe’s Pizza next door and thinking about movies, I just thought about the average Joe Gym Shop. I wonder if Trader Joe’s going to sue them next, but another movie reference for you there.
Jay: This whole argument that if, even though the name similar, it shouldn’t be a problem. Sounds kind of like a fine line there, Brad.
Brad: Yeah. And just going a little bit further in, apparently they have the same kind of wine sales that Trader [00:07:00] Joe’s does. And so, again, they’re really pushing it from that perspective.
Michael: Yeah. I think the biggest takeaway is too, if you’re a small business, be careful if you’re trying to kind of copy a big brand. You want to be careful not to poke the bear, so to speak.
Brad: Yeah.
Jay: Yeah. So, Brad, we’re going to have to ask, what does all this have to do with today’s story.
Brad: I have no idea. I just found these two stories interesting because believe it or not, I read an article and like two days later I read another article, so it’s just very similar, but maybe today’s story, Jay involves a duck that lives with a beaver and they like to drink wine. I mean, that sounds like a great cartoon.
Michael: Yeah. Well, let’s not let Brad take the wheel. Why don’t you lead us in today’s story, Jay?
Brad: It’s a good one.
Jay: Today’s story is going to involve a young reconstructive plastic surgeon working up in New York. But he’s going to come back home. He’s going to come back home to Texas. after completing that initial two year period of his first job, [00:08:00] and diving further into the Looney Tunes world, we’ll call him Dr. Daffy.
Brad: Yes. Fist pump to you. Jay. I love the name Dr. Daffy. It pleases my little cartoon brain. Michael, before Jay goes further, I’m going to flip the script on you for that vocabulary lesson here. Dr. Daffy is a reconstructive plastic surgeon. Can you tell our audience what does that mean?
Michael: It’s not often appreciated on the business side how these kind of subspecialties can impact things. And so, the plastic surgeons know that there are a ton of subspecialties. Kind of broadly, you have reconstructive plastic surgeons, and then you can have aesthetic or cosmetic plastic surgeons where they’re doing more elective type procedures. But even inside of reconstructive, there’s a ton of different types of reconstructive plastic surgeons. Some may focus [00:09:00] on kind of breast reconstruction, lower extremity, et cetera. the list goes on. From our view of the world, we know that the system to get paid can vary depending on what your subspecialty is. And so that that is an important element when Jay kind of leads talking about a reconstructive plastic surgeon.
Brad: Yeah. And to add to that, a lot of times we hear the term reconstructive. It means so many different pieces. I mean, we know surgeons who deal with burn victims. We know people who deal with bad scars. And so, that reconstructive could be surgery, could be laser. So that terminology in the in the world, you can’t assume anything because we’ve learned that assumptions are bad from our last episode, but we won’t go into it. But Jay, going back into what is Dr. Daffy’s plans to moving back?
Jay: So Dr. Daffy had been talking to a couple of friends from residency [00:10:00] who had actually opened up a practice together in Texas, we’ll call it Buc-ee’s Plastic Surgery. Dr. Daffy, he was eager and interested to join them at this practice because he had gotten along with them. They all had talked about their visions and it kind of all seemed like their visions for how they wanted to practice and grow aligned mostly.
Brad: You know what, Michael, before you said anything else, I think we need to make a disclaimer. This Dr. Daffy group that he’s joining, this Buc-ee’s Plastic surgery is not the real Buc-ee’s gas station plastic surgery group.
Michael: You try not to get sued.
Brad: I mean, it’s Buc-ee’s.
Michael: Okay. Well, I’m glad you clarified. I haven’t noticed them providing medical services.
Brad: Just getting that out there. Mr. Buc-ee.
Michael: Okay. Well, you cast a shadow over something Jay slipped in at the very end, you said the word “mostly” when you were talking about them being unaligned. Was there something that [00:11:00] did not align?
Jay: So you kind of alluded to this earlier. So, because Dr. Daffy was in the reconstructive practice, he was heavily focused on procedures that were covered by patient’s insurance. But Buc-ee’s plastic surgery was set up and operating as a purely cash elective cosmetic surgery practice – so a little difference in revenue philosophy.
Michael: Yeah, and in organizational operational setup that goes with being a cash versus insurance-based business. I’m curious, did that stop Dr. Daffy from joining?
Jay: No. because the pool for them to wanting to work together and grow a practice together was stronger. because they’d been talking about it for years, even staying in touch when Dr. Daffy was up in New York. And what they envisioned was adding Dr. Daffy would actually be a significant benefit to the practice itself. Growing the brand, getting more patients, they figured there could be some synergies internally to help grow [00:12:00] the practice. And so, they thought this was a great opportunity to support two different types of practices together under one roof, and so Dr. Daffy joined Buc-ee’s Plastic Surgery.
Brad: Okay, so we got him joining in. So how did they end up dealing with this insurance issue?
Jay: Well, so they had a couple of staff personnel that weren’t quite at capacity. So they became creative, and what they ended up doing was revising the roles so that they could have one individual, and we’re going to call him Mr. Shades, could take on the billing and submitting the claims to insurance for Dr. Daffy’s patients.
Brad: Mr. Shades sounds like a really cool name because it could be like the cool guy like Tom Cruise wearing his glasses guy or Mr. Shades could be the shady person that makes you terrified. So looking forward to learning about more about Mr. Shades, but how did the transaction or transition in this case, for Dr. Daffy go?
Jay: I mean, it couldn’t have gone better. Dr. Daffy joined the group, hit the ground running as soon as he relocated. His schedule [00:13:00] was booked full almost immediately, a couple weeks out. Surgical practice was booming, keeping him extremely busy. He was definitely excited for what he thought was going to be a better year one than expected.
Michael: Yeah. Felt like a little asterisk kind of popped up there at the end. Were you trying to slip something by us or tell me more about what you mean about this year one would be better than he thought.
Jay: Yeah. So you see about six months in, well, fast forward, six months in, Dr. Daffy started noticing that he wasn’t getting paid proportional to how hard he was working. And he was killing it super busy, scheduled packed, busy than it had ever been at his prior practice in New York, and yet he was making quite a bit less than what he had been making up in New York.
Brad: Well, did Dr. Daffy have a different compensation structure in Texas that he had in New York?
Jay: Nope. It was the standard eat [00:14:00] what you kill model to the same as New York.
Brad: All right. Michael, I think we have another vocabulary word. I think it’s your turn. It might be my turn, but I’m putting you off the bat anyway. It’s probably been a while since we gave the audience a kind of a glimpse of what is eat what you kill model and what does that really mean?
Michael: Yeah. It’s a compensation system common in medical practices. It’s a common in plastic surgery and particularly smaller practices with fewer kind of less than five owners. Although you can see it in others as well, larger practices as well. But the idea of it is that you as a surgeon are going to collect whatever you collect, and that’s yours after you pay your bills. And we’re going to share overhead. And one of the keys to the eat what you kill model is figuring out how you’re going to split overhead because there’s just a whole kind [00:15:00] of rabbit hole we could go down to build out that portion of it. But the idea of this is that you are paid 100% based on your own productivity, and so you’re kind of your own little business inside of a business.
Brad: Yeah. And the concept being those who work the hardest technically should be paid the most and as you said, we could go down our whole rabbit hole in definitions and define terms that are very important in the eat what you kill model. And those of us sitting here in Texas today, we know there’s a big difference between New York and Texas. However, what was so different in this business deal?
Jay: Yeah. So Dr. Daffy started investigating and digging and trying to figure out what was going on. And what he found was that there were some significant differences in the handling of his insurance claims that were affecting payments from the insurance companies. The primary difference was that when he was up in New York, he was operating as an in-network physician, but here in Texas, because they wanted to get going quickly, they didn’t go through [00:16:00] that process, and so he was actually operating as an out-of-network physician.
Michael: Okay. Getting heavy there. I’m going to have to stop you and try to share with the audience what that means. Like, what is the difference between being in-network versus out-of-network?
Jay: Yeah. So at a high level, being in-network means you have a contractual relationship with the insurance company. So that means that you have certain obligations and guarantees all set out in the contract, but also through state law. When you’re an out-of-network physician, you don’t have that contractual relationship. And so you don’t have those same contractual rights, those same guarantees. But then we’ve all experienced this just from a personal side of things. There’s a difference in treatment for insurance coverage when you’re getting an in-network versus an out-of-network service from a provider.
Brad: Well done, Jay. I mean, unexplained, it’s hard to understand if you’re not used to it, to understand the difference between out-of-network and in-network contract. [00:17:00] So what was the difference created in this particular matter?
Jay: Yeah. So when in an out-of-network situation, when you remove those rights and guarantees that come with the in-network status, the biggest impact that people experienced is the timing on payments. And so what Dr. Daffy had found was that the claims being submitted were not being paid. And there were a variety of reasons why. And so, while he was definitely busy and he was definitely providing these billable services, the revenue was not being received quickly or timely enough. And so he was compensated based on revenue received, not billed charges. If you don’t receive the revenue, you don’t get paid.
Michael: Yeah. Since Brad’s sitting here, that’s not good, Brad. I just want to make sure you’re following.
Brad: I had the Buc-ee fighting the Ducky in my head still, so it was with music and everything. But thanks for letting me know.
Michael: Yeah, you’re welcome. So Jay, you mentioned there’s a variety of reasons for the lack of cash flow. Kind of walk through that.
Jay: Yeah. I mean, at the end of [00:18:00] the day, they all stemmed from one underlying cause. And that was just, Mr. Shades was inexperienced in the insurance claim submission process. And because Buc-ee’s Plastic Surgery had never done this or been in this area, there was no one particular to help him navigate. They had no processes. So at the end of the day, claims were being filed a long time after the services were being rendered because there’s a steep learning curve on how to do them and also put down the correct CPT codes that are on them.
Brad: Ooh. Michael, another vocabulary word. Maybe I should make you do it. No, I’ll do it this time. I’ve already thrown two at you. So for those that know, a current procedural terminology code or CPT code, as they say in the streets, is a numerical code that identifies medical procedures and services performed by a physician and or a provider. And this is how you indicate that what was provided to the patient on a claim, on an insurance form or a process so that you can then get paid.
Jay: Michael, how many people on the street have you heard use CPT [00:19:00] Code?
Brad: It’s all over.
Michael: It’s Brad Street. It’s a cul-de-sac with one house.
Jay: So in addition to being filed late, there were several claims where the insurance company was asking for additional documentation and information to support the claim. And again, there was no process. And Mr. Shades had no idea and had never done this, and so that information was taken a long time to be provided and timely responded to. There were rejections to claims that weren’t being appealed. There were claims that were simply just sitting out there with no follow up. I mean, it was like Dr. Daffy’s claims for payment were sent into a void in a black hole and just kind of sitting there.
Michael: For doctors that are early in their practice, learning to run a small business is a lot. I’m kind of picturing the young doctor and they, in their training have been introduced to [00:20:00] these CPT codes, as they say in the hood of Brad’s one house cul-de-sac, but they really don’t see the other side of it or experience it often, which is just this black hole you mentioned of the collection process. And so, it is a skill to learn how to collect and how to most quickly collect on these insurance cases. And if you’re out-of-network, there’s a different strategy on that front as well. And these strategies may differ by the types of cases, they may differ by the different carriers, and so I can imagine Mr. Shade was in over his head for sure.
Brad: My cartoon brain just imagines Dr. Daffy walking into my cul-de-sac and a piano just drops on his head as he was learning all about this lack of billing understanding or processes in place.
Michael: Well, why don’t we go into [00:21:00] break and when we come back, let’s talk about the impact billing and coding can have on a practice, particularly in the cosmetic and reconstructive industry.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto, with my co-host, Michael Byrd, and sitting right next to me is series regular, Jay Reyero. Now Michael, this season, our theme is Compliance Fundamentals, and Jay just dropped a big story on us, didn’t he?
Michael: Yeah. And I always feel [00:22:00] like you asked me to do this recap because you want to make sure I pay attention during the beginning of it.
Brad: Mostly because I wasn’t.
Michael: Yeah. I feel like I’m being tested. So, the story is we had Dr. Daffy reconstruct a plastic surgeon in New York, wants to move to Texas, join up with some buddies at their practice., Buc-ee’s Plastic Surgery is a cosmetic in nature. They have Mr. Shades who is kind of assigned to help deal with the friction points of transitioning a reconstructive practice into a cosmetic practice. And though things were going really well relationally, and productivity-wise from a actually doing cases, there was some problems on the financials, and that was that money wasn’t coming in. And we really identified that and zeroed in on the fact that because there was [00:23:00] out-of-network insurance cases that can take longer to collect and that Mr. Shades didn’t know this world, that there was really some problems in getting collections that would align or line up with the amount of work that Dr. Daffy was doing.
Jay: Yeah. And let’s see, to be clear, Mr. Shades isn’t to blame here. He was put in a pretty difficult position, but we’ve seen this a lot. And particularly, one example is you got a purely cash elective cosmetic practice, and then they’re looking to add the breast and body reconstructive component. But that area is highly, highly driven by the insurance reimbursement process, and that’s not easy, and it’s quite frankly, administratively heavy. And so, that’s part of the reasons most practices focus on a cash only model to both eliminate the admin headache that it takes to do the insurance billing, but also just to control cash flow, to know that we’re [00:24:00] getting cash today rather than having to wait for 90, 180 days.
Brad: Yeah. And first I’m glad to learn Mr. Shades is a good guy. I didn’t know. Mr. Tom Cruise guy. But for many of our long-term clients, even ones that aren’t in the cosmetic world, they are analyzing ways to provide services outside of that commercial payer world because of the ability to get paid faster.
Michael: And one of the variables, you know, we talk about these different subspecialties and the impact that it has is that another confusing part about when you have insurance cases is that the reimbursements can vary significantly by – not just by state or region, but even by cities. And so, it’s a very real thing if you’re doing reconstructive work in Dallas, Texas and you’re going to go and try to do reconstructive work in California [00:25:00] where you basically have to be a hospital employee to even be able to survive because reimbursements are so poor. And so, when you have a scenario like this where you’re moving states, it becomes an important variable as well as part of your homework to figure out how that can work.
Jay: And then you add on top of that the complexities that are associated with the process. That’s why a lot of times you want an experienced biller in-house, but more often a third party billing company/ those are going to be vital because they’re going to handle all that administrative work. They’re going to know how to submit the claim with the proper CPT codes. They’re going to handle the appeals that are going to be required when you’re out-of-network. They’re going to submit medical record documentation whenever the insurance company starts questioning support for the claims that you’re asking for reimbursement. And particularly without the out-of-network claims, it’s not a straightforward process or a [00:26:00] quick process. It requires a lot of diligence. Many times in-house practices don’t have the personnel that can stay on top of it.
Brad: Yeah. And I agree with you, Jay, whether or not you’re in-network or out-of-network, medical practices working with third party payers really need to develop a systematic process for first verifying if that patient is covered submitting the claim itself. And then as you were kind of mentioning, these follow up processes. Medical practices often face frustrations because they’re not used to getting the denials or the error codings because especially if they’re not in the insurance world. So obviously having great policies is important, which can obviously lead to more significant administrative burdens that you were trying to talk about, or financial strain, because you have the right people in there to do it. So if you are going to go in-network or out-of-network, you need to invest in training in efficient ways of what they call claim management systems.
Jay: And one thing we won’t talk about today is the impact of the federal no surprise act or the state no surprise [00:27:00] medical billing law. Those allow for practices to utilize arbitration and mediation to maximize the reimbursements and kind of take the patient out of the equation and lessen their financial responsibility. It’s a relatively new and specialized area that there’s a lot of experts out there that handle that stuff, but it requires the involvement of those people to know what to do and how to do it.
Brad: Totally agree. Completely new area of law, and it’s not really clear to most people how to really live in this new world. But Michael, what about the impact of the physician’s compensation as we heard with Dr. Daffy?
Michael: Yeah, and I’m taking it you’re talking about we have all these problems with insurance cases. Well, remember we talked about eat what you kill, and he may think he’s killing a lot when he’s operating, but killing is the cash coming in the door. And so when there’s no money…
Brad: Not the billing.
Michael: No. [00:28:00] That’s a big difference, especially a lot of reconstructive physicians come from a hospital or academic world and they’re used to tracking their production, their RVU and not worrying about the cash. But in a small business, cash is king. It doesn’t really matter that you operated full time if the money’s not there. And so, his compensation would’ve suffered.
Brad: Yeah.
Michael: Well, Jay, I’m interested to know how did Dr. Daffy and Buc-ee’s Plastic Surgery get things straightened out?
Jay: Yeah, well, I mean, they both realize, hey, this was a great fit, personally, we’ve always talked about this, but operationally it just didn’t make sense to continue for Buc-ee’s Plastic Surgery to kind of revamp their business model to really make it work for Dr. Daffy, and he didn’t want to continue this growing pains and making less than he had made before. And so, they ultimately [00:29:00] decided Dr. Daffy would leave, start his own practice, but they worked through some synergistic opportunities as two different practices rather than under one roof. and started trying to support each other’s practice just naturally and organically.
Brad: Yeah. And this story is a perfect example of pausing before entering into a new venture and asking those questions as to what will change if I do this action. You know, had the doctors brought in a consultant or even a health care attorney to help understand this billing world of in-network versus out-of-network, that would’ve made a lot. They would’ve had a lot more information and maybe had a better decision making capability. Is this new venture going to work for all of them? Michael, your final thoughts?
Michael: I’m going to go back to where we started. We talked about the subspecialties. It’s not enough that you have a group of plastic surgeons that like each other, the sub, there is an operational impact depending on what your subspecialty is, and you have to look at that. Even if you’re all [00:30:00] three reconstructive or all three cosmetic, depending on the types of cases that are being done, it may impact the setup or the infrastructure of the practice. And if you plan accordingly at the front end, it’ll help save some headaches later.
Brad: Absolutely. Well, that’s all the time we have today. So next Wednesday, we will continue to focus on compliance fundamentals when we tackle the important aspects of the area of, in a medical practice, supervising your employees. Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five star rating and share with your friends.
Michael: You can also sign up for the ByrdAdatto newsletter by going to our website at byradtto.com.
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