ACMS Insights

By: Lisa George, MPH, CHES – Jewish Healthcare Foundation

A significant step has been made toward establishing Pennsylvania Orders for Life-Sustaining Treatment (POLST) as law in the Commonwealth. On April 19, Senator Gene Yaw (R-23rd District) introduced Senate Bill 631, which would codify POLST for use by medical professionals across all healthcare settings to document treatment wishes for patients who voluntarily wish to execute a POLST order.

Although the bright pink POLST form has been used in Pennsylvania for decades to translate patients’ wishes for care into actionable medical orders, the lack of legislation on POLST has led to confusion and inconsistent use among providers. This bill aims to enhance clarity for providers regarding POLST usage and bolsters the protections for seriously ill patients to receive care that aligns with their care preferences regardless of the setting.

SB 631 amends Title 20 (Decedents, Estates, and Fiduciaries) of the Pennsylvania Consolidated Statutes), providing a legal basis for POLST forms to be used across care settings. It defines the appropriate population for POLST as “patients who are considered to be at risk for a life-threatening clinical event because they have a serious life-limiting medical condition, which may include advanced frailty.” It also clarifies for whom POLST is not appropriate and describes the elements of a properly executed POLST order. The lack of existing legislation poses particular challenges to EMS providers, who are presently only legally authorized to honor the state’s Out-of-Hospital Do Not Resuscitate order and must call Medical Command for authorization to follow a POLST. This can lead to patients having to endure medical interventions at the end of life that do not align with their wishes. SB 631 would allow POLST to be recognized and acted upon across care settings, inside and outside the hospital, and grants emergency medicine personnel the authorization to honor patients’ documented preferences for care without the need for Medical Command Physician authorization.

Further, this bill emphasizes the importance of POLST as part of a shared decision-making process involving a discussion of current clinical status and care preferences between a patient or surrogate and healthcare provider. The POLST conversation provides patients with an opportunity to speak with their loved ones and their providers about their preferences for care they wish to receive and not to receive. It gives providers clear direction regarding medical interventions, regardless of the care setting. Voluntary consent is essential, and patients have the right to refuse to execute a POLST, without consequences from a provider or insurer.

This bill also establishes a multistakeholder POLST Advisory Committee to advise the Pennsylvania Department of Health on POLST form revisions and POLST education.

POLST legislation is critical to ensure the appropriate use of POLST across the Commonwealth, in the appropriate populations, as part of a conversation about wishes for end-of-life medical care. It will benefit providers by contributing greater clarity and guidance on the POLST process.

Read the full text of SB 631 here. To voice your support for SB 631, contact your state senator. The Pennsylvania Medical Society supports this legislation and has launched an easy-to-use online form that allows you to contact your senator with just a few clicks.

If you haven’t checked out the PA POLST Learning Center a library of on-demand trainings on POLST—all of which offer free continuing medical education and continuing nursing education credits. Please consider sharing with your staff to ensure they are educated on proper POLST use.

To stay up to date on POLST legislation, education, and resources, subscribe to the POLST Notes newsletter. Visit www.papolst.org to sign up. For more information or answers to your questions about POLST, contact info@papolst.org.

Lisa George, MPH, CHES is the PA POLST Coordinator and Senior Communications and Program Specialist at the Jewish Healthcare Foundation.

Article written by: Jeremy V. Farrell, Esq., Ryan James, Esq. and Michael A. Cassidy, Esq. of Tucker Arensberg, P.C.

On January 5, 2023, the Federal Trade Commission (FTC) took a dramatic step by proposing a new rule that would prohibit companies from entering into non-compete agreements with its workers. The proposed rule, if approved, takes sweeping action to prohibit employers from entering into non-compete agreements with both employees and independent contractors. And the proposed rule does not stop there. It would also require that employers take affirmative steps to rescind existing non-compete clauses and explicitly inform workers that the contracts are no longer effective.

As of right now, the FTC’s rule (available here) is merely a proposal, and the agency is soliciting public comments on whether any changes should be made before it is finalized. Litigation challenging the enforceability of the rule is almost sure to ensue, and the U.S. Chamber of Commerce has already threatened to sue to FTC over its proposed non-compete ban.

Regardless of whether or not the FTC rule is adopted, physician non-compete agreements are closely scrutinized in Pennsylvania under a multi-tiered analysis because of the value of doctors’ services to the public. Initially, the covenant in order to be enforceable must be “reasonably related to the protection of a legitimate business interest*.” As recognized in Wellspan, this type of interest includes showing that a non-competition provision is necessary to protect such things as trade secrets and confidential information, unique or extraordinary skills, customer goodwill, patient relationships, patient referral bases, and investments in an employee’s specialized training. If a post-employment covenant merely seeks to eliminate competition and is not designed to protect a legitimate business interest, it will not be enforced.

If the threshold requirement of a protectable business interest is satisfied, courts will then balance the employer’s interests against that of the employee to find other work in her field and earn a living. Under this factor, the temporal and geographic restrictions imposed on a former physician must be reasonably limited**. If not, the non-compete provision will not be upheld.

After the second step, the interests of the public will be assessed as they are of “paramount importance in the context of non-competition covenants for physicians.” This in essence means that courts will examine whether there is a shortage of physicians in the particular practice area in the relevant geographic region. If patient demand in the geographical area exceeds the ability of appropriately trained physicians to provide expeditious, skilled treatment, the public interest supersedes a right to enforce a non-compete agreement. Following Wellspan, courts in Allegheny County have viewed this factor as critical*.

As we can see, even without the implementation of the FTC rule, an employer faces significant hurdles in attempting to enforce a physician non-compete agreement.

Furthermore, many early comments suggest the FTC proposal would not apply to non-profit healthcare systems, based upon the FTC’s actual jurisdiction and the definition of “employer” in the proposed rule itself. Given the prevalence of non-profit healthcare systems nationwide, and especially in Pennsylvania, it remains to be seen whether this rule would have any significant impact in the healthcare arena.

The Allegheny County Medical Society has been collaborating with various Pennsylvania state legislators over the past few years to restrict or eliminate physician restrictive covenants. The most recent legislative action was the introduction of HB 681 of 2019, the Healthcare Practitioner Non-Compete Agreement Act, which has not been passed. This was an effort to limit this scope and impact of physician’s non-competes. However, as the trend of employing physicians increases, with tens of thousands of physicians employed by healthcare systems rather than private practices in Pennsylvania, there is less support for eliminating restrictive covenants. Organized medicine actively supports and enforces the use of restrictive covenants even the relatively few remaining private practices seem to utilize restrictive covenants.

*Wellspan Health v. Bayliss, 869 A.2d 990 (Pa. Super 2005).
** Wellspan
*** See Allegheny Specialty Practice Network v. Joseph J. Colella, M.D., GD No. 09-006813 (C.C.P. Allegh. Co.) (Ward, J., Opinion entered on Sept. 9, 2009, p. 27) (noting that a physician non-compete was enforceable because there was no shortage of bariatric surgeons in Allegheny County).