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Bill Prentice:
Hello and welcome to the Advancing Surgical Care podcast. My name is Bill Prentice. I’m the CEO of the Ambulatory Surgery Center Association and the host of this episode. We’re recording at ASCA’s annual convention and expo in Denver, Colorado. My guest who will join me in just a moment is Sal Puccio. Sal is an attorney and partner in the firm of Garfunkel Wild, with offices in New York and Washington, DC. Sal is an expert in employment law and has counseled clients on a wide range of workplace issues. Sal is a regular speaker at our annual meetings and was a presenter this week. He’s also been a guest on this podcast before.
As I travel the country and talk to ASCA members, employment issues always top the list of their biggest challenges, whether it’s recruitment and retention of happy qualified employees or dealing with the unfortunate disciplinary matters that occur. No one seems to escape these challenges. For that reason, I’m delighted to have Sal back with me now for a few minutes to discuss how ASC administrators should conduct proper employee evaluations, approach disciplinary actions and more.
Sal, welcome back to the podcast.
Sal Puccio:
Bill, thanks so much. Honored to be here and really appreciate the opportunity to be with ASCA this year in Denver.
Bill Prentice:
Thank you, Sal.
One of the things I really appreciate about your presentation is that you began by talking about leadership pointers and pitfalls and some of the best practices that you’ve encountered over your career. In other words, better to get it right at the start rather than have to remediate later. So, before we start to talk about performance evaluations and some of the more challenging employment issues you run across, why don’t you begin by talking about some of these leadership pointers and pitfalls and best practices?
Sal Puccio:
Bill, that’s a great place to start because what we found in our practice at Garfunkel is sometimes lawyers can just throw legalities at you, but we really want to focus on the practical approach. What I try to do in my practice and presentation is describe and discuss strategies that you can put in place as a leader to prevent those problems. And we use real life examples to teach that. And some of the most important pieces, they’re really simple, such as being present. I can’t tell you how many times we hear at an exit interview or in a lawsuit that management just wasn’t present. They weren’t on the floor, they weren’t at the surgery center participating in the day-to-day activities. So, that’s just an easy one. Other things to do are lead by example, speak politely to your staff, check in with them on a routine basis.
Don’t wait for a problem to come up to be present and ask what’s going on. Be present all the time. And if you just start with those basics and some details that we provide, including documentation of what’s going on day-to-day, then when you do have some of the issues that we’ll get into today, put that down on paper because everyone’s memory, two, three years later Bill, is going to be difficult to remember. Those are just some really great starting points to put you in the right place and minimize exposure costs and liabilities, and focus your efforts on patient care and continuing to drive revenue.
Bill Prentice:
That’s what we do at ASCA. We have weekly check-ins with staff as a way to make sure that if there’s a problem, let’s find out about it in real time so it can be addressed, and not have it linger and grow and grow and wait until the end of the year when you find out it’s something you really can’t mediate anymore.
Sal Puccio
That’s exactly right. I’m a big proponent of regular check-ins. There’s review season, right, that we all talk about, but we don’t have to wait until that review period to tell someone they can do something better. Or on the flip side, tell them they did a great job when they did something well.
Bill Prentice:
Sal, it’s also a great opportunity for an employee to tell their manager about something that maybe the manager’s doing that’s not sitting right or needs to be addressed. Absolutely. So, let’s turn to employee evaluations. Now, in my experience, one of the big challenges of assessing an employee’s performance has always been distinguishing objective measures from subjective evaluations. Can you talk about this distinction and why it’s so important that evaluations remain objective and include very certain performance metrics?
Sal Puccio:
Sure. From my perspective, there’s two main reasons why you want an objective performance evaluation. The first one is really it’s a goal of improvement. How are we going to maximize our staff and what services we’re providing to our patients, right? That’s your first priority at the forefront. And the second is where I come in as the attorney. It’s a way to limit potential exposure because when you have that objective performance evaluation, you can point back to that and show signs where the employee just wasn’t meeting the metrics of what you required. By way of example, I’m litigating a case right now for a client that did just that. They put the metrics in place, they had an objective evaluation and the employee is complaining of discrimination. Well, actually just this morning I got the response back saying that they dismissed the case because we pointed to in the record where it said fail to meet these tasks. It wasn’t about the person’s personality, it wasn’t about who they were, it was about what they were doing and we it to specific dates, times, and tasks, and it really worked in that client’s favor and allowed us to move forward with the right personnel.
Bill Prentice:
What a great example of how important that is.
Sal, another aspect of your presentation that I thought was spot on was the importance of setting real clear future goals that the employee understands will be reevaluated at a date certain in the future. Your presentation included some very useful forms relating to goal setting that I wish we could share with our listeners. Absence of the ability to do that, to give paper away on a podcast, can you talk about some of the most important measures that you’ve identified?
Sal Puccio:
Absolutely. And for our listeners, feel free to reach out and contact me. We can put you in touch with those forms and work through those issues. I find those forms to be really, really helpful in moving forward in the process on a day-to-day basis.
Bill Prentice:
What a great offer. Thank you for that.
Sal Puccio:
But to the original question, as we said earlier, I’m a really big believer of checking in periodically and seeing how things are going, so you don’t wait for a problem to come up. So, what we look to do is contact the employees if a problem comes up and get both sides of the story. Understand if there’s an issue, what we have to do to fix that, where we have to look. If there are particular performance issues, find out what those issues are and how we can improve them. Maybe it’s additional training, maybe it’s feedback. And then what you do is you set those trainings and you set benchmarks and depending upon the nature of the issue, it’s a case-by-case basis of course. But I had a case recently where we counseled the client who said there are pretty significant issues that we’re seeing with that employee. I recommend you do weekly check-ins. And those weekly check-ins turned up more and more problems that we didn’t even know existed. There are other situations where we say, you know what? This is really just a little bit more understanding our systems and our process because maybe you came from a different surgery center or a different healthcare provider. Let’s check in monthly and see how it goes. And that could work as well. So, you really have to determine the significance or severity of the performance issue and move on from there.
Bill Prentice:
Let’s talk about some of the more challenging issues that can arise from subpar performance or behavioral problems and how best to manage through those situations and take appropriate disciplinary action.
Sal Puccio:
So, we’re very cognizant at our firm. We work with healthcare providers all the time. There’s a real risk to patient safety if people are not performing properly or there’s distractions in the workplace. So, these employee issues, when they come up, they have to be dealt with immediately and properly. So, the first thing we want to do is we want to document the issues. We want to have an understanding of what’s going on that’ll help guide our investigation. If you’re a surgery center that has a human resources department, get in touch with those HR reps because they’re trained to deal with these issues and deal with the investigations. Maybe it’s outside counsel that can help you as well to guide you through some of the more challenging aspects. As we get into the issues, it might be appropriate to issue warnings, it might be appropriate to issue a suspension.
It depends on the circumstances. By way of a quick example, sometimes people are late and they’re showing up late and it’s now delaying all our services throughout the day. So, you sit down with the individual, find out why they’re late, explain that this is the required time that our patients show up. There’s an expectation that our patients have and that you’re the first line of defense to greet those patients in a professional way and then do our check-ins from there to make sure that they’re continuing to show up on time. It’s a small thing, a simple thing. If you do it appropriately, you probably get that employee on the right track and you don’t have an issue. If you don’t do it appropriately and you terminate that employee because they’re constantly late, I can almost guarantee they’re going to bring a claim against you for some other reason. And that’s just a snippet of what you can do in real time.
Bill Prentice:
So, you mentioned the word terminate, and so let’s talk about that a little bit. I know you have some very clear recommendations with respect to the steps that a manager or an employer has to take before terminating an employee. Talk about the importance of doing this the right way, both in terms of handling those situations respectfully, but also limiting liability.
Sal Puccio:
Absolutely. So, people always get a little concerned when I put the presentation together, and you’ll see in the slide for those of you who attended or get the materials, there’s a list of different bullets of steps you should take. I’m not suggesting you have to follow each one of those bullets in each situation. If there’s a major problem or a significant issue with a provider or an employee, you can terminate them right away. That would be certainly something that’s acceptable. And in those situations, especially with our providers, you want to check the contract you have, right? And that’s a whole other topic, Bill, we can get into, maybe at next year’s conference around the summer. But some of those provider contracts provide specific information about how you have to go about that termination. So, look into that. If we’re talking more about your office staff or back office staff or front desk receptionists, what we want to do is manage the situation, find out what’s going on, how we can stop it, if at all possible.
Then what you want to do is, again, review it with HR or administration, find out what should we do, what the need is and how can we move forward? So, some of the other tasks that we want to do or checks we could do, Bill, is verbal communications. It might be a verbal warning. Explain to someone that type of behavior, that type of language that you used in the office is inappropriate. Then we can move it up to a written warning. And what I talked about in the presentation is a performance improvement plan that’s going to lay out your specifics, your benchmarks, we’re going to check in with you in 90 days, and that’ll really guide the process to see where at the end of that period, if the person can meet the job requirements or not. And then you have a couple, the last resort type options would be either a suspension, if it’s disciplinary, or termination. And the reality is sometimes people just can’t handle the job requirements that are put before them. It might be new to them, they might just not have the skill set for it, or they might not have the desire to do it. And that’s okay, but we have to protect our practice.
Bill Prentice:
Moving forward. Well, I want to be mindful of your time, Sal, but I got two questions for you before we go. Let’s go to the relationship that all employers have with their employees covering things like leave and time off and compensation, including compensation for overtime. Can you spend a few minutes and share your thoughts about best practices for making sure that these issues are clearly understood and documented?
Sal Puccio:
So, the reason I always reference the leave issues and overtime or wage claims in my presentations is because they are numbers one and two on the list of claims that I’m seeing employers face on a day-to-day basis and specific to leave accommodation. A lot of people now are asking to work remote or for time off of work to deal with a physical or mental issue that they’re facing. It’s important for employers to be understanding of that, but it’s just as important for employers to have clear policies in place. We really recommend that those are written policies. Where can the employee go if they do have a problem or they do need help? You touched on it earlier, Bill, with when someone has an issue, get that feedback during those regular check-ins and this is a great way to have that policy in place. We just had a situation where I defended a case because our HR team proactively reached out at onboarding to ask an employee if they needed an accommodation. It was great, that’s how the process should work and they had the written policies to back it up that we were able to send to the judge in that case and demonstrate we’re compliant. Same thing with the wage issues. People are maybe misclassified, so it might be an idea to do some audits or periodic check-ins. Those kinds of things are just little ideas or suggestions that we have to stay on top of these issues.
Bill Prentice:
Okay. Lastly, I’m really curious about what are the hot button issues that you’re seeing around the country right now?
Sal Puccio:
Right now, there’s two that I’m seeing that are coming up and they’re driven by attorney fees on the plaintiff side, and one is RICO lawsuits and we’re seeing some surgery centers who are getting named in RICO lawsuits nationwide, where it’s not necessarily something the surgery center is doing, but because they come up in the medical record where certain service was conducted or provided, they get named as well. So, it’s just something to be aware of in terms of who the surgery centers are partnering with, the physicians that are bringing patients in for procedures or different types of services. That’s one. The second is pixels and website type litigations where people are alleging that their personal health information or personal identifiable information is accessed on a website, and now they’re bringing claims against the healthcare providers for having lost that information or shared that information with Facebook, Meta, Google to do background checks. It’s a little bit different than the data breach cases which we’re seeing. But those two, I just got three new cases this week, Bill, relating to those two issues.
Bill Prentice:
That’s fascinating, and I wish we had more time to talk about it. Maybe again, maybe next year. Sal, thank you for being a presenter at our annual conferences. I know that our attendees share my appreciation for your deep knowledge and expertise, and we obviously just experienced that on this podcast, and thank you for spending some time with me today.
Sal Puccio:
Absolutely, Bill, thank you so much. Appreciate it.
Bill Prentice:
So before concluding, I would like to acknowledge the support of our podcast sponsor Surgery Partners, a leading operator of surgical facilities and ancillary services with more than 200 locations in 33 states. Surgery Partners offers multiple types of healthcare services that deliver high-quality healthcare in a convenient and cost-effective manner To learn more, visit surgerypartners.com.