Physician Practices

Flattening the Curve Through Telemedicine

April 20, 2020 | Little Health Law

Telemedicine has new and profound importance due to the COVID-19 crisis. “Virtual” healthcare preserves patient protective equipment that would otherwi image_4-e1587393250939 se be used and allows physicians to manage chronic illnesses remotely, without the in-person interaction that exposes provider and patient to the risk of spread. This increased reliance on telemedicine has prompted state and federal legislative bodies to pass new rules and guidelines to promote access to telehealth services by reducing costs, increasing availability, and promoting relationships between healthcare providers and their patients. Our Georgia-based business and healthcare law firm follows regulatory developments that impact healthcare providers. As of the date of this post, seven states (Arizona, Florida, Kansas, Maine, New Jersey, Oregon, and Utah) have waived restrictions on telehealth. More relaxation of telehealth rules may be expected.

New Regulations: an Overview

Virtual medicine is expected to aid in slowing the spread of coronavirus by limiting contact between individuals. New telemedicine regulations encourage video and audio conversations between providers and their patients. Telemedicine platforms can serve a variety of functions, some assist with managing patient triage, while others provide alerts to providers and patients in regard to medication management. Other platforms allow for effective monitoring of chronic illnesses for patients, even with the strict social distancing guidelines that are currently in place. Thus, as part of an effort to allow healthcare providers to better support each other and their patients, the federal government has reduced the regulatory hoops that have previously limited access to Telehealth services. The CMS Fact Sheet discusses in depth the changes that have been made to provide virtual services.

THE METEORIC RISE IN IMPORTANCE OF TELEMEDICINE

April 13, 2020 | Little Health Law

As patients, naturally we intend to go to the doctor to get well. But there is a catch 22. What if the trip to the doctor or the emergency room to be made well might cause us to get sick, or more sick? Or what if we make the doctor sick, impairing his ability to care for other patients? Such risks have always existed to a degree, but nothing like today, during the Coronavirus pandemic.

Georgia-based Telemedicine Lawyers

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The extraordinary, unprecedented COVID-19 pandemic and staggering fallout has cast new and very bright light on telemedicine and its potential efficacies in providing safe health care. Above all, telehealth benefits include ability to provide healthcare without no risk of COVID spread, a serious health risk for both patient and healthcare practitioner to avoid that will necessarily attend both commuting and in-person interaction. Telemedicine offers another way to “go to” the doctor and for the doctor to render care, free of the risk of virus spread. Apart from all other advantages and conveniences of telemedicine, the paramount importance of health and safety (of both healthcare practitioner and patient) have never been underscored so forcefully.

To Compete or Not to Compete?

January 23, 2020 | Little Health Law

1221952_to_sign_a_contract_3 As a business and healthcare litigation firm focused exclusively on advising and representing health care providers, we work virtually every day with contracts that involve non-compete agreements and other forms of restrictive covenants. Almost all physician employment, for example, will involve a physician employment agreement that contains a restrictive covenant. Typically, a restrictive covenant will apply to prohibit certain competitive activities both during the employment and for some agreed period following employment, often one to three years. The details of such agreements can vary dramatically and, contrary to the impressions of many medical practice owners and employed physicians, there are not “standard” provisions for duration, geographic scope, etc. Further, Georgia and South Carolina case law and relevant statutory provisions are subject to interpretation, about which reasonable minds can often differ.

As a healthcare law firm, we are exposed to agreements on the transactional end, when the parties get married (i.e., when they sign the contract), and when they divorce (i.e., when the employment ends). If a non-compete issue is raised at the end of the relationship, the implications for employer and employee can be severe and, in unfortunate cases, devolve into litigation. For a highly compensated physician, whose ability to ply his/her trade following many years of education and training is suddenly impaired by the signed contract, whether to proceed with certain employment opportunities (that might violate a non-compete agreement) can make for a highly stressful decision-making process. Some factors that physicians may consider follow.

Should you determine if the non-compete agreement is enforceable?

Employment Litigation Update

December 31, 2019 | Little Health Law

861958_hidoc-on-white Because our healthcare law firm often handles employment-related disputes and litigation (for employers and employees alike), we follow developing trends in employment litigation. Employment discrimination lawsuits continue to make headlines in the healthcare industry. Between 2018 and 2019, numerous allegations regarding doctors, nurses, and administrative staff have resulted in litigation challenging existing employment practices of large network hospitals and small practices. For managers and owners of physician practices or small businesses, employment concerns should be regularly discussed with legal counsel.

Georgia Healthcare Business Litigation Attorneys

Over the last two years, a variety of claims have been brought forward by employees against their employers. The stories range from allegations of discrimination on the basis of sex, age, or race. For example, on April 26, 2019, employees of Mount Sinai Health System (Mount Sinai Health) filed a lawsuit in federal court alleging age and sex discrimination against female senior leaders of the health system. The lawsuit discussed practices that occurred under Dr. Prabhjot Singh’s management. Before the lawsuit, Dr. Singh served as the chair of the Department of Health System Design and Global Health. According to the lawsuit, numerous female employees were fired or forced to resign before being replaced by younger male employees. Furthermore, the lawsuit cites instances of Dr. Singh’s “screaming” and other aggressive behavior towards women on staff at Mount Sinai Health. On July 3, 2019, it was reported that Dr. Singh resigned from his position of leadership.

Improving Patient Access to Healthcare in Rural Areas

November 8, 2019 | Little Health Law

waiting-room-1486946-300x239 Providing access to high quality services to patients in rural areas is an ongoing challenge in the U.S. Throughout our country, a large percentage of citizens living in rural areas are less healthy than their peers in urban areas, as rural citizens lack access to healthcare providers in their small communities as well as personal financial resources and transportation options that would allow them to travel to larger cities where top-quality or specialty medical services are offered.

Georgia-based Healthcare Lawyers

According to Georgia’s State Office of Rural Health, citizens in rural Georgia are less healthy than those living in urban areas, are more likely to be uninsured or underinsured, and are more likely than Georgians in urban areas to suffer from heart disease, obesity, diabetes and cancer.

When a Doctor Needs a Lawyer: Non-Compete Agreements and Restrictive Covenants

July 29, 2019 | Little Health Law

to-sign-a-contract-2-1221951-m Consulting 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.

Opioids: Physician Liability

June 14, 2019 | Little Health Law

1238683_untitled As 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.

When a Doctor Needs a Lawyer – Patient Referrals for Imaging: Staying Compliant with the Law

June 4, 2019 | Little Health Law

medical-doctor-1314903-m Legislation 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.

The Enforceability of Arbitration Agreements

March 14, 2019 | Little Health Law

The 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.

Fraud and Abuse Update: What if Eleventh Circuit Affirms AseraCare?

January 2, 2019 | Little Health Law

US-SUP-CT 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.