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Issue 4 - March 2003 Ask Deborah Green Q I sold my practice to another chiropractor two and a half years ago. I signed a non-compete clause at that time for a five-year period and a 30-mile radius. I recently received a job offer from a physicians’ group located seven miles away from my previous practice. What are my options? A As a general rule, courts do not look kindly on non-compete clauses and interpret them strictly. First, find out whether non-compete clauses are enforceable in your state. If so, find out the terms that would be considered reasonable. Generally, a non-compete limited to one or two years is considered reasonable. The reasonableness of the radius it includes often depends upon the population of the area: The more populated the area, the smaller the radius that is permitted. The courts are generally more inclined to set aside a non-compete clause contained in an employment agreement rather than in a purchase and sale agreement. Once you have the facts concerning the “reasonableness” of the non-compete clause, I suggest you approach the chiropractor who purchased your practice. Perhaps you can negotiate a compromise: You won’t solicit your old patients if they won’t enforce the agreement. Q I am still confused about HIPAA. If you have fewer than 10 full-time employees and you do not file claims electronically, are you a covered entity? Regarding Business Associate Agreements, do you have to sign such an agreement if you aren’t a covered entity? Finally, I am still confused about the word “clearinghouse.” A DCs need to be compliant with HIPAA’s privacy and security requirements, which go into effect on April 14, 2003. These requirements apply to all doctors, regardless of how small the practice. You need to be aware of and comply with Business Associate Agreements if that Business Associate has any contact with health information that could identify a patient. A “clearinghouse” is a company that forwards health information to third party payors in a format that is HIPAA-compliant. Deborah Green has been a practicing attorney since 1977. She is a member of the American Health Lawyers Association, the New York State Bar Association Health Care System Design Committee, the New York State Bar Association Health Care Providers Committee, the American Bar Association Health Law Section and the Florida Bar Health Law Section. If you require clarification on these questions or have any questions will regard to other legal health-care issues, please contact the law office of Deborah Green. Her number is 954-236-8282; fax, 954-236-6939; or e-mail, healthattorney@aol.com. She will answer questions in this column that are of interest to the broadest audience. LEGAL DISCLAIMER: Because this column is being presented to you by an attorney, it would not be complete without a legal disclaimer. This column is provided subject to and governed expressly by the terms of this disclaimer. This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented herein is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is hereby established. |
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