Med Law Blog : Pennsylvania Health Care Lawyers & Attorneys : Tucker Arensberg Law Firm : Employee Benefits, HIPAA & HIT in Pittsburgh, PA

The Office of Inspector General of the Department of Health and Human Services has issued Advisory Opinion No. 09-05, which states that the OIG will not impose sanctions regarding a proposed on call arrangement in which the hospital will compensate physicians for providing on call coverage for patients presenting to the hospital or emergency department. The hospital will have a formal on call policy and program only available to active members of the medical staff of the hospital who specifically agreed to participate in accordance with the terms and conditions of the policy, and who will receive a flat fee that varies for consults, admissions, and certain surgical and other procedures.

The Advisory Opinion recognizes the potential for abuse for paying physicians to provide on call coverage at hospitals to which they admit patients, but also recognizes the difficulties all hospitals have had securing appropriate call coverage in a changing environment in which physicians no longer voluntarily assume the burden of providing on call coverage.

In addition to citing the presence of the factors objectifying approval, i.e. participation in a formal call coverage based upon a written agreement providing fixed fees for certain services which fees were determined to represent fair market value, the OIG has also identified circumstances in which it would have had enforcement questions, i.e.:

1.         Compensation for lost opportunity or similarly designed payments that do not reflect bona fide lost income;

2.         Payment structures that compensate physicians when no identifiable services are provided;

3.         Aggregate on call payments that are disproportionately high compared to the physician's regular medical practice income; or

4.         Payment structures that compensate the on call physician for professional services for which he or she receives separate reimbursement from insurers or patients, resulting in the physician essentially being paid twice for the same service.

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In Hussein vs. Duncan Regional Hospital, United States District Court for the Western District of Oklahoma denied immunity under the Health Care Quality Improvement Act (HCQIA) to Duncan Regional Hospital because it terminated a physician's privileges and reported him to the National Practitioners Data Bank (NPDB) without providing notice or an opportunity to be heard. 

Dr. Hussein applied for and was granted locum tenens privileges at Duncan Regional Hospital for a two week period in April 2004. After only several days of practicing at the Hospital, Dr. Hussein left the hospital and did not return, asserting that the Hospital was requiring him to read too many films per day and thus jeopardizing patient care.

Following meetings at the Credential's Committee, the Medical Executive Committee and the Hospital's Board of Directors, Dr. Hussein's privileges at the Hospital were terminated and the NPDB stated that Dr. Hussein had deserted the Hospital, jeopardized patient care and that his temporary privileges had been terminated.

The opinion states that it is undisputed that the Hospital did not provide Dr. Hussein with notice or an opportunity to be heard. 

Among the defenses asserted by the Hospital was immunity pursuant to the terms of the Health Care Quality Improvement Act. The court held that, "as it is undisputed that Dr. Hussein was not given any notice or opportunity to be heard prior to the Hospital's report . . . the court concludes that defendants are not entitled to immunity under (HCQIA)." The Act provides immunity only if certain conditions are met, one of which is a requirement of notice and an opportunity to be heard to the NPDB. 

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• Fixes the loophole which allowed companies to use subcontractors to escape from liability under federal anti-fraud laws;

• Extends whistleblower protection to contractors, sub-contractors and agents who report fraud.

• Eliminates the requirement for "specific intent" created by the Allison Engine Supreme Court decision. Previously the Supreme Court required proof that a sub-contractor specifically intended to defraud the government in addition to showing a certification was false. Now it will be possible to sue under the False Claims Act if a subcontractor knowingly uses a false statement and obtains payment. This eliminates the ability of a sub-contractor to hide behind a prime contractor in False Claims Act cases.

• Permits whistleblowers to expose fraud whenever Government money is at stake. This provision in the law is a rebuke to a decision issued by Chief Justice John Roberts, when he served on the federal appeals court. In that case, Totten v. Bombardier Corp., Judge Roberts ruled that taxpayers could not recover for fraud committed against Amtrak, even though it was the taxpayer who paid the final bill.

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A federal judge has conditionally certified a class of potentially 85,000 current and former employees of the University of Pittsburgh Medical Center (UPMC) in a Fair Labor Standards Act lawsuit challenging UPMC's meal break policy. Conditional certification means that plaintiffs will be able to notify all current and former non-exempt employees from the past three years that they can opt into the litigation. The suit alleges UPMC denied employees proper overtime under the Fair Labor Standards Act by automatically deducting 30 minute meal breaks from their pay once their shift reached five hours. The case is Camesi et al. v. University of Pittsburgh Medical Center, et al., docket number 09-85 in the U.S. District Court of the Western District of Pennsylvania.

Law 360 reported that similar motions for conditional certification are pending against West Penn Allegheny Health System and Pittsburgh Mercy Health System, both of which are also accused of violating the FLSA with similar meal-break policies.

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The Department of Labor recently issued new amendments to the Family and Medical Leave Act (FMLA).   Those amendments have added  to the notice requirements under the act, creating both a paperwork chore for businesses and a potential legal trap if  the required notices are not provided.  This Alert summarizes the new notice requirements.  

General Notice 

The General Notice must be posted by all employers who are covered by the FMLA, whether or not they have eligible employees.  This notice, which describes the FMLA and its provisions and provides for a procedure for making a complaint of a violation to the Department of Labor, must be posted in a conspicuous place at the work place, where both employees and applicants are likely to see it.

Additionally, in situations in which a covered employer has at least one employee who is eligible under the FMLA, the General Notice must be provided to all employees by placing it in an employee handbook or other written guidance governing employee benefits that is provided to employees, or by giving a copy of the General Notice to each new employee upon hiring.

  Eligibility Notice

The Eligibility Notice must be given to an employee when the employee either requests FMLA leave or the employer has knowledge that the employee's leave may be for an FMLA qualifying reason within 5 business days of such notice or knowledge.  The Eligibility Notice must state whether the employee is eligible for FMLA leave or, if not eligible, the reason(s) why.

 Rights and Responsibilities Notice

The Rights and Responsibilities Notice must be given to employees who are going to be on FMLA leave and is to be provided with the Eligibility Notice.  It must include such information as the applicable 12 month period being used for the leave, any medical certification requirements, the employee's right to substitute paid leave, the employer's requirement that employee substitute paid leave, premium payment information for health insurance while on leave, and other such information.

Designation Notice

The Designation Notice must be provided to the employee within 5 business days of the employer having sufficient information to determine whether the leave will be counted as FMLA leave.  The Designation Notice must notify the employee whether the employer will require that paid leave be substituted for the FMLA leave.  It must also inform the employee whether the employer will require a fitness-for-duty certification in order to be restored to his or her previous, or equivalent, position (and may have to list the essential functions of the employee's position).

Finally, the Department of Labor has also issued new medical certification forms that all employers should begin using.

The Department of Labor has prototype forms that can, and should, be used to draft each of the notices mentioned above. Please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com to obtain a copy of the prototype form or to ask any questions that you have regarding the FMLA notice requirements.  

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Highmark Medicare Services will be hosting a teleconference on May 15, 2009 at 12:00 p.m. Eastern to discuss the billing of time units for physical and occupational therapy services. The teleconference may reference issues such as CMS Online Manual, Pub. 100-2, Chapter 15, Sections 220 and 230; Change Request CR6321; Frequently Asked Questions; Social Security Act, Section 1862(a)(1)(A) of the Social Security Act, Exclusions from Coverage; and PT/OT modalities is Local Coverage Determination (LCD) L27513, Physical Medicine and Rehabilitation Services, PT and OT. To participate in the teleconference, the dial-in number is 1-888-276-8689 and the Access Code is 487794. Highmark Medicare Services has indicated that the teleconference does have limited capacity.

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Most participants in the credentialing process are familiar with state statutes providing peer review immunity and confidentiality. The Tennessee statute analyzed in Smith v. Pratt and HCA Health Services of Tennessee, Inc. /d/b/a CentennialMedicalCenter take that immunity one step further. 

In this malpractice case, the court held that Tennessee Code § 63-6-219 provides immunity for negligent credentialing. The Code cited provisions of the statutes stating that physicians, hospital administrators and employees, directors and trustees, and institutions and entities are immune from liability to any patient for damages resulting from any decision or action entered or acted upon by such committees within the scope or function of the duties of such medical review committees if made or taken in good faith without malice, and on the basis of facts reasonably known or reasonably believed to exist at the time. These immunity statutes are typically viewed from the prospective of aggrieved physicians seeking damages or other redress for the termination or denial of clinical privileges. Liability by hospitals for damages arising out of negligent credentialing decisions is well accepted in many states of this country. The court in Smith v. Pratt recognizes that the Tennessee statute, although "not a shining example of legislative drafting" as described by the court, clearly provides much greater immunity than typically associated with such statutes.

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In Chudacoff vs. UniversityMedicalCenter of Southern Nevada, et al., the United States District Court for the District of Nevada granted partial summary judgment on behalf of Richard M. Chudacoff, M.D., enjoining University Medical Center from reporting Dr. Chudacoff to the National Practitioner Data Bank, and granted summary judgment on Dr. Chudacoff's behalf denying immunity under the Health Care Quality Improvement Act to the hospital. The court concluded that the hospital's suspension of Dr. Chudacoff without providing due process rights required by the medical staff bylaws violated Dr. Chudacoff's due process rights. The court stated "The fatal flaw here is that the defendant's suspended Chudacoff's staff privileges before giving him any type of notice or opportunity to be heard with respect to that suspension . . . Chudacoff's due process rights were violated by the timing of the MEC's actions."

In addition to enjoining a Data Bank Report and denying HCQIA immunity, this court recognized that physicians' clinical privileges are protected property interests under Nevada state law which would not be revoked without constitutionally sufficient due process. This is one of the few cases that recognizes medical staff membership and clinical privileges as a state protected property interest. 

The court declined to issue an injunction reinstating Dr. Chudacoff because of its perception that the ongoing medical staff appeals process would be resolved in Dr. Chudacoff's favor, but left that remedy as a future option. 

This case is a perfect example of how physicians should deal with medical staff credentialing disputes that are conducted in flagrant violation of the medical staff bylaws. 

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Physical therapy practices invest significant time, money and effort in employee development. Given the significance of the investment in its employees, the practice should consider how to protect this investment. In many jurisdictions this can be accomplished through an employment agreement containing a restrictive covenant, often referred to as a "non-compete". To learn more about the potential benefits to the employer of utilizing a non-compete, see Utilizing Employment Contracts to Protect a Practice's Investment in its Employees as published in the June 2008 issue of Impact Magazine

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As a practice grows, it often finds itself with file cabinets full of employee related records and asking the question "Can I ever throw this stuff out?". While certain records can be discarded, it is important to remember that there are state and federal requirements for the retention of employee related records. For a user friendly chart summarizing federal employee related record retention requirements see Employee-Related Records - Can I Ever Throw This Stuff Out? as published in the March 2009 issue of Impact Magazine.

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In the physical therapy market place, private practitioners and others are continuously analyzing the practice's finances in an effort to maintain and increase overall compensation. One area that tends to be overlooked in this analysis is the potentially significant benefit available through a properly drafted and qualified retirement plan program. To read more about the benefits of such a qualified retirement plan program see Considerations for Designing a Retirement Plan as published in the September 2008 issue of Impact Magazine.

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When a physical therapy private practice "hires" a physical therapist to provide professional services, questions often rise as to whether the individual is an independent contractor or an employee. It is important that the individual be properly classified for a number of reasons, including potential liability imposed by the Internal Revenue Service in the event the individual is improperly classified. To learn more about the classification process and the independent contractor versus employee analysis see Bringing on New Staff?Remember the Independent Contractor Versus Employee Analysis as published in the February 2009 issue of Impact Magazine.

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When most people hear the term "expert" in the medical legal context, they think of a well educated professional on a courtroom witness stand trying to persuade a jury in a certain direction. While this scenario is one role that the expert physical therapist may play, physical therapists may also serve in an expert capacity in other situations such as assisting in dispute resolutions or acting as a proponent for third party payor coverage of a particular physical therapy intervention. Regardless of the context in which the physical therapist expert serves, a number of considerations will help to improve the service provided to the expert's client. To read more about this topic, see The Role of the Physical Therapist as Expert as published in the November/December 2008 issue of Impact Magazine.

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As physical therapy private practice or any other business entity begins to grow, the need for a tool to handle personnel decisions on a regular basis and assist with the legal compliance requirements increases. This tool frequently takes the form of a written employee manual. When drafting an employee manual, there are a number of key areas of consideration from a legal perspective to assist in reducing the practice's potential employment related liability. To read about these key areas and employee manuals in general see The Employee Manual - An Essential Practice Tool as published in the August 2008 issue of Impact Magazine.

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The Federal Trade Commission issue the Red Flag Rules on November 9, 2007. The effective date of the Red Flag Rules is August 1, 2009. Under the Red Flag Rules, a "creditor" that offers or maintains "covered accounts" must develop and implement and identity theft protection program to detect, prevent and mitigate identity theft. To learn more about the Red Flag Rules and their requirements, see The Red Flag Rules: New Requirements May Affect Private Practice Collection Policies as published in the January 2009 issue of Impact Magazine. (Note that the FTC delayed enforcement of the Rules to August 1, 2009 after this article was published.)

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Employment-Related Bonus Programs go by many different names. Employers may choose to refer to their particular program as a sign-on, referral, retention, incentive, tuition repayment, loan forgiveness, or other type of bonus. Regardless of the name, it is important for both employers and employees to understand the terms of a particular bonus program and to set forth such terms in a written agreement. For more on this topic, see Not All Employment-Related Bonuses Are Created Equal as published in the October 2008 issue of Impact Magazine.

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PITTSBURGH, PA - Tucker Arensberg, P.C., is proud to announce that immigration attorney Piyush Seth has joined the Firm as a Shareholder and has launched the Immigration Law Practice at the Firm.

Tucker Arensberg, P.C., a full service law firm with a history of over 100 years in Pittsburgh, offers a range of employment law services to clients including employee benefits law and labor and employment law. Immigration Law effectively rounds out the employment law service portfolio at the Firm.

"With the increase of multinational corporations locally and nationally, and the prominence of the heath care and higher education communities in the region, immigration law is an extremely important area of practice," commented Managing Shareholder Gary Hunt. "The addition of Piyush to our team at Tucker Arensberg, P.C. creates an entirely new dimension within our firm and complements our other practice areas very well."

Born in New Delhi, India and raised in United States from the age of three, Mr. Seth brings a background that includes business immigration, contract/commercial litigation, tax, and business structuring. Most recently, Mr. Seth has served as Managing Shareholder of Seth Law Associates. Mr. Seth applies his diverse experience from working with hospitals, technology companies, law firms and a "Big 5" Accounting firm to his clients needs.
 

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A physician in Knoxville, Tennessee, Dr. Abu-Hatab, sued Blount Memorial Hospital alleging that his medical staff membership and clinical privileges had been terminated and retaliation for exercising his First Amendment right of free speech regarding complaints about medical care in the hospital. The United States District Court for the Eastern District of Tennessee granted summary judgment to the hospital in both counts.

Dr. Abu-Hatab joined the practice of Dr. Siddiqi at the hospital. Dr. Siddiqi's practice had an exclusive contract for dialysis services at the hospital. At some point, Dr. Abu-Hatab started his own practice and attempted to persuade the hospital to terminate its exclusive arrangement with Dr. Siddiqi.

At this point, as usually happens, the plot thickens and Dr. Abu-Hatab is accused of disruptive conduct. This is the classic chicken and egg dilemma with disruptive physician cases, which cannot be resolved without extensive review of the facts, but the question is always whether the hospital is retaliating by harassing a physician who is seeking to change the existing political and contractual structures with the hospital or whether a disgruntled physician, who was unable to legitimately change the situation, then becomes disruptive in an attempt to illegitimately undermine the existing structure.

In this case, the court granted summary judgment in favor of the hospital, basically concluding that the physician was the offending party. In analyzing the elements of immunity under the Health Care Quality Improvement Act, the court concluded:

(1)        There was evidence in the record conclusively demonstrating that the hospital's decisions were made and they were furthering quality healthcare;

(2)        There was voluminous evidence detailing the hospital's ongoing and thorough efforts to investigate the complaints against Dr. Abu-Hatab, thereby establishing a reasonable effort to obtain the facts;

(3)        The hospital provided Dr. Abu-Hatab with adequate notice and an opportunity to be heard at every stage of the proceeding; and

(4)        A reasonable jury could not find, based upon the ponderous of voluminous evidence, that the action was not warranted by the facts known to the hospital at the time.

Dr. Abu-Hatab also asserted that he had a constitutional right under the First Amendment to criticize the medical care at the hospital. This issue is analyzed under the law pertaining to public employees' rights for free speech under the First Amendment. The basic rules establish that the speech is protected only if it touched on a matter of public concern and there was no overriding state interest that would be undermined by allowing the speech. The court concluded that the issue involved Dr. Abu-Hatab's dispute with management of the hospital, and not a public issue, because Dr. Abu-Hatab's criticism of the dialysis contract involved administrative issues rather than political, social or economic concerns affecting the local community.

A copy of the opinion is available for review.

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The Pennsylvania Safety Authority issued its Annual Report for 2008, press release and Executive Summary.

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In a press release dated April 30, 2009, the FTC indicated that it will delay enforcement of the Red Flag Rules from the original compliance date of May 1, 2009 until August 1, 2009. The FTC indicated that it will soon release a template to assist certain low risk entities in complying with the Rules. As additional information is available it will be posted to www.medlawblog.com.

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