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Real Deal

A New Owner OD Needs to Navigate the Bartering Culture in His New Community

“I plow your driveway when it snows; you serve my family’s eye needs.”

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ANDREW RICE, a Maryland native and new grad, had recently purchased a retiring optometrist’s practice. He and his wife fell in love with rural northern Minnesota at the second meeting with then-owner Roland Dibbs. While this was a big decision, there was something about Roland that put Andrew at ease.

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ABOUT REAL DEAL

Real Deal scenarios are inspired by true stories but are changed to sharpen the dilemmas involved and should not be confused with real people or places. Responses are peer-sourced opinions and are not a substitute for professional legal advice. Please contact your attorney if you have any questions about an employee or customer situation in your own business.

ABOUT THE AUTHOR

NATALIE TAYLOR is owner of Artisan Eyewear in Meredith, NH. She offers regional private practice consulting and ABO/COPE approved presentations. Email her at info@meredithoptical.com

During his first month of ownership Andrew closed the office and performed major renovations. In addition to updating the floors and painting the walls, he raised the ceilings and removed walls to make the space more modern.

The practice finally re-opened and Andrew was able to meet Roland’s patients, who all seemed to also be Roland’s friends and neighbors. Andrew was initially enthused, as he imagined that soon they would also be his friends and neighbors. Then he realized how this may impact his business.

“Fitting your son to contact lenses will be $175,” explained Andrew to one patient’s parents, seated in the exam room. “The annual cost for lenses can be around $400, give or take. Once I fit him this year, future annual contact lens visits will be well under $100.”

“Well, that’s all right,” said the father, “I plow the lane to Roland’s farmhouse in the winter so that more or less covers it.”

It took Andrew a minute to understand what one fact had to do with the other. “Roland did retire last month, and I’ve purchased the office,” Andrew explained.

“But this is still his place,” the father said with confidence. “I mean, the name is the same, the staff are all the same.”

“I have purchased the business from Roland,” Andrew reassured him.  The man looked at his wife and furrowed his brow. “Okay,” he said slowly. “Well, we don’t have insurance, and we weren’t expecting to pay.”

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The entire family was looking at Andrew, waiting for him to solve the awkward issue at hand. Not one for confrontation, Andrew quickly blurted, “Having a reliable person to plow sounds great!”

That evening Andrew’s wife Ginny took him to dinner to celebrate his first day. The day’s strange interactions were a hot topic.

“Roland’s sister-in-law dropped in to talk to the optician and asked her to find out if her family would still be allowed to buy glasses at cost,” Andrew said. “The plow service actually sounds pretty great, but the guy has four kids and we’re talking about at least a few thousand in services and materials!”

Ginny sighed. “The remodel put us into debt, Andrew. As our bookkeeper, this isn’t in our best interest. I’d rather buy a snow blower for $400 and do our tiny driveway myself, if it means we can put that family’s payment toward our debt.”

“Fair point. The receptionist told me Roland’s barber is on the schedule for tomorrow,” he chuckled, rubbing his shaved head.

“I’m going to text Roland right now,” said Ginny, grabbing her phone. She spoke aloud as she typed: “‘You sure had lots of barter deals with patients. Not sure we can honor. What are your thoughts?’” Almost immediately, Roland replied: “Your business, your choice.”

“Thanks for the help, Roland,” Andrew said sarcastically.

“Oh man,” groaned Ginny, “What if these deals are a major component of the business? What if the community turns against us?”

The Big Questions

  • Should Roland have divulged the extent of his practice’s bartering?
  • If bartering is the accepted culture, should Andrew adapt or run the business his way?
  • How can Andrew explain his new policy?

Expanded Real Deal Responses

Mona D. Fort Wayne, IN

1. Yes, the trade agreements should have been divulged.
2. Bartering is not in Andrew’s best interest. With a new practice loan and renovation costs, he is cash-poor. The barter expected is not just for his service but for goods. Andrew will have lab bills and frame costs out-of-pocket to accept barter trades he doesn’t even need or want. This will be a cash flow disaster. It is better to have the patients leave which creates no cash flow rather than to barter and have a negative cash flow.
3. Andrew should ask Roland to provide a list of all individuals with whom he had a barter agreement. Further, he should request that Roland send each individual a letter explaining that Andrew is the new practice owner and that he will not honor old barter agreements. This letter should be approved by Andrew. If the staff know a barter agreement existed, they should politely quote Andrew’s usual examination fees when an appointment is scheduled. Then there is no surprise after services are rendered.

Jen H. Sandpoint, ID

1. Roland probably wasn’t being intentionally misleading. Selling a practice is hectic and stressful. Andrew and Ginny should give him some slack for the oversight, if they truly are embracing the small-town experience.
2. We do trade-of-service, but we don’t accept every offer or inquiry. Andrew should adapt as seems viable. Maybe he can offer to trade services with the snowplow guy’s family for 1-2 kids, and then insist on payment for the remainder. Since only one son has been seen so far, they have time and opportunity to barter out the rest of the family. Also, it might be good for Ginny to participate in future barter conversations with patients. Andrew can provide the warmth, and Ginny can provide the tactful backbone. Patients usually appreciate knowing the honest struggles of optometrists as fellow business owners, because it opens the door to genuine relationship.
3. Andrew’s front staff should ask each patient about their intended method of payment as part of the scheduling process, which will allow the chance for renegotiations prior to appointment.

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Leisa S. Newport Beach, CA

How about trying a different approach? Have an open house party with trunk show which would allow the community to meet the new doctor. There is a huge difference between the philosophy of the older generation OD’s and the fairly recent graduates. Just wait you might only be scratching the surface of treatment philosophy and contact lens evaluation etc. Barter can get out of control quickly, and no matter how you end, you will never be able to please everybody. After all you are a different doctor so change is automatic. Perhaps until established, postpone doing any barters until your feet are on the ground. At least then you are maintaining the same status for all your patients not hand-picking which barter you accept.
If there are other practices in the community, obviously creating an immediate distinction between the retired doctor and the new doctor, and hopefully creating excitement in new philosophy, frame styles and product would probably help.

Chani M.  Highland Park, NJ

When I bought my practice in 2015, I was faced with a similar situation — every other patient expected the same outrageous discount they had been receiving for the last twenty years. In this case, yes, the seller should have revealed the extent and nature of the barter system. I think if Andrew keeps going with this barter system he will lose money, but will he lose patients? If he loses patients that are not paying him, he’s not losing anything at all. If he is the only practice in the area, patients will have to get used to his new policies. He may want to structure the fees attractively for the non-insured (without doing anything non-kosher). Each situation is an individual case and he may need to address each one as it comes up rather than making a blanket decision. He also should make prominent signage in the front stating the new policies in a friendly way. This may take years to resolve… trust me, I know.

Pam P. Downers Grove, IL

Roland probably should have been up front about the bartering, wouldn’t his books have shown this activity? Possibly Andrew could accept the barter for the first year and outline what would occur after, requesting invoice to invoice follow up to make sure he was getting fair deal? Also, would have to change the terms so that the former owner was not reaping the benefits. Right away, a letter to any remaining patients not seen in the office explaining the transfer of ownership and what new policies would be would be appropriate. Andrew may need to set up meetings with some of the patients before seeing them to work out any barters, discounts or new policies going forward.

Jamie L. Bradenton, FL

He should put a sign in the reception area welcoming new patients and introducing his pricing policies. He could put a sentence or two that thanks the previous owner for his long-time relationship with his patients and that he looks forward to making new relationships with these same patients. He should be open to the idea of bartering, but only if it is a fair trade for both parties. If his staff has access to patient’s previous exam charges (or lack of) ahead of time, a phone call to the patient explaining that the patient should be prepared to pay would be prudent.

Ann H. Sturgeon Bay, WI

Absolutely stop the bartering. Andrew needs to prove to the existing patients what a great doctor he is and the rest will fall into place. He should have his office manager tell them his accountant won’t allow him to barter. He should support his community outside of work by going to high school sporting events and showing his patients he cares about their families. Support as many fundraisers as he can afford. That will mean a lot and his patients will love him for his generosity. He and his wife have bills to pay! This is now his business, not Dr. Roland’s, and the community will adapt to his rules.

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Rick R. Girard, PA

1. I don’t think Roland had any obligation to divulge that information, but it would have been nice to have a heads up. Didn’t Andrew take a look at the books before he bought the place? “Why don’t you have any profit, Roland?” “I barter for everything.”
2. I suppose he could adapt to a certain point but he’s going to have to run things the way he wants or go out of business.
3. That’s something that has to be explained before the exam even begins.

Robert M. Edina, MN

Yes, Roland should have highlighted the extent of his side deals. I would have thought He would have followed Roland for a few weeks in the practice and much of this would have come to light. Andrew should think about the bartering aspect and get some professional advice as there could be tax consequences, as well as Medicare issues, with trading services. He needs to take Roland to lunch and find out how pervasive the bartering thing is. If it is small, I would use what worked for me and explain to those whose barter did not meet my needs we would be able to offer them a cash discount instead on products. Should it be a large part of the practice, he will need to explain to his patients that he has researched bartering and found that these transactions must be reported as taxable income. The simple truth is that if done legally it is more trouble than it is worth.

Nikki G. Oakdale MN

Roland SHOULD have been up front about his bartering services. However, if you purchase an existing practice and the claimed income on the financial statement were the basis of your decision, then you would have also planned your spending around only those funds. So, the barter services should then become irrelevant to your expected income. Going forward with a new awareness, Andrew could offer those people a payment plan, understanding there will be some period of transition, and those patients should have NEVER gotten so far as the exam room without having payment arrangements in place. Therefore, to avoid this conversation in the future, the entire front office staff should be trained on the policy for handling past barter patients and that dialogue should be consistently carried from the front desk, to the exam room and on to the dispensary.

Jennifer L. Dansville, NY

If you have a service that you can trade for someone else’s’ by all means barter dollar for dollar. It’s certainly a way to connect with people. Always say, “This is a deal between us exclusively,” so they aren’t telling everyone. I’m pretty certain that you won’t be able to duplicate the barters your previous owner had but assess each offer and explain why you will or cannot accommodate their request. Be respectful of their offer. If Andrew is not comfortable bartering then telling his patients he’s been advised by the IRS not to participate in bartering should be enough to scare anyone. In small communities, it’s pretty common. You need new sunglasses and I need a tree cut down…Your son needs glasses and I need to rent a tent from your company….I’ll knock $25 bucks off today if you plow the parking lot after the snow we’re getting tonight…

Michael D.  Eldersburg, MD

1. Yes, ethically Roland should have let Andrew know. Shame on Andrew’s lawyers/accountants for missing that.
2. He should have a discussion with other professionals in the area and see if this is the custom or isolated to Roland. Change the name of the business so patients know they are dealing with a new entity. Perhaps a letter from Roland to the patients explaining new ownership and how great Andrew is.

What’s the Brain Squad?

If you’re the owner or top manager of a U.S. eyecare business serving the public, you’re invited to join the INVISION Brain Squad. By taking one five-minute quiz a month, you can get a free t-shirt, be featured prominently in this magazine, and make your voice heard on key issues affecting eyecare professionals. Good deal, right? Sign up here.

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Real Deal

If This Team of Expo Slackers Worked for You, What Action Would You Take?

They spent most of the all-expenses-paid trip in the hotel bar.

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DR. BENNIGAN’S STAFF of 12 was buzzing. Liz, the office manager, was spreading the word that for the first time ever the practice would be sending some team members to a big optometry conference. The lucky staff members would fly from their home in Lexington, KY to Atlanta, GA for three days of continuing education, special events and expo exhibits.

ABOUT REAL DEAL

Real Deal scenarios are inspired by true stories but are changed to sharpen the dilemmas involved and should not be confused with real people or places. Responses are peer-sourced opinions and are not a substitute for professional legal advice. Please contact your attorney if you have any questions about an employee or customer situation in your own business.

ABOUT THE AUTHOR

NATALIE TAYLOR is owner of Artisan Eyewear in Meredith, NH. She offers regional private practice consulting and ABO/COPE approved presentations. Email her at info@meredithoptical.com

Liz asked everyone to email her a short “essay” describing why they wanted to attend and what they hoped to get out of the experience. Based on these essays Dr. Bennigan chose four staff—two opticians and two technicians—plus Liz to lead the trip. She immediately booked the flights so the group could sit together. Dr. Bennigan agreed to pay each staff person their regular wages for an 8-hour workday. Liz carefully scheduled each staff person with CE lectures as well as time to attend the expo. She printed the course handouts and made binders for each attendee.

The morning of the flight Liz met her four co-workers in the office parking lot and everyone loaded into an airport shuttle van. It was early, just after dawn. As they pulled out onto the highway Liz shushed the group to go over some of the details, beginning with her binders.

“I’d recommend reading through your handouts on the plane,” said Liz. “Dr. Bennigan has scheduled a 3-hour staff meeting for when we get back home, and each of us is going to need to present a 3- to 5-minute summary of what we learned at each lecture.”

The group collectively rolled their eyes and shifted in their seats, but no one argued.

“Tomorrow night at 7:30pm we are going to meet up in the hotel bar and walk across the street to a restaurant so we can talk about the first day, okay?” The girls tiredly sipped cups of coffee and stared out the windows.

Liz was booked in a room by herself and spent the first night zoned out in front of the TV. The next morning, she saw one of the opticians on the shuttle bus.

“Where’s your partner in crime?” Liz asked amiably.

“Oh, we met up with a few of my old co-workers at a bar last night. She got pretty drunk,” the optician said, chuckling. “She’s still out cold; I left her in the room.”

“Oh boy,” Liz tried to hide her frustration.

That evening, Liz waited for her team as planned but by 7:40pm she sent a group text asking for an ETA.

“I forgot!” wrote the technicians. “We’re at the big optometry party – come here!” “We have drink tickets!”

“We’re too tired,” texted one optician. No reply from the other.

Liz called the restaurant to cancel their reservation, and backed off the group for the remainder of the trip.

At Dr. Bennigan’s staff meeting the presentations were of varying quality: one of the technicians did an adequate job, but the other had clearly not taken any notes during her classes. The two opticians confessed to missing several classes and largely worked off the handout binders.

Dr. Bennigan held the four back for a recap. “Ladies,” he began, “Liz and I are not satisfied with your efforts—not today, and not while in Atlanta. I was OK paying you for the time you put in to your education, but you clearly have taken advantage of the situation.

I think we need to revisit the terms of this trip.”

The Big Questions

  • Would it be fair of Dr. Bennigan to subtract from an employee’s daily rate for each missed course?
  • Should the team be held accountable for missing team-building events? How?
  • If Dr. Bennigan decides to send staff next year, what should he do differently?
Becky M.
Osawatomie, KS

We have to show proof that we attended our classes. If we don’t have our schedule stamped we don’t get paid for the time in that class. The staff should not be paid for the classes they did not attend. The staff was disrespectful for not attending the dinner they were aware of ahead of time. If the doctor sends staff next year he should spell out, in writing, what is expected of staff and none of the staff that attended this year aside from Liz should be allowed to attend again. We have never had to put the expectations in writing at our practice. We have a lot of fun at conferences but we also attend our classes and take notes because we’re being paid to be there and our doctor is paying for CE. Common courtesy and respect.

Thomas W.
Myrtle Beach, SC

The doctor paid the staff to attend the classes. They did not attend, so it would be fair for him to subtract for each missed course. The team should be held accountable for missing the team-building events, but as these were clearly after hours and not during their paid work hours, there should be no financial consequences for missing these events. If the doctor decides to send staff next year — and I think he should—he should personally explain his expectations to the staff. Additionally, it would be wise for him to attend the conference along with his staff. It would also be a good idea for him to take them out to dinner as a team-building event and not as a business meeting. I would encourage keeping the team together as much as possible. The office manager zoning out in front of the TV by herself is not acceptable.

Deanna A.
Fort Collins, CO

Express your concerns and document it in their employee file. I would consider sending less people the following year and certainly not the ones who didn’t follow through. There seemed to be a lot of hand holding and trying to make sure they follow through. There needs to be some point of responsibility of the employee. They go to learn and share. The partying and missing classes is abuse of the situation. Next year if they miss class, then they would be docked those hours and asked to reimburse for the cost of education.

Brian C.
Prescott Valley, AZ

We had a similar situation when I took my entire staff of five to Vegas Expo West about 20 years ago. Most of my staff did not attend the education I paid for, and were off drunk/gambling the entire time. Time dedicated to purchasing new frame lines and evaluating equipment was spent trying to find errant employees who were passed out/vomiting in their rooms after the “Marchon party.” It was a terrible experience. I was furious that I closed my clinic for three days (thousands in lost revenue), paid for the entire thing (a couple more thousand dollars), the staff’s hourly wage for three days, and I netted no positives at all. It was a complete waste of time and money. The staff noted my resentment for years afterward, and never brought up going to Expo again. I have never paid for any employee to go to Expo since. I attend it alone, sober, and only for one day.

Chris D.
Tampa, FL

I would not touch the employees’ pay for the trip. But not having filled the agreed requirements, I would suspend them for three days for gross negligence of their duties. This was not vacation; this was work and education. The expectations were set. They failed to deliver — three of them, at least. I would bar them for one year for any company paid events or education. I wouldn’t rub their noses in it, but set the tone to know it will never be tolerated again. And why.

Cherlyn F.
Decatur, IL

Speaking as an office manager, I would write up the employees who did not participate according to the agenda. I would also forbid them from any future trips for a period of time, say one to five years. Our policy on continuing education: Continuing education and the expenses involved will be left to the discretion of management. There may be times when you will be required to attend a seminar scheduled after office hours, or on a Saturday or Sunday. The doctors will pay your registration fee, and you will be reimbursed hourly pay for time spent in classes and for two hours for exhibit hall time. No reimbursement for travel expenses will be considered.

Pamela M.
Highland, CA

1. Would it be fair of Dr. Bennigan to subtract from an employee’s daily rate for each missed course? ABSOLUTELY.
2. Should the team be held accountable? YES.
3. No further out of area continuing education except for the staff person who adhered to the rules. No exceptions for staff members who took advantage of their employer and office manager. The staff, despite the rules, took this as a vacation at the employer’s expense. Shame on the employees. This breach of trust has now created an office problem and will remain as part of the employees’ records. Trust will have to be earned back, if that is possible, and it is up to the doctor and the office manager.

Taylor K.
Ellington, CT

1. Yes, it would be appropriate to subtract the daily rate for missed courses. The staff was being paid for the hours they were attending the conference/expo, so why would they be paid for not going? Especially considering typically you pay per credit hour, so not only would the staff be paid to not be working, they were wasting money for attendance fees.
2. While it is frustrating the team didn’t attend, if they weren’t being paid for that time, there isn’t much to do for this specific issue, unless staff was told it is mandatory.
3. I would call a meeting with the doctor and the attending staff and express disappointment with what transpired. I would then explain that I will not be considering any staff members who missed courses for the next education trip. In the future, having very clear expectations of the staff will be essential.

Judy C.
Wilkes-Barre, PA

Yes, the doctor should hold the staff members accountable. Rather than docking their pay, it should be considered during their annual review process and the costs reflected in any resultant pay increase. I also believe there should be a written agreement between the doctor and any staff members attending a conference stipulating what will be required during the event. I would hope that any staff members offered this opportunity would jump at the chance. I know I would have.

Pam P.
Downers Grove, IL

It’s disappointing when a staff member does not value an opportunity like this! However, without expectations set prior to the trip, I don’t know that it would be fair to not pay for something promised. Spelling out expectations and letting staff select classes that might interest them, or covering CE requirements if they are certified, would give staff the ability to decide if they could meet the doctor’s expectations. Additionally, it should have been noted that any missed classes/days/activities that are required (and most likely already paid for) would result in a reduction of any reimbursement or pay. Working together as a team to cover any aspects of the meeting the doctor needed information about would have benefited all. But the girls all missing the meeting Liz had asked them to attend at the end of the first day could have derailed plans for the following days and was blatantly disrespectful to Liz. Action might be considered in that respect. The staff acted irresponsibly.

Martha D.
Wheatfield, IN

I definitely think he should subtract some of the hours for the ones who didn’t attend their classes. They didn’t live up to their part of the bargain. If he does send anyone next time, I would draw up paperwork specifically letting them know what is expected of them and what is expected of the doctor and have everyone sign. That way, when they come back afterwards and the doctor goes over the conference with them, all parties will be held accountable. If I was the doctor, I would have been really upset with my staff; they were chosen to go and all they did was play around.

Dennis I.
Monroe, CT

The doctor should have laid out all expectations and consequences prior to the meeting. This way, if someone didn’t fulfill their duty, there would be no questions regarding consequences. The staff manager should not only have made sure the staff met for an appropriate meeting, but also allowed for free time. Because the doctor and manager did not lay out their expectations, the only consequence should be that the individuals do not qualify for another trip.

Rigo L.
Indio, CA

This is funny, and at the same time sad but true. The staff should be held accountable for this. There is no reason why the doctor has to pay/lose for their staff to party. The staff should be ashamed, but I understand how things got out of hand. I give props to the manager for not trying to babysit her staff. I would subtract their pay — they would understand why. They need to understand that this is not acceptable. If they get bonuses, I would consider skipping them or cutting them significantly. I would also consider a write-up as well. As for the following year, I would still send staff but not those same staff ever again. There is no room for immature staff.

What’s the Brain Squad?

If you’re the owner or top manager of a U.S. eyecare business serving the public, you’re invited to join the INVISION Brain Squad. By taking one five-minute quiz a month, you can get a free t-shirt, be featured prominently in this magazine, and make your voice heard on key issues affecting eyecare professionals. Good deal, right? Sign up here.

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Real Deal

Ever Feel Like Your Billing Policy Is Backfiring?

This practice does. How can it get back on track?

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IN FOCUS VISION CARE, a private practice in Olive Branch, MS, was adding a new billing manager to the office. Sean had four years of experience submitting optometry claims and 12 years billing for a physical therapist; this would be his first position as a supervisor. Erin was office manager and spent a lot of time training Sean during his first few weeks. After lunch on his third day, Erin brought Sean to the conference table and spread out several documents.

ABOUT REAL DEAL

Real Deal scenarios are inspired by true stories but are changed to sharpen the dilemmas involved and should not be confused with real people or places. Responses are peer-sourced opinions and are not a substitute for professional legal advice. Please contact your attorney if you have any questions about an employee or customer situation in your own business.

ABOUT THE AUTHOR

NATALIE TAYLOR is owner of Artisan Eyewear in Meredith, NH. She offers regional private practice consulting and ABO/COPE approved presentations. Email her at info@meredithoptical.com

“I’ve delayed going over Medicare but I think it’s time,” Erin began. “We made a decision that doesn’t really seem to be panning out for us, so you and I need to work with the doctors to edit our protocol.”

Sean was intrigued. “I’ve always known Medicare to be straight-forward. What’s happening?”

Erin pulled one of the documents toward Sean: an EHR-generated pie chart. “As I mentioned earlier, 44% of our comprehensive exams in the last five years have been Medicare exams. Eighteen months ago we saw a major increase in Replacement plans.”

Sean nodded. “Right, patients on Medicare can buy a hardware benefit. I’ve seen this advertised on television.”

“Well, the plans these patients pay for also include a well-visit.”

“The doctor I used to work for always sent the exam to Medicare. I understand these plans to be for optometrists to ‘identify – don’t treat.’ Elderly patients usually have a medical diagnosis and require actual care.”

“I agree with you. Their comprehensive exams are, on average, too complex to bill to these kinds of plans — not to mention the significant difference in reimbursement!”

“So what’s the issue?” Sean asked.

“Several patients complained, first to our doctors and then to me, that they wanted to use the services they had purchased. Most of the patients I spoke to were in their early 60s and relatively new to Medicare. One patient even went to our local newspaper and got a reporter involved. ‘Potentially deceptive practices.’ We were pushed into the spotlight.” She sighed, pulling the newspaper clipping out of the pile towards Sean. “We did what we thought was best at the time: the doctors only do a refraction and the minimum level required for the Replacement plan, delay all patient counseling and education, then schedule a comprehensive visit using Medicare for a few weeks later.”

Sean nodded. “That sounds reasonable. The patient uses both plans and I imagine at the second exam you skip the refraction and only collect the 20% co-insurance?”

“Yes, but the problem is most patients are no-showing to those exams, or canceling last minute and never rescheduling. We’re now seeing these initial patients pass the 12-month mark and call to book again. One doctor believes as long as we document carefully and have a signed consent that each patient understands the difference between the well-visit and a comprehensive exam, it’s the patient’s right to select their level of care. The other doctor told me she plans to refuse well-visits for patients who skipped their Medicare-level exams last year, because she doesn’t think a piece of paper will protect us from the consequences of subpar health care.”

Sean drummed his fingers on the table. “I think I need to do a little research before bringing my professional recommendation to the doctors,” he said.

The Big Questions

  • How would you have solved this dilemma if it was your practice criticized in a newspaper?
  • If your parent/grandparent was a patient at this practice and wanted to use a Medicare Replacement plan, which doctor would you side with?
  • Would your own protocol be affected if your Medicare base was only 10%? How about 80%?

Real Deal Responses

John M.Victoria, TX

I recommend the practice stop participating in the Medicare advantage plan and see patients that have regular Medicare.

Nina C.North Chesterfield, VA

This is hard. I would like to do the wellness on the vision plan, but Medicare patients have more complex ocular situations than most. We have a large Medicare group. Most will not return for the Medicare exam and liability is such that I cannot give a “lesser vision exam.” We tell patients when making the appointment and again on checking in that we are Medicare providers and will be filing Medicare. We will be collecting refraction fees unless the patient has a vision plan that coordinates benefits to cover refraction. We can use their material benefit towards glasses or CLs. Those who disagree never make an appointment or leave. If the optometrist was to forsake filing Medicare, we would soon be dropped as physician providers.

Rigo L.Indio, CA

Newspaper! Who reads a newspaper nowadays? Anyways, it could have been worse with social media or TV. Patients with Medicare usually require extra time and visits and they think Medicare works the same everywhere. I have seen offices take Replacement plans with Medicare only if they have a vision insurance plan and refer out for medical exam or not take Medicare at all if it’s a Replacement plan. Well visits don’t do much for a patient and most of the time they need comprehensive exams or medical during an office visit. That being said, I would change protocol for the Medicare patients to only see them for comprehensive or office visits. I make that clear when the appointment is made. Having a good relationship with MDs and co-managing patients works best.

Maureen G.Oak Park, IL

I see the problem as one of a lack of educating the patient. Our office sees maybe 10 percent Medicare patients, but the doctor takes time to explain so the patient understands the importance of the medical visit. We have few if any patients that do not schedule a medical visit. And it has to be the doctors doing the explaining, not a manager or technician. Patients will listen to a doctor more than anyone else.

What’s the Brain Squad?

If you’re the owner or top manager of a U.S. eyecare business serving the public, you’re invited to join the INVISION Brain Squad. By taking one five-minute quiz a month, you can get a free t-shirt, be featured prominently in this magazine, and make your voice heard on key issues affecting eyecare professionals. Good deal, right? Sign up here.

Continue Reading

Real Deal

A Sublease Eye Doc Didn’t Work Out

Should the optician/owner pursue their non-compete?

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ROXANNE WAS AT HER desk on a Sunday afternoon reviewing bills and rubbing at stress hives on her neck. The optician-owner of a gorgeous boutique near Sioux Falls, Roxanne was at her wits’ end with her sub-leaser, Dr. King. The women had a meeting scheduled to try to resolve their differences.

ABOUT REAL DEAL

Real Deal scenarios are inspired by true stories but are changed to sharpen the dilemmas involved and should not be confused with real people or places. Responses are peer-sourced opinions and are not a substitute for professional legal advice. Please contact your attorney if you have any questions about an employee or customer situation in your own business.

ABOUT THE AUTHOR

NATALIE TAYLOR is owner of Artisan Eyewear in Meredith, NH. She offers regional private practice consulting and ABO/COPE approved presentations. Email her at info@meredithoptical.com

The pair met the previous year at a CE event and hit it off. Dr. King, a stay-at-home parent of several years, was inspired to return to work part time, and Roxanne was inspired to offer eye exams to her loyal client base. They created a two-year contract including a non-compete clause limiting Dr. King from practicing within 3 miles of her office within a year of contract termination, on penalty of several thousand dollars. Once the commitment was made, Roxanne retrofitted storage space into an exam lane and purchased second-hand equipment.

Roxanne, waiting impatiently, now ran through the details in her mind to prepare for a contentious discussion. The terms of their agreement were 8-10 comprehensive exams in 4 hours for a flat rent. Patients scheduled with Dr. King directly so she could book around her family commitments. She billed and collected all exam fees, while Roxanne’s employees pretested, collected co-pays, and processed contact lens orders.

For a few months everything went well. Then the financial disagreements began: Dr. King started scheduling just 2-3 patients a day and decided it would be fair to only pay rent every second or third week. Payments on the equipment leases were now greater than the rent. Roxanne was also seeing lots of shipping charges for contact lens trial orders, which Dr. King felt were the responsibility of the business as they profited from supply sales.

The front door squeaked and a moment later Dr. King sat down at Roxanne’s desk. She looked worn but resolute. “I know you called this meeting,” she began, “but I’d like to speak first.”

Roxanne nodded and pushed her paperwork to the side. “Okay, I’m ready.”

“I’ve given it a lot of thought, and I just don’t think this is a good fit for me,” said Dr. King. “I’m tendering my resignation, effective 2 weeks out. I don’t have any patients booked past then anyway.”

Roxanne’s eyes bugged. “You’re quitting?!” she managed to get out, throwing her head back and staring at the ceiling. “You’re quitting.”

“This just isn’t fun for me,” she continued. “I don’t like your stress towards me, and I feel like I’m being nickel-and-dimed.”

“Are you leaving to go work somewhere else?” asked Roxanne.

“No, my wife and I don’t rely on my income,” she said.

Roxanne sighed. “Well, it sounds like your mind is made up. It stinks we weren’t able to resolve things, but … I get it.” As soon as Dr. King left, Roxanne got to work posting the job vacancy online.

A few weeks after Dr. King’s last day, Roxanne’s lab tech stopped her in the hallway. “I just heard through the grapevine, Dr. King is seeing patients over at Family Vision Center,” he whispered. Exasperated, Roxanne thanked him and went to call her lawyer about enforcing the non-compete clause. Family Vision Center was less than 2 miles away!

The Big Questions

  • In what way could Roxanne and Dr. King have changed their agreement to mutually improve the situation?
  • If Dr. King bills for a contact lens fitting and the boutique bills for the supply, who pays the shipping and handling of trial lenses?
  • Is a non-compete clause justified for a sublease doctor? If the lawyer deems the contract enforceable, would you pursue?

Expanded Real Deal Responses

Andy H.
Jacksboro, TN

This scenario poses a significant problem for the optician/owner. I’m not sure how I’d resolve this situation, but it could’ve been avoided if a reputable business consultant had designed the contract. A professional consultant would have covered all the disputed variables. I think it’s interesting that a recent INVISION survey showed a mere one in four ECPs use consultants, and this Real Deal demonstrates the need to do just that. We’re all pretty smart about eyes, but not many of us can claim to be experts in business.

Chris G.
Inver Grove Heights, MN

First, I didn’t see a copy of the non-compete document. Some of these documents are unenforceable depending on the laws in the state where this occurred. Second, all costs should be negotiated at the beginning of the employment. Third, even if a lawyer deems the contract enforceable, it can still be nullified by a myriad of other factors. Having said this, if all the contingencies are met in the agreement and it is enforceable, I would go after it immediately. Another part is who owns the files in the office. That should be negotiated as well.

Bill K.
Houston, Tx

Bad terms of agreement upfront. Starts bad, ends bad.
1. More concrete terms and understanding.
2. Cost of trials? Ever hear of fitting sets?
3. Non-compete should hold up if written correctly.
Not a bunch of 2-year-olds at play. Grow up and live up to your commitments. “I don’t feel like I am respected.” Blah blah blah.

Anna T.
Claremont, CA

First of all, they should have spoken more about what was expected from the lease. Possibly going through a broker to have a legal agreement prepared with terms stating that the lease was to be paid every week and that X amount of patients were expected per week. Also, they should have agreed upon the costs of the lenses, and who was paying for shipping charges in the agreement. Ultimately, I think that the doctor just did not have the right work ethic for this sort of collaboration. I think that the doctor’s fees should cover the trial shipping costs. I believe the non-compete is justified. However, since this doctor did not spend very much time working at the location, I am not sure that she would be much competition if she were to set up office in a nearby location. Most likely with her work ethic she would not be much of a business owner in the future.

Rigo L.
Indio, CA

Ohh, the drama! It’s always easier to blame the other person. Both Roxanne and Dr. King gave up too soon; communication is key. It was unprofessional for Dr. King to quit. It’s not expected but the doctor should feel heavily responsible — in this case it looks like it was all business. The shipping and other stuff could have been worked out if both were willing to keep to their agreement; at the end of the day they still made a profit. As far as pursuing the non-compete clause, it sounds exhausting, expensive and time-consuming, but if this is going to save my business, I would go ahead with it.

Darrell L.
Goodlettsville, TN

The contract should have spelled out the particulars of fees, bills and supplies. Leaving things open-ended always creates problems. The non-compete is justified and was agreed to in writing, therefore it is binding. If the tables were turned, the doctor would likely pursue reimbursement for damages from the optician.

Frank U.
Bakersfield, CA

No lawyer; lesson learned, find another doctor.

Wilfredo M.
Philadelphia, PA

Unless Roxanne and the doctor agreed to bringing another doctor to work more hours, I don’t see how. Two or three exams a day doesn’t justify the expense of equipment, or cutting the space to put in an exam room.

The optical should pay for shipping for trials, but also keep in mind that for trials at least a commitment for the sale of the contacts should be engaged, or an order for glasses should be placed — and then seen as a courtesy from the optical, not from the doctor.

Whatever is the right and legal thing to do. If the income was not the issue based on Dr. King’s answer, why work in a place that close? People should not be allowed to conduct a market study while working with you and then become your competition! Keep in mind that patients are the “property” of the doctor, who did the billing.

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