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Washington D.C. Amends its Ban on Non-Compete Agreements

What is a Non-Compete Agreement or Provision?

A Non-Compete provision may prohibit current and former employees from simultaneously or subsequently being employed by another entity or operating their own business within a certain geographic radius for a defined period of time (i.e. 2 years) if the employee will provide similar services in a competing field of work. This provision is typically presented to employees upon an employment offer as a part of an employment agreement.

A Non-Compete Agreement is a standalone agreement between an employer and employee that has one or more Non-Compete provisions or restrictive covenants. An agreement can also be entered into after employment has begun but should be provided at least 14 days prior to taking affect. Employers require employees to sign a Non-Compete to limit competition, conflicts, and improve quality of work.

Original Ban on Non-Compete Agreements

On January 11, 2021, the District of Columbia signed D.C. Act 23-563, which banned Non-Compete provisions in employment contracts protecting employees from being required to sign a non-complete agreement as a condition of their employment. This act prohibits employers from presenting Non-Compete agreements and opens the door for employees to “moonlight”, seek additional employment, or pursue other professional endeavors since they would no longer be restricted to a single employer.

The Purpose of the Clarification Amendments

D.C.’s ban was one of the broadest bans on Non-Compete provisions. Employees were free to simultaneously work two jobs with no wage threshold. Only medical professionals were prohibited from simultaneously working for two employers. The original Act was immediately subject to criticism and has had various delays to its applicability date due to its controversy and vague (if any) limitations in most areas.

What Are the Clarifying Amendments?

One of the most notable changes in the provisions specifies which employees are subject to the Non-Compete ban.  The original Act broadly stated that “individuals performing work in the District for an employer” were protected from Non-Competes. However, the clarifying amendments set salary thresholds. The amendments stated that highly compensated employees are exempt from the protection of the Ban. According to the amendment, ‘highly compensated employees’ are “employees who are reasonably expected to earn from the employer in a consecutive 12-month period compensation greater than or equal to the minimum qualifying annual compensation.” The minimum qualifying annual compensation is $150,000, or $250,000 if the employee is a medical specialist. A medical specialist is considered someone who holds a license to practice medicine and has completed residency. The annual compensation is suggested as the amount equal to the previous calendar year’s annual compensation increased by the annual average for inflation coverage.

The amendment to the Act also clarifies that employees are prohibited from using confidential employer information elsewhere. Employees are prohibited from ‘“[d]isclosing, using, selling, or accessing the employer’s confidential employer information or proprietary employer information” to the benefit of third-parties. There was a similar carve out in the original Act and other protections that prohibited employees from using any confidential information but the amendment clarifies and reinforces the definition. Employers can impose a Non-Compete if they reasonably believe that moonlighting will result in disclosure of confidential information, will cause a conflict of interest, or a conflict of commitment to the work at hand. This provision is controversial because it allows employers to prohibit their employees from seeking additional employment if the employer determines that there is a conflict of interest.

Limitations for Employers

Non-Compete Agreements are only enforceable if they contain certain limitations. The amendment clarifies qualifications for an employer/employee relationship covered under the Act. It states that a D.C. employee is someone who is working at least 50% of the time for their employer in the District. Applicable Non-Compete Agreements are not valid for more than 365 days, there must be a 30-day notice and a written agreement at least 14 days prior to commencement. The agreement must also include the scope of employment and geographical limitations.

Overall while a bit controversial, the Act harmonizes the coverage for employers as well as protections for employees of D.C. It is consistent with other D.C. laws. The clarification was finalized on July 12, 2022 but became effective on October 1, 2022.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

What are the Differences between a Rural Health Care Clinic and a Federally Qualified Health Center?

What is a Rural Health Clinic?

A Rural Health Care Clinic (RHC) is a clinic designed to provide quality care to patients in rural areas. They are Medicare certified programs that must be established in areas designated as rural shortage areas. An RHC is not permitted to care for patients of mental diseases or rehabilitation services. At least fifty percent of the time the clinic is open there must be a nurse practitioner, midwife, or physician assistant to provide care to patients. These medical professionals are under direction of a physician. RHCs are required to staff personnel, but there are no requirements to maintain a Board of Directors. Two types of Rural Health Clinics exist: (1) an Independent Rural Health Clinic which is a freestanding clinic not associated with a hospital or any type of Health Care Agency; and (2) a Provider Based Rural Health Clinic which is the subordinate of a hospital, home health agency or nursing facility. Also, Rural Health Clinics do not receive federal funding for start-up or expansion.

Licensing and Certification Requirements

RHCs must apply for certification with Medicare. All mandatory applications and requested documents must be submitted along with a survey. To be considered a “rural area” the Census Bureau designates non urbanized areas as rural areas during annual surveys. This is a separate designation that can only be assigned by the Census Bureau.

What is an FQHC?

A Federally Qualified Health Center are primary care outpatient centers that serve underserved communities. FQHCs qualify for reimbursements from the Health Resources and Services Administration (HRSA), Medicaid, and Medicare. An FQHC can receive government grants, donations, and private sectors in addition to the Medicaid reimbursements. To be considered a Federally Qualified Health Center a clinic must meet certain requirements including: (1) serving an underserved area; (2) provide care on a ‘sliding fee scale’ which is based on ability to pay; (3) complete required annual reports; (4) provide holistic and social services; (5) and not be approved as a rural health clinic.

What are the similarities?

Both programs are established to provide quality health care to underserved and community shortage areas. Similarly, they are capable of providing care to Medicaid and Medicare patients. They are both government established programs that were created to aid in the creation of facilities in the medically underserved areas. Because of this they can both be classified as profit or not for profit organizations. They are also equally subject to survey and review.

What are the differences?

Rural Health Clinics are only located in rural areas designated as shortage areas whereas Federally Qualified Health Centers can operate both in rural and nonrural areas with medical shortages. RHCs cannot treat mental illnesses or provide rehabilitation services. RHCs exclusively operate to serve Medicaid patients’ primary care and dental needs in rural shortage areas. FQHC’s qualify for reimbursements from Medicaid and Medicare and are required to provide care for patients in all life cycles (with the exception of pediatric clinicians). FQHCs also provide a broader scope of care for patient needs. FQHC’s are also required to provide some form of after-hours care unlike RHCs. FQHCs are expected to have hospital admitting privileges or an established hospital coverage plan to ensure continuity of care. Another difference is that RHC’s do not have requirements to serve anyone in the community while FQHC’s are required to provide care for all community residents.

From an outside perspective, both types of clinics seem very similar. While both are established to provide care for medically underserved populations (MUPS), there are many differences in requirements, staffing, type of care, and funding to take note of.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Do Doctors and Nurses Have to Self-Report to the Florida Department of Health if Arrested?

In our society, Medical Professionals have always been held to a higher-than-average standard. Doctors, nurses, and physicians must abide by several professional rules of conduct that not many other employees have to keep in mind. This in turn also means that your personal life is up for scrutiny as well. Ethical standards and moral values are usually private assumptions but for those who have chosen the medical field, those normally private matters can have a deep affect your employment status. Any serious off-duty conduct issue must be reported, reviewed, and taken care of on a case-by-case basis.

Florida Requirements for Self-Reporting

In Florida, doctors are required to report all criminal activities committed after they receive their medical license even though it is not in relation to employment and occurs after regular working hours. Any report or complaint filed towards a medical professional will be investigated by the Florida Department of Health. Being placed under arrest can trigger disciplinary action from the state licensing boards. Medical disciplinary actions require a much lower burden of proof than federal cases. It is possible to be penalized, face Medicare/Medicaid exclusion, and potentially have your license revoked based on the severity of the crime and investigation. It is entirely possible that a physician can face the loss of their medical license even if an investigation does not result in criminal prosecution and a conviction at a trial.

Complaints Against Medical Professionals

The most common criminal concerns leading to the harshest disciplinary actions towards a medical professional involve healthcare fraud, solicitation, moral turpitude, dishonesty, or deceit in any jurisdiction in the state. According to the Florida Department of Health’s website, they do not carry out complaints regarding the fees charged for individual procedures, missed, or cancelled appointments, unfair customer service, rudeness or disrespect, bedside manner, professionalism or personality conflicts again medical professionals.

Complaints against medical professionals can lead the Board of Medicine to issue citations based on the type of and severity of the complaint. It is completely free to file complaints against medical professionals. The only potential fees may be for requesting copies of medical records if deemed necessary. Complaints remain confidential until the panel determines reasonable cause, and a violation is issued.

How to Report

According to the Florida Board of medicine, all criminal activities after receiving your medical license must be timely reported. The Board provides various options for reporting including email, online service portal, or via regular mail. If a complaint is issued via sending an email or letter, the correspondence must include the date of the offense, the activity that happened, and the county and state of jurisdiction. The complaint cannot reach processing without the proper information.

The Florida Department of Health’s Medical Quality Assurance (MQA) launched a user-friendly online portal. The portal was developed in collaboration with the Agency for Health Care Administration (AHCA) to allow for easy reporting of any complaints again medical providers from fraud to unlicensed activity and violations. The portal offers education on the different federal agencies for complaints as well.

See below for email, website and address:

MQAOnlineService@FLHealth.Gov
www.mqa-vo.doh.state.fl.us./datamart/voservicesportal
Florida Department of Health

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.