March 2 Webcast: What the New Federal Discrimination Laws Mean to You

March 2, 2017 | 3:00-4:00pm EST

Section 1557 prohibits health care providers that receive Medicare, Medicaid or other federal funding sources from discriminating on the basis of race, color, national origin, sex, age, or disability.  The requirements of the Section 1557 Rules, which were recently adopted by DHHS, requires providers to take many affirmative steps to comply with the law including, adopting nondiscrimination policies, providing free language assistance to individuals with limited English proficiency, and accommodating individuals with disabilities.

Under the new 1557 Rules, providers must also post specific notices relating to their nondiscrimination policy and language assistance practices. Health care providers with more than fifteen employees have special obligations to adopt a patient discrimination grievance policy and appoint a civil rights coordinator.

Please join Robb and Matt on Wednesday, March 2, 2017 to learn more about the requirements of Section 1557 and the potential repercussions for failing to comply with the law.

Presenters: Matthew W. Wolfe, JD, Partner at Parker Poe Adams & Bernstein and Robb Leandro JD, Partner at Parker Poe Adams & Bernstein

Click Here to Register


Feb. 27 Webcast: The 60 Day Rule & What It Means for Your Home Health & Hospice Agency 

February 27, 2017 | 3:00-4:30pm EST

Under the Affordable Care Act, any health care provider that identifies an overpayment from Medicare or Medicaid has a legal requirement to return the overpayment. The Act requires that the overpayments must be reported and returned by the later of 60 days after the date identified or the date any corresponding cost report is due. This has left providers confused about what is meant by identifying an overpayment and how far back providers should “look back” when investigating possible overpayments. In 2016, CMS published final regulations clarifying how Medicare Part A and Part B providers are expected to audit for and fully investigate potential overpayments.

This webinar will cover the essential elements of the final regulation for Medicare providers such as: how to define when an overpayment is identified; what CMS expects regarding agency reasonable diligence; defining the lookback period; and, how overpayments should be reported and returned. The webinar will also touch on penalties and the appeals process as related to overpayments. The webinar will also discuss how the ACA provision affects payments from other federal health care programs such as Medicaid.

Presenters: Matthew W. Wolfe, JD, Partner atParker Poe Adams & Bernstein and Jamie Lesnett, JD, Partner at Parker Poe Adams & Bernstein

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Feb. 21 Webcast: Reviewing Significant Employment Law Issues Facing Medical Practices Today (free)

February 21, 2017 |12:00 PM – 1:00 PM

The North Carolina Medical Society Foundation in cooperation with the North Carolina Medical Group Management Association, invites you to join us for a webinar reviewing the significant employment law issues facing medical practices today. Topics will include: an update on the status of new overtime regulations and other government action; handling substance abuse in the workplace; and the challenges presented by employees’ use of social media and personal electronic devices at work. Other subjects include ADA and FMLA compliance challenges, expanding protections for LGBT workers and independent contractor misclassification risks.

Presenter: Patti Bartis, Partner with Parker Poe, Raleigh Office

For more than 20 years, Patti Bartis has defended employers facing discrimination claims. She advises and handles cases on all aspects of employment law compliance arising under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, Sarbanes-Oxley Act, and state wage and hour laws. She has extensive experience representing employers in the health care and life sciences industries. Ms. Bartis has defended cases in both state and federal court and before enforcement agencies. Her talents also include drafting, negotiating and litigating non-competition agreements.

Click here to register.

This webinar is complimentary but space is limited so make sure to register early! After you register, you will receive an emailed confirmation with webinar and phone-in instructions.

Continuing education credit may be granted through your professional organization (MGMA, PAHCOM, AHIMA, etc.). Please self-submit for these organizations.


Seventh Circuit Dismissal Signals Likely End to EEOC’s Challenges to Employer-Sponsored Wellness Programs

Several years ago, the Equal Employment Opportunity Commission (EEOC) raised employers’ eyebrows when it filed several lawsuits challenging the validity of employer-sponsored wellness programs. The EEOC contended that such programs violate the ADA and GINA due to terms that rewarded or punished employees and dependents based on their degree of participation in the wellness initiatives. Federal courts were largely unsympathetic to these challenges, noting provisions in other federal laws specifically endorsing the use of wellness programs as a way to improve employee health and help control plan expenses.

 

Last month, the Seventh Circuit Court of Appeals dismissed the EEOC’s last remaining complaint against an employer’s wellness program. In EEOC v. Flambeau, Inc., the court affirmed dismissal of the suit, concluding that the relief sought by the agency was either unavailable, or that the case was now moot. Since the challenge to the plan was filed, the EEOC issued new regulations providing employers with a “safe harbor” under the ADA for wellness programs that limit incentives or penalties to 30 percent of the cost of individual employee coverage under the medical plan.

 

The defendant in this case, along with most employers, changed the terms of its wellness plan to meet the new safe harbor requirement. The Seventh Circuit noted that no employee had actually been financially harmed as a result of the prior wellness program’s terms, and therefore the change in the program eliminated any live controversy between the parties.

 

Given that the large majority of U.S. employers follow the safe harbor, the EEOC may not have available targets for new wellness plan challenges. The Trump administration may have little interest in pursuing claims against employers on this basis, meaning that for all intents and purposes, the Seventh Circuit’s decision may prove to be the end of this EEOC litigation.

 

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340B Mega Guidance Withdrawn

On January 31, 2017, the Health Resources and Services Administration (“HRSA”) withdrew the 340B Program Omnibus Guidance (often referred to as the Mega Guidance).   The guidance addressed a number of significant issues under the 340B Program, including the definition of eligible patient and contract pharmacy arrangements.   The Mega Guidance was issued by HRSA in August 2015 after a HRSA “Mega Rule” was withdrawn in response to concerns that the issuance of the issuance of the “Mega Rule” exceeded HRSA’s regulatory authority.


Can Employers Continue Post-Accident Drug and Alcohol Testing?

On January 1, the federal Occupational Safety and Health Administration’s (OSHA) new recordkeeping and reporting rule took effect. The main impact of this rule requires employers to electronically file annual injury and illness reports, which will be placed in a publicly accessible database. However, buried in the final rule’s explanation last year, OSHA questioned the ability of employers to conduct automatic post-accident drug or alcohol testing.

The discussion arose over the anti-retaliation provisions of the new recordkeeping rules. OSHA correctly stated that employers may not retaliate against employees for reporting workplace injuries to their employers. The agency then included a new interpretation stating that some employer-sponsored post-accident drug and alcohol testing programs could be retaliatory because they would deter or punish employees who reported injuries by subjecting them to testing and possible disciplinary action.

The interpretation is not part of the final rule, and is only a policy statement. OSHA has not yet attempted to enforce this position, and given the impending change in administrations, it may not be inclined to do so. If OSHA cites an employer on the basis that it conducts post-accident testing, this will surely trigger a legal challenge. OSHA would have to demonstrate that the employer retaliated against the employee. The interpretation makes clear that post-accident testing is not per se retaliatory. In other words, the employer would have to be shown as having no “objectively reasonable basis for testing” in order to be found in violation of the new rule. If the employer shows that there was some reasonable basis for believing that drug or alcohol use by the reporting employee could have contributed to the injury or illness, it can proceed with the testing.

The interpretation also includes an exception for blanket post-accident testing conducted under the terms of a state drug-free workplace program. This would apply in a number of states where employers receive Workers’ Compensation premium discounts in return for conducting mandatory post-accident drug testing.

Employers should react to the OSHA interpretation by treating post-accident testing similarly to the way they treat reasonable cause drug and alcohol testing. The employer should compile some documented analysis of whether drugs or alcohol might have contributed to the situation. This does not mean that there needs to be clear evidence of such use, only that the circumstances as they appear at that time could have been caused by or contributed to through drug or alcohol use. The OSHA interpretation states that the employer has a heightened interest in determining if drug or alcohol use could have contributed to the injury or illness based upon the hazardous nature of the work being performed when the injury occurred. Given the fact that an accident occurred, this standard is not as high as it would be for reasonable suspicion testing.

There may be some circumstances where there is no reasonable possibility that the employee’s conduct contributed to the accident. For example, employers may choose not to require post-accident testing in response to a snake bite. In addition to this reasonable basis requirement for the test, employers should also make certain that other employees involved in the incident that caused the injury or illness are also tested, and not just the reporting employee.


EEOC Settlement Reminds Healthcare Employers of Limits on Mandatory Vaccinations

The policy seemed straightforward. A hospital required all employees to receive seasonal flu vaccinations based on its assessment of the dangers of influenza to patients with compromised immune systems. The hospital went further, providing an exemption from the policy for employees with medical or religious reasons for avoiding the vaccinations. Nevertheless, the Equal Employment Opportunity Commission (EEOC) recently announced that it had reached a $300,000 settlement with the hospital based on its claims that the vaccination policy violated the religious rights of six terminated employees under Title VII.

The EEOC claimed that in practice, the Pennsylvania hospital rejected religious claims for exemption from the flu vaccine, while routinely granting medical exemptions. The settlement specifically prohibits the hospital from requiring that employees seeking a religious exemption from the vaccinations provide notes from clergy certifying the religious basis for the objection. In general, Title VII prohibits employers from inquiring into the basis for or sincerity of the employee’s religious practices or beliefs.

The settlement does allow the hospital to continue denying vaccination exemption requests if it can prove undue hardship. This is a difficult standard, requiring the employer to demonstrate something close to certainty of harm in the event that the exemption is granted. In the hospital’s case, undue hardship could arise for example, with employees whose jobs requires regular and close contact with patients known to have compromised immune systems.

The EEOC’s position obviously provides employees who simply prefer not to get vaccinated an avenue to claim a questionable religious exemption to the requirement. Absent clear evidence that the employee does not hold a sincere religious belief supporting the accommodation request, the employer has little recourse other than to determine whether the accommodation presents the undue hardship allowed by the EEOC.


Portions of Section 1557 of the Affordable Care Act Enjoined by Texas Federal Court – Majority of Regulation Remains Intact

In May 2016, the Office of Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“DHHS”) issued a Final Rule implementing Section 1557 of the Affordable Care Act (“ACA”).  Section 1557 prohibits “covered entities” from discriminating on the basis of race, color, national origin, sex, age, or disability.  The term “covered entities” includes all health care providers that receive payments from the federal government (e.g.,. Medicare, Medicaid, Veterans Affairs, TRICARE).

The requirements of the Section 1557 Regulation are sweeping.  The law requires providers to adopt nondiscrimination policies, provide free language assistance to individuals with limited English proficiency, and accommodate individuals with disabilities.  Under the law, providers must also post a specific notice of their nondiscrimination policies and inform patients that they will provide language assistance free of charge to patients with limited English proficiency.  Health care providers with more than fifteen employees are required to adopt a patient discrimination grievance policy and appoint a civil rights coordinator who will oversee implementation of the law’s requirements and investigate and issue decisions relating to patients’ allegations of discrimination.

The Section 1557 Regulation also for the first time creates binding rules that define sex discrimination to include discrimination on the basis of gender identity.  These rules require providers to treat patients based on the patient’s preferred gender.  These new rules also require providers to amend their policies on the boarding of transgendered patients and the use of public facilities, such as bathrooms, to ensure equal treatment to transgendered patients based on their stated gender identity.

In addition to these new requirements, the Section 1557 Regulation requires nondiscrimination in the treatment of female patients including treatment and coverage decisions based on pregnancy status.  One notable requirement of the law precludes providers from treating female patients differently on the basis of the patient’s decision to terminate a pregnancy.

On December 31, 2016, Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide injunction halting the implementation of the portions of the law that govern the treatment of transgendered patients as well as rules that would bar discrimination in treatment and coverage of female patients on the basis of their decision to terminate a pregnancy.  Until the court determines whether DHHS had the authority to create these legal requirements, these portions of the Regulation are not enforceable.  You can read the entire decision here.

Providers that have read the news coverage of this recent decision should be aware that all of the other requirements of the law remain intact.  Violations of the remaining provisions of the regulation continue to be subject to investigation and regulatory action by the  Office of Civil Rights, which has the authority to terminate a provider’s participation in Medicare, Medicaid, and TRICARE for violations of the law.  Providers also continue to be subject to private discrimination lawsuits filed by patients for alleged violations of Section 1557.

If you are a health care provider and are not familiar with the requirements of Section 1557 or have not taken steps to comply with the law, you should quickly take steps to ensure that you become compliant with the law as soon as possible to avoid the risk of an OCR investigation or a lawsuit being filed by current patient.

If you have any questions please feel free to reach out directly to Robb Leandro at RobbLeandro@parkerpoe.com  or 919.835.4636.


Physician Practices Beware: Scam Email Disguised as Communication from Office of Civil Rights Regarding HIPAA Audit

Receiving an email that your practice has been identified for participating in the HIPAA Privacy, Security, and Breach Rules Audit Program is enough to raise anyone’s blood pressure. The likely response is to open the email immediately, determine the scope of the audit, and mobilize a team to prepare for the response.Read More


OIG Releases 2017 Work Plan

On November 10, 2016, the Office of Inspector General (“the OIG”) of the U.S. Department of Health and Human Services (“DHHS”) released its 2017 Work Plan.  Published annually and updated throughout the year, the Work Plan identifies the OIG’s key areas of focus as it carries out its mission of protecting the integrity of programs within DHHS.  The OIG is charged with ensuring the integrity of more than 100 programs administered by DHHS, including those within the Centers for Medicare and Medicaid Services, Center for Disease Control and Prevention, the Food and Drug Administration, and the National Institute of Health. The OIG Work Plan summarizes the OIG’s current activities – comprised of both new and revised activities — along with information regarding previously identified activities that have been completed, postponed, or cancelled.

The Work Plan highlights new and continuing priorities applicable to various provider types, including hospitals, nursing homes, hospices, home health, clinical laboratories, physicians and other health professionals, medical equipment suppliers and manufacturers, pharmaceutical manufacturers and other providers and suppliers.

The 2017 Work Plan is available here.

The following is a sampling of some of the new and ongoing efforts highlighted in the Work Plan:

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