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

A recent Allegheny County Court Case clearly establishes that the enforceability of restrictive covenants is not an urban myth; they are enforceable and vigorously litigated.  In Allegheny Specialty Practice Network and the West Penn Allegheny Health System v. Joseph J. Colella, M.D., ASPN and WPAHS obtained a preliminary injunction prohibiting Dr. Colella from practicing within Allegheny County as an employee of UPMC.  A detailed lengthy opinion cogently explains the facts and rationale for the enforcement of restrictive covenants in this particular case and in Pennsylvania in general. 

In issuing the preliminary injunction, the Court preliminarily enjoined Dr. Colella from entering into or fulfilling the terms of any employment agreement or any other contract of any type to provide medically related services with Allegheny County, Pennsylvania for any other hospital, healthcare provider or surgery center outside the West Penn Allegheny Health System for a two- year period, as well as prohibiting Dr. Colella from soliciting plaintiff's employees or sharing any confidential information.  In doing so the Court made the following conclusions of the law:

1.         Plaintiff has established the immediate and irreparable harm requirement for preliminary injunctive relief. 

2.         Greater injury would result from refusing the injunction than from granting it and the issuance of an injunction would not substantially harm Dr. Colella.

3.         A preliminary injunction will properly restore the parties to the status quo as it existed immediately prior to the wrongful conduct.

4.         Plaintiff is likely to prevail on the merits regarding the claim of breach of contract to enforce restrictive covenants in the employment agreement.

5.         A preliminary injunction is reasonably suited to address the wrong plead and proven.

6.         A preliminary injunction will not adversely affect the public interest.

The Court recognized in healthcare situations that the public interest will be adversely affected if the injunction would adversely affect the general availability of physician to treat patients, although no jurisdiction has recognized the public interest in assuring the unrestricted ability of a particular patient in continuity of care with a single physician.  Accordingly, in the rare cases where Pennsylvania Courts have invoked the public interest in declining to enforce covenants not to compete against the physician, the evidence clearly established there was a legitimate shortage of practitioners in the relevant area.  The Court found that not to be the case in the present situation.

Category:  Restrictive Covenants

Tags:  UPMC, WPAHS, "Physician Restrictive Covenants" "Joseph Colella" ASPN

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www.medlawblog.com/uploads/file/Working Draft of MS_01_01_01 (formerly MS_1_20).pdf

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The Pittsburgh Post Gazette recently ran an article entitled "Special-needs trusts can provide for disabled children".This Article highlights an essential planning tool for individuals with special needs and their loved ones, but also the complexity of such planning. Special needs planning requires a strong estate planning foundation in addition a working knowledge of public benefits eligibility rules. 

The Article notes that "anyone receiving Social Security disability benefits cannot have more than $2,000 in his own name without losing the benefits." An often misunderstood concept is the distinction between Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI) benefits. Both SSDI and SSI require that a recipient be "disabled" as defined under the Social Security Act. However, SSDI is an entitlement benefit based an individual's earnings history whereas SSI is a means-tested benefit. 

SSDI, therefore, requires no inquiry into an applicant's countable resources where as SSI generally applies a $2,000 resource limit. In Pennsylvania, an individual who qualifies for SSI typically automatically receives Medical Assistance (Medicaid) benefits, which is often the most sought after of the means-tested public benefits. For children with disabilities, Medical Assistance can serve as a primary or secondary insurance. If used as a secondary insurance, Medical Assistance often provides vital care rarely covered by employer-provided insurance, such as behavioral health wraparound services, in-home nursing/therapies/personal care, diapers, nutritional supplements and transportation. Children in Pennsylvania may qualify for Medical Assistance regardless of their eligibility for SSI and, in certain instances, their parents income. 

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CMS has issued Compliance Standards for Consignment Closets and Stock and Bill Arrangements. The purpose of Change Request 6528 was to define and prohibit certain arrangements where an enrolled supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) maintains inventory at a practice location which is not owned by the enrolled DMEPOS supplier, but rather owned by a physician, non-physician practitioner or other healthcare professional, which arrangements are sometimes referred to as "consignment closets" or "stock and bill arrangements."

The CMS announcement does not prohibit these arrangements, but indicates that they must comply with the following requirements:

1.         The title to the DMEPOS shall be transferred to the enrolled physician, non-physician practitioner or practice at the time the DMEPOS is furnished to the beneficiaries;

2.         The physician or non-physician practitioner shall bill for the DMEPOS supplies and services using their own enrolled DMEPOS billing number;

3.         All services provided to a Medicare beneficiary concerning fitting or use of the DMEPOS shall be performed by individuals being paid by the physician or non-physician practitioner's practice, and not by any other DMEPOS supplier;

4.         The beneficiary shall be advised that if he or she has a problem or question regarding the DMEPOS, then the beneficiary should contact the physician or non-physician practitioner and not the DMEPOS supplier who placed the DMEPOS at the physician or non-physician practitioner's practice; and

5.         The National Supplier Clearinghouse Medicare Administrative Contractor (NSC-MAC) shall verify that two or more enrolled DMEPOS suppliers shall not be enrolled and/or located at the same practice location and that each practice location shall have a separate entrance and separate post office address.

In addition to these requirements, the Anti-Kickback and Stark rules would still apply to the financial arrangement between the DMEPOS supplier and the physician.

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According to Bloomberg News it takes six lobbyists per lawmaker; on August 14, 2006, Bloomberg reported that $3,300 lobbyists have lined up to work on health reform. "That six lobbyists for each of the 535 members of the House and Senate, according to Senate records, and three times the number of people registered to lobby on defense." 

According to Bloomberg, the group spent approximately $263.4 million lobbying during the first six months of 2009. 

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The Kaiser Foundation has recently updated its website: www.statehealthfacts.org. The site has an amazing collection of state health facts, including Medicare reimbursement rates and Medicare participation rates, which are often the subject of significant speculation. The site has been added as a link on the Med Law Blog and I recommend you peruse it.

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Surprise! Surprise! Another blow to healthcare reform. In an August 7, 2009 letter to the House Subcommittee on Health, the Congressional Budget Office (CBO) concludes:

"Although different types of preventive care have different effects on spending, the evidence suggests that for most preventive services, expanded utilization leads to higher, not lower, medical spending overall."

"Researchers who have examined the effects of preventive care generally find that the added costs of wide-spread use of preventive services tend to exceed the savings of averted illness."

You can read the rest of the analysis in the link to the CBO letter.
 

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New York Times reports Obama's immigration timetable
"Obama Sets Immigration Changes for 2010”

Los Angels Times
"Debate heats up on healthcare for illegal immigrants"

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The Office of Inspector General of the Department of Health and Human Services has just released a report examining problems with incident to billing by physicians, and seeking restrictions on the use of that billing arrangement. The report, titled "Prevalence and Qualifications of Non-Physicians Who Performed Medicare Physician Services" was posed by the OIG on August 6, 2009. The OIG believes that incident to services may be vulnerable to over-utilization and may put beneficiaries at risk of receiving services that do not meet professionally recognized standards of care. For the audit, OIG reviewed the data for the first quarter of 2007 and identified all the days during which Medicare allowed services for physicians in a single day that exceeded 24 hours of physician work time, which would be measured by RVUs. They selected 250 of these "physician day combinations" and requested that the physicians identify who performed each service that Medicare allowed on those selected days, using a variety of audit and physician contact techniques. OIG concluded that unqualified non-physicians performed 21% of the services that physicians did not perform personally.

OIG recommended as follows:

1. CMS should see revisions to the incident to rule and require that physicians who do not personally perform the services they bill to Medicare ensure that no persons do perform such services except non-physicians who have the necessary training, certification, and/or licensure in accordance with state laws and regulations.

2. CMS should require physicians who bill incident to services to identify the services on their Medicare claim forms by using the service code modifier.

3. CMS should specifically address claims for services detected and billed by physicians but performed by non-physicians that were "not incident to" and were for rehabilitation therapy services performed by non-physicians without the training of a therapist.
 

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PNHP is a group of 16,000 doctors nationwide who advocate for single payor national health insurance for the purpose of "removing the wasteful insurance company middlemen from our health system and redirecting the resultant savings into care."

For an alternative view on the progress of health care reform from a different prospective, check their website at www.pnhp.org. 

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