doctorContinuing my review of new employment-related bills is a measure that limits the use of non-compete agreements for doctors.

Anyone who tracks bills knows that the name on the bill sometimes doesn’t match the content. Senate Bill 351 entitled “AN ACT CONCERNING MATTERS AFFECTING PHYSICIANS AND HOSPITALS” is a good case in point.

Seems innocuous enough, right? But through various amendments and compromises, it actually contains specifics on what can or cannot be in a non-compete agreement for physicians.  (For limits in other professions, see prior posts here and here.)

In general, the bill sets up a one year and 15 mile limit for physician non-compete agreements for any agreement after July 1, 2016.

The bill does not specify what is to happen to existing agreements that may have broader restrictions; will courts find that they violate the new ‘public policy’ of Connecticut, as the attorneys at the Working Together blog suggest? That remains to be seen.

For employers that have yet to draw up agreements, arguably there is a 60-day window to do so but given that this may now become law, it might be too little too late.  (I have not heard whether the governor intends to veto this measure.)

For existing agreements, it appears that the review will attempt to mirror common law with three standards (note that the term “covenant not to compete” is actually defined as being applicable only to physicians).  These standards are:

A covenant not to compete is valid and enforceable only if it is: (A) Necessary to protect a legitimate business interest; (B) reasonably limited in time, geographic scope and practice restrictions as necessary to protect such business interest; and (C) otherwise consistent with the law and public policy.

The bill goes on to state that:

A covenant not to compete that is entered into, amended, extended or renewed on or after July 1, 2016, shall not: (A) Restrict the physician’s competitive activities (i) for a period of more than one year, and (ii) in a geographic region of more than fifteen miles from the primary site where such physician practices;

Simple enough, right? Well, not exactly, the agreement also shall not:

(B) be enforceable against a physician if

(i) such employment contract or agreement was not made in anticipation of, or as part of, a partnership or ownership agreement and such contract or agreement expires and is not renewed, unless, prior to such expiration, the employer makes a bona fide offer to renew the contract on the same or similar terms and conditions, or

(ii) the employment or contractual relationship is terminated by the employer, unless such employment or contractual relationship is terminated for cause.

That’s a lot of “ands” and “unlesses” if you’re keeping track at home.  But one thing I’m sure of is that a “for cause” termination allows for more flexibility.

But what is “for cause”? Can it be defined by the employer? Or is the legislature using another definition of “cause”? That, unfortunately, is a question for another day.

For now, physician groups, hospitals and other health care providers need to track signing of the measure and, if signed, review all existing agreements and form agreements for compliance with this new potential law.  The one-year/15 mile restriction should become the norm.

And if you have a strong opinion against this measure, now would be a good time to lobby the governor to veto it.

 

Heard of the popular show, "A Minute to Win It"? Well to borrow from the title, for health care professionals (doctors offices and hospitals in particular), you’re playing a much more dangerous game "a Minute to Lose It".

What is "it"? It is patient data.  And right now it continues to be at risk every day.  With a single post, valuable client data could be gone in a minute without you even knowing about it until it is too late.

Now, you might protest: We already have a HIPAA Privacy Policy. We’re fine.

That’s good. Just not good enough anymore.

Now, you might say: You’re being alarmist.

To which I say, yes. Because just like the e-mail revolution over a decade ago, we’re in the midst of another one right now and too many people are unprepared for what is unfolding in real time.  

What are some steps to take? First, the easy one: a social media policy. Like yesterday. Because while you’ve been napping, social media has taken root all over America. And health care institutions — which access sensitive personal data every day — are at risk for not taking steps to protect the data.  

Is it happening? Yes. Employees are tweeting, Facebooking and networking as this article suggests. And they’re talking about work.  

But health care professionals now need to go beyond a policy and should provide training and guidance to employees on how to use social media safely without jeopardizing patient data. And monitoring compliance is another key aspect. A program like Hearsay is one of the vendors trying to seek your  business in this area. 

This is still uncharted territory. But a lawfirm (like ours, naturally) can help provide that security (and I’d be happy to respond to inquires from companies about it).   But ignoring the problem will not make it go away — as much as some of you would like to remain ignorant about social media.  

Complicating the issue further are state and federal data privacy laws that overlap (and contrast) as well.  So, between HIPAA, data privacy rules, and other state laws, there’s a lot to keep track of.  

I’ll talk about some of these issues at a March 24 forum for public health agencies (details soon).  In the upcoming weeks, I’ll also share some additional tidbits for health care professionals to think about as well.  If there’s a particular topic you’d like to see covered in an upcoming post, feel free to let me know and we’ll see if I can get to it (within the constraints of the blog).  

 

 

Regardless of your political affiliation, you have to appreciate the magnitude of the moment.

Sweeping health care insurance legislation has passed Congress. (The Senate will still take up  the "reconciliation" part of the bill which will make some additional modifications because the House only approved of the Senate version.)

So, now’s the time to ask: What does this mean for employers?

No one really knows. Oh, you’ve been hearing lots of commentators talk about how lots of jobs will be lost (or saved) as a result of this.  Or they will talk about what this means for our country.   But in truth, it’s much like looking at a crystal ball — you’re much more likely to get a distorted picture than a real one.

So rather than guess about what will happen for employers in the future (or speculate about future changes that may or may not be made), let’s talk about what we know.   

Employers are not, technically, required to provide health insurance to their workers under the bill that passed.  But if employers with 50 or more employees do not provide health insurance, they will be required to pay a fine of $2000 per worker each year if any worker receives federal subsidies to purchase health insurance. Fines will be applied to entire number of employees minus some allowances (under the formula — at least in the reconciliation bill — the first 30 employees are probably not going to be counted).

But again, here’s the most important part: If you are an employer will less than 50 employees, you will not be impacted directly from this bill because you will not be penalized if you don’t offer health insurance.  

For those employers that do offer coverage, you’re not out of the woods just yet. Under the passed bill, if the employee finds the insurance too expensive because it would represent too much a percentage of their income, the employee may purchase insurance on the open market (or at least the marketplace of exchanges that the measure also establishes).  The employer would then be required to provide a voucher to the employee on the percentage that the employer would have kicked in had the employee chose to continue with the employer-sponsored plan.

There is an additional provision for employers of 200 or more employees: If you, as an employer, do offer health insurance to your employees, then you will have to automatically enroll those employees in the plan.  

So, you might be wondering, should I start planning for this? Well, unlike some of the COBRA-subsidy provisions that have gone into effect immediately, this law has a great deal of buffer built in.  In fact, many of these provisions do not start until January 1, 2014 — or nearly four years from now.

But there are others that go into effect more quickly, including a provision to require employers to extend coverage to include adult children (up to age 26) of employees. 

As you might expect from a 2000 page bill, there are certainly other provisions that might affect employers. Various blogs and publications have begun summarizing some of those provisions including Business Insurance and Washington Employment Law Update.  I expect we’ll hear more this week too as everyone starts to analyze it in more detail.

For employers that have low-cost workers, there is no doubt that this measure will have some impact because of the penalties that may be applied if health insurance is not offered. But how much of an impact that will be will have to be determined by each company on a case-by-case basis.

For now, each employer should consider appointing a small group of employees (including those from human resources and finance areas) to figure out what health care reform will mean to that employer.  And stay tuned, I don’t expect we’ve heard about this for the last time.