Articles Posted in Physician Practices

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to-sign-a-contract-2-1221951-mConsulting legal counsel to review a physician’s employment agreement before a dispute arises may increase a doctor’s negotiating power and help obtain better working conditions. Employment agreements contain many provisions, which may include: compensation arrangements, arbitration clauses, terms defining the scope of liability insurance, and non-compete agreements. As physicians in the workplace are tending to move away from working in solo practices, we are finding that hospital, health system and other corporate employment agreements containing non-compete clauses are becoming more prevalent.

The American Medical Association advises against physicians entering into restrictive non-compete agreements, saying that they “can disrupt continuity of care, and may limit access to care.”. While the AMA advises physicians to be cautious about unreasonable restrictions and those that limit patient choice of providers, generally speaking, non-compete agreements have been upheld and determined enforceable in courts. Courts can limit the enforcement of these agreements, however, if they deem the provisions unreasonable or too restrictive. Courts have varied in what they define as unreasonable or overly restrictive, in terms of duration and geographic radius.

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1238683_untitledAs the opioid epidemic continues to cause death and create economic hardships within the nation, criminal prosecutors and law enforcement agents have increased their focus on prosecuting and pursuing severe penalties against doctors, pharmacists, nurses and other healthcare providers as a deterrent for providers who would prescribe opioids in excess. For example, earlier this month, a doctor in Kansas was sentenced to life in prison after distributing prescription drugs that caused the death of his patient. Steven Henson, a physician based in Wichita, was convicted of numerous criminal charges after prescribing opioids in amounts that could lead to addiction and economic hardship, after his patient died from overdose. According to the Department of Justice, Henson prescribed maximum-strength opioids in dangerous quantities. Evidence showed that he wrote prescriptions for patients without a medical need and without providing a medical exam. He also post-dated prescriptions and prescribed them in return for cash.

Henson’s case is not unique. In December 2018, physician Phillip Dean of Missouri was sentenced to 40 months in prison and ordered to pay $312,377 to Medicare and Medicaid after illegally distributing opioid medications. In Massachusetts, Dr. Richard Miron was charged with involuntary manslaughter, after being found responsible for the death of a patient in 2016.

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medical-doctor-1314903-mLegislation controlling self-referrals has created a complex road map that can leave doctors with questions regarding their ability to use business agreements to promote lab work and advanced imaging technology for their patients. For physicians, the rules and regulations of self-referrals for imaging can create headaches and lead to fines.

Georgia Physician Self-Referral and Fraud and Abuse Lawyers

Physician self-referrals may create conflicts of interest and can potentially result in violations of federal or state law. Previously, providers only had to worry about referrals for patients with federal insurance plans. However, the new legislative trend is expanding their liability. Physicians recently have been prosecuted for kickbacks involving patients with commercial insurance plans as well. If a physician’s referral is determined to be guided by profit and not the patient’s best interest, that referral could be violating the law.

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gavel-952313-mThe Trend: Mandatory Arbitration

As a physician employee, you might be aware of the “arbitration agreement” that you signed with your employer upon your hiring. In the employment context, an arbitration agreement may in the view of your employer be a more efficient way to privately resolve legal disputes associated with your employment than litigation is. Therefore, many physician employers will include in their proposed employment agreement a mandatory arbitration provision. Arbitration agreements are facing backlash however, as critics claim that employers insisting on mandatory arbitration do not have incentives to obey labor laws.

Georgia Physician Employment Lawyers

Critics of arbitration agreements state that these provisions are a way for employers to compel an employee into waiving valuable legal rights, including the right to a jury trial. Mandatory arbitration provisions are often discussed and scrutinized by courts and legislators.  Some arbitration clauses have been held unenforceable by courts. In Epic Systems Corp. v. Lewis, for example, the arbitration clause at issue barred employees from suing their employers. In that case, the Court enforced the company’s mandatory arbitration clause, favoring corporations and employers, after employees banded together to sue their employers for damages because they were underpaid. Since the ruling, more questions have arisen regarding the enforceability of mandatory arbitration agreements. More cases have come forth of employees having disputes that fall under the Fair Labor Standards Act (FLSA), The Americans With Disabilities Act (ADA), The Family and Medical Leave Act (FMLA) and Title VII of the Civil Rights Act. Now, since the Epic Systems ruling, it is more difficult for employees to contest mandatory arbitration provisions that (in the view of some legal experts) might make it harder to bring certain types of legal claims against an employer.

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US-SUP-CTThe highly anticipated “AseraCare” decision (United States v. GGSNC Admin. Serv. LLC) is still pending before the Eleventh Circuit Court of Appeals. The court is considering “whether a mere difference of opinion between physicians, without more, is enough to establish falsity under the False Claims Act.” To provide some context, the U.S. District Court evaluated the “falsity” element of the False Claims Act in the context of a hospice provider’s “clinical judgment” that a person meets the standard to be eligible for the Medicare Hospice Benefit. The requirement is that a patient be eligible for Medicare Part A and be “Terminally Ill” as defined by the regulation. “Terminally Ill” requires that the hospice Medical Director make a determination that the prognosis of the patient indicates a life expectancy of 6 months or less. So the issue is whether or not the “battle of expert opinion,” without some additional element, is enough to establish that a patient is not terminally ill rendering the subsequent Medicare reimbursement submissions false or fraudulent.

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dark-dollar-2-1193021-mOf the “fraud and abuse” laws, the three decades old Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn, dubbed “Stark Law” after Congressmen Pete Stark who sponsored it, can often be the most challenging to properly interpret and apply, easily leading to head scratching. The law as originally enacted was simple in concept: to remove any financial motivation for doctors to send their patients for unnecessary testing that could raise health care costs and/or result in bad health care.  Now often subject to much criticism and even calls for repeal, Stark Law’s is often viewed as confusing, which is ironic because Congressman Stark intended for the law to create “bright line” tests that would provide clear guidance to physicians about what self-referral arrangements are unlawful.  Instead, the evolution of the law over the years, including implementing regulations, advisory opinions and court cases have rendered proper interpretation and application of the law debatable and unpredictable in some circumstances.

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1238683_untitledIn July 2017, Georgia passed House Bill 249, transitioning the state’s Prescription Drug Monitoring Program (PDMP) from the Drug and Narcotic Agency to the Department of Public Health. “The goal of the Georgia PDMP is to reduce the misuse of controlled substances and to promote proper use of medications used to treat pain, as well as to help diminish duplicative prescribing and overprescribing of controlled substances,” said Georgia Department of Public Health Commissioner Patrick O’Neal, MD. The new mandates call for providers to utilize the PDMP system for prescriptions of opioid and benzodiazepine medications. Now, prescribers of CII medications are required to review a patient’s PDMP information every 90 days, unless the patient meets specific criteria. Pharmacy Monitoring Systems are regulated by individual states, each imposing its own unique requirements for reporting.

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Healthcare employees filed the fourth largest number of sexual harassment claims with the EEOC from 2005 to 2015, according to Jocelyn Frye, a senior fellow at the Center for American Progress. As a result of the #MeToo movement, many healthcare organizations in Georgia are rethinking their sexual harassment policies, and employees are educating themselves on their rights. This post examines Georgia employees’ rights and how Georgia employers can reduce sexual harassment in the workplace.

Georgia Discrimination Laws

Georgia’s employment discrimination laws protecting employees in the private sector are limited to age, wage, and disability discrimination. Although Georgia’s Fair Employment Practices Act covers a wider range of protected classes, it only applies to state agencies with fifteen or more employees.

medical-doctor-1314903-m1Earlier this month, Doximity released a new study that provides a national review of physician compensation information and job trends, as the strong trend of physician employment by hospital systems continues.  Doximity, formed in 2011, is “the largest community of healthcare professionals in the country,” according to its website. More than 70% of physicians in the United States are verified Doximity members.  Doximity is a network of physicians and other healthcare practitioners. Doximity’s membership also includes many nurse practitioners, physician assistants and pharmacists.  More about Doximity can be learned from its website, www.doximity.com.

The study analyzes thousands of job advertisements posted in 20 of the nation’s largest cities and involving 15 common medical specialties.  Compensation growth was calculated using self-reporting from compensation surveys of tens of thousands of full time U.S. physicians. Physician compensation grew 5.1 percent in 2017, according to the study.

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to-sign-a-contract-2-1221951-mAll good things must end.  Every employment relationship will end sooner or later, one way or the other.  While it is obviously important that parties to an agreement convey on the front end of the relationship positive feelings, the exit strategy should never be disregarded in one’s planning or evaluation of contractual terms.  Life happens.  Things can change one’s desire or ability to be in a deal, a contract, or an employment relationship.  Therefore, while perhaps it may feel counterintuitive to dwell on how to end a relationship just as you are forming it, the termination provisions are very important and, sometimes, critical.

Georgia Medical Practice Lawyers

Most physician employment agreements will articulate a specific term, typically one to five years.  Often a physician employment agreement will contain an auto-renewal provision so that, following expiration of the initial term, the relationship is continued from year to year automatically absent timely advance notice of non-renewal by employer or employee.  From the medical practice’s standpoint, the right objective is usually to incent longevity and continuity of the relationship with the physician, while preserving a way out of the relationship if needed.  Physicians, on the other hand, usually desire stability and sometimes a feeling that employment is “guaranteed” absent real cause to terminate the relationship.  In the typical written physician employment agreement, how the agreement will end is determined by term and termination provisions.

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