Healthcare entities (and their business associates) face stiff financial penalties for breaches resulting from the internal operations of the healthcare provider: $150,000 for a lost, unencrypted flash drive, $750,000 for sending an administrative service provider PHI without a signed BAA, and $2.5 million for a stolen laptop, just to name a few. Our colleagues in the Workplace Privacy, Data Management & Security practice group offer details about the risks healthcare providers face and the costs of ignoring compliance obligations. You can read it here.
Many hospitals and healthcare facilities are federal contractors. Jackson Lewis regularly provides specialized assistance in developing and implementing affirmative action plans (AAPs). Some of the specific services we offer include:
- Identifying pertinent labor market areas and analyzing census-related statistical data
- Providing sample plan texts, notices, letters and policy statements
- Preparing utilization and availability analyses
- Conducting impact ratio and compensation analyses
To help covered employers understand their affirmative action obligations and the procedure for plan development, we train management so they can understand the company’s obligations and their role in affirmative action. We defend clients against the imposition of citations and allegations of discrimination in connection with audits by the OFCCP and in related litigation brought on the OFCCP’s behalf by the Solicitor’s office of the U.S. Department of Labor.
We also prepare AAPs for, and defend against, audits by state and local affirmative action agencies. To identify and resolve potential adverse impacts and compensation disparity discrimination liability, we perform highly-specialized vulnerability audits. For federal contractors and non-federal contractors alike, we advise on implementing lawful diversity initiatives and voluntary AAPs, set-aside, and vendor and franchisee preference programs; counsel on affirmative action coverage issues; and conduct preventive analyses during downsizing.
Rheumatologist Ephraim Engleman practiced medicine until he died at age 104 in 2015. Although Dr. Engleman’s story is atypical, as our colleagues who attended the American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute reported, and the Association of American Medicine Medical College’s November 2017 State Physician Workforce Data Report confirms, an increasing number of physicians are choosing to work past traditional retirement age. Today, nearly one-third of all physicians in the United States are over the age of 60.
While senior physicians can be an invaluable resource to the medical community, this demographic shift poses a number of challenges for health systems and hospitals, especially as medical practice acquisition and physician employment remains strong. One such challenge is ensuring late age physicians remain mentally and physically capable of providing safe, up-to-date care. To address this issue, a growing number of health systems and hospitals have adopted policies requiring older physicians to undergo cognitive and physical testing. Also, the American Medical Association’s Council on Medical Education is working on developing standards for age-based evaluation.
Although many healthcare employers are exploring late age testing as one means to ensure quality care, employers must be careful not to run afoul of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and related state laws when implementing this testing. There is uncertainty here because courts have yet to weigh in on their application to physician age-based testing policies.
The ADEA restricts an employer’s ability to make age-related employment decisions unless the employer can establish that age is a “bona fide occupational qualification” (BFOQ). This generally means the employer must show there exists a trait that precludes safe and efficient job performance that cannot be ascertained by means other than knowing the employee’s age and that it is appropriate to treat all employees of a certain age the same because it is “impossible or highly impractical” to deal with older employees on an individualized basis.
At first blush, it may appear that a blanket late age physician policy would easily pass BFOQ scrutiny. After all, patient safety is at stake. However, rulings by courts examining age-based testing policies in other professions create some doubt as to how late age physician testing will fare under judicial review. For example, in the airline industry, courts have found mandatory retirement age policies pass BFOQ muster as to pilots, but not flight attendants; and in another case, a court found the New York City Transit Authority’s policy of requiring certain individuals over the age of 40 to have an EKG did not satisfy the requirements for a BFOQ.
Applying the reasoning from these and other decisions regarding BFOQ, a court may find that because physicians’ duties vary widely by practice area, a per se physician testing policy is discriminatory. However, employers may have a stronger argument if they apply late age testing to a subset of physicians, i.e., to neurosurgeons versus a family medicine practitioners.
While the ADEA presents certain challenges, employers concerned about the competence of specific physicians (regardless of age) are not without recourse under the ADA. For example, employers may make disability-related inquiries or require that an employee undergo a medical examination when the employer has a reasonable belief that an employee cannot perform the essential functions of the job or poses a direct threat due to a medical condition.
Of course, this is not the end of the inquiry because an employer must remember that if it learns a physician has a disability, in most circumstances, there will be a subsequent obligation to engage in the interactive process with the physician to determine whether there is a reasonable accommodation that will allow the physician to perform the essential functions of his or her job. Towards these ends, stay tuned for a future post where we will examine special considerations to keep in mind when engaging in the interactive process with licensed healthcare professionals.
As #MeToo and #TimesUp initiatives sweep the nation, the healthcare industry should pay attention.
Recent nationwide media attention on sexual harassment in healthcare, coupled with stressful work environments, means healthcare employers have their share of workplace issues. However, healthcare employers have a unique opportunity to make meaningful culture change happen now – both in the context of sexual harassment and beyond. So what can employers do?
- Use this national dialogue to make your company the employer of choice. Engage leadership in a discussion about how and why your organization can benefit from this movement. If there is ever a time to demand professionalism in all aspects of the workplace, from the operating room to caregiver interactions, it is now.
- Get out into the field. Cascade down the message that your organization is focused on a renewed culture.
- Do not limit #MeToo discussions to employee-employee interactions. Broaden the discussion to include harassment between patients and employees and general workplace culture.
- Use the #MeToo movement to drive home basic respect and courtesy in the workplace. If you raise your voice, you lose the battle. If you raise your voice or otherwise behave poorly and someone has it on tape, you may lose your job.
- Lead from the top. Create an environment where employees know that if they have concerns, those concerns will be addressed in a respectful and thorough manner. Do not brush concerns under the rug. Be a leader in proactive culture setting.
- Use this movement to enhance the patient experience. Taking these steps to engage your workforce and train across all levels will enhance the patient experience.
- Use this movement to enhance the manager’s experience. Strong managers are approachable, patient, and good communicators. Encourage effective, early performance management so managers free up their time to build a culture of good performers.
- Retaining the “best of the best” workforce is critical to patient care services and the ability to compete in an industry full of change. Top providers, clinicians, nurses, and researchers demand a positive workplace environment.
- Provide physicians with strong management tools. Unlike other industries, healthcare employers often face non-traditional supervisory issues where physicians and other practitioners do not consider themselves a “supervisor” but, when it comes to harassment in the workplace, they may be viewed that way under the law.
While the laws regarding workplace harassment have not changed, the sheer number of those who speak out, the volume with which they do it, and the audience they reach is changed forever. Get ahead of this movement.
To learn more about the firm’s healthcare industry team and specifics about how we can help you address the speak out evolution or work towards cultural change, including our Engage MD™ model aimed at revamping physician management practices, please contact your Jackson Lewis attorney.
The American Health Lawyers Association’s 2018 Physicians and Hospitals Law Institute in New Orleans focused on the legal challenges faced by physicians and hospitals. Here are the Jackson Lewis Healthcare Industry Team’s “Top 7” takeaways from the attorneys who attended the conference:
- Healthcare and labor & employment law are hot. According to Law360, Labor & Employment, Data Privacy & Cybersecurity, and Health Care are three of the top four hottest practice areas for 2018. For the first time in history, healthcare has surpassed manufacturing and retail to become the largest source of jobs in the U.S.
- Hospital and health care system transactions and partnerships are on the rise. The U.S. Department of Health & Human Services’ Agency for Healthcare Research and Quality reports at least 69.7 percent of U.S. hospitals are part of health care systems. Consolidations continue to draw great scrutiny from the Federal Trade Commission.
- Qui tam cases are on the rise and companies are starting to use the False Claims Act to gain competitive edge. According to the Department of Justice, $2.4 billion of the $3.7 billion in settlements and judgments it recovered from False Claims Act cases in fiscal year 2017 involved the health care industry, including drug companies, hospitals, pharmacies, laboratories, and physicians. This is the eighth consecutive year that the Department’s civil health care fraud settlements and judgments have exceeded $2 billion. In at least one recent lawsuit, the relator was a competitor medical supply manufacture.
- The use of Advanced Practitioner Professionals to supplement direct physician involvement is on the rise in hospital and ambulatory settings. This has created legal and ethical issues, particularly for hospitals and health care facilities that must comply with the laws of multiple states.
- HIPAA compliance and enforcement is getting more expensive, but now healthcare providers also have to worry about attacks on internet-connected devices. Ransomware attacks on healthcare providers are on the rise. As a result, the Food & Drug Administration has issued guidance and webinars to address the management of cybersecurity in medical devices.
- The number of practicing physicians older than 55 is increasing. Some hospitals require doctors over a certain age to undergo periodic physical and cognitive exams, which can lead to age and disability discrimination claims. These exams address only some of the issues presented by the aging physician population. For example, an 84-year-old New Hampshire physician recently lost her license to practice medicine because she did not know how to use a computer and kept handwritten patient records instead.
- The law is catching up with telemedicine. According to the Center for Connected Health Policy, in the 2017 legislative session, 44 states introduced more than 200 telehealth-related pieces of legislation. No two states are alike in how telehealth is defined and regulated, which has created a confusing environment for Medicaid reimbursement, licensing and prescribing, among other issues.
Nurses had no right to union representation in their hospital employer’s peer review committee proceedings, the Court of Appeals for the District of Columbia Circuit has ruled. Midwest Division – MMC, LLC, dba Menorah Medical Center v. NLRB, No. 15-1312 (D.C. Cir. Aug. 18, 2017). The Court, however, found the hospital violated the National Labor Relations Act by refusing to provide the union information it requested about the peer review committee and by maintaining an overbroad confidentiality rule.
Menorah Medical Center maintains a peer review committee consistent with Kansas law. The committee investigated two nurses for substandard conduct. The nurses’ union filed an unfair labor practice charge with the National Labor Relations Board about this investigation. It alleged Menorah violated the NLRA by refusing to allow the nurses to have union representation at the committee’s hearings; refusing to provide information the union requested about (i) the structure and functions of the peer review committee and its members, (ii) allegations against nurses investigated by the committee (and the sources of those allegations), and (iii) any discipline issued by the committee; and maintaining an overly broad confidentiality rule.
The NLRB upheld an administrative law judge’s decision finding the conduct alleged by the union violated the NLRA.
The appeals court rejected the NLRB’s finding that the nurses had a right to union representation at the peer review committee hearings. The Court explained that under the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), an employee’s rights under the NLRA are infringed when an employer compels him to appear at an investigatory interview the employee reasonably believes might result in disciplinary action, but denies him union representation. Conversely, absent compulsory attendance, the right to union representation does not arise. Here, the nurses received letters advising them the peer review process “afforded an opportunity” to appear before the committee “if you choose.” The letters also invited them to “submit a written response…if you wish in lieu of an appearance.” Accordingly, the Court ruled the nurses were not compelled to attend a hearing and, therefore, had no Weingarten right to union representation.
The Court next ruled the union was entitled to the information it requested. Menorah argued its confidentiality interests based upon Kansas peer review statutes justified its refusal to provide the information. The Court found the state law privilege was not so broad as to attach to “any document that may incidentally come into committees’ possession.” The requested information was relevant and the union’s interest in the requested information prevailed over Menorah’s asserted confidentiality interests, the Court ruled.
Finally, the Court agreed with the NLRB that Menorah’s confidentiality policy was overbroad because employees would reasonably understand the rule’s prohibition on disclosure of reportable incidents as barring discussion of events underlying peer review investigations. Therefore, the rule was unlawful because these underlying events also could be the subject of grievances under the collective bargaining agreement, making such discussion protected by the NLRA.
In a partial concurrence and dissent, one judge on the three-judge panel questioned whether Weingarten rights apply in peer review interviews, because they are part of the state’s regulatory apparatus, rather than the employer’s disciplinary process. This judge also would have vacated the NLRB’s order to the extent it ruled the union was entitled to all of the peer review information it requested and would have remanded the case to the NLRB to properly re-balance Menorah’s confidentiality interest against the union’s asserted need for the information.
Hospitals should review their peer review policies and consider appropriate revisions to address the Court’s analysis of the scope of Weingarten rights and the duty to furnish information to unions.
The U.S. Department of Health and Human Services had issued guidance on ransomware attack prevention and recovery from a healthcare sector perspective in July 2016. The importance of these measures was highlighted by the recent worldwide ransomware, “WannaCry,” attack that caused major disruption to the United Kingdom’s National Health Service and cancellation of operations. Learn more about that ransomware attack on our Workplace Privacy Blog.
For more information on preventing such attacks, click here to read our article, “Ransomware Attacks: Prevention and Preparedness.”
As previously mentioned, healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things. To get all the details, click here to read our special report.
Healthcare employers in California should prepare for a host of new workplace safety requirements, starting this weekend. California’s new healthcare workplace safety prevention law takes effect April 1, 2017. The scope of the regulation affects almost all health care facilities, medical groups, and several other care facilities including senior care centers, nursing homes, and retirement homes. For more information, click here.
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.