Tuesday, August 28, 2007

CMS loosens restrictions on restrictive covenants in physician employment agreements

Bob Coffield notes at the Health Care Law Blog that the Centers for Medicare and Medicaid services released their final Stark III Physician Self-Referral Rule (PDF), which will be published in the September 5 Federal Register.

I was glad to see some clarification of one provision that appeared to ban all sorts of restrictive covenants in physician contracts. Under the existing regulation, 42 CFR §411.357(e)(4)(vi), a physician practice that receives remuneration from a hospital to assist with recruiting a new physician to the area is prohibited from imposing "additional practice restrictions on the recruited physician other than conditions related to quality of care."

The only specific example of a practice restriction that the CMS gave in its previous commentary to the Phase II rules was a noncompete agreement. While this gave clear guidance that covenants not to compete were no longer permitted in employment or other agreements between the physician practices and new physicians (where the hospitals were providing financial recruitment support), there was considerable uncertainty as to what other types of practice restrictions were impermissible. Physicians practices argued that the provision made them less likely to hire new physicians and, as a result, hospitals would be hindered in their abilities to attract new physicians to meet the their communities health care needs.

CMS listened, and is revising §411.357(e)(4)(vi) to read: "(vi) The physician practice may not impose on the recruited physician practice restrictions that unreasonably restrict the recruited physician’s ability to practice medicine in the geographic area served by the hospital." The latest round of commentary (see pages 245-249 of the PDF) provides some much-needed clarity:

Comment: We received many comments concerning the requirement in §411.357(e)(4)(vi) that a physician practice may not impose additional practice restrictions on the recruited physician other than conditions related to quality of care. Commenters (including hospital associations) that addressed the issue of the allowability of non-compete agreements were uniformly opposed to prohibitions on them. They also stated that the restriction limited the utility of the exception and was contrary to State laws permitting such restrictions.

Several commenters suggested that § 411.357(e)(4)(vi) be revised to prohibit only restrictions that prohibit the physician from practicing in the hospital’s geographic service area. The commenters asserted that non-compete agreements are a standard business practice between physician groups and physicians. They stated that, without the ability to enter into non-compete agreements, physician practices would be less likely to take on new physicians and, as a result, hospitals may be unable to attract new physicians, and certain health care needs of the surrounding communities could go unmet. Other commenters questioned whether the following were permitted--

● Restrictions on moonlighting;
● Prohibitions on soliciting patients and/or employees of the physician practice;
● Requiring that the recruited physician treat Medicaid and indigent patients;
● Requiring that a recruited physician not use confidential or proprietary information of the physician practice;
● Requiring the recruited physician to repay losses of his or her practice that are absorbed by the physician practice in excess of any hospital recruitment payments; and
● Requiring the recruited physician to pay a predetermined amount of reasonable damages (that is, liquidated damages) if the physician leaves the physician practice and remains in the community.

Response: We indicated in Phase II that we considered a non-compete clause to be a practice restriction and not a condition related to quality of care (69 FR 16096-16097). Although we did not list other examples of such practice restrictions, we intended to include only such restrictions placed on the recruited physician by a physician practice that would have a substantial effect on the recruited physician’s ability to remain and practice medicine in the hospital’s geographic service area after leaving the physician practice or group practice. We do not consider the restrictions, prohibitions, and requirements that are specifically mentioned in the bulleted points above as falling into the category of having a substantial effect on the recruited physician’s ability to remain in the hospital’s geographic service area. (We note that we may consider a liquidated damages clause requiring a significant or unreasonable payment by the physician leaving the physician practice to have a substantial effect on the recruited physician’s ability to remain in the recruiting hospital’s geographic service area.) Our purpose in prohibiting practice restrictions such as noncompete clauses was to avoid frustrating the purpose of the exception. That is, we intended to discourage physician practices that recruit physicians using hospital funding from making it difficult for a recruited physician to remain in the community and fulfill his or her commitments under the recruitment agreement with the hospital. Allowing a physician to remain in the community not only furthers the health care needs of the community, but also obviates the need for the hospital to enter into a new recruitment agreement to replace the physician.

Upon review of the comments, however, we are persuaded that categorically prohibiting physician practices from imposing non-compete provisions may have the unintended effect of making it more difficult for hospitals to recruit physicians. We are concerned that physician practices and individual physicians may be unable or reluctant to hire additional physicians, regardless of the receipt of financial assistance from hospitals, unless they are able to impose a limited, reasonable non-compete clause. Therefore, we are amending §411.357(e)(4)(vi) to state that physicians and physician practices, may not impose on the recruited physician any practice restrictions that unreasonably restrict the recruited physician’s ability to practice medicine in the geographic area served by the hospital. Although we are not per se conditioning payment for DHS on compliance with State and local laws regarding non-compete agreements, we believe that any practice restrictions or conditions that do not comply with applicable State and local law run a significant risk of being considered unreasonable. (Nothing in §411.357(e)(4)(vi) should be construed, however, as prohibiting a hospital that provides financial assistance to the hiring physician practice from entering into an agreement with the practice that prohibits the hiring physician practice from imposing a non-compete agreement or other practice restriction.)

Thus, under the new rule (assuming it becomes effective), physicians practices will be permitted to bargain for confidentiality agreements, non-solicitation provisions, and reasonable liquidated damages clauses in their employment contracts with new physicians.

Friday, August 10, 2007

Green tech initiatives for law firms

Brett Burney has a great article at Law.com today, Getting Law Firms to Boot Up Green, that doles out practical advice for reducing power and paper consumption in your law office. His tips include:

Replace your CRT monitor with an LCD. LCDs consume 1/2 to 2/3 less energy, and they look much cooler on your desk.

Turn off that screen saver. "Burn-in" is no longer an issue with modern monitors, and running the screen saver consumes just as much power as full use of the computer.

Adjust your power settings to turn off your monitor, then your hard drive after a set period of inactivity.

Print double-sided. This is a big one. Most people don't know their printers can even print double-sided. Try setting your printer driver to print duplex by default. If you're just printing a draft, a case, a law review article, or an e-mail for your paper file, then why print single-sided? Printing duplex cuts your paper consumption by half.

Use print preview. How many web pages have you printed with one line on the last page?

Brett mentions a couple of applications that will automate some of these settings for you.

Although he doesn't mention it in this article, the ABA has introduced a green tech initiative for law firms called the ABA-EPA Law Office Climate Challenge. This program encourages firms to reduce paper consumption, recycle waste paper, replace incandescent bulbs with compact fluorescents, purchase Energy Star compliant equipment, and more.

A lot of these tips are money saving as well as environmentally beneficial. Larger firms could save thousands of dollars per year "going green." It's just a matter of changing some of our habits.

Wednesday, August 08, 2007

No Sanctions for Peeking at Jurors Notes, Fourth Circuit Rules

Two attorneys who copied notes left by jurors in the jury room after the verdict should not have been sanctioned, the Fourth Circuit ruled yesterday in an unpublished opinion, reversing an award of $14,655.40 in sanctions. Thomas v. Shatz, No. 06-1175 (4th Cir. Aug. 7, 2007) (unpublished) (PDF).

Following a defense verdict in a civil jury trial, the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room. (Mistake #1)

Apparently, the bailiff broke the cardinal rule to always empty the trash from the jury room after the trial is over. (Mistake #2)

On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case. One of the defense attorneys asked the other to copy the notes from the flip chart for assistance in future cases. (Who could resist, right?)

Three days later, U.S. District Judge Frederick Stamp was advised by his law clerk that she saw someone copying notes from the jury’s flip chart in the jury room after trial, but that she did not know who he was. Judge Stamp was not pleased. He issued an order directing the parties to identify the person in the jury room and his affiliation with the parties, and scheduled a hearing “to determine what action, if any, should be taken.”

After a hearing, the judge reprimanded and censured the two attorneys for improper conduct in the jury room after the jury had been discharged, and ordered them to pay the fees and costs incurred by plaintiffs in responding to the court’s order and attending the hearing, $14,655.40.

The district court found that the attorneys had committed three violations:

(1) the attorneys had violated "the spirit, if not the letter, of Local Rule 47.01," which prohibits an attorney from “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication.” N.D. W. Va. Local R. Gen. P. 47.01.

(2) by reading and copying the jury’s notes on the easel, the attorneys violated Federal Rule of Evidence 606(b), which generally prohibits the use of juror testimony about matters occurring during deliberations to challenge a verdict; and

(3) by intentionally copying the notes, the two acted in "bad faith," engaged in professional misconduct, and breached their professional responsibilities, which he found sanctionable under his inherent authority and 28 U.S.C.A. § 1927 (West 2006).

The attorneys appealed the order, and the Fourth Circuit reversed. The attorneys did not violate Rule 47.01 or FRE 606(b) because no juror was contacted or harassed, nor did the attorneys attempt to challenge the verdict on the basis of what the jurors wrote. The court also found no bad faith motive on the part of the attorneys:

"The notes were left where anyone coming into the jury room could have seen and read them. We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room."
* * *
"We cannot fault the lawyers for seeing what was in front of them and remembering what they had seen. Any error, therefore, would have to be in peeking under the top sheet and in copying that information, and in this we simply can find no grievous harm."
* * *
"... the evidence is uncontradicted that the lawyers were motivated by a desire for general professional development rather than any purpose related to this particular case. Consequently, the district court committed clear error..."


In closing, the Court noted that the whole episode could have been avoided "had the clerk of court properly performed his responsibility of retrieving the evidence and exhibits from the jury room and returning them to the attorneys in the courtroom."