Restrictive Covenant Qs / Comment on How do I know what to bill and when to bill it? Example from Billing for Diabetes Self Management Training Q&A

January 31, 2013

Question:

Jennifer,

Regarding restrictive covenants: if a physician has a geographic radius restrictive covenant and for example, hospital X is inside the restrictive covenant.  Does the covenant apply to hospital y which is outside radius but an affiliate of hospital x.

Thanks,
Dr. L

Answer:

Totally depends on how the restriction is drafted.  If the restrictive covenant is narrowly tailored and reads as a specific geographic range, for instance, employee may not practice medicine within 2 miles from X location, and X location includes Hospital x mentioned above, then no, the restriction would not include hospital Y just because hospital Y has an affiliation with Hospital X.  However, if the restriction explicitly includes any and all hospitals within the geographic range and any hospital subsidiary or other location, then yes, Hospital Y may be interpreted as being included.  Whether that restriction would be upheld would be for a judge to determine based on whether or not the restriction is reasonable in geographic scope and duration.  For a specific answer on a particular provision, I would need to see the contract and we would have to discuss off-line.

Question:

Jennifer,

Would my restrictive covenant still apply if the practice I work for sold to a new owner and I did not get a new contract?

Thanks,
B

Answer:

Also depends on the contract language.  If the contract  you originally signed specifies the contract will also be binding on successors or assigns of the employer, then yes, depending on the sale transaction your covenant may very well be enforceable by the new employer.  If your employment went uninterrupted, but the name on your paycheck simply changed, it is very likely that the new company has assumed your contract and has a legal right to the protective covenants therein.  Goes both ways... you are still employed under the terms of  your contract, and employer likely has the benefits of the protections set forth thereunder, but again, I would need to see the contract and additional documentation here, such as any notification from the new employer of the change, etc. to interpret rights. 

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Comment on: How do I know what to bill and when to bill it?  Example from Billing for Diabetes Self Management Training Q&A

Hi Jennifer,

The question about the Diabetic Educator was excellent. In addition to Jackie Thelian’ s answer, the following may also help physicians determine if they are able to bill for a separate E/M code if a patient is seen after the Diabetic Educator.

When a physician spends more than 50 percent of face-to-face time with a patient counseling or coordinating care, “time may be considered  the key or controlling factor to qualify for a particular level of evaluation and management service,”  per CPT.  In other words, you may use “time as the key controlling factor to qualify for a particular level of evaluation and management services,” says CPT.  However, in order to code by time, physicians must clearly document the extent of counseling and the time involved.  It is not atypical for a physician to spend considerable face-to face time with a patient reviewing a medical condition, discussing medication regimes, life style change,  the plan of care or adjusting medication dosages. It is common at the end of these types of visits; the physician may find there is not enough history, physical exam elements or medical decision making elements to support the code which reflects the extent of the visit.  The little known “greater than 50 percent rule” can often apply and prevent the physician from coding at a lower level and accepting a decreased level of reimbursement.  CPT requires that in order to code by time, the physician must clearly document the extent of counseling and the time involved.  See the table below for additional information.

Office Visits Codes
Average minutes spent face to face	New Patient Code	Established Patient Code
5		99211
10	99201	99212
15		99213
20	99202
25		99214
30	99203
40		99215
45	99204
60	99205

What is required is documentation of the actual time the physician spent on counseling. It is critical to document the actual minutes of the visit in which counseling was provided. Physicians must also detail the counseling they provided.   A summary of the services that were coordinated, medication or test results discussed, telephone calls placed to other providers to collaborate on the plan of care are all examples of the level of detail auditors will expect if time/counseling is used for the basis for the visit.
 
Hope this helps your readers.
 
Best
 
Anne