‘Tis the Season for Budget Negotiations: What is the Potential Impact of Another Government Shutdown on Healthcare?

With less than a week left on the December 21st deadline to reach a spending deal and avoid another government shutdown, tensions are high in Washington D.C. On Tuesday, President Trump stated he would refuse to sign a spending bill that did not contain a $5 billion allocation for a border wall.  It is questionable, however, whether such a bill would pass in the House or Senate. Thus, it is possible we will see the third shutdown of certain government agencies in this presidential term.

As background, Congress previously approved, and President Trump signed into law, five spending bills providing funding for about 75 percent of the federal government, including defense, education, labor, health and human services, the legislative branch, energy and water, military construction, and veterans affairs. There are still seven other spending bills that need legislative agreement, including those that provide funding for agriculture, the Food & Drug Administration, commerce, justice, science, interior and environment, state and foreign operations, Homeland Security, financial services, general government, transportation, and housing and urban development. Thus, certain agencies (such as the EEOC) are still at risk of shutdown and according to a fact sheet released by the Senate Appropriations Committee staff, more than 420,000 essential government workers would be expected to work without pay if a partial shutdown occurs.

For the healthcare industry, while a spending bill covering the Department of Health and Human Services was approved in September 2018, spending for other government agencies and departments that affect the healthcare industry have not. For example, the Food and Drug Administration would stop pharmaceutical testing; Drug Enforcement Administration agents would have to continue working as essential employees, but would have to wait until after the shutdown to receive a paycheck; and most of the National Science Foundation would close down. More information regarding the impact on the healthcare can be found in the Senate Appropriations Committee staff fact sheet.

5 Takeaways on Managing Challenging Physician Employment Situations

What should (or can) you do if a locally recognized “Best Physician” throws a scalpel in the direction of a nurse during surgery? What are a CMO and CNO’s obligations to investigate when he/she learns there is a “situation” between a doctor and a nurse? How do you balance patient safety and compliance with anti-discrimination laws when the medical staff revokes an impaired physician’s privileges?

Jackson Lewis attorneys Tiffany Buckley-Norwood (Detroit), Margaret J. Strange (Hartford) and Mary M. McCudden (Baltimore) discussed these scenarios and more during a two-part webinar series on challenging physician employment situations. The series delves into the unique problems that healthcare organizations face when navigating their obligations under the labyrinth of state and federal employment laws. Here are some key takeaways:

  1. Healthcare institutions are not immune to #MeToo. Claims of sexual harassment can arise out of comments about gender-based stereotypes that sometimes are made by members of the medical staff. When a medical staff addresses these comments and other misconduct, it is important that the medical staff shares this information with those who have a need to know, such as human resources and department chairs.
  2. Additional considerations come into play when situations involve medical residents. The Accreditation Council for Graduate Medical Education Common Program Requirements state that all medical residents must receive an employment contract and that the contract must contain grievance and due process provisions. Residency programs may also have obligations under Title IX in connection with their residency programs in addition to federal and state anti-discrimination laws that apply to non-resident physicians.
  3. Rates of substance abuse among physicians are slightly above the national average. Generally, state law requires physicians to report impaired colleagues to the physician licensing authority. These requirements vary by state. Some states also require healthcare institutions to report impaired physicians. When physicians with a history of substance abuse return to practice after a period of successful treatment and rehabilitation, healthcare institutions also must be aware of anti-discrimination laws protecting recovering addicts, such as the Americans with Disabilities Act. The webinar series includes a discussion of how to respond to suspected drug use.
  4.  Nearly one-third of all physicians in the U.S. are over the age of 60. Employed physicians are protected against discrimination by the Americans with Disabilities Act, the Age Discrimination in Employment Act (ADEA), companion state laws, and other anti-discrimination laws. Some courts have also extended protections under federal and state anti-discrimination laws to non-employed physicians. Healthcare entities should, therefore, exercise caution in utilizing age-based rules for mandatory cognitive or competency testing related to employment and medical staff privilege determinations.
  5. A healthcare organization must determine what kind of culture it wants to set. Human Resources and Medical Staff leadership need to work together to Model expected behavior; Message expectations; Manage situations; and Monitor the workplace.

You can view Part 1 and Part 2 of the series online today. To learn more about how the firm can assist healthcare organizations in addressing a challenging physician employment situation, including using Jackson Lewis’ EngageMD resources to coordinate the efforts of the medical staff and human resources, please contact your Jackson Lewis attorney.

Developing Best Practices for Addressing Workplace Violence in the Homecare and Assisted Living Settings

In the wake of a recent uptick in workplace violence based lawsuits against home care and assisted living providers, lawmakers introduced a bill in the U.S. House of Representatives on November 16th that would require health care and social services providers to write and implement workplace violence prevention plans. If signed into law, H.R. 7141—the Workplace Violence Prevention in Health Care and Social Services Act—would compel OSHA to create and enforce workplace safety standards pertaining to workplace violence.

As we previously reported, the Fifth Circuit recently held that an assisted living facility certified nursing assistant could proceed to trial with her hostile work environment claim stemming from alleged harassment and groping by an elderly patient. These developments serve as reminders that healthcare employers can seize the opportunity to develop best practices for addressing workplace violence in all forms.

Workplace violence is an often-misunderstood term of art. “Violence” often connotes physical acts, and many neglect to think of verbal acts or other behaviors that actually fall within the realm of workplace violence.

In the homecare realm, the patient’s home is a unique environment in which respect for the patient must be paramount. This intimate relationship can also be ripe for misunderstandings. Cultural differences or the patient’s medical conditions, such as dementia or Alzheimer’s disease, can influence what would normally be a benign interaction. Your organization’s employees at every level can learn to navigate these challenges tactfully to avoid potentially negative outcomes. In reality, the accused party could be the patient, the patient’s family member or friend, the caregiver, or any third party who enters the patient’s residence.

The following is a list of tips for addressing an accusation of workplace violence, regardless of the accused or accuser’s role in, or outside of, your organization:

  • Acknowledge that the accuser has raised a concern. Assure the accuser that the company takes all complaints seriously and will investigate the complaint.
  • Inform the accused of the nature of the complaint. Ask for their version of events. Keep an open mind while conducting the investigation.
  • Do not characterize the complaint as founded or unfounded until a full investigation has been completed.
  • If the charges of verbal workplace violence are serious (abusive language or threats of physical harm), and/or the accuser feels afraid for their safety, consider placing the accused on administrative leave with pay pending the outcome of the investigation.
  • Do not retaliate against any accuser or any other individual who participates in good faith in the investigation. Disciplinary or other adverse employment action against an employee who accuses another party of workplace violence or harassment opens the employer up to potential liability if the employee files a complaint with a state, federal or local agency, or a lawsuit in state or federal court.
  • Maintain an Anti-Workplace Violence Policy in your employee handbook. Review this policy at least yearly to ensure compliance with all applicable local, state and federal laws.

To learn more about the firm’s healthcare industry team and specifics about how we can help you, please contact your Jackson Lewis attorney.

Seven Fundamental Elements of an Effective Compliance Program

The American Health Lawyers Association’s Fundamentals of Health Law program held on November 11-13, 2018 in Chicago, Illinois centered on key health law topics and emerging trends in health care. One focus of the program was the need for healthcare organizations to promote a culture of compliance, which includes implementing an effective compliance program.

A compliance program is a formal statement of a healthcare organization’s coordinated, proactive efforts to prevent, detect, respond to, and report violations of laws, government regulations, and ethical rules.

The Office of the Inspector General (OIG) of the Department of Health and Human Services is tasked with combating fraud, waste, and abuse in healthcare. The OIG conducts the majority of healthcare investigations and has the authority to exclude providers from federally funded healthcare programs and to impose civil monetary penalties.

Additionally, the Patient Protection and Affordable Care Act 42 U.S.C. §18001 requires healthcare organizations to develop and implement formal compliance programs and provides an overview of the role of compliance in healthcare.

The OIG’s position is that healthcare organizations can reduce fraud, waste, and abuse liability through effective compliance programs. Compliance programs are not “one size fits all” and there is no “gold standard.”  The OIG allows and expects an organization to create a compliance program that is tailored to its unique needs. A compliance program must also include the OIG’s seven fundamental elements of an effective compliance program:

  1. Implementing written policies, procedures and standards of conduct. Policies and procedures should promote the organization’s commitment to compliance and address specific areas of risk. As noted in the OIG’s Supplemental Guidance for Hospitals, “[t]he purpose of compliance policies and procedures is to establish brightline rules that help employees carry out their job functions in a manner that ensures compliance with Federal health care program requirements and furthers the mission and objective of the hospital itself.”
  2. Designating a compliance officer and compliance committee. The compliance officer is charged with operating and monitoring the compliance program. The compliance committee should include members of key functions within the organization that can support and advise the compliance officer, such as legal, information technology, and privacy.
  3. Conducting effective training and education. At a minimum, all employees, physicians, and board members should receive training on fraud and abuse laws, as well as the compliance program.
  4. Developing effective lines of communication. Employees must feel comfortable reporting internally, and organizations should have multiple reporting avenues such as the compliance officer and an anonymous hotline. Organizations must also take all reports seriously, and conduct follow-up with the reporting employee. Whistle-blowers often file complaints with the OIG after reporting internally and receiving no follow-up from the compliance officer.
  5. Conducting internal monitoring and auditing. This involves an ongoing process of evaluation and assessment to deter bad behavior and ensure effectiveness of education and corrective action. The compliance program should also monitor compliance with privacy, and provide a risk assessment of potential privacy issues.
  6. Enforcing standards of conduct through well-publicized disciplinary guidelines. Standards of conduct outline an organization’s rules, responsibilities, proper practices, and/or expectations of its employees. Compliance should work with human resources and legal to ensure that the standards and consequences for violations are consistently enforced.
  7. Responding promptly to detected offenses and undertaking corrective action. Failure to ensure timely and effective remedial action for offenses can create additional exposure for the organization.

By implementing and following an effective compliance plan, healthcare organizations can avoid fraud, waste, and abuse liability. Failure to have an effective compliance program may result in:

  • Increased violations.
  • Undetected kickbacks and/or false claims.
  • Evidence of deliberate ignorance of false claims.
  • Entering into a mandated Corporate Integrity Agreement with the OIG.

Healthcare organizations should promote a culture of compliance at all levels inside the organization. Having an effective compliance program is an ongoing process. An effective compliance plan is not a static document, but is proactive, responsive, and changing with the needs of the organization.

Is your e-PHI Secure? ONC and OCR Update HIPAA Security Risk Assessment Tool

October 2018 marks the 15th annual National Cyber Security Awareness Month. In honor of this occasion, the Office of the National Coordinator for Health Information Technology (ONC) and the HHS Office for Civil Rights (OCR) have jointly launched an updated HIPAA Security Risk Assessment (SRA) Tool to help covered entities and business associates comply with the HIPAA Security Rule. But remember, the HIPAA Security Rule does not require a “one-size-fits-all” approach to security.

Under the HIPAA Security Rule, a covered entity or business associate must “[c]onduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information [e-PHI] held by the covered entity or business associate.” See 45 CFR § 164.308(a)(1)(ii). Failing to conduct a risk assessment can become a basis for significant monetary exposure to the OCR, such as this $750,000 settlement by a covered health care provider with OCR.

“An enterprise-wide risk analysis is not only a requirement of the HIPAA Security Rule, it is also an important process to help healthcare organizations understand their security posture to prevent costly data breaches,” stated ONC and OCR in their joint news release on the updated SRA Tool. Healthcare and non-healthcare organizations are increasingly seeing a similar risk assessment requirement under a growing body of state law, such as in California, Colorado, Massachusetts, New York, and Oregon.

Recognizing that conducting this enterprise-wide risk analysis can be a challenging task, the ONC and OCR developed a downloadable SRA Tool in 2014 to help covered entities and business associates identify risks and vulnerabilities to e-PHI. According to ONC and OCR, the October 2018 update to the SRA Tool improves usability and expands its application to a broader range of health data security risks. Still, the SRA Tool may not be the right fit for small and midsized covered entities and business associates. In fact the HIPAA Security Rule contemplates that covered entities and business associates may use any security measures that reasonably and appropriately implement the standards and implementation specifications. In doing so, they may take into account certain factors about their organization: (i) size, complexity, and capabilities, (ii) technical infrastructure, hardware, and software security capabilities, (iii) costs of security measures, and (iv) probability and criticality of potential risks to electronic protected health information.

Use of the SRA Tool is not required by the HIPAA Security Rule, and its use alone does not mean that an organization is compliant with the HIPAA Security Rule or other federal, state or local laws and regulations. However, it may help organizations in their efforts to comply with the HIPAA Security Rule requirement to conduct periodic security risk assessments.  Notably, while the SRA Tool may provide a basic outline for the risk assessment process, it does not provide substantive legal guidance as to how a covered entity or business associate is to navigate between the various standards that are either “required” or simply “addressable.”  While completing a risk assessment is a requirement under HIPAA, organizations should seek guidance from legal counsel as to how to complete such an assessment and how to develop and implement appropriate safeguards based on the results of the assessment.  Failing to do so could create significant liability for your organization.

Failing to conduct regular risk assessments could not only lead to a healthcare data breach, but it could also result in a covered entity or business associate being fined by the OCR. To learn more about how the firm can assist healthcare organizations with HIPAA compliance and data security, please contact your Jackson Lewis attorney.

“Doc, mind if I record this?” – Recording Visits Between Patients and Medical Providers

In today’s world, people are accustomed to accessing endless information with their mobile phone. Accessibility to their own conversations regarding their health may not be any different. What happens when a patient wants to use this technology to preserve his or her access to medical information by recording their medical appointment? A recent study by the Dartmouth Institute for Health Policy and Clinical Practice examined patient recordings of clinical encounters and found they are becoming more common. However, like many trends related to advances in technology, such recordings present an array of complex legal issues.

Patients and providers alike can benefit from recording medical visits. Recording visits may reduce patient stress about trying to remember everything said during the visit, leading to more focused exchanges of information between patient and provider. In addition, patients may choose to share recordings of provider visits with other providers and family members involved in their overall medical care. This can result in better comprehensive care for the patient. Healthcare organizations may be able to use visit recordings as part of their quality improvement and training programs. Visit recordings also could lead to more efficient adjudication and resolution of malpractice claims.

Healthcare providers considering allowing patients to record visits or implementing their own visit recording system must weigh the potential benefits discussed above against some possible pitfalls. For example, would recordings dilute the doctor-patient privilege? Might recordings make patients less inclined to be candid in their communications with the provider? Does the presence of recording devices create an undue risk of inadvertent invasion of the privacy of nearby patients? Healthcare providers also may want to consider whether their general patient population is likely to have a negative or a positive view on recording patient visits.

Despite the near ubiquitous presence of mobile phones with recording capability and the myriad issues this raises, the Dartmouth Institute for Health Policy and Clinical Practice study found that very few of even the largest health systems have developed policies to address these issues. Developing policies is important because recording visits raises several legal issues, including state laws on consent to recordings and HIPAA regulations on how recordings are transmitted and stored. Organizations also should consider whether different types of visits and recording media warrant different guidelines. For example, an organization may want to prohibit video recording of physical examinations or prohibit any recording of certain topics. Organizations also may consider posting signs in waiting rooms and hallways prohibiting recording to protect other patients’ privacy. When considering whether to record patient visits, healthcare providers also must determine the impact of privacy laws on their employees, and whether recording visits raises collective bargaining issues.

The healthcare industry should prepare for the growing trend of recording patient visits. It would be prudent for healthcare organizations to consider these complex issues on a systemic basis rather than addressing them on a case-by-case basis. Please contact a Jackson Lewis attorney if you have any questions about these and other legal developments.

New York State Enacted Budget Includes New Limits, Mandates for Licensed Home Care Services Agencies

The 2018-2019 New York State Budget seeks to advance the state’s strategic policies of encouraging the merger of existing Licensed Home Care Services Agencies (LHCSAs), reducing the number of new LHCSA providers entering the marketplace, and providing more state control over existing LHCSAs. Our colleagues in the Health Law and Transactions team provide details on the state freezing new LHCSAs and a registration requirement, among other provisions. You can read more about it here.

Class Certification Denied in Physician Equal Pay Lawsuit Under a Blanket Compensation Plan

An Illinois District Court recently denied certification of a class of female physicians claiming that their employer’s pay practices unlawfully discriminated against women in violation of Title VII, the Illinois Equal Pay Act, and the Illinois Civil Rights Act (Ahad v. Board of Trustees of Southern Illinois University).

Plaintiff alleged that the implementation of the defendant’s, Southern Illinois University Board of Trustees’, “compensation plan” resulted in pay disparity between male and female physicians.

In holding that the plaintiff failed to meet the Rule 23(a) requirements of “commonality” and “typicality,” the court held that the mere implementation of the compensation plan failed to form the “glue” needed to meet class certification standards. The Court found that the plaintiff failed to demonstrate how the facially gender-neutral compensation plan could have created disparate compensation results. While the plaintiff argued that the compensation plan delegated discretion to the department chairs based on objective criteria, the plaintiff failed to present any argument that those objective factors were in any way biased against women, or that the factors were the “cause” in pay disparity.

Plaintiff’s expert’s findings showed that female physicians were paid significantly less (a point that was directly contradicted by defendant’s expert), and the plaintiff argued that there was no other explanation for the alleged disparity. However, the Court held that the compensation plan, on its own, did not provide the necessary glue to show that adjudicating the claims on a class-wide basis would “produce a common answer to the questions of whether and why compensation for female physicians was lower…”

The court likewise held that the plaintiff’s expert statistical evidence failed to “turn the tides” of its analysis. Citing to the U.S. Supreme Court’s Holding in Wal-Mart Stores, Inc. v. Dukes, the court held that statistical evidence, on its own, “does not and cannot” satisfy the Rule 23(a) commonality requirement.

The court also noted that Rule 23(a)’s typicality requirement tends to merge with the requirement of commonality. Having already found that the plaintiff failed to show commonality, the court summarily held that typicality likewise was not satisfied.

This case provides employers with further authority that, where employees are subject to a blanket compensation policy that may (even with supporting statistical evidence) result in pay disparity, plaintiffs cannot maintain class claims solely on the existence and implementation of the policy in and of itself.

Five Things Human Resources Professionals Are Doing to Make a Difference in Healthcare

The American Society for Healthcare Human Resources Administration’s 54th Annual Conference & Exposition held on September 15-18, 2018 in Pittsburgh focused on empowering attendees to meet the new realities faced by health care human resources professionals. Here are the Jackson Lewis Healthcare Industry Team’s “Top 5” takeaways from the conference.

  1. Investing in Developing Physician Leaders Pays Off. Being a physician leader requires more than being a great practitioner. Conference attendees heard how executive coaching can help physicians develop strong leadership skills. One presenter shared metrics from her health system demonstrating significant return on the investment in executive coaching for physicians. Attendees also noted the importance of framing “coaching” as an organization’s commitment to helping a physician succeed rather than as a form of corrective action.
  2. Data Analytics Can Increase Recruiting Efficiency and Improve Employee Performance. Advanced data analytics can be leveraged in the recruitment process and to measure performance across several important recruitment metrics, including quality of hire. In addition, the data can be used to create and drive performance improvement initiatives.
  3. The #MeToo Movement is a Call to Examine and Improve Your Culture. Healthcare organizations are not immune from the #MeToo Movement. Therefore, organizations must develop effective anti-harassment programs, which include senior leaders modeling and communicating a culture of respect. Once the message is out, the organization should train the entire workforce and then carefully manage and monitor its anti-harassment procedures.
  4. HR Adds More Value When Partnering With Other Leaders. The healthcare industry faces many challenges, including recruiting and retaining highly skilled and engaged caregivers, ensuring respect and accountability in the workplace, and financial constraints tied to reimbursement rates. Several presentations highlighted the importance of human resources professionals partnering with other leaders to meet these challenges. Examples include collaborating with nurse leaders to better understand the implications of the ANCC Magnet Recognition program standards, working with medical staff leaders to confront troubling behaviors, and working with other C-Suite leaders to anticipate and avoid potential pitfalls in growing health systems.
  5. Addressing the Pay Equity Question. The last several years have brought a flurry of legislative activity to address the question of pay equity. In addition, many healthcare industry groups are raising awareness of pay inequality and calling for change. Human resources professionals can shepherd their organization through the process of identifying and correcting pay equity problems.

Seventh Circuit Holding in Sexual Orientation Fair Housing Lawsuit May Foreshadow Similar Claims Brought Against Health Care Providers

On August 27, 2018, the Seventh Circuit Court of Appeals reversed an Illinois District Court in holding that a seventy-year-old homosexual woman could maintain her Fair Housing Act (FHA) claims against retirement community, Glen St. Andrew Living Community, for failing to take reasonable steps to prevent the “torrent of physical and verbal abuse from other residents” allegedly suffered by the plaintiff because she is openly lesbian.

The plaintiff’s complaint alleges that she routinely reported incidents of rampant verbal and physical abuse from other residents of the nursing facility. According to the plaintiff, her complaints were dismissed, and she was branded a liar and continued to be discriminated against. The complaint further alleges that the nursing home retaliated against the plaintiff by providing her with less desirable amenities, barring her from common areas, halting her cleaning services, and even physically assaulting her.

The Court of Appeals cited to its 2017 decision in Hively v. Ivy Tech Community College of Indiana in holding that discrimination based on sexual orientation applies equally to claims under Title VII or the FHA.

Most notably, the Court of Appeals held, “Not only does [the FHA] create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment.” While the Court acknowledged that the plaintiff was in “uncharted territory,” it was satisfied by prior U.S. Supreme Court interpretation of analogous anti-discrimination statutes that the plaintiff’s claims were covered by the FHA.

Of most interest to the health care industry, the Court left the door open for analysis of sexual orientation claims against proprietors of traditional nursing homes and hospitals under anti-discrimination statutes. In dicta, the Court stated, “We say nothing about the situation in a setting that more closely resembles custodial care, such as skilled nursing facility, or an assisted living environment, or a hospital. Any of those are different enough that they should be saved for another day.”

The Court’s comment is telling, and based on its interpretation of the FHA in this case and its 2017 Hively decision, it is quite possible that, at least in the Seventh Circuit, a hospital or nursing care employer could be held liable for sexual orientation discrimination or retaliation claims for failing to adequately respond to harassment complaints made by patients.