David Kinnane

Attention: overworked and time-poor speech pathologists in private practice!

21 May 2017 By David Kinnane Leave a Comment

Do legal and compliance issues stress you out? Do you struggle to understand all your legal, compliance and ethical obligations, and to keep on top of changes?

Join us on Twitter all this week as David Kinnane curates a #WeSpeechies discussion about legal and compliance issues for speech pathologists in private practice:

Legal and compliance challenges for SLPs/SLTs in private/independent practice (and how to manage them!)

Follow @WeSpeechies on Twitter this week for a step-by-step guide to build a legal and compliance system from scratch for your private practice. Participate (or lurk!) during the @WeSpeechies chat at 8.00pm, AEST, Tuesday 23 May.

What we’ll discuss

SLPs/SLTs in private/independent practice are exposed to, and challenged by, a host of legal and compliance risks. These challenges are increasing with changing demographics, new models of service delivery, an increased emphasis on evidence-based practice, and advances in technology.

In some places, a shift to market systems, private delivery of services, and an increasing reliance on casual employment and contracting arrangements also increase risks to private SLPs/SLTs.

So, how do we make sense of it all?

Different countries regulate SLP/SLT services differently, but the elements of a good compliance system are universal. This week we will explore some ideas to build and implement quality compliance programs in private SLP/SLT services.

What we’ll build together

We want our discussion to be as practical as possible and welcome your questions and input. As our discussion proceeds, we’ll build a compliance system for speech pathologists in private practice. Right from scratch, right here!

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Australian speech pathologists and new graduates: ethical alternatives to dodgy independent contracting arrangements

25 April 2017 By David Kinnane Leave a Comment

For private speech pathologists hiring new graduates, independent contracting arrangements are arguably unethical and undeniably risky. But, sometimes, hiring new graduates as full-time employees isn’t feasible. Maybe workflows are too uneven or insufficient to warrant a full-time hire. And, often, new graduates want flexible arrangements, e.g. to work for a couple of different speech pathologists to get experience in different areas and/or for family reasons.

So what’s the alternative to putting new graduates on dodgy independent contracting arrangements? We count two:

1. If hours of work are reasonably predictable, hire new graduates as permanent part-time employees

Part-time employment is defined in clause 10.1 of the Health Professionals and Support Services Award 2020 (Award). Part-time employees are employees who:

work less than 38 hours per week on average; and
have reasonably predictable hours of work.

Before a new part-time employee starts work, the employer and employee need to agree in writing on a regular pattern of work, including:

the number of hours to be worked each week; and
the days of the week the employee will work; and
the starting and finishing times each day.

Employees and employers can be flexible when agreeing these arrangements. For example, it’s possible for the employee and employee to agree:

different working days and different start and finishing times on alternate weeks, e.g. working Monday and Thursday every first week for the whole day each day, and Tuesday, Wednesday, Thursday for half days every second week; and
to change the details as time passes and circumstances change. Again, any agreement to change the hours, days and/or starting/finishing times must be in writing signed by both parties.

Wages cannot be less than the Award rates on a pro-rata basis. So, for example, if a part-time employee works 19 hours a week, they must be paid at least half the amount of a full-time employee at Award rates (ordinary hours for full-time employees are 38 hours).

2. If hours of work are not predictable, hire new graduates as casual employees

Clause 11 of the Award deals with casual employment. Casual employees are engaged on an hourly basis, and can work up to and including 38 hours per week. Hourly wages are calculated as at least:

the minimum hourly rate applicable to the employee’s classification and pay point in which they are employed; plus
“loading” to compensate for the fact that casual employees are not entitled to many of the paid leave entitlements of full-time employees, calculated as:

- (Monday to Friday) a loading of 25% of the minimum hourly rate; or
- (Saturday and Sunday) a loading of 75% of the minimum hourly rate (see clause 25.1(b) of the Award).

For casual speech pathologist employees:

each shift (or “engagement”) is treated as a separate contract of employment; and
the minimum length of a shift is three hours.

As workflows even out, the relationship develops and/or as the graduate builds a case load, employees and employers may find it mutually beneficial to “upgrade” the employee to permanent part-time (or full-time) employee status.

Note that a casual employee may request that their employment be converted to full-time or part-time employment after 12 months in accordance with clause 11.7 of the Award.

Quality, up-to-date legal documentation is key

To ensure you are engaging in ethical employment practices, it’s important that your employment contracts are up-to-date, reflective of the Award, and tailored for the role of a speech pathologist (e.g. aligned with CBOS and Speech Pathology Australia’s Code of Ethics). As with independent contracting arrangements, we’ve come across a lot of poor employment contracts that do not do this.

If you are looking for a solid, up-to-date employment agreement template, check out our:

templates.

Current as at 27 December 2020.

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Australian speech pathologists: is it ethical to hire juniors as independent contractors?

18 March 2017 By David Kinnane Leave a Comment

For speech pathologists in private practice, hiring independent contractors seems cheaper and more flexible than hiring employees, e.g. if your practice has unpredictable workflows or seasonal “slow” and “busy” periods.

But there are a raft of ethical, client and commercial reasons why it may make more sense to grow your practice with employees. There are also compelling legal reasons not to go down the independent contracting route – at least without first understanding all the risks.

A. Not a new issue

I’ve addressed independent contracting arrangements in speech pathology private practice before. It’s one of those issues I come across regularly – especially with new graduates calling me for guidance about their “first job” contracting arrangements (often after signing on the dotted line).

As a profession, I think independent contracting and ethical employment practices are important topics to address openly.

B. Update

Recently, we enjoyed an excellent talk by lawyer Anna Elliott about the differences between contractors and employees*. Interestingly, the talk focused on the downsides of getting the employee-independent contractor decision wrong.

Here are some of our key takeaways from Anna’s talk, which we consider highly relevant to Australian speech pathology private practices:

1. Whatever you call your hire (independent contractor or employee), you can’t guarantee a Court or regulator will agree.

Even with good lawyers and great contracts, there is nothing you can do to guarantee your contractor is really (legally) a contractor.
The label you use to describe the worker in the contract is relevant, but doesn’t determine the answer on its own.
If there is a dispute (e.g. with a worker), a Court will look at all of the facts and circumstances to figure out if someone you are calling an independent contractor is really a contractor or an employee.
There’s a long list of factors Courts look at when deciding whether a hire is a contractor or employee (we’ve talked about some of them before). They include whether the hire:
- has control over her/his work (freedom to decide how, when and where the services are performed);
- can delegate or subcontract their work to others (i.e. can the hire delegate their work to another person);
- is free to engage in other business activities and provide other services to others;
- is really an entrepreneur who owns and operates their own business; and
- is really working for and representing their business (and not yours).

As speech pathologists, let us pause for a second and think about the realities of some common contracting arrangements in our profession:

I’ve seen some arrangements – e.g. involving the short term hire of senior/experienced speech pathologists in practice for themselves to cover for principals or staff on leave – where these factors are present.

I’ve seen (many more) arrangements – particularly involving new graduates and junior members of the profession – that do not satisfy any of these factors, exposing the hirer to the real legal risk that the worker is legally an employee (see below).

I’ve also seen several terribly drafted “independent contractor” contracts in the market where employee and independent contracting concepts are hopelessly muddled. Again, the risks of these arrangements lie mostly with the hirer (see below).

Different Courts attach different weight to factors/indicators in different cases.
Different regulators (e.g. the Australian Taxation Office (ATO)) have their own tests for when they think someone is a contractor.
Different laws define contractors and employees differently for different purposes.

Example: hirers are liable to pay superannuation entitlements for employees and for contracts wholly or principally for the labour of an individual (i.e. where more than 1/2 the contract value is for the worker’s labour, whether physical, mental or artistic). This means that, in some cases, you may be liable for a speech pathologist’s superannuation payments, even if the person is an independent contractor.

See, the ATO’s information about contractors and superannuation.

Key and recent employee/contractor cases:

Hollis v Vabu Pty Limited 207 CLR 21 (High Court of Australia)
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [2011] FCA 366 (Federal Court of Australia)
Tattsbet Limited v Morrow [2015] FCAFC 62 (Full Federal Court of Australia)
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd ([2015] FCAFC 37 Full Federal Court of Australia and [2015] HCA 45 High Court of Australia).

2. In any event, is it ethical or commercially sensible to allow unsupervised junior independent contractors to work with your clients?

One of the (many) factors Courts look at to decide if a person is an employee or contractor is whether a worker is or has been supervised by the hirer. Employees are generally supervised by their employers because employers are usually liable for employees’ work. However, true independent contractors are expected to receive no or little supervision.

Clause 3.3.4 of Speech Pathology Australia’s (SPA) Code of Ethics deals with supervision. Among other things, it says SPA members:

provide appropriate supervision;
accept responsibility for clinical and support staff, students and volunteers who are assigned to us;
take reasonable steps to ensure that those clinical staff and students under our supervision:
- understand and apply the Ethics Code; and
- operate within their level of competence; and
demonstrate and discuss ethical practice with those we supervise to facilitate their ethical reasoning skills.

Not supervising an inexperienced speech pathologist who is working with your clients is a recipe for disaster. Deciding not to supervise a hire (e.g. to help ensure the hire is seen as an independent contractor) may conflict with:

your ethical duties to clients and to SPA;
your consumer rights-based duties to clients to ensure you are providing a fit and proper service;
your insurance obligations to your professional indemnity insurer; and
your commercial objective to protect your reputation and the reputation of your practice.

This is especially the case with junior members of the profession – and, in particular, with new graduate speech pathologists.

3. If you get it wrong, it can be expensive for your practice (and for you personally).

If you think you’ve hired a contractor and, down the track, the worker or a regulator claims the worker is or was really your employee, you may be liable for:

unpaid employment entitlements (e.g. annual leave, reasonable notice, and civil penalties for breaches of the National Employment Standards);
Pay As You Go (PAYG) tax penalties up to 100% of the tax that should have been withheld;
civil penalties for sham contracting arrangements (It’s an offence to represent that an employment contract is an independent contracting arrangement (also known as a contract for services). This is known as “sham contracting”.);
damages for breach of contract;
unfair dismissal claim (reinstatement or up to 6 months salary); and/or
uncapped damages/civil penalties for “adverse action penalties”.

For example, in a 2015 case, the employer company was hit with a penalty of almost $200,000 and the director was fined over $35,000 personally for sham contracting, failure to pay superannuation, holiday, weekend and casual loadings and failure to keep records. (It could have been twice as much if the employer hadn’t admitted contraventions, or if it had involved more than one employee.)

Some of these risks – e.g. sham contracting and unpaid entitlements – remain risks for 6 years from when they first arise. Others may remain for even longer than this.

These risks can also affect your ability to sell your practice, e.g. you might have to give the buyer an indemnity for these risks, and you can’t contract out of statutory obligations.

4. Even “true” independent contractors may be able to claim against you if they think their contract is “harsh or unfair”.

The Independent Contractors Act 2006 (Cth) gives the Federal Court of Australia (on the application of an aggrieved worker) the ability to review contracts that are harsh or unfair, e.g. because:

the bargaining power of the hirer was much stronger than the contractor, and the hirer used their better bargaining position to put undue pressure on the contractor; or
you are paying the independent contractor less than they would have received as an employee.

This exposes hirers of independent contractors to additional risks, especially if hiring inexperienced new grads with little bargaining power and not paying them enough.

Read the recent cases:

Keldote Pty Ltd & Ors v Riteway Transport Pty Ltd [2008] FMCA 1167
Informax International Pty Limited v Clarius Group Limited (No.2) [2011] FCA 934

5. Hiring staff through labour hire companies is also risky.

In some industries, hirers have attempted to reduce some of the above legal risks by hiring staff through labour hire companies. These are arrangements where the hirer engages the labour hire company to supply staff.

While these arrangements may reduce some risks (e.g. superannuation liabilities), they don’t eliminate others. For example, in the recent Quest case, the High Court of Australia found that using a labour hire company did not eliminate a hirer’s risk of being found to have engaged in sham contracting arrangements.

Politically, labour hire companies have come under significant parliamentary scrutiny recently, including in Queensland, Victoria and South Australia.

With the ongoing “Uberfication” of service jobs (including speech pathology), we expect that labour hire companies and the businesses that use them will remain under the spotlight for the foreseeable future.

Bottom line

Speech pathologists who hire independent contractors to work with their clients need to know about the risks. Some legal risks can be reduced by using good quality contracts. But the conduct of the parties – the “real world reality” of the situation – must be consistent with the intended/stated relationship. Regulators and Courts look at all the facts and circumstances to assess whether a hire is really a contractor or an employee. Getting it wrong can be very expensive.

Hiring contractors to provide speech pathology services to staff also gives rise to ethical and commercial risks. These include how to delegate to and supervise staff adequately (especially junior staff), how to monitor the quality of your services, and to protect your reputation.

There are no easy answers here; and I’m not suggesting that the use of independent contracting arrangements in our industry should cease. But speech pathologists who want to hire contracting staff to grow their business should first educate themselves on the legal risks (and take legal advice if unsure), think through the ethical issues, and consider the commercial pros and cons (including to team morale and reputation).

What do I do in my practice to manage these risks? At the moment, I hire staff as employees.

Principal source: * Elliott, A. (2016). “Contractor v Employee: Getting the Relationship Right and the Consequences of Getting it Wrong”. College of Law online course, watched on 17 March 2017.

Important disclaimer: The information in this article is for general information purposes only and is not legal advice. It is current as at its date of publication. It cannot be relied on by any person for any purpose. If this issue raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation. The application of laws and statutes may vary depending on the circumstances. We do not assume any liability for any damage that may be caused to anyone as a result of any act or omission on the basis of the information contained in this article.

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Speech Pathologists: 7 ways to start and ‘ReWork’ your private practice plans

2 March 2017 By David Kinnane Leave a Comment

I love running my speech pathology practice. But it has its challenges, and I’ve made lots of mistakes over the years!

I recently re-read a great business book* that reminded me of some key things I got right (and wrong) in my first couple of years in practice. Here are seven things I now know to be true about starting up:

1. Starting a private practice has never been easier. But do it the right way

Make a stand for something you care about. Do something that matters. Be proud of what you do.
Don’t take on debt if you can help it. More importantly, don’t give away ownership.
Focus on the core of your practice: something you think will provide a stable base for your business. Build basic systems around your core business.
Don’t reinvent the wheel: use tried and tested templates and speak to colleagues about resources they’ve already tested in practice. Learn from others’ mistakes.
Start small: use whatever facilities and equipment you can get your hands on or you can easily use. You don’t need designer furniture to deliver evidence-based care.
Many speech pathologists start up by working one or two days a week “on the side”. That’s a great way to start up, provided you have your key insurance and systems in place.
Once you have your systems in place to run your core business, get going and launch. Don’t wait for everything to be ready and perfect, or you will never get started.

2. Be confident enough to brand your practice differently from other practices and be generous with your time and knowledge

I’ve seen enough pastel-coloured, comic-sans-laced, craft-inspired speech pathology websites featuring hordes of grinning babies. Not all clients want that; and I love to see practices doing it differently.
Sometimes knowing what you don’t want to do with your practice helps you to decide what you do want. For example, many independent coffee shops market themselves as the “anti-Starbucks”.
Do not let other practices dictate your strategy. Focus on what you are doing, not on what everyone else is doing.
This is a big one in my practice: once you’ve launched, share everything you know with clients and the public. Support clients, parents, teachers and students with How-To guides, videos, e-courses, tips and resources. Teaching others makes you a better clinician and improves your reputation.

3. Enjoy being small, but don’t forget you are in business

Being small gives you the freedom to experiment (and to mess up in front of a small audience). It keeps you close to your clients, and more exposed to direct feedback to improve the quality of your services. It also allows you to act quickly to fix small problems before they become big ones.
But your practice is not just a hobby: from day one, you need to know your break-even point (the point at which you start to become profitable), have adequate insurance in place, know about your key obligations, especially around client consents and confidentiality, health records, advertising, family law issues, privacy, infection control, professional conduct, debt collection, and (as you grow), hiring and managing staff.

4. Keep your range of services simple to start with

If you watch enough reality renovation or cooking shows, you will know that, often, the key to improving quality is to cut out the deadwood, reduce the options, and to simplify things to a few things that you do really well. It’s the same in speech pathology. Less is more.
Offering too many services to too many client groups, in too many formats, and in too many places, inevitably reduces the quality of your work. While it’s tempting to take all the work you can get when you first open your doors, it’s better to embrace a narrower scope of practice and to be (or become) great at delivering services within it.
Don’t add services just because your competitors are doing it or because an existing client asks for it – especially if you are not competent to offer it. Add value by deciding what you don’t do and referring on. Make sure you are proud of the services you can and do provide.
Learn to say “no” to projects, meetings, and professional development opportunities that are not aligned with your business goals.

5. Don’t pretend you are a big practice when you are not

Clients want to be helped by a real person – not a faceless corporation.
Your communications – blog posts and website content and other marketing materials – should reflect your size and capabilities. Don’t communicate with your clients as if you were Google or Telstra.
Be proud of being small. It means you are independent and nimble. You are a person – not a bureaucracy.
Communicate professionally in Plain English, using your authentic voice.
Build an audience by sharing good quality, evidence-based information that people will value, share and come back for.
Remember your best marketing is doing a good job: every email, phone call, assessment, therapy session, letter to a referrer, blog and social media post can deepen your bond with clients.
Don’t be afraid to give clients a “behind the scenes” view of your practice to show them how prepared you are for their sessions.
Be frank about things that don’t go to plan. Be truthful about your bad days and mistakes, and apologise for them.

6. Don’t over-plan

This one’s a challenge for me!
For a small practice, a key advantage is the ability to make quick decisions and to change directions without too many stakeholders having their say.
Stay flexible. When necessary, improvise to maintain your service quality in a changing world.
Once you’ve set some basic long-term goals, switch your focus to the present and short-term – and the small revisable decisions you can make that improve things for the time-being.
Don’t spend too much time worrying about all the things that could go wrong. There are always risks in business. But, in many cases, you can deal with problems when they happen. Most of the bad things that could happen won’t.

7. Don’t overwork yourself: control the pace

Another tip I was very bad at implementing in the first years.
Being productive is not the same as being busy or working long hours.
Often, the opposite is true.
Get rid of needless interruptions or distractions – especially pointless meetings and Internet surfing. If you struggle with this, use a system to stay focused, like the Pomodoro Technique.
Don’t try to be perfect. Crossing every “t” and dotting every “i” may make you feel better, but it will eat your time – time that could be better spent on clients.

Bottom line

In business, as in life, fortune favours the bold. From an information and resource point of view, starting a practice has never been easier. But starting an ethical, professional practice you are proud of takes planning and a strong sense of purpose. Be professional, but inject your personality into your services to make them different and authentic. Don’t lose sight of the big picture (your purpose), but don’t get bogged down in what might happen either. Focus on the present to build adaptable businesses, with good systems, bit-by-bit. Don’t try to be perfect or you’ll burn out.

Further free resource: From Launch to Waitlist in 12 months.

* Principal source: Fried., J. & Heinemeier Hansson D. (2010). ReWork: Change the way you work forever.

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The No Prep Grammar Builder: Uncontractible Copulas (“Who’s happy?” “She is!”)

25 February 2017 By David Kinnane Leave a Comment

“Who’s happy?” “She is!”

Typically-developing children acquire the so-called uncontractible copula “he is/she is/they are” at around 36-42 months. But many children with developmental language disorders and children learning English as a second language do not.

Instead, they make errors, e.g.:

Question: “Who’s smiling?”…
Answer: “She” or “Her”. (Incorrect.)

These errors make children sound less intelligent than they are and result in negative feedback from peers and others.

This No Prep therapy pack is designed to help children acquire this important grammatical target with a built-in reinforcing diamond hunting game. You can simply print and work through this resource as is. Or, for added fun, cut out the diamonds on the last page, and stick them in a bag. The client earns diamonds for achieving the target, which they can put on the game board (also included).

We use this resource in our clinic, particularly with young school-aged children. We hope you find it just as useful.

Uncontractible copulas resource