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Summer 2018

David O'Gurek, MD PAFP President





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CONTENTS Summer 2018

Volume 78

Number 2


ON THE COVER: Pennsylvania's family physicians gathered in the Old City section of Philadelphia for PAFP's first CME of the year. Attendees took advantage of CME sessions, attended the PAFP Annual Meeting, and participated in Research Day.


4 Get INSPIREd to build a home for family medicine in Pa.


8 Dennis Gingrich, MD runs for AAFP Board of Directors; ‘Speak Out’ on full practice authority for CRNPs; Pittsburgh Magazine's "Best Doctors"


10 Interview: 2018 Family Physician of the Year Michael Gaudiose, MD

18 Cover Story: City of Brotherly Love embraces PAFP for event weekend


28 Government Affairs: PAFP 2017-18 state legislative agenda and status report

30 Legal and Compliance Update:

37 31



PA Supreme Court limits peer review protections; Production of PHI in response to subpoena breach of confidentiality; Constitutional challenge to California balance billing legislation dismissed


37 Online CME Catalog

President’s Message PA Academy of Family Physicians & Foundation

DAVID O'GUREK, MD, President

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.

EXECUTIVE VICE PRESIDENT John S. Jordan, CAE ( STAFF Deputy Executive Officer / Chief Operation Officer Brent Ennis ( Chief Education Officer Janine Owen (

Get INSPIREd to build a home for family medicine in Pa.

Chief Financial Officer Karen Runyeon ( Director of Resident and Student Initiatives Molly Talley ( Director of Education Lindsey Killian (

2015-16 OFFICERS

As one of my favorite movies Patch Adams begins, “All of life is a coming home.” It’s hard to believe that it has been nearly two months since my inauguration as president of the PAFP. One of the most meaningful and powerful experiences of my life, this achievement was highlighted by the opportunity for my family to meet the family of family medicine that has been such a huge part of my medical experience to date. After all, it was through the inspiration and upbringing of my family that I came to this service profession as well as my passion to become engaged in our great Academy. Additionally, my parents and grandparents always reminded me to never forget where I started and where I came from.

PAFP President ( David O'Gurek, MD (Philadelphia) PAFP President-Elect Mary Stock Keister, MD (Fogelsville) Foundation President Tiffany Leonard, MD (Willow Grove) PAFP and Foundation Treasurer Chris Lupold, MD (Lancaster) PAFP Board Chair and Immediate Past President Edward Zurad, MD (Erie)

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

BOARD OF DIRECTORS D. Scott McCracken, MD (York) Margaret Baylson, MD (Philadelphia) James Joseph, MD (Cattawissa) - Foundation Vice President Mary Stock Keister, MD (Fogelsville) - Foundation President

Our specialty is no different. Despite a rapidly changing culture and obviously changing times, we need to remember the roots of our specialty. There is a cyclic nature around these things, and despite circumstances, the current challenges that health care faces are variations on themes dating to when the specialty of family medicine first began. No truer then than now is the immense value that you, our members, bring to the health care system. The impact that you have on the lives of your patients as well as in your communities big and small remains the solid foundation in which the health care system must build a sustainable system for now and the future. This is undoubtedly due to the fact that you hold steadfast to the intrinsic drive and values that got you started in this great profession. 4 | Keystone Physician | Spring 2018

Tracey Conti, MD, (Monroeville) Jenna Fox, MD (Lancaster) - Resident Chair Kyle Gleaves (Williamsport) - Student Chair

Having the opportunity to meet with undergraduate students in different roles, I am often asked what piece of advice I give to students who are just embarking on their medical career. My advice is always the same: keep a copy of your medical school personal statement; read it the night before you start medical school, in the winter of your first year when you might question whether you made the right choice, the night before you start your clerkships, when you are considering what specialty to choose, the night before Match Day, and after your graduation. It’s not ironic to me, therefore, that the opening to this column is the same as the opening to my personal statement for medical school.


The PAFP has indeed been “a home” for me since my medical student days. To have the opportunity to stand and address members as the new president, with the presidents before me who paved the way and sparked my passions for family medicine, was humbling. Having been a benefactor of the PAFP in so many ways, my service is a unique opportunity to continue to give back. And so, in an effort to inspire all of us to remember where we came from and to give back to inspire our next generation of family physicians who will one day stand at that podium, our Foundation is embarking on a campaign – FM INSPIRE (Family Medicine INfluencing SPecialty Interest REvolution).

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The Foundation has served the interests of our students and residents for quite some time, advancing the future of our specialty. I personally have been the recipient of Foundation support to attend the AAFP National Conference of Family Medicine Residents and Students as well as participated in Research Day. It is these opportunities that provide our students and residents with a feeling of “home” within the PAFP as well as the AAFP and inspire them to not simply join our ranks but also to become an active part of our Academy. This, after all, is part of my story. I stand as your president partly because of the generosity and willingness of many of you to give back to the future of family medicine through our Foundation. In doing so, many of you remember and reinvigorate those words that you wrote in your medical school personal statement to give back and make a difference. And so, this Foundation campaign is about all of us coming home. I’m delighted to highlight this in my first column as your president, as it is so critical to provide the support to our students and our residents, remembering our own roots. Having the opportunity to work with many students and residents, I am continually inspired by their energy and their commitment to our specialty and the patients we serve. My personal story, the

I stand as your president partly because of the generosity and willingness of many of you to give back to the future of family medicine through our Foundation teachings of my parents, and my gratitude to the family of the PAFP that has led me to where I am today invigorates me to actively give to this campaign as well as promote it for the success not merely of our Foundation but rather the future of family medicine in the Commonwealth. I trust that you will join me. You can learn more about the PAFP Foundation here and please consider making a donation today by using the link at the bottom of this page.


PAFP FOUNDATION Your donation builds a home for future docs


6 | Keystone Physician | Summer 2018

You’re invited to PAFP’s Second Annual

Procedures and Clinical

Dermatology Event

September 6-7, 2018

The Penn Stater Hotel and Conference Center 215 Innovation Boulevard · State College, PA 16803


November 2-4, 2018 • Nemacolin Woodlands Resort Watch for details and registration

Register today at

Member News

Former PAFP President Dennis Gingrich, MD runs for AAFP Board of Directors Dennis Gingrich, MD of Hershey, a past-president of the PAFP who has held many roles within the organization, has just launched his campaign for a spot on the American Academy of Family Physicians’ (AAFP) Board of Directors.

that town since 1986; he is currently a professor in the college’s departments of Humanities and Family and Community Medicine. A faculty or family medicine interest group (FMIG) adviser for hundreds of medical student, Gingrich has taught students who have served in positions with both the AAFP and PAFP, including current PAFP President David O’Gurek, MD.

Gingrich, who was born and raised in Hershey, has been educating future physicians at the Pennsylvania State University College of Medicine in

To learn more about Gingrich’s campaign, including a biography and personal statement, visit the PAFP’s Dennis Gingrich, MD: Candidate for AAFP Board of Directors webpage.

PAFP members urged to ‘Speak Out’

PAFP congratulates Pittsburgh

on full practice authority for CRNPs

Magazine's "Best Doctors"

For more than five years, legislation that would eliminate collaborative agreements for certified registered nurse practitioners (CRNPs) has been under consideration in Pennsylvania.

The PAFP would like to recognize and honor its Pittsburgh-area members who made Pittsburgh Magazine's list of Best Doctors. The magazine's cover story awarded 674 physicians in 77 specialties; every family physician recognized is a member of the Pennsylvania Academy of Family Physicians.

The PAFP Board of Directors opposes this effort and asks for your help in advocating against House Bill 100 and Senate Bill 25. Click here to be directed to the AAFP's Speak Out tool to take action.

8 | Keystone Physician | Summer 2018

Congratulations to: Salah Almoukamal, MD Gerald Byers, MD Joanne Byers, MD Robert Crossey, DO Mary Jo Houston, MD Rajiv Jana, DO Dorothy Wilhelm, MD






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Dr. Michael Gaudiose shortly after receiving the award, pictured here with his wife, Pam. Michael Gaudiose, MD of Chambersburg, Franklin County, the PAFP’s 2018 Family Physician of the Year, began his medical journey as an undergraduate at Cornell University in Ithaca, New York. He attended the Ohio State University School of Medicine in Columbus, Ohio, and completed his family practice residency at Akron City Hospital in Akron, Ohio. In 1980, Gaudiose founded Cumberland Valley Family Physicians in Chambersburg, Franklin County with two colleagues, offering a full complement of family medicine services, including obstetrics and hospital inpatient care. He practiced there for 35 years before transitioning to Dunham Army Health Clinic at the Army War College in Carlisle, Cumberland County, where he continues to practice today. Here, in his own words, Gaudiose discusses his career, his passions, and what role the Pennsylvania Academy of Family Physicans has played in his life as a family physician. You can learn more about Dr. Michael Gaudiose – as well as past Family Physicians of the Year – by clicking here. 10 | Keystone Physician | Summer 2018

On choosing family medicine as a career: I did not decide to go into medicine until the end of my college career. I initially had been interested in wildlife biology, and then a wide variety of other things, but I decided on medicine as a career because I felt that it was a great way of being able to live my interests in biology, in health, as well as help people. I saw that as a great way to do that. Why did I "sign on" to family medicine in particular? I loved everything about medicine: I loved pediatrics, I loved delivering babies, I loved adults. I just couldn't see myself giving up some aspect of medicine. Family medicine allows you to be involved in all aspects of medicine, so I really appreciated that. Finally, having the relationship with a family doctor is kind of the most fundamental healing relationship that you have, outside of your family. I wanted to be a part of that. On his motivations as a family physician: There are really three things that motivate me. First of all, a sense of purpose. I think your sense of purpose is the greatest motivator for most of us, regardless of what our career choice is. Once I chose family medicine, I felt that it was such a good fit for me. I have always felt that it's my God-given purpose, to continue to do family medicine and to help people in their own health struggles, help them to be healthy, and to be able to serve others at their best capacity. My sense of purpose, that God-given purpose, has been my number-one driving force. The second one is interest. Health, biology, the body has always interested me, and continues

to: I am as interested in it now as I was when I was in college. I love to read about it, I love to understand more. Who knows why you choose your interest? Some people say that you choose your passion; other people say your passion chooses you. It's a great mystery. My wife's an engineer, and she loves fixing things and figuring out how things come together, solving problems. That's her interest, it's just always the way she's been. My interest has always been biology and health. The third thing is that, for me, it's fun! I have fun every day! Despite the struggles there are in health care today, something funny or fun happens every day that gets me out of bed to say "Hey, I want to do this." On leaving private practice for the Army War College: Toward the end of my career, my wife and I were talking - I'd been on various missions trips, and I kind of wanted to end my career really committed to being in service in some area. I sort of thought that maybe I would spend the last few years of my career doing missions work. Then this thing called grandchildren came along. I have six grandchildren, and my wife and I are very connected to our grandkids. We realized it would not have been possible for us to leave and not be a part of their lives for two or three years. So we thought, maybe there's a different way of giving back, being of service. Now, I was never in the military myself, but my wife was an engineer for the Army for quite a few years and said there's a great sense of service in trying to give back to the military. That attracted me. | 11

I loved my practice. I loved my partners - we started this practice together. I loved my patients. We had a great staff - in fact, a number of them showed up [to the Family Physician of In his acceptance speech, Dr. Gaudiose spoke of the deep admiration and appreciation he the Year award has for his colleagues. It was clear to everyone that the feeling was mutual when those in ceremony]. To be honest, I saw attendance from his office enthusiastically waved pink pom-poms in celebration. the values of the health system On the importance of medical mission trips I was a part of and my own personal values throughout his career: begin to not line up very well. I was disenchanted with the way they were treating people and the direction they were going with how I have gotten more out of these medical misthey spent their influence and their money. sion trips, I believe, than I've actually given. I've They weren't as primary-care-oriented. been friends with a couple who are missionarOn how family medicine is valued in the health care system: Medicine has been somewhat hijacked by corporate medicine, and those values don't always jibe with primary care values, which bring the greatest health to people. That's [the bad part of] why I decided to leave private practice - we were part of a health system that I no longer felt comfortable being a part of. This issue is "coming to a theater near you" for many family physicians, you know? That's part of what I'm involved in with the PAFP. I believe that strengthening the PAFP and having an organization that we can rely on as physicians is going to strengthen our position as family doctors. 12 | Keystone Physician | Summer 2018

ies in Honduras, and we've gone four times [to serve with] this veterinary couple in a small town called Trujillo. Some local churches and local physicians got together, with their encouragement, and started serving there. What it does, really, is that there's always a great joy when you have the opportunity to serve others in an open and giving way, when you can use your skills and talents to serve. You don't have to be a physician to do that. I remember on one of the trips, we joked around that the "most valuable player," the MVP of the trip, was this guy who was an insurance adjuster for cars. He did every single thing a person could do to expedite the process for everyone. There are many tasks that can be done, even on a medical mission trip, if you're not a physician.

The other thing that it does: different than going on a trip or a vacation, it allows you to see a part of what it is to live, to be a part of the lives of people who live in a Third World country and to see the struggles that they go through day by day - and some of their own joys, too. It makes you appreciate the material gifts that we have here, to see the things that we look at as "big issues" and put them into perspective and realize that they're pretty trivial sometimes. We all need different perspectives sometimes. Some people climb a mountain to get a different perspective, or go on a vacation, or climb a tree. Missions trips are a great way to get a different perspective on things. Pure service is a great way to connect with people. You don't have all the government regulations and the documentation, the onerous things that sometimes get in the way of enjoying the practice of medicine. It's simply, "let's take care of your need and do the best we can do with the things we have." It's just a joy. On how to provide personalized care: It's a little easier in a smaller community, like I was in, because you get to know people in a much more intimate way: your kids may go to school together, or they may play on the same softball team. I was involved with sports medicine as well, so I got to see a lot of kids through that. You see them not only as a physician, but you see people in various aspects of their lives when you practice in a community like that. So that was an asset in terms of building relationships. I think the key, for anyone, is truly taking an interest in that individual person. I always tried

to find something that person did or liked, what their passion was, and I tried to remember that and ask them about it - to learn about their family, that kind of thing. I'd always try to find something fun about somebody. Everybody has a story, and I enjoyed hearing their stories as well, and remembering the stories that were important to them in their lives. Those were some things I found helpful in building long-term relationships. On the challenges ahead for family medicine: There's a loss of autonomy in family medicine. So many of us are in an employed situation, and the loss of autonomy has become a challenge. One of the most interesting things that I've found in surveying family physicians is that financial reimbursement is not by any means the number-one concern of most family physicians. I kind of sensed that, but to actually see that on paper was pretty enlightening to me. We, as family physicians, want to make the priority serving the health care needs of the people that we are tasked with serving. That's not the priority, always, health care systems. So I see a disconnect between what family physicians and others in primary care want and what health systems wants. Health care systems want to put up a veneer or give lip service to primary care, but they don't invest their money there in other ways that are going to bring greater profit to their organization. I also think that the employed relationship that many physicians have now has not been that fulfilling and gratifying to them, because they have very little control over their day-to-day work | 13

schedules, how things flow - it's more difficult to work in an environment where you feel you have very little autonomy or control over how things are run. On being an involved and engaged member of the PAFP: Being a part of the PAFP is a way of giving back. I think in the early part of my career, I was not as active. Back in those days, we were running a business, we were delivering babies, we were taking hospital work, we were on call and up at night time, and I was raising a family. Those were my priorities, and it was harder to be involved with the PAFP. I was also I was involved with helping the police and fire departments in Chambersburg, I was the team doctor for the Chambersburg high school, and there were so many things in the area that had my attention. It was hard to be involved.

As time went on, I got more involved with the PAFP as a way of giving back. I became involved with the Education Committee, now the Committee on Professional Development. When I finally did, I was really excited by it - I just greatly enjoy working with the great professionals at the PAFP, like [Chief Education Officer] Janine [Owen] and [Director of Education] Lindsey [Killian]. I love interacting with colleagues from different parts of the state. It has been very uplifting to me.

As the weather heats up, chill out with this holiday-themed column from Dr. Gaudiose, published in his hometown newspaper, The Public Opinion. This piece is a part of a series called “Good Medicine” that Gaudiose writes for the paper.

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PAFP FOUNDATION Your donation builds a home for future docs

“ Having been a benefactor of the PAFP in so many ways, my service is a unique opportunity to continue to give back.” David O’Gurek, MD PAFP President; Assistant Professor, Family and Community Medicine Temple University

Read Dr. O’Gurek’s article about the PAFP Foundation located elsewhere in this publication

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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

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City of Brotherly Love embraces PAFP for event weekend The City of Brotherly Love embraced the PAFP along with more than 200 members and guests on Friday, March 2 through Sunday, March 4 for the 2018 Combined PAFP and Temple University Department of Family Medicine CME Conference. The event kicked off Friday with a wintery welcome as the PAFP opened the conference with the Annual Business Meeting and election of new officers and board members. Throughout the opening day, attendees participated in the state required Act 31 Training and board review focused sessions. Opening day concluded with a celebration honoring 2018-19 PAFP President David O’Gurek, MD at Citizen’s Bank Park, home of the Philadelphia Phillies. The next day brought better weather and more sun along with more than 20 exhibitors on-site in addition to PAFP’s annual Research Day with oral and poster presentations featuring research that consistently raises the bar on previous years' winning entries. A special addition to this year’s program featured a dedicated career-planning track for residents and students. Rounding out the day was the PAFP’s Second Annual Chili Cook-Off with support from the Pennsylvania Beef Check-

Off, plus a visit from a very special Philadelphia icon, Benjamin Franklin! The event weekend concluded with a seminar hosted by retired DEA agent Bob Stutman, a past PAFP favorite speaker from Boca Raton, Florida. This year, Stutman returned with special guest Judge Jodi Switalski to discuss the etiology of the 21st-century drug epidemic, the paradigm shift in the U.S., and how the epidemic differs from those of previous generations. Congratulations to our cash drawing winners, Dr. Brad Fox of Erie, Dr. Teresa Lowery of Fairview Village. All attendees at our CME conferences are automatically entered into the final drawing for cash prizes, a great way to close out a superb weekend. Be sure to check your e-mail and for registration details and agendas for upcoming CME events. The PAFP’s Second Annual Clinical Procedures in Dermatology event will be held Sept. 6 and 7 in State College; the PAFP’s November CME Conference will be held Friday, Nov. 2 through Sunday, Nov. 4 at Nemacolin Woodlands Resort in Farmington. | 19



A representative from The Core Group speaks with a conference attendee during one of the many breaks set aside for exhibitors.

The 2nd Annual Chili Cook-off saw strong competition. Coming out on top was Tammy from Geinsinger (far left) and in second place, Kurt from Patient First (far right).

It was a full house for this year's PAFP Annual Business Meeting where hono 20 | Keystone Physician | Summer 2018

Current AAFP President, Wanda Filer, MD, MBA, FAAFP (right) introduces newly-installed PAFP President, David O'Gurek, MD (left).

2018 PAFP Family Physician of the Year, Dr. Michael Gaudiose, MD gave an lively speech in which he focused on the support he's received from family and colleagues.

Research Day was as lively event as we've seen with high attendance and physician interest. Dr. Wanda Filer, MD (center) speaks with one of the poster presenters.

Students and residents attended a panel discussion about career planning in which they received advice on job searches, personal finance, and Visa waiver programs.

ors and awards were given. Thanks to Patient First for sponsoring this event. | 21



Immediate Past President of the PAFP, Robert Rodak, DO, presents Tracy D. Conti, MD with an award for her service with the organization.

Research Day not only provdes a forum for students to present their research finding, but serves as a way for participants to connect with their peers. 22 | Keystone Physician | Summer 2018

Sukhjeet Kaur Kamboj, MD proudly displays the certificate documenting the award of degree of Fellow of the American Academy of Family Physicians.

PAFP Leadership and conference attendees look on as 2018 PAFP Family Physician of the Year, Dr. Michael Gaudiose, MD speaks from the podium.

Visiting with exhibitors at PAFP conferences is more than an opportunity to learn about products and services, but offers a chance to discuss issues facing family physicians.

Dr. Wanda Filer, MD (right) takes part in tradition by helping to swear in Dr. David O'Gurek, MD (left) to the position of PAFP President.

When it comes to extraordinary leaders, we have here two of the finest. PAFP Past President, Dr. Dennis Gingrich, MD shaking hands with well-known Founding Father.

Dr. Edward Zurad, MD (right) has a long history of leadership within the PAFP. Here, PAFP EVP John Jordan, CAE presents an award for service. | 23



The PAFP Political Action Committee (PAC) fundraiser event took place at the swanky Lucky Strike bowling lounge in Center City, Philadelphia.There were some strikes.

PAFP President, David O'Gurek, MD's innuaguration was celebrated at Philadelphia's Citizen Bank Park. Dr. O'Gurek's family was in attendence for the festivities in the stadium's 'Hall of Fame' club.

PAFP PAC chair, D. Michael Baxter, MD (left) and PAFP Deputy Executive Vice President, Brent Ennis (right) at the fundraising event.

ore View m tos ho event p ook b on face PAFP staff put together a well-curated slide show of PAFP President, David O'Gurek, MD. Dr. O'Gurek's family delighted at seeing the images of him rising through the ranks to where he is today. 24 | Keystone Physician | Summer 2018

2nd Annual Procedures and Clinical Dermatology September 6-7, 2018 • State College, PA Nemacolin CME Conference November 2-4, 2018 PAFP Annual Business Meeting & CME Conference March 7-9, 2019 • Gettysburg, PA Bedford CME Conference November 2-4, 2018 • Bedford, PA


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T h e Pe n n sylva n ia Ac a d e m y o f F a m ily P hy s i ci ans

Political Action Committee | 27 | 27

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

PAFP 2017-18 state legislative agenda and status report (as of April 20, 2018) The PAFP’s State Legislative Agenda is crafted through the Government and Practice Advocacy Committee with position decisions made by the Board of Directors. Sue Fidler, MD, chairs the Committee with vice chairs Manasa Irwin, MD, and Perry Meadows, MD.

Sue Fidler, MD

Manasa Irwin, MD

NURSE PRACTITIONER INDEPENDENCE The PAFP opposes legislation that would eliminate collaborative agreements. Senator Camera Bartolotta (R-Washington) is the prime sponsor of Senate Bill (SB) 25 and Rep. Jesse Topper (R-Bedford) is the prime sponsor of House Bill (HB) 100. SB 25 passed the Senate on April 26, 2017, and both bills reside in the House Professional Licensure Committee. PRIOR AUTHORIZATION REFORM The PAFP supports HB 1293 that would maximize electronic communications for authorizations as well as adverse determinations and for 28 | Keystone Physician | Summer 2018

Perry Meadows, MD

the creation of a panel to develop a standardized form each insurer. Further, it would define consistent response times for authorizations, rejections, appeals, and external utilization review. Rep. Marguerite Quinn (R-Bucks) is the prime sponsor. The bill was introduced May 1, 2017 and is in the House Insurance Committee. DIRECT PRIMARY CARE AUTHORIZING LEGISLATION The PAFP supports and was the lead stakeholder with HB 1739 and SB 926 that specifies direct primary care agreements are not insurance and therefore not subject to insurance laws or regulations. The House Bill, introduced

by House Health Committee Chairman Matt Baker (R-Tioga), passed the House Representatives unanimously on Sept. 27, 2017. It and SB 926, sponsored by Senate Appropriations Chairman Pat Browne, both rest in the Senate Banking and Insurance Committee. HEALTH INSURER CREDENTIALING REFORM The PAFP supports HB 125, introduced by House Health Committee Chairman Matt Baker (R-Tioga) that would standardize the credentialing form and set processing standards. HB 125 passed in the House on May 24, 2017 and is in the Senate Banking and Insurance Committee. RESTRICTIVE COVENANTS The PAFP supports legislation limiting restrictive covenants in health care practitioner employment agreements. HB 346, introduced by Rep. Tony Deluca (D-Allegheny), states that a contract may not establish an employment relationship with a health care practitioner that includes a restriction on a health care practitioner to practice in a geographic area for a period of time after the termination of the employment relationship. The bill currently rests in the House Health Committee. BUPRENORPHINE MEDICALLY ASSISTED TREATMENT ACT The PAFP opposes legislation that would require prescribers of buprenorphine to be licensed by the state and pay a $10,000 licensing fee. HB 932, introduced by Rep. Gene DiGirolamo (R-Bucks), rests in the House Human Services Committee. SB 1054, introduced by Senator Michele Brooks (R-Mercer), is in the Senate Health and Human Services Committee.

POLST LEGISLATION The PAFP supports updating and revising Pennsylvania law to include codification of Pennsylvania Orders for Life Sustaining Treatment (POLST) to be used by medical professionals across all health care settings for patients who voluntarily wish to execute a POLST order. Rep. Bryan Cutler (R-Lancaster) has introduced HB 1196 which rests in the House Health Committee, while Sen. Gene Yaw (R-Lycoming) has introduced SB 623 in the Senate which passed out of the Senate Health and Human Services Committee on Dec. 12, 2017 and is currently in Senate Appropriations. WORKPLACE ACCOMMODATIONS FOR NURSING MOTHERS The PAFP supports legislation that requires employers to provide unpaid break time or permit an employee to use paid break time, mealtime or both, to allow the employee to express breast milk for her nursing child. The employer shall provide a room or other private location in close proximity to the work area, other than a bathroom, where an employee can express breast milk so long as these requirements do not impose an undue hardship on an employer with fewer than 50 employees. HB 1685, sponsored by Rep. Mary Jo Daly (D-Bucks), currently rests in the House Labor and Industry Committee. CLEAN INDOOR AIR ACT EXPANSION The PAFP has long supported a ban on indoor smoking, and supports HB 1309, which would eliminate the current exceptions to the law to include casinos, bars, and private clubs. House Health Committee Chairman Matt Baker (R-Tioga) is the prime sponsor. The bill is in the House Health Committee. | 29

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

Peer review protections limited by new Pennsylvania Supreme Court decision The Pennsylvania Supreme Court has published a new, lengthy decision significantly limiting the Peer Review Protection Act that may negatively affect internal peer review procedures relating to incident reports and performance reports being insulated from discovery in a medical malpractice action. In Reginelli v. Boggs, ___ A.3d ___ (Pa. 2018) (2018 WL 1473633), a physician, hospital and physician group were sued in a medical malpractice case. The physician group contracted with the hospital to provide medical services. One physician in the group served as the internal medical director and conducted performance reports on the physician that was sued as part of a regular practice of reviewing randomly selected charts associated with patients treated by the defendant physician and other physicians within the group. Once the plaintiffs learned there was an internal peer review and performance report on the defendant, they demanded all of the internal peer review documentation in discovery. The trial court and Superior Court allowed the plaintiff access to the report, and the defendants 30 | Keystone Physician | Summer 2018

appealed to the Supreme Court. The Supreme Court affirmed the lower court decisions and forced disclosure of the internal peer review performance file and documents relating to the defendant physician. The Supreme Court’s important legal holdings include the following: 1. The Peer Review Protection Act (PRPA) contains an evidentiary privilege precluding the discovery or introduction into evidence in any malpractice case any records of a peer review committee. 2. Only individuals or organizations approved, licensed or otherwise regulated to practice meet the definition of “professional health care provider.” A medical group practice is not a professional health care provider under the Peer Review Protection Act’s definition of that term. Just because the medical group is comprised of numerous physicians, it is not itself a professional health care provider because a medical

group practice is unregulated and unlicensed. 3. It does not matter that the peer review performance documents at issue in this case were generated and maintained by a physician employed by the medical group during her review of the performance of another employee of the group. 4. The medical group does not qualify as a professional health care provider under the Peer Review Protection Act because it is not approved, licensed or otherwise regulated to practice or operate in the health care field in Pennsylvania, and it did not become one because one of its physician employees conducted an evaluation of another physician employee. 5. The physician who conducted the peer review was not a member of the hospital’s peer review committee. Accordingly, although individuals reviewing the professional qualifications or activities of its medical staff are defined as a type of “review organization,” such individuals (including physicians) are not review committees entitled to the Peer Review Protection Act’s evidentiary privilege. 6. While it is possible that the physician conducting the review, as an individual, may qualify as a “review organization,” the Peer Review Protection Act does not extend its grant of evidentiary privilege to that category of “review organization.” Individuals conducting peer review are not defined as a “review committee” under the PRPA. 7. As a result, the Supreme Court concluded that the physician, as an individual, was



not a “review committee” engaging in peer review, and the hospital are not entitled to claim the Peer Review Protection Act’s evidentiary privilege based upon her work as a member of its medical staff. 8. In language referred to in legal terms as dicta, which is a general discussion and may or may not include the actual legal holding in the case, it appears the Supreme Court also eliminated peer review protection for hospital credentialing. The Supreme Court’s Opinion is potentially devastating. It appears the decision means a physician practice group that employs physicians and other licensed health care providers may not qualify for peer review privilege protection either for its own internal peer review activities or for peer review activities that it had been engaged to conduct on behalf of a hospital. | 31

Production of PHI in response to subpoena breach of confidentiality A new decision allowing a patient’s breach of confidentiality claim against a health care provider for disclosing protected health information (PHI) in response to a subpoena provides additional guidance regarding the complicated analysis and tension between the federal HIPAA Privacy regulations and state confidentiality laws that may be more stringent than the HIPAA Privacy regulations.

poena and an opportunity to object. Instead, the provider produced the medical records. The patient then sued the provider for breach of confidentiality, i.e. negligently failing to use proper and reasonable care in protecting her medical file, including disclosing it without authorization and without following the HIPAA subpoena response protocol. The Supreme Court’s important legal holdings include the following:

In Byrne v. Avery Center for Obstetrics and Gynecology, P.C., ___ A.3d ___ (2018), the patient sued the health care provider for improp1. The HIPAA Privacy regulations do not preerly breaching the confidentiality of her medical empt state breach of confidentiality legal records, and asserted several claims under state claims. In other words, a patient can sue law for breach of confidentiality and negligence. a health care provider in state court for The trial court dismissed the complaint, holding damages under a breach of confidentialthe provider properly disclosed PHI in response ity legal theory, and the HIPAA Privacy to a subpoena in a civil court litigation matter. The regulations do not prevent that. state Supreme Court reversed the dismissal and will require the trial court, on remand, to deter2. The health care provider’s failure to follow mine if the proper subpoena procedures were the HIPAA Privacy subpoena “satisfacfollowed under the HIPAA Privacy regulations. tory assurance” requirements and production of medical records in response to a Here are the important facts. The patient subpoena can create breach of confideninstructed the provider not to release her meditiality claims and damages exposure in cal records to an individual with whom she had state court. a previous personal relationship. That person filed a paternity action against the patient in state 3. The HIPAA Privacy regulations do not allow court. In that litigation, the provider was served patients to sue health care providers, i.e. with a subpoena requesting production of medithere is no “private right of action” in court to cal records. The health care provider did not enforce violation of the HIPAA Privacy regualert the patient of the subpoena; did not lations. The only remedy as it relates to the file a motion in court to have the subpoena HIPAA Privacy regulations themselves is for stopped; did not appear in court; and did the offended person to file a complaint with not receive satisfactory assurances that the the U.S. Department of Health and Human patient was given prior notice of the subServices Office for Civil Rights. 32 | Keystone Physician | Summer 2018

4. Despite the fact that there is no private right of action in federal or state court to enforce a violation of the HIPAA Privacy regulations, a patient can still sue the provider for breach of confidentiality in state court and use the HIPAA Privacy regulations as the theoretical basis to establish the required standard of care, the required duty, and violation of those duties. If that seems counterintuitive to point 3 above, it probably is. In fact, another federal court decision that was published at the same time in Haywood v. Novartis Pharmaceuticals, 2018 WL 437562 (N.D. Ind. 2018) specifically held the opposite, i.e. the plaintiff cannot use the HIPAA Privacy regulations as the basis for establishing negligence because to do so would circumvent HIPAA’s enforcement mechanisms. The courts throughout

ject of the PHI that has been requested has been given notice of the request; or they have secured a qualified protective order. Receiving satisfactory assurances from the party seeking the PHI constitutes a written statement and accompanying documentation demonstrating that: •

The party asking for the PHI made a good faith attempt to provide written notice to the individual (patient);

The notice included sufficient information about the litigation or proceeding in which the PHI is requested to allow the patient to raise an objection in court; and

• The time for the individual to raise objections has elapsed and either no

CONFIDENTIALITYBREACH the United States are split on this issue. Many s tate courts, however, continue to allow patients to exploit a loophole to sue for breach of confidentiality using the standards set forth in the HIPAA Privacy regulations as the legal basis for a state law breach of confidentiality claim. 5. The HIPAA Privacy regulations allow PHI to be produced in response to either a Court Order or a subpoena if the provider receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by that party to ensure that the individual who is the sub-

objections were filed or any objections have been resolved by the court. 6. In this case, the provider should have contacted the patient, but did not, before any PHI was disclosed in response to the subpoena. The important compliance points include the following: 1. This case demonstrates the requirement to check the patient’s file to determine whether the patient has made any notification not to produce records when | 33

a subpoena is received, and honor the patient’s directives. It essentially means the patient can veto a subpoena. If the health care provider does not honor the “veto,” the patient can sue the provider for breach of confidentiality. 2. The most prudent course of action when a subpoena is received is to do each of the following: •

Contact the patient to determine whether the patient has any objections to production of the records;

Obtain the authorization from the patient or confirmation by the patient’s attorney granting permission before producing the medical records.

3. If the patient has not asserted any specific objections to the production of PHI, make sure all of the “reasonable assurance” requirements stated above are followed before producing the PHI in response to the subpoena. 4. If an actual Court Order signed by a Judge exists, the Court Order trumps everything, and requires production of the PHI.

Look in the file for any restrictions on production of PHI to any particular parties; and

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Constitutional challenge to California balance billing legislation dismissed The Association of American Physicians and Surgeons (AAPS) filed a lawsuit in a California federal court asserting a facial constitutional challenge to AB 72, the California Balance Billing legislation, which prevents out-of-network physicians from billing patients anything more than the in-network co-insurance amounts and caps reimbursement to out-of-network physicians based on Medicare rates and other factors. The government filed a motion to dismiss the case. In AAPS v. Brown, ___ F.Supp.3d ___ (E.D. Cal. 2018) (2018 WL 1535531), the federal court analyzed the constitutional issues and dismissed the case, without prejudice. Dismissing the case “without prejudice” allows AAPS to re-file the constitutional challenge if there is evidence in the future that the reimbursement rates imposed on out-of-network physicians are confiscatory and violate substantive and procedural due process protections under the U.S. Constitution. AAPS indicated that it intends to file an Amended Complaint to convert the lawsuit to an “as-applied constitutional challenge,” when they gather specific instances demonstrating how AB 72 is being applied in an unconstitutional manner. Part of the decision dismissed the Governor of California as a defendant because he is not a proper party under the Eleventh Amendment to

the U.S. Constitution. Another part of the decision dismissed AAPS because AAPS did not have proper standing under the law. The federal court also held that even if AAPS had standing, its claims fail on the merits because they could not plead there were no set of circumstances under which AB 72 would be valid, i.e. that the law is unconstitutional in all of its applications. Interestingly, the federal court “telegraphed” several circumstances under which an “as-applied constitutional challenge” might succeed. For example, the court stated: There are aspects of the Act that appear troubling at this early stage. For example, | 35

although the default rate provisions seem to leave open the possibility that out-of-network doctors will be able to negotiate higher rates, from a practical perspective, it seems more likely that in practice those rates will end up acting as a ceiling rather than a floor. To the extent that occurs, Plaintiff may be able to successfully pursue an as-applied challenge based on its current position that those rates are confiscatory. The court also stated: Whether the rates are confiscatory turns on whether the insurance companies will actually negotiate with out-of-network physicians, whether the arbitration provisions are effective, and whether physicians ultimately pursue remedies in court. The court dismissed Equal Protection constitutional challenges because the court found a rational basis for protecting patients from surprise balance bills. Therefore, the Equal Protection theory is probably not viable at all. The court dismissed one of the procedural due process constitutional challenges because neither the default reimbursement rate nor the independent dispute resolution process is binding on providers because they can always seek judicial review of a specific reimbursement claim. With respect to the substantive due process challenge, the court stated as follows: The problem with Plaintiff’s argument is that, as already indicated, while Plaintiff’s assertions may eventually prove correct once the 36 | Keystone Physician | Summer 2018

Act is actually applied to certain physicians, it does not, by its terms, impose a mandatory rate that this Court can determine as confiscatory in every application. The court dismissed the substantive due process challenge, as well the other constitutional claims, because AAPS could not plead that the challenged provision will be arbitrary and discriminatory in all applications. Returning to the procedural due process analysis, the government argued: The only way to find the [arbitration] provision unconstitutional would be to delete the provision that provides for judicial review. ••• Courts have held that statues which require participation in arbitration (like the Act) are constitutional as long as subsequent court review is permitted. With respect to the Fifth Amendment Takings Clause argument, AAPS argued that by forbidding out-of-network physicians from collecting their full charges on their claims for services rendered, the Act deprives them of their property interest in reimbursements, without just compensation. The court stated that, like the other arguments, it comes down to whether the Act imposes rates that are confiscatory and mandatory, but there is no evidence of that on this facial constitutional challenge. AAPS intends to file an Amended Complaint asserting “as-applied” constitutional challenges once enough evidence is obtained.

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Keystone Physician Magazine - Summer 2018