Yes but some of the most important rules that the IRS uses to determine whether or not either side falls under an employer, employee status or a purchaser of services, customer and private contractor are more and more moving towards the employment side.
1) Does the Employer Have a "Vested" interest in the outcomes of the services provided. Well like heck ya in our case, right?
2) Does the Contractor in question have control over things such as "Hours Worked", (24/7 coverage & call in all primary contracts says NO),
3)Final authorative choice of actions taken, fully "Independent" which I would say certainly NO Again. In today's ever increasing amount of "Mommy May I" or you must ask before you might get the test, drugs, or even allowed to move forward with referral or procedures again NO.
Compare this:
A) You doctor walk into exam room, Dx and patient and decide on "Possible" course of treatment. We all know and totally accept both us and insurance carriers, that there is a decent probability according to situation, kind of test or med, treatment or procedure that Yeah, you're gonna need to first file the May I Please, paperwork, barriers to care and payment for such care... Clearly you are NOT the final arbiter (besides REAL should be customer the patient) of your own professional judgments. Instead you have an overseeing supervisor relationship with this paying contracting 3rd party the insurance carriers.
B) I skate out on the ice for a weekend of youth hockey to do your average Pee Wee Bantam level youth game. I and my partner of equal authority on that ice, divided up by basic learned positioning of who should be where when, to cover the ice best, and in consult when necessary are the one and only Final Arbiters of what is or is not any given penalty, off-sides, icing or what have you. MY CALL IS FINAL. As a matter of fact once the puck has dropped in 99% of any instances that's it whatever was reported to the official scorer by me and recorded on the score sheet is FINAL. The penalty or goal can not be undone, or one suddenly awarded or given either. FINAL. If I choose to make a good NON-Call too, that was incidental contact and not some sort of a foul as players converge that too is MY CALL, My "Professional Opinion & Judgement".
And So, as I have said here so many times before I believe we have reached this highly insane Monty Python like stage here in the US where the average youth hockey or soccer, football, baseball & basketball official truly has more Professional Freedom to properly classify them as Independent Contractors than the average doctor, especially primary care docs who have the entire world coming down on them lately.
The one real sticking point to all of this (because the state of 3rd party reimbursement was not what it is today back when the Supreme Court last visited this issue, I bet it could be overturned today if brought back to them) is the federal rule of the Mcclarren Fergerson Act (not sure of spelling pardon please) of 1948. This law grants the insurance carriers an anti-trust waiver so that they can share information supposedly so that they can better set the community rates.
And IMHO, this might actual work in doctors favors if the case return to the high court. Now we have what we all recognize as an out of balance situation which is inherently unequal. One side can collude and share all they want back and forth and do so to control the market of their industry, while the smaller contractors that they are colluding against do not have that same protection or right. And as we know this has been used against us so many times before with both the FTC getting involved and more frighteningly more recently the DOJ stuck its nose in on some recent cases meaning not only Civil and Contractual problems and penalties we could be facing some serious Criminal Charges and Penalties too. Put that in your pipe and smoke it if you will.
I think it is interesting that the case referenced above occurred five years before congress created this act of law that really has been the largest piece of leverage that the insurance carriers have used and abused against us, no less many times playing both sides of the fence in different cases and locations as needed to make things come out as well as possible for their side while we continue to slide into the abyss here. I really do wonder what the court's opinion and decision would be today in light of managed care, RUC & CMS, prior auth's and this act of 1948....
I really do wonder if they would throw the entire system out that this system of Not Free Trade and totally restricted commerce would stand up to a good constitutional challenge. Would they strike down the Act and make various HMO managed care like entities illegal because it really is collusion and over control, manipulation, grabbing up anti-trust like, buy into the Cartel or have no access to your own source of income as anti-competitive and collusion like behavior, that restricts and distorts prices, access and entire local, regional and national markets???
Clearly the market and set-up is radically different than it was back during WWII when almost all docs were solos and almost all admitted to the local hospital of their town or area. Personally, I think its worth a shot...
Paul
