In my recent Massachusetts Health & Hospital Association (MHA) webinar, “Strategies for Avoiding Medicare and Medicaid Fraud in 30 Minutes Webinar,” I discuss Medicare/Medicaid fraud (unintentional or otherwise), overbilling, “upcoding” (CPT codes), as well as the government’s current investigative/prosecutorial priorities, such as the Department of Justice’s crackdown on illicit telemedicine businesses. Enjoy the webinar recording
Courts recognize the complication that exists when determining what constitutes actionable harassment where a healthcare employee is a caretaker for a patient with diminished capacity. The Fifth Circuit Court of Appeals recently reviewed this issue in a Title VII case that highlights the risks posed to employers in the healthcare and social assistance industries by patient harassment and violence: Gardner v. CLC of Pascagoula, LLC, No. 17-60072 (February 6, 2019). In Gardner, the Fifth Circuit explained the risks to healthcare employers when it reversed summary judgment on a nurse assistant’s claim for hostile work environment and retaliation, holding that a genuine dispute of material fact existed as to whether an assisted living facility took reasonable precautions to prevent sexual harassment and physical violence by a resident.
Gardner was a Certified Nursing Assistant employed at the Plaza Community Living Center, an assisted living facility, and “often worked with patients who were either physically combative or sexually aggressive.” Gardner had been assigned to work with a patient who had been diagnosed with multiple “physical and mental illnesses,” and had a reputation for groping female employees, as well as a history of violent and sexual behavior toward both patients and staff at the facility. Gardner alleged that she put up with propositioning and sexual assault by the patient on a regular basis, but that when she complained to the administrator at the facility, she was told to “put [her] big girl panties on and go back to work.”
Continue Reading Fifth Circuit Rules Harassment By Patients In The Healthcare Industry Deserves Special Consideration, But Employer May Still Be Liable
When Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”), which prohibits many forms of discrimination on the basis of sex, appears in the news or on social media, we typically associate it with traditional colleges and universities. But recent case law suggests that Title IX likely applies to a broader set of institutions, including, under certain circumstances, some hospitals.
Over the years, an extensive body of federal case law and regulation has arisen around Title IX, imposing detailed requirements on institutions concerning how they must respond to and investigate complaints, how complaints must be adjudicated and the nature of appropriate remedies. Moreover, these regulations also have recently been in flux. As a result, Title IX compliance often requires significant institutional resources and constant vigilance.
Because compliance with Title IX requires significant attention from the institution, it is critical that hospitals determine whether they meet the developing criteria to be subject to the requirements of Title IX and, if so, whether they have in place the proper policies, procedures and personnel to ensure compliance. In this article, we describe those criteria and provide a brief summary of the broader legal context.
Continue Reading Do the Detailed Federal Requirements for Addressing Sex Discrimination Apply to Your Hospital?
Under Texas law, physicians that will be called upon to complete and sign a death certificate in Texas are required to register to file the certificate electronically with the Texas Department of State Health Services. The Texas Medical Board is authorized to take action against providers who do not register for electronic filing of death certificates under Tex. Health and Safety Code §193.005. Until recently, registration and filing of death certificates was made through the Texas Electronic Registrar (“TER”).
On January 1, 2019, the Texas Department of State Health Services replaced TER with a new platform, the Texas Electronic Vital Events Registrar (“TxEver”). TxEver supports all vital events operations, including reporting, registration, and amendments of birth and death records, and represents one of the first fully integrated vital records systems nationwide. TxEver will additionally support the Texas remote birth issuance system, which allows users to obtain copies of birth certificates without having to visit the vital records offices in their county of birth.
Continue Reading New fully integrated record system, TxEver replaces Texas Electronic Death Registrar
Hospitals are not happy with CMS’ recent changes to hospital outpatient payments. Two hospital associations and three hospitals claim in a federal lawsuit filed December 4, 2018, that CMS had no authority to change the payment scheme for off-campus provider-based departments (PBDs). The change took effect January 1, 2019, and is estimated to reduce payments to hospitals by $380 million in the first year of a two-year phase-in period.
The plaintiffs, including the American Hospital Association and the Association of American Medical Colleges, are seeking judgment that the payment change is unenforceable as well as preliminary and permanent injunctive relief. The complaint against US Department of Health and Human Services Secretary Alex Azar was filed in the U.S. District Court for the District of Columbia.
The plaintiffs’ assert that the reduced payments threaten patient access to care and harm the providers’ ability to meet the health care needs of their patients, including some of the most vulnerable populations.
Continue Reading Hospitals React Strongly to CMS’ Changes to Hospital Outpatient Payments
The National Labor Relations Board (the “Board”) recently held that a California hospital illegally maintained a dress code policy that effectively prohibited employees from wearing pins and badge reels with union insignia. The hospital’s policy at issue required that “[o]nly [employer] approved pins, badges, and professional certifications may be worn.” In addition, employees were only permitted to wear identification badge reels with “approved logos or text.”
Continue Reading NLRB Prohibits Hospital from Banning Union Pins or Badges
Earlier this month, Uber released its new program, Uber Health. In a nutshell, Uber Health is a program that facilitates patient transportation to and from appointments with healthcare providers. This post expands on a previous post regarding patient ridesharing programs.
Continue Reading Need a Lift? Uber Enters the Healthcare Arena
The debate over providing transportation to patients is nothing new. Hospitals, doctors and other providers have long struggled with whether they can provide free or discounted taxis, shuttles, metro cards or other transportation means to patients to come to appointments and receive care. On one hand, there is evidence that without reliable transportation options, patients are more likely to miss preventative, primary care appointments, increasing the risk of more costly and unnecessary medical services down the road. On the other hand, certain federal laws like the Anti-Kickback Statute (AKS) and Civil Monetary Penalty (CMP) law have given providers serious concerns that such transportation services might be considered an illegal “kickback” to gain patients, or an illegal inducement to receive care.
Continue Reading What Health Care Providers Need to Know About Patient Rideshare
With the New Year underway, the deadline is quickly approaching for HIPAA covered entities to file their annual breach reports with the U.S. Department of Health & Human Services Office for Civil Rights (“OCR”).
While breaches involving 500 or more individuals must be reported no later than 60 calendar days from the date of discovery,…
The National Labor Relations Board (“NLRB”) recently adopted a new and employer welcomed standard for determining whether facially neutral workplace rules unlawfully interfere with the exercise of employee rights that may be protected by the National Labor Relations Act (“NLRA”).
Going forward, the NLRB will consider the following factors:
- the nature and extent of the potential impact on NLRA rights, and
- legitimate justifications associated with the rule.