On February 24, 2023, the DEA announced “Proposed Permanent Rules” for the prescribing of controlled medications on a telemedicine or telehealth basis.
Attached are:
A summary will follow later this week.
FTC Proposes a Rule to Prohibit Non-Compete Agreements
On January 5, 2023, the Federal Trade Commission (FTC) took a dramatic step by proposing a new rule that would prohibit companies from entering into non-compete agreements with its workers. The proposed rule, if approved, takes sweeping action to prohibit employers from entering into non-compete agreements with both employees and independent contractors. And the proposed rule does not stop there. It would also require that employers take affirmative steps to rescind existing non-compete clauses and explicitly inform workers that the contracts are no longer effective.
As of right now, the FTC’s rule (available here) is merely a proposal, and the agency is soliciting public comments on whether any changes should be made before it is finalized. Litigation challenging the enforceability of the rule is almost sure to ensue, and the U.S. Chamber of Commerce has already threatened to sue to FTC over its proposed non-compete ban.
Regardless of whether or not the FTC rule is adopted, physician non-compete agreements are closely scrutinized in Pennsylvania under a multi-tiered analysis because of the value of doctors’ services to the public. Initially, the covenant in order to be enforceable must be “reasonably related to the protection of a legitimate business interest*.” As recognized in Wellspan, this type of interest includes showing that a non-competition provision is necessary to protect such things as trade secrets and confidential information, unique or extraordinary skills, customer goodwill, patient relationships, patient referral bases, and investments in an employee’s specialized training. If a post-employment covenant merely seeks to eliminate competition and is not designed to protect a legitimate business interest, it will not be enforced.
If the threshold requirement of a protectable business interest is satisfied, courts will then balance the employer’s interests against that of the employee to find other work in her field and earn a living. Under this factor, the temporal and geographic restrictions imposed on a former physician must be reasonably limited**. If not, the non-compete provision will not be upheld.
After the second step, the interests of the public will be assessed as they are of “paramount importance in the context of non-competition covenants for physicians.” This in essence means that courts will examine whether there is a shortage of physicians in the particular practice area in the relevant geographic region. If patient demand in the geographical area exceeds the ability of appropriately trained physicians to provide expeditious, skilled treatment, the public interest supersedes a right to enforce a non-compete agreement. Following Wellspan, courts in Allegheny County have viewed this factor as critical*.
As we can see, even without the implementation of the FTC rule, an employer faces significant hurdles in attempting to enforce a physician non-compete agreement.
Furthermore, many early comments suggest the FTC proposal would not apply to non-profit healthcare systems, based upon the FTC’s actual jurisdiction and the definition of “employer” in the proposed rule itself. Given the prevalence of non-profit healthcare systems nationwide, and especially in Pennsylvania, it remains to be seen whether this rule would have any significant impact in the healthcare arena.
The Allegheny County Medical Society has been collaborating with various Pennsylvania state legislators over the past few years to restrict or eliminate physician restrictive covenants. The most recent legislative action was the introduction of HB 681 of 2019, the Healthcare Practitioner Non-Compete Agreement Act, which has not been passed. This was an effort to limit this scope and impact of physician’s non-competes. However, as the trend of employing physicians increases, with tens of thousands of physicians employed by healthcare systems rather than private practices in Pennsylvania, there is less support for eliminating restrictive covenants. Organized medicine actively supports and enforces the use of restrictive covenants even the relatively few remaining private practices seem to utilize restrictive covenants.
*Wellspan Health v. Bayliss, 869 A.2d 990 (Pa. Super 2005).
** Wellspan
*** See Allegheny Specialty Practice Network v. Joseph J. Colella, M.D., GD No. 09-006813 (C.C.P. Allegh. Co.) (Ward, J., Opinion entered on Sept. 9, 2009, p. 27) (noting that a physician non-compete was enforceable because there was no shortage of bariatric surgeons in Allegheny County).
This Article was written by Michael A. Cassidy, Esq., Jeremy V. Farrell, Esq., and Ryan James, Esq., and originally appeared in the February 1, 2023 edition of ACMS Insights. ACMS Insights is The Allegheny County Medical Society’s Blog and is the newest addition to the ACMS’s lineup of content for members. Visit ACMS Insights here.
For questions or more information on this article, contact Jeremy Farrell, Ryan James or Mike Cassidy. Visit our Med Law Blog here.
| Michael A. Cassidy, Esq. mcassidy@tuckerlaw.com (412) 594-5515 |
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| Jeremy V. Farrell, Esq., jfarrell@tuckerlaw.com (412) 594-3938 |
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| Ryan James, Esq. rjames@tuckerlaw.com (412) 594-5542 |
Navigating Contract Reviews for Early Career Physicians: Insights from a Physician Contract Review Attorney
At the conclusion of their residency or fellowship, physicians are faced with the new challenge of interviewing and negotiating their first contract. One of the first things that I hear from early career physicians who reach out to me is that while they have spent years learning and developing complex medical skills, they feel lost when handed offer letters and contracts. The concepts and language are foreign and they don’t know where to start. They are also unsure about whether to negotiate or just sign what is handed to them by their #1 choice.
The purpose of this article is to share my insights as an attorney who frequently reviews and negotiates contracts for early career physicians and to highlight key elements of physician employment agreements that should be taken into consideration when evaluating different offers.
I. A Note on the Contract Review Process
In the early stages of a physician’s career the contract review process has a few components: (1) education, (2) personal reflection, and (3) negotiation.
- The first component is educating yourself on what you should be considering when evaluating an offer or contract. The key elements listed in the remainder of this article are the big-ticket items that will be included in most offer letters and contracts. It is important to understand what they mean, how they can vary, and why they are important. But beyond these terms there will be nuances in the language of every contract that will be important. I’ve said in many presentations to early career physicians – if you see the words “liquidated damages” or “force majeure” in your contract call an attorney to ensure that you understand what you are agreeing to! If you have questions, ask your attorney. Each contract should be reviewed in its entirety and it is important that you understand what you are signing.
- The second component is one of personal reflection as the early career physician evaluates what is important to them. While the early career physician has some negotiating leverage, it can vary greatly depending on their target market, specialty, or potential employer. That doesn’t mean that the contract review process doesn’t have value. My clients are often surprised that the process forces them to think about what is important to them in a potential first job. This comes up as they compare one possible position to another and when they decide which contract term is more important to them. Are they willing to take the position that has a slightly lower base salary if the non-compete is more reasonable and it is less likely that they will have to up-root their family to move on to the next step of their career?
- The third component is negotiation and trying to get the best contract possible. One of the first hurdles many early career physicians have to clear before contacting an attorney is the discomfort with negotiating their contract. Often there is a feeling that the physician should just sign the best economic offer presented (particularly if it is from the practice where they were a resident), a concern that negotiating things like non-compete will make the employer think they aren’t serious about a long-term future with the practice, or a reluctance to keep a few options open during the negotiation process. The reality is that employers know that early career physicians are often interviewing with multiple practices at one time and expect negotiation of contract terms. The process will also give a physician insight to the practices that they are considering. If a big organization refuses to negotiate even after being pushed by an attorney because they need to keep consistency in their forms, it is likely that administrative structure will be reflected in the way the practice is run. If the practice is forthcoming with information that the physician requests in the negotiation process (ex: providing examples of wRVU performance of other early career physicians), it may be an indication that the practice is more transparent. Negotiation is a key component to getting the best contract and provides valuable insight into how potential employers run their practices.
Finally, people frequently ask me when to engage an attorney. The best timeline is when they begin receiving offer letters. Early career physicians often sign offer letters before engaging their attorney because the documents say that they aren’t binding. While that is true, this will often make your attorney’s job harder when it comes time to negotiate your contract. The practice will default to the argument that while the offer letter isn’t binding, they agreed to move to the contract stage based on the agreement to key terms in the offer letter. The thing to remember with offer letters is that while they don’t have to include all terms, the physician should agree with all of the terms that they do include. Discussing them with an attorney helps to ensure that the physician doesn’t inadvertently commit to terms that will be harder to negotiate later.
II. Compensation
The main term on the mind of most early career physicians is compensation. Compensation is generally broken into three components: (1) base compensation, (2) incentive compensation, and (3) one time bonuses.
A. Base compensation is a guaranteed annual salary, usually payable in accordance with the employer’s payroll practices. Base compensation in multi-year contracts should escalate in future years to reflect added value or inflation, unless there is a productivity component in addition to the base compensation. One of the best ways to evaluate compensation is to compare to other offers received, but resources are also available that provide comparative compensation information by specialty. One thing a physician should ask themselves is whether the base salary is sufficient if additional incentives are not achieved.
B. Incentive compensation has traditionally been based upon metrics such as achievement of targets like work relative value units (wRVUs), but many organizations are now utilizing structures with quality incentives. With the former, it is important to understand how similarly situated early career physicians have performed. Are the targets attainable? In particular, are they attainable in the first year of a new practice? Is the physician only given credit for work they personally perform or is credit given for oversight of ancillary providers or other revenue sources like imaging, biologicals, or drugs? With quality incentives, what are they based upon? Does the practice have discretion on whether to pay or to revise the program?
C. Other types of one-time bonuses are often included in early career contracts. Sign-on bonuses, moving expense reimbursements, and retention bonuses (paid in years 2 or 3 of a contract) are frequently included. Contracts will often require repayment of all or a part of these bonuses if the physician leaves prior to the end of the initial term of the contract. It is important to understand how these repayment obligations are structured.
III. Non-Compete Provisions
The next key term on the mind of many physicians is the non-compete provision. This provision determines the restrictions on where the physician can practice after the current contract ends. Non-competes and their enforceability is an issue of state law, but most states do permit non-competes if they are reasonable and no broader than reasonably necessary to protect the employer. When evaluating and negotiating a non-compete the focus tends to be on the duration, geographic scope, and whether the manner of exit impacts applicability.
These elements and the remaining language in the provision are read in their entirety and determining whether a provision is reasonable can be fact specific. For example, a provision that limits a physician from working 10 miles from any location where they provide services could be appropriate in suburban Pittsburgh but not downtown Chicago. It could be less reasonable if it prohibits the physician from working 10 miles from any location of the practice, regardless of whether the physician provides services at each location. Additionally, a 2 year non-compete could be reasonable in a contract for a full-time physician with an initial 5 year term, but not in a contract for a part-time physician with an initial 1 year term.
Other restrictive covenants that often appear in physician contracts are patient and co-worker non-solicitation restrictions and confidentiality provisions. Each should be closely reviewed.
IV. Professional Liability/Malpractice Coverage
It is essential for a physician to understand the responsibility to provide and pay for professional liability or malpractice insurance under their contract. In most cases, the contract makes the practice responsible for providing coverage but understanding the type of coverage and other nuances is important.
Professional liability coverage is written two ways: occurrence based or claims made. An occurrence policy covers any claims made against the physician for an event that occurs when the policy is in place regardless of when the claim is made. A claims made policy covers claims made against the physician only if the claim both occurs and is made during the term of the policy. With the claims made policy the coverage ends when the policy ends (like at the end of employment) unless a reporting endorsement, otherwise known as “tail,” is obtained. It is important for the contract to either specify that the practice will obtain a policy on an occurrence basis or that the practice will be responsible for obtaining and paying for tail. This is of particular importance in specialties like OB/Gyn where the expense of tail policies is particularly high. Often contract language will indicate that the physician is always responsible for obtaining and paying for tail or in certain circumstances, such as if the physician leaves before the end of an initial term or if the physician is terminated for cause. Any physician responsibility for tail or vague provision should be negotiated.
V. Term and Termination
Finally, it is important that a physician understand the term and termination provisions in their contract to know whether there is any guaranteed / required initial period of employment and if there is the ability of the physician or the practice to end the term at their convenience.
The typical early career contract will generally have a 2 to 3 year initial term and will be “evergreen,” or automatically renewing, each year thereafter. The initial term is often relevant to things like sign on bonuses where a repayment obligation is often tied to the initial term. It is most important, however, to understand whether the initial term is a required / guaranteed period. Whether or not the contract has a provision for termination for convenience / without cause is important for this determination.
If a contract does not have a termination for convenience provision, the initial period will be a required period of work. An attempt to leave early could be a breach of contract for which the practice may seek or threaten a claim for damages or the contract may provide specific recourse like liquidated damages, a pre-determined amount of money that a physician may have to pay to terminate the contract prior to the end of the initial term.
If the contract does have a termination for convenience provision it is important to understand what length of notice is required. In early career contracts, 60-90 days is fairly standard, but large institutions or certain geographic regions may require 180 days.
It’s also important to understand whether the standard is different for the employee and the practice. Physicians should always look for provisions that are at least “equal,” meaning that the number of notice days is the same for the physician and the practice. Even when the number of notice days is the same, the obligation isn’t really equal as the physician may have lost their position without much warning and may need to relocate requiring the hunt for a new home, find a new job for a significant other, or take children out of school.
VI. Conclusion
Navigating contract reviews and negotiations early in a physician’s career often feels like a daunting task. Understanding the key elements of physician contracts will make the process of evaluating opportunities easier and may help the physician to look at the whole picture when determining which position and practice is the right fit. Having an experienced attorney to help educate, navigate, and negotiate contracts early in your career can make the process less stressful and will help you gain a level of comfort that you are signing a contract that you understand and that is the best fit for you.
Medicare Physician Fee Schedule Reductions Partially Offset
The final “2023 Omnibus Bill” which is the spending bill passed by Congress and signed by President Biden at the end of 2022, provides partial relief from the scheduled Medicare Physician Fee Schedule Conversion Factor cuts.
As previously reported, the changes to the Medicare Physician Schedule Conversion Factor would have reduced physician reimbursement by 4.5%.
Pursuant to the Omnibus spending bill, that reduction in 2023 will only be 2%, but it is nevertheless a reduction.
Reforming Prior Authorization Process: Federal and Pennsylvania
Both the federal government and the Pennsylvania state government are taking steps to reform the prior authorization process. Take a look at the Pennsylvania Insurance Department press release that was issued November 3, 2022, touting the passage and signing of Pennsylvania Act 146, which is described as creating a new and more effective process for prior authorization review.
Pennsylvania Act 146 is not intended to take effect until January 1, 2024, so there should be adequate time to review and implement the 50 page statute.
Along a similar vein, CMS (Centers for Medicare and Medicaid Services) has proposed to expand access to health information and improve the prior authorization process.
Here is the CMS press release announcing that effort along with the CMS Fact Sheet describing the process.
Note that the process is a continuation of a rule that was first introduced in December of 2020. A revised proposed rule has been issued. Comments are due by March 13, 2023. Additional information is available on the CMS website.
Medicare Physician Fee Schedule Final Rule Summary: CY 2023
Please click the link to view the Medicare Physician Fee Schedule Final Rule Summary for 2023.
Telemedicine Special Fraud Alert
The US Office of Inspector General (OIG) released another in a series of Special Fraud Alerts on July 20, 2022, this one directed to potentially fraudulent telehealth, telemedicine, and telemarketing service fraud schemes, collectively referred to as “Telemedicine Companies”. The alert is based upon OIG’s perception that these Telemedicine Companies are engaged in schemes to pay kickbacks to practitioners to generate fraudulent orders for medical services, specifically:
- Durable medical equipment
- Genetic testing
- Wound care items
- Prescription medications
The Alert states that “telemedicine companies have used kickbacks to aggressively recruit and reward practitioners to prescribe items or services for”:
- Purported patients with which the practitioners have limited, if any interaction
- Prescribed items or services without regard to medical necessity”
The Alert goes on to identify common characteristics of fraudulent telemedicine company schemes, i.e.
- The purported patients are identified and/or recruited by the Telemedicine Companies through a variety of means and then presented to the practitioners
- Lack of sufficient contact or information to meaningfully assess medical necessity
- Payment based upon the volume of items or services ordered or prescribed
- The patient groups are limited to one category of third party payor, either only through a healthcare program or excluding federal healthcare programs
- The telemedicine company furnishes only “one product or service”
The Alert also footnotes a list of prior alerts, prior investigations, and prior prosecutions.
Medicare Proposes 2023 Physician Pay Cuts
On July 7, 2022, CMS released its proposed Medicare Physician Fee Schedule for 2023, which proposes physician fee schedule reductions via the Medicare Conversion Factor.
- The general Medicare conversion factor will be reduced by 4.4% from $34,61 to $33.08
- The anesthesia conversion factor will be reduced 3.9% from $21.56 to $20.72
The link is attached here.
Mike Cassidy Published in the Allegheny County Medical Society’s Signature Publication
Mike Cassidy recently wrote an article entitled, “Private Equity Deals Offer Both Potential Significant Return and Significant Challenges” in the Legal Summary section of the July 2022 Allegheny County Medical Society (ACMS) Bulletin. The ACMS Bulletin is the Allegheny County Medical Society’s signature publication which reaches over 2,000 physicians in Southwestern Pennsylvania each month. Click here to read the article which offers useful information for physicians to be cautious about when considering private equity acquisition.
For more information on this, contact Mike Cassidy at mcassidy@tuckerlaw.com, (412) 594-5515
Tucker Attorneys Jeremy Farrell and Rebecca Moran Published in the Allegheny County Medical Society’s Signature Publication
Jeremy Farrell and Rebecca Moran recently wrote an article entitled, “Pregnancy-Related Protections for New Physicians” in the Legal Summary section of the June 2022 Allegheny County Medical Society (ACMS) Bulletin. The ACMS Bulletin is the Allegheny County Medical Society’s signature publication which reaches over 2,000 physicians in Southwestern Pennsylvania each month. Click here to read the article regarding Pregnancy-Related Protections for New Physicians.
| Jeremy V. Farrell | jfarrell@tuckerlaw.com | (412) 594-3938 |
| Rebecca A. Moran | rmoran@tuckerlaw.com | (412) 594-3941 |
