Budgeting remains a critical issue as more hospitals and medical groups merge or become acquired in 2023. Budgeting questions commonly require a comprehensive review of physician compensation agreements.

Ideally, these agreements should be easy to understand. After all, doctors are generally paid by how many wRVUs (or relative work units) they produce. A wRVU is calculated by multiplying the Medicare CPT code assigned to a particular procedure by the number of such procedures to be performed in a specific period. Under one common compensation arrangement, the employer sets a production goal where doctors must generate a certain number of wRVUs each year, which are measured through transaction reports. If a physician exceeds the annual threshold, the employer commonly awards a bonus; who doesn’t like bonuses?

Unfortunately, not every contract is so simple, and unaddressed confusion may lead to strained business relationships and even legal action. Doctors who feel slighted or unappreciated may look for other places to work. Others may believe that they are discriminated against and may seek legal remedies. These issues can largely be avoided by having detailed conversations about compensation and productivity expectations. Here are three ways providers can avoid misunderstandings.

Be clear about how wRVUs are credited – As noted; physicians are commonly evaluated by wRVUs produced. However, the agreement should be clear on whether productivity is measured on CPT codes submitted or codes actually paid. This can make a significant difference because billing delays and reimbursement challenges could lead to inaccurate reflections of productivity. The same could be said if charts are only entered on certain days of the month or times of the year.

Be consistent with reports – Like any industry that relies upon performance metrics, transaction reports are critical in ensuring that physicians are performing to established standards and are compensated accordingly. The compensation agreement should specify when production reports will be provided and also articulate a procedure for challenging inaccuracies.

Promptly notify physicians of coding changes – Most physicians will personally assign the CPT codes for services performed. However, if a coding or documentation issue requires a change, incorporate a prompt notification system. After all, coding directly impacts physician compensation, and discussing this sooner rather than later reduces the chances of additional pay issues.

If you have additional questions about how to avoid or mitigate issues surrounding physician compensation, a Jackson Lewis attorney will be happy to discuss them with you.

The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day. In addition, the Administration announced that the Department of Health and Human Services (HHS) and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border. Read more.

Health data privacy, including in the context of reproductive health, was strengthened last week when Washington Governor Jay Inslee signed the “My Health, My Data Act” on April 27, 2023. Set to take effect on March 31, 2024, the new law aims to address health data collected by entities not covered by the federal Health Insurance Portability and Accountability Act (HIPAA). Read more.

Just three years after passing a statute significantly restricting the enforceability of physician non-compete agreements, Indiana’s legislature has passed an amendment, Senate Enrolled Act No. 7. Senate Enrolled Act No. 7 would invalidate a significantly broader category of physician non-compete agreements on or after July 1, 2023. Governor Eric Holcomb is expected to sign the bill into law. Read more.

Under two amendments to its law regulating consecutive hours of work for nurses (Labor Law Section 167), New York has established monetary penalties for violations of the law and placed reporting requirements and other restrictions on healthcare employers that require nurses to work beyond their regularly scheduled hours. Read more.

With 2023 underway, healthcare organizations continue to prioritize employee retention and recruitment in the face of economic trends impacting the healthcare industry, such as significant staff shortages, employee turnover, a marked increase in healthcare professionals leaving the industry, and rising inflation.

Several healthcare employers throughout the country are increasing employee wages, organization-wide, either of their own accord or to comply with state or local pay laws.

As previously reported, in June 2022, the City of Los Angeles approved an ordinance to raise the minimum wage for certain healthcare workers at privately-owned healthcare facilities within the city to $25 per hour. Several other cities in California followed suit with similar ordinances.

In late fall last year, New York announced significant pay increases and upgraded nursing titles for nurses employed by 15 state agencies. The wage increases vary dependent upon the nurses’ titles and what shifts the nurses work (with night shift employees receiving a larger wage increase), but the changes impacted approximately 6,500 nurses employed by New York state. Such changes were in addition to the geographic pay increases implemented for nurses earlier in the year.

Baltimore-based Life Bridge Health raised the minimum wage from $15 to $16 per hour, effective November 2022. The wage increase will apply to approximately 2,500 positions across the hospital system.

Winston-Salem, North Carolina-based Novant Health raised its minimum wage from $15 to $17 per hour, effective March 3, 2023. The wage increase will apply to more than 4,400 employees across Novant’s 15-hospital system.

Healthcare industry employers who have yet to consider any organization-wide wage increases but who are also experiencing staff shortages, employee turnover, and rising concerns relating to employee retention should be aware of what other organizations are offering to remain competitive in the already-strained healthcare market. Wages are only one important factor impacting employee wellbeing. As workplace trends are also shifting with a renewed focus on mental and behavioral health, healthcare employers may also want to consider offering creative benefits to address employee welfare, retention, and burnout, such as providing employees with access to onsite clinics, population health management services, and/or other wellness programs with an emphasis on mental, financial, and behavioral health. Adopting benefits like this may provide healthcare employers a competitive edge in this dynamic market for talent.

Stay tuned for further updates regarding healthcare workplace trends, and please do not hesitate to contact the Healthcare Group at Jackson Lewis if you wish to discuss these topics.

A significant concern for managers of remote workers is the ability to engage, manage and monitor performance and productivity – and some healthcare employers have turned to technologies like tracking employee keystrokes, capturing screenshots, and on-camera requirements for employees during work hours.

This has caught the attention of the National Labor Relations Board’s General Counsel Jennifer Abruzzo, who recently issued a memorandum seeking to broaden of the National Labor Relations Act (the “Act”) and limit the electronic surveillance of employees.

“An issue of particular concern to [her] is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.” Memorandum GC 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights” (released Oct. 31, 2022).

Under well-established law, an employer can be found to violate Section 8(a)(1) of the Act if it implements new monitoring technologies in response to union and other protected activity, uses existing technologies to discover such protected activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things.

In the memo, GC Abruzzo requests the Board adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts. GC Abruzzo urged the Board to find that employers presumptively violate the Act if their surveillance technology and management practices, as a whole, tend to interfere with or prevent employees from engaging in protected concerted activity. The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the Board would weigh the employer’s interests against its employees’ interests. Even in cases where the employer’s interests outweigh the employees’ interests, the GC would require employers to disclose how employees are being monitored, absent special circumstances. Notably, the scrutiny called for in the memo applies to all employers subject to the Act, not just employers with union-represented workforces.

In addition to the flurry of labor activity in healthcare, this is one more area to keep an eye on as healthcare employers focus on growing and managing remote workforces. Please contact the Jackson Lewis attorney with whom you usually work or a member of our Healthcare Group if you have questions or need additional guidance.


The growing use of healthcare mobile applications and websites—and the associated use of online tracking technologies—raises privacy concerns under the Health Insurance Portability and Accountability Act (HIPAA) that developers of such applications and healthcare organizations should keep in mind. Indeed, there has been an uptick in litigations filed across the country involving healthcare mobile application and website tracking technologies in which plaintiffs have alleged wrongful uses and disclosures of patient data collected by these technologies, regardless of whether such collection was inadvertent. In December 2022, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) issued a bulletin with guidance concerning the use of online tracking technologies by covered entities and business associates under HIPAA.

To learn about online tracking technologies, HIPAA obligations related to these technologies and the OCR’s guidance to HIPAA-covered entities concerning the use of these technologies, read the Workplace Privacy, Data Management & Security Report here.

Much is being written about “remote work” – is it productive, will demand for it continue or be curtailed in a recession, is cybersecurity compromised, does it inhibit workplace culture, collaboration, etc. Lots of questions, few clear answers. Read more at our Workplace Privacy, Data Management & Security Report.

As we leave 2022 behind us, here are seven things healthcare employers should watch for in 2023.

  1. Medical Residents and Interns Unionizing.  Yes, you read that right.  2022 saw organizing among these groups on both coasts.  This is happening as we see a resurgence in organizing among graduate students and even undergraduate student employees.  It will be important for employers to include medical residents and interns in their programs addressing employee engagement and wellness.
  2. Increased Focus on The Application of Title IX to Medical Residency and Other Educational Programs.  Title IX prohibits discrimination on the basis of sex in federally funded education programs.  We have seen a growing number of claims brought against academic medical centers alleging violations of Title IX.  Therefore, it is prudent for healthcare providers engaged in education programs to be familiar with the current and proposed Title IX regulations.
  3. Cybersecurity Threats Continue.  The data is not in yet, but 2022 likely set a new record for cyber-attacks in the healthcare sector.  Back in October, the U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights cited a cybersecurity firm report that found a 69% increase in cyber-attacks targeting healthcare in the first half of 2022 compared to 2021.  Healthcare employers should review their HIPAA and other data security policies, as well as their incident response plans.
  4. Regulators Scrutinizing Telemedicine.  In September 2022, HHS’ Office of Inspector General issued a report recommending the Centers for Medicare & Medicaid Services (CMS): “(1) strengthen monitoring and targeted oversight of telehealth services, (2) provide additional education to providers on appropriate billing for telehealth services, (3) improve the transparency of ‘incident to’ services when clinical staff primarily delivered the telehealth service, (4) identify telehealth companies that bill Medicare, and (5) follow up on the providers identified in this report.”  These recommendations highlight the importance of training supervisors on how to respond to reports of improper billing as well as refresher training for the entire workforce on appropriate billing and documentation.
  5. Expect a Permanent OSHA Standard Covering COVID-19 for Healthcare Workers.  On December 7, 2022, OSHA sent a draft of the permanent rule to the White House for review.  The text has not yet been released, but the rule is expected to be effective in early 2023. 
  6. Expect More Strikes.  One industry publication noted in November that there already had been 18 healthcare worker strikes in 2022.  According to another report, contracts covering at least 1.6 million employees will expire in 2023.  Nothing suggests the factors fueling those 2022 healthcare worker strikes will be remedied soon enough to make 2023 a year of greater labor peace.  Therefore healthcare employers should consider doubling down on efforts to improve employee relations, as well as strike contingency planning.
  7. Staffing Challenges Will Continue.  While many healthcare employers report a decreased reliance on temporary staff, recruiting and retaining caregivers remains a challenge.  Recent reports indicate many clinicians are considering leaving healthcare.  This phenomenon means employers will continue to explore alternative ways to maintain staffing levels, including creating in-house staffing agencies as well as going to outside agencies.  In this environment, healthcare employers need to keep their eye on potential changes to the joint employer rule under the National Labor Relations Act and to the standard for determining whether a worker is an employee or “independent contractor” under the federal Fair Labor Standards Act.

Members of the Jackson Lewis Healthcare Industry group work with clients on all these issues daily. Please contact the Jackson Lewis attorney you work with or one of our industry group members if you have any questions about these topics.