By Bradford E. Adatto, JD, ByrdAdatto

Imagine going to check out after your yearly doctor's appointment and being handed a receipt with a blank line for you to write in a tip. Now, think of a tip jar with the label "tips appreciated" just sitting on the counter next to the lollipops at the pediatrician's office. Both scenarios are probably quite hard to picture for many.

Should I Tip My Doctor?

The initial reaction most people have to these scenarios asking for tips in health care settings probably includes thoughts along the lines of, "You can't tip at a doctor's office," or, "I'e never seen that." While traditional medicine probably will not be changing anytime soon from the convention of not asking for tips, elective medicine, especially in the aesthetic market, is changing the way that patients and providers alike view tipping in health care settings. The subject of tipping is relevant, as many medical spas and other elective medicine practices are combining spa-like services, where tipping is normal, with medical services, where tipping is abnormal. To further complicate the matter, most of these facilities feel more like a retail store through look and design and feel less clinical.

But even in these scenarios where tipping for health care-related services is becoming more prevalent, there are certain aspects to consider from a health care provider perspective.

Fee-splitting

Health care providers must be wary of anything that could be construed as fee-splitting. Fee-splitting occurs when a physician, to generate referrals or more services from other providers, splits part of the professional fee earned from treating the patient with another provider. It is unclear how precisely fee-splitting may apply to a situation with tips but there is also the potential for the medical board to construe this broadly and view tipping in violation of this rule.

A medical provider should consider how the medical board would view tipping. When the medical board is uncomfortable with a particular arrangement, they often deem it unethical or unprofessional conduct. Physicians and licensed health care professionals are regulated by codes of professional conduct. The general purpose of these codes, when it comes to money, is to make sure that these physicians and health care professionals are using their best professional judgment. In some circumstances, tipping may run afoul of this. Unfortunately, these rules of professional conduct tend to be vague. For example, the Code of Medical Ethics Opinion 1.2.8. states that "physicians to whom a patient offers a gift should... not allow the gift or offer of a gift to influence the patient's medical care." Could a large tip be construed as a gift that has the potential to influence the patient's medical care? Possibly.

The bottom line here is to not let the gift, which a tip could be interpreted as, undermine the physician's obligation to provide services fairly to all patients, which could change or damage the patient-physician relationship. Other business-centered considerations should also affect a health care provider's decision regarding tips, such as deciding whether a patient would feel comfortable tipping in their unique setting. While most people have started to feel comfortable tipping on services such as facials, laser hair removal, and the like, most patients will still not want to tip on procedures such as microblading, ketamine therapy, and IV hydration. From an etiquette perspective, health care providers should be cautious of making it an expectation. Of equal importance in considering whether to allow tipping are policies and procedures already in place if the facility is part of a larger health care system.

Tipping for Additional Free Services

Once the benefits and risks of tipping in a health care setting have been weighed and the decision is made to incorporate tipping, the next step is to implement practice policies and procedures to apply to every employee. These should explicitly outline that employees cannot throw in enticements such as a free wax, an upgraded service or an extra vial of Botox—conduct that can lead to larger tips. Soliciting tips in this manner may again run afoul of the codes of professional conduct.

Unprofessional Conduct Laws by State

Finally, if the practice spans over multiple states, keep in mind that medical boards' interpretations of "unprofessional conduct" may vary from state to state—what might be considered professional in one state might not be in another.

The bottom line is to be cautious. No one wants to be the guinea pig when it comes to the medical board. The law on this is undoubtedly unclear—until the medical boards develop explicit rules, practices should use caution when adding the ability for patients to tip for medical services.

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Bradford E. Adatto is a partner at ByrdAdatto, a national business and health care boutique law firm with offices in Dallas and Chicago. His background is in regulatory, transactional and securities law. Having worked in health care law his entire career, he has an in-depth knowledge of the "dos and don'ts" of this heavily regulated industry. Brad has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions and contract terms, including Medicare fraud and abuse, antitrust, anti-kickback, anti-referral, and private securities laws.