Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Bill Mandell is Featured Speaker at 2019 MCLE Hospital & Health Law Conference

Wednesday, April 24, 2019

Pierce & William MandellPierce & Mandell, P.C. Health Law Practice Area Leader, Bill Mandell, will be serving on the faculty of MCLE’s Annual Hospital & Health Law Conference 2019, scheduled for May 23. The program is celebrating its 20th anniversary and is the preeminent health law conference in Massachusetts. Bill will co-presenting the session on health law for physicians. For additional details about the program go to: https://www.mcle.org/product/catalog/code/2190257P01

New Massachusetts Law Requires Dental Practice Owners to Provide Additional Compensation for Associate Post-Termination Non-Compete Covenants Agreements

Monday, February 04, 2019
Pierce & Mandell, P.C. - New Massachusetts Law in Boston, MA

While Massachusetts law (See, Massachusetts General Laws Chapter 112, Sections 12X and 74D) has long provided that employed physicians and nurses cannot be subject to post-termination non-compete covenants, the Massachusetts Legislature has never extended the same unenforceability to such non-competes appearing in associate contracts for dentists. Massachusetts dental practice owners have thus come to rely on post-termination non-compete covenants as an important and customary protection for their practices. The new Massachusetts Noncompetition Agreement Act, Massachusetts General Laws Chapter 149, Section 24L (the “Act”) has changed the scope of enforceability for post-termination non-compete covenants appearing in any associate agreement entered into on or after October 1, 2018.

The Act does not apply to non-compete covenants that are included in practice sale agreements. It also does not apply to post-termination non-solicitation or non-disclosure covenants in any agreements, nor prohibitions on competition or outside activity prohibition in employment agreements that apply during the term of an associate’s employment. The Act also grandfathers and does not apply to agreements that went into effect prior to October 1, 2018.

Instead, the Act solely applies to non-compete covenants to the extent that they restrict the ability of an associate to compete in the same market as the practice following the termination of employment. The Act provides that a post-employment non-compete is unenforceable unless it meets numerous limits and standards.

Most noteworthy, and new, is a maximum limit of up to a one (1) year period, unless the employee breaches his or her fiduciary duties or unlawfully takes employer property; a requirement that the agreement state that the employee has the right to consult with legal counsel prior to signing; a restriction on enforceability against laid off employees or those terminated without cause; and, a requirement that the employer pay additional compensation to the associate in the form of “garden leave” payments of no less than 50% of the highest annualized base salary paid by the employer to the associate within the two (2) years that immediately preceded the termination date payable during the non-compete restriction period, or such “other mutually-agreed upon consideration” that must be stated in the agreement.

To ensure enforceability, a dental practice owner must now include non-compete language in new associate agreements with these limitations and include one of the two types of required additional compensation. The Act defines “garden leave” payments as payments that the owner makes to the associate during the “restricted period,” on a pro-rata basis throughout the entirety of the restricted period.

In contrast to garden leave payments, the Act provides practically no guidance with respect to what constitutes “other mutually-agreed upon consideration.” Such consideration need not be paid at a certain time(s) or in a certain amount. It must simply be agreed-to between the owner and the associate and reasonable to compensate the associate for the restriction on his or her ability to practice after termination.

An owner must take several factors into consideration in determining whether the non-compete agreement offered to associates should be supported by garden leave payments or other mutually-agreed upon consideration. While garden leave payments are certain with respect to their timing and amount, they are substantially more than most small practices are prepared to pay and are subject to the Massachusetts Weekly Wage Law (the “Wage Law”), codified as Massachusetts General Laws Chapter 149 § 148. An owner who fails to make garden leave payments may thus potentially be liable to an associate for the remedies set forth in the Wage Law, which include treble damages, attorney’s fees, and other costs.

Until there is more guidance on what constitutes “other mutually-agreed upon consideration,” small practices are likely to consider using some form of alternative consideration to support the enforceability of a non-compete. But, until there is a change in the law or a court case ruling on the scope of acceptable “mutually-agreed upon consideration,” there is little certainty as to what amount of consideration will be considered reasonable and sufficient to support enforcement of a post-termination non-compete against an associate.

The health/dental law attorneys at Pierce & Mandell, P.C. are available to advise dental practice owners, buyers, sellers and associates on how the new Massachusetts Noncompetition Agreement Act will affect their current or new contracts, associations, and transactions.

Feel free to contact Bill Mandell, Esq. at bill@piercemandell.com, Hannah Schindler Spinelli, Esq. at hannah@piercemandell.com, Samuel Hoff, Esq. at shoff@piercemandell.com, or Ryelle Seymour, Esq. at ryelle@piercemandell.com for more information about our representation of dentists and dental practices affected by this new law.

Bill Mandell was Quoted in the May 2018 ED Legal Letter Article

Monday, May 21, 2018

Pierce & William MandellBill Mandell was quoted in the May 2018 ED Legal Letter article on case law expanding ED’s legal exposure if discharged psychiatric patient commits violence.

Guidance to Massachusetts Health Care Providers Regarding the Release of Protected Health Information

Friday, May 04, 2018

By Curt Dooling, Matt Lauring and Bill Mandell

Hospitals and health care facilities, medical and other group practices, and individual clinicians regularly receive requests for patient records and information. It is often confusing for providers to determine when and under what circumstances they are permitted to disclose such records. Discovering parties can use the legal process to compel a response but cannot necessarily override applicable state privacy, confidentiality and privilege laws, as well as privacy rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), with a subpoena alone. HIPAA establishes minimum standards for the protection of protected health information (“PHI”) that do not preempt more protective state privacy laws and privileges. The following provides a brief overview on the differences between a court order, a subpoena, and an authorization for Massachusetts providers.

Subpoenas

Mass. R. Civ. P. 45 allows parties in civil lawsuits to subpoena records from non-parties. These subpoenas are often called keeper of records, or KOR, subpoenas. They are also sometimes referred to as a subpoena duces tecum.

Parties receiving a subpoena must respond to the subpoena within a certain referenced time frame. However, as a general rule, medical records should not be automatically produced in response to a subpoena, without first confirming if there is sufficient authority to release the PHI under both Massachusetts law and HIPAA. Such authority could be (i) under statutory authority on the subpoena alone if certain conditions are met, or (ii) with an executed HIPAA compliant patient authorization, or (ii) upon the issuance of a proper court order.

Subpoenas are not court orders. Subpoenas are issued by attorneys to obtain documents. Attorneys do not need a court’s permission to issue a subpoena. Medical providers can mistake subpoenas for court orders given that subpoenas are often served by a sheriff or constable, are notarized and look like an official court document. Thus, while a timely response must be sent back by the provider to the discovering party, that response may have to be in the form of an objection letter seeking the additional needed authority to disclose the PHI.

Massachusetts licensed hospitals and clinics (but not unlicensed practices) may produce medical records in response to a subpoena alone pursuant to G. L. c 111, § 70, but only if the patient is a named party in the case.

Similarly, under HIPAA’s privacy rule, 45 CFR 164.512(e)(1)(ii), a covered entity that is not a party to the litigation may disclose protected health information in response to a subpoena, discovery request, or other lawful process if the covered entity receives certain satisfactory assurances from the party seeking the information. Specifically, the covered entity must receive a written statement and accompanying documentation that the requesting party has made reasonable efforts either (1) to ensure that the individual who is the subject of the information has been given sufficient notice of the request, or (2) to secure a qualified protective order.

Thus, when viewing G. L. 111, § 70 in combination with 45 CFR 164.512(e)(1)(ii), a hospital or clinic may release confidential medical records in response to a subpoena alone if the patient is named in the caption and the provider receives assurance that the patient has been given notice that the records have been requested and has not objected. However, G. L. 111, § 70 only applies to hospitals or clinics licensed by the Massachusetts Department of Public Health. Therefore, medical practices and other groups may not release PHI in response to a subpoena without first securing a HIPAA compliant authorization from the patient, or a proper judicial order.

Additionally Protected Information

HIPAA provides a minimum level of protection for the disclosure and protection of an individual’s PHI. However, HIPAA expressly permits states to enact laws and regulations that provide more safeguards for the protection of patient information and records

Massachusetts has several statutes that provide additional protections for certain health information. For example:

  • General Laws c. 112, § 135B provides for the confidentiality of patient/social worker communications. Pursuant to G. L. c. 112, § 135B, social worker communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 233, § 20B provides for the confidentiality of patient/psychotherapist communications. Pursuant to G. L. c. 233, § 20B, psychotherapist communications and records are privileged and may only be disclosed under certain circumstances.
  • General Laws c. 111, § 70F provides for the confidentiality of a patient’s HIV testing records. Pursuant to G. L. c. 111, § 70F, HIV testing records may only be disclosed with a patient’s express consent.
  • General Laws c. 233, § 20J provides for the confidentiality of sexual assault counselor communications. Pursuant to G. L. c. 233, § 20J, sexual assault counselor communications are privileged and may only be disclosed under certain circumstances.

These are only some examples of Massachusetts statutes that provide additional protection to certain medical records. There are other additionally protected categories of information under both federal and state law for substance treatment records, alcohol blood test results and minor records, to name others.

Authorizations

If a patient signs a HIPAA-compliant written authorization, a medical provider may release protected health information, as well as additionally protected areas that are explicitly referenced and designated by the patient for release. A HIPAA-compliant authorization form must include the following elements:

  • A description of the information to be disclosed;
  • The name of the individual or the name of the person authorized to make the requested disclosure;
  • The name or other identification of the recipient of the information;
  • A description of each purpose of the disclosure;
  • An expiration date or an expiration event that relates to the individual;
  • A signature of the individual or their personal representative (someone authorized to make health care decisions on behalf of the individual) and the date.

A disclosure for the release of additionally protected information should specifically state which additionally protected records are to be released.

Court Orders

A court order is a mandate issued by a court, a judge, magistrate or a clerk of the court requiring or forbidding someone to do something pursuant to the order. If privileged, additionally protected information is contained in the medical record, in lieu of an authorization, the court order is to be reviewed carefully and only that information which it orders produced is to be produced. It is not necessary to explain that other documents are not being produced in response to a court order if you are following the terms of the order. The judicial order must specify the type of record that is ordered to be released.

Medical providers should adopt health information policies and protocols to follow when a subpoena is served seeking production of a patient’s medical records. Navigating the requirements for the protection of PHI and the authorized release of PHI is difficult and complex. Pierce & Mandell’s health law attorneys have extensive experiencing advising medical providers on HIPAA compliance issues and medical record issues.

Bill Mandell was Quoted in the April 2017 Emergency Department Legal Letter Article

Thursday, April 06, 2017

Pierce & Mandell, Curtis DoolingBill Mandell was quoted in the April 2017 Emergency Department Legal Letter article on visitors and guns in hospital emergency departments and suggested a useful policies for hospitals to consider.



Bill Mandell Revisits the Need for Clarity under Massachusetts Law for Permitted Health Provider Disclosure to Protect Public Safety

Friday, June 17, 2016

by Bill Mandell

In the wake of yet another senseless mass killing tragedy I am posting an article I wrote in 2013 for the Boston Bar Association Health Law Reporter on the need for a new law in Massachusetts allowing health care providers to report dangerous persons or situations. Click here to read the article.

Pierce & Mandell Sponsor St. Camillus Health Center Golf Tournament

Tuesday, May 31, 2016

Pierce & Mandell was  a proud sponsor of the third annual St. Camillus Health Center golf tournament held at Blissful Meadows Country Club in Uxbridge on May 24.  The tournament raised thousands of dollars for St. Camillus, a non-profit facility located in Whitinsville that provides rehabilitation, skilled nursing and short and long term care to the poor, sick and elderly.  Pierce & Mandell lawyers Robert Kirby, Bill Mandell, Michael Fee and Scott Zanolli braved challenging weather conditions in support of this very worthy charitable endeavor.

Bill Mandell Will be a Featured Panelist at the Boston Bar Association Seminar

Thursday, December 24, 2015

Health Law Practice leader, Bill Mandell, will be a featured panelist on Thursday, January 7, 2016 at the Boston Bar Association’s seminar entitled “Accountable Care Organizations: How They Work, Do They Work?”

Read William Mandell's Most Recent Article in Boston Bar Association's Health Law Reporter

Wednesday, July 10, 2013

William M. Mandell who heads Pierce & Mandell’s Health Law Practice authored an article entitled: “Should I Tell Someone?” Permissible Disclosures by Massachusetts Health Providers and the Need for Greater Statutory Clarification which was  published in the Boston Bar Association's Health Law Reporter Summer 2013 edition.  To read this article, click here.


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