Medical Tourism Facilitator Contracts: Tools, Tips and Techniques - Part 1 in a Series by Maria Todd

I began facilitating medical tourism patient transfers and surgical case management in the 1970s. That's 48 years! Do you know of anyone else with that length of experience? I have worked in 120+ countries and the USA, and been called on to guide medical tourism startup, strategy and business development by many governments, government agencies, private equity investors, FDI developers, and providers themselves.

I don't certify facilitators, because that's not the business I am in and it is not necessary.

What is necessary is know how from the trenches, augmented by professional training and education. I was an operating room nurse, a health facility administrator (CEO) in the USA, and responsible for ensuring maintenance of accreditation. I am also trained professionally as a health law mediator and paralegal. So I approach medical tourism facilitation from a very different perspective of that of a medical tourism facilitator certifier who has never facilitated a patient transfer or managed a case, or one who oversteps their training and domain knowledge by offering various certifications that each cost about USD $1000 and are of dubious value to anyone. It certifies you are gullible?

This new series is about entering into the business of a medical tourism facilitator.

Chances are high that the moment you decide and announce that you "are a facilitator", hospitals and clinics abroad will view you as a fresh new target who can send them patients. You'll be interviewed and if you answer correctly in their mind, you will be offered a contract for referral of patients to their facility. At this point, are you the patient advocate? or the healthcare provider's advocate? No one can serve two masters.

As a facilitator, you EARN a position of trust with clients.

They are not your "patients". They are your "clientele". If you say patient, you could be charged with shared liability for clinical mishaps and other administrative mishaps of the destination "providers", the hotel (for negligent selection of accommodation), the ground transfers appointed (again negligent selection of both livery service and driver/operator), and so many other related risks. Your role must be explained clearly and precisely in your contract with your clients, and your contract with your suppliers. You do you. You take professional liability for your actions and you declare while you have the chance to negotiate and set the limits and boundaries of your liability as a facilitator. That doesn't mean you are without liability.

Allow me to explain:

When you are offered a contract with the provision, "Each party agrees to indemnify and hold harmless the other party for claims arising from their own negligent acts," the intent is to ensure mutual accountability for actions within each party's control. For the facilitator, examples of potential negligent acts that might warrant indemnification include:

1. Administrative Errors

• Scenario: The facilitator provides incorrect or incomplete information to the hospital or clinic, such as patient medical history, allergies, or procedural preferences, leading to adverse outcomes. If you are not medically trained and competent, how will you know if you did all that was "industry standard". Are you an experienced surgical scheduler? That's usually a nursing competency or at least a "certified" medical assistant.
• Why It’s Equitable: The hospital/clinic is relying on the facilitator to ensure accurate communication. Errors could directly harm the patient and create liability for the hospital.

2. Logistical Oversights

• Scenario: The facilitator fails to arrange necessary pre-procedure steps, such as securing patient travel documents, ensuring pre-operative consultations are completed, or coordinating transportation to the hospital. Are you or have you ever been an IATA registered travel agent? That means you have a card that allows you certain privileges as a professional travel booking agent. Experience in the surgical scheduler role would prepare you for ensuring pre operative coordination and post operative follow up. Are you trained in altitude physiology that will inform your travel and seating choices and recommendations? Or did you tell the patient to book their own. Remember, the money they pay will include money to pay you. Did you earn your pay? Or abdicate your responsibility?
• Why It’s Equitable: Such oversights could delay treatment, cause cancellations, or increase costs, placing an unfair burden on the hospital.

3. Misrepresentation or Fraudulent Claims

• Scenario: The facilitator exaggerates the hospital’s capabilities, outcomes, or accreditations to secure a patient’s consent, leading to legal claims against both parties. Have you been there and inspected processes, workflows, exclusionary policies (for case acceptance on a medical basis) and safety and quality risks. Have you inspected the surrounding community for safety and hospitality? Have you queried your ground transfer vendor on driving safety and licensure and customer service? Language fluency? Freedom from touts to and from their destinations? Did the hospital give you the brand talking points? Are they exaggerated? How will you know without going there and taking time from your business? Who will pay for the trip to go there for the site inspection and how often will you return to reinspect?
• Why It’s Equitable: Hospitals should not be liable for the facilitator’s misrepresentation, hyperbole or exaggeration. especially if they acted in good faith. This includes the facilitator using "best" or other superlative claims and words ending in "-est" in their marketing or sending patients to a hospital or clinic that uses those same words in their own descriptions. This pegs outcomes to an immeasurable standard, which if the outcome is less than superlative is whose responsibility for deeming it so to the "client"? If the facilitator uses the script sight unseen, then the facilitator is just as liable to the client as the clinic or hospital for misrepresentation. Of, the facilitator took a commission for sending the client there? Was the arrangement for the best payment to the facilitator among all choices in their provider network? Hmm, so now we have cause to claim "bribery." Did you go there and know better? Now we have intent, so there's risk for a charge of fraud, not just misrepresentation.

4. Breach of Confidentiality or Privacy

• Scenario: The facilitator mishandles patient medical records or violates data privacy laws, such as improperly sharing sensitive information with third parties. Where did you get your HIPAA and Privacy Act of 1974 and various state and federal laws and regulations training? Was it complete? Was it current? There are medical records laws in each of the US states and territories. Are you familiar with each? If not, why are you handling medical records at all? But what about international medical records laws. With a foot in both camps, the hospital should provide the training on medical records regulations and handling laws if they want you to be professionally liable for your own actions or actions that affect them or put them at risk.
• Why It’s Equitable: Hospitals have no control over how the facilitator manages patient data in their country or the facilitator's country and should not bear liability for such breaches.

5. Failure to Verify Patient Consent

• Scenario: The facilitator fails to obtain or verify adequate patient consent for procedures, leading to disputes or legal claims against the hospital. I did a whole research paper in my Master of Health Administration program for a medical ethics course on Informed Consent.
• Why It’s Equitable: Informed consent is a shared responsibility, but the facilitator plays a critical role in ensuring the patient understands the medical and other case management services being arranged. How will you ensure "client" understanding for your duties to inform? This must be in your contract with the client, or as a separate stand alone document. Which specific duties are you responsible for? Which are you disclaiming?

6. Negligent Financial Disclosures

• Scenario: The facilitator provides an incomplete or inaccurate cost estimate, leading to surprise billing disputes with the patient or financial losses for the hospital. How will you prove you notified the client of all contingencies and possible risk for extra charges? What about travel charge risks, surcharges, extensions of longer stays, consumption of amenities you were unaware of onsite.
• Why It’s Equitable: The hospital should not be penalized for the facilitator’s failure to disclose accurate financial terms. But... did the hospital disclose accurate financial terms to you as the facilitator? I ask because I have experienced these surprises, first hand.

7. Negligence in Travel Coordination

• Scenario: The facilitator arranges travel accommodations or timelines that conflict with the hospital’s procedural schedule, causing operational disruptions. What happens if the patient misses a flight, is detained in a connecting city? Becomes ill enroute and has to be taken off the flight, or a flight is cancelled, or there's a staffing strike or an airport closure? What about a weather diversion? Travel insurance does not cover people traveling for medical tourism reasons. If they learn that that was the reason for travel they will not sell the policy. If they learn after the fact, they reserve the right to deny the claim. Your best mitigation is to get them there a few days early so they are there when expected. I even do this on domestic medical travel trips driving or flying.
• Why It’s Equitable: Hospitals rely on the facilitator to ensure that patient logistics align with treatment plans.

Equity in Mutual Indemnification

The intent behind this clause is to balance responsibility between the facilitator and the hospital/clinic, ensuring:

1. Each party is accountable for their own sphere of influence.
2. Neither party is unfairly penalized for the other’s negligence.

For the hospital, the reciprocal indemnification would cover:

• Procedural errors. This is all medical and you must have some medical knowledge to identify a risk here.
• Failure to comply with agreed pricing or service terms. How will you protect yourself if they do this anyway?
• Mismanagement of patient care. How will you recognize this without medical training and experience? Do you believe the one who mismanaged will call you up and admit it? I had trouble obtaining a policy of "what happens if a patient dies while in their care, at the destination?" Most thought that was a taboo question and refused to answer. I had no choice but to skip them and not empanel them in my network.
• Breaches of local medical regulations. This is the hardest of them all to mitigate risk. How ill you know these as well as your own country's regulations if you were never educated on these?

A layperson medical tourism facilitator operating in another country may face significant challenges in understanding local medical regulations, which are often complex and vary widely by jurisdiction. However, it is critical that facilitators undertake due diligence to protect themselves, their clients, and their business. Here’s how they can approach this:

Due Diligence Steps for Facilitators to Learn about Local Medical Regulations in Another Country

Partner with Legal Experts

• Why It’s Necessary: Local medical regulations can cover licensing, patient consent, malpractice liability, billing practices, advertising, and anti-bribery laws.
• Action: Collaborate with legal counsel at the destination specializing in medical regulations.
• Access Point: Contact local bar associations to identify healthcare law experts. Seek recommendations from embassies or trade organizations.

When local health law expertise is unavailable, facilitators must adopt a proactive and resourceful approach to ensure compliance with regulations. In countries where health law is a nascent specialty, facilitators can rely on a combination of local resources, international best practices, and their own diligence, provided they are competent to do that due diligence.

Engage with Accrediting Bodies

• Why It’s Necessary: International healthcare accrediting organizations often establish compliance benchmarks aligned with local laws. That means that those benchmarks were compliant on the day of inspection; no more, no less. Is that good enough? Not for me! You choose.
• Action: Start by verify the hospital’s or clinic’s accreditation (e.g., JCI, NABH, QHA Trent) at a minimum. Ask for documentation of compliance audits. But before you waste everyone's time, you had best know what you are looking for as indicators. How will you get this basic knowledge, country by country?
• Access Point: Accrediting body websites or direct communication with hospital administrators. I've met with hospital administrators who were not interested in supplying these data. I left them behind after much investment to visit, time for review, interview, etc. What a waste!

Obtain Copies of Relevant Laws

• Why It’s Necessary: Some legal requirements may directly affect the facilitator, such as patient consent laws or anti-bribery regulations. If there is a law in the country that prohibits medical providers from "advertising" and you do it as their extension, did the advertising still happen? Is that an unlawful act with you as the authorized "agency"? How is advertising defined compared to "marketing"?
• Action: Research national health ministry websites or official government publications. Request translated versions of key legal provisions from local contacts or translation services. You'll need a legal and certified translation. This will cost you lots of money unless the hospital provides it as a part of the contract agreement.
• Access Point: Ministries of Health, legal databases (e.g., LexisNexis, Westlaw).

Verify Hospital/Clinic Licensing

• Why It’s Necessary: A facility operating without proper licensure may result in legal exposure for the facilitator if disputes arise. How will you verify that what you have been supplied is true and accurate?
• Action: Request the facility’s medical license and ensure it is up to date. Check with the local health authority for verification. Allow time for the response - if ever! You will be asked for your policies and procedures on primary source verification of licensure and physician credentials and training. If you make referrals without knowing these things, the referral is considered a negligent referral and you will bear the brunt of the liability as the network aggregator.
• Access Point: Licensing boards, government health agencies.

Review Contract Terms with Hospitals/Clinics

• Why It’s Necessary: Facilitators must ensure that contracts align with local laws regarding patient rights, financial disclosures, and healthcare marketing. How will you know what they are?
• Action: Include a clause requiring the facility to confirm compliance with local laws and indemnify the facilitator for breaches caused by the facility. What confirmation will you accept as proof? Is there a limit of liability for damages? Is it stated in your local currency equivalent? I saw this as a big deal in Mexico where they stated things with a "$" sign but it did not say USD which could be construed as "MX Pesos" a huge difference upon conversion!
• Access Point: Specialized legal counsel or contract specialists with international healthcare and medical tourism experience.

Monitor Anti-Bribery and Anti-Corruption Laws

• Why It’s Necessary: OECD guidelines and bilateral treaties often classify patient referral payments as bribes.
• Action: Avoid commission-based arrangements. Ensure payment structures to the facilitator are flat-fee based and fully documented. Alternatively (and my preference), have the medical tourism supplier give you wholesale rates that, when you add your services fee, is not more expensive than the suppliers' advertised rates.
• Access Point: OECD Anti-Bribery Convention resources, If in the USA, the U.S. Foreign Corrupt Practices Act (FCPA) guides.

Collaborate with Local Industry Associations

• Why It’s Necessary: Local healthcare and medical tourism associations can provide regulatory updates and best practices... if they exist and are equipped for this. After working in more than 120 countries on development, most are not prepared to give you these guidelines. They didn't endeavor to prepare for the question despite my recommendations of their operations and purpose and value proposition. They often believe their association purpose is to "market" the destination as a medical tourism candidate.
• Action: Join local or regional medical tourism associations. Attend conferences or webinars to stay updated. Who will sponsor your trip, accommodation or admission fees?
• Access Point: Organizations in the countries of which your network is comprised, if they can accommodate you. You better plan some library time in country while there in case you must do this research independently. How will you translate these documents if not published in English? You could copy the documents and feed to ChatGPT but the translation is only casual and if you cannot speak and read the language is not verified as accurate.

Sources of Information

Government Resources

• Ministries of Health or Equivalent: Often provide guidelines, policies, and regulations.
• Trade or Commercial Attachés: Embassies and consulates can assist in locating local resources.
• Online Portals: Government websites often host health policy information (e.g., https://health.gov) in the USA. But what outlets are available in other countries.

Legal and Regulatory Databases

• LexisNexis and Westlaw: Some comprehensive repositories for international legal documents. It is expensive for a subscription each year if you are not an attorney using this daily. And since this is a shepherded process, you have to have access to updates! It is a cost of the business of facilitation! Or, alternatively, your attorney could use theirs and you pay them to research if for you.
• WHO and OECD: Offer frameworks and guidelines for global healthcare compliance.

Accrediting Organizations

• Set standards for local benchmarking and attempts to evaluate compliance with local regulations ... on the day of inspection.
• National Accreditation Boards: Provide detailed compliance audits for local healthcare providers. But they may not be in English!

3. Practical Solutions for Facilitators

Establish a Compliance Checklist

• Develop a country-specific checklist of legal and regulatory requirements for each destination.

Contractual Protections

• Include clauses requiring the hospital/clinic to warrant their compliance with all local laws.

Ongoing Education

• Participate in global health law webinars, or work with trade organizations offering training on healthcare regulations.

Use Local Partnerships

• Collaborate with trusted local agents or consultants to handle regulatory due diligence.

In the next article in the series, I will share a Medical Tourism Facilitation Contract that can be used between Facilitator and Medical or Dental Provider that stands up in OCED and FCN Treaty countries, and in the USA. Don't miss the next article. Follow me or connect today to be notified.

Do you lack guidance from an seasoned expert in medical tourism business? Many providers face the challenge of inadequate or unlawful contracts that have been signed out of ignorance that were drafted by copy paste of something they found online, borrowed from another untrained and inexperienced facilitator, or supplied by an untrained or ignorant or predatory provider.

I can step in as your advisor. I offer a flat-fee analysis of your contract, and hourly consultation or negotiation support tailored to your needs.

For medical tourism suppliers, I also provide training options to empower your executives and staff through on-site, multi-day, private workshops addressing specific burning issues in contracting with facilitators or insurance plans. I will also develop and present workshops for cluster associations sponsored or hosted by ministries of health, foreign investment, economy, tourism and other agencies.

I charge for travel expenses, program development, and presentation time. I do not offer online or international web based training as I have found that non verbal communication is a big part of the training value and quality when there are differences in primary language.

Let’s address your medical tourism contract challenges before they become barriers—call me at +1.800.727.4160 to get started.