Fifth Circuit Finds Employer’s Peer Review Process Does Not Constitute an Adverse Employment Action

The federal Fifth Circuit Court of Appeals recently issued an interesting decision finding that the actions of an employer’s peer review committee did not constitute an adverse employment action under Title VII of the Civil Rights Act of 1964. This decision was driven by the specific facts presented to the court, so it does not necessarily signal a trend toward peer review actions being treated in this manner in Title VII cases. Visit our EPL Risk Mitigation blog to learn more about this decision.

November 2018 Ballot Question Seeks to Impose Registered Nurse-to-Patient Ratio Limits on Massachusetts Health Care Facilities

The Massachusetts Supreme Judicial Court (SJC), the state’s highest court, has held that an Initiative Petition (Initiative Petition 17-07) seeking to create a new law (“The Patient Safety Act”) that would dictate to hospitals and acute care units in state-operated health care facilities the number of patients that may be assigned to a registered nurse is constitutional and could be placed on the November ballot if a sufficient number of supporting signatures were submitted to the Secretary of the Commonwealth by July 3. Supporters of the Initiative Petition submitted the required number of signatures by July 3, so it will be placed on the November ballot as Question #1.

If Question #1 passes, the Initiative Petition would become law and impose strict registered nurse-to-patient staffing ratios on hospitals in Massachusetts. This new law would include two key provisions:

  1. Creation and enforcement of registered nurse-to-patient ratios in Massachusetts hospitals.
  2. Implementation of those ratios cannot result in a workforce reduction (see below).

For hospitals covered by the proposed law (rehabilitation and long-term care facilities are expressly excluded), the proposed law would impose strict limits on the number of patients who may be assigned to an individual registered nurse. Here are some examples of the proposed patient-to-registered nurse ratio limits:

  • Emergency Services Department: A maximum of one intensive care patient per registered nurse, although another may be accepted if both patients’ conditions are stable.
  • Pediatric Units: A maximum of four pediatric patients per registered nurse.
  • Psychiatric Units: A maximum of five psychiatric patients per registered nurse.
  • Units with Rehabilitation Patients: A maximum of five rehabilitation patients per registered nurse.
  • Maternal Child Care Units: A maximum of six well-baby patients per registered nurse.

In addition to imposing these ratios, the proposed law would prohibit hospitals from reducing “health care workforce” staffing levels in order to comply with the patient-to-registered nurse assignment limits. “Health care workforce” is broadly defined as personnel who “have an effect upon the delivery of quality care to patients,” including nurses (RNs and LPNs), maintenance, clerical, and other workers. The challenge to the Initiative Petition noted the “possible sweeping consequences” of this provision, but the SJC found this did not render the Initiative Petition unconstitutional. The SJC explained that the restriction on reducing the health care workforce “dictates how nurse-to-patient ratios may be maintained: in a manner such that there be no reductions in staff among other members of the health care workforce.”

Question #1 is supported by the Massachusetts Nurses Association, a labor union representing less than 25 percent of nurses working in Massachusetts. However, the Massachusetts Hospital Association, the Massachusetts Chapter of the American Nurses Association and the Organization of Nurse Leaders oppose it. Many hospital administrators believe the ratios will require them to add a substantial number of registered nurses to their workforce, with a large increase in their facilities’ labor costs and the potential elimination of certain services in order to fund the larger registered nursing workforce required to meet the registered nurse-to-patient ratios.

If 30 percent of all voters who cast ballots in the November 6, 2018 election vote “yes” to Question #1, and a majority of those who vote on the question vote yes, Question #1 becomes law effective on January 1, 2019. This would leave hospitals less than two months to implement a plan to comply with the new staffing ratios. If passed, the law would authorize the Attorney General to seek injunctive relief and civil penalties of up to $25,000 per day against hospitals failing to meet the mandated staffing ratios. Massachusetts hospitals should begin preparing now for the possible advent of registered nurse-to-patient ratios.

While California is the only state with mandatory staffing ratios, hospital administrators in other states should follow developments in Massachusetts because a yes vote here could lead to similar staffing ratio efforts by nursing unions or advocacy groups in their states.

Summer Clerk Jessica Murphy, in our Hartford office, contributed to this blog post.

Is Your Institution Doing Enough to Reduce Disruptive Physician Behavior?

Disruptive physicians are staple characters on television shows about the medical field. Some of the most recent T.V. doctors of this vein that come to mind are Dr. Gregory House of House and Dr. Perry Cox of Scrubs. While Dr. House and Dr. Cox present entertaining caricatures of disruptive physician behavior (“DPB”), in “real life” DPB has long presented many significant workplace challenges for health care institutions.

The American Medical Association defines DPB as, “personal conduct, whether verbal or physical, that that negatively affects or that potentially may negatively affect patient care constitutes disruptive behavior.”

In July 2008, The Joint Commission issued a Sentinel Event Alert about DPB noting that, “intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and mangers to seek new positions in more professional work environments.” To combat DPB and its negative impact on the health care industry, The Joint Commission introduced a new Leadership standard that required hospitals to develop a code of conduct that defines disruptive and inappropriate behaviors as well as a process for managing these behaviors.

While The Joint Commission’s efforts have helped healthcare institutions become more aware of DPB, ten years later, industry consultants observe that many medical professionals remain afraid to report DPB for fear of retaliation. A March 2018 article published in the Journal of Hospital Medicine entitled, “Disruptive Physician Behavior: The Importance of Recognition and Intervention and Its Impact on Patient Safety,” echoes the sentiment that there is more work to be done. Specifically, the article suggests four interventions that hospitals should take to limit disruptive behavior and its attendant potential legal and financial consequences:

  1. Prevent the Behavior. Make physician health and wellness a priority. Encourage physicians to seek professional care for their own health and wellness. If your institution has an employee assistance program, consider hiring a clinician trained in dealing with DPB. Stress the importance of a peaceful and professional work environment.
  2. Build the Right Infrastructure. Create a fair system for reliable reporting and monitoring. Develop a medical staff “Professionalism Committee” tasked with investigating DPB complaints, and making recommendations. Ensure that a system exists for a fair hearing.
  3. Take a Progressive Approach and Be Consistent. Minor incidents should be addressed with verbal coaching in a timely manner. If incidents are more serious or if informal warnings have been provided in the past, institutional progressive discipline policies should be adhered to consistently for all physicians.
  4. Collaborate. Involve counsel, human resources, the office of medical affairs, and the hospital’s medical board when drafting policies and making decisions.

To learn more about how the firm can assist with proactive measures to help remediate DPB in your institution through our EngageMD service, please contact your Jackson Lewis Attorney.

American Medical Association Adopts Resolution to Promote Pay Equity

The healthcare industry is following other industries with an increased focus and growing sense of alarm over the gender pay gap.

According to Doximity, in 2017, female physicians on average earned $105,000 (27.7%) less than male physicians.  Similarly, a 2016 study published in The Journal of the American Medical Association reported that female academic physicians at public medical schools earned on average $51,315 (20%) less than their male counterparts.  At last week’s Annual Meeting, the American Medical Association’s (AMA) House of Delegates adopted a resolution to address this pay disparity among physicians and within the AMA.

The AMA resolution is a great reminder that healthcare employers should be mindful of the pay equity gap and the need to address this issue.  Here are some practices healthcare employers can adopt to promote pay equity and reduce their exposure to pay disparity claims:

  • Discuss the pay equity challenge with senior leaders so they are aware of the issues and can help formulate a response
  • Tweak or perhaps completely rebuild compensation structures
  • Transparently and objectively define compensation criteria and pay structures
  • Consider a routine audit of salaries and make appropriate adjustments to ensure pay equity
  • Provide training to reduce implicit bias in determining compensation
  • Create educational programs about negotiating fair compensation

Healthcare employers should also learn the ins and outs of the growing number of state and municipal pay equity laws and ordinances prohibiting inquiries into job applicants’ salary history.  For more information see Jackson Lewis’ recent updates on pay equity laws enacted by California, Connecticut, Vermont, Oregon, and Massachusetts or visit Jackson Lewis’ Pay Equity Advisor Blog.

The AMA’s attention to the pay equity gap is a reminder that the healthcare industry is not immune from the problems causing pay disparity or the legal and societal pressures to achieve pay equity.  For more information on how to get ahead of this trend, contact your Jackson Lewis attorney.

Summer Clerk Jessica Murphy, in our Hartford office, contributed to this blog post.

Are You Accessible In Cyberspace?—Healthcare Is Not Immune From the Latest ADA Title III Trend

Public accommodation lawsuits under Title III of the Americans with Disabilities Act (ADA) have been around for years, but traditionally involve physical barriers such as narrow parking spots or access aisles, lack of elevators, and inaccessible restrooms.  Increasingly, these lawsuits are not just confined to brick-and-mortar accommodations, but involve cyberspace.  For example, individuals who are visually impaired typically access organization’s websites by using certain software that reads a website’s content.  If this software cannot read an organization’s website, however, a visually impaired individual may be unable to fully access its content.

The healthcare industry is not exempt from the recent surge in website accessibility cases under Title III of the ADA.  Although the retail, hospitality, and higher education industries have been some to get hit the hardest on this growing trend, the ADA specifically protects hospitals and doctor’s offices, and a number of hospital systems and health insurance organizations have already been involved in these lawsuits.

Part of the difficulty of this issue is the lack of regulatory guidance.  Most courts examining the issue have concluded that cyberspace is a place of public accommodation and thus, websites must be accessible to disabled users.  There is less agreement among courts, however, on whether all commercial websites must be ADA-compliant or whether only businesses with brick-and-mortar locations must comply.  Thus far, most courts require a website have an actual nexus to a brick-and-mortar location to be covered by Title III.  That is, some courts have concluded that Title III does not cover “stand-alone” websites that do not also have physical locations.  Additionally, even for those organizations that are subject to Title III, there are no government-issued guidelines defining what makes an organization’s website accessible.  Unlike the physical access barrier regulations that provide inch-by-inch guidance, such standards are not yet available for cyberspace.

The good news is that, despite the lack of regulation, there are steps organizations can take toward ensuring compliance. Typically, websites that comply with “WCAG 2.0 Guidelines” are considered accessible to the visually impaired.  Organizations can utilize these standards to evaluate the accessibility of their website for visually impaired individuals.  While there are other ways to defend against a Title III claim, ongoing assessment of the accessibility of the website along with programs to improve accessibility are strong indicia of an organization’s intent to comply with Title III.

Although healthcare organizations already are heavily regulated, this is an area where additional guidelines could be helpful in understanding the steps necessary to make their websites compliant with Title III of the ADA.  The Trump Administration has indicated it may even issue additional regulations this year.  Until then, however, the healthcare industry, along with millions of other U.S. businesses, must strive for compliance without the benefit of clear directions to do so.

Today’s Wake-Up Call: If You Don’t Protect Those Peer Review Records, They’re Public

Hospitals and physicians around the country rely on Federal, state, and local “peer review” statutes and regulations to protect records of peer review investigations from public disclosure. Such introspective, candid documents assessing what was done right and wrong during an operation or other procedure are essential to patient health and safety, and institutional quality control. Encouraging such self-assessments is the basis for peer review laws.

For example, the Federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) protects from disclosure under certain circumstances “patient safety work product” such as records and statements used to develop and improve patient safety, health care quality, and healthcare outcomes. 42 U.S.C. 299b-21, et seq. Likewise, the Commonwealth of Virginia Code includes privilege protections for certain “patient safety data” including communications from medical staff and utilization committees, such as peer review and quality of care committees. See Virginia Code Section 8.01-581.16-17.

So why did we recently see the headline, “Peer Review Privilege Waived Over Discovery”? Virginia Lawyers Weekly, April 30, 2018. In that medical malpractice case in which the patient died following a cardiac catherization, the defendant hospital refused to produce alleged peer review documents including, for example, a “root cause analysis” (RCA). Creasy v. Medical Assocs. of Southwest Virginia, Inc., et al. (Montgomery County, Va. Circuit Court Case No. CL17-1582, 28 Va. Cir. LEXUS 56 (April 16, 2018)).

The hospital included references to the documents in its Privilege Log, with such explanations as the RCA “was prepared for purposes of improvement of patient safety and quality of care.” The Log also identified a hospital peer review report and handwritten notes collected in the weeks following the patient’s death, prepared as well to “improve patient safety and quality of care.”

At the hearing on the motion to compel, hospital counsel argued that the Federal PSQIA and Virginia statute protected the documents from disclosure. According to the VLW, plaintiffs’ attorney argued that:

  • The hospital failed to provide an adequate description of the withheld materials to justify the claimed privilege (according to the trial judge, “You didn’t describe one single solitary document that you’re claiming the privilege to now, did you?”).
  • The hospital’s attorney had not seen the documents.
  • The hospital waived any privilege asserted under the statutes.

In ruling for the plaintiff and ordering production, the court held that the hospital had waived any privilege under the Federal PSQIA and state statute by failing to provide an adequately descriptive privilege log including evidence to support the claimed privilege. Additionally, the court stated that hospital counsel “have acted in bad faith by failing to comply with the Rules of the Supreme Court of Virginia. Further, they have signed discovery responses claiming certain documents are privileged without reviewing the documents.”

With respect to sanctions, the court stated that it had considered a default against the hospital on liability—meaning a trial on damages only—but decided instead to order production of the documents, and invited a motion for attorney’s fees and expenses incurred with respect to the withheld discovery.

As the VLW article noted, following receipt of the documents, the plaintiff’s attorney stated that “We found a large number of very important facts that were not set forth anywhere in [decedent’s] medical records,” some of which were “incredibly damaging to the hospital from a liability standpoint.” Given the candor characterizing many peer review investigative reports, this is not surprising.

Takeaway: While this case might ultimately be appealed and overturned, it is a salutary reminder of the risks inherent in peer review document systems. Healthcare counsel—advisors and trial lawyers—should be fully informed of all potential “peer review” or “self-assessment” privileges in their jurisdiction, and take all necessary steps to preserve the privilege and protect the documents from disclosure. As one Federal judge has said, “protect privileged documents like the crown jewels.” Ensure that you follow all requirements for withholding such files from production, including meeting all of the stipulations of a conforming privilege log. And, make sure you have reviewed all documents claimed to be privileged. Do not be on the losing end of a motion to compel.

Summer Clerk Laurence Thompson, in our Washington, D.C. Region office, contributed to this blog post.

The Joint Commission Issues Seven New Workplace Violence Prevention Recommendations

Many healthcare workers experience violence in the workplace often resulting from violent behavior by their patients, clients and/or residents. What can healthcare organizations do to improve safety and minimize the risk of workplace violence?

In an effort to help healthcare organizations better prevent and address violence in the workplace, The Joint Commission, the nation’s oldest and largest standards-setting and accrediting body in healthcare, released a Sentinel Event Alert outlining the seven steps healthcare organizations should take to prevent workplace violence:

1. Clearly define workplace violence and put systems into place across the organization that enables staff to report workplace violence incidents, including verbal abuse.
2. Recognizing that data comes from several sources, capture, track and trend all reports of workplace violence – including verbal abuse and attempted assaults when no harm occurred.
3. Provide appropriate follow-up and support to victims, witnesses and others affected by workplace violence, including psychological counseling and trauma-informed care if necessary.
4. Review each case of workplace violence to determine contributing factors. Analyze data related to workplace violence and worksite conditions to determine priority situations for intervention.
5. Develop quality improvement initiatives to reduce incidents of workplace violence, including changes to the physical work environment and changes to work practices and administrative procedures.
6. Train all staff, including security, in de-escalation, self-defense and response to emergency codes.
7. Evaluate workplace violence reduction initiatives.

In addition to these seven steps, the Sentinel Event Alert also outlines The Joint Commission’s related standards, references and resources, including those from the Occupational Safety and Health Administration (“OSHA”). Under the General Duty Clause of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” According to OSHA, courts have interpreted the General Duty Clause “to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard.” In addition, OSHA has published Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers providing specific recommendations to prevent violence in healthcare workplaces.

Accordingly, healthcare organizations that fail to have appropriate measures in place to prevent and respond to workplace violence could jeopardize their accreditation and/or risk receiving an OSHA citation. To learn more about how the firm can assist with proactive measures to address workplace violence issues facing the healthcare industry, please contact your Jackson Lewis attorney.

“Your Own Cybersecurity Is Not Enough”: NJ Physician Practice Fined Over $400,000 for Data Breach Caused By Vendor

New Jersey’s Attorney General Gurbir S. Grewal and the New Jersey Division of Consumer Affairs (“Division”) recently announced that a physician group affiliated with more than 50 South Jersey medical and surgical practices agreed to pay $417,816 and improve data security practices to settle allegations it failed to properly protect the privacy of more than 1,650 patients whose medical records were made viewable on the internet as a result of a server misconfiguration by a private vendor. Our colleagues in the Workplace Privacy, Data Management & Security practice group discusses three important lessons from this case for physical practices in New Jersey and in other states. You can read it here.

Health Apps: Convenience vs. Security Risks

The pace of innovation in healthcare today has produced an amazing increase in the number of available mobile apps for health-related information. More than 300,000 healthcare apps are available online. Our colleagues in the Workplace Privacy, Data Management & Security practice group discusses whether healthcare providers can tap into the available technology of “connectivity” and still protect health and personally identifiable information. You can read it here.

EEOC’s Notice Pleading Survives Motion to Dismiss in Failure to Accommodate and Wrongful Termination Suit

A North Carolina district court recently declined to dismiss a failure to accommodate and wrongful termination action brought by the EEOC on behalf of a patient accounts representative in EEOC v. Advance Home Care, Inc. (“Advance”). The plaintiff was discharged after she could not return to work without restrictions following exhaustion of her FMLA leave. The court held that the EEOC’s complaint adequately alleged that the employee was qualified for her position and linked Advance Home Care’s alleged failure to accommodate to the discharge.

The plaintiff, who suffers from chronic bronchitis and COPD, was out on FMLA during the month of August 2015. Upon her return, she requested an accommodation to telecommute on either a full-time or part-time basis on the account of her disability. The plaintiff allegedly informed Advance that working from home would allow her to work without exposure to aggravating scents and odors present in the office and would allow her to work without taking inbound calls, which would result in her spending less time continuously talking.

Advance management allegedly told the plaintiff that it would get back to her regarding her request to telecommute, but never did, despite at least three requests from the plaintiff.

In November, the plaintiff was hospitalized and once again went on FMLA leave. During her absence, she received a satisfactory performance review. However, on more than one occasion, Advance management allegedly informed the plaintiff that her employment would be terminated if she did not return to work without restrictions after her FMLA leave ended. When she exhausted her FMLA leave and could not return to work free from restrictions, her employment was terminated.

The plaintiff was primarily responsible for managing cases for patients who required home health services. The plaintiff alleges that she spent part of her day on telephone calls arranging home health services, duties that she asserted she could perform remotely from her home in order to remove herself from the potential respiratory irritants in the office, and reduce the amount of time she would spend continuously talking.

In finding that the plaintiff had sufficiently plead a failure to accommodate, the Court noted that the EEOC did not have the burden of stating the essential functions of the plaintiff’s job with particularity to survive the pleading stage nor did the EEOC need to include facts to rebut Advance’s potential undue hardship defense. Instead, the court held that by alleging that the plaintiff spent part of her workday on the telephone and giving sufficient detail about the requested accommodation, the EEOC had provided enough information. The court could infer that the plaintiff could have performed her job duties with the requested accommodation.

As to the wrongful termination claim, the court rejected Advance’s argument that the plaintiff was not fulfilling the company’s legitimate expectations because she was not working at the time of her discharge and had stated that she was unable to return to work after exhausting her leave. Again, the court sided with the EEOC, accepting its argument that the plaintiff’s supervisor repeatedly informed her that her employment would be terminated upon the expiration of her FMLA leave if she could not return to work without restrictions. The court found that the EEOC had sufficiently plead wrongful termination in alleging that the plaintiff received a satisfactory performance review during her leave, requested an accommodation on several occasions with no meaningful response from Advance, and was discharged upon the expiration of her FMLA leave under circumstances giving rise to a reasonable inference that it was because of her disability.

This case demonstrates the importance of employers engaging in an interactive dialog with employees regarding requested accommodations rather than simply stating they must be able to perform their duties without restriction upon their return from a leave of absence.

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