eAlerts

Predictions for Healthcare in a Trump Era

Neda M. Ryan, Esq.
Compliance Counsel, Anesthesia Business Consultants, Jackson, MI 

 Healthcare has been the talking point for generations, but its presence has been even more pronounced since President Obama’s election in 2008. Such discussions have revolved around passing comprehensive healthcare reform, passing the Affordable Care Act (ACA or “Obamacare”), repealing the ACA and replacing it with the American Health Care Act of 2017 (H.R. 1628) (AHCA) and failing to secure the votes to pass the AHCA in the House of Representatives. There have also been discussions regarding the future of healthcare enforcement, information technology security and transgender health protections. The common thread passing through each of these issues today is: what’s next?

Defeat of the American Healthcare Act

When President Trump was elected, industry stakeholders predicted the ACA would be repealed and replaced (many predicting in the first 100 days of President Trump’s administration). However, the House of Representatives Republicans were unable to pass their healthcare reform bill—the AHCA. In his remarks, Speaker Ryan said, “we will be living with Obamacare for the foreseeable future.” While President Trump says he has not put healthcare completely to the side, he said he will focus on his next priority: tax reform. So, with all of these shocking developments, many are left to wonder whether the ACA will, in fact, be comprehensively replaced. The answer: it is unlikely.

According to most Republicans, and as stated by President Trump, Obamacare “is imploding and soon will explode.” In the Wall Street Journal, Aetna’s CEO said the ACA was in a “death spiral.” As it stands, it is expected that insurance premiums will continue to increase and many of the larger insurance companies will pull out of the exchanges in 2018, thereby creating fewer healthcare coverage options for many Americans from which to choose.

Unfortunately, Congress is stuck in its own death spiral: the blame game over who will own the fate of the ACA. Republicans will continue to blame Democrats for passing the law seven years ago, while Democrats will blame Republicans for failing to come up with a viable alternative, all while knowing the law’s fate. What we do know is that this was a huge loss for Republicans and whether they will muster the courage (and votes) to propose another bill is yet to be seen.

Healthcare Enforcement

Healthcare enforcement has been on a steady and steep rise over the years, especially in light of the government’s expanded enforcement power under the ACA. In its most recent Semiannual Report to Congress, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) sought to recover $5.66 billion in investigative and audit receivables. This is $2.31 billion more than was recovered in 2015. Some question whether President Trump’s recent hiring freeze and focus on enforcement elsewhere (think: immigration) will impact healthcare enforcement. The answer: it is unlikely.

Although on January 23, 2017 President Trump issued a memorandum instituting a hiring freeze, the impact of it on healthcare enforcement is debatable. The statement of the hiring freeze was immediately followed by numerous exceptions, including those positions deemed by the head of the executive department or agency as “necessary to meet...public safety responsibilities,” as well as “those exemptions [that] are otherwise necessary” as deemed by the director of the Office of Personnel Management. Moreover, the memorandum “does not prohibit making reallocations to meet the highest priority needs...” In other words, so long as the positions are deemed necessary and/or agencies reallocate their resources to meet their highest priority needs, this hiring freeze will have limited impact on various agencies, including those that enforce healthcare-related laws and regulations.

On the campaign trail, then-candidate Trump was vociferous about his concerns with our current immigration system, vehemently expressing his desire to deport “bad hombres.” In fact, it was on this platform that he rose to such prominence and popularity in the early days of his campaign and, ultimately, won the election. Many question whether his public focus on our country’s immigration system will limit the Administration’s focus on healthcare enforcement. Although we expect to see a sharp spike in immigration-related enforcement, because of the great revenue generated by the OIG in recent years (and the rate at which such revenue generation has increased), the healthcare industry should expect the Trump Administration to continue the Obama Administration’s fervent enforcement of healthcare-related laws regulations.

Accordingly, anesthesiologists should continue to remain vigilant in their efforts to achieve, and remain, compliant with all laws and regulations affecting their practices, and to develop and improve their compliance plans furthering those efforts.

Information Technology Security

Hack. It has become the new buzzword in recent years. From repeated hacks of Yahoo’s and other companies' email platforms and hacks during the 2016 presidential election to recent hacks of the CIA, one thing is clear: hacking is at an all-time high. And the healthcare industry is more exposed than ever.

Historically, healthcare entities have been most vulnerable for attacks because they have spent the least on IT security. Put bluntly, despite the Health Insurance Portability and Accountability Act of 1996 (HIPAA), IT security has not generally been a priority in the healthcare space. While hacking and IT security are not matters of high priority to President Trump (though some may argue the jury is still out on that point), this is still an issue facing the Trump Administration. It is estimated that $1 billion was extorted from individuals and companies through ransomware attacks in 2016 alone, with this number growing rapidly each year. Therefore, it is imperative that all healthcare providers, anesthesia providers included, at a minimum, take the following steps:

• Understand which laws and regulations affect their practices’ information (e.g., HIPAA, state data privacy and security laws, etc.);
• Conduct a risk assessment; adopt and/or update existing policies and procedures addressing deficiencies found during the risk assessment that are consistent with current law, regulations and industry standards; 
• Conduct penetration tests to determine the IT system’s susceptibility to attacks;
• Regularly educate employees and staff regarding safe IT and email habits; and
• Ensure all anti-virus and malware software is up-to-date.

Transgender Health Issues

President Obama made it clear that transgender issues, including health issues, were an area of focus for his Administration, an area believed best to be addressed by the federal government. Through actions such as the joint guidance issued by the U.S. Departments of Education and Justice and Section 1557 of the ACA, the Obama Administration made known its position on transgender discrimination issues. The Trump Administration views these issues, and the role of the federal government in them, differently, stating, in part, that these issues are best left for the states to address on a case-by-case basis.

In May 2016, the Departments of Education and Justice issued a joint statement directing public schools to permit students to use the bathrooms matching their gender identities (Joint Statement).¹ In response, 12 states filed suit and were granted an injunction, which prevented the federal government from taking adverse action against those schools that refused to follow the directives in the Joint Statement. President Obama’s Justice Department appealed the injunction. In February 2017, the Trump Administration both rescinded the Joint Statement² and elected to withdraw the government’s challenge to the injunction. While perceived as a victory for opponents of President Obama’s actions, proponents of the effort saw this as a step backward in our nation’s efforts toward equality for all people regardless of gender or gender identity.

When enacted, Section 1557 of the ACA made it impermissible for federally funded healthcare programs and activities to discriminate against patients and members of the public on the basis of race, color, national origin, sex, age or disability. In issuing its regulations in May 2016, the HHS Office of Civil Rights (OCR) defined “sex” to include gender identity and sex stereotyping. In other words, the regulations prohibit sex-specific services from being denied because an individual identifies with a gender other than their biological gender. The regulations also prohibit the “categorical exclusion” of health services related to gender transition.

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc., et al v. Burwell enjoining  HHS from enforcing the portions of Section 1557 that prohibit discrimination on the basis of gender identity or termination of pregnancy. Although this opinion was issued during President Obama’s presidency, even if it was appealed during President Obama’s term, it would be likely that the Trump Administration would withdraw the government’s defense of the action as it did in the case involving the Joint Statement.

Though unlikely to change or encourage changing existing law that specifically affords certain gender and gender identity-related protections, it is clear that keeping in place Obama-era efforts is not a Trump Administration priority.

Conclusion

Healthcare in 2017 continues to evolve aggressively, showing no signs of relief. In both politically charged and non-politically charged arenas, it is clear that healthcare will continue to be one of the government’s focuses. Whether the political stakeholders can take action is yet to be seen. However, political disputes notwithstanding, anesthesiologists can best position themselves by keeping abreast of rapid changes as well as ensuring they are currently compliant and meeting the standards for best practices in both compliance and IT security.

¹ https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
² http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx

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Neda M. Ryan, Esq. serves as Compliance Counsel for Anesthesia Business Consultants. Ms. Ryan has experience in all areas of healthcare law, including healthcare transactional and corporate matters; healthcare litigation matters; providing counsel regarding compliance and reimbursement matters; and third party payer audit appeals. She can be reached at (517) 787-7432 or Neda.Ryan@AnesthesiaLLC.com.

On Congress, Carveouts and Crafting a Resilient Professional Identity

Much has happened on the healthcare legislative front since our last issue of Communiqué, published not long after the presidential election. Notably, the American Health Care Act of 2017 (H.R. 1628) (AHCA)—the House bill that would have repealed and replaced key provisions of the Affordable Care Act (ACA)—was withdrawn after failing to receive sufficient support. Just days after the defeat, however, House Speaker Paul D. Ryan signaled new determination, indicating plans to pursue a “two-track” effort to change the healthcare system, with White House press secretary Sean Spicer stating “We’re at the beginning of a process.”

As this issue of Communiqué goes to press, we don’t know what that process will look like or how it will unfold. But in Predictions for Healthcare in a Trump Era, Neda Ryan, Esq. compliance counsel for ABC, offers thoughts on some of the healthcare issues that will continue to matter to anesthesia practitioners during the next few years, with an emphasis on compliance and information technology security.

In Why Your Compliance Efforts May Be Worthless, frequent contributor Mark F. Weiss, JD tackles compliance from another angle, namely, the legal difficulties anesthesiologists and other physicians can find themselves in if they make certain kinds of deals and arrangements believing they are protected from federal scrutiny. “Federal prosecutors are demonstrating their willingness to charge healthcare providers and other scheme participants with federal crimes related to underlying state law violations, including those in respect of state laws that have nothing in particular to do with healthcare fraud and abuse,” writes Weiss. “For a variety of reasons, not the least of which is that the federal government collects huge multiples in settlements and fines for every dollar put into investigating and prosecuting physicians and others for healthcare-related crimes, physicians, other providers and facilities now have targets painted on their backs.”

Compliance headaches of all kinds, including the time and effort required to meet healthcare’s stringent and occasionally unfathomable regulatory requirements, are often cited as key contributors to physician burnout. But, as anesthesia providers know, compliance issues are only one of a constellation of factors that can leave physicians feeling empty and drained.

In her first article for Communiqué, organizational psychologist Brianna Barker Caza, PhD of the University of Manitoba contends that professional identity also plays a role, especially when that identity is idealized and reality doesn’t match expectations. The more idealized the image, the shakier the ability to bounce back from stress and the higher the burnout risk, argue Dr. Caza and co-author M. Teresa Cardador, PhD, MPH of the University of Illinois at Urbana-Champaign. Anesthesiologists can boost their resilience by cultivating a broader, more flexible professional identity that breaks free of the highly specialized and narrow sense of professional role and duties often wrought by medical training and socialization, they suggest.

While broadening their professional identities, anesthesiologists might consider exploring new ways to broaden their responsibilities in the hospitals they serve. One relatively untried possibility is leadership of the intensive care unit. As ABC Vice President Jody Locke, MA suggests, “In the current environment where the focus of payment reform is on bundled payment arrangements, it may be time to review what were once considered core competencies of anesthesiologists and reassess the strategic opportunity to enhance the scope of the relationship between the anesthesia practice and the facility.” The goal of an anesthesiologist-led ICU is not to generate revenue, he asserts, but rather, for anesthesiologists to enhance the quality of critical care medicine and to position themselves favorably for the future of hospital contracting by applying their clinical skills in different ways to support their organizations’ strategic and financial goals.

Also in this issue, ABC Vice President Gregory Zinser provides a strategy to help anesthesiologists achieve their personal financial goals for retirement. The model he presents can be used to answer such key financial planning and retirement questions as “How long do I need to continue income-producing activities?” and “What average annual investment return is needed to cover all anticipated expenses between now and the end of life expectancy?”

Finally, we welcome back consultant Will Latham, MBA who probes the fundamentals of effective governance, including the differences between governance and management, the importance of delegating authority and determining when a supermajority vote is and is not warranted.

This year’s Advanced Institute for Anesthesia Practice Management in Las Vegas promises to enlighten participants with sessions on group practice strategy issues, compliance, billing, coding and more. We look forward to seeing many of you there.

With best wishes,

Tony Mira
President and CEO

Why Your Compliance Efforts May Be Worthless

Mark F. Weiss, JD
The Mark F. Weiss Law Firm, Dallas, TX, Los Angeles and Santa Barbara, CA

It’s a riddle almost as inscrutable as that of the Sphinx: How can a physician or pharmacist or facility owner be convicted of a federal crime for violating a state law? The answer is, unfortunately, quite simple, quite questionable and quite dangerous. It turns what many think about federal healthcare law compliance on its head.

It signals that many compliance efforts and, probably, most attempts to skirt the bounds of federal law, have been in vain, and must immediately be reinvestigated, re-planned and, in many cases, retired.

Context

To put things into context, let’s use the concept of a kickback and the federal Anti-Kickback Statute (AKS) to frame the discussion.

In everyday terms, the AKS prohibits the offer, solicitation, payment or acceptance of remuneration—that is, the transfer of anything of value—for referrals of federal healthcare program patients. The affected programs include Medicare, Medicaid, TRICARE and about a dozen others.

The AKS is a criminal statute. Violation can lead to fines and prison time. Physicians and hospital administrators are serving time in federal penitentiaries right now for their violation of the AKS.

Carveouts

Many physicians, healthcare business owners and facilities have turned to what they think is a solution: the so-called “carveout” to avoid federal scrutiny. In large part, that’s because they saw their state’s law, and sometimes their state’s enforcement of state law, as either permissive or lacking in “teeth.”

As a result, they have structured deals in which no federal healthcare program patients are treated or served.

For example, anesthesiologists practicing as chronic pain management specialists in states that permit physicians to own interests in retail pharmacies are often approached by pharmacists to do rather interesting pharmacy deals.

They’ll propose that the physician become one of the owners of a pharmacy that will fill prescriptions only for commercially insured patients; that is, only for those who are not participants in any federal healthcare program.

They believe that any issue of remuneration to referral sources (that is, inside of the relationship between the pharmacy and the physician), is outside of federal scrutiny.

Or, as a second type of arrangement, they structure deals in which all sorts of patients are treated but in which payments that might be challenged as remuneration in violation of the AKS are limited to being in respect of nonfederal healthcare program patients only.

For example, consider a deal in which an ambulatory surgery center (ASC) charges the anesthesiologists or nurse anesthetists practicing at the facility a management fee only in connection with commercially insured patients.

Note, as an aside, that this sort of carveout has never been viewed as valid by the Inspector General, as the management fee paid on the commercial part of the anesthesia providers’ practice induces not only the referral by the ASC of those patients, but of the federal healthcare program patients (e.g., Medicare patients) as well. However, those planning these sorts of deals generally have turned a blind eye to that fact.

Carveouts Carved Out

Despite these planning “best practices” (yes, that’s meant to be tongue-in-cheek), federal prosecutors are demonstrating their willingness to charge healthcare providers and other scheme participants with federal crimes related to underlying state law violations, including those implicating state laws that have nothing in particular to do with healthcare fraud and abuse.

For instance, in a current case in the Northern District of Texas (United States v. Beauchamp, et al) prosecutors obtained an indictment under 18 U.S. Code § 1952 - Interstate and foreign travel or transportation in aid of racketeering enterprises—commonly known as the Travel Act, a law that can be used to “federalize” underlying state law violations.

The Beauchamp case is the second federal court prosecution related to a now defunct chain of physician-owned hospitals in Texas known as “Forest Park.” Among other things, the prosecutors in this ongoing case allege the payment of approximately $40 million in kickbacks to physicians, including at least one anesthesiologist, consultants and others in connection with a half-billion dollars of kickback-tainted claims.

The Forest Park founders established the hospitals as both out-of-network facilities and, as a result of their physician ownership, non-Medicare facilities. In fact, their model was not to treat any federal healthcare program patients. Nonetheless, the membrane blocking patients from the plethora of federal healthcare programs turned out to be merely semi-permeable, and Tricare patients leaked in.

In pertinent part, the Travel Act makes it a crime to use the mail or any facility in interstate commerce (e.g., email, the phone) with the intent to further any “unlawful activity.” As defined in the Travel Act, unlawful activity includes, among other things, bribery in violation of the laws of the State in which it is committed.

In the Beauchamp case, Texas’s broad commercial bribery statute was the hook into the Travel Act allegation.

That Texas law defines a number of professionals (including physicians, attorneys and corporate officers, among others) as “fiduciaries” owing duties to their “beneficiary,” the person or entity on behalf of whom they are acting. In lay terms applicable to the indicted physicians, the law makes it a felony for a physician to accept any benefit from a third party pursuant to an understanding that it will influence the physician’s conduct in relation to his or her patients.

Depending on how a particular state law defines bribery, conduct in a carved out healthcare deal can (and did in Beauchamp) trigger federal prosecution under the Travel Act.

The Bottom Line For You

For a variety of reasons, not the least of which is that the federal government collects huge multiples in settlements and fines for every dollar put into investigating and prosecuting physicians and others for healthcare-related crimes, physicians, other providers and facilities now have targets painted on their backs.

Deal planning, deal vetting and ongoing compliance efforts that consider only federal healthcare laws, or only federal and state healthcare laws, are no longer sufficient.

Getting paid and staying out of jail now requires careful scrutiny of conduct against a filter of a wide range of federal and state laws that transcend application to any one industry, from statutes relating to commercial bribery, wire and mail fraud, to, as mentioned above, the Travel Act.

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Mark F. Weiss, JD is an attorney who specializes in the business and legal issues affecting physicians and physician groups on a national basis. He served as a clinical assistant professor of anesthesiology at USC Keck School of Medicine and practices with The Mark F. Weiss Law Firm, a firm with offices in Dallas, TX and Los Angeles and Santa Barbara, CA, representing clients across the country. He can be reached at markweiss@advisorylawgroup.com.

Building Professional Resilience: Strategies For Anesthesia Practitioners

Brianna Barker Caza, PhD
Associate Professor, Asper School of Business, University of Manitoba, Winnipeg, Manitoba, Canada

M. Teresa Cardador, PhD, MPH
Assistant Professor, School of Labor and Employment Relations, University of Illinois at Urbana-Champaign, Champaign, IL

It is becoming all too common for physicians to report feeling overwhelmed by the demands of their jobs, and, at times, even emotionally, psychologically and physically depleted. In fact, occupational burnout, a syndrome characterized by emotional exhaustion, depersonalization and lack of personal accomplishment,^¹ is hitting near-epidemic rates across the medical community.²

This is alarming on numerous levels. For instance, such feelings can contribute to increased turnover, absenteeism, medical errors and decreased patient and worker satisfaction.^{3, 4} In addition, the direct and indirect costs associated with physician occupational stress, including lost productivity, employee replacement costs, physical illness and psychological illness may even begin to threaten the financial viability of healthcare organizations.⁵

Stress and burnout have been linked to patient safety as well. It has been estimated that the top 10 most common workplace stressors are responsible for at least 120,000 deaths and between $125-190 billion in healthcare costs annually in the U.S. alone.⁶

Burnout: When, Where and Why

Distressingly, symptoms of burnout do not appear to be reserved for those with job longevity, but rather, are starting to be noticed in early career medical professionals too, leading to a high potential for talent flight from hospitals. In fact, one study showed that approximately half of all residents showed signs of burnout.⁷ In another study, 22 percent of anesthesiologists screened positive for depression and reported associated medical errors and less attention to patients.⁸

Physician burnout has been blamed on everything from aspects of the organizational structure (e.g., bureaucracy, changing productivity requirements, increased workload), to characteristics of the work itself (e.g., unforgiving hours, constant cognitive overload, lack of sleep) and even the emotional tenor of medical work (e.g., interprofessional conflict, high levels of unpredictability, consistent exposure to trauma).

In addition to these chronic, constant stressors, medical professionals are often exposed to sudden and acute instances of trauma and adversity that can take a toll. Medical workers feel a strong sense of responsibility for negative healthcare outcomes when they occur, regardless of whether their professional behavior was causative. Noting this, growing literature suggests that medical professionals often become “second victims” in acute, traumatic medical events involving their patients.⁹

In addition to these constant stressors derived from the nature and structure of the work, our own research has revealed a somewhat surprising culprit: meaningful work.¹⁰ It is rare to see a medical or nursing student lacking passion for the medical profession. Typically, these students report a drive to do work that has a positive, often life-changing impact on others.

As a result of the high degree of meaning they subscribe to their work, medical professionals often become highly identified with it. Essentially, this means that they think of themselves as a medical professional first and foremost. While, generally speaking, this is seen as positive, and perhaps even a goal for medical organizations to be filled with highly invested and identified employees, it adds substantial pressure for the work to continue to be a source of positive meaning for these employees.

The Burden of Meaningful Work

Unfortunately, while there are very positive aspects to medical work, and moments where individuals see their profound positive impact on others, there are also moments of devastation and uncertainty. The more identified individuals are with an idealized image of their profession, the more precarious their ability to understand and cope with the rough times.

Another example of how modern medical workers are feeling burdened by the weight of their meaningful and impactful professional identities is with the growing amount of professional moral distress being reported. One of the authors’ research with coauthors¹¹ found that physicians and nurses across a range of specialties reported struggling to determine the moral “rightness” of their day-to-day professional decisions. Moral questions of “right” and “wrong” are rarely clear-cut. But changes in the modern healthcare system have amplified the uncertainty.

For instance, in the neonatal intensive care unit (NICU), while medical technology has increased physicians’ ability to sustain life, it has opened the door to questions regarding whether this is the “right” thing to do given the quality of life it is sustaining. Similarly, there is growing debate over physicians’ responsibilities and duties in end-of-life care. Anesthesiologists often report struggling to determine how to honor patients’ wishes when they may not necessarily be aligned with their own and/or their colleagues’ medical judgements.

On a number of fronts, the moral grey area is expanding in healthcare. And the constant moral distress is having a substantial impact on the lives of healthcare practitioners at all levels. In fact, the physicians and nurses in our study reported that their days were punctuated by moral disruptions—moments in which, during the course of caring for patients, they struggled to assess whether a specific professional action was aligned with a moral standard to which they ascribed.

Competing Prescriptive Moral Frameworks

Moral disruptions come at a cognitive and emotional cost, one that modern physicians struggle to afford. Our findings indicate that both nurses and doctors often consider three different competing moral frameworks when trying to decipher “rightness.”

• First, they strive to uphold the moral virtues, duties and principles central to their profession.
• Second, they may draw on organizational policies and guidelines to determine the best action.
• Third, they often find themselves responding to these moral disruptions not just as a physician or a hospital employee, but also as an individual who often has strong moral values.

Given these contrasting sets of moral guidelines, many physicians flounder. And though the disruptions may occur on a regular basis—weekly, daily or perhaps even multiple times a day—the moral distress caused by these disruptions can have significant implications.

Feeling Entrenched: Identity Rigidity and Identity Flexibility

Our research suggests that both the high identity investment associated with meaningful work and the moral distress inherent in the medical profession may pose particular challenges to physician well-being when individuals have work identity rigidity—an inability to consider other work identity possibilities and/or to initiate change or demonstrate plasticity in response to events and circumstances. ^{12, 13} When medical professionals view their work as highly meaningful, yet lack identity flexibility, they are less able to respond adaptively when work fails to meet their expectations and/or when they experience challenges and stressors in the work environment.

For example, if a nurse with a rigid professional identity experiences a moral disruption in the course of their work— perhaps from performing a “necessary evil,”¹⁴ such as causing a patient significant distress in the process of administering a potentially life-saving diagnostic test— they may be more likely to experience causing patient distress as a role identity violation, and, thus, more likely to experience this even as stressful and potentially traumatizing.

In contrast, identity flexibility aids in an adaptive response, because the greater the flexibility, the smaller the proportion of the self that is affected when a negative event occurs.¹⁵ This minimizes the perceived role violation. Further, when an individual is flexible in their identity orientation, and subscribes to a broader professional identity orientation, such as one of a medical professional, they are likely to be better able to understand contrasting perspectives on an issue and feel more comfortable with the ambivalence that it creates. Identity flexibility allows individuals to “bounce back” from challenges, and even to experience growth from such setbacks.¹⁶

Despite exposure to stressors and adversities, a good portion of the physician population still does not succumb to burnout. This variance in professional well-being despite similar exposure to adversities suggests that some individuals are more effective in dealing with these demands in ways that do not reduce their professional well-being. In fact, growing research suggests that some may even thrive amid extremely high levels of adversity in the workplace.^{17, 18, 19}

In psychology, resilience is thought of generally as individuals’ ability to bounce back after experiencing serious life stressors. Resilience indicates that someone is “doing well” developmentally despite exposure to setbacks. Thus, resilience at work is demonstrated when individuals show competence and perhaps even increased capabilities in the context of adverse experiences at work, feeling able to handle future adversities.²⁰ Given the critical difference in outcomes between a physician succumbing to burnout and one demonstrating resilience, an important question facing researchers and healthcare managers alike is: what influences levels of professional well-being in complex and turbulent healthcare environments?

Resilience-Building Strategies

Research in organizational behavior has begun to identify a number of possible interventions to boost resilience at work. This includes aspects of the organizational environment, such as social support, organizational mindfulness practices and adverse event debriefing protocols. Additionally, psychological research has demonstrated the importance of psychological fitness, personality traits and self-care practices. While all of these undoubtedly play important roles in helping individuals to minimize the negative impact of work adversity on health and performance, we draw on the concept of identity flexibility to offer another prospective, individual-level resource that can be cultivated in healthcare organizations: healthy professional identification.

An individual’s professional identity is a cognitive schema that provides individuals with affective, psychological and behavioral resources that they can draw on in times of uncertainty and stress at work. Specifically, drawing on our own and others’ research into the dynamics of resilience at work, we propose three ways that medical professionals and practice managers can leverage healthy professional identification to increase resilience at work.

• First, medical training programs, healthcare organizations and practice managers should pay attention to and invest resources in helping medical professionals develop a healthy identification with their work. The internalization of the norms and expectations of one’s profession become the standards they attempt to achieve and uphold on a day-in, day-out basis when working. Medical educators, mentors and practice managers should find ways to help young medical professionals form strong but complex and agile work identities that can provide both affective and instrumental support during periods of work stressors and work adversity. Group discussions with peers and role models, as well as role playing exercises, might serve to foster healthy professional identities. Specifically, we suggest that these programs help medical professionals to create flexible identity orientations that emphasize growth and learning. When we feel threatened, our psychological tendency is often to retreat and entrench in positions that feel comfortable. Medical professionals need to learn ways of combatting this tendency and becoming more agile.
• Second, organizational leaders should encourage medical professionals to broaden their base for identification. Often, the result of the medical socialization process is a highly specialized and narrow sense of one’s professional self, role and duties. This may be limiting in the dynamic modern healthcare environment. Instead, it may be more adaptive for individuals to identify with the nature and meaning of medicine on a more general, broader level. This may be facilitated by encouraging medical professionals to take on additional roles or responsibilities.
  
  Ironically, adding a layer onto one’s professional identity may actually buffer them from the adversity inherent in their work. Specifically, having a broader sense of one’s self in a professional capacity enables identity flexibility. Such flexibility in how one views their professional capabilities is linked to an ability to respond more effectively to different and changing circumstances and roles, and to experience violations of role expectations.²¹
  
  Broadening one’s base for identification may be accomplished through strategies such as job rotation (e.g., giving medical professionals a chance to rotate through different jobs or departments in the organization), interdepartmental or interprofessional team building and project-based work teams. Such practices may help medical professionals break free from a specialized and soiled mentality, and allow them to identify with other professionals and broader aspects of the medical role. Further, these practices might allow individuals to capitalize on a broader base for social support because they can identify with other medical professionals and the medical community more generally, rather than only with a specific subgroup. This broader base of identification may foster more positive interprofessional relationships and expand healthcare providers’ access to relational resources, both of which should foster resilience.²²
• Third, medical training institutions and practice managers should create an open forum to discuss the growing burden of moral uncertainty, which poses a threat to positive professional identification. Medical professionals should be introduced to the nature of the moral distress they are likely to experience early on in their training. Further, they should be encouraged to craft their own professional moral identities, a personalized professional moral code, that will help guide their experiences with and responses to moral distress. They should consider professional standards, organizational policies and personal beliefs in creating this document. By thinking through where these standards converge, as well as where they diverge, medical professionals will be able to identify the types of situations and practices in which they do and do not feel comfortable being involved.

These strategies promote greater professional identity flexibility by helping medical professionals to clarify and develop more informed expectations about work processes and outcomes, and to deal with unmet expectations. When individuals are better prepared to manage expectations, they are less likely to become stressed by events and actions that challenge expectations²³ or to become disillusioned with organizations that they perceive to be failing their ideals.²⁴ It is important to note, however, that this does not mean giving up on ideals, but rather adopting a growth mindset whereby expectations are positioned as opportunities for personal and organizational learning, growth and development.²⁵ In other words, the unexpected moral grey areas become conduits for further understanding and developing one’s professional moral standards.

Conclusion

If healthcare professionals’ feelings of exhaustion and reduced personal accomplishment can be decreased, and their perceived resilience can be increased, they can perform and thrive amid the inevitable and growing stress of doing highly important and meaningful work in a dynamic and unpredictable work environment. Resilience is now seen as essential for success at all levels of the healthcare organization.²⁶ Resilient medical professionals face the same adversities as their non-resilient colleagues, but they are able to regain their equilibrium faster, maintain a higher standard of work and sustain a higher level of well-being. This is what we, the medical community at large, and practice managers in particular, should be striving to facilitate. The identity-based strategies we have outlined will help individuals build the psychological and social resources they need to become resilient.

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¹ Maslach, C. (1982). Burnout: The Cost of Caring. Englewood Cliffs, NJ:Prentice Hall.
² Shanafelt T, Sloan J, Habermann T (2003). The well-being of physicians. American Journal of Medicine, 114, 513–59.
³ Aiken, L. H., Clarke, S. P. and Sloane, D. M. (2002). Hospital nurse staffing and patient mortality, nurse burnout, and job dissatisfaction. Journal of the American Medical Association, 288, 1987–1993.
⁴ Leiter M. P., Harvie P. and Frizzell C. (1998). The correspondence of patient satisfaction and nurse burnout. Social Science and Medicine, 47, 1611–1617.
⁵ Morrell, K. (2005). Towards a typology of nursing turnover: the role of shocks in nurses’ decisions to leave. Journal of Advanced Nursing, 49, 315–322.
⁶ Goh, J., Pfeffer, J., and Zenios, S.A. (2014). Workplace practices and health outcomes: Focusing Health Policy on the Workplace. Harvard University Working Paper Series.
⁷ Martini, S., Arfken, C. L., Chirchill, A. and Balon, R. (2004). Burnout comparison among residents in different medical specialties. Academic Psychiatry, 28, 240–242.
⁸ de Oliveira Jr, G. S., Chang, R., Fitzgerald, P. C., Almeida, M. D., Castro-Alves, L. S., Ahmad, S., & McCarthy, R. J. (2013). The prevalence of burnout and depression and their association with adherence to safety and practice standards: a survey of United States anesthesiology trainees. Anesthesia & Analgesia, 117(1), 182-193.
⁹ Dekker, S. (2013). Second Victim: Error, Guilt, Trauma, and Resilience. New York: CRC Press.
¹⁰ Cardador, M. T., & Caza, B. B. (2012). Relational and identity perspectives on healthy versus unhealthy pursuit of callings. Journal of Career Assessment, 20(3), 338-353.
¹¹ Caza. B.B., Vogus, T., Avgar, A., & Stansbury, J. (2015). Ethical dilemmas and identity work in the hospital. 2015 Annual Meeting of the Academy of Management, Vancouver, Canada. August 7-11, 2015.
¹² Cardador & Caza (2012).
¹³ Grotevant, H. D., Thorbecke, W., & Meyer, M. L. (1982). An extension of Marcia’s identity status interview into interpersonal domain. Journal of Youth and Adolescence, 11, 33–47.
¹⁴ Margolis, J. D., & Molinsky, A. (2008). Navigating the bind of necessary evils: Psychological engagement and the production of interpersonally sensitive behavior. Academy of Management Journal, 51(5), 847-872.
¹⁵ Linville, P. W. (1987). Self-complexity as a cognitive buffer against stress-related illness and depression. Journal of Personality and Social Psychology, 52, 663–676.
¹⁶ Caza, B. and Wilson, M. G. (2009). Me, myself, and I: The benefits of multiple work identities. In Roberts, L. M. and Dutton, J. E. (Eds), Positive identities and organizations. NY: Psychology Press.
¹⁷ Caza, B. & Bagozzi, R. (2017). Working through adversity: The effects of professional identity on emotional exhaustion and resilience. Working paper series.
¹⁸ Sutcliffe, K. M. and Vogus, T. J. (2003). Organizing for resilience. In Cameron, K. S., Dutton, J.E. and Quinn R. E. (Eds), Positive Organizational Scholarship, Oakland, CA: Berret Kohler, 94–110.
¹⁹ Weick, K. E. and Sutcliffe, K. M. (2007). Managing the Unexpected: Resilient Performance in an Age of Uncertainty. San Francisco, CA: Jossey-Bass.
²⁰ Caza, B. and Milton, L. (2011).Resilience at work. In Cameron, K. and Spreitzer, G. (Eds), Handbook of Positive Organizational Scholarship. Oxford: Oxford University Press (Sage Publications), 808-908.
²¹ Cardador and Caza (2012).
²² Ibid.
²³ Bunderson, J. S., &Thompson, J. A. (2009). The call of the wild: Zookeepers, callings, and the double–edged sword of deeply meaningful work. Administrative Science Quarterly, 54, 32–57.
²⁴ Foreman, P & Whetten, D. A. (2002). Members’ identification with multiple identity organizations. Organization Science, 13, 618–635.
²⁵ Caza. B.B., Vogus, T., Avgar, A., & Stansbury, J. (2015). Ethical dilemmas and identity work in the hospital. 2015 Annual Meeting of the Academy of Management, Vancouver, Canada. August 7-11, 2015.
²⁶ Gordon, K. A., & Coscarelli, W. C. (1996). Recognizing and fostering resilience. Performance Improvement, 35(9), 14-17.

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Brianna Barker Caza, PhD is an Associate Professor in the Asper School of Business at the University of Manitoba, Winnipeg, Canada. She received her PhD in organizational psychology from the University of Michigan and has previously been affiliated with institutions in both North America and the Asia Pacific region, including the University of Illinois, Wake Forest University, the Center for Creative Leadership, the University of Auckland and Griffith University. Dr. Caza’s research program seeks to understand the resources and processes that produce resilience in turbulent and dynamic work contexts, such as healthcare organizations. The goal of her research program is to help create work environments that allow professionals to correct errors and thrive amid unexpected events. Dr. Caza can be reached at (204) 914-2843 or Brianna.Caza@UManitoba.Ca.

M. Teresa Cardador, PhD, MPH is an Assistant Professor in the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign. She received her PhD in organizational psychology from the University of Illinois and holds an MPH in health policy and administration and a BA in psychology from the University of California at Berkeley. Dr. Cardador’s research centers on how individuals experience meaningfulness and make sense of themselves in the work that they do. She is principally interested in the role that work beneficiaries (e.g., customers, clients, patients), professions and organizations, as well as internalized orientations towards work (e.g., callings), play in the experience of meaningful work and identity construction at work. She has a particular interest in healthcare settings. Dr. Cardador can be reached at (217) 244-1398 or Cardador@Illinois.edu.

Effective Governance: Who Decides What?

Will Latham, MBA
President, Latham Consulting Group, Inc., Chattanooga, TN

Over the years, you may have heard the old saying that “Nothing happens until someone sells something.” With regard to anesthesia groups, we have found that “Nothing (good) happens until the group has effective governance.”

Without effective governance:



• The group lacks the ability to develop and focus on a vision. Unanimity is required in every decision.
• Issues are discussed ad nauseam.
• There is an over-emphasis on protecting the rights of every individual. 
• Responsibility is given, but without the needed authority to carry out the responsibility.
• There is confusion over the difference between governance and management.
• Only unimportant issues are resolved, and the group spends little (if any) time focusing on issues of strategic importance.

Modes of Medical Group Governance

One of the more important aspects of effective medical group governance is determining who has the authority to make decisions about various issues.

We have found that a medical group’s system of governance can be categorized by one of seven modes (see Exhibit 1). Each of these modes has positives and negatives, but many groups are finding that it is counter-productive to include all shareholders in all decisions.

A group may miss capitalizing on important opportunities or avoiding significant threats because of the challenges of getting everyone together to work through an issue. Or, the group might be of such a size that it is no longer feasible to expect all shareholders to become sufficiently knowledgeable about all of the issues to make well-informed decisions.



Delegating Authority

Whatever the reason, the most effective anesthesia groups find that it makes sense to empower a subset of the group to make certain decisions for the entire group. Depending on your corporate structure, this subset might be called the “board,” the “executive committee” or the “management committee.” (We will use the term “board” in this article.) The board is often assigned a number of governance responsibilities, but is often not provided the needed level of authority to carry out those responsibilities.

Every group has to choose the level of authority it will extend to the board. Exhibit 2 provides a checklist of issues that: 1) might be reserved for the shareholders, or 2) can be decided by the board, president or manager without coming back to the next higher level for approval.

Supermajority Issues

Many groups require supermajority votes on certain (sometimes all!) issues shown in Exhibit 2. Supermajority votes could require a vote of two-thirds or three-fourths of the shareholders (although we have seen supermajority thresholds as low as 60 percent and as high as 100 percent).

What is often not recognized is that supermajority votes tend to protect the individual rather than the group. Accordingly, many groups are stymied in moving forward even when a significant majority of the group wants to pursue a given initiative.

Our belief is that supermajority votes have their place, but that: 1) they should be limited to a small set of extremely important issues; and 2) the supermajority threshold should be fairly low (two-thirds rather than three-fourths).



Which issues might require a supermajority? Typically, they include:

• Amending the shareholders’ (buy/sell) agreement.
• Amending the shareholders’ employment agreement.
• Amending the group’s bylaws.
• Decision to sell the entity and/or the assets of the entity.
• Decision to dissolve the entity.
• Decision to merge the entity with another entity or any other business.
• Discharging a shareholder physician.

Other important and controversial issues might affect shareholders’ lifestyle, such as changes in the compensation system, adding or deleting a site of service or making a physician a shareholder that could be considered for supermajority status. Every group needs to decide which issues should be supermajority issues, but in general, we believe the fewer issues, the better.

Governance versus Management

As a board tries to do its work, it’s often tempted to move from “governance/oversight” to micromanagement of the organization. The best way to way to avoid this is to focus the board on setting policy rather than on making decisions.

A policy is a statement that guides and constrains the subsequent decision-making. The goal of setting policy is to specify the ends rather than the means.

In setting policy, the board should identify what is to be accomplished and determine a range of acceptable and unacceptable means for achieving these objectives. This could include a set of directives for how the group will operate in the future, or instructions to management.

To help the board avoid micromanagement, it’s often helpful to remind them that they don’t have to (and shouldn’t) make each and every decision. The board has options, which include:

• Requesting proposals and recommendations from management (or a committee) prior to making a decision. Example: “We need to avoid problem X. Management: develop a set of alternative methods to achieve this end.”
• Delegating decision-making authority with constraints. Example: “We need to avoid problem X. Management: develop a set of alternative methods to achieve this end, but it must cost less than $50,000.”
• Delegating decisions with exceptions. Example: “We need to avoid problem X. Management: develop a set of alternative methods to achieve this end, but it must be a process solution rather than a technology solution.”
• Retaining authority and making decisions itself.

The most effective boards always think: “Is this something that management should decide once we’ve provided guidelines?” The best boards spend most of their time setting policy and then delegating responsibility to others to carry out tasks rather than trying to do everything themselves.

Key Questions for the Board

The following is a checklist of questions that the board should ask as it processes individual issues.

1. Has this issue been processed yet by a committee?
2. Is this issue strategic or operational/ tactical?
3. Is this issue related to one of the key responsibilities of governance?
   •  Set mission, vision and values
   •  Move group toward strategic goals
   •  Oversight
   •  Deal with disruptive physicians
   •  Evaluate management
   •  Evaluate board performance
   •  Over-communicate with constituents
4. Is this within the board’s authority to decide?
5. Is this something that management should decide on once we’ve provided guidelines, constraints, exceptions?
6. When the decision is being made:
   • What is the board’s expectation with regard to timing?
   • Does management have sufficient resources to meet those expectations?
7. Periodically – Do the board’s priorities and management’s priorities match?

Careful thought in assigning responsibility and authority for various types of decisions will help your organization develop the structure it needs to function more efficiently and effectively.

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Will Latham, MBA is President of Latham Consulting Group, Inc., which helps medical group physicians make decisions, resolve conflict and move forward. For more than 25 years Mr. Latham has assisted medical groups in the areas of strategy and planning, governance and organizational effectiveness, and mergers, alliances and networks. During this time he has facilitated over 900 meetings or retreats for medical groups; helped hundreds of medical groups develop strategic plans to guide their growth and development; helped over 130 medical groups improve their governance systems and change their compensation plans; and advised and facilitated the mergers of over 120 medical practices representing over 1,200 physicians. Mr. Latham has an MBA from the University of North Carolina in Charlotte. He is a frequent speaker at local, state, national and specialty-specific healthcare conferences. Mr. Latham can be reached at (704) 365-8889 or wlatham@lathamconsulting.com.
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