Vermont Court Finds Patient Can Sue Hospital and an Employee for Breach of Confidentiality

In a landmark ruling, the Vermont Supreme Court recently held that a patient had standing to sue both the hospital at which she was a patient and the employee who attended to her, for negligent disclosure of her personal health information to a third-party. Neither the Health Insurance Portability and Accountability Act (HIPAA) nor Vermont law provide for a private cause of action for damages arising from a medical provider’s disclosure of information obtained during treatment. Our colleagues in the Privacy, Data and Cybersecurity practice group offer details on the decision. You can read more about it here.

Three Tips to Investigate Harassment Complaints When You Are Not “the Employer”

The healthcare setting involves many potential “joint employer” landmines, as hospitals often have outside vendors providing services (i.e. food service, laundry service) inside their facilities. Employment and labor law is in flux regarding the “joint employer” standard. See (NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard); (Department of Labor Proposes Updated Interpretation of Joint Employer Standard Under the FLSA). The proposed rules published by the National Labor Relations Board and the U.S. Department of Labor indicate it may be more difficult, going forward, for employees and former employees to establish the existence of a joint employer relationship between a hospital and its vendors, but the rules are not final yet. Employers are in a challenging situation when it comes to investigating allegations of harassment that occur in a potential joint employer relationship. If your employee reports that a vendor’s employee has engaged in inappropriate behavior at work, you should consider these key questions as you investigate the report:

1. Who Is Acting Like the Employer? Examine how the working relationship has been managed–who is supervising and controlling the alleged harasser’s conditions of employment?
2. How Is the Investigation Documented? Documentation should clearly state that you employ the complaining party, and not the alleged harasser. Watch for sloppy references now that could lead to liability later.
3. Who Is the Decision-maker? The joint employer tests focus on who has the authority to discipline or terminate the employee. In order to mitigate the risk of a joint employer finding, when discipline is appropriate, the decision-maker should be the actual employer i.e. the vendor, not the hospital.

For more information about how to manage joint employer issues and workplace investigations, contact your Jackson Lewis attorney, or a member of the Healthcare team.

New York City Ban on Pre-Employment Drug Testing Won’t Apply to (most) Healthcare Workers

On May 10, 2019, a bill amending New York City’s administrative code related to prospective employee drug-testing officially became law for New York City employers. While the law does not go into effect until May 10, 2020, it is the first of its kind in the nation. The law prohibits employers from requiring applicants to submit to pre-employment drug testing for the presence of marijuana or THC. Once the law takes effect, employers in New York City will not be permitted to conduct pre-hire marijuana testing as a condition of employment, but employers will still be allowed to screen for other illicit substances such as opiates, amphetamines, etc.

The new law, however, contains an important exception for certain healthcare workers. Specifically, the law does not apply to any individuals applying for work in any position requiring the supervision or care of children, medical patients, or vulnerable persons as defined by Section 488(15) of the New York Social Services Law. The law further excludes employees in positions that “significantly impact the health or safety of employees or members of the public.”

These exceptions come as welcome news for hospitals, nursing homes, and other healthcare providers. While New York City is expected to issue rules for implementing the new law and further guidance on these and other exceptions, the breadth of these exceptions remains uncertain. For healthcare providers, an important question is whether the exceptions apply to non-medical staff working in medical facilities, such as maintenance employees.

The new law will not affect employers’ right to discipline employees reporting to work under the influence. However, while the plain language of the new law applies only to “prospective employees,” it is not yet clear whether the new law will have any impact on an employer’s right to test current employees for the presence of marijuana.

For now, employers will have to wait until New York City provides further guidance. Luckily, the law does not go into effect until next year, so employers will have ample time to implement new pre-hiring procedures. For more information about New York City’s ban on pre-employment drug testing, read our article “New York City Employers Are Barred from Testing Job Applicants for Marijuana Use,” contact your Jackson Lewis attorney, or a member of the Healthcare team.

House Pushes OSHA to Create a Standard Concerning Workplace Violence in the Healthcare Sector

Members of the House of Representatives recently introduced legislation that would require the Department of Labor to promulgate a standard addressing workplace violence in the healthcare and social service industries. Under the bill, the standard would need to include requirements for employers in the healthcare and social service industries to develop comprehensive plans protecting workers from violence, investigate workplace violence incidents, provide training to employees, and prohibit acts of retaliation against an employee who reports violence or threats. Our colleagues in the Workplace Safety and Health practice group discuss the House Appropriations Committee’s concern that OSHA is failing to move forward to develop and issue needed standards on major safety and health problems. You can read more about it here.

Sexual Harassment in Hospitals: Interns, Residents, Students, Attending Physicians: How to Navigate a Troublesome Problem Among a Diverse Workforce

Much has been written lately about the #MeToo movement and its presence in workplaces as diverse as universities, movie and TV studios. Hospitals are no exception. Savvy employers know that hospitals—large facilities that employ people of all educational backgrounds, races, religions, sexual orientations, ages, and more—can be ground zero for sexual harassment at any time. Differences in attitudes towards the surging #MeToo discourse can prove a perfect opportunity to review policies, state, local and federal laws regarding sexual harassment, and discuss sexual harassment with employees at every level.

Moreover, medical students and residents training for their careers are in a unique position: they must accomplish certain training milestones and acquire crucial knowledge in order to graduate from medical school or complete a residency program. Sexual harassment—whether as the perpetrator or victim—can impinge on one’s success, and even derail careers if the perpetrator or victim does not address the attendant fallout from the incident. Hospitals should take the time to train all employees in the institution’s sexual harassment policies, and in some cities and states, including New York, this training is now required by law.

When colleagues work long hours under pressure and in intellectually and emotionally taxing professions such as medicine, misunderstandings can arise. It is also common for colleagues in the medical profession to socialize, or even date each other after hours. Often, sexual harassment allegations in the workplace arise from a once consensual relationship turned sour. A couple breaks up, and the ensuing unpleasantness of seeing one’s former significant other at work is then a daily reality.

Regardless of whether an institution has a policy in place about workplace relationships, it is paramount that hospitals take sexual harassment seriously. All employers should consider implementing an Employee Assistance Program, offered anonymously to employees experiencing difficulty in their personal lives. Also consider the advantage to being a proactive employer—educating your workforce before a problem arises. In recent years, hospitals in New York City, Long Island and nationwide have faced unfortunate scenarios involving physicians or other staff who never sought help for problematic sexual behavior, and later committed harassment or assaults on coworkers and patients. No employer foresees a talented physician behaving in such a way. But chaperones in exam rooms, creating a “just” culture of respect among colleagues and for patients, and preventive training can go far in preventing incidents that cause harm and create liability. As the profession in which the mantra is, “First, do no harm,” a savvy hospital Human Resources executive or General Counsel can create a workplace culture where healing and patient safety are the priorities above all.

When employers address sexual harassment in a way that employees can feel free to report incidents without fear of reprisal, employees trust that aberrant behaviors will be addressed before they become problems that affect careers, and above all, well-being. For more information about sexual harassment prevention, contact your Jackson Lewis attorney, or a member of the Healthcare team.

HIPAA Penalties Change Under HHS Notice of Enforcement Discretion

Today, the Department of Health and Human Services (HHS) issued a notification of enforcement discretion changing its interpretation of the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 resulting in a reduction in the amount of the cumulative annual penalty limit for violations of HIPAA. Our colleagues in the Privacy, Data and Cybersecurity practice group offer details on the new guidance. You can read more about it here.

Considerations for an Aging Physician Policy

Aging is inevitable. As the general population trends older, so do the physicians providing care across the United States. While data differs depending on the source, somewhere between one in three and one in four practicing physicians are over the age of 65, with this percentage rising even higher in many specialties. With this aging comes concerns that the cognitive and/or physical dexterity skills of those physicians may deteriorate over time. The resulting potential injury to public safety cause many healthcare organizations to consider policies addressing the aging of their physicians. However, there are many issues that must be considered in order to have a late career medical practitioner policy that can withstand scrutiny by state and federal courts and agencies.

While organizations look to promote patient safety and limit their liability and reputational harm that can result from any negligence in patient care, those goals must be balanced against the rights of the physician. There are many considerations for any such policy. These include what should be the beginning age for any such screening, what is the frequency for any assessments, what are the specific screenings that will be performed and by whom, and what are the consequences for refusing to undergo the assessments. These are just some of the determinations that must be made.

Analysis of what specific screenings will be conducted—such as whether to include substance abuse testing, the role (if any) of peer reviews, if there should be a physical exam, and which cognitive screenings are to be utilized—should focus on maintaining an individualized determination of the skills and health of each particular physician. This will assist in ensuring that no discrimination takes place in violation of the federal Age Discrimination in Employment Act and state and local laws prohibiting age discrimination. Such individualized assessment will also aid in defending against any potential disability discrimination claims that could arise when the organization learns of a previously undisclosed mental condition such as depression or a physical disability that may trigger an obligation to engage in an interactive process to determine if the organization can reasonably accommodate the physician’s condition.

While many jobs affecting public safety, such as air traffic controllers and airline pilots, have mandatory retirement ages, such policies for physicians remain largely untested in the courts despite the growing discussion in the healthcare community. The more narrowly tailored such a policy is, and the more personalized each screening can be, the greater the chances the policy will withstand legal scrutiny. Any organization contemplating such a policy should be cognizant of the legal risks and be prepared to articulate a nondiscriminatory reason based on objective fact rather than generalized perception for implementing a policy that requires physician screening based on patient safety concerns.

For more guidance on your potential or existing late career physician policy, please reach out to your Jackson Lewis attorney, Ms. Maddalena or any member of our Healthcare practice team.

Small Michigan Medical Practice to Close Following Ransomware Attack

Small and midsized enterprises (SMEs) continue to be targeted by ransomware, phishing and other cyberattacks; the consequences of which could be devastating. Those consequences include putting SMEs out of business, which is unfortunately the case for one small medical practice in Battle Creek, Michigan, as reported by HIPAAJournal. Our colleagues in the Privacy, Data and Cybersecurity practice group discuss the need to be prepared to respond to these and similar kinds of attacks. You can read it here.

Just Culture–What Is It and Can It Minimize Patient Harm and Promote a Positive Workplace Culture?

Healthcare employers, along with other high-risk industries, continually look for ways to minimize risk and to promote a positive work culture for employees. One approach is the implementation of a “just culture” framework.

In essence, “just culture” is a shared accountability methodology. In a “just culture” framework, both employers and employees are responsible for their respective roles when patient harm occurs and, ideally, for preventing it. Under this theory, employers are responsible for creating system design and enforcement tools that eliminate factors that place employees in a position whereby harm is likely to occur if there is human error, which is inevitable. Employees are also responsible for their conduct; however, this methodology places less emphasis on punitive action when employees make mistakes if the system design (as opposed to the employee’s reckless conduct) led to the ultimate patient harm. This theory differs from the traditional labor law theory of “just cause” but the principles of “just culture” are rooted in legal theories underlying both labor and tort law.

Classic examples of systems designed by healthcare employers to minimize the effects of human error are processes such as: the six rights “6 Rs” of medication administration, pre-surgery “time outs” or bar code scanning of patients’ wrist bands and medications before administration. There are various approaches to the “just culture” concept, but they all seek to create precisely what the name entails–a culture whereby accountability (and resulting employee discipline) is just.

Many “just culture” proponents (including practitioners) appreciate the, almost scientific, algorithm utilized in determining whether a specific patient harm was caused by failures in system design, as opposed to reckless employee conduct. Generally, when implementing “just culture”, managers follow a formulaic analysis tool to determine whether the resulting patient harm was caused by system design failure (something that should be fixed and for which employee discipline may not be appropriate), as opposed to reckless conduct by the employee in disregard of the system’s preventative measures.

Medical practitioners are often familiar with the concept of “just culture” but counsel, human resources and other risk management professionals may not be, resulting in opportunity for increased partnership between these groups to better manage risk and create a positive work environment. When implemented correctly, “just culture” can: (1) create consistency in determining whether employee discipline is appropriate; (2) minimize patient harm; and (3) create a workplace culture of self-reporting (since employees understand that mistakes won’t necessarily result in punitive action when the system design failed, as opposed to their reckless conduct causing the harm). However, “just culture” does not dictate what discipline level is appropriate. Similarly, it does not take into account other practical or legal considerations often at play in determining whether employee discipline may be appropriate.

Whether or not an employer deems “just culture” methodology right for its organization, human resources professionals, in-house counsel and other risk management professionals should review how, and to what extent, “just culture” is implemented in their organization as part of ongoing risk management efforts. For more information about how your organization can promote a positive workplace culture, contact your Jackson Lewis attorney, or a member of the Healthcare team.

Large Health Systems’ CEOs Predict Less Mergers, Continued High Demand for Employees in 2019

On February 23, 2019, Modern Healthcare reported key takeaways from its “CEO Power Panel.” Of the 24 CEOs who completed the survey, only three (12.5 percent) responded that mergers and acquisitions “will be their primary growth strategy in 2019,” down from 25.8 percent of respondents in 2018. CEOs questioned whether organizations achieved any actual value in terms of cost savings or efficiencies when they merged, and cautioned against “getting big for big’s sake.”

At the same time, the CEOs reported a continued focus on hiring, in particular front-line staff. In comparison to 2018, 62.5 percent of respondents expect to hire the same amount or more employees. Some organizations reported shortages in terms of their staffing needs, and described the unemployment rate for qualified healthcare workers at “effectively zero.”

This is all consistent with the Bureau of Labor Statistics’ prediction that “[e]mployment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups.”

Almost 60 percent of the CEOs that Modern Healthcare surveyed selected “competition for talent” as their organization’s greatest challenge for 2019. It is clear that healthcare organizations—of all sizes—will need to continue focusing on attracting and retaining talent in 2019. Some CEOs reported that their organizations plan to focus on training their existing workforce to develop skills in newer technologies, such as AI, virtual reality, and 3-D printing. Continued training should help retain employees, but how should your organization set itself apart to attract talent in the first place? Please refer to our earlier post, which outlines helpful strategies to diversify and improve your healthcare workforce. For more information about how your organization can take a proactive approach regarding its diversity and inclusion performance, contact your Jackson Lewis attorney, or a member of the Corporate Diversity Counseling team.

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