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Spring 2018




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CONTENTS Spring 2018

Volume 78

Number 1


4 A look back at 2017 shows the PAFP is ready to meet 2018’s challenges

ON THE COVER: The Pennyslvania Academy of Family Physicians recently developed its own Opioid Task Force. Led by PAFP board member D. Scott McCracken, MD, the group is committed to dealing with issues of opioid addiction and abuse among patients.


8 Seeking submissions for new 'Member Spotlight;' Members encouraged to tell Pa. Senate to support DPC; Excela Health Latrobe wins ACGME award



12 Introducing the all new, a modern redesign of our website

18 Cover Story: Opioid crisis: PAFP creates task force in midst of epidemic


16 PAFP staff member’s personal story puts spotlight on Rare Disease Day


22 Government Affairs: Devolution and the growing importance of state government

24 Legal and Compliance Update:

37 24

Physician incentive compensation: MGMA 90th percentile; Unjustified disclosure of PHI: Breach of confidentiality/negligence; Waiver/reduction of patient co-insurance: out-of-network provider; ERISA/fraud issue


28 Online CME Catalog

President’s Message PA Academy of Family Physicians & Foundation


2704 Commerce Drive, Suite A Harrisburg, PA 17110 717-564-5365 • TOLL FREE 1-800-648-5623 • FAX 717-564-4235 EDITOR-IN-CHIEF/CHIEF COMMUNICATIONS OFFICER Michael Zigmund ( MANAGING EDITOR/DIRECTOR OF MEDIA AND PR Bryan Peach ( Keystone Physician, member magazine of the PA Academy of Family Physicians, is digitally published four times a year. Editorial opinions and advertisements in this publication do not necessarily reflect the views of the PAFP and Foundation, unless so stated. © 2016. Unless stated otherwise, nothing may be reproduced either wholly or in part without permission from the Editor-in-Chief.


A look back at 2017 shows the PAFP is ready to meet 2018’s challenges

STAFF Deputy Executive Officer / Chief Operation Officer Brent Ennis ( Chief Education Officer Janine Owen ( Chief Financial Officer Karen Runyeon (

While 2017 was an often challenging year in family medicine in the Commonwealth, it was a rewarding one for the Pennsylvania Academy of Family Physicians. Our organization continued its mission to support its members through advocacy and education to ensure physician-coordinated, personalized, and comprehensive quality health care for every Pennsylvanian. No matter how substantial the hurdle, the PAFP rose to the occasion to support our diverse membership. The PAFP understands that every family physician had a unique practice situation and attempts to direct its efforts to support the full range of practice issues facing each and every one of you.

Director of Resident and Student Initiatives Molly Talley ( Director of Education Lindsey Killian (

2015-16 OFFICERS PAFP President ( Edward Zurad, MD (Tunkhannock) PAFP President-Elect David O’Gurek, MD (Philadelphia) Foundation President Mary Stock Keister, MD (Fogelsville) PAFP and Foundation Treasurer Chris Lupold, MD (Lancaster) PAFP Board Chair and Immediate Past President Robert Rodak, DO (Erie)

DELEGATES TO THE AAFP CONGRESS Bradley Fox, MD (Fairview) Madalyn Schaefgen, MD (Allentown) Alternate — Dennis Gingrich, MD (Hershey)

The PAFP Government and Practice Advocacy Committee, led by PAFP Deputy Executive Vice President and COO Brent Ennis and chaired by Susan Fidler, MD, continued to work on the policy end of the clinical spectrum, with a full slate of Board of Directors-approved state legislative agenda items in the offing through 2018. These issues include nurse practitioner independence, prior authorization reform, and direct primary care authorizing legislation, among several others. Led by PAFP Chief Education Officer Janine Owen and chaired by Drew Keister, MD, the Continuing Professional Development Committee focused in 2017 not only on CME, but the development of physicians’ education outside of the very familiar continuing educational courses. That said, the PAFP continued its commitment to excellent, clinically relevant live CME offerings, which I will review in more detail later in this report. 4 | Keystone Physician | Spring 2018

Alternate — Kevin Wong, MD (Jeannette)

BOARD OF DIRECTORS D. Scott McCracken, MD (York) Pamela Valenza, MD (Bethlehem) James Joseph, MD (Cattawissa) - Foundation Vice President Mary Stock Keister, MD (Fogelsville) - Foundation President Tracey Conti, MD, (Monroeville) Jenna Fox, MD (Lancaster) - Resident Chair Kyle Gleaves - Student Chair

The Governance and Leadership Committee, led Finally, the Resident and Student Affairs Commitby PAFP Executive Vice President and CEO John tee, staffed by Director of Resident and Student Jordan, CAE and chaired by Douglas Spotts, Initiatives Molly Talley and chaired by Tiffany LeonMD, continued to invest significant time and ard, MD, worked diligently in 2017 on the family planning efforts in the medicine pipeline in the creation of a leadership Keystone State, with a development institute particular emphasis on Our students and residents within the Pennsylvathe expansion of resiare being heard and we are nia Academy of Family dency slots in PennsylvaPhysicians. The comnia. This ongoing project doing everything possible mittee and stakeholdhas been highlighted to ensure their professional ers honed the institute’s in a series of pieces in structure and goals over Keystone Physician, and development and training the course of 2017, and I’m proud to say that the the PAFP is eager to future of family medicine announce more about in our Commonwealth this initiative in 2018. Exciting news will be forthhas truly never been stronger than it is with this coming for those members who are interested team working on the behalf of students and resiin expanding their leadership skills. We welcome dents. Our students and residents are being heard the participation of new and old leaders from all and we are doing everything possible to foster types of family practice scenarios. their professional development and training.


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of UPMC St. Margaret as Elsewhere within the the PAFP’s 2017 ExemPAFP, the Communiplary Teacher of the Year, cations Department welcomed new AAFP ensured that family fellows, and congratulated physicians from Erie to the winners of our annual Philadelphia and everyResearch Day: Michael where in between had Kingsley, MBBS; Andew access to the very best McBride, MD; Mark A. news, resources, and Connolly, MD and Nguyetinformation across mulI have been humbled to work Cam V. Lam, MD tiple platforms, includwith so many wonderful family ing the PAFP’s website, physicians who do such good Other 2017 events its PAFP Connect app, included a one-day derand on social media work every day throughout the matology CME event in outlets like Twitter and Commonwealth August, which featured Facebook. One of the lectures, workshops, biggest undertakings of and procedures. The Reading CME Conference 2017 was the creation of a brand new, state-ofin November, which garnered rave reviews from the-art, mobile responsive, which has just been unveiled to members and the public and PAFP members for its scope and breadth of educational offerings, particularly the sessions on is featured in this issue. The PAFP staff couldn’t opioid addiction and treatment, which I will outline be more excited about this fantastic new interlater. We are excited to announce a full slate of net home for family medicine in Pennsylvania. live events in 2018, including our first conference The PAFP plans to be available to you absolutely of the year in Philadelphia, March 2-4, which also everywhere you are serving your patients. includes our Annual Business Meeting, awards ceremony, Research Day, and an exciting event to Moving from the digital sphere to in-person connection and communication, the PAFP held a host honor incoming PAFP President David O’Gurek, of comprehensive events over the course of 2017 MD at Citizens Bank Park, home of the Philadelcombining family fun, high-quality education, clini- phia Phillies. We hope to see ALL of you there! cal outreaches, and resonating practice benefits. In response to Pennsylvania Gov. Tom Wolf’s These live events began with the Harrisburg CME declaration (January 10, 2018) of a state of emerConference in March 2017, which also included gency over the state’s opioid epidemic, I am proud the PAFP’s Annual Business Meeting and awards to proclaim that Pennsylvania’s family physicians ceremony. This combination education and inforstand unified with a simple message: We are up mation weekend included a number of firsts: for to the task of combating this deadly and pervasive the first time in PAFP history, we proudly recogcrisis. nized not one, but two very worthy doctors as 2017 Family Physician of the Year: Anna Doubeni, MD of Philadelphia and Mary Fabian, MD of Allen- The PAFP is continuing its dedication to education town. We also recognized Richard Bruehlman, MD and resources for family physicians in the midst of 6 | Keystone Physician | Spring 2018

the opioid epidemic across the practice spectrum, including prescription opioids, abuse, addiction, and pain management. Recent educational topics covered at PAFP education conferences include the neurobiology of addiction, treatment alternatives for substance abuse, pain relief, osteopathic treatment approaches, and utilizing evidence along with guideline-based strategies for risk assessment, management, and monitoring of opioid therapy. We know that members are well prepared to deal with the opioid crisis and have continually provided educational programs on the management of chronic pain for several years.

cians who do such good work every day throughout the Commonwealth. Every professional minute, you perform impossible tasks under increasingly difficult procedural circumstances. I am aware that Pennsylvania family physicians sometimes feel like they are practicing in a foxhole surrounded by bureaucracy with so many administrative missiles being thrown at them – we understand your predicament at the PAFP and we are going to continue to do everything possible to alleviate some of the unnecessary challenges which force family physicians to focus on “how” we can provide care for our patients rather than simply doing that.

My term as president has been an honor and a privilege. As a rural solo physician, I unfortunately do not have the daily experience of seeing other family physicians in action. During the last six years of my involvement in the PAFP, I have been humbled to work with so many wonderful family physi-

I’m proud of the work we’ve accomplished together in 2017, and I guarantee that we will continue to meet any challenge we face in 2018 with an even greater commitment to Pennsylvania’s family physicians and the patients and communities they serve.


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Member News

We’re looking for family physicians to put in the ‘Spotlight’ The PAFP is eager to announce the launch of its new website – you can read about it more in this issue of Keystone Physician! A new, exciting feature appearing on our homepage is called “Member Spotlight.” It includes a Q-and-A with a PAFP member about their experience practicing family medicine, the joys of the specialty, and how they decided it was the perfect career for them. If you’d like to appear on this feature – or if you know someone who’d be interested – email PAFP Director of Media and Public Relations Bryan Peach at A web form will be up soon for interested members to complete.

Members encouraged to tell Pa. Senate to support DPC Pa. House Bill 1739 and Senate Bill 926 would improve access to direct primary care (DPC) by recognizing, protecting, and defining these arrangements as outside the scope of state insurance regulations, allowing patients and physicians to contract for care. The Pennsylvania Academy of Family Physicians encourages its members to

click here to use the AAFP's Speak Out tool and take action! The PAFP uses Speak Out, an advocacy tool developed by the American Academy of Family Physicians, to regularly distribute advocacy alerts to members as needed. If you’re interested in Speak Out, click here for more information on how this advocacy tool works.

Excela Health Latrobe wins ACGME award The PAFP congratulates Excela Health Latrobe for winning the ACGME and Arnold P. Gold Foundation Dewitt C. Baldwin, Jr. Award, which recognizes exceptional residency and fellowship programs. We visited Excela Health Latrobe in our Summer-Fall 2015 issue of Keystone Physician - click here to read the story. 8 | Keystone Physician | Spring 2018

2ND ANNUAL CHILI COOK-OFF Submit your Recipe for the Chili Cook-Off Competition at PAFP’s March CME Meeting



Visit the beef booth for nutrition information, recipes and more. BeefItsWhatsForDinner.



The Pennsylvania Academy of Family Physicians is excited to share the brand new with its members and the public. After a few years of research into the latest digital trends, feedback about what members value most on the website, and hundreds of hours of design, coding, and testing, PAFP. com is better than ever, with a sleek new interface and features that make the site easier to use on both desktop and mobile. The first thing you’ll notice on the new PAFP. com is its new, bright color palette. The website retains shades of the PAFP’s trademark 10 | Keystone Physician | Spring 2018

deep blue in its logo and the featured pages slider at the top of the page, but the borders have been lightened for easier readability and navigability. Other design choices have been implemented to similar ends, from a new typeface to a wider presence on the page. “We wanted the new to follow a few simple rules,” says PAFP Chief Communications Officer Michael Zigmund. “The first is that the website should not only be convenient, but fun to read for PAFP members and other audiences. We also wanted the most important information to be immediately at

the viewer’s line of sight, regardless of how they’ve accessed The design is intuitive, grouping like information together, so that when it’s read from top to bottom it feels less like viewing a homepage and more like reading the story of family medicine in Pennsylvania.” Viewers will also notice the information on is organized more efficiently to reflect the way that visitors read webpages. At the top of the screen, links to the PAFP’s other presences on the web – Facebook, Twitter, LinkedIn, and Instagram – make it easy to track the PAFP across internet,

there easily at,” Zigmund says. “There is a door on the homepage to virtually everywhere the PAFP is.” The “below-the-fold” portion of the homepage contains large, bright, easy-access blocks of information that link to pages on that users visit most, including PAFP-PAC and the PAFP Foundation. Here, you’ll also find two exciting new features of the PAFP web experience: the first is called Member Spotlight, which will feature a Q-and-A with a PAFP member each month; the other is a large window showing live updates from the PAFP’s Twitter account.



appearing alongside the prominent PAFP logo and a members-only login button. Moving down through the page, the featured pages slider link to items of immediate interest, including PAFP initiatives and conference information, right next to a list of upcoming events; the largest amount of real estate on the new homepage is dedicated to daily news updates and links to other PAFP news resources, including Keystone Physician and Progress Notes.

The site is rounded out with a sitemap including direct links to practically every section of the PAFP’s website.

“No matter where you hope to find the PAFP on the vast expanse of the web, you can get

“When you visit on the mobile browser of your choice, you’ll really be under

The real beauty of the website’s design is how responsive it is to viewing on a mobile device. Zigmund’s philosophy was to make the mobile version of the site act, look, and feel like a mobile app, not simply an inferior experience of viewing a large website on a smaller screen. | 11

the illusion that you’ve downloaded an app straight to your phone,” says Zigmund. “Instead of having to scroll left and right or zoom in and out, like you’d ordinarily do when you view a website on your iPhone or Android, everything on the website takes up the full real estate of your mobile device, but no more. “That means no more pinch-zooming or squinting, trying to find the information across the width of the page. It’s completely linear – scroll down, and everything that’s on the desktop version of is right there on your phone, completely optimized for one-hand use.” A new feature that adds to this mobilefriendliness is a clickable menu at the upper left-hand corner of the screen: three vertical lines called a “hamburger” by web designers, this menu reiterates the information on the

rest of the page in a simple text menu, allowing users to find pages quickly. It’s one more way that the new helps you to get the information you need exactly when you want it – no confusion or head-scratching required. If you haven’t yet visited the new PAFP. com, check it out today, whether you’re reading this on the go or on your desktop PC! We know you’ll love the new browsing experience.









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The Latest Health Care News...

The Pennsylvania Academy of Family Physicians’ PAFP Connect app is available no (iPhone, iPad) and Android (Samsung Galaxy, Google Nexus, Motorola Moto X, Ama

Scouring the latest headlines from reputable media sources across the globe, PAFP Connect brings you the most relevant, up-to-date news and information that affects your practice and your patients. At 1 p.m. daily, PAFP Connect posts the Afternoon Family Medicine news digest – headlines that take a deeper look at family medicine in the U.S., covering all the angles so that you can head into the rest of the day with a deeper understanding of the forces that impact you.

Available Now! Downloading the app is easy! Just search for PAFP Connect on your iPhone’s app store to get started. Alternatively, click on the icon for the app store that matches your device.

Afternoon Family Medicine puts the news into context, telling you what it means and why you should care. In addition to collaborative groups, information, a schedule of events, and links to other PAFP resources like Keystone Physician, Afternoon Family Medicine is one more reason to log on to PAFP Connect daily.

PAFP Connect was built in-house exclusively for PAFP members. To access the mobile app you will need to know your AAFP member ID number. For login assistance, email Michael Zigmund, PAFP’s Chief Communication Offic

. Everyday.

ow for download on iOS azon Kindle Fire) devices!


Public Health

PAFP staff member’s personal story puts spotlight on Rare Disease Day During last year’s Annual Business Meeting, one particular PAFP staffer was the topic of discussion among many attendees: 9-month-pregnant Lindsey Killian, the PAFP’s Director of Education. Lindsey managed to make it through the weekend conference without delivery, but two weeks and five days later, Lindsey would receive news that no new mother wants to hear. Five days after giving birth to her son, Thomas James “T.J.,” Lindsey received a phone call from a physician saying her son has a rare disease and needed to be seen in clinic that same night. During T.J.’s newborn blood screening, he tested positive for Phenylketonuria (commonly known as PKU) with an elevated Phe level of 4.4. Lindsey’s husband has PKU, and the couple knew Lindsey was a carrier for PKU. With the overwhelming joy of a new baby, the couple forgot about the probability of their son having PKU. The new family was forced to face the transition from probability to reality. According to the National PKU Alliance, Phenylketonuria (PKU) is a rare, inherited metabolic disorder characterized by the body’s inability to utilize the essential amino acid, phenylalanine (Phe). PKU is caused by a deficiency in the liver to produce the enzyme phenylalanine hydroxylase (PAH). The PAH enzyme converts Phe to the amino acid, tyrosine. Without the PAH enzyme, Phe accumulates in the blood and body tissues. Excess Phe is toxic to the central

nervous system and causes severe problems when left untreated. An estimated 16,500 individuals are living in the United States with PKU. While there is no cure for PKU, there are some pharmacological treatments and lifestyles to help manage the disorder. Wednesday, Feb. 28, 2018 will mark the 11th year of Rare Disease Day, a global initiative to raise awareness of more than 6,000 rare diseases. Rare diseases impact nearly 1 in 20 individuals during their lifetime. While the majority of the diseases have no cure, it is important to raise awareness and continue research for individuals living with a rare disease.

Phenylketonuria (commonly known as PKU) is an inherited disorder that increases the levels of a substance called phenylalanine in the blood. Phenylalanine is a building block of proteins (an amino acid) that is obtained through the diet.

16 | Keystone Physician | Spring 2018

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The Pennsylvania Academy of Family Physicians recently developed its own Opioid Task Force, committed to dealing with issues of opioid addiction and abuse among family medicine patients. Spearheading this effort is PAFP Board of Directors member D. Scott McCracken, MD, of York. In this Q-and-A, he discusses the creation and efforts of this important committee. Why was the Opioid Task Force within the PAFP formed? In a literal sense, the task force was formed because the PAFP Board identified the opioid crisis as one of the most significant policy and practice issues facing family physicians in Pa. today. By the middle of 2017, it was already clear that the issue of opioid abuse was not abating at all, and that the state government was getting more and more involved. Moreover, family physicians were finding ourselves at the middle of all of it – pain treatment,

addiction, mental health, perinatal care, neonatal abstinence, palliative care – it was all coming to our offices. The PAFP was uniquely poised to advocate for our patients and practice at the policy level, and the task force was created to focus on that role. What has the task force been doing recently? First, we recognized an urgent need to provide a lot of CME surrounding opioids. Family docs have always treated entities like chronic pain, addiction, and neonatal abstinence, but it was clear that as the epidemic of opioid abuse grew, | 19

and specialists’ offices became overwhelmed, a lot of the patient care was falling to us – which is not necessarily a bad thing. However, to be able to treat all entities in one office, and sometimes in one patient, is kind of new. Since the task force formed, both of our CME events (including the upcoming CME conference in Philadelphia, March 2-4) have offerings designed to prepare family physicians to treat opioid-involved patients and families. Also, given the rapid pace of regulation in the state, we have tried to advocate at every level possible – for example, on the governor's opioid prescribing task force, with Pa. opioid prescribing guidelines, within groups like the Pennsylvania Medical Society (PAMED), with local collaboratives like the South Central PA Opioid Awareness Coalition and the York County Opioid Task Force, and with published public health messages, to make sure family physicians have a voice in shaping the policies

that affect our patients and practices. What has your experience been as a medication-assisted treatment (MAT) provider? I started prescribing MAT in May 2017, and so far the experience has been extremely rewarding. I think as family physicians, we provide a unique and holistic approach to patient care that may not have been as available in traditional specialist or mental-health addiction treatment models. I've had great satisfaction (and some struggles) treating families, because I can connect with the health care of the everyone there. I think patients really appreciate the extra care I can provide for themselves or their loved one as well. Can you give us any insight into the future of the task force? For the short-term, expect us to keep offering high-quality CME to help bridge the gap between

PHILADELPHIA BECOMES FIRST U.S. CITY TO WELCOME Philadelphia is poised to become the first city in the United States to establish safe injection sites. reports these sites will be medically supervised facilities where people can inject drugs like heroin, be revived if they overdose, then be helped into treatment. The city itself will not run the sites. According to TIME, safe injection facilities, also known as SIFs, currently operate in Canada, Europe, and Australia. Proponents say SIFs are an important part of a so-called harm reduction strategy that not only prevents people struggling with addiction from overdosing and dying, but aids them in finding and committing to sus20 | Keystone Physician | Spring 2018

tained treatment. They also prevent the spread of diseases like hepatitis C and HIV, which are serious and potentially deadly in their own right. Fast Company reports a recently opened SIF in Toronto saved 139 lives in the first six months of opening alone. But one only needs to read the comments section of a major media source’s web story on safe injection sites to realize that not everyone is thrilled about the idea. Detractors are concerned that SIFs will increase the prevalence of drug addiction and related crime and violence issues in the areas where they operate. According to Mic, some state legislators and even members

addictions, mental health, and pain in primary care. And expect that we'll keep as close as possible to ongoing government and practice advocacy surrounding patient treatment, prior authorizations, insurance regulations, and the like. As we go forward, I'm sure that landscape will change, and we'll have to adapt. And while we recognize and appreciate the advocacy work already being done by members, we of course welcome any family physician who may be interested in helping this cause. I think it's safe to say at this point that if there isn't one already, there will be an opportunity soon on a task force near you, and the PAFP would love to help you connect.

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‘SAFE INJECTION’ SITES of President Trump’s administration believe safe injection sites to be “counterproductive and dangerous,” and are concerned that such strategies both encourage and normalize drug abuse. The Pennsylvania Academy of Family Physicians has not taken a stance on safe injection sites; instead, it will continue to work with its members, other physician groups, and local collaboratives to tackle the opioid epidemic at the patient and provider levels through advocacy and education.

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Government Affairs BRENT ENNIS, Deputy Executive Officer / Chief Operation Officer

Devolution and the growing importance of state government The year 2018 is a professional milestone year for me, marking 30 years in state government, evenly split between working in state government, and working to influence the policies of state government specializing in health care and social services. Having worked for Republican and Democrat officials, I have been registered for many years as non-partisan and see value in understanding and working with both sides of the aisle. Since 1988, I have witnessed and dealt with what is often referred to as “devolution” – the decentralization of federal oversight and control in deference to the states on key health care statutory issues. This occurs as well as financially with many public programs and health issues, with the slow erosion of federal funding including incremental decreases in federal block grants that address public health matters. In the increasingly complex health care environment, the role of the states will continue to grow in importance, both statutorily and financially. Even when one thinks of such massive federal programs as Medicare, Medicaid, or even the Affordable Care Act (ACA), all provide some level of engineering and financial obligations state by state. Yet, of course, without the constitutional power of the federal government, these national programs would not exist as we know them today. 22 | Keystone Physician | Spring 2018

DEVOLUTION Still, when you look at the PAFP’s state legislative agenda, it is filled with issues which arguably could be addressed by the federal government, but won’t be. Scope of practice, prior authorization reform, credentialing reform, even direct primary care all fall to the states. Is there a mix of federalstate interaction on some of these? Absolutely – but the real power of reform with these issues is in the hands of state government. With more financial pressure on the states in concert with deferring legislative decisions, the trend toward devolution and incrementalism to the state on health care policy will surely continue, if not expand. While there is a tendency, intrinsically fostered by our national media, to concentrate on the happenings in Washington, D.C., when it comes to health care policy and finances, it’s best to keep your focus on Harrisburg, Pennsylvania.

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Legal and Compliance Update CHARLES I. ARTZ, Esq, General Counsel

Physician incentive compensation: MGMA 90th percentile A new Pennsylvania federal court decision involving physician compensation capped at the 90th percentile of the MGMA survey standards is important to consider. In Barot v. Susquehanna Physician Services/ Susquehanna Health System, ___ F.Supp.3d ___ (M.D. Pa. 2018) (2018 WL 347730), the plaintiff physician (Dr. Barot) sued Susquehanna Physician Services, Divine Providence, and Susquehanna Health System (and other entities) for breach of contract for failure to pay the full amount of physician incentive compensation Dr. Barot believed was due under his employment agreement. Dr. Barot was paid a base salary of $560,593. His agreement allowed incentive compensation at $85.24 per work RVU if he exceeded 10,000 work RVUs in a contract year. Dr. Barot is a gastroenterologist who performed endoscopy procedures. He billed for the procedure and for conscious sedation on the same encounter. Although Medicare bundles the conscious sedation service in the context of an endoscopy into the procedure, some commercial 24 | Keystone Physician | Spring 2018

third-party payers do not. Accordingly, Dr. Barot sought the compensation for all of the work RVUs, including conscious sedation. His employment contract also stated that his compensation cannot exceed the 90th percentile of the MGMA standards unless it was reviewed and approved by the hospital’s compensation committee, and did not exceed an amount that would constitute unreasonable compensation under the IRS rules or violate Stark and the Anti-Kickback statute. The hospital approved an additional $216,743, which gave him a total of $777,340 compensation. The physician sued to secure the full $1.1 million he would have been due based upon work RVUs performed and documented. The compensation committee denied the additional incentive bonus payment because he would have been paid at 1.41 times the MGMA 90th percentile, which the hospital deemed excessive, unreasonable and a potential Stark violation. Susquehanna moved for summary judgment to dismiss the case before trial. The federal judge

granted the hospital’s motion for summary judgment, dismissed the case in its entirety, and held as follows: 1.

The implied covenant of good faith and fair dealing applies to every contract in Pennsylvania.


Whether a party failed to exercise good faith in its performance of the contract is a fact-based inquiry. Case law suggests certain examples of “bad faith” which include evasion of the spirit of the bargain; lack of diligence and slacking off; a willful rendering of imperfect performance; abuse of the power to specify terms; interference with or failure to cooperate in the other party’s performance; and exercise of discretion in an unreasonable manner.


The hospital retained discretion to determine whether the total incentive compensation was excessive or unreasonable.


The hospital exercised its discretion permissibly and lawfully to reject the bonus that was significantly above the MGMA 90th percentile. Accordingly, the hospital system did not unreasonably exercise the discretion it afforded to itself under the terms of the contract.


The hospital system did not breach the contract by exercising its contractual discretion to refuse to pay incentive com-

pensation above the 90th percentile of the MGMA standards. 6.

The hospital compensation committee was permitted to rely on CMS Manual bundling provisions with respect to conscious sedation, even though many commercial thirdparty payers do not bundle the conscious sedation anesthesia service into the procedure.


The federal court did not specifically hold that compensation above the 90th percentile of the MGMA violates the Stark SelfReferral regulations or the Anti-Kickback statute.

It remains an open legal question whether incentive compensation above the MGMA 90th percentile can be paid for personally performed work RVUs. | 25

Unjustified disclosure of PHI: Breach of confidentiality/negligence A new Third Circuit U.S. Court of Appeals decision addressing potential civil litigation liability for unauthorized disclosure of protected health information (PHI) is important to consider. Published decisions from the U.S. Court of Appeals for the Third Circuit are binding law in Pennsylvania. In Lee v. Park, ___ Fed. Appx. ___ (3d Cir. 2017) (2017 WL 6508840), the issue was whether a physician can be held liable for potential monetary damages for alleged breach of confidentiality and negligence based on the physician’s disclosure of PHI without the patient’s consent. The facts in this case are unique, and a bit salacious. The physician prescribed ED pills for the patient. The patient’s wife was unsure about the number of prescriptions, so she called the physician, who disclosed the full number of prescriptions, which was more than the patient’s wife was told by the patient. The patient’s wife, based upon the physician’s disclosure, assumed he was participating in an adulterous affair. At no point did the patient consent to the release of his PHI to his spouse. After acrimonious legal proceedings, the patient and his wife divorced. The patient sued his physician for negligence per se, ordinary negligence and breach of confidentiality. The federal court dismissed the case prior to trial, and the patient appealed. The U.S. Court of Appeals upheld the dismissal of the negligence per se claim, but reversed the dismissal on the ordinary negligence and breach of confidentiality claims, which will require the health care provider to stand trial for damages based upon the disclosure of PHI without the patient’s 26 | Keystone Physician | Spring 2018

consent. The U.S. Court of Appeals’ important legal holdings include the following: 1. A health care provider can be held liable for breach of the obligation of confidentiality. 2. Potential liability for money damages stemming from a provider’s breach of confidentiality can be recognized as a basis for litigation. 3. A health care provider who discloses PHI without consent or authorization can breach the duty of care regarding confidential information, which may be the proximate cause of injury to the patient under these circumstances. Although the facts of this case are unique, the take-home compliance points are clear. Regardless of the type of PHI, a provider’s disclosure of any PHI, particularly super-sensitive PHI, without the patient’s consent or authorization, cannot be tolerated. Even disclosure of PHI to a patient’s spouse, under certain circumstances (and particularly when the PHI is super-sensitive) without specific authorization or without the patient listing his or her spouse on the HIPAA Privacy intake documentation, creates not only potential exposure to Office for Civil Rights HIPAA administrative fines, but also exposure to civil litigation for monetary damages. This is the type of decision that is useful as a HIPAA Privacy training tool to emphasize family physicians’ obligations and duties under federal Privacy regulations and state breach of confidentiality laws.

Waiver/reduction of patient co-insurance: out-of-network provider; ERISA/fraud issue U.S. Court of Appeals Decision out-of-network providers

The federal trial court ruled in favor of the provider and awarded over $16.7 million in damages and attorneys’ fees. CIGNA appealed. The Fifth Circuit U.S. Court of Appeals reversed the provider’s verdict and damages award and made the following important legal holdings: 1. A health plan can completely deny reimbursement to an out-of-network provider which waives or reduces co-insurance under health insurance plan exclusionary language and pay the provider nothing. 2. The health plan’s interpretation of the exclusionary language in the health insurance plan documents was not an abuse of discretion, and was upheld as reasonable.

A new U.S. Court of Appeals decision affecting the rights and obligations of out-of-network providers in the context of waiving or significantly reducing patient co-insurance obligations is important for family physicians to consider for compliance purposes.

3. The health plan can prosecute the outof-network provider in a fraud claim for routinely waiving or significantly reducing patients’ co-insurance obligations, which was previously dismissed by the trial judge.

Aggressive health plans now have the authority In CIGNA v. Humble Surgical Hospital, ___ F.3d under a U.S. Court of Appeals decision, published ___ (5th Cir. 2017) (2017 WL 6460150), the hosby a panel that is well respected and whose pital was an out-of-network provider with CIGNA. interpretations of the law may be persuasive, to The hospital routinely waived or significantly completely deny any reimbursement to providers reduced patients’ co-insurance obligations. CIGNA who waive or significantly reduce patients’ cosued the provider, seeking over $5 million in alleged insurance obligations and to sue the provider in a overpayments. The provider counterclaimed under fraud case. Although this admonition may be wella variety of legal theories, including underpayment, known, it is worth repeating: family physicians non-payment or delayed payment and violation of should not waive or reduce patients’ copayment, federal Employee Retirement Income Security Act co-insurance, or deductible obligations routinely (ERISA) laws. without a documented financial hardship. | 27

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28 | Keystone Physician | Spring 2018

Keystone Physician Magazine - Spring 2018  
Keystone Physician Magazine - Spring 2018