As we leave 2022 behind us, here are seven things healthcare employers should watch for in 2023.

  1. Medical Residents and Interns Unionizing.  Yes, you read that right.  2022 saw organizing among these groups on both coasts.  This is happening as we see a resurgence in organizing among graduate students and even undergraduate student employees.  It will be important for employers to include medical residents and interns in their programs addressing employee engagement and wellness.
  2. Increased Focus on The Application of Title IX to Medical Residency and Other Educational Programs.  Title IX prohibits discrimination on the basis of sex in federally funded education programs.  We have seen a growing number of claims brought against academic medical centers alleging violations of Title IX.  Therefore, it is prudent for healthcare providers engaged in education programs to be familiar with the current and proposed Title IX regulations.
  3. Cybersecurity Threats Continue.  The data is not in yet, but 2022 likely set a new record for cyber-attacks in the healthcare sector.  Back in October, the U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights cited a cybersecurity firm report that found a 69% increase in cyber-attacks targeting healthcare in the first half of 2022 compared to 2021.  Healthcare employers should review their HIPAA and other data security policies, as well as their incident response plans.
  4. Regulators Scrutinizing Telemedicine.  In September 2022, HHS’ Office of Inspector General issued a report recommending the Centers for Medicare & Medicaid Services (CMS): “(1) strengthen monitoring and targeted oversight of telehealth services, (2) provide additional education to providers on appropriate billing for telehealth services, (3) improve the transparency of ‘incident to’ services when clinical staff primarily delivered the telehealth service, (4) identify telehealth companies that bill Medicare, and (5) follow up on the providers identified in this report.”  These recommendations highlight the importance of training supervisors on how to respond to reports of improper billing as well as refresher training for the entire workforce on appropriate billing and documentation.
  5. Expect a Permanent OSHA Standard Covering COVID-19 for Healthcare Workers.  On December 7, 2022, OSHA sent a draft of the permanent rule to the White House for review.  The text has not yet been released, but the rule is expected to be effective in early 2023. 
  6. Expect More Strikes.  One industry publication noted in November that there already had been 18 healthcare worker strikes in 2022.  According to another report, contracts covering at least 1.6 million employees will expire in 2023.  Nothing suggests the factors fueling those 2022 healthcare worker strikes will be remedied soon enough to make 2023 a year of greater labor peace.  Therefore healthcare employers should consider doubling down on efforts to improve employee relations, as well as strike contingency planning.
  7. Staffing Challenges Will Continue.  While many healthcare employers report a decreased reliance on temporary staff, recruiting and retaining caregivers remains a challenge.  Recent reports indicate many clinicians are considering leaving healthcare.  This phenomenon means employers will continue to explore alternative ways to maintain staffing levels, including creating in-house staffing agencies as well as going to outside agencies.  In this environment, healthcare employers need to keep their eye on potential changes to the joint employer rule under the National Labor Relations Act and to the standard for determining whether a worker is an employee or “independent contractor” under the federal Fair Labor Standards Act.

Members of the Jackson Lewis Healthcare Industry group work with clients on all these issues daily. Please contact the Jackson Lewis attorney you work with or one of our industry group members if you have any questions about these topics.

Tags: cybersecurity, healthcare, HIPAA, NLRA, Title IX
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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.

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