Pennsylvania Legislation

As of February 4, 2016, out-of-state athletic team physicians are permitted to provide care to their own team’s players while in Pennsylvania.  Pennsylvania Senate Bill 685 and 686 amend the Medical Practice Act of 1985 and Osteopathic Medical Practice Act of 1978, to provide a limited exemption to physicians to practice without licensure in Pennsylvania.  In order to qualify for the exemption, the physician must be licensed in good standing in his/her home state, and have an agreement with the sports team to provide care while the team is in Pennsylvania.  The exemption lasts for up to ten (10) days per sporting event.  However, if physicians believe they need the exemption to last longer, they can request that the appropriate board provide an extension for up to twenty (20) additional days.

There are other limitations to the exemption.  Out-of-state physicians are not permitted to provide care at a health care clinic or health care facility, including an acute care facility.  Also, out-of-state physicians are not permitted to prescribe medications, under the exemption.

The legislation is based off of model legislation provided by the Big 10 Conference.  It is meant to afford teams the ability to have physicians that are already familiar with their players to actually provide consultation and care on the sidelines.  Pennsylvania becomes the 22nd state to enact such legislation.

Previously on the Fox Rothschild Physician Law Blog, we reported on the July 2015 amendments to the PA Child Protective Services Law.  See our August 31, 2015 post here:  What You Need to Know about PA’s Child Protective Services Law.  In particular, we noted that the PA Medical Society interpreted the amendments to the Law as requiring all health care practitioners and practice staff having direct contact with children to obtain child abuse clearances.

After further review of the Law and consultation with the PA Department of Human Services (DHS), the PA Medical Society issued a retraction of its prior statement.  On December 1, 2015, the PA Medical Society reported that it had confirmed with the DHS that physicians and other employees of a medical practice or hospital (including administrative employees) are not required to obtain child abuse clearances under the Law.  See the PA Medical Society’s Clarification here:  PA Medical Society Child Abuse Clearances Clarification.

Although the Law used to require physicians (and other health care practitioners) to obtain child abuse clearances, the July amendments to the Law limited the clearance requirement to certain programs, activities and services.  As a result, a long-standing rule that physicians must obtain child abuse clearances appears to have been eliminated.

In our post, we also reported that the PA Department of Health (DOH), which licenses hospitals and other health care facilities, had continued to require such facilities to ensure that their health care practitioners obtained child abuse clearances, even after the amendments were passed.  The DOH has not yet confirmed its position on the Law after the recent clarification by the DHS.

While the Law appears not to require health care practitioners to obtain child abuse clearances in Pennsylvania, be sure to consult your legal counsel before making an administrative decision for your practice or health care facility.

As a follow up to our most recent post on What You Need to Know About PA’s Child Protective Services Law, you should know that the Pennsylvania Superior Court (PA’s primary appellate court) recently held that a physician may be sued for malpractice for failing to report suspected child abuse, even though there is not an express right to sue a physician for failing to report such abuse under the PA Child Protective Services Law (the “Child Abuse Law”).

You likely know that the Child Abuse Law requires any licensed or certified health care practitioner to immediately report suspected child abuse to the Department of Human Services electronically or by phone when the individual has reasonable cause to suspect that a child is a victim of abuse.  23 Pa. C.S. § 6311(a).  A health care practitioner may have reasonable cause to suspect child abuse from contact with the child in the practitioner’s practice or from a specific disclosure to the health care practitioner by the child or an individual unrelated to the child.  23 Pa. C.S. § 6311(b).  If the health care practitioner willfully fails to report suspected child abuse, the practitioner commits a misdemeanor of the second degree.  If the abuse suffered by the child constitutes a first degree felony or more severe crime, the health care practitioner commits a third degree felony.  23 Pa. C.S. § 6319(a).

In K.H. v. Kumar, the PA Superior Court was presented with the sad case of an infant’s severe brain injury from child abuse that went repeatedly unreported by the infant’s physicians.  The trial court held that the physicians could not be sued for malpractice because the Child Abuse Law, which expressly creates a duty for physicians to report suspected child abuse and establishes criminal penalties for a failure to do so, does not expressly permit non-reporting physicians to be sued in civil court for malpractice.

However, upon review, a unanimous three-judge panel from the PA Superior Court overturned the lower court’s ruling and held that the Child Abuse Law does not prevent physicians from being sued for malpractice for their failure to report suspected child abuse.  The Court noted that the Child Abuse Law does not expressly prohibit suits for malpractice against non-reporting physicians, and emphasized that physicians have a duty of reasonable care to their patients as a result of the physician-patient relationship.  Whether a particular physician fails to meet that duty of care is a question for the jury, not the judge to decide.

Notably, the Court also held that the hospital that employed the physicians could be found negligent for failing to have appropriate policies and procedures in place for the retention and availability of patients’ prior radiological studies.  This is an important warning to medical practices and health care institutions, which should ensure that they have policies and procedures in place to give their physicians ready access to all patient records that could indicate prior physical abuse to a minor patient.

In the conclusion of its opinion, the Court quoted the Hippocratic Oath and its sentiments recognizing that treatment of a patient involves consideration of the patient’s family situation.  The Court emphasized that these sentiments are central to the intent of the sections of the Child Abuse Law requiring health care practitioners to report suspected child abuse.

The full-text of the eloquently written case is accessible at this link:  http://www.pacourts.us/assets/opinions/Superior/out/j-a08018-15o%20-%201023340425279130.pdf#search=%22k.h. kumar%22.

The Takeaway:  Any health care practitioner who has a reasonable suspicion that his or her minor patient has suffered child abuse should not hesitate to report the abuse immediately.  Willfully failing to report the abuse is a crime and can result in civil liability.  Health care institutions should also ensure that policies and procedures are in place to give physicians ready access to patient records that could indicate patterns of child abuse.

To report suspected child abuse in PA, go to www.compass.state.pa.us/cwis or call (800) 932-0313.

As of December 1, 2015, the PA Medical Society has retracted its opinion that physicians, health care practitioners and practice staff must obtain child abuse clearances under the PA Child Protective Services Law.  The PA Department of Human Services has also informally agreed that such practitioners and staff are not required to obtain clearances.  Please see our updated post on this issue at: PA Child Abuse Clearances Update

In addition, as always, be sure to consult your legal counsel for legal advice.

Pennsylvania’s Child Protective Services Law received a major overhaul after the Penn State child abuse scandal.  On July 1, 2015, Gov. Wolf signed into law the third, and perhaps final, legislation on the matter.  The new legislation broadens the scope of individuals who must obtain and maintain child abuse clearances.

If you’re a physician or an administrator of a health care facility, you’re probably interested in whether your non-professional staff must obtain and maintain clearances.  You may also want to know what the law requires, now that it has been revised.

Here’s a snapshot of the key aspects of the law that are applicable to physician practices and health care facilities:

Who is Required to Obtain and Maintain Clearances?

  • Here is the new, revised definition: Any volunteer or any individual applying for or holding a paid position as an employee who has direct contact with children must obtain and maintain current child abuse clearances.  “Direct contact with children” includes (1) the care, supervision, guidance or control of children, or (2) routine interaction with children, which is defined as “regular or repeated contact that is integral to the individual’s employment or volunteer responsibilities.”
  • “Regular or repeated contact” does not have to be with the same child, so the definition can be seen as encompassing any (1) health care professional who provides patient care, and (2) administrative staff that have direct contact with children (such as front desk staff).
  • The PA Medical Society (although it does not have any legal authority) agrees that administrative staff of a physician practice or health care facility having contact with children as a result of their job responsibilities should obtain and maintain the necessary clearances. [Accessible here: http://www.pamedsoc.org/MainMenuCategories/Laws-Politics/Analysis/Laws-Analysis/Child-abuse/Child-abuse-reporting-2.pdf]  This interpretation of the law is also consistent with recent FAQs issued by the PA Department of Human Services, which provide that child safety should serve as the “paramount consideration” of any employer when determining if an applicant or employee must obtain and maintain clearances.  [Accessible here: http://keepkidssafe.pa.gov/cs/groups/webcontent/documents/document/C_135246.pdf ]

What Must Employers Do?

Regarding applicants, employers must:

  1. Require all applicants covered by the law to produce the required clearances before the applicant accepts or commences employment (whichever is earlier).
  2. Require the employee to provide a written statement that the individual has not been disqualified from employment or convicted of certain felonies (which include child-related felonies and controlled substances-related felonies, among others) (the “Felonies”) since the date of the clearances.
  3. Deny employment to any applicant who has been convicted of one of the Felonies (with certain minor exceptions).

For existing employees who do not have clearances, employers must require such employees to obtain and submit the required clearances to the employer by December 31, 2015.  (The employees also have this obligation.)

For existing employees who have the necessary clearances, employers must require the employees to update their clearances every 60 months.  If the employee’s clearances are currently older than 60 months, then the employer must require the employee to update the clearances by December 31, 2015.  (The employees also have this obligation.)

Other important responsibilities of the employer:

  • Employers must ensure that covered employees maintain the required clearances throughout their employment.
  • The employer must require any covered employees to submit updated clearances to the employer if the employer has been notified or has a reasonable belief that the employee was arrested or convicted of one of the Felonies or was named a perpetrator in a founded or indicated child abuse report.
  • The employer must discipline or terminate an employee who fails to report to the employer within 72 hours after being arrested or convicted of one of the Felonies or for being named as a perpetrator in a founded or indicated child abuse report.
  • The employee is responsible for paying for the clearances; however, an employer may reimburse the employee or set up accounts with the agencies generating the clearances in order to pay for the clearances of all of the employer’s employees.

Note that any obligation of the “employer” discussed above to require an employee to obtain or maintain clearances is also an obligation of the individual responsible for employment decisions for the employer (e.g., the administrator or supervisor).

Penalties for Employers

If the employer (or the person responsible for employment decisions for the employer) “intentionally fails” to require an applicant or an existing employee to submit the required clearances, the employer (and the person responsible for employment decisions) commits a misdemeanor of the third degree, which is punishable by imprisonment for up to one (1) year and a fine of up to $2,500.

What Clearances are Required?

  • State criminal history report from the Pennsylvania State Police
  • Child Abuse History Certification from the PA Department of Human Services (previously the Department of Public Welfare)
  • Fingerprint-based federal criminal history report (which may be obtain through the State Police or FBI)

Final Thoughts

Keep in mind that the Child Protective Services Law does not restrict Pennsylvania agencies, such as the Department of Health, from using part or all of these restrictions (or additional restrictions) for the agency’s own purposes.  For example, the Department of Health may require certain professionals or staff of health care facilities (including independent contractors) to obtain and maintain the necessary clearances in order for the facility to receive DOH licensure.

Note also that this law has similar provisions that apply to volunteers of physician practices or health care facilities having direct contact with children.

We recommend that you consult your legal counsel for legal advice specific to your situation prior to taking any actions under the law.

A new provision in the Pennsylvania Health Care Facilities Act will take effect on June 1, 2015 requiring healthcare facility personnel, physicians in private practice and their employees to wear name badges while treating patients.  Specifically, the rule applies to the following categories of practitioners and personnel:

  • Employees and physicians working at health care facilities licensed by the Department who provide direct care to patients or consumers;
  • Employees and physicians working at the private practice of physicians who provide direct care to patients or consumers; and
  • Employees and physicians working at an employment agency who provide direct care to patients and consumers.

The badges must include:

  • A recent photograph of the employee
  • The employee’s name
  • The employee’s title
  • The name of the employee’s health care facility or employment agency

The title of the employee shall be as large as possible in block type and shall occupy a 1/2-inch tall strip as close as practicable to the bottom edge of the badge.

  • Medical Doctors and Doctors of Osteopathy must use the title ”Physician”.
  • Registered Nurses must use the title ”Registered Nurse” and Licensed Practical Nurses must use ”Licensed Practical Nurse”.

For more information, see the May 16, 2015 Pennsylvania Bulletin.

These days, more often than not, physicians and up on the short end of the stick when it comes to new health care legislation. However, last month a bill was introduced by Senator David Argall which, if passed, would give physicians and other healthcare providers important protection against retroactive insurance denials. Specifically, Senate Bill No. 554 would limit the period during which insurance companies could retroactively deny payment to 12 months after the date of the original payment. This would mean that if a payor makes payment on a claim, it would have only 12 months to later seek to recoup that payment if coverage is retroactively denied. The only time this rule would not apply as if the claim is fraudulent or improperly coded. The bill, which has been referred to the Banking and Insurance Committee can be viewed on the Pennsylvania Senate website.

Physicians in Pennsylvania who have been dispensing and billing for prescription drugs under the Pennsylvania Workers’ Compensation program will be disappointed to learn that House Bill 1846 (which already passed the House) was approved by the Pennsylvania Senate yesterday, essentially clearing the way for the bill to be signed into law.  HB 1846, among other things, limits the amount a physician may charge for drugs under the Workers’ Compensation program to 110% of the Average Wholesale Price of the drugs.  The Bill also limits the amount of drugs a physician can dispense to a Workers’ Compensation patient to a 7-day supply for Schedule II and III drugs and to an initial 30-day supply for any other drug.  The final bill can be viewed here:  Pennsylvania House Bill 1846

The Centers for Medicare and Medicaid Services (CMS) has agreed to permit Pennsylvania to expand its Medicaid program under the federal Affordable Care Act to cover low income adults whose incomes exceed the federal poverty level.  Pennsylvania will join 26 other states in expanding its Medicaid program under the statute.  With the expansion, the Pennsylvania Medical Assistance Program benefits will cover an additional 500,000 people starting in 2015.  Beginning in 2016, individuals whose incomes exceed the federal poverty level may be required to pay a modest premium for the coverage.  More information on the program, which is call the Health PA Plan, can be found on the plan website at healthypa.com.

On December 18, 2013, Pennsylvania Act 122 amended the Pennsylvania Clinical Laboratory Act to, among other things, impose licensure requirements on out of state clinical laboratories and to place certain prohibitions on physician financial arrangements with labs.  Among other things, Act 122 prohibits the payment or receipt of commissions, bonuses, kickbacks or fee-splitting arrangements and prohibits laboratories from leasing office space, shelves or equipment within a physician’s office.  The Department of Health has now issued two rounds of “Frequently Asked Questions” regarding clinical laboratories and Act 122.  These FAQs can be found on the Department’s website here.  Physicians in Pennsylvania who have financial/contractual arrangements with clinical laboratories, whether those labs are located in Pennsylvania or in another state, should carefully review Act 122 and the FAQs to ensure that their arrangements are in compliance with these new requirements.

Creative clinical laboratory arrangements seem to be proliferating of late in Pennsylvania. Laboratories, like many providers, are eager to find ways to more closely align with referring physicians. Such arrangements can take a variety of forms such as shared space and personnel arrangements as well as various kinds of marketing arrangements.

Providers considering such arrangements should be aware of recent amendments to the Pennsylvania Clinical Laboratory Act which may effectively prohibit many such arrangements. The amendments, which were signed in to law just this month, prohibit, among other things, the following:

1. Paying or receiving commissions, bonuses, kickbacks, rebates or entering into fee-splitting arrangements for patients or clinical laboratory specimens;

2. Clinical labs from leasing or renting space, shelves, equipment or services within a health care provider’s offices;

3. Clinical labs from leasing personnel to perform any services in a health care provider’s office; or

4. Clinical labs from placing paid or unpaid personnel in a health care provider’s office to perform any service, including specimen collection.