By Martin J. Hagan

People are living longer, and with longevity comes the risk of dementia that as it progresses will render its victims incapable of making their own health care decisions. Alzheimer’s disease is estimated to be the cause of at least half of all dementia cases.

The progression of Alzheimer’s disease from mild to severe stages is irreversible, at least with present treatment options. The only realistic hope is to slow and perhaps stop the progression of the disease, but not to cure it or reverse its effects.

When discussing health care decision-making concerns with individuals who are exhibiting signs of Alzheimer’s disease, the first response should be to assure them that they can continue making their own treatment decisions for as long as they are able.

But since the progressive nature of Alzheimer’s disease makes their ongoing ability to make such decisions unpredictable, it is also essential they have legally effective documents that will keep their voice alive regarding their medical treatment choices, and appoint persons of their own choosing to be their advocates. [Read more…]

By Sean Audley

If you are a Pennsylvania Certified Trauma facility, you are invariably familiar with the significant difference in reimbursement for non-trauma workers’ compensation cases versus trauma cases. The Pennsylvania State Workers’ Compensation fee schedule carves out an exemption for treatment provided to seriously injured workers at hospitals with certified level I or II Trauma Centers or American Burn Association certified Burn Units. The workers’ compensation exemption states that in such matters hospitals are to be paid its “usual and customary charge”. For more than 22 years, this meant that the hospital was paid its full billed charges. That may be changing and it is important for trauma and burn unit hospitals to be prepared to react to the changing rules regarding such payments.

In 2015, one of Pennsylvania’s largest providers of workers’ compensation coverage began to pay trauma claims at less than the provider’s billed charges. Using a Bureau of Workers’ Compensation (BWC) “Statement of Policy” on a wholly unrelated matter, they determined that trauma and burn claims should only be paid in accordance with a usual and customary fee schedule put out by Fair Health, a New York based non-profit that studies medical payments. Where applied, this database has resulted in payments on trauma and burn claims being reduced by 25 to 33 %.

Several cases challenging this made it to the Commonwealth Court in 2016. In the initial decisions, involving challenges brought by Geisinger Medical Center, the Court questioned the use of the Fair Health Database but affirmed the reduced payment. [Read more…]

John K. Heisey, Esquire, a shareholder with the Pittsburgh-based law firm of Thomson, Rhodes & Cowie, P.C., was selected by his peers to be included in the 2017 Edition of The Best Lawyers in America®. 

Best Lawyers is the oldest and most respected peer-review publication in the legal profession, and has earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere. Heisey is also a Fellow of the Academy of Trial Lawyers of Allegheny County, a Pennsylvania Super Lawyer, and has an AV rating, which is Martindale Hubbell’s highest honor awarded for ethical standards and legal ability.

Heisey concentrates his practice defending healthcare providers.  He has successfully tried numerous cases to verdict, including wrongful death claims and those involving catastrophic injuries.

By Antoinette Oliver and Elaina Smiley

The recent $1.35 million settlement that Princeton HealthCare System must pay to former employees should cause all health care employers to consider re-examining their employee medical leave policies.

Princeton HealthCare System (PHCS) had a maximum leave policy that allowed employees to take no more than 12 weeks of leave for medical reasons within a 12 month period.  The PHCS policy was in line with the Family Medical Leave Act (FMLA), which allows qualified employees to take unpaid, job-protected leave for specific family or medical reasons, such as the birth of a child, a serious health condition or to care for a sick family member.  Employees who qualify for FMLA leave can take up to 12 weeks of leave within a 12-month period, either intermittently or all at one time.

PHCS fired any FMLA eligible employee who took more than 12 weeks of medical leave.  It also fired those employees who were not eligible for FMLA leave after their being absent for only a short time.  The EEOC filed suit on behalf of the 23 affected employees, arguing that PHCS’ policy failed to consider leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The ADA requires employers to make reasonable accommodations for any employee who has a qualifying disability.  A disability is defined as a physical or mental impairment that substantially limits one or more major life activities.  Under the ADA, employers must work with employees on a case-by-case basis to determine what reasonable accommodations are necessary, depending on the employee’s specific disability and the particular circumstances of the job. 

[Read more…]

By Gary M. Sanderson

Health care employers are increasingly facing liability for failing to pay workers overtime wages as required by federal law.  In recent cases across the country, courts have ruled that hospitals owed health care employees significant amounts of money for overtime pay violations, including: a California hospital owing workers $1.08 million, a Houston hospital owing employees $4 million; and a Lehigh Valley hospital owing workers $4.5 million.

Clearly, the federal government has begun to crack down on overtime violations for health care workers.  And new and proposed changes to federal law are going to make it even more important for health care employers to be vigilant about paying workers overtime.

Overtime rules are set by the Department of Labor (DOL) under the Fair Labor Standards Act (FLSA).  The FLSA mandates that all non-exempt employees must receive overtime pay at a rate of one and one-half times their normal hourly rate for working more than 40 hours per seven-day workweek.  Because of the need for round-the-clock workers, health care employers are permitted to adopt an alternative “8 and 80” overtime system.  Under the “8 and 80” rule, employers may count hours over a 14-day period, but must pay overtime for any time over eight hours in a day and 80 hours over two weeks.  

[Read more…]

By Maraleen D. Shields

Pennsylvania law requires physicians to maintain at least $500,000 in primary professional liability insurance coverage. The Medical Care Availability and Reduction of Error (MCARE) Fund then adds an additional $500,000 in excess coverage. When a medical malpractice claim arises, the primary insurance carrier will likely assign an attorney to the physician.

It is rare that an insurance policy will give the physician complete autonomy to select counsel. This attorney will likely be part of the insurance company’s panel counsel routinely assigned medical malpractice claims. Under Pennsylvania law, the assigned attorney represents and owes a duty of loyalty to the physician. Despite assignment of counsel, there are still scenarios where a physician may want to consider hiring personal counsel.

[Read more…]

By Anthony C. Vitale

Just about every day there’s at least one story published in a newspaper somewhere in the U.S. about healthcare fraud. It might be about an individual provider who has been arrested, a hospital that is under investigation, or an office employee in a healthcare setting who has been sentenced to jail for their role in defrauding Medicare, Medicaid or some other payor.

How do these cases come to the attention of investigators? And, what can a provider do once they become the target of an investigation? 

Investigations can be initiated in a number of ways: Disgruntled employees, ex-spouses who feel slighted, or a jealous competitor can serve as a whistleblower. Or, your practice might become the target of computer surveillance – i.e. a provider’s billing practices show up as an outlier for performing too many procedures or making more money than others. Some providers and suppliers that historically have had a greater risk of fraud also end up targets of increased scrutiny.

So, what do you do once you become aware that you or your practice has become the target of an investigation? 

[Read more…]

By Anna Bamonte Torrance 

Recent amendments to the Pennsylvania Medical and Osteopathic Practice Acts have changed the supervisory physician’s countersignature requirements for patient records completed by a physician assistant.  Previously, supervising physicians have been required to countersign all patient records completed by a physician assistant within a reasonable time, not to exceed 10 days.  Under Acts 100 and 101 of 2013, which went in to effect at the end of January 2014, supervising physicians now have option to ease the countersignature requirement.  

Under the amendments to the Medical and Osteopathic Practice Acts, a physician is permitted, if he or she chooses, to review only a selected number of patient records completed by a physician assistant.  The number of records selected by a supervising physician must be of a sufficient quantity to “assure adequate review of the physician assistant’s scope of practice.” The supervising physician and physician assistant must establish written criteria upon which the supervising physician would select patient records for review.  The patient records reviewed by the supervising physician must be of a sufficient number to assure adequate review of the physician assistant’s scope of practice.  

[Read more…]

By Beth Slagle

Earlier this year, a former case manager at a Lehigh Valley hospital sued her employer for age discrimination, claiming her supervisor kept a list of employees over the age of 40 whom she wanted to fire.

A Michigan hospital recently had to pay a former employee $200,000 to settle a reverse-discrimination lawsuit in which the white employee alleged that his African-American boss made discriminatory racial remarks toward him.

And a former employee sued a Houston hospital in 2013, alleging that the hospital failed to take into account her disability of high blood pressure when asking her to complete tasks.

As discrimination claims from terminated employees continue to rise, many health care employers have responded by making their severance agreements increasingly restrictive. The agreements often prohibit employees from engaging in a long list of retaliatory behaviors as a condition for receiving severance pay.

[Read more…]