Long-Term Care Facilities: New Rule Imposes Significant Changes, including Bar on Pre-Dispute Arbitration Agreements

Skilled nursing facilities participating in the Medicare program and nursing facilities in the Medicaid program are prohibited from including a mandatory pre-dispute arbitration clause in their contracts with individuals seeking admission to long-term care (LTC) facilities under a final rule from the Centers for Medicare & Medicaid Services (CMS). This prohibition and other significant new or amended regulatory changes will go into effect on November 28, 2016, a mere 55 days after publication in the Federal Register.  To read the full article, written by Albany Principal James Shannon, click here.

New Connecticut Statute Restricts Physician Non-Compete Agreements

On June 2, 2016, Connecticut Governor Dannel Malloy signed Public Act 16-95, establishing significant new restrictions on physician non-compete agreements in Connecticut.

Under the statute, an existing physician covenant not to compete is valid and enforceable only if it is:

  1. necessary to protect a legitimate business interest;
  2. reasonably limited in time, geographic scope, and practice restrictions as needed to protect that interest; and
  3. otherwise consistent with the law and public policy.

The statute also states that the party seeking to enforce a physician covenant not to compete bears the burden of proof at any proceeding.

While these factors and burden of proof are consistent with current Connecticut common law as to non-compete agreements in general, the remainder of the new statute is not.

For covenants not to compete that are entered into, amended, or renewed on or after July 1, 2016, the statute prohibits restricting a physician’s competitive activities (i) for longer than 1 year and (ii) beyond 15 miles from the primary site where the physician practices (defined as “the office, facility or location where a majority of the revenue derived from such physician’s services is generated, or any other office, facility or location where such physician practices and mutually agreed to by the parties and identified in the covenant not to compete.”).

Additionally, a covenant not to compete entered into, amended, or renewed on or after July 1, 2016 must be signed by the physician and is not enforceable against a physician if (i) the employment agreement at issue was not made in anticipation of, or as part of, a partnership or ownership agreement and the agreement expires and is not renewed, unless, prior to the expiration, the employer makes a bona fide offer to renew the contract on the same or similar terms and conditions, or (ii) the employer terminates the employment or contractual relationship without cause.

The statute provides that if a covenant is rendered void and unenforceable under the statute, the remaining provisions of the contract remain in full force and effect, including any provisions requiring the payment of damages for injuries suffered due to the contract’s termination.

Until Connecticut courts have an opportunity to interpret the 15-mile rule, new or amended physician non-compete agreements should refer to the 15-mile range, rather than listing towns that would fall within that range.  If any part of a listed town falls outside of the 15-mile range, a court could find the entire restriction to be unenforceable.

Public Act 16-95 is silent as to whether courts are allowed to apply the “blue pencil rule” in determining the enforceability of post-July 2016 physician non-compete agreements.  The “blue pencil rule” would normally permit a judge to strike a geographically improper town from a list, while enforcing a restriction within the remaining listed towns.

Hospital May Fire Employee Who Refused Influenza Vaccination, Federal Court Finds

A Boston hospital reasonably accommodated an employee’s religious objections to its influenza vaccination program by offering alternatives, but exempting the employee from the vaccination requirement would impose an undue hardship on the hospital because of the risk of infection to patients, a federal court in Massachusetts has concluded, granting the hospital’s motion for summary judgment in an employee’s religious discrimination suit. Leontine K. Robinson v. Children’s Hospital Boston, C.A. No. 14-10263-DJC (D. Mass. Apr. 5, 2016).

In July 2011, Children’s Hospital Boston adopted a policy requiring anyone affiliated with the Hospital who accesses patient-care areas to be vaccinated against the influenza virus by December 1, 2011. The only persons exempt from vaccination were those for whom the vaccine posed a serious health risk. While it did not exempt people who objected to the vaccination on religious grounds, it accommodated them by allowing them to receive a pork-free (gelatin-free) vaccine.

Leontine Robinson, a Muslim, was an administrative associate. In this position, Robinson interacted with patients and their families as they arrived in the emergency department. Robinson objected to the vaccine on religious grounds, because it contained gelatin made from pork, which she said her religion forbade. The Hospital offered Robinson the pork-free vaccine, also telling her that if she found another position where she would not interact with patients, she would not be required to be vaccinated. In November 2011, Robinson also told the Hospital she believed many vaccines were contaminated and she was not comfortable receiving the influenza vaccine. On the December 1 vaccination deadline, Robinson informed the Hospital she had an allergic reaction to the influenza vaccine when she received it in 2007. The Hospital granted Robinson a temporary medical exemption, but ultimately concluded her medical history did not qualify her for a medical exemption.

The Hospital granted Robinson’s request to use earned time off while looking for an alternative position. When Robinson still was unable to find another position after an additional two-week leave, the Hospital terminated her employment, but treated the termination as a voluntary resignation, leaving her eligible to apply for open positions at the Hospital in the future. Robinson filed suit in federal district court alleging that her termination constituted unlawful religious discrimination under federal law (Title VII of the Civil Rights Act of 1964) and Massachusetts law. After filing suit, Robinson testified in her deposition that in addition to her concerns about the vaccine containing pork or otherwise being contaminated, she learned in November 2011 that her religion had a moratorium on all vaccinations.

The court granted the Hospital’s motion for summary judgment as to both the federal and state law claims. Assuming for purposes of deciding the motion that Robinson refused to be vaccinated because of her sincerely held religious beliefs, the court found the Hospital met its obligation to reasonably accommodate Robinson’s religious beliefs by allowing her to seek a medical exemption, providing her reemployment resources, granting her time to secure new employment, and preserving her ability to return to the Hospital by classifying her termination as a voluntary resignation. The court also agreed with the Hospital’s alternative argument that it was entitled to summary judgment because granting Robinson’s request would have increased the risk of transmitting influenza to its already vulnerable patient population, creating an undue hardship for the Hospital. Robinson has appealed the decision.

This case highlights the importance of working proactively with employees when implementing an influenza vaccination program. Religious objections to influenza vaccination programs continue to be the subject of legal challenges around the country. In addition, the EEOC has announced that it filed suit against a hospital alleging the hospital violated federal law when it failed to accommodate employees’ religious beliefs when implementing its influenza vaccination program.

Respiratory Therapist May Proceed with Civil Rights Claims Based on Patient’s Request That He Not Be Treated by Black Employees

A respiratory therapist can proceed with her civil rights claims because questions remain about whether her hospital employer intended to honor a patient’s request that he not be treated by black employees, a federal court has ruled. Caprice McCrary v. Oakwood Healthcare, Inc., C.A. No. 14-14053 (E.D. Mich. Mar. 16, 2016).

Caprice McCrary, an African-American, works as a respiratory therapist at Oakwood Hospital. A patient treated in the Hospital’s emergency department and subsequently admitted informed a nurse-in-training in the emergency department that he did not want any black people taking care of him. The nurse-in-training made a note in the patient’s record that he stated, “I do not want any black people taking care of me at all.” When McCrary later went to patient’s room to provide him a breathing treatment, the patient twice refused to allow her to treat him, once saying to her that she must not have read his chart.

McCrary complained to the Hospital about the patient’s request. The Hospital apologized for how the request was handled and informed the patient that it would not honor the request. The Hospital also told McCrary she could treat the patient, could have someone accompany her when she did so if she was afraid of him, and could have a different assignment if that was her preference. When McCrary went to treat the patient, she found that he was no longer on the unit where she was assigned.

McCrary sued the Hospital, alleging that by allowing the assignment of its employees to care for the patient to be based on race, the Hospital violated 42 U.S.C. § 1981, which prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors, and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), which prohibits discrimination with respect to employment, compensation, or a term, condition, or privilege of employment. The Hospital filed a motion for summary judgment seeking to dismiss McCrary’s claims.

The court noted some discrepancies in the factual record called for denying summary judgment. First, the Hospital had not identified the charge nurse to whom the nurse-in-training presented the patient’s request, raising a question as to what she was told about how the Hospital would handle the patient’s request. The nurse-in-training did not write in the patient’s record that the request would not be granted, which she testified she believes she would have done if she had been given such an instruction. There also was a question as to the credence a nurse gave to the notation in the patient’s record, since he asked McCrary to find someone else (i.e., a Caucasian respiratory therapist) to treat the patient. Finally, because the record fails to reflect when the patient actually underwent surgery, a question remained as to whether the patient was moved to avoid having McCrary be the respiratory therapist called upon to perform the patient’s needed breathing treatments.

The court denied the Hospital’s motion for summary judgment on all counts, concluding a reasonable jury could find that by recording patients’ race-preference requests in the patients’ record, failing to have a policy for handling race-based requests by patient, and by not training its employees to reject those requests, the Hospital purposefully allowed the assignment of its employees’ duties to be determined by their race.

It is important for employers to note that unlike Title VII of the Civil Rights Act and many state anti-discrimination laws, the state and federal laws at issue in this case do not require a plaintiff to demonstrate that she suffered an adverse employment action. Accordingly, the court rejected the Hospital’s argument that McCrary’s claims should be dismissed because this single patient encounter did not alter her terms and conditions of employment, e.g., she was not disciplined and suffered no loss of pay and no reduction in hours.

This case highlights the importance of training and maintaining clear anti-discrimination policies.

Inconsistent Discipline of Female and Male Mental Health Technicians Bars Summary Judgment for Hospital

Where a former female employee showed a hospital imposed lesser disciplinary action upon male employees for infractions similar to the one that led to her discharge, her sex discrimination claims can proceed, a federal appeals court has ruled, reversing summary judgment for the hospital. Jackson v. VHS Detroit Receiving Hospital, Inc., No. 15-1802 (6th Cir. Feb. 23, 2016).

Karon Jackson worked as a Mental Health Technician (MHT) in Detroit Receiving Hospital’s Mental Health Crisis Center. In September 2013, Jackson assisted a nurse with a patient discharge. Neither Jackson nor the nurse checked the patient’s wristband as required by hospital policy. The Hospital terminated their employment because the failure to check the patient’s wristband constituted a “major infraction” under the Hospital’s disciplinary policy.

Jackson sued the Hospital in federal district court alleging discrimination on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. The district court granted the Hospital’s motion for summary judgment, but the Sixth Circuit Court of Appeals, in Cincinnati, reversed that decision and remanded the case back to the district court.

The Sixth Circuit found that Jackson had established the male MHTs she claimed were treated differently than she were similarly situated to her. One male MHT, who also was subject to the requirement that he check patients’ wristbands before discharge, had escorted the incorrect patient out of the Crisis Center because he failed to check the patient’s wristband. This failure constituted a major infraction under the Hospital’s discipline policy. Similarly, as a result of his improper search of a patient who was carrying knives, a second male MHT was cited for violation of the same two major infractions for which Jackson was terminated. The Hospital did not terminate the employment of either of these male MHTs. Therefore, the Court found that Jackson established these similarly situated male employees were treated more favorably than she was.

The Court next examined whether Jackson met her burden to demonstrate the Hospital’s stated reason for discharging her was pretext for sex discrimination. The Hospital argued Jackson’s mistake was more egregious than those made by the two male MHTs, and thus warranted the more severe penalty of discharge. The Court disagreed, in part because the Hospital’s argument speculated on the harm that could have resulted from the mistakes by Jackson and the two male MHTs. The Court found Jackson met her burden and a reasonable jury could reject the Hospital’s proffered reasons for the difference in treatment.

While courts often refrain from second-guessing an employer’s decision to discipline or discharge an employee for policy violations, this restraint will not always allow an employer to avoid potential liability. Here, the similarity in circumstances between the policy violations was too great to permit summary judgment for the Hospital where there was an apparent disparity in the severity of discipline meted out to male employees, on the one hand, and to the female plaintiff, on the other. This case highlights the importance of consistent application of discipline for similar workplace offenses.

Court Finds No FMLA Violation, Disability Discrimination Where Hospital Terminates Nurse with Migraine Who Slept While On Duty

A federal court in Ohio has dismissed Family and Medical Leave Act and disability discrimination claims filed by a nurse who was caught sleeping while on duty and fired.  Lasher v. Medina Hosp., et al., C.A. No. 1:15CV00005 (N.D. Ohio Feb. 5, 2016). The court found the hospital had a legitimate, nondiscriminatory reason for terminating her employment, which she could not establish was pretextual, and that she failed to notify her employer that she needed FMLA leave for the time she was sleeping on duty.

Jodi Lasher worked as a registered nurse in Medina Hospital’s Family Birthing Center. She suffered from chronic migraine headaches. The Hospital maintained a no-fault attendance policy. Lasher was disciplined under that policy in February and June 2014. In the spring of 2014, the Hospital also received complaints that Lasher’s coworkers sometimes were unable to find her on the unit where she worked and that she was inappropriately using the call room during her shift.

Rather than discipline Lasher because of these complaints, Lasher’s supervisor and a member of the Hospital’s Human Resources Department met with her to discuss accommodations for her migraines and the availability of FMLA leave. Lasher informed the Hospital that accommodations were not applicable to her situation, but that she would take intermittent FMLA leave as needed. Lasher was granted all of the FMLA leave she requested, including an occasion when she developed a migraine headache during her scheduled shift.

During a shift in September 2014, Lasher developed a migraine headache while caring for a patient who was in labor. When she experienced dizziness, Lasher went into a vacant room and collapsed onto the bed. A coworker later found her and woke her up. Lasher then went to the emergency room for treatment. The Hospital terminated Lasher’s employment pursuant to a policy that classifies sleeping while on duty as a major infraction that may result in suspension or termination of employment.

Lasher filed suit alleging the Hospital violated the FMLA by retaliating against her for exercising her FMLA rights and by interfering with those rights and that it discriminated against her on the basis of a disability in violation of Ohio state law. The court granted the Hospital’s motion for summary judgment, dismissing all claims.

The court agreed that sleeping while on duty constituted a legitimate, nondiscriminatory reason for terminating Lasher’s employment. Applying Sixth Circuit case law, the court found that because the Hospital honestly believed Lasher was sleeping while on duty, she could not establish the stated reason for terminating her employment was pretext for unlawful conduct. The court also found Lasher failed to identify any employee who engaged in substantially identical conduct and was treated differently under the policy the Hospital relied on to discharge her. For these reasons, the court dismissed Lasher’s FMLA retaliation and state law disability discrimination claims.

The court also dismissed an FMLA interference claim, because Lasher did not notify the Hospital she needed leave on the night she fell asleep while on duty. It is undisputed Lasher’s manager previously had made clear that if she experienced a migraine during a shift, she must notify someone that she needs to remove herself from patient care and that she cannot just leave patients without letting someone know. Lasher did not inform anyone she was experiencing migraine symptoms when she went into the vacant room. Nor did she later inform her manager that she needed FMLA leave that night.

The Hospital’s proactive approach to addressing Lasher’s potential need for accommodations and FMLA leave was a key to its victory in this matter. Healthcare employers should train front line managers to work with their Human Resources colleagues to engage in the kind of interactive dialog that occurred here.

OSHA Launches Webpage Addressing Preventing Workplace Violence in Healthcare

The federal Occupational Safety and Health Administration has launched a webpage to provide employers and workers with strategies and resources for preventing workplace violence in healthcare settings.

The development of this webpage follows OSHA’s update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers (see our April 2015 report).

To read more about the information provided on the new OSHA webpage, see this post on the Jackson Lewis OSHA Law Blog.

EEOC Finds Hospital’s Leave Policy Unlawful, But Court Dismisses Nurse’s ADA Claims

A federal court in Texas has dismissed a nurse’s disability discrimination and retaliation claims because she failed to establish she was qualified to perform the duties of her position with or without reasonable accommodation even after the EEOC found the employer’s six-month cap on leaves of absence violated the American with Disabilities Act. Salem v. Houston Methodist Hospital, C.A. No. 4:14-1802 (S.D. Tex. Oct. 30, 2015).

Fatima Salem was a nurse at Houston Methodist Hospital. Salem suffered from various medical and psychological conditions. Because of these conditions, Salem requested and was granted a leave of absence, which lasted for 59 days and was covered by the FMLA. She returned to work, but subsequently took another leave of absence. The Hospital maintained a policy that “[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.” Salem asked the Hospital to make an exception to this policy when she was unable to return within the six-month limit. The Hospital refused this request and terminated her employment.

Salem filed a charge with the EEOC alleging the termination of her employment violated the ADA. The EEOC found the Hospital’s leave policy violated the ADA “in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.” However, the EEOC was unable to conclude the Hospital violated the ADA when it terminated Salem’s employment. Salem then sued the Hospital in federal district court alleging the Hospital discriminated against her on the basis of disability in terminating her employment, failed to accommodate her disability by not providing her with additional unpaid leave from work, and retaliated against her in violation of federal and Texas state law.

The court granted the Hospital’s motion for summary judgment on all of Salem’s claims. Salem never established she could perform the duties of her position without reasonable accommodation and the court found Salem’s request for additional leave was not a request for a reasonable accommodation under Fifth Circuit authority because she did not provide the Hospital with a date on which she anticipated being able to return to work.

The court noted the Hospital’s “minimal participation” in an interactive process with Salem to determine whether a reasonable accommodation could be made was inappropriate, but that did not alter the outcome because there is no evidence a reasonable accommodation was feasible. The absence of evidence of a feasible reasonable accommodation also required the court to grant the Hospital’s motion for summary judgment on the failure-to-accommodate claim. Salem’s retaliation claim also failed because she could not show the Hospital’s adherence to its six-month leave limit was a pretext for retaliation.

The courts have held under the ADA that indefinite leave is not a reasonable accommodation. However, healthcare employers should note the EEOC’s finding that the Hospital’s leave policy here was unlawful and the court’s remarks on the Hospital’s participation in the interactive process, despite the judgment in favor of Hospital. If Salem had been able to provide a date on which she would have been able to return to work after an extended leave of absence, this case may have come out differently.

Discrimination and Retaliation Claims of Nurse with Night Blindness May Proceed, Federal Court Rules

Denying a nursing home’s motion for summary judgment, a federal court in Tennessee has allowed a nurse who suffered from impaired vision to proceed with her age and disability discrimination claims and a claim for retaliation. Harris v. MatureCare of Standifer Place, LLC d/b/a The Health Center at Standifer Place, C.A. No. 1:14-CV-64 (E.D. Tenn. Aug. 5, 2015).

In 1998, Ruth Harris, then aged 53, was hired by the nursing home to work on the evening shift as a Licensed Practical Nurse. In 2010, because Harris told her supervisor she had difficulty seeing and driving at night, she was moved to the day shift. In November 2012, Harris was moved back to the evening shift over her protests. On January 11, 2013, Harris filed a charge of discrimination with the EEOC. The nursing home terminated her employment on January 15, 2013.

Harris then sued the nursing home in federal district court for violation of Tennessee and federal law by discriminating against her on the basis of her age and disability and retaliating against her for filing a claim with the EEOC. The nursing home moved for summary judgment, which was denied as to all counts.

In her deposition, Harris stated she was told that she was moved back to the second shift because she was older and that “[the facility] needed a younger nurse because the State was coming [to review the facility].” The court found that this evidence, if credited, demonstrated that age was the “but for” cause of the nursing home’s actions, even though the statement was made in connection with moving Harris to the second shift rather than the decision to terminate her employment.

The court also found that Harris presented sufficient evidence that she had night blindness, which prevented her from driving at night, to survive summary judgment on her disability discrimination claim. The nursing home contended that a sharp uptick in problems with Harris’s performance after she returned to the second shift provided a legitimate nondiscriminatory basis for the decision to terminate her employment. Harris disputed several of the disciplinary notices relied upon by the nursing home and pointed to younger employees who were not fired for similar mistakes. The court found this evidence sufficient to create a factual question for the jury as to whether the employer’s proffered reasons for terminating her employment were pretextual.

Finally, the court found the close temporal proximity of the dates on which the termination notice was written, Harris’s counsel faxed the employer a copy of her EEOC charge, and the termination notice was signed by her supervisor, sufficient to create a genuine issue of material fact as to whether the termination of her employment was causally connected to her filing a charge with the EEOC.

The evidence that Harris presented disputing several of the disciplinary notices and pointing to younger employees whose employment was not terminated for similar mistakes was a key factor in the denial of the nursing home’s motion for summary judgment on the age discrimination and retaliation claims. This demonstrates the importance of ensuring supervisors are consistent when issuing discipline to employees.

Department of Health and Human Services Issues Compliance Resource for Governing Boards

The Inspector General of the Department of Health and Human Services (HHS OIG), the American Health Lawyers Association, the Association of Healthcare Internal Auditors and the Health Care Compliance Association have released a joint educational resource to assist governing boards of health care organizations in carrying out their compliance plan oversight obligations.

This new resource touches on many elements found in the HHS OIG’s voluntary compliance program guidance documents for several sectors of the healthcare industry. The HHS OIG suggests that a good first step for a board is to ensure that the organization’s senior management is aware of the U.S. Sentencing Guidelines, the HHS OIG’s compliance program guidance documents, and relevant corporate integrity agreements. The principles in the Sentencing Guidelines are the basis of the HHS OIG compliance program guidance documents.

The HHS OIG continues to recognize that there is no “one size fits all” compliance program for healthcare providers, acknowledging that the design of a compliance program will depend on the size and resources of the organization. It also advises boards to stay abreast of the ever-changing regulatory landscape and operating environment, suggesting that one way to do so is to require updates from staff involved in the organization’s compliance program.

The HHS OIG calls upon organizations to define the interrelationship of the audit, compliance, and legal functions in charters or other organizational documents. As healthcare providers review their compliance programs, they should note the HHS OIG reiterated that an organization’s Compliance Officer should “neither be counsel for the provider, nor be subordinate in function or position to counsel or the legal department, in any manner.” The HHS OIG also suggests that boards should receive regular reports regarding the organization’s risk mitigation and compliance efforts — separately and independently — from key players, including those responsible for audit, compliance, human resources, legal, quality, and information technology.

Finally, the HHS OIG states that “compliance is an enterprise-wide responsibility” and suggests that boards may assess employee performance in promoting and adhering to compliance and use these assessments either to withhold incentives or to provide bonuses based on compliance and quality outcomes. Recent enforcement activity by the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”), an interagency task force coordinating efforts between HHS and the Justice Department, further highlights the importance of promoting a culture of compliance throughout any healthcare organization.

In addition to reviewing their current compliance programs, healthcare employers should consider enhancing compliance training programs for employees at all levels of the organization. Jackson Lewis attorneys are available to advise organizations on developing compliance programs that meet the expectations set forth in the HHS OIG compliance documents.

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