Pennsylvania Legislation

Pennsylvania’s Patient Test Result Information Act, which is set to take effect December 23, 2018, requires diagnostic imaging services providers that identify a “significant abnormality” in their test results to directly notify the patient or his/her designee within 20 days of the completed test, its review and its delivery to the ordering health care practitioner.  The new law defines the circumstances under which a patient notice is mandatory, as well as required information and language that must be included in any applicable notice.

For more information regarding the specific requirements of the Act and its applicability to health care providers, you can visit our Fox Rothschild Health Law Alert.  The full text of the Act can be accessed at this link.

USA Today, New York Times, BNA, and several other news outlets have been reporting over the last few weeks about non-competition agreements and non-compete laws especially related to low-wage workers.  There have been interesting changes and proposed changes to state laws that may affect several industries including healthcare.

In a recent article on Law360, titled “Noncompete Agreements Under Siege At The State Level,” the authors highlighted some developments in non-compete law.  They posit that many areas of employment and labor law have seen changes, but the law of noncompetition agreements has been relatively static.  Until recently, most changes came from case law in this area of law; however, more recently we are seeing that many state legislatures are taking up the issue.

Some states like Massachusetts, Oregon and Missouri are offering laws which include broad prohibitions on the enforcement of noncompetition agreements.  However these proposals have not made much legislative progress according to the authors.

Other states have offered legislation that has health care industry-specific prohibitions.  For example, the authors note that last year Rhode Island enacted legislation that effectively renders physician noncompetition agreements void and unenforceable, while Connecticut imposed new limits as to when noncompetition agreements can be enforced.

According to the authors, in 2017 the trend is continuing.  West Virginia enacted a statute regarding physician noncompetition agreements, which limits the ability to enforce such provisions.  The authors state:

Measures have also been introduced recently in Pennsylvania, Minnesota, Oregon (home care workers), New Mexico (certified nurse practitioners and midwives), and Connecticut (homemakers, companions and home health aides) that target noncompete enforcement against physicians and others in the health and medical profession. (emphasis added)

Low-wage employee non-compete clauses have also come under scrutiny.  The authors note that this year several states have or are currently considering income-based restrictions, including Massachusetts, Maine, Maryland (did not pass), and Washington.

With the landscape of this very important issue changing, individual healthcare providers, their employers, and anyone else who uses, or is subject to, non-compete provisions will need to keep on top of developments to their state’s specific laws.  As the laws change, it will be more important than ever to have non-compete provisions and agreements reviewed or re-reviewed to ensure you understand the effect of such changes.

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.

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.

The Pennsylvania Insurance Department has announced that the Medical Care Availability and Reduction of Error (MCARE) Act annual assessment for calendar year 2013 will be 25% applied to the prevailing primary premium for each participating health care provider.  The announcement is in  the Pennsylvania Bulletin.  This represents an increase of two percentage points from the 2012 assessment.
 

On October 9, the Pennsylvania Department of Health (PA DOH) announced that it has changed the Pennsylvania rules regarding the J-1 Physician Waiver Program. DOH has established three filing periods, which could result in the Conrad 30 numbers being assigned earlier in the fiscal year. Read the entire text: http://immigrationview.foxrothschild.com/j-1-waiver/j-1-physician-waivers-in-pennsylvania-change-in-processing-times/

 

 I mentioned recently to one of my physician practice clients that all indications suggest to me that in-office dispensing of drugs by physicians is likely to become a target for increased regulation and enforcement.  It seems like at least once a week we hear in the news about another tragedy involving prescription drug addiction.  In fact, only this week I saw a documentary spotlighting the newest illegal drug epidemic sweeping the northeast: prescription pain pills purchased from doctors in Florida and trafficked up the route 95 corridor for sale on the street.  With a street value of up to $80 per pill, prescription meds may be more profitable and easier to obtain than cocaine.

As an indication that a regulatory correction is just around the corner, a recent New York Times article casts a spotlight on the huge mark-up on prescription drugs that physicians are able get under state workers compensation programs and efforts by state legislators to control the associated costs. (See Insurers Pay Big Markups at http://www.nytimes.com/2012/07/12/business/some-physicians-making-millions-selling-drugs.html?_r=2&pagewanted=all).

 

Continue Reading https://physicianlaw.foxrothschild.com/2012/07/articles/pennsylvania-legislation/854/

Last week, the Pennsylvania Board of Medicine published proposed regulations amending the physician controlled substances prescribing regulations to, among other things, expand the regs to include butalbital, carisoprodol and tramadol hydrochloride

Under the proposed regulations, these drugs would now be subject to the same requirements applicable in Pennsylvania to physician office prescribing of controlled substances, including that an initial medical history and physical exam be performed before a drug may be prescribed unless emergency circumstances justify otherwise, and that patients receive appropriate counseling regarding the patient’s condition and the drug dispensed.

In addition, among other things, each time a drug is prescribed, administered or dispensed, the medical record must be updated to include the name of the drug, its strength, the quantity and the date it was prescribed, administered or dispensed. For the initial visit when the drug is prescribed, administered or dispensed, the medical record documentation must also include the patient’s symptoms, the diagnosis and the instructions given to the patient for the use of the drug. If the same drug is repeatedly prescribed, administered or dispensed, the medical record must also reflect changes in the symptoms, diagnosis and instructions given.

The proposed regulations have been published for public comment. If you’re interested in submitting written comments on the regulations you can submit your comments, suggestions or objections to Teresa Lazo, Assistant Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, st-medicine@state.pa.us within 30 days of March 3, 2012. Commenters should reference No. 16A-4933 (Prescribing) when submitting comments.
 

Most medical practices in Pennsylvania are aware that Pennsylvania imposes a sales and use tax on various items and services purchased by medical practices.  However, physicians are not always clear on exactly the items and services to which the tax applies.  For example, the tax applies to secretarial/administrative services purchased from a third party vendor.  This includes transcription services.  If your vendor is not charging a sales tax or you are not reporting a use tax in connection with your outside transcription services, you may have an issue.  The Pennsylvania Medical Society has published a helpful guide entitled How to Comply with State Sales and Use Taxes.  If you’re not sure whether or how Pennsylvania’s sales and use tax applies, I recommend that you give your accountant or attorney a call since the Pennsylvania Department of Treasury is currently conducting sales and use tax audits of physician practices.

Under a new Pennsylvania law which took effect on January 22, 2011, physicians who bill patients or third party payers for clinical pathology laboratory tests purchased from an independent laboratory are required to disclose on the bill the name of the laboratory from which the service was purchased, the amount paid by the physician to the lab and the physician’s acquisition or processing (e.g., mark-up) charge for the service. Failure to comply with the law may be ground for disciplinary action against the physician’s license.