ACG Practice Management Toolbox Highlights 2022

Accessible. Relevant. Practical.

The information you need to improve your practice.

The ACG Practice Management Committee’s mission is to equip College members with accessible tools to overcome management challenges, improve operations, enhance productivity, and support physician leadership in their private and physician-lead clinical practices.

Learn from practicing colleagues through monthly articles on topics important to you. Articles include a topic overview, suggestions, examples, and a list of resources or references.

Toolbox topics include • Policy and Procedures

• Wellness

• Revenue and Reimbursement

• Professional Relations

• Patient Engagement

• National Affairs

• Quality Enhancement

• Public Relations

• Human Resources

Start Building Success Today.

GI.ORG/TOOLBOX

Table of

CONTENTS

CONTRIBUTORS & PRACTICE MANAGEMENT COMMITTEE...................................................................2 LETTER FROM THE CHAIR.................................................................................................................3 PRACTICE MANAGEMENT COMMITTEE ARTICLES............................................................................... 4 The Nuts & Bolts of Negotiating an Insurance Contract............................................................................................... 4 Fatty Liver is Our Future: Setting Up a Disease Management Program in Your Practice.............................................8 Leveraging the EHR to Your Advantage: Make the Electronic Beast Work for You!.................................................... 11 In Retrospect: Perspectives from a GI Hospitalist....................................................................................................... 16 Emotional Intelligence: An Impactful and Often Overlooked Leadership Skill.......................................................... 18

LAW MIND ARTICLES......................................................................................................................26 Thank Uncle Sam for Your Pay Increase in 2021: A Bureaucratic Rule Change May Impact Your Wallet...................26 Help Me Out! Approaches to Negotiate Out of a Non-Compete with a Private Equity-Backed GI Practice..............29

GI.ORG/PRACTICE-MANAGEMENT/TOOLBOX

CONTRIBUTORS Uchenna A. Agbim, MD University of Tennessee Health Science Center Memphis, TN

PRACTICE MANAGEMENT COMMITTEE Chair Stephen T. Amann, MD, FACG Board of Trustees Liaison

Sara E. Ancello, DO Midwestern University Phoenix, AZ

John R. Saltzman, MD, FACG Nitin Aggarwal, MD Nitin K. Ahuja, MD, MS

Divya B. Bhatt, MD UT Southwestern Medical Center Dallas, TX

Joseph C. Anderson, MD, MHCDS, FACG Sophie M. Balzora, MD, FACG Ahmed A. Bolkhir, MD, FACG Arkady Broder, MD, FACG Sumanth R. Daram, MD

Ann M. Bittinger, Esq. The Bittinger Law Firm Jacksonville, FL

Andrew C. Elden, MD Christopher J. Fyock, MD, FACG Deepinder Goyal, MD Neil R. Greenspan, MD, FACG

David J. Hass, MD, FACG Yale University New Haven, CT

Abhishek Gulati, MD David J. Hass, MD, FACG Pierre Hindy, MD, FACG Ronald K. Hsu, MD, FACG

Melissa Latorre, MD, MS NYU Langone Health New York, NY

Michelle L. Hughes, MD Syed M. Hussain, MD Srinivas Kalala, MD, FACG Ashwani Kapoor, MD

Ralph D. McKibbin, MD, FACG Blair Gastroenterology Associates Altoona, PA

Rashid H. Khan, MD, FACG Whitfield L. Knapple, MD, FACG Akash Kumar, MD Melissa Latorre, MD, MS

Manoj K. Mehta, MD, FACG Endoscopy Center of the North Shore Wilmette, IL

Pavan K. Mankal, MD Manoj K. Mehta, MD, FACG Richard E. Moses, DO, JD, FACG Jagdish S. Nachnani, MD Mindie H. Nguyen, MD, MAS

Richard L. Nemec, MD, FACG Winchester Gastroenterology Associates Winchester, VA

Shireen A. Pais, MD, FACG Neal C. Patel, MD Shajan Peter, MD, FACG Dany A. Raad, MD

Shajan Peter, MD, FACG University of Alabama Birmingham, AL

Tarun Rai, MD Nipun B. Reddy, MD Vonda G. Reeves, MD, MBA, FACP, FACG Eric D. Shah, MD, MBA, FACG

Suriya Sastri, MD, FACG Midwest Digestive Center Willowbrook, IL

Brian J. So, MD Michael J. Sossenheimer, MD, PhD, FACG Manish Tandon, MD Raja Taunk, MD

Bennie R. Upchurch, MD, FACG Knox Community Hospital Mount Vernon, OH

Sapna V. Thomas, MD, FACG Andrew Ukleja, MD Bennie R. Upchurch, MD, FACG Rajeev Vasudeva, MD, FACG

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Letter from

THE CHAIR Dear ACG Colleagues,

Welcome to the ACG MAGAZINE special issue on improving your GI practice. These articles were authored by fellow ACG colleagues and other contributors, and have been published in ACG MAGAZINE.

What is the ACG Practice Management Toolbox?

The ACG Practice Management Toolbox is a series of short articles, written by practicing gastroenterologists and GI clinicians, that provide members with easily accessible information to improve their practices. Each article covers an issue important to those in private practice, as well as physicianlead clinical practices. They include a brief introduction, a topic overview, specific suggestions, helpful examples, and a list of resources or references. The Practice Management Committee is confident this series will provide a valuable resource for members striving to optimize their practices.

Please let us know if you have any ideas for future ACG Practice Management Committee articles and guidance. The ACG Practice Management Committee continues to strive to help you prepare for and succeed in this ever-changing environment.

Stephen T. Amann, MD, FACG Chair, Practice Management Committee

GI.ORG/TOOLBOX | 3

GETTING it Right

PAYER CONTRACTS ARE AN IMPORTANT SOURCE OF PRACTICE REVENUE AND SHOULD BE PERIODICALLY EVALUATED. Changes in

The Nuts & Bolts of negotiating an

insurance contract

By Ralph D. McKibbin, MD, FACG, Suriya Sastri, MD, FACG, and Shajan Peter, MD, FACG

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the cost of living, state or federal statutes, and government regulations can render our contracts outdated. Contracts with automatic renewals can leave us unaware that our reimbursement rates are not keeping up with the market. Whatever the size of your practice, this summary should come in handy for solo, small, and large GI practices. The goal is to help prepare you for the annual review of your contracts, in order to maximize and maintain correct and timely payments.

While large health plans have the built-in advantage of legal, financial, and analytic resources, many smaller, solo, and even larger physician groups may find themselves disadvantaged in their ability to accurately portray their volume of care, quality markers, resource utilization, and patient satisfaction scores. Sound knowledge about contract provisions covering claims, payment terms, medical necessity, appeal processes, notification for policy changes, credentialing requirements, termination, etc., are essential to influence your negotiation with the health plans. Familiarity with contract terms and structure can enable physicians to negotiate from a position of strength in order to achieve higher reimbursements and better payment terms.

Suggested steps for negotiating an insurance contract: 1. Review existing data 2. Analyze to determine goals and leverage 3. Negotiation with the health plan/ insurance carrier

REVIEW EXISTING DATA Preparation for the negotiation is key. It is critical to be well-informed about members served, quality measure performance of your practice, the negotiation process, definitions and requirements for contracts in your state and locality, and the status of the health plan itself. It is a good idea to have your attorney review contracts and provide an update on state, federal, and other regulations’ impacts on your practice. Each team member should be educated on the status of their service area, which will improve accuracy of their review. Outlining the process and using checklists to mark progress will streamline your efforts and boost success. Information gathering in core areas is the first step. These lists define this core information. Additional information may be needed depending on your reimbursement methods, terms, and other contractual arrangements.

Practice service and quality data: • CMS episode of care data with comparison2 (Figures 1 & 2) • Payer episode of care data (needs to be requested) with regional averages • GIQuIC or other quality data (ADR, cecal intubation rate, MIPS, patient satisfaction, QRUR, etc.)

Contract basics: • The current contract should be reviewed well in advance of the termination date.

• Review key terms and definitions for healthcare contracts.

• Identify state, local, and federal regulatory changes for health insurance contracts.

• Locate any state medical society updates on carriers in your region.

• Review your current policy and procedure manual to ensure compliance with contracts.

Carrier data: • Fee schedules for all carriers • The National Committee for Quality Assurance (NCQA) financial performance & health plan report card (ncqa.org/report-cards/health-plans) • Market percentage by population/age/ employer/hospitals • Sample key employers • The Healthcare Effectiveness Data and Information Set (HEDIS) data (www.ncqa.org/programs/hedis) • The Centers for Medicare and Medicaid Services (CMS)/Medicare fee schedule • Medical necessity definitions and procedures • Ask colleagues for their experiences on your carriers. Identify issues.

• Ask your staff to evaluate each carrier (use a rating form) on key areas.

Financial data (a continuous review process is recommended): • Current charge master • Complete current fee schedule for all carriers • Accounts receivable by carrier and product

• Patient severity of illness data

• Denial percentages

• NPI value data (www.qpp.cms.gov) for your practice and competitors

• Billing audit results

• Hospital length of stay for key diagnoses with comparison

• Cost of living allowances, national /community/healthcare/CMS/ carrier employees

• Medicare spending per beneficiary (MSPB)

• Complete list of CPT codes (ACG/CMS) to determine intensive services

• Market percentage by population/ age/employer/hospitals

• Regional cost information (e.g. www.fairhealthconsumer.org)

ANALYZE TO DETERMINE GOALS AND LEVERAGES A focused review of data and discussion should be done with the intent of answering two key questions: A) What do we want to negotiate? B) What is our leverage? It is important to clearly define and prioritize your goals, but you will also need to assess the interests of the carrier and your place in the community. Choose several concrete goals and decide which is most important.

What are my goals?

Reviewing your existing contracts will identify those contracts/provisions you deem unacceptable. This will define the contract provisions and clauses that need to be negotiated. They can usually be divided into financial terms or legal terms and form the basis for your principled negotiation goals. External legal assistance is often needed if there is any confusion over legal terms. This review can also provide a model for new carrier contracts. Table 1 gives some key areas for contract review.

TABLE 1 Number of days a provider has to submit a claim Number of days the payer has to pay the claim for services Claim denial dispute procedures List and scope of services covered by the payer Fee schedule for all covered services Notice periods for renegotiation and termination Term of the contract and renewal options

What is my leverage/value?

Leverage is used to induce the payer to agree to your objectives. Areas of value can be used as leverage. To determine leverage, it is vital that a medical practice or group understand their strengths, weaknesses, and place in the community, as well as the interests and goals of the payer.

A SWOT (Strengths, Weaknesses, Opportunities, Threats) analysis

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is often done to organize thinking around these key issues. High quality, recognized brand, large market share, and high satisfaction are practice strengths, but the ability to be creative and participate in shared savings plans are also things of value that can constitute leverage with the payer.

Leverage is critical to the success of your negotiation. A shared view and agreement on a negotiation’s goal and priorities is critical to plan a leverage strategy. Practices can grow leverage and value by taking advantage of opportunities. These can be classified as: 1. Leverage in Numbers: A significant amount of a plan’s provider panel constitutes a desirable goal and a plan will try to preserve this.

2. Geographic Advantage: Geographic holes are undesirable and make enrolling covered lives difficult for health plans.

3. No competition: This is a leverage against managed care and reduced payments.

4. Quality: Utilization and outcomes data define this. Savings could be shared but must be asked for.

5. Patient Volume: This is similar to Leverage in Numbers but can also be tied to the popularity of your practice.

6. Termination: Forcing a plan to reengage after terminating a contract. This can be effective but can be damaging to trust and relationship building.

NEGOTIATION WITH THE HEALTH PLAN/INSURANCE CARRIER After gathering and analyzing the information and setting goals, the negotiation can begin. A written plan is important so that you can remain focused on your goals. It is recommended to review negotiation tactics as a team, so that those negotiating understand their individual roles. Typical smaller office team members would be the office manager, medical director, and the executive officer, but larger organizations should communicate with stakeholders in the organization, such as financial

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leaders, patient accounting experts, and other physicians. A contract attorney or negotiation consultant can be helpful.

The payer will need to be contacted. Your carrier likely has a liaison that can facilitate setting up a meeting. A payer relations specialist or contract specialist will be part of their team. A face-to-face meeting is typical and likely several meetings may be needed. Many guides to negotiations are available but most contain similar core principles. The ACG Practice Management Toolbox, Negotiation 101: How to Get What You Want in A Negotiation10, summarizes the negotiation process and provides worksheets to guide you.

Basic negotiation principles include: 1. Listen to the other party: Get as much information as possible about their issues.

2. Monitor your emotions: Validate the other party’s emotions and avoid negative emotions.

3. Build trust: This may be difficult.

Use reflective interview techniques.

4. Understand the other party: Identify their tradeoffs.

5. Be a problem solver and look for new solutions.

6. Give and take: Anchor the negotiation with an offer but remember your priorities.

7. Allow the other party to save face: You may have to say “no.”

8. Look at creative ways to present an offer: Two small losses may be better than one large loss.

Here are lists of recognized desirable outcomes and things to avoid.

Top 10 Plums to go after4 1. Access to complete fee schedule information at all times.

2. Interest payments for clean claims not paid within 30 days.

3. Multiyear contracts with predefined fee schedule escalators.

4. Ability to opt out of specific benefit plans.

5. Ability to negotiate individual fee schedules that apply only to your practice.

6. Financial incentive programs that reward sound medical management.

7. Reduced or minimized referral and prior authorization requirements.

8. Advance written notification of changes to policies and procedures.

9. Online access to eligibility, benefit, and claim information.

10. Utilization of standardized credentialing/recredentialling applications.

Top 10 Deal Breakers4 1. The health plan’s ability to amend the contract without your signature.

2. Restricted access to all applicable fee schedule information.

3. Ambiguous definition of the entities that can access the contract and discounts.

4. Inability to independently establish panel limits and practice parameters.

5. Any reference to a “most favorednation” clause.

6. Unacceptable risk levels or risk for services you cannot manage.

7. Cumbersome or nonstandard coding/billing requirements.

8. Application of the fee schedule for noncovered services.

9. Labor intensive referral or prior authorization requirements.

10. Timely filing requirements shorter than 90 days.

FINAL EXECUTION When coming to an agreement on contract terms, the contract will need to be carefully reviewed for accuracy.

All terms should be defined and may be cataloged in an appendix. Further, members of the team should review for items important to their job functions.

After each successful negotiation of a payer contract, the practice can benefit from a “debriefing session” reviewing the process to define improvements for future contract negotiations. Once both parties execute the contract, the practice organization should designate responsible personnel or departments to be familiar with the terms of the contract. The practice should monitor performance and compliance of the terms, and work on deadlines

for internal review and reporting to management. It may be prudent to initiate the next cycle of review well before the current contract expires.

It is important to build a long-term relationship with the insurance carriers.

You can expect to repeat this process with them through ongoing cycles of negotiation. This will help to build confidence and ultimately achieve long-term success for your practice.

RESOURCES 1.

6. https://gi.org/2017/03/15/law-mind-its-not-all-about-that-

https://www.ama-assn.org/system/files/2019-05/2019-

rate-how-to-approachnegotiations-with-payers

cost-faqs.pdf. Medicare MIPS cost category FAQ including

ACG blog article by Ann M. Bittinger, JD, defining the negotiation process.

MSPB 2. https://data.medicare.gov/data/physician-compare

7.

https://www.ama-assn.org/practice-management/

Physician Compare datasets. The Centers for Medicare

payment-delivery-models/bargaining-table-success-

& Medicaid Services (CMS) provides official datasets for

starts-these-common-elements. Andis Robeznieks’ synopsis on bargaining success.

the Medicare.gov Physician Compare website to give you useful information about groups and clinicians listed on

8. Fisher, Roger, Bruce Patton, and William Ury. Getting to

Physician Compare.

Yes: Negotiating Agreement Without Giving in. Rev. ed.

3. Kefalas C. “Negotiating Payer Contracts in the Age of

New York: Penguin Books, 2011. A classic on coming on

Cost and Quality.” Presented at: American College of Gastroenterology Annual Scientific Meeting; Oct. 5-10, 2018; Philadelphia.

compromised settlements.

9. Voss, Chris., and Tahl Raz. Never Split the Difference: Negotiating As If Your Life Depended On It. First

4. Negotiating a Contract with a Health Plan. Christine Jones, BS and Terry Mills, Jr. MD, FAAP. Family Practice

edition. New York, NY: Harper Business, an imprint

Management. November-December 2006, pg. 49-55.

of HarperCollins Publishers, 2016. The FBI hostage negotiator approach. Empowering to physicians using

5. https://www.ama-assn.org/sites/ama-assn.org/files/corp/

It is important to build a long-term relationship with the insurance carriers. You can expect to It is important to build a long-term relationship with the insurance carriers. You can expect to repeat this process with them through ongoing cycles of negotiation. This will help to build repeat this process with them through ongoing cycles of negotiation. This will help to build confidence and ultimately achieve long-term success for your practice. confidence and ultimately achieve long-term success for your practice. mediabrowser/member/about-ama/pay-performancecontracts.pdf. This guide contains an appendix with a

many of the techniques commonly used in interviews.

10. https://gi.org/practice-management/toolbox. Sameer

checklist of contract provisions to help you understand

Islam, MD, MBA, FACG and Vonda Reeves, MD, MBA,

key contractual terms and conditions commonly used

FACG, Negotiation 101: How to Get What You Want In A

in pay-for-performance agreements and increase your

Negotiation

ability to strategically negotiate with commercial payers.

Figure 1 Example of CMS episode care cost data.

FIGURE 1: of EXAMPLE OF CMS EPISODE OF CARE COST DATA. Figure 1 Example of CMS episode of care cost data.

FIGURE 2: EXAMPLE PROVIDER DATA WITH Figure 2: Example CMS provider dataCMS with comparison toCOMPARISON others. TO OTHERS. Figure 2: Example CMS provider data with comparison to others.

Ralph D. McKibbin, MD, FACG, Blair Gastroenterology Associates, Altoona, PA

Suriya Sastri, MD, FACG, Midwest Digestive Center, Willowbrook, IL

Shajan Peter, MD, FACG, University of Alabama, Birmingham, AL

GI.ORG/TOOLBOX | 7

GETTING IT

ACG Practice Management Toolbox

Fat(ty Liver) is Our Future:

Setting Up a Disease Management Program

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in Your Practice

By Richard L. Nemec, MD, FACG and Bennie R. Upchurch, MD, FACG

HIGH-QUALITY DISEASE MANAGEMENT PROGRAMS are an excellent way for medical practices to distinguish themselves within their respective markets. Common examples of such programs for gastroenterologists include esophageal disease, inflammatory bowel disease, and hepatitis. Fatty liver disease may also represent a very promising opportunity.

Some reasons why you should consider developing a fatty liver program in your practice: • Nonalcoholic fatty liver disease (NAFLD) is the most common chronic liver condition in the United States and will soon replace hepatitis C as the #1 reason for liver transplantation.

• NAFLD is present in over 50% of adults with type II diabetes mellitus or metabolic syndrome.

• The management and evaluation of these patients is rapidly evolving: • Multiple guidelines and/or guidance statements regarding the management of fatty liver have been released over the past four years.

• Several drugs to treat advanced NASH are in Phase III trials in the therapeutic pipeline.

• This is a slowly evolving disease that requires • Disease detection • Risk stratification • Therapeutic intervention in high-risk groups OVERVIEW NAFLD is thought to be present in about one-third of the US population. While most affected individuals have simple steatosis, which is not thought to progress to cirrhosis, a substantial portion (3-5%) have non-alcoholic steatohepatitis (NASH). This condition may progress to cirrhosis and even hepatocellular carcinoma in a small percentage of patients.

As in most chronic liver conditions, the rate of progression is rather prolonged, causing disease to be clinically apparent only after it is well advanced. Fortunately, this long phase of progression provides us with an opportunity for disease assessment and risk reduction prior to development of end-stage liver disease.

IDENTIFYING CASES IN YOUR PRACTICE Identifying the patients with fatty liver requires examining multiple sources. With approximately 30% of Americans classified as obese, abnormal transaminases are often identified in these individuals on routine laboratory tests for employment physicals or annual primary care visits. Fatty liver may be found incidentally on an abdominal ultrasound, or cross-sectional imaging performed for other reasons. Thus, primary care, endocrinology, cardiology, and orthopedics often refer patients to gastroenterologists for unexplained elevations in transaminases.

Patients with no other definite cause for abnormal transaminases often have occult fatty liver disease. Risk factors for fatty liver

such as diabetes, obesity, insulin resistance, and metabolic syndrome will identify which patients are at high risk for fatty liver. These should then be evaluated with abdominal ultrasound or other forms of screening.

“Identifying the patients with fatty liver requires examining multiple sources. With approximately 30% of Americans classified as obese, abnormal transaminases are often identified in these individuals on routine laboratory tests.”

RISK STRATIFICATION The following tests may be used to assess a patient’s risk for disease progression or the presence of advanced disease: • Simple serum markers (readily obtainable) • APRI: AST and platelet count • NALFD score: AST, ALT, albumin, platelet, age, BMI, DM • FIB-4 score: AST, ALT, platelet, age • Serum biomarkers (blood tests, more costly): • ELF (enhanced liver fibrosis) panel • FibroTest® • NASH-Fibrosure®.

• Imaging techniques: • Vibration controlled transient elastography (VCTE), available commercially as FibroScan® • Magnetic resonance elastography (MRE) • Shear wave elastography • Histology: The ‘gold standard’ for diagnosis has long been liver biopsy. It is not feasible to perform liver biopsies in the large numbers of at-risk patients. Biopsy is usually reserved for patients with inconclusive or contradictory lab results. It is especially useful when patients have findings suggestive of other liver diseases that are treated differently.

MANAGEMENT Currently, published clinical guidelines recommend diet and exercise to promote weight loss and delay disease progression.

Although, none of the guidelines specifically address alternatives to manage obesity (pharmacologic, endoscopic, surgical). In the United States, there is currently no FDAapproved therapy for NASH as a primary indication. However, published guidelines and guidance statements have suggested that vitamin E and/or pioglitazone be considered.

Studies to date have not been uniform in determining what endpoints correlate with real-world clinical outcomes, such as improvement in transaminases, NASH scoring, fibrosis, prevention of cirrhosis, or regression of advanced fibrosis. Given the unpredictable outcome of fatty liver in an individual patient, and the frequent comorbidities in this population, careful and close follow-up of these patients is necessary.

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FOLLOWING RESULTS Success in any disease management program requires a process of data collection and review.

We recommend this be kept as simple as possible while providing evidence that supports the program. This data will be essential when communicating with referring physicians, hospitals, involved colleagues, and patients.

Demonstrating effectiveness in this program will distinguish your practice when negotiating contracts and marketing your practice.

EXAMPLES OF DATA COLLECTED • Demographic data • Body measurements (height, weight, BMI) • Related co-morbidities (diabetes, hepatitis C) • Relevant social factors (alcohol intake) • Lab values such as transaminases and HgA1C • Measures of fibrosis • Weight loss interventions • Follow up • Patient-measured outcomes QUESTIONS 1. How should I provide patient and provider education regarding the potential significance of fatty liver?

2. Who and how will patients be risk stratified in your office?

3. To what extent are dietary and or lifestyle modifications going to be offered within your practice or outsourced?

4. How will you follow patients; who you will identify as low risk for progression?

5. How will you treat or manage patients who you identify as high risk for progression or those with advanced fibrosis or cirrhosis?

6. Is a fatty liver program financially viable? a. Risk assessment is through evaluation and testing that is not well reimbursed b. There are no current FDA-approved therapies c. Diet and lifestyle modification recommendations are not reimbursed 7. Can a fatty liver program be used to identify patients who need other care from your practice? a. Those who need screening for HCV b. Those with occult advanced liver disease/ cirrhosis or hepatocellular carcinoma c. Those who need colorectal cancer risk assessment and screening 8. How will the data be collected and maintained?

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“Given the unpredictable outcome of fatty liver in an individual patient, and the frequent comorbidities in this population, careful and close follow-up of these patients is necessary.”

RECOMMENDATIONS FOR YOUR PRACTICE 1. Identify an individual, such as an advanced practice provider, to be your practice’s champion in the evaluation and management of these patients.

2. Review the current guidelines and obtain some consensus as to how these patients will be identified, risk-stratified, and treated by your practice. We suggest reviewing World J Gastroenterol 2018 August 14; 24(30): 3361-3373 which provides a recent summary of all the guidelines and guidance statements from the past three to four years.

3. Educate your patients and referring providers about fatty liver disease using widely available sources from guidelines or industry.

4. Use (or develop) a scripted intake protocol for historical risk assessment of these patients. See appendix A. 5. Develop a protocol to risk-assess these patients. AASLD guidance statements suggest NAFLD fibrosis score (NFS), FIB-4 score, and elastography (vibration [FibroScan] or magnetic resonance). See appendix B for a calculator.

6. Develop a recall system to follow low-risk individuals. Many guidelines/guidance statements are silent about this. See appendix C for an example.

7. Determine how your practice will provide dietary and lifestyle modification to all patients. For high-risk patients: See appendix D 8. Set up a database for this project.

9. Arrange monthly reports to involved colleagues.

10. Advertise the program to referral sources.

11. Provide periodic follow up to referring providers.

 View decision aids, additional guidance on setting up a disease management program, and more resources: bit.ly/ACG-PMToolbox-FattyLiver

Bennie R. Upchurch, MD, FACG Knox Community Hospital, Mount Vernon, OH

Richard L. Nemec, MD, FACG Winchester Gastro Associates, Winchester, VA

GETTING IT

EXECUTIVE SUMMARY ACG Practice Management Toolbox

Leveraging the EHR to Your Advantage:

Make the Electronic Beast Work for You!

By Manoj K. Mehta, MD, FACG and Richard L. Nemec, MD, FACG

This thorough and detailed overview on making the EHR work for you by Dr. Mehta and Dr. Nemec is part of the ACG Practice Management Committee’s “Practice Management Toolbox” article series that offers useful and applicable resources, tips, and insights from peers in the GI community to advance GI practice.

Available online is an illustrated version of the article with specific examples from the Epic EHR system, as well as a video by Dr. Mehta with a range of helpful ideas and examples to serve as a supplement to the strategies outlined in this article.

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What Can This Article Do For You? This article can get you started, provide ideas of what can be accomplished, open your eyes to what can be improved, and point you to resources to achieve what you need. It cannot give you specific, step-by-step instructions. There are simply too many EHRs, and even a single EHR can have multiple versions. You will have to do some research, sit down in front of the computer, and perhaps consult your trainer for advanced tips and setup. However, spending a few hours upfront could save you untold amounts of time in the future.

RESOURCES READ MORE: View the full Practice Management Toolbox article that includes references, as well sample images from the Epic EHR system: bit.ly/ pmtoolbox-ehr-mehta-nemec WATCH: Dr. Mehta created a helpful YouTube video as a supplement to the article: bit.ly/pmtoolbox-ehr-video

BACKGROUND Aside from the COVID-19 pandemic, there is probably no single more difficult hurdle within the last generation of medicine than the implementation of electronic health records (EHR) as mandated by the 2009 HITECH Act. Scanning and destruction of paper records, steep learning curves, IT issues, multiple platforms, difficult to navigate patient encounters, cost, and delayed integration have plagued nearly every practice.

Physicians identify their obligations to the EHR as a major source of stress and, therefore, physician burnout. Many more physicians report taking work home with them to complete after hours than during the paper-chart era. The EHR is a template-

“The EHR is a tool. The key to making any tool work appropriately for you is to learn how to

driven system, and the more complex efforts to perform “data entry” become a major impediment to delivery of care.

That is not to say that there have not been major benefits and, in the early days of any process, it is easy to focus on the negative. The EHR has clearly helped us with governmental compliance, legibility, record permanency, pre-populating notes, and potentially shorter encounters. This article will explore ways to leverage as much good out of your EHR as possible. By grooming your electronic health record, you might start to see the positives outweigh the negatives.

The EHR is a tool. The key to making any tool work appropriately for you is to learn how to use it. Computers have the advantage of being programmable, and therefore malleable to the needs of a number of different users. Unlike most tools, which have only one right way to use them, your EHR can be made to work to your style. The good news is that you don’t need to be a programmer to set up an EHR to work in your favor.

TOP 5 EHRs IN THE U.S. BY MARKET SHARE

Epic

30.9%

Cerner

25.1%

MEDITECH

14.7%

Evident

8.1%

Allscripts

5.7%

Epic and Cerner, combined, comprise over 50% of the health information technology market. Bigger healthcare systems appear to favor Epic, and ambulatory centers appear to favor Cerner.

use it.”

WHAT CAN YOUR EHR DO FOR YOU? 1. Help you type Yes, actually. Many EHRs have autocorrect functions. If you commonly misspell something, enter it into the autocorrect dictionary. Amytriptiline becomes “amitriptyline” without a second thought.

You can also use this as a shortcut. Enter an abbreviation for any string in autocorrect, and every time you enter the shorter string, the entire phrase will be entered. Nonstandard abbreviations can be normalized.

Dr. Mehta created a helpful tutorial video to illustrate the key points of this article. Watch: bit.ly/pmtoolbox-ehr-video

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2. Achieve more meaningful communication with patients The 21st Century Cures Act was signed into law in 2016. One of the mandates is increased

transparency for patient access to your notes and tests you have ordered.

This means that not only may patients get results before you see them, but they will also be able to read many of your notes just as written.

Notwithstanding the lack of medical education in the general public leading to much confusion and perhaps concern, the medical language we use will raise a myriad of questions. Save yourself from the inbox messages and phone calls by cleaning up dialogue.

With autocorrect, you can type SOB and have the EHR correctly write out “shortness of breath,” PO to “by mouth,” and BRBPR to “bright red blood per rectum.” These shorthand notations were developed when writing was done by hand, but we are not tied to that now.

Patient portals, or your “inbox,” are another common consumer of overall computer time. Answering questions this way has the advantage of permanency in the record but is also a source of after-hours computer time and potentially overall frustration. As with anything, there will be respectful users of your time, and perhaps patients who abuse this system. Use the system at a balance, benefiting you and your patients. If that balance is lopsided, don’t be afraid to ask the patient to make an appointment to address their questions and advise them the portal is not a good place for urgent or detailed dialogue.

3. Reduce your workload For more control, create a smart phrase. In Epic, these are preceded by a dot, so “.PREP” could print out the entire bowel prep regimen stepby-step. Like autocorrect, you need to set these up. That is a little time consuming but will pay dividends in the long run. Please note, you can usually look at others’ smart phrases in Epic, and these are not proprietary to the user, so they can be copied and pasted into your own smart phrases.

The EHR gGastro has MACROs that operate similarly.

You can create your own drop-down lists. In Epic, these are called “smart lists.” You can give the list a name,

suggest the default, and connection logic (“and/or”). An example of this would be a letter to a patient explaining the number of polyps, type of histology, and years until follow up.

Instead of typing this out, the smart phrase contains the various smart lists which show up as numbers to pick or words of explanation in drop-down format. Set this up, and you have a full letter in three or four clicks.  View an example of a smart list, see bit.ly/pmtoolbox-ehr-mehta-nemec 4. Document E/M coding (with a warning) Many EHRs support disease-specific templates. You can create a template for a patient with, say, abnormal liver enzymes, which covers all the historical points that you typically ask, as well as the orders that you would write. Not only will this help you and your patient, but oftentimes the more specific documentation leads to more accurate coding for billing!

ACG has spent considerable effort in developing guidelines in the evaluation and management (E/M) of most significant GI conditions. By building a smart phrase (or similar process in other EHR systems), you can incorporate the latest guideline into your note with one smart phrase or “ribbon.”  View an example of a smart phrase or ribbon, see bit.ly/pmtoolbox-ehrmehta-nemec However, you must be careful with templates. You are probably all aware that you can generate almost an entire note with all the past medical history, vitals, and usual note requirements.

Do not get too caught up in this.

Notes that claim a gastroenterologist examined the optic fundus will be suspicious. Cutting and pasting from your prior note, in part, is fine. Just keep in mind when you are writing it that it is a rolling history and that you will be building on it. You’ve all seen notes that say “awaiting x” even though it’s been done for days.

Do not be that person. Copying and pasting others’ notes is not a good idea, as errors get perpetuated.

Also know that there is an element

of “note fatigue.” A longer note filled with pre-populated information tends to not get read. Change the font for your impression and plan, bold it, or even put it at the top above the computer-generated information. Still, a properly set-up note template is instrumental in making you efficient.

5. Make you look good Do you find yourself making the same teaching points? Make a smart phrase that encompasses the nature of Ranson’s criteria, the differential diagnosis for post-op hyperbilirubinemia, or a hyperlink to a reference article. One author here uses a smart phrase .STRATE when trying to stop the habitual restriction of nuts in patients with diverticulosis. This phrase inserts “see LL Strate, et al., Nut, corn, and popcorn consumption and the incidence of diverticular disease. JAMA. 300(8):90714, 2008 Aug 27.” By using these short cuts you can provide increased diagnostic accuracy, precision in the care you deliver for your patient, and thoroughness of documentation.

Epic has a tool called Synopsis, which allows chronological tracking of interventions and recorded outcomes.

For example, in IBD, you would record the patient's past history of interventions and status updates with semi-quantitative scores (e.g., HBI, CDAI, Mayo scores) via your template. Synopsis can generate a report that contains a rolling history of the patient's previous symptoms, treatments, and (most importantly) responses. At a glance, you could see the Mayo score and how it correlated with different biologics, calprotectin, or even seasonality.

Think about the power of this tool when evaluating DILI. Every drug used when overlying a graph of LFTs! 6. Order efficiently Admitting diagnoses can be set up to generate order sets (e.g., orders relevant to abnormal liver enzymes, variceal bleeding, or colonoscopy preparation). By creating an order set/smart phrase/macro (depending on your EHR), you can quickly and rapidly order all necessary tests in the evaluation and management of your patient's condition. Not only does this increase the efficiency of your orders, but it increases the consistency of your orders and the quality of your

GI.ORG/TOOLBOX | 13

patient care. Finally, it helps you to "remember" all the necessary orders for this condition. Did you “remember” that celiac disease can cause abnormal LFTs? It may or may not be relevant to your case, but there is the order to remind you to consider it.  View examples of an order set in Epic and gGastro for abnormal liver enzymes: bit.ly/ pmtoolbox-ehr-mehta-nemec 7. Remind yourself of something important Use the power of the computer to your advantage: it remembers everything you tell it to.

Do you find yourself repeatedly looking up, say, the management of pancreatic cysts? Or perhaps the ascites characteristics of nephrotic syndrome?

Create a smart phrase encompassing what you need to know, and you can pull it up in a note and then delete it after you’ve refreshed your thinking on this subject. This will save you from going back and forth to Google.

Let the computer remind you (or your staff) of the need for future care for a specific patient. If there is an imaging study that needs a follow-up study in six months, the computer can remind you when that is due. You or your support staff can use the reminder function to warn you when the IBD patient is due for routine labs, levels, vaccines, or if they have a TB evaluation due. Your EHR can be constructed to create appropriate recalls and reminders whether for labs, imaging, endoscopic procedures, vaccinations, etc. It only takes a little time to set this up in your EHR and your patients will benefit from your efforts.  View an example of a self-reminder in Epic: bit.ly/pmtoolbox-ehr-mehta-nemec 8. Separate the wheat from the chaff You can generally modify the EHR start page to show your schedule, notes, patient list, and any number of other factors. Each of these, in turn, can be modified to suit you. Choose the best formats that works for your needs. Are you on rounds in the hospital? Start with your patient list.

Endoscopy day? Start with your schedule.  View an example of a brief note in gGastro: bit.ly/pmtoolbox-ehr-mehta-nemec You can change the search function defaults, for example, to display notes from you, your partners, or your specialty first. This lets you hone in on what is probably most relevant to you as a consultant, and bypass those infamous notes from music therapy.

9. Use available metrics You are all probably familiar with the reports you get from your endoscopy report writing system, showing your ADR, how you compare to peers

14 | GI.ORG/TOOLBOX

“You’ve all seen notes that say “awaiting X” even though it’s been done for days. Do not be that person.”

and the national standards, how many sessile serrated lesions you find, and perhaps your time efficiency in the GI Lab. Did you know there are similar, and even much more robust, resources available to assess how efficiently you use your EHR time?

Epic is constantly tracking everything you do. What times are you logged on, how much time you spend in your basket answering messages, how much time writing orders, and how much time in chart review. It tracks how much time you spend writing notes, how many characters are in your average note, and even how much of that note is cut and paste vs original writing. This data is presented in a pathway called Signals. It is overwhelmingly thorough. Be aware the information is not blinded like your ADR data might be. You can see every person’s details in your section, in your hospital, and even across institutions. All centers using Epic are included. At a minimum executives, project directors, and managers qualify for access, so someone at your organization can get this information.  View an example of Epic Signals data on organizational efficiency: bit.ly/pmtoolboxehr-mehta-nemec

CONCLUSIONS Getting the most out of your EHR involves a little bit of setup time. But in the end, it saves you time, makes you look good, and shortens your workload instead of expanding it. This doesn’t just help you; it helps your patients.

The EHR is here to stay. You might as well use the power of the computer to remember and organize things for you, help you find information, and help you communicate effectively. As you free up time spent struggling with notes and orders, you can get back to doing what you do best—taking care of patients.

PRACTICAL STEPS TO IMPLEMENT THESE IDEAS: 1. Ask and answer the question: What makes my EHR so painful? (Pick your top three) 2. Ask and answer the question: What do I need to change in my EHR to make it more helpful to me? Use the data from Signals (if you are an Epic user), or just pick your top three.

An example of data summaries of EHR use in Epic.

3. Review some of the specific ideas attached to this article. Do you like any that you see?

4. Decide how much time you want to invest in the process. Do you want someone to set it up, show you how to use it, and just use it in a static fashion moving forward? Or do you want to do a “deep dive” on learning how to create and modify the EHR on the go? The more you invest, the greater the return, but we all know we have limits.

5. Take your preferred ideas from #1 through #3 above to your local EHR expert—those people really do exist! Take an active role in building the structure that addresses YOUR wants: whether it be through templates, smart phrases, short cuts, or different views.

6. Preview with partners and list “shortcuts” or EHR efficiencies that they have found or developed for various tasks or documentation, list them, and disperse to others to improve group efficiency. This can also be done on a staff level and revisit biannually to update ideas. We all have different skill sets and can empower others in the group.

8. Show others how you have improved the generic EHR at your hospital or practice. This will not only help your colleagues, but as you instruct others, you will become a local expert.

7. As you learn how to make your EHR work for you, you can identify other areas for improvement and efficiency.

Manoj K. Mehta, MD, FACG Endoscopy Center of the North Shore, Wilmette, IL

Richard L. Nemec, MD, FACG Winchester Gastroenterology Associates, Winchester, VA

GI.ORG/TOOLBOX | 15

with gastrointestinal diseases.

Beyond this simple definition, the role of a GIH can look very different from place-to-place.

Most often, the GIH role includes some combination of providing consultative services, performing endoscopic procedures, and supervising GI trainees and physician extenders. For this reason, the position often appeals to those with a strong interest in clinical education.

Some GIHs may additionally choose to have an outpatient practice in a reduced capacity. Being centrally located at the hospital also positions the GIH for additional leadership roles in hospital administration, quality improvement, education and research.

Overall, the experience can be tailored to the GIH’s individual interests, thus making flexibility one of the more appealing aspects of the job.

I was fortunate that the opportunity at NYU found its way to me but the path to becoming a GIH is not always clear.

In Retrospect: Perspectives from a GI Hospitalist

By Melissa Latorre, MD, MS

IN 2016, WHILE LOOKING FOR MY FIRST JOB OUT OF FELLOWSHIP, I received an email that NYU was looking for a GI Hospitalist (GIH). Having worked previously as a medicine hospitalist, this email immediately piqued my interest. Until then, it had not occurred to me that this could be a career path within GI but, given my prior experiences, I saw the potential to improve upon inpatient GI care.

I accepted the position, which generated a few perplexed looks from my colleagues, and without much precedent, I set forth to carve my own path as a GIH.

A DEFINITION OF THE GI HOSPITALIST EXPERIENCE If we extrapolate from the definition of a medicine hospitalist, a GIH is someone who predominantly cares for hospitalized patients

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“The GIH model increases inpatient and outpatient endoscopic procedural volume, reduces unnecessary costs, shortens time-to-endoscopy, and decreases complications.”

A MINDSET FOR SUCCESS AS A GI HOSPITALIST Certain personality traits, preferences and skills lend themselves well to a hospitalist role. Looking back, the first sign that I would evolve into a GIH was that I always had a inclination for the quick pace of the inpatient world.

As a GIH, it helps to be adaptable to the unpredictability of the day and to be capable of executing quick judgement with a calm temperament when life-threatening situations arise. The hospitalist role demands mental agility to be able to multitask, prioritize, forethink and prognosticate for multiple patients at the same time.

Additionally, hospitalists need to be able to simplify complex procedures into manageable steps and remain sensitive to the individual needs of each learner and team member.

Patience is also important when working as a clinical educator and leader. In taking care of inherently sicker patients there will be complications and losses, but also lifesaving successes. It is important for

“It is important for the GIH to remember that the goal is always to keep patients with chronic diseases out of the hospital and to work closely with their outpatient gastroenterologist to implement preventative strategies.” a GIH to be tolerant of the emotional waves associated with the role. The hospital environment generates an incredible spirit of teamwork and comradery which is often appreciated by those who enjoy multidisciplinary engagement. Finally, a GIH position caters well to those whose image of work-life balance is to leave their clinical responsibilities within the walls of the hospital.

“GI HOSPITALIST HANGOUT”— CREATING A VIRTUAL NETWORK Since becoming a GIH, I have been fortunate to meet a few other physicians in this role and to help others gstart their careers.

I had long been searching for the right opportunity to introduce everyone and this new era of video conferencing lent itself well for the occasion. In January 2021, I hosted the first ever “GI Hospitalist Hangout” which virtually connected twelve GIHs from across the country. When the meeting began, we were all amazed to see so many faces on the screen, especially since many of us had perceived ourselves to be a rare breed of gastroenterologist. The enthusiasm was palpable, and we were all excited to have finally found like-minded individuals who shared a similar passion for inpatient GI care.

We reflected upon our common experiences as GIHs and share a few of our insights below: 1. Sometimes the simplest GI problems (e.g., hemorrhoids, chronic anemia), the ones deemed acceptable for outpatient follow-up in lieu of inpatient evaluation, can contribute to frequent readmissions. For certain patients, such as those with

chronic illnesses or complex medical issues, GI issues are best managed proactively.

2. Delays in care have profound effects on hospital operations and throughput. A GIH understands the value in timely endoscopic evaluation and care. In the recent pandemic with hospitals operating in states of overflow, delays in discharge have profound impacts on resources. For the GIH, this means helping to ensure timely endoscopic procedures, such as percutaneous gastrostomy tube placement for patients with SARSCoV-2.

3. Some patients with chronic GI conditions may see the GIH more regularly than their outpatient gastroenterologist. There is the potential for paradoxical continuity of care on the inpatient side. It is important for the GIH to remember that the goal is always to keep patients with chronic diseases out of the hospital and to work closely with their outpatient gastroenterologist to implement preventative strategies.

model for inpatient GI care as it has for general medicine. So far studies have shown that the GIH model increases inpatient and outpatient endoscopic procedural volume, reduces unnecessary costs, shortens time-to-endoscopy, and decreases complications.1-6 Following our initial “GI Hospitalist Hangout,” the idea for a Society of GI Hospitalists came to life. Alongside my fellow GIHs we vowed to raise awareness of the GIH model, to demonstrate its value through research and to provide support for anyone considering a career as a GIH. By sharing our insights and experiences, we hope to inspire the next generation of GIHs.

REFERENCES 4. Schoeppner HL, Miller SL. Developing a gastroenterology hospitalist service. Gastrointest Endosc Clin N Am 2006;16:743-50.

5. Overholt BF, Wagonfeld JB, Miller SL, Oblinger M. Revenue enhancement for the practice and the endoscopic ambulatory surgery center. Gastrointest Endosc Clin N Am 2002;12:385-93.

6. Shung D, Hung H, Laine L, Hughes M. Adopting a GI Hospitalist Model: A New Method for Increasing Procedural Volume. Session: Oral Paper Presentations - General Endoscopy presented at the American College of Gastroenterology Annual Scientific Meeting 2020.

7. Hughes M, Sun E, Enslin S, Kaul V. The Role of the Gastroenterology Hospitalist in Modern Practice.

Gastroenterology & Hepatology 2020;16.

8. Latorre M, Meneses M, Arbuah N, Adenikinju A, Wasterlain A, Swensen S. Multidisciplinary Quality Improvement Initiative to Reduce Bowel Complications in Post-Operative Orthopedic Patients. Am J Gastroenterol. 2019;114:S73-S74.

9. Levine I, Hong S, Bhakta D, McNeill MB, Gross S, Latorre M. Predictors of Hospital Readmission Among Patients With Obscure Gastrointestinal Bleeding Following Inpatient Capsule Endoscopy. Am J Gastroenterol. 2019;114:S665.

10. Tran J, Kimmel J, Betesh A, et al. Effect of a Team-Based Approach to Improve Enteral Access Decision-Making. Am J Gastroenterol. 2018;113:S607.

11. Mahadev S. LB, Ramirez I., Garcia-Carrasquillo R.J., Freedberg, D.E. . Transition to a GI Hospitalist System

A MODEL FOR INPATIENT GI CARE Since receiving that first email there has been a growing demand for GIHs and it is likely that will become the preferred

is Associated with Expedited Upper Endoscopy.

Gastroenterology. 2016;150[4]:S639-40.

“As a GIH, it helps to be adaptable to the unpredictability of the day and to be capable of executing quick judgement with a calm temperament when life-threatening situations arise.”

Melissa Latorre, MD, MS Director, Inpatient GI Services at Tisch Hospital & Kimmel Pavilion; Director, Enteral Access Team, NYU Langone Health; Assistant Professor of Medicine, NYU School of Medicine

GI.ORG/TOOLBOX | 17

// COVER STORY

It is March 2020. It’s 6:30 pm on Thursday evening and you are sitting in the middle of a Department meeting being held on Zoom. You watch as colleagues become more and more impatient, discussing who will be covering extra teaching attending and overnight call responsibilities due to concerns about attempts to minimize COVID exposure to those colleagues with risk factors that may portend a poor prognosis. The conversation becomes somewhat heated and you feel your impatience beginning to surface as there are other things that you feel could be more productive and efficient for you to be focusing on. —Dr. Hass 20 | GI.ORG/TOOLBOX

S

Suddenly, you unmute yourself and blurt out, “I’ve got to go, this conversation is truly a waste of time.” You press the “leave meeting” button.

Initially, you feel empowered and satisfied.

I showed “them” how inefficient they are.

My time is too valuable to waste on aimless conversations, you think to yourself. However, after a minute, you begin to reflect. What might the conversation on the call be focusing on now? Me? My actions? What is the emotional wake that I have just left behind?

Did my frustration lead me to behave in a way that did not reflect the best version of myself? Maybe if I had paused, taken a deep breath, analyzed how I was feeling and why I was feeling that way, I could have moderated and expressed my response more effectively.

"Gosh, now I may have to do some damage control," you think. As you reflect, you realize that these types of actions or, more accurately, “reactions” will not help me accomplish my goals of making my colleagues function more efficiently and having my input viewed as collaborative and effective.

The concept of “feelings” is one that we don’t address often in medicine. Emotions play an integral role into what makes all of us human. However, emotions often cloud our judgment, expose our vulnerabilities in ways we may not want them to, and ultimately lead us to express ourselves or act in ways we wish we hadn’t.

The field of Emotional Intelligence (EI) has blossomed in recent years and is applicable to everyone and every industry. Originally defined by psychologists Peter Salovey and John Mayer in 1990, EI is “the ability to monitor one’s own and others’ feelings and emotions to discriminate among them and to use this information to guide one’s thinking and actions.”

Why EI? Often, suppressing or ignoring our emotions or feelings leads to unwanted outcomes and situations. A recent Gallup poll revealed that over 50% of employees are unengaged at work, and 13% report they are “miserable.”

From 2016–2017, one in three students at U.S. college campuses surveyed reported diagnosed mental health conditions. The goal of EI is to allow us to accept our emotions, understand and regulate them so as to live healthier, more productive lives, and to make smarter choices and more impactful and constructive decisions.

Professor Marc Brackett, Director of the Yale University Center for Emotional Intelligence, is a pioneer in this field. The Center for Emotional Intelligence has a distinct goal: “to use the power of emotions to create a healthier and more equitable, innovative and compassionate society,” states Dr. Brackett in his new thought provoking book Permission to Feel.

Imagine if all of us were able to give ourselves the permission to feel any way we did, but then used that information in constructive ways to create better solutions to problems, and become more effective resources for our patients, our colleagues, and ourselves. Data supports that this will lead to more personal and professional satisfaction, less job stress, less fatigue and burnout, and better quality care delivered.

It is difficult to accurately and specifically describe how one “feels” at any given moment.

Often we respond when asked with words like “fine” or “good” or “OK.” EI challenges individuals to dive deeper and try to recognize, understand, and label more specifically how one feels in response to any given stimulus or situation. By doing this, we learn to express ourselves more clearly to others while regulating our responses. This will ultimately lead to better professional and personal relationships and better collaboration, teamwork, and quality in our home lives and professional settings.

The RULER Methodology The tenets of the “RULER” Method developed

by Dr. Brackett are detailed in Figure 1. It aims to help individuals recognize, understand, and label his/her emotions. By incorporating these reflective practices, one will hopefully be able to better express and regulate one’s response.

This RULER methodology has been validated in many settings and is currently being implemented into school systems nationwide as part of a core curricular endeavor. The hope and goal of this implementation is that students, educators, and administrators will all subscribe to this methodology to create an environment that optimizes learning while recognizing individual challenges faced by teachers and students alike.

There is one simple question that many of us ask each other in passing every day. “How are you? How are you doing?” Paradoxically, we inquire with one another, but most times don’t ever expect or desire an honest answer.

We expect the reflexive, “Fine, how are you?”

“

“The goal of EI is to allow us to accept our emotions,

understand, and regulate them so as to live healthier, more productive lives, and to make smarter choices and more impactful and constructive decisions.”

—Dr. Hass

or “Great, thanks and you?” This is normal as we have an instinct not to show our vulnerability and admit that all might NOT be OK or great, as if it would reflect weakness or ineptitude. EI turns this notion on its head. Though it might be risky or inconvenient to share how we are truly feeling when asked, suppression of those feelings only makes them stronger and build up and affect all of our interactions and relationships. If we don’t express our emotions, “they pile up like a debt that will eventually come due,” states Dr. Brackett.

Why Feelings Matter Our feelings matter most in the following ways. Our emotional state determines what we remember and how we learn. Emotions affect our decision making, as we perceive the world differently depending on the mood that we are in. A study evaluating teachers asked to recall a positive memory and then grade an exam compared with teachers asked to recall a negative memory asked to grade the same exam revealed that those who recalled negative memories graded the same test a full grade level lower. When these same educators were asked if they felt that their mood affected their evaluation of the papers, 87% said no. This suggests that emotions subjectively affect our decision making and analytical skills.

Emotions affect our social relations and our mood, words, and non-verbal cues signal others to approach or avoid. Those with robust social networks enjoy better physical and mental health and data also suggests that those with more enhanced networks live longer. Emotions modulate our health through endorphin release and neurotransmitter release. Finally, emotions impact our creativity and performance levels. Positive

R

ecognizing emotions in self and others

U

nderstanding the causes and consequences of emotions

L

abeling emotions accurately

E

xpressing emotions appropriately

R

egulating emotions effectively

Figure 1. The RULER Methodology as described by Marc Brackett, PhD. Permission to Feel, 2019

GI.ORG/TOOLBOX | 21

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PRESENTATIONS: ACG Education Universe Emotional Intelligence Module The ACG Education Universe offers an Emotional Intelligence Learning Module, developed by Dr. Ancello, Dr. Bhatt and Dr. Agbim. To maximize this activity, participants are encouraged to review all 8 lectures in order. Lecture 1 is an Introduction to EI. Lectures 2 to 5 cover the 4 domains of EI. Lectures 6 to 8 offer recommendations on how to incorporate EI into practice, leadership roles, and everyday life.

• Lecture 1 EI Introduction Sara Ancello, DO • Lecture 2 Self-Awareness Uchenna A. Agbim, MD • Lecture 3 Self-Management Divya B. Bhatt, MD • Lecture 4 Social Awareness Meir Mizrahi, MD • Lecture 5 Relationship Management Elizabeth R. Paine, MD, FACG • Lecture 6 Communication Calvin Chou, MD, PhD • Lecture 7 Implicit Bias Mitigation Michelle Guy, MD • Lecture 8 Maximize Your Performance Aasma Shaukat, MD, MPH, FACG  WATCH: universe.gi.org/modulelist.asp

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Resource List for Further Reading on Emotional Intelligence • Bradberry T, Greaves J. Emotional Intelligence 2.0. Talent Smart. San Diego, CA; 2009.

• Goleman, Daniel. Emotional Intelligence.

Bantam Dell. New York, NY; 2005.

• True MW, Folaron I, Colburn JA, Wardian JL, Hawley-Molloy JS, Hartzell JD. Leadership Training in Graduate Medical Education: Time for a Requirement? Mil Med. 2019.

• Mintz LJ, Stoller JK. A Systematic Review of Physician Leadership and Emotional intelligence. J Grad Med Educ.

2014;6(1):21-31.

• Holliday EB, Bonner JA, Formenti SC, et al. Emotional Intelligence and Burnout in Academic Radiation Oncology Chairs.

J Healthc Manag. 2017;62(5):302-313.

• Hollis RH, Theiss LM, Gullick AA, et al.

Emotional intelligence in Surgery is Associated with Resident Job Satisfaction. The Journal of Surgical Research. 2017;209:178-183.

emotions help to promote divergent thinking and creative problem solving, which yields a positive feedback loop to promote happiness and feeling good.

EI in Your Leadership Toolbox Emotional intelligence enables individuals to think more honestly, creatively, and critically self-reflect in order to get better results from ourselves and our colleagues. It doesn’t allow feelings to impair that process; in fact, it restores balance to our thought processes and prevents emotions from having excessive influence over our actions.

Thus, if EI were part of one’s leadership toolbox, the vignette at the beginning of this piece may have had a very different outcome.

The physician described could have recognized and understood how s/he was feeling, labeled those emotions so as to disempower them and their ability to impair for proper communication, and in turn allowed for productive expression of one’s opinion in a more tactful way. If medicine were to implement EI as part of a medical school or postgraduate training curricular pillar, this very well could help all colleagues enjoy more personal and professional satisfaction and assist with combatting the other pandemic we are presently facing, professional burnout.

About Dr. Hass Director of Endoscopy, Yale-New Haven Hospital-Saint Raphael Campus; Associate Clinical Professor of Medicine, Yale University School of Medicine; Medical Director, PACT Gastroenterology Center, Hamden, CT

Introduction to Emotional Intelligence Sara E. Ancello, DO

Determination leads to success, but what determines who will succeed?

It is undeniable that qualities like

knowledge, education, and power play a role, but there is something else that society does not account for. While there are many reasons that highly skilled people struggle and others with seemingly fewer skills flourish, let us consider the role of Emotional Intelligence (EI). In short, Emotional Intelligence is the ability to identify our own emotions and the emotions of others, and use them to guide our thinking and behavior to better manage relationships. In practice, however, EI is much more than just a simple sentence.

How to Avoid “Emotional Hijacking” Did you know that only about onethird of people are able to accurately identify their own emotions? In other words, two-thirds of people are missing the opportunity to understand their emotions and guide their own behavior.

In lacking this understanding, there is a higher likelihood of falling victim to something called “emotional hijacking.”

This is when high-intensity emotions intrude and shape a person’s actions.

Imagine you are driving down the highway, when suddenly another driver cuts you off. You quickly swerve into the shoulder to avoid hitting other drivers and just miss taking out a road sign. Your heart is pounding in your chest and your adrenaline is rushing through your body. You are feeling terrified and furious at the same time.

Now, pause for a minute to consider what you would do next. Are you the type of driver who would take a deep breath, shake it off, and continue along to your destination? Or are you the type of driver that would step on the gas, follow the person who cut you off, and signal to them to express how enraged you are?

If your reaction is the latter, it is a classic example of “emotional hijacking,” and many would call it “road rage.” It is here that we must consider Aristotle’s words, “anyone can become angry—that is easy. But to be angry with the right person, to the right degree, at the right time, for the right purpose, and in the right way—that is not easy.” EI calls for an understanding of our own tendencies across situations. This “road rage”

scenario is one way to consider our own tendencies across similar scenarios, and once we are able to recognize this, we can use it to control our behavior in the future.

Why EI Matters for GI High-proficiency EI has been linked to improved job satisfaction, physician wellness, and may even reduce burnout. It can improve communication, peer and patient relationships, and encourage successful professional interactions. EI is an essential component for organizational and leadership development, negotiation, and conflict resolution– skills that are necessary for medical directors, division chiefs, department chairs, and other leadership roles. However, even as EI has continued to gain a foothold in popular and business culture, the professional development of EI in medicine continues to be lacking. This is why the American College of Gastroenterology has decided to shine a spotlight on this important topic.

The Major Domains of Emotional Intelligence EI is composed of four major domains: SelfAwareness, Self-Management, Social Awareness and Relationship Management. Self-Awareness is the ability to understand yourself and your tendencies across many different situations. SelfManagement focuses on using the awareness of your own emotions to direct your own behavior.

Social Awareness is the ability to pick up accurately on the emotions of others and Relationship Management is using your awareness of your own and others’ emotions to manage interactions successfully. By analyzing the principles of EI, we can implement a series of techniques and strategies within these domains that address our own areas for improvement and strengthen the skills we already have. As physicians, high Emotional Intelligence is a key tool that will undoubtedly help us to achieve better relationships with our peers, our patients, and drive us toward success.

“By analyzing the principles of EI, we can implement a series of techniques and strategies within these domains that address our own areas for improvement and strengthen the skills we already

About Dr. Ancello Dr. Ancello is a gastroenterologist at Central Arizona Medical Associates.

She received her medical degree from Nova Southeastern University, College of Osteopathic Medicine in Florida. She completed her internal medicine residency as Chief Resident at Rowan University in New Jersey. She then moved to Arizona to complete her fellowship in gastroenterology through Midwestern University at Mountain Vista Medical Center, where she led her colleagues as Chief Fellow for two years. Dr. Ancello also serves as a Clinical Assistant Professor of Medicine at Midwestern University in Phoenix, Arizona.

have.”

—Dr. Ancello

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Emotional Intelligence: Self-Awareness Uchenna A. Agbim, MD Do you recall the last time you procrastinated on a project for clinic? How about you when you said “Yes” to serving on a hospital committee that your boss suggested, but you really wanted to respond with, “Thank you for considering me, but I am not able to commit to the committee at this time” (in essence, “No”) because you are already overextended.

Or, more simply put, what was occurring in your mind when you engaged in an action (or perhaps, inaction) that eventually you regretted. What thoughts and feelings did you have during those times? Exploring these thoughts and subsequent feelings on a routine basis are fundamentals of Self-Awareness.

Self-Awareness: The Bedrock of Emotional Intelligence Self-Awareness refers to the intrinsic ability to recognize one’s thoughts, feelings, and responses to situations. It serves as the bedrock upon which the other emotional intelligence (EI) domains rely, as (1) controlling one’s emotions (Self-Management) requires good Self-Awareness; (2) recognizing the pulse of group settings (Social Awareness) rests on having sufficient appreciation of one’s own awareness; and (3) navigating the world of social connections (Social Management) mandates sufficient Self-Awareness. Developing Self-Awareness assists in leveraging other key features of EI. Becoming more self aware sounds easy, but in reality it requires considerable patience

WATCH all 8 Learning Modules on Emotional Intelligence on the ACG Education Universe: universe.gi.org/modulelist.asp

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and curiosity to explore one’s mindset, values, strengths, and limitations. In general, life consists of numerous neutral situations or circumstances in which we develop thoughts about these circumstances. Subsequently, these thoughts engender specific feelings or emotions. From these feelings and emotions, we engage in an action or inaction. SelfAwareness relies on continuous appraisal of self, requiring considerable inward observation and reflection.

Being a Passive Observer of Your Own Behavior One method to heighten Self-Awareness is acting as a passive observer of your own behavior. This method requires mindfulness.

Ultimately, you must step back from the situation at hand and note—with curiosity and compassion—the feelings, patterns, and reasons behind your behavior. Labeling the feelings can be powerful, and some people even note the associated physical sensations experienced. Then, it may help to ask yourself why you felt this way and responded in the manner you did. Essentially, it means pondering what thoughts ignited the feelings that were perceived. How you think about a situation dictates the feeling experienced. If you want to change the way you feel, a change in the underlying thought is necessary. This requires doing a deep dive into your thoughts and questioning whether those thoughts benefit you. This type of metacognition and evaluation is a crucial component of developing Self-Awareness.

Similarly, journaling serves as one strategy to capture these thoughts, feelings, and emotions, as well as a method to commit to thought work and your mindset. Others employ meditation or even coaching.

Nevertheless, finding some type of avenue in which you can ponder, reflect, and work on

“Self-evaluation does not entail being hard on yourself but recognizing your successes, as well as acknowledging your limitations.

It consists of reflecting on your values and if you are being true to them.”

—Dr. Agbim

your thoughts and subsequent feelings will assist with developing increased Self-Awareness.

Another approach to increase Self-Awareness is self-evaluation and eliciting feedback from others. Self-evaluation does not entail being hard on yourself but recognizing your successes as well as acknowledging your limitations. It consists of reflecting on your values and if you are being true to them. Because we all have degrees of bias, seeking feedback or an evaluative assessment from individuals whom you interact with and populate your social and professional world can broaden your perspective.

These approaches, along with many others, remain critical to enhancing Self-Awareness.

Ultimately, successful and noteworthy leadership rests on how an individual leads and comports oneself. This starts with Self-Awareness.

About Dr. Agbim Dr. Uchenna Agbim works as a transplant hepatologist and gastroenterologist. Dr. Agbim is a graduate of Baylor College of Medicine. She completed her internal medicine residency at UCSF Department of Medicine in San Francisco, CA and her gastroenterology and transplant hepatology fellowships at New York Presbyterian—Columbia University in New York, NY.

Emotional Intelligence: Self-Management Divya B. Bhatt, MD

Self-Management is the second domain of Emotional Intelligence and builds on SelfAwareness. Self-Management is the ability to use Self-Awareness techniques to understand one’s emotional response, and subsequently use that understanding to determine the most effective course of action. Once a person understands what they feel, and why, they can subsequently begin to identify their triggers and redirect their behavior patterns in a more productive way.

The First Tenet of Self-Management is Impulse Control Impulse control means to think before you act or react. Most of us have sent an angry email or said something that we later regretted. In SelfManagement, it is critical to distinguish between another person’s actions, and your reaction.

However, impulse control does not mean allowing others to take advantage of you. For example, it is normal to feel irritation when dealing with a

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rude patient or a frustrated staff member. Impulse control dictates that you respond in a calm, yet authoritative, manner regardless of your inner emotions.

How do we control our impulses? Start by watching your own behaviors closely, and ask yourself, “Why do I act, or react, in this way?” Try to analyze your actions, especially while under stress. That way, you will begin to determine how certain stimuli activates your responses. Then, use that awareness to “retrain your brain.”

Adaptability & Flexibility Another tenet of Self-Management is being able to adapt to changing circumstances. No one could have predicted the changes we have endured over the last year, and the challenges we continue to face. Being able to assess our emotions, in response to an unforeseen event, allows us to adapt our behavior more easily. Furthermore, the ability to be flexible gives us the space to take more risks and try something new, even if we may not succeed.

Being more adaptable allows us to emotionally bounce back from failure, seeing it instead as redirection.

How do we become more adaptable? Learn to see obstacles as opportunities for growth. Most people, especially high-achieving professionals, prefer a structured and stable routine. However, if you train yourself to view uncertainty as “full of possibility” instead, you will start to think of creative solutions. For example, a research article addressing colorectal cancer screening could be rejected from the gastroenterology journal of your dreams, but might become the featured article in a preventive healthcare journal. Don’t let setbacks undermine the pursuit of your goals.

Taking Responsibility for Emotional Growth Another technique of Self-Management is taking personal responsibility. This means taking initiative, following through on commitments, and taking responsibility for your emotional growth. Part of this process is recognizing that your actions may have unintended negative effects on others. For example, if you typically “suffer in silence” until you become overwhelmed, your colleagues may avoid asking you to participate in an important project because of fears about adding to your workload. Instead, start to learn your limitations and remember that collaboration can open more avenues in the future. Ask for help and feedback often.

How do we take personal responsibility?

First, understand that harnessing your emotions effectively and learning to manage your tendencies

“No one could have predicted the changes we have endured over the last year, and the challenges we continue to face.

Being able to assess our emotions, in

takes time and effort. Take a step back from the moment and think about achieving your long-term vision. Your emotional growth is your responsibility. It is hard work, but only you can do it.

About Dr. Bhatt Dr. Bhatt is Assistant Professor of Medicine, UT Southwestern Medical Center, VA North Texas Healthcare System. She grew up in San Diego, California and completed medical school and internal medicine residency at the University of Illinois College of Medicine in Chicago, Illinois.

She completed gastroenterology fellowship at the University of Arizona College of Medicine in Phoenix, Arizona in 2018. Her areas of interest include colorectal cancer screening and outcomes, process improvement, health disparities, and medical education. Currently, her clinical practice emphasizes patient-centered care for veterans at the Dallas Veterans Affairs Medical Center. In addition to medicine, Dr. Bhatt enjoys traveling, reading, dancing, and spending time with family and friends.

response to an unforeseen event, allows us to adapt our behavior more easily.”

—Dr. Bhatt

references 1. Salovey P and Mayer JD (1990). Emotional Intelligence. Imagination, Cognition and Personality, 9(3), 185-211.

2. Kelland K, (October 9, 2018). Mental health crisis could cost the world $16 trillion by 2030. Reuters.

3. Lipson SK, Lattie EG, and Eisenberg D. (2018).

Increased rates of mental health service utilization

by US college student: 10-year population–level trends (2007-2017). Psychiatric Services, 70(1), 60-63.

4. Brackett, M et al. Emotional intelligence: The Influence of Teacher Emotion on Grading Practices: A Preliminary Look at the Evaluation of Student Writing. Teachers and Teaching, 19(6); 634-646.

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GETTING it Right Thank Uncle Sam for your Pay Increase in 2021 A Bureaucratic Rule Change May Impact Your Wallet

By Ann Bittinger, Esq.

WILL YOUR TAKE HOME PAY CHANGE THIS YEAR WITHOUT NEGOTIATING AN AMENDMENT TO YOUR EMPLOYMENT AGREEMENT OR ALTERING YOUR PRODUCTIVITY? If so, CMS may be the one to thank. Many employers, however, are taking steps to make sure CMS’ change does not increase physician pay.

WHAT HAPPENED? Effective January 1 each year, the Centers for Medicare and Medicaid Services (CMS) publishes its Medicare Physician Fee Schedule (MPFS).

Among other things, this administrative rule sets values for wRVUs (work relative value units) for each CPT code. Typically, the changes are not dramatic, but this year, CMS decided to recognize the increased work effort involved in office visits.

CMS increased the wRVU values for evaluation and management codes and other office-related codes by a substantial amount. For example, a 99212 was worth .48 wRVUs in 2020, but it increased by 46 percent to .7 in 2021. It does not take a mathematician to understand that a physician who bills 120 E&M codes like 99212s each week could see a fairly substantial increase.

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“On a microeconomic level, gastroenterologists whose practices rely largely on office visits as opposed to procedures may see an increase in pay.”

While CMS’ change was designed to impact reimbursement to employers for services to Medicare patients, physicians whose compensation is tied to wRVU productivity may see a big increase or decrease. CMS’ action impacted not only the value per CPT code but also the total amount of reimbursement per CPT code.

On a macroeconomic level, leading organizations estimate the impact for gastroenterology services generally to decrease 4 to 5 percent (largely due to the specialty being more procedure-heavy than other officebased specialties).

Yet, on a microeconomic level, gastroenterologists whose practices rely largely on office visits as opposed to procedures may see an increase in pay.

THIS IMPACTS MY WALLET? How does a federal administrative rule increase your pay? If you are paid a flat salary, it won’t. If you are on a collections minus expenses / “eat what you kill” compensation model, if overall Medicare payments go down 4 percent for GI generally then, all other things stable, you might see a 4 percent drop in your pay.

But if your base compensation or bonus is in any way tied to how many wRVUs you bill, then you will see a direct correlation between the CMS wRVU value changes and your compensation. Your pay will fluctuate based on the wRVU values CMS gives to the CPT codes you bill. If your employment agreement provides for a bonus of $40 per wRVU and the code you most frequently bill was worth .48 but is now worth .7, what had paid you $19.20 is now paying you $28.

A 20 percent increase on average in your CPT code values will result in a 20 percent increase in this component of your compensation.

THE FINE PRINT As always with physician employment agreements though, the precise wording of each physician’s contract matters.

A contract might define “wRVU” as “the value assigned by the then current Medicare Physician Fee Schedule.” Under that definition, the value changes in step with each new year’s MPFS values. Other contracts, however, lock the definition into a specific year’s MPFS: “the value assigned by the 2020 MPFS.” (Trust me, most new contracts I am reviewing now specifically state the 2020 MPFS). Others are silent as to year: “the value assigned

by CMS.” Others have expansive language that might suggest the most recent publication governs.

Many physician enterprises, particularly those that employ many internal medicine physicians, family practitioners, hematologists, oncologists, and endocrinologists are going to exceed budgets for physician compensation simply due to the MPFS increase for E&M codes. Many are desperately trying to stop that from happening by making the 2020 values apply to their physician compensation models for another year.

While the changes are not dramatic for gastroenterology codes and, therefore, the desperation may not be dramatic by leaders in GI specialty practices, that’s not the case in multispecialty practices. Generally, many physician enterprises want to use the same wRVU compensation formulas for all of their employed physicians. If the enterprise

leaders need to use the 2020 value to retain the status quo for pay for general practitioners, they are going to do the same for all employed physicians.

That could be a good thing for proceduralists. Generally, this change is impacting proceduralists the worst. Due to the changes in the 2021 MPFS, this is a good time to be in internal medicine, endocrinology and hepatology; it’s a bad time to be a surgeon, radiologist or other proceduralist. Gastroenterology falls about in the middle, with the impact largely dependent on the heaviness in the practice of procedures versus E&M codes. For proceduralists, locking in the 2020 rates for another year might be good.

Gastroenterologists may get caught in their physician enterprise’s broadlytossed net, though, being asked—along with all the employed physicians in the group or enterprise—to sign amendments to their employment agreements to freeze the definition of wRVU in their employment agreements to the 2020 value. I have been telling clients that if your employer is asking you to sign an amendment to your employment agreement to keep the 2020 MPFS, then it’s pretty likely that your contract says they are supposed to pay you based on the (probably higher) 2021 MPFS. They wouldn’t ask you to sign an amendment if they didn’t need to.

Other employers are being a bit more brash. Some employers are simply retaining the 2020 MPFS whether the physician employment agreements allow it or not. They do so at much legal risk. If the contract clearly mandates use of the 2021 MPFS, and the employer paid based on the 2020 MPFS, the employer could

“While the changes are not dramatic for gastroenterology codes and, therefore, the desperation may not be dramatic by leaders in GI specialty practices, that’s not the case in multispecialty practices”.

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“It does not take a mathematician to understand that a physician who bills 120 E&M codes like 99212s each week could see a fairly substantial increase.”

LET’S TALK Some leaders of physician enterprises are spending a lot of time and energy explaining the impact to physicians and asking them to be team players and to sign the amendment. Some of my clients in those situations are agreeing to a limited freeze on the MPFS values but asking for other things like higher call pay or more paid time off. When you are asked to come to the table, it is smart to place your order.

be liable for breach of contract. In that case, a court could order the employer to pay the physician the difference between what was paid based on the 2020 MPFS versus what the employee should have been paid using the 2021 MPFS. For a physician enterprise employing hundreds of physicians who, as a whole, could have a very large increase in pay between the two years, that’s a large financial exposure for the employer to face.

DUE DILIGENCE I have been telling physician clients in this situation to be sure to retain documentation of actual CPT codes billed in 2020 and in 2021. It’s not enough to simply track your wRVUs. A court will want to see exactly what you should have been paid versus what you were, and in a wRVU based compensation model that depends on each CPT code billed. While reports on CPT codes billed would likely be available upon subpoena, and maybe even upon request, it’s valuable for physicians to be able to do their own calculations (and share them with the employer) to work in good faith to remedy the breach by the employer prior to filing suit.

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CHANGE IT Once a physician determines if the contract requires the use of a certain year’s MPFS, it is important to determine whether the employer can change the employment agreement without the physician’s consent.

For example, if the agreement says the “then current” or “most recently published” MPFS must be used, is there something else in the employment agreement that allows the employer to change that? Most contracts do not allow the employer to unilaterally amend the contract.

This amendment issue due to wRVUs is déjà vu of last year’s COVID lockdown’s impact on physician pay.

This time last year, physicians whose compensation was based on wRVUs were unable to generate wRVUS when elective procedures were stopped. The employers whose physicians were paid based on wRVUs were the lucky ones; physician compensation expenses decreased as physician productivity decreased. The same is true for physicians on revenue minus expenses models. Administrators saw income from procedures decrease during lockdown, but at least physician compensation expenses were going down too. Contrast that to employers who paid physicians flat salaries. Many

of them simply docked physicians’ pay by 20 or so percent. The lucky few had force majeure or “act of God” clauses that might have allowed that. Many, though, had to ask physicians to sign amendments to their contracts or pressure them to take a hit for the team and volunteer to lower pay.

I have heard some argue that the provisions allowing employers to make changes to reflect fair market value would allow the employer to freeze the physician’s pay if the physician is slated to receive a big increase under the 2021 MPFS. I disagree that this is a fair market value issue. To the contrary, if anything is indicative of measure or standard for a fair value of a service, I would argue that the government’s published rate, applicable to all physicians everywhere per CPT code, fits the bill. Frankly, if the government says that office visits have been under-valued in the past, then employers should worry that their argument can be used against them to say that family practitioners have been paid less than fair market value in the past and that reparations are due based on the increase in 2021. Be careful what you argue for, employers.

In short, I’ve seen nothing that impacts physician pay more dramatically in 22 years of practice than the publication of the 2021 MPFS, coupled with the impact of decreased procedures for a short time during COVID. Never before have physicians needed to really understand the means by which the calculations on which they are paid are made.

Ann Bittinger, Esq., is a healthcare attorney with The Bittinger Law Firm and can be reached at ann@bittingerlaw.com

Help Me Out! LAW MIND

By Ann M. Bittinger, Esq.

Approaches to Negotiate Out of a Non-Compete with a Private Equity-Backed GI Practice With the increased market share of private equity-backed gastroenterology practices (“PE groups”) in the United States, I am often asked if PE groups’ non-compete agreements differ from other groups’ restrictions on post-termination competitive work. The answer is, as it often is to legal questions, “maybe.”

Non-compete agreements, also called restrictive covenants, are found in almost all physician employment agreements that I review.

There are five components to most non-competes: 1) a time frame, 2) a geographic area, 3) a description of prohibited activity, 4) triggering events and 5) exceptions. Many attorneys focus on just the first three elements, but in many cases the final two can be the most important to negotiate prior to signing the employment agreement.

A typical prohibition might read like this: “Physician agrees not to practice gastroenterology within a 20-mile radius of any Employer location during the term of this Agreement and for two years following termination; provided, however, this prohibition will not apply if Physician is terminated without cause or Physician terminates for cause, and it will not prohibit Physician from working for a company that is wholly-owned by individual physicians.”

Where PE groups’ non-competes tend to differ is the geographic area. The PE groups want to protect their intellectual property. They are perhaps less concerned about the physician luring patients away than about the departing physician

“Can an employer with a gigantic geographic footprint ban a physician from working anywhere within that footprint if the physician’s employment terminates?

Again, maybe.”

sharing with a new employer information about how the PE group is structured, who they deal with, pending acquisitions, practice purchase information, how scheduling is done, pricing and payment relationships with systems and payers, and other intellectual property matters. For that reason, they may ask physicians to sign non-competes that bar the physician from working for any competitor of the PE group. For a national PE group, the prohibited geographic area could, therefore, be vast. Even a prohibition against working within 20 miles of any of the PE group’s offices could be extremely expansive.

Would this type of contractual provision be enforceable? Again, maybe. While not specifically addressing PE groups, many state courts have in the last decade reviewed the fairness of non-competes in the greater context of the postconsolidation mega-group that is often a physician enterprise of a regional health system. Can an employer with a gigantic geographic footprint ban a physician from working anywhere within that footprint if the physician’s employment terminates?

Again, maybe.

State law is very important on this issue. Some states like Connecticut have laws that limit the geographic area

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and timeframe components. When negotiating a national-template physician employment agreement with a PE group, considerations may not have been made as to the enforceability in that state of that generic, template non-compete section that all physicians employed by the PE group anywhere sign. The challenge is that a physician does not know if a non-compete is enforceable until he or she asks for it not to be enforced.

There are two ways to ask that a signed non-compete not be enforced.

Of course, going straight to court is an option, although an expensive and indirect one. In most states, a physician can’t just ask a judge to read a term of his or her contract and ask if it is legal before taking a new job based on what the judge says about the existing non-compete. Instead, what usually happens is the former employer files for an injunction­—like a restraining order—in which the court would tell the physician he or she must stop working in violation of the non-compete. The problem with this, though, is that the physician must have already taken another job—perhaps committing to a term of employment and perhaps maybe even another non-compete. Additionally, in that new employment agreement the physician might promise that he or she is not subject to a non-compete from the previous job, so that if indeed the previous employer tries to enforce the non-compete, the new employer could fire the physician for breaking that promise that no non-compete exists.

That for-cause termination could carry additional penalties, like having to repay a signing bonus or having to buy tail insurance.

HOW CAN THIS BE AVOIDED? THE OFFBOARDING NEGOTIATION OPPORTUNITY In the stress surrounding an imminent termination of employment, physicians often overlook another option: asking that the non-compete be revised

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upon termination as departure terms are discussed. Just as things are negotiable when onboarding a new job, the terms under which a physician departs may also be negotiable. This can be especially true with nimble and business savvy PE groups. Many physicians ignore the offboarding negotiation opportunity and call me only after they have submitted notice of termination. It’s often too late.

Offboardings should be planned months in advance, if possible.

The key is to determine what matters to the employer. Does the employer need you to stay for six months when you only have to give 90 days’ notice of termination?

Can you give something to assist the employer—like agreeing to stay 4 additional months—in exchange for some exception or tweak to your non-compete that would allow you to take the job you want?

IDENTIFYING A NARROW EXCEPTION TO AN EXISTING NON-COMPETE Once you identify and establish your offboarding leverage, the next step is to try to identify a narrow exception to the existing non-compete that will allow you to take your desired job. The key is to elucidate how the new job will not be competitive with the existing job. Explain why the new job should not be threatening to the existing employer.

For example, is the new job in an area that falls within the generic, template non-compete language but is really far away from any group site such that no patients will follow the physician to the new job? Is the new employer somehow different from the existing employer such that the existing employer has nothing to lose from the physician working for that employer? Is the market different? Is the patient different? Are the procedures that the physician will do different? In an interesting Florida non-compete case, the exiting physician refused to see any of his prior employer’s patients at his new job, and the court sided with the physician. Would the existing employer waive the geographic area prohibition if the physician agreed not to see any of its patients?

Essentially, what the physician is doing is gently explaining to the employer that the non-compete that the employer

mandated is overly expansive, that the physician’s new job will not be competitive with the existing employer and, therefore, that a judge won’t enforce the prohibition. Rather than spend tens of thousands of dollars on litigation, the parties should aim to sign a separation agreement that leaves the non-compete in place for some situations (let the employer keep the restrictions that really matter) but that allows the physician to continue to earn a living.

The irony is that although PE groups’ non-competes can be brutal and generic, PE groups’ nimbleness often enables an offboarding negotiation that might allow the physician to evade the non-compete in a non-threatening way.

WHAT TO ASK WHEN NEGOTIATING OUT OF A SIGNED NON-COMPETE: Is there anything you can give to the current employer in exchange for a tweaked non-compete?

• Work longer than required so the employer can onboard a replacement?

• Agree to a more expansive non-compete in ways that matter to the employer?

• How would the potential job not threaten the current employer?

• Is the work you would do different?

• Is the employer’s market or patient base different?

• Could you agree not to see any patients that had been treated at the current practice?

Ann Bittinger, Esq. is an attorney with The Bittinger Law Firm and helps physicians onboard and offboard from their jobs. She can be reached at ann@bittingerlaw.com.