Medicare Patient PT Supervision is Confusing

attack-of-the-mole people tshirt

 Physicians with Florida medical practices that provide physical therapy must feel at times they are playing “Whack a Mole,” given the many changes to the applicable rules and regulations, especially those that pertain to Medicare patients.  Is it ok for a physical therapy assistant (PTA) to provide the services?  Can the practice provide PT to people who are not patients of the practice?  Does a physician have to be on premises when PT is provided?  It’s just complex.

Let’s start with a couple fundamentals:  first, medical practices that comply with the so called “group practice” exceptions (under both state and federal law) are permitted to provide PT to their own patients.  They are more accurately known as the “In Office Ancillary Services Exception,” but most refer to them as described above.  These exceptions dictate, for instance, the form of the practice and how much time each physician has to spend practicing through the group.  For instance, if the practice does not have at least two of the following, it does not meet the group practice requirements:  physician owner; physician W-2 employee.  Second, PT falls under both the state and the federal definitions of “designated health service” (DHS).  DHS are services that are regulated by the Stark Law and also (at the state level) by the Florida Patient Self Referral Act of 1992 (FPSRA).  They are very similar laws, but with some key differences.  Where many physicians go wrong is to ensure compliance with federal laws but not state or vice versa.

Why is it important to know that this discussion is confined to Florida “group practices” providing PT to Medicare patients?  First, because the laws that apply to group practices are different that those that apply to reference PT businesses.  Businesses that only provide PT are not nearly as regulated as medical practices (especially those in Florida) that provide both medical services and PT to their own patients.  For instance, the issue of “outside referrals” does not arise with respect to reference PT businesses.  Second, because when Medicare patients are involved, both state and federal law come into play.  While state law applies to all services provided in Florida, federal law only comes into play when federal or state healthcare program dollars are involved.

Medical practices in Florida that provide DHS (like PT) to their Medicare patients have to comply with both state and federal law.  And those laws are different.  For instance, while federal law allows up to 25% of the time of doctors in a group practice to be spent providing services outside the group, state law is not so clear.  For instance, federal law allows a practice to provide DHS to a certain amount of patients who are not patients of that group practice (“outside patients), but Florida law allows that sort of flexibility only for “diagnostic imaging services” (up to 15%).  If, for instance, a Medicare patient from Dr. Smith down the street comes to your office only to get the PT your practice provides to its patients (i.e. they are not a patient of your practice), that patient will be turned away.  Isn’t it ok for a Florida medical practice to provide just PT to someone else’s Medicare patient?  No, because state law does not allow it.

Similarly, under federal law, a physician complies with certain supervision requirements if he or she is in the building where the medical practice is located while a Medicare patient receives DHS.  In Florida, the physician in a group practice is required to be in the office (not just the building) when a Medicare (and every other) patient receives DHS in order to comply with the stricter “direct supervision” requirement applicable to patients in Florida that receive DHS (all DHS, not just PT) from a group practice.

Once a physician clears those regulatory hurdles, how can a doctor bill for PT?  Essentially, there are two ways:  under the provider number of the physical therapist or under the provider number of the supervising physician.  The situation gets even more complex when a physical therapy assistant (PTA) gets involved.

Can a Florida medical practice bill under the provider number of a supervising MD for PT provided by a PTA to a Medicare patient?  No.  While applicable law requires an MD or DO to be on premises when a Medicare patient receives PT from the group practice, services provided by a PTA are considered by CMS to be included as part of the covered service under Section 220 and 230 of the Medicare Benefit Policy, Chapter 15.  A Florida doctor may not lawfully supervise the services of a PTA, since PTAs (under federal law) that provide services in a medical practice must be directly supervised by an RPT.

There are also state laws that need to be followed, they differ based on physician specialty.  For instance, a PTA employed by a physician other than a board certified orthopedist, physiatrist or chiropractor certified in physiotherapy must be under the onsite supervision of an RPT.  Though inapplicable to Medicare, there is no provision in Florida law that allows a chiropractor to supervise a PTA.

What about if the PT services are provided by a registered physical therapist (RPT)?   Though CMS does not recognize the term RPT, it does allow the services of a “qualified professional,” which includes a licensed physical therapist, to be billed either under the physical therapist’s provider number or “incident to” the services of the supervising MD or DO.   “Incident to” services are services that are so integral to the services provided personally by the physician that they can be billed to Medicare as though the physician provided the service, even when the physician didn’t provide them.  To comply with the rule (and for the doctor to be able to bill for it as though he or she did provide the service), the services must be:

1.         An integral though incidental part of the physician’s service in diagnosing or treating an illness or injury,

2.         Commonly furnished without charge or included in the physician’s bill;

3.         Commonly furnished in a physician’s office or clinic;

4.         Furnished under the physician’s direct supervision (e.g. physical presence in the office);

5.         Furnished by the physician, practitioner with an incident to benefit or auxiliary personnel.

Though the incident to services rule is materially different from the Florida “direct supervision” requirement under the FPSRA, its effect is very similar:  an MD or DO must be physically present on the premises of the office when a patient receives DHS and it is billed under the provider number of the supervising physician.  One might argue that the PT’s services could be billed under the PT when the MD or DO is not on premises, but this conflicts with the direct supervision requirement of the FPSRA.

What’s the Analysis?

To comply with the State and Federal supervision requirements, group practices in Florida that provide PT to their Medicare patients must ask themselves at least the following questions:

1.         Does my practice comply with the state and federal “group practice” requirements? and

2.         Is an MD or DO in the office when the patient receives PT?  If not, the PT may not be provided at all, since all PT in Florida group practices require direct supervision by a physician.

What are the Penalties?

At the very least, doctors who fail to comply with the supervision requirements for DHS risk (1) AHCA licensure actions; (2) having to repay the money received when they did not comply; (3) having to pay stiff fines, and in some instances (4) criminal prosecution.  There have been many reported cases of physicians being investigated and fined for failing to meet the supervision requirements.  And there have been numerous instances of physicians being prosecuted for failing to meet the “incident to services” rule.

            If you provide PT to your patients, you must be clear about (1) the “group practice” exception provisions that allow you to provide DHS to your patients, and (2) the State and federal supervision requirements.  There is simply too much at stake not to.  Additionally, physicians ought to develop clear and easy to use written guidelines for compliance.

Download a Quick Guide to PT Supervision HERE

Super Group Doctors Beware of Departure Provisions

Healthcare Professionals

 Super groups are in vogue as physicians do their best to reduce costs and enhance revenues.  A “super group” is essentially a collection of previously separate competitors who have joined a single legal entity in order to achieve certain advantages.  Those advantages tend to be (1) reducing overhead expense associated with economies of scale.  Buying insurance for a group of 100 doctors should be far less expensive per doctor than a group of three doctors; (2) gaining leverage in managed care contracting.  20 groups of five physicians each cannot contract with a payer with “one voice” due to the antitrust restrictions, but a single group of 100 doctors can; and (3) finding new revenue sources.  Small groups and solo practices cannot afford revenue producing services like surgery centers, imaging services and such.   When practices combine, they have a greater patient base, which makes the development of new revenue sources feasible.

Physicians join super groups with terrific promise and hope.  They are clearly a good idea, especially if they have solid operations.  That said, physicians who rush to form them rarely consider the risks associated with a physician departing the group.  They need to!

When a doctor joins a super group, she stops billing through her old practice (the “P.A.”) and starts billing through a new group (the “LLC”).  The LLC has a tax ID number and a Medicare group number.  And the LLC enters into lots of managed care payer agreements.  Simply put, the doctor puts all of her eggs in the LLC basket.  So what’s the risk?

When physicians depart super groups, they have to confront difficult facts, like:

  1. It will take months to get a new Medicare provider number.  If they haven’t billed through their “old entity” for a while, that number is gone.  And getting a new number for the departing physician takes time, during which revenues associated with Medicare patients are lost (until the number is obtained);
  1. It takes even longer to get on insurance plans.  If the LLC is contracted (they usually are), how long will it take to get the P.A. fired back up?  It can take as long as six months (and sometimes even more)?  That means the departed doctor is out of network with all the plans!  This exposes her patients to higher costs and may affect referral patterns.  This alone can be crippling to a physician who has left the super group.
  1. Leaving can also mean ending access to patient scheduling and electronic medical records.  Many super groups do not ensure access to patient scheduling or billing to enable a departing physician to get back on their feet; and this can be devastating.
  1. Noncompetes can play a big role in how a departing physician gets back on her feet.  Ideally she will know that being solo is not as good as being part of a larger practice.  But what if the super group imposes a restriction on the departing physician that prevents her from being part of another group?  This is common and often very harmful, since some physicians who depart super groups have no effective options but to join other groups.

Super groups exist to benefit physicians.  It makes no sense that they would be used to harm them, which is precisely what can happen (and sometimes does happen) if physicians do not pay good attention to the “back end” as well as they do to the “front.”  That means things like—

  1. Making sure that, wherever possible, the departing physician is afforded enough time to get back on her feet professionally.  She will need time to get a new practice formed, to get a new Medicare provider number and to get back on insurance plans;
  1. Ensuring the departing physician has adequate access to medical and scheduling records;
  1. Carefully considering whether or not noncompetes make any sense.  Some may say that it is important to protect the new practice (like the old one), but these are different sorts of practices.  They are not built from the ground up.  They are built because successful competitors who have been in business for years decided essentially to “loan” their practices to the super group in order to obtain certain unique advantages.

Super group arrangements continue to grow.  Some of them even develop into fully integrated and sophisticated businesses.  Physicians who join them have to consider all “angles,” not just how good it will be or can be when they join.

OIG Approves Healthcare Coupon Website

The economy has heated up the marketing activity of many healthcare businesses, including physicians. Marketing devices like Groupon have become commonplace, but raise some significant legal issues. So.one such business requested guidance from the Office of the Inspector General of the Department of Health and Human Services and got a nice response.

The requestor operates a website that includes coupons for healthcare items and services and also advertising on behalf of individuals and businesses in the healthcare industry. The healthcare professionals and business people would post coupons on the website, which would give discounts, including discounts on items and services that are covered by Medicare and other state or federal healthcare programs. The website business would have different levels of membership and would charge flat fees for each level of membership. Additionally, the requestor would sell advertising on the website.

The arrangement had certain limitations, including:

1. The providers would not advertise free services, only discounted services; and
2. The providers would be required to give the same discount to any third party payer or insurance carrier, not just to the patient.

The OIG approved the proposal and noted the following key things:

1. The requestor is not a healthcare provider;
2. Payments from providers and advertisers are a set fee, are consistent with fair market value and don’t depend on customers (patients) using coupons or buying services;
3. Advertising would only be received by customers that elected to receive it; and
4. The business structure is not likely to increase utilization.

In short, the OIG thought the requestor was serving only as a conduit of advertising and was not paying anyone to influence any patient’s choice of a provider or supplier.

HHS PROPOSES ONE-YEAR DELAY OF ICD-10 COMPLIANCE DATE

Via CMS Online 4-9-2012

Action:

The Department of Health and Human Services (HHS) today announced a proposed rule that would delay, from October 1, 2013 to October 1, 2014, the compliance date for the International Classification of Diseases, 10th Edition diagnosis and procedure codes (ICD-10).

The ICD-10 compliance date change is part of a proposed rule that would adopt a standard for a unique health plan identifier (HPID), adopt a data element that would serve as an “other entity” identifier (OEID), and add a National Provider Identifier (NPI) requirement. The proposed rule was developed by the Office of E-Health Standards and Services (OESS) as part of its ongoing role, delegated by HHS, to establish adopt standards for electronic health care transactions under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). OESS is part of the Centers for Medicare & Medicaid Services (CMS).
Background

On January 16, 2009, HHS published a final rule to adopt ICD-10 as the HIPAA standard code sets to replace the previously adopted ICD–9–codes for diagnosis and procedure codes (see HIPAA Administrative Simplification; Modifications to Medical Data Code Set Standards to Adopt ICD-10-CM and ICD-10-PCS, 74 FR 3328). The compliance date set by the final rule was October 1, 2013.

Implementation of ICD-10 will accommodate new procedures and diagnoses unaccounted for in the ICD-9 code set and allow for greater specificity of diagnosis-related groups and preventive services. This transition will lead to improved accuracy in reimbursement for medical services, fraud detection, and historical claims and diagnoses analysis for the health care system. Many researchers have published articles on the far-reaching positive effects of ICD-10 on quality issues, including use of specific reasons for patient non-compliance and detailed procedure information by degree of difficulty, among other benefits.

Some provider groups have expressed serious concerns about their ability to meet the October 1, 2013 compliance date. Their concerns about the ICD-10 compliance date are based, in part, on implementation issues they have experienced meeting HHS’ compliance deadline for the Associated Standard Committee’s (ASC) X12 Version 5010 standards (Version 5010) for electronic health care transactions. Compliance with Version 5010 is necessary prior to implementation of ICD-10.

All covered entities must transition to ICD-10 at the same time to ensure a smooth transition to the updated medical data code sets. Failure of any one industry segment to achieve compliance with ICD-10 would negatively impact all other industry segments and result in rejected claims and provider payment delays. HHS believes the change in the compliance date for ICD-10, as proposed in this rule, would give providers and other covered entities more time to prepare and fully test their systems to ensure a smooth and coordinated transition among all industry segments.

Provisions of the proposed rule announced today

HHS is proposing to change the ICD-10 compliance date to October 1, 2014.

As stated, the ICD-10 compliance date change is part of a proposed rule that would adopt a standard for a unique health plan identifier (HPID), adopt a data element that would serve as an “other entity” identifier (OEID), and add a National Provider Identifier (NPI) requirement.

Standards compliance date

HHS proposes that covered entities must be in compliance with ICD-10 on October 1, 2014.

The proposed rule, CMS-0040-P, may be viewed at www.ofr.gov/inspection.aspx.

A news release on the proposed rule may be viewed at http://www.hhs.gov/news.

10 Lesser Known Effects of Healthcare Reform Law

This is a great article published by CNN this morning.

View it in it’s entirety Here

(CNN) — On Monday, the U.S. Supreme Court takes on a political, social, economic and medical hot potato: the health care reform law that was signed into law two years ago.

For six hours during each of the next three days, attorneys will argue and justices will consider legal questions about the constitutionality of the Affordable Care Act’s individual mandate and issues surrounding federal versus state powers.

Read a transcript of Monday’s Supreme Court arguments

Many of the law’s major aspects have been the topic of much discussion. But are you aware that deep within the sweeping law’s 2,700 pages are many lesser known changes that could affect your life in unexpected ways?

CNN Explains: Health care reform

1. How many goodies your doctors get

Is your doctor prescribing you certain drugs because those are the best for your condition or because of a pharmaceutical company’s influence? Here’s one way you can find out.

The Physician Payment Sunshine Act under health care reform requires drug, device or medical supply companies to report annually certain payments or things of value that they’ve given physicians and teaching hospitals. This could be speaking fees, consulting fees, meals and travel. So, you can find out which and how much companies pay doctors or health care workers. The companies are obligated to report annually about physician ownership and their financial investments.

Continue Reading Here

Supreme Court Weighing Healthcare Reform Law

So many questions, so few answers. But the answers are coming! Here are some of our favorite stories out right now:

Via Yahoo News, Liz Goodwin, The Lookout

Could President Obama’s sweeping health care reform law survive if the court strikes down the requirement that all Americans buy insurance?

The short answer is yes — but insurance companies certainly won’t be happy about it.

Both Justice Department lawyers and their challengers agree that the individual mandate is not “separable” from the rest of the law, which means the rest of the law can’t survive if the individual mandate is surgically removed by the court.

The lower courts have been split on the question, but one of them, the 11th Circuit Court of Appeals, ruled in August that only the mandate should be struck down, leaving the rest of the law’s provisions — including an expansion of Medicaid to cover all low-income people and federal subsidies for lower-income and middle-class people to buy insurance — in place.

That decision no doubt sent shivers down the spines of some insurance executives. Striking down the mandate could be a nightmare scenario for the health insurance industry, since the rest of the law compels them to accept sick customers and to not charge higher premiums based on a customer’s health, age or gender. Sick customers would flood the insurance market and drive up costs, while young, healthy uninsured people would take their chances and not buy coverage, in what insurers worry would be a “death spiral” of rising costs.

Via The Associated Press, Boston Herald 

DONALD B. VERRILLI JR.

Verrilli is solicitor general of the United States, the government’s official representative in front of the Supreme Court. He was confirmed to his position last June as the replacement for Justice Elena Kagan after serving as associate deputy attorney general and an associate White House counsel in the Obama administration. A graduate Columbia Law School, where he served as editor-in-chief of the Columbia Law Review, he was a law clerk for Justice William J. Brennan, Jr. and a partner at Jenner & Block, where he co-chaired the firm’s Supreme Court practice. He has argued more than a dozen times before the Supreme Court, and worked as an adjunct professor at Georgetown University Law School from 1992 through 2008. In 1994, as special counsel to President Bill Clinton, he assisted in the confirmation process for Justice Stephen Breyer.

Official biography: http://www.justice.gov/osg/meet-osg.html

___

PAUL CLEMENT

Clement is a former solicitor general, having served in that position for President George W. Bush. When confirmed, he was the youngest solicitor general in 115 years at age 38. Clement graduated magna cum laude from Harvard Law School one year behind Obama, and clerked for Justice Antonin Scalia. He has argued more than 55 cases at the Supreme Court, and served as the chief counsel of the U.S. Senate Subcommittee on the Constitution, Federalism and Property Rights. A partner at Bancroft PLLC, he is a Georgetown University law professor and a former partner at King & Spalding. He resigned from there after the firm decided not to continue its representation of the U.S. House of Representatives in its attempt to defend the Defense of Marriage Act. Clement was one of the lawyers who made the successful argument in front of the 11th U.S. Circuit Court of Appeals in Atlanta that would strike down the law’s core requirement that individuals carry health insurance or pay a penalty

Official biography: http://www.bancroftpllc.com/professionals/paul-d-clement/

___

MICHAEL A. CARVIN

Another former Justice Department official, Carvin’s most famous argument was delivered to the Florida Supreme Court on behalf of soon-to-be President George W. Bush in the Florida recount controversy during the 2000 presidential election. A graduate of George Washington University’s law school in 1982, Carvin has worked as deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, which is responsible for legal opinions that are binding on the Executive Branch, deputy assistant attorney general and special assistant to the assistant attorney general in the department’s civil rights division. He will be representing the National Federation of Independent Businesses, which was a party to the lawsuit in the 11th U.S. Circuit Court of Appeals in Atlanta that struck down the law’s core requirement that individuals buy health insurance or pay a penalty.

Official biography: http://www.jonesday.com/macarvin

Richard Wolf, USA Today, via the Pensacola News Journal

WASHINGTON — Health coverage for more than 30 million people. The power of Congress to regulate interstate commerce. President Obama’s re-election chances. The reputation of the Supreme Court and the legacy of its chief justice.

And to hear some tell it: liberty.

All that and more could be at stake today when the Supreme Court begins a historic three days of oral arguments on the 2010 health care law that has become a symbol of the nation’s deep political divide.

All that and more could be at stake today when the Supreme Court begins a historic three days of oral arguments on the 2010 health care law that has become a symbol of the nation’s deep political divide.

Not since the court confirmed George W. Bush’s election in December 2000 — before 9/11, Afghanistan and Iraq, Wall Street’s dive and Obama’s rise — has one case carried such sweeping implications for nearly every American.

STAY TUNED!

CMS Clarifies Place of Service (POS) Coding Requirements

Billing Medicare for services requires the correct POS code on the claim form. Improper use of the POS code has been a problem, especially when services are provided in out-patient hospitals and surgery centers. The OIG has found many circumstances where such services were provided in those facilities were billed as though services were provided in the physician office. The POS code is intended to identify where the physician is physically present and has a face to face encounter with a Medicare patient when covered services are provided.

CMS has issues revised and clarified POS coding instructions. They give multiple examples, including one where a Medicare patient receives MRI services at a hospital. The hospital bills the technical component . The physician is to submit a claim showing the professional component POS as his/her office (code 22), since that is where the physician performed the covered service, not the MRI center at the hospital. The Instructions describe the proper use of POS modifiers and are invaluable in avoiding liability to Medicare.


OIG SLAMS TRUSTING DOCTORS WHO LET OTHERS BILL FOR THEIR SERVICES

Physicians who allow other people or entities to bill for their services are taking a risk. Settlements with eight physicians whose provider numbers were used unlawfully by entities they worked for prompted the OIG to issue an Alert on February 8th. The Alert basically says that physicians who assign to others (e.g. 855R) the right to bill for the services of the physicians will be responsible for the wrongful actions of those using the doctors’ provider numbers. Ignorance will likely not be a good excuse any longer.

What does all this mean to doctors? Simple: VERIFY REGULARLY. If you assign to any person or entity the right to bill for your services, you MUST routinely check to see if they are billing correctly. The fact that some person or entity may bill wrongfully, even fraudulently, without your direct knowledge, will not protect you from liability. Make sure (1) you have written agreements for all arrangements that involve any person or entity billing for your services, and (2) those contracts contain indemnification provisions in case you have to hire a lawyer or pay anything to the government for their wrongdoing.


Noncompetes Are Once Again Relevant For Recruited Doctors

NON COMPETE AGREEMENTS TEXAS COURTS DALLAS

When the Stark II (Phase III) regulations were released in August, 2007, they clarified that when a hospital recruits a physician to a medical practice, the employment agreement between the medical practice and the newly recruited physician may contain practice restrictions as long as they do not “unreasonably restrict the recruited physician’s ability to practice medicine within the recruiting hospital’s service area. This stymied many medical practices which were reluctant to hire a new physician without a noncompete and nonsolicitation provision. A 2011 CMS Advisory Opinion (No. CMS-AO-2011-01) changed this.

The Advisory Opinion involved a pediatric orthopedist who was recruited by a hospital to a medical practice. The medical practice wanted to hire the new doctor, but was not willing to do so without a noncompetition provision and other restrictive covenants. The practice asked CMS for guidance because the Stark regs suggested that perhaps a noncompete could not be contained in the employment agreement of a physician recruited by a hospital to join a local medical practice. In fact, a prior version of the Stark regs was clear that noncompetes were not permitted in the employment agreements of physicians recruited by hospitals.

Hospital recruitment transactions involve bringing a physician into a new area and funding the start up period (usually a year). The nice thing for a medical practice is that the dollars given by the hospital to the practice (the difference between salary and benefits and collections) can run into the hundreds of thousands of dollars! The down side was that the medical practice could not tie the recruited physician’s hands with a noncompete or other similar restriction. The Advisory Opinion is, however, a game changer because it allowed the medical practice to impose a noncompete on the recruited physician.

As mentioned, the practice would not hire the recruited physician without the noncompete. The noncompete had a 25 mile radius, and the Opinion cited the following relevant facts:

1.The recruited doctor would remain on one of five hospitals within the 25 mile zone;
2.The recruiting hospital’s service area extended beyond the 25 mile zone, in which there were at least three other hospitals within a one hour driving range;
3.The noncompete complied with applicable state law.

Based on these facts, the OIG permitted a one year noncompete because it did not “unreasonably restrict the doctor’s ability to practice in the recruiting hospital’s service area. Certainly, many other medical practices can be sure to follow suit.

Physicians interested in nocompetes must be familiar with state law. Getting to the bone of the issue, noncompetes are enforceable in Florida if:

1.The geographic zone in the noncompete is reasonable. This depends on where the practice draws its patients. If patients come to the practice from just down the street, a ten mile radius is probably overbroad;

2.The duration is two years or less (though it can be longer in some limited circumstances);

3.The employer has complied with all of the terms of the employment agreement. If the employer has breached the contract that contains the noncompete, most courts will reject a claim to enforce it;

4.The employer does the type of thing that the departing employee does. If the employee is the only person performing toe surgery for instance, and the practice will not provide toe surgery services once the employee leaves, the practice probably does not have a legitimate business interest to protect by enforcing the noncompete; and

5.Stopping the ex employee from practicing in the geographic zone does not create a healthcare crisis or shortage. This is tough. Very few practice areas are in such dire straits that the departure of one doctor will adversely affect the provision of such services in the area.

Physicians should also be familiar with the practical aspects involved in noncompetes.

Mistake #1 – Racing to litigation

Going to court is a crap shoot. Once litigation begins, it takes on a life of its own and costs can be nuts, sometimes in the hundreds of thousands of dollars. You may think it’s a simple noncompete case. There rarely is such a thing. And if you sue someone on a noncompete breach, they may turn around and sue you in the same lawsuit for something. And….insurance does not cover any such claims. That means you are paying out of pocket for a lawsuit, the certainty of which can never be guaranteed and which will seem endless once you run out of patience or money for the process. Often, the reality is that noncompete litigation involves the strategy or seeing which party can outspend the other one.

If you are an employer, ask yourself the following two questions before commencing litigation:
1.Does it make good economic sense to enforce the noncompete? Is the former employee a business threat?

2.Is there a way to work out a deal with the employee, short of litigation?

In some situations, it makes no business sense to pursue a noncompete. For instance, if the employee has been employed for several months and if the patients are all referred by the employer, then the employee may not be a competitive threat to the employer. The employer will find a replacement doctor at some point and refer the business to the new doctor. Case closed.

It is also possible to work out settlements before going to court. For instance, you might avoid litigation by lowering the geographic zone or the duration. You might also negotiate a buy out of the noncompete.

If you are an employee who wants out of the noncompete, sit down with the employer and see if you can agree on a way out, so that both of you can have peace and move on.

Mistake #2 – Doing it Yourself

Noncompetes are governed by state law. There are both statutes and cases that inform lawyers about what types of noncompetes are enforceable and which are not. Do not work off of an old contract to create a new noncompete, since the laws (and the cases that construe them) change often. Do not use a friend’s noncompete, since you will not be able to tell if it will be enforceable at this time or under the circumstances that apply to you. The enforceability of noncompetes is extremely fact specific. Since noncompetes are strictly construed by courts, drafting them requires a trained eye.

The Advisory Opinion marks a significant development in the area of noncompetes for physicians recruited to medical practices by hospitals. Though some states do not allow noncompetes to be applied to physicians, many states do, including Florida. Finding a way to satisfy both the federal and state authorities will be essential for ensuring an effective and enforceable noncompete.


Representative Corcoran's HB 1329 Signage and Balanced Billing

Bill Tracking Spyglass

Imagine this: the Florida Legislature believes that consumers need to be protected from unscrupulous business practices by physicians and facilities (including physicians, hospitals and surgery centers) and will require things like (1) publishing charges with huge signage, and (2) informing consumers how charges compare to hospital imaging center charges. Failure to do so will subject the physicians and the centers to civil fines of $1,000/day is grounds for professional discipline. The Bill also holds insurers responsible for paying for medical services, but not where the provider doesn’t have a contract with the insurer. This leaves out of network providers out in the cold and will mean significant notice requirements being imposed on all providers.

View the bill in it’s entirety HERE