The 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.
Of 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 The law as originally enacted was simple in concept: to remove any financial motivation for doctors to send their patients for unnecessary testing that could raise health care costs and/or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.
In 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.
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.
Earlier 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.
All 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.
Virtually every week, our business and healthcare law firm is engaged to provide advice and assistance concerning a physician employment agreement, either as counsel to the physician or for an employer/hospital or medical practice. “Restrictive covenants,” including non-competition agreements, are desired by the majority of employers and therefore included in their proposed form of employment agreement. Physicians most often prefer, however, if they had their druthers, not to be restricted in their ability to work following the expiration or termination of a job. Hence this section of the proposed employment agreement, particularly those with more broad and onerous non-compete provisions, can be the source of tension on the front end of the employment relationship. Restrictive covenants also show up in a variety of other contractual arrangements, including medical practice ownership agreements (e.g., shareholder agreements, operating agreements), joint venture contracts, and medical director agreements.
The FDA has announced that it will begin requiring opioid manufacturers to provide more training for healthcare providers. At present, manufacturers must provide training about long-acting, extended release opioids to prescribers. In the future, the manufacturers of short-term and immediate release opioids will also be required to provide the same type of training. The training will be available to physicians, nurses, and pharmacists.
This change was brought about by the continuing high rate of drug overdose incidents by prescription drug abusers, particularly those abusing opioid painkillers. The training was previously only required by makers of long-acting opioids. However, the FDA stated statistics show that today the vast majority, 90% to be exact, of opioid pain medication prescriptions are for the short-acting variety. It has been found that abusers of opioids are misusing the short-acting, immediate release versions as well as the long-acting types. After becoming addicted to the commonly prescribed short-acting versions of the medication, most abusers graduate to higher doses of the prescription drugs or move to illegal drugs, which present a lower cost alternative.
Georgia physicians seeking licensure in other states hope to benefit soon from a more streamlined process. In fact, a bill was recently introduced in the Georgia House of Representatives to allow Georgia to join the growing number of states participating in the Interstate Medical Licensure Compact. (House Bill 637). Such a bill, if passed by both houses of the legislature and signed into law by the Governor, would greatly simplify the process for Georgia physicians to obtain licenses in other member states, allowing a wider population of patients access to their services and expertise. This type of bill would not change the existing methods of obtaining a license in Georgia but would provide an additional route. Although the bill was not voted on, the effort indicates this type of change may be on the horizon.
The United States only holds about 5% of the world’s population yet is consuming 99% of the word’s hydrocodone, 80% of the world’s oxycodone, and 65% of the world’s hydromorphone; all powerful narcotics. Those statistics show themselves in the most disheartening of ways with an opioid epidemic that has 1.3 million Americans needing hospital care for opioid related issues and over 30,000 dying from opioid overdoses in one year alone, with the number climbing every year. The nation’s opioid crisis also costs the U.S. over $70 billion a year when accounting for healthcare costs, productivity loss, addiction treatment and the costs of criminal justice actions and resources. The nation’s epidemic has garnered a federal response in the form of CDC guidelines that are discouraging primary care physicians from prescribing opioids as a first line of defense (or only line of defense) for patients with chronic pain and instead encouraging the use of non-opioid and even non-drug treatments for pain. A DEA response shortly thereafter indicated production quotas would be enforced for Schedule II pain medications, reducing the production of some medications by a quarter or even a third.