The growing international marketplace for healthcare services includes an element of facilitation to bring patients, experienced professionals, and state of the art medical facilities together. Medical tourism facilitators frequently play a key and necessary role in addressing the many details and arrangements that are critical for a successful medical tourism experience. Clear written agreements addressing the terms of services and relationships are beneficial to all parties involved. A few of the many subjects that could be addressed in written agreements for medical tourism facilitation services are discussed below.
The broad scope of medical tourism facilitation services
The term “medical tourism facilitator” refers to companies and individuals that provide a varying range and combination of services that facilitate medical tourism arrangements between a “medical tourist”-a patient willing to undertake travel for medical treatment or procedures, and the providers of such medical services.
Medical tourism facilitation services may include internet marketing, research, placement, contract negotiation, health plan benefit and payment coordination, facilitation of medical records transfers, provider/patient liaison, travel arrangement services-including hotel accommodations, ground transfers or air ambulance services, recovery facility placement, in-country transportation and translator services, after care placement and monitoring, and medical case management services.
There does not appear to be any “one size fits all” package of medical tourism facilitation services. In addition to services mentioned above there are surely examples of other services facilitators provide directly, or make arrangements for as a concierge.
The nature of such facilitation services can vary widely, and it is advisable for medical tourism facilitators and those that are frequently working with such facilitators to develop written agreements which clearly address the duties and expectations of the parties concerning the services being provided under any arrangement, including the limitations of the responsibilities of the parties, and how any disputes will be resolved should they arise.
Which parties should have written agreements?
Medical tourism facilitators may have relationships with multiple types of parties in the course of providing such a broad range of services. Best practices for businesses (and for consumers of medical services as well) generally suggest that terms and conditions of relationships be documented in a written agreement, which should serve to clearly define the rights, duties and expectations of the parties, and serve as a guiding document if problems do arise.
Medical tourism facilitators should develop and have their own written contracts available to present to destination facilities, insurers/plan sponsors, and to patients. The nature of each such relationship will dictate the issues and concerns that should be addressed.
For example, when serving a potential medical patient considering travel for a medical procedure, services may include handling of sensitive personal health and financial information.
Whereas the governing laws of a jurisdiction may recognize that such patient is acting in their personal capacity, as a consumer of services, additional burdens of disclosure may be placed upon facilitators because they are in the business of providing services to a consumer that does not regularly deal in the trade.
Whereas patient-facilitator relationships are frequently focused upon planning a one-time experience for the patient, relationships between certain facilitators and destination facilities and providers of medical care may involve repeat service encounters.
In some cases, a facilitator will be under contract to provide services for the benefit of such destination provider entities relevant to an existing course of dealing, or at least with the expectation of repeated referrals and placement of patients for services through the facilitator.
In other cases, where the parties may not have an established relationship, a facilitator should nevertheless establish some written terms for their service relationship with a facility before placing a potential referral.
Facilitators will want to agree upon material terms of a new relationship, to define the placement-related services and expectations of the parties, and to be assured that facilitator service fees for such efforts are paid.
Notwithstanding that experienced facilitators should have their own contracts; medical tourism destination facilities should also establish their own contract terms and forms for use with medical tourism facilitators and patients, which they will likely find preferable to using rather than reviewing multiple medical tourism facilitator agreements and terms piecemeal.
Standard contract terms should address not only the specific services expected to be provided by the facilitator, but also those services the destination provider’s staff or the patient will be responsible for.
The respective division of duties might address the transfer and securing of relevant patient medical records, the facilitator’s role in patient intake, securing of payment and informed consent of patients, coordination and communication regarding transfer details, and responsibility for making travel, accommodation, and any after care arrangements.
Other subjects of interest may include conditions precedent to the payment of the facilitator’s fees, and defining the scope and limitation of authority of the facilitator to make representations or enter into binding agreements on behalf of the destination facility.
Common subject matter for medical tourism facilitator contracts
While the breadth of terms and disclosures that might be included in medical tourism facilitator agreements is much broader than can be fully addressed in this article, the subjects below are among some common provisions that should be considered for inclusion in all medical tourism facilitation service contracts:
Payment of facilitator service fees
It is recommended that any patient being served by a medical tourism facilitator be asked to agree to certain basic written terms and to acknowledge disclosures, including those which define the nature of the relationship between the facilitator and the patient, the nature of the relationship between the facilitator and a destination facility, and to agree and acknowledge awareness of who pays the facilitator’s fees, particularly if it is any party other than the patient.
Whereas international patient centers often pay fees to facilitators when patients are placed for procedures, the patient needs evidence to their awareness of such, as it could be deemed a material omission by the facilitator if the patient is not aware that a financial relationship and incentive exists for a facilitator to place the patient with a specific provider.
Split-fee arrangements may exist under certain circumstances where the patient and provider destination facility each respectively pay some fees for certain services-such as the destination facility -for services related to referral and patient intake, and the patient- for other ancillary service arrangements.
Full disclosure to patients of economic incentives to facilitators and “transparency” of facilitator fee arrangements has been identified by the Medical Tourism Association™ as a best practice in its program standards for certification of medical tourism facilitators.
Medical tourism facilitators and destination facility providers may also wish to consult with knowledgeable legal counsel in those jurisdictions (such as in the U.S. and many of its states) where laws exist to prohibit activities which are deemed illegal “patient brokering”, for which violations can result in significant civil and criminal penalties.
Such laws prohibit or significantly restrict the payment or offer to pay, and the solicitation or receipt of payment of fees in exchange for the referral of patients for the provision of medical items and services. Written agreements that are in substance no more than agreements to pay finder’s fees for referral of patients may be deemed to violate such laws.
Disclosure and allocation of risks
Facilitators should have drafted language available in each case which delineates responsibility for various risks, and which establishes waiver, limitation of liability, or indemnification of the facilitator should claims arise or problems occur beyond those areas that a facilitator might not reasonably be expected to be able to control.
Facilitators should make written disclosure to patients that the development of blood clots manifesting as deep vein thrombosis (DVT) or pulmonary emboli (PE) are foreseeable and potentially life-threatening risks of medical tourism procedures where air travel is involved.
Facilitators should seek written patient acknowledgment and waiver of any liability for claims that might arise relevant to such travel, and should encourage patients to consult with their local physician before undertaking such travel.
Agreements with patients and with destination medical providers should clearly express allocation of the various treatment-related risks to the providers, and at a minimum agreements should release and indemnify the medical tourism facilitator from such claims if medical complications arise, so that the facilitator does not leave themselves open to suit or liability claims for lack of a specific agreement.
Provider documentation of patients’ informed consent, which should include the provider’s disclosure of material risks and benefits which may foreseeably result from the particular medical procedures being performed, is also important to protect the facilitator from any liability claims.
While all parties want the medical tourism experience to be a smooth and positive one, events often arise or do not proceed as planned-and may suggest that some room for flexibility and modification of plans be built into arrangements by facilitators.
Management of the expectations of the parties involved and the experience and ability to anticipate matters which can arise and require alteration of plans may be valuable service skills for medical tourism facilitators.
However, medical tourism facilitators should not be expected to act as insurers of the success of the entire medical tourism experience against all harm or any disruption. Accordingly, allocation of risks and limitation of liability arising from non-medical events are also important for medical tourism facilitators to address in their written agreements with patients and with providers of ancillary services.
Waiver, limitation of liability, and indemnification
A number of subjects may be appropriate for waiver, limitation of liability, or indemnification provisions, depending upon the parties to the agreement. For example, as stated above, indemnification language may be appropriate in the facilitator-provider agreement, establishing a provider’s agreement to indemnify and hold harmless a facilitator against patient claims should medical complications or quality of care errors by providers or facilities occur.
The facilitator -patient agreement would address such risk allocation through waiver by the patient and an agreement to indemnify and hold harmless the facilitator from any claims arising from medical care provided.
Notwithstanding that a facilitator’s business reputation may rise and fall with their skills in anticipating and managing problems when they happen, facilitators may nevertheless desire to establish written patient waivers of any economic damages claimed to arise or result from events not proceeding as planned or anticipated.
Limitation of liability language in patient agreements, and in agreements with third parties as appropriate, limiting liability of facilitators to the refund of fees paid for facilitator services are perhaps the best way to manage the potential financial exposure of the facilitator to the unforeseen.
Some events that are well beyond the control of the facilitator might be excluded altogether from any claims, consistent with provisions commonly found in other agreements in commerce.
Examples may include problems with transportation or hotel accommodations, such as facility utility disruption, transportation strikes, or so-called “Acts of God”, such as bad weather events, floods, or the like, to the extent such problems disrupt travel or accommodation services.
Facilitator’s agreements with ancillary service providers might in turn request indemnification of the facilitator by such ancillary service providers for patient claims arising from the ancillary services. Facilitators may also be able to contractually require that certain ancillary service providers carry liability insurance.
Dispute resolution provisions in any of the facilitator agreements should clearly specify the parties’ agreement regarding the choice of the law which will govern their agreement and any disputes arising out of such agreement, as well as the venue for dispute resolution, and the mechanism for resolving any disputes.
An example of such provisions might be an agreement by the parties that any dispute arising from the agreement of the parties would be submitted to an agreed upon arbitration body, for an arbitration proceeding to be held in a specified place and in accordance with the rules of the agreed upon arbitration body, applying the agreed upon law which governs the agreement.
In summary, medical tourism facilitators and each of the parties they serve or engage to provide services in a medical tourism experience can certainly benefit by having clear written agreements defining the rights, duties, and responsibilities of the parties involved.
Written agreements are beneficial to the parties for those services which are the specific duties and province of the medical tourism facilitator and for those items or services which are more within the province and control of the other parties involved.
Toward that end, good written agreements should clearly establish agreement and acknowledgement of the terms and disclosures material to the relationship of the parties, such as those which describe and govern services, duties, and expectations; terms of payment; the allocation of risks, extent of responsibility, and the limitation of potential liability for damages; and a mechanism for resolution of disputes which specifies the parties’ agreement concerning the laws and procedures which will govern.
About the Author
Tracy J. Mabry, Esq., is a practicing health law attorney with his law practice based in the Orlando, Florida office of the international law firm of Greenberg Traurig P.A., which is a member of the Medical Tourism Association.
Mr. Mabry is in his 27th year of law practice, is licensed to practice in the states of Texas and Florida, and is recognized by the Florida Bar Board of Legal Specialization as a Board Certified Specialist in Health Law. The views stated in the article above are the author’s own personal views, and are not necessarily the views of the law firm of Greenberg Traurig, P.A.