Yearly Archives

Wilke Fleury Partner to Speak at National Conference

Wilke Fleury Partner and Chief Lobbyist, John Valencia, will address The Federation of State Medical Boards (FSMB) on November 1st in New Orleans. Mr. Valencia has been invited to present on "The Use of MedSpas in California to Facilitate the Nonphysician Practice of Medicine." Mr. Valencia will chronicle the recent, successful enactment into law by California Governor Jerry Brown of Assembly Bill 1548 to counter these unlawful practices – a project of Wilke Fleury client, the American Society for Dermatologic Surgery (ASDS).

The measure was strongly supported by the Medical Board of California.

The Federation of State MedicalBoards is a national non-profit organization representing the 70 medical and osteopathic boards of the United States and its territories. The FSMB’s 2012 Board Attorneys Conference convenes over two days to address key, patient-protection issue developments in the states.

The Rising Tide of Obesity: Managing Your Risk as an Employer

Recent Federal Court Decision Deems Obesity a Disability Under the ADA
Studies estimate the rate of obesity in this country to be at an all-time high – over one-third of adult Americans are now considered clinically obese. As this trend has risen over the years, many courts have grappled with the question of whether obesity may be considered a disability under the Americans with Disabilities Act (ADA) such that employers must offer accommodations to their employees whose obesity interferes with their job performance. A recent federal court decision out of Louisiana adopted the EEOC’s liberal view on this issue, holding that obesity on its own may be considered a disability under the ADA, even absent a showing of an underlying physiological disorder – something other courts have required in the past.

In EEOC v. Resources for Human Development, Inc. (827 F.Supp.2d 688 (E.D. La. 2011)), the employee at issue supervised the employer’s day care program and weighed over 500 pounds. Although she had received exemplary performance reviews, she was ultimately fired based on concerns over her “limited mobility” and difficulty performing CPR. The employee later died due to complications from her obesity, but the EEOC brought suit on her behalf, arguing that a person with “severe obesity” (which they defined as having body weight in excess of 100 percent above normal) is disabled under the ADA. The employer, on the other hand, argued that there must be a showing of underlying physiological disorder – such as a cardiovascular or respiratory problem – in order to bring the condition within the meaning of a “disability” under the ADA. The employer’s position was supported by holdings in several other federal court cases. The court, however, was not persuaded, and adopted the EEOC’s broader standard.

Although no court in California has similarly recognized obesity as a disability in and of itself under the ADA or FEHA, California employers should consider the Louisiana decision a harbinger of a more liberal approach to the issue. Employers who encounter obese employees seeking accommodations under the ADA should consider seeking legal advice before dismissing such requests outright.

Employee Wellness Programs Are Increasingly Popular, But Not Without Risk
In an effort to confront the problem of obesity in the workplace before it becomes an issue, many employers are implementing wellness programs. Wellness programs encompass a broad array of approaches to incentivizing healthier lifestyles and promoting health and wellness. Some offer rewards for adopting healthier habits such as losing weight or quitting smoking, and some simply encourage employees to have better nutrition or to be more active. The most typical arrangement rewards participants in the program with reduced health plan premium costs (which are usually automatically deducted from paychecks), but other common examples include gift cards or additional paid time off as incentives for participation or reaching certain specified goals. Studies show that up to 60% of employers now offer some type of wellness program to their employees.

Implementing these programs can appear to be a win-win for employers, as they may result in workers losing weight, becoming healthier, avoiding costly medical issues, and missing work less frequently. However, employers should be aware of certain pitfalls that may accompany workplace wellness programs. Employers should avoid implementing wellness programs that are too aggressive, such as requiring employees to undergo a health risk assessment. The ADA states that such assessments must be voluntary, so participation cannot be a standard for employment. In addition, the recently implemented Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking about employees’ genetic information, so questions about family history may violate the law. Moreover, the Health Information Portability and Accountability Act (HIPAA) forbids employer medical plans from charging higher rates based on health status – so a health assessment or wellness program designed to ferret out smokers, for instance, may violate HIPAA. (There are exceptions to this provision for employer wellness programs that meet certain criteria, such as providing alternative rewards to employees who cannot or should not achieve a particular health goal.) Finally, employers should take care not to allow certain employee health information to fall into the hands of those making employment decisions. A terminated employee could easily allege that he was fired not based on his job performance, but rather because of a health condition that may be protected under the ADA.

The potential for liability should not dissuade employers from implementing wellness programs at all. Such programs have proven successful in improving employee health and morale and reducing health care costs. If in doubt about the legality of such programs (or certain provision in such programs), employers should seek legal advice.

California Supreme Court Rules On Administrative Exemption for Overtime Pay

The California Supreme Court has further clarified the administrative exemption from overtime pay requirements. In Harris v. Superior Court, the Supreme Court found that the “administrative/ production worker” test is not a dispositive tool in determining whether an employee is exempt from overtime pay. Rather, courts must consider the particular facts and apply the language of the statutes and wage orders at issue. While the Court’s decision appears to provide more latitude for employers, the Court gives minimal guidance for determining what actually constitutes an administrative exemption.

California’s Mandatory Overtime Law and its Three Exemptions:
According to Section 510 of the California Labor Code, employers must pay overtime to any employee who works more than eight hours a day or forty hours a week. However, Wage Order No. 4-2001 establishes three exemptions to California’s mandatory overtime: The executive exemption, the administrative exemption and the professional exemption.

The administrative exemption covers employees who perform work directly related to management policies or general business operations of either the employer or the employer’s clients. Employees who fall under this exemption must customarily and regularly exercise discretion and independent judgment, and must work under only general supervision. Furthermore, they must either perform specialized or technical work requiring special training, experience or knowledge, or they must execute special assignments and tasks. There is also a minimum salary requirement of two times the State’s minimum wage for full-time employment.

Case Background:
Plaintiffs, who were claims adjustors, brought a class action lawsuit alleging that their employer erroneously classified them as administratively exempt from overtime pay. Plaintiffs moved for summary adjudication, arguing they were not exempt as a matter of law. The trial court granted Plaintiffs’ motion. The Court of Appeal affirmed the trial court’s decision by using the “administrative/production worker” dichotomy test.

The “administrative/production worker” dichotomy test distinguishes between “administrative employees,” who are primarily engaged in administering the business affairs of the enterprise, and “production-level employees,” whose primary duty is producing the commodity that the enterprise exists to produce and market. The former falls under the administrative exemption for overtime pay, while the latter does not.

Case Analysis:
The California Supreme Court’s decision focused on the scope of the administrative exemption for overtime pay under Wage Order 4-2001. The Court noted the “administrative/production worker” dichotomy test applied by the lower courts failed to utilize the actual language of Wage Order No. 4-2001 and other pertinent statutes and regulations. The Court further noted that the dichotomy may be impractical in the modern workplace: “Because the dichotomy suggests a distinction between the administration of a business on the one hand, and the production end on the other, courts often strain to fit the operations of modern-day post-industrial service-oriented businesses into the analytical framework formulated in the industrial climate of the late 1940s.”

Work qualifies as “administrative” when it is directly related to management policies or general business operations. The Court explained what work qualifies as directly related as follows: First, it must be qualitatively administrative in nature. Second, quantitatively, it must be of substantial importance to the management or operations of the business. To determine the qualitative component, the Court decided it needed to look to more specific statutes and regulations specifically listed within Wage Order No. 4-2001 to see what is actually administrative in nature. Former Regulation 541.205(b) (now (c)) provided that administrative operations include work done by white collar employees engaged in servicing a business. Such servicing may include advising management planning, negotiating, representing the company, purchasing, promoting sales, and business research and control. An employee performing such work is engaged in activities relating to the administrative operations of the business notwithstanding that he is employed as an administrative assistant to an executive in the production department of the business. These activities may be administrative in nature whether or not they are performed at the level of policy. (29 C.F.R. § 541.205(b)(c).) In this particular case, Plaintiffs attacked Defendants’ showing as to only the qualitative component. The Court thus expressed no opinion as to the quantitative component of the test.

The Supreme Court did not make a ruling on whether Plaintiffs were actually exempt, but instead sent the case back to the Court of Appeal to determine whether Plaintiffs’ duties were administrative in nature. The take-away point from this decision is that the “administrative/production worker” dichotomy is not dispositive on the issue of administrative exemption. Moreover, the Ninth Circuit has held that under more recent applicable federal regulations, claims adjusters are exempt from the Fair Labor Standards Act’s overtime requirements, “[i]f they perform activities such as interviewing witnesses, making recommendations regarding coverage and value of claims, determining fault and negotiating settlements.”

What This Means For You:
We now know that the “administrative/production work” dichotomy is no longer dispositive in determining exemption; work done by white collar employees engaged in servicing a business, including advising management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control may be deemed to satisfy the qualitative component. To satisfy the quantitative component of the same test, it must be of substantial importance to the management or operations of the business. Employers should consider these new guidelines in determining whether their employees properly qualify as administratively exempt. Each case must be determined on a fact-intensive basis; there are no bright line rules.

Wilke Fleury Lawyer’s State Bar Fee Waiver Proposal Approved

Wilke Fleury associate Samson Elsbernd is a trustee on the State Bar of California Board of Trustees (formerly, the Board of Governors). Recently, Mr. Elsbernd’s fee waiver proposal to the State Bar Board of Trustees returned from the public comment phase, and was unanimously approved by the Board of Trustees on July 20, 2012 as State Bar Rule 2.16(C)(3)(c). As a result of Mr. Elsbernd’s work, Rule 2.16(C)(3)(c) now allows for a 50% waiver of annual membership fees for members with a total gross annual household income of $20,000 or less.

Wilke Fleury applauds Mr. Elsbernd’s efforts on behalf of financially struggling attorneys.

Wilke Fleury Attorneys Once Again Named as “Super Lawyers”

Seven of Wilke Fleury’s attorneys have recently been named either "Super Lawyers" or "Rising Stars" by the 2012 Northern California Super Lawyers Magazine. Phil Birney, Tom Redmon, Jim Krtil, Ron Lamb, and Dan Egan were named "Super Lawyers." It was Mr. Birney’s sixth year to receive this honor, Mr. Redmon’s fifth year,  and the third year for Mr. Lamb and Mr. Egan. Dan Baxter and Megan Lewis were named "Rising Stars" for the fourth year in a row. The list of honorees is compiled through a multi-phase process of peer nominations and evaluations, as well as third party research. Just five percent of the lawyers in California are selected for the "Super Lawyers" designation, and no more than 2.5 percent are named "Rising Stars." Wilke Fleury congratulates these seven outstanding lawyers on their achievement.

Wilke Fleury Partners Earn “AV Preeminent” Rating

Wilke Fleury is pleased to announce that one of its partners, Robert Mirkin, has recently been bestowed the “AV Preeminent” peer review designation by Martindale-Hubbell, joining several other Wilke Fleury “AV” attorneys. Martindale-Hubbell’s peer review ratings are an objective indicator of a lawyer’s professional ability and high ethical standards, and the “AV” designation signifies an attorney’s ranking at the highest level of professional excellence.

Mr. Mirkin specializes in real property litigation and transactions, with a particular emphasis on receivership work.
Wilke Fleury is proud to count these fine lawyers among its ranks.

Wilke Fleury Lawyer Named to Sacramento City Commission

Wilke Fleury associate Natalie Johnston Butcher was recently appointed by Mayor Kevin Johnson, and confirmed by the City Council, to serve a six-year term on the City of Sacramento’s Ann Land/Bertha Henschel Memorial Fund Commission. The Commission is entrusted with administering the disbursement of the income of the Ann Land Memorial Fund and the Bertha Henschel Memorial Fund for the benefit, aid and assistance of the destitute residents of the City of Sacramento in such a manner as may be deemed proper and beneficial.

Ms. Butcher looks forward to her work on the Commission and the opportunity to assist the people of Sacramento.

Wilke Fleury Featured in Sacramento Business Journal

In conjunction with the recent commemoration of its 90th anniversary, Wilke Fleury was the subject of a June 1 article in the Sacramento Business Journal. Reporter Kathy Robertson sat down with longtime Wilke Fleury attorneys Richard Hoffelt and William Gould to find out what has sustained the firm for so many years, and why Wilke has succeeded where others have failed. To view the article in its entirety, click here.

Wilke Fleury is proud of its longevity in the community, and looks forward to continuing to serve Sacramento for the next 90 years.

Sacramento Business Journal – By: Kathy Robertson

How Will the Affordable Care Act Affect Employers?

In light of the recent United States Supreme Court decision upholding the individual mandate as a key component of the Affordable Care Act (ACA), all provisions of the ACA will continue to be implemented, with some limits on Medicaid expansion. In an effort to expand health care coverage, employers will now have to offer affordable coverage to their employees beginning in 2014, or else pay a penalty.

Small Employer Exception:
The requirement to offer affordable coverage is based on how many full-time equivalent employees the employer has. If there are less than 50 full-time equivalent employees, then the penalties do not apply. However, if an employer with 25 or fewer employees and an average wage of less than $50,000 decides to offer health coverage, the employer may be eligible for a health insurance tax credit.

No Employer Coverage:
If the employer has at least 50 full-time equivalent employees and does not offer coverage, then there will be a penalty assessed if the employer has one or more employees who are receiving a premium tax credit or cost sharing subsidy in an Exchange. The penalty is $2,000 annually times the number of full-time employees minus 30. The penalty is increased each year by the growth in insurance premiums.

Unaffordable Employer Coverage:
Even if an employer who has at least 50 full-time employees does offer some form of coverage, it needs to be “affordable.” The employer-sponsored insurance must pay for at least 60% of covered health care expenses for a typical population, and no employee should have to pay more than 9.5% of family income for the employer’s coverage. If either of these requirements are not satisfied, the employee may choose to buy coverage in an Exchange and receive a premium tax credit. If the employee receives a tax credit in an Exchange, the employer must pay a penalty for every employee who chooses the tax credit option. The penalty is $3,000 annually for each full-time employee receiving a tax credit, up to a maximum of $2,000 times the number of full-time employees minus 30. The penalty is increased each year by the growth in insurance premiums.

What This Means For You:
The ACA will have a major impact on employers come 2014. It is imperative that employers properly determine whether they will be assessed penalties based on the number of employees they have. Employers should evaluate the type of insurance coverage offered to all employees, and make sure the cost of coverage meets the minimum requirements to be deemed affordable.

Wilke Fleury Welcomes Summer Clerks

Wilke Fleury is proud to welcome two new clerks for the summer of 2012—Branden Clary and Nikki Agravante.

Branden is an Elk Grove native who just completed his second year at the University of California, Los Angeles School of Law. There, in addition to meeting his scholastic obligations, Branden serves as a legal writing advisor for UCLA’s legal writing program. Branden graduated magna cum laude from the University of California, Santa Barbara with a double major in political science and Asian American studies. He grew up in Elk Grove.

Nikki attends the University of California, Davis School of Law, where she just completed her first year, and is currently a Sacramento County Bar Association 2012 Diversity Fellow. At law school, Nikki serves as the co-chair of the Filipino Law Students Association and is a member of the King Hall Football Club. Nikki graduated magna cum laude from New York University with a Bachelor of Arts in politics and Asian/Pacific/American studies.

Branden and Nikki are both excited to be part of the Wilke Fleury team, and we look forward to watching them succeed!

Changes on the Way to State Bar Governance Structure

Wilke, Fleury, Hoffelt, Gould & Birney Marks Its 90th Birthday

On January 1, 2012, Wilke, Fleury, Hoffelt, Gould & Birney, LLP commenced its 90th year in the practice of law.

The firm was founded in 1922 by two young Sacramento lawyers, J. L. Henry and Grover Bedeau. Henry and Bedeau had a general law practice until 1948 when Grover Bedeau accepted a judgeship with the Sacramento County Superior Court. Shortly thereafter, J. Henry also received a judicial appointment, and the firm became known as Wilke & Fleury under the direction of Sherman C. Wilke and Gordon A. Fleury. In the early 1950s, the firm commenced a period of sustained growth populated by bright and dedicated lawyers, several of whom followed the lead of Henry and Bedeau and became judges.

The firm has always prided itself in being a part of the Sacramento community, and has encouraged its attorneys to participate in community affairs and bar association activities. The firm’s commitment to Sacramento and the surrounding region is evidenced by the key role it has played in the area’s spectacular growth.

As of January 1, 2012, Wilke, Fleury, Hoffelt, Gould & Birney has grown to 32 attorneys practicing in a wide variety of legal areas. The firm enjoys the highest professional rating available to law firms, and we believe that Messrs. Henry and Bedeau would be delighted with the success of the firm that they started back in 1922.

California Supreme Court Finally Clarifies Rules for Meal and Rest Periods

In a long-awaited ruling, the California Supreme Court has finally clarified the rules applicable to meal and rest periods for non-exempt employees. The Court concluded that employers are only required to provide meal and rest periods to employees, they are not, however, required to ensure that their employees actually take them. Here is a short synopsis of the Court’s conclusions.

Meal Periods Must be Provided Following Five Hours of Work
Employers are required to provide an “off-duty,” unpaid meal period to non-exempt employees following any shift in excess of five hours. An “off-duty” meal period means the employer relieves the employee of all duties during the meal period. Meal periods must last for at least 30-minutes.
Employers have flexibility concerning how the meal-period is scheduled, and do not have to provide the meal-period during the fifth hour of work. Instead, employers must simply provide their employees with a meal period no later than the end of the employee’s fifth hour of work. If the employee is working more than ten hours, then the employee is entitled to a second 30-minute meal period to be taken no later than the end of the employee’s tenth hour of work. The meal period may be scheduled any time within the employee’s shift so long as these time constraints are observed.
Even though employers are required to provide “off-duty” meal periods to their employees, they are not required to police their employees to ensure they do not work during the meal period or otherwise force their employees to take the meal period However, employers may not coerce or encourage employees to skip their meal period or take an “on-duty” meal period. If an employer does so, it is subject to a mandatory penalty equal to one additional hour of pay at the employee’s regular rate of pay.

In summary, employees can decide how to spend their meal period, but employers must allow them an uninterrupted, off-duty meal period of 30-minutes after any work period of more than five hours.

Rest Breaks Must be Provided During a Shift Longer Than 3.5 Hours.
Employers are also required to provide paid rest breaks to non-exempt employees who are scheduled to work more than 3.5 hours in a day. Employers must count rest periods as time worked, and must authorize and provide employees with a 10-minute rest in a 3.5 to 6 hour shift, 20 minutes rest in a shift longer than 6 hours but no more than 10 hours, and 30 minutes rest in a shift more than 10 hours but no more than 14 hours. Failing to account for the mandated rest periods in scheduling and assigning shifts may be considered a denial of the rest period, which could subject employers to a penalty (e.g., payment of one additional hour of pay at the employee’s regular rate of pay).

Employers must make a good faith effort to authorize and permit the 10-minute rest periods in the middle of each 4-hour period to the extent it is practical (e.g., at or near 2-hours into the shift). Within an eight-hour shift, one rest break should generally fall on either side of the meal period.

In summary, employers must authorize and provide rest periods to employees. As with meal periods, however, employers need not ensure that employees actually take the rest periods.

What This Means For You
All employers should have policies in place informing employees of their right to take mandated rest and meal periods and explaining that failure to do so can lead to discipline, up to and including termination of employment. However, with the Supreme Court’s new ruling, employers need not require employees to clock in and out for rest periods (although it is still a good idea to do so for meal periods, which are unpaid). Employers should see a decrease in the number of wage and hour class actions based on meal and rest break violations as a result of this ruling, as employees will now be required to prove that they were not allowed to take breaks, rather than simply that they worked through their breaks.

Bye-Bye Big Firm

By Dana Olsen

Move over, Big Law. Small Law is in. And the trend has proven to be more than a temporary reaction to the 2008 financial meltdown. Four years later, corporate lawyers are flocking to small firms.

Some lawyers call it disaggregation, and it reflects a change in the way the legal industry operates. Small firms are flourishing because clients’ demands have evolved over the years. Rather than relying on one firm and paying for a package of legal needs, clients are turning to different firms, and in some cases to legal support businesses, for different tasks. While the economic downturn certainly encouraged clients to search for more cost-effective legal representation, many clients had already come to think that they were throwing money away by sending all their work to big firms.

The key has been the unbundling of legal services. This allows legal departments to match specific tasks with the right service providers. Converts point to high-priced first-year associates as an example of the problem with big firms. Some clients unknowingly pay nearly the same hourly rate for these inexperienced lawyers to review documents and perform discovery as they pay for partners to, say, write briefs and hold settlement conferences. By contrast, small firms aren’t saddled with the need to train armies of associates on the client’s dime.

The unbundling of tasks has also permitted firms to tap new technology to perform time-consuming jobs. They now rely on software to help speed some of the most burdensome e-discovery jobs, like document production and review, rather than hit up clients with first-year associate rates.

Beth Anisman has watched the evolution over the past decade. She was a lawyer for Lehman Brothers Holding Inc. before the financial firm declared bankruptcy in 2008; then she became the chief operating officer for the legal department of Barclays Capital Inc. She spent years managing legal operations for the two financial powerhouses before she struck out on her own to found B&Co Consulting in New York, which advises corporate lawyers on how to manage their clients’ needs. Much of her current work consists of advising corporate lawyers on which law firms and agencies to hire for which tasks.

Anisman advocates splitting up work and using small firms whenever possible. Before clients began breaking apart legal services, many would pay one brand-name law firm a huge fee to perform all legal duties. "Clients are smarter about how they manage their legal accounts," says Anisman. "They started to say to themselves, ‘What did I just buy?’ "

Consultant Peter Zeughauser has observed the same phenomenon from his perch in California. "I think big corporations are more careful about who they hire for what work," says the legal strategist, who founded Newport Beach–based Zeughauser Group in 1995. "They won’t automatically hire big firms, which is what they used to do. They’ve become more sophisticated, which means they hire firms that are right for each individual matter.

"There’s a lot of pressure from the general counsel’s office on the lawyers in the department to keep costs down," Zeughauser continues. "For a lot of the day-to-day work that needs to be done, they’re hiring small firms more and more."

That’s the case at American International Group, Inc. Eric Kobrick, AIG’s deputy general counsel, says he began hiring small firms to work for the insurance giant in 1997, the day he walked in the door. "The old structure—an hourly rate presented with no detail—has never been acceptable," Kobrick says. "Small firms, in general, are more flexible. They’re able to use rate flexibility, and still provide excellent service."

But money isn’t everything. In fact, some small firms take umbrage at the suggestion that what they offer is slashed rates. Kathryn Ellsworth, a former Dewey Ballantine partner who left the mammoth firm to cofound a 15-lawyer shop, says her firm’s marginally cheaper pricing is one small part of the equation. "We do the same work [as big firms], and we pay our lawyers the same," says Ellsworth, who cofounded Grais & Ellsworth in 2007. "We don’t want clients to hire us because we’re cheaper; we want them to hire us because we’re better."

When Co-Management with Ophthalmologists Is Appropriate

The Medicare fiscal intermediary for California defines co-management as the “planned transfer of care during the global period from the operating surgeon to another qualified provider.” Optometrists and ophthalmologists have long engaged in the practice of co-managing cataract patients undergoing surgery. Typically, optometrists refer their patient out to an ophthalmologist for surgery, and the ophthalmologist in turn refers the patient back to the optometrist for his or her post-operative care.

This type of co-management arrangement can be hugely beneficial for the patient. Patients are able to receive the specialty surgical services they require from an ophthalmologist, while retaining access to their regular optometrist – who may be more geographically convenient to the patient and who often have provided years of consistent optometric care to the patient – for post-operative care. When these circumstances are present, and when the patient provides valid and informed consent, co-management can be a vital tool for providing optimal care to cataract surgery patients.

Because of some ostensibly conflicting language in federal laws and regulations, however, confusion has sometimes arisen about the precise circumstances under which co-management is permissible. The federal anti-kickback statute provides civil and criminal penalties for giving or receiving “remuneration” in exchange for referrals. Because the law is so broad, the federal government outlined many “safe harbors” which, while potentially covered by the anti-kickback statute, would not be prosecuted. One of these safe harbors specifically exempts co-management from the anti-kickback prohibition, so long as certain conditions are met. Although the safe harbor language prohibited the sharing or splitting of a Medicare global fee, the government later clarified that “we do not mean to suggest that all specialty referral arrangements involving splitting of global fees are illegal under the anti-kickback statute.” Rather, making this determination requires a “case-by-case analysis” of factors such as whether the services are medically necessary, whether the timing of referrals is clinically appropriate, and whether the services performed are commensurate with the portion of the global fee received.

The American Optometric Association (AOA) later set forth a bulletin that echoed and expanded on the above factors. AOA’s seven factors to be considered when determining whether co-management in a given instance is appropriate are:

1. The selection of an operating surgeon for patient referral should be based on providing the best potential outcomes for that patient. Financial relationships between providers should not be a factor.
2. The patient’s right to choose the method of postoperative care should be recognized consistent with the best medical interest of the patient.
3. Co-management of post-operative care should be determined on a case-by-case analysis and not prearranged. For example, agreements to refer all patients back on a date certain should be avoided. The patient should be advised prior to surgery of potential postoperative management options.
4. The transfer of post-operative care must be clinically appropriate and depend on the particular facts and circumstances of the surgical event.
5. Following surgery, transfer of care from the operating surgeon to an optometrist should occur when clinically appropriate at a mutually agreed upon time or circumstance; and such time should be clearly documented via correspondence and be included in the patient’s medical record. For example, Section 4822 of the Medicare Carriers’ manual states that “Both the surgeon and the physician providing the postoperative care must keep a written transfer agreement in the beneficiary’s record.” This may be accomplished by including the appropriate information in the referral letter from the ophthalmic surgeon to the optometrist at the time of transfer of care.
6. The operating surgeon and the co-managing optometrist should communicate during the post-operative period to assure the best possible outcome for the patient.
7. Compensation for care should be commensurate with the services provided. Cases involving care for Medicare beneficiaries should reflect proper use of modifiers and other Medicare billing instructions.
Similarly, the American Academy of Ophthalmology (AAO) has also published an advisory opinion clarifying that co-management is perfectly appropriate under certain circumstances, specifically where the postoperative care can be provided by a qualified non-ophthalmologic physician.

Medical providers must of course tread very carefully when contemplating the co-management of patients so as not to encroach on the type of arrangements prohibited by the federal anti-kickback statute. Most importantly, all decisions should be based on the best potential outcome for the patient, not on any financial arrangement between providers. Blanket contracts to refer patients should especially be avoided, since such an arrangement would preclude the type of case-by-case analysis proscribed by the federal government. However, when the factors discussed above are present, and when the patient provides valid and informed consent, co-management has historically been a vital tool to providing optimal care for cataract surgery patients. There have been no recent changes in the law to preclude the future practice of co-management by optometrists and ophthalmologists when the appropriate circumstances are present.