Health Law Advisor

 Written by:  Stuart M. Gerson

The three days of arguments about the constitutionality of the Patient Protection and Affordable Care Act are complete. The Justices of the Supreme Court of the United States have conducted their post-argument conference and are now turning their attention to the drafting and the discussions that will lead to a majority opinion and, likely, several dissents and concurrences. The Court's decision should be issued before the end of June. Health care companies and employers, like the rest of the population, await the ultimate decision. However, there ...

On March 26, 2012, the U.S. Department of Health & Human Services Office of Inspector General (the “OIG”) published a report summarizing a February 23, 2012roundtable meeting between the OIG and compliance professionals from twenty-three pharmaceutical manufacturers.  The compliance officers and other professionals attending the meeting all represented companies currently operating under Corporate Integrity Agreements (or “CIAs”).  CIAs are generally negotiated between a company and the government in connection with settling various types of federal ...

The National Labor Relations Board (the “Board”) recently filed its fourth complaint (since March 2011) against Care Realty and Healthbridge Management, the owner and operator of several Connecticut nursing homes.  The Board’s three prior complaints against Care Realty had included allegations of unilateral changes to work hours, benefit eligibility requirements, holiday and vacation benefits, subcontracting of employees, and allegedly unlawful solicitation policies.  The Board’s latest complaint, filed on February 29, 2012, alleges that the nursing home ...

It is readily apparent that electronic media and the internet are making it much easier to collect, organize and maintain data regarding individuals in our society. This is as true with respect to health care employees, and physicians in particular, as it is of anyone else. Information about physicians’ conduct, publications, and interactions with industry, as well as their regulatory, investigatory, and disciplinary history, is increasingly available through public sources. Information about practice patterns and quality of clinical performance can be readily analyzed ...

Written by Guest Bloggers:  Amanda R. Strainis-Walker and Eric J. Conn

Below is a set of important questions that we are frequently asked by clients when OSHA unexpectedly shows up at their doorsteps.  These questions and many more are also addressed in our OSHA Inspection Checklist desk reference guide. 

Scenario 1:   An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the employer’s representative whom the employer desires to manage the OSHA inspection is not present at the workplace.  Can the employer request that the CSHO return later ...

by Pamela D. Tyner

Social media have become de rigueur globally.  Today, millions maintain connections with their friends, relatives and business acquaintances via Facebook, Twitter, LinkedIn, blogs and YouTube.  Recent studies indicate that social media popularity even predicts polling popularity and the stock market.  Translated to the healthcare arena, healthcare facilities and organizations are now trained to promote their business by communicating effectively via social media.  In addition, patients, physicians and employees of healthcare facilities and ...

A significant majority of all professional liability coverage available to physicians these days is provided on a "claims-made" basis, with a claim being covered only if (i) the claim arose out of professional services rendered during the term of the professional liability policy, and (ii) notice of the claim is provided by the insured during the term of the policy. (This is in contrast to "occurrence coverage," where a claim is covered if it related to professional services rendered during the term of the policy, regardless of when notice of the claim is provided by the insured.)  ...

Under Title III of the Americans with Disabilities Act (“ADA”), private health care providers, including clinics, hospitals and doctor’s offices, as places of public accommodation, are required to provide their services to individuals with disabilities in an accessible manner.  Specifically, the ADA requires that providers provide individuals with disabilities full and equal access to their health care services and facilities and provide reasonable modifications to policies, practices and procedures when necessary to make health care services fully available to ...

On February 2, 2012, the U.S. Department of Labor (“DOL”) issued final regulations under Section 408(b)(2) of ERISA (the “Final 408(b)(2) Regulations”), which requires “covered service providers” to disclose to “responsible plan fiduciaries” (including employer plan sponsors and plan administrators) certain direct and indirect compensation they receive in connection with the services that they provide to a plan.  These regulations are part of the DOL’s initiative to increase transparency for plan fiduciaries and participants of fees and costs ...

By Casey M. Cosentino and Eric J. Conn

“Texting while driving” is an epidemic in America, which has prompted forty-two states and the District of Columbia to ban (completely or partially) this conduct for drivers.  Here's a map of the U.S. states that have enacted some ban on texting while driving.  Studies suggest that texting while driving distracts drivers’ cognitive focus and removes their eyes from the road and hands from the wheel.  It is not surprising, therefore, that distracted driving is attributed with sixteen percent (16%) of all traffic fatalities in 2009.

The ...

 by Jeffrey M. Landes, Susan Gross Sholinsky, Steven M. Swirsky, and Jennifer A. Goldman

On January 25, 2012, the Federal Trade Commission ("FTC") sent warning letters to three companies that market, in total, six mobile phone applications ("Apps") that provide users with background check reports. In the warning letters, the FTC states that the Apps may violate the Fair Credit Reporting Act ("FCRA"). According to a press release issued by the FTC on February 7, 2012, the FTC cautioned the Apps' marketers that, if they have reason to believe that the background reports provided will be ...

On February 1, 2012, a former intern of Hearst Corp.’s Harper’s Bazaar filed a purported class action alleging that the company violated the Fair Labor Standards Act (“FLSA”) and applicable state law by failing to pay minimum wage and overtime pay to her and the other interns. 

Although the lawsuit is against a publishing company, it nonetheless highlights a growing trend in health care.  The economic downturn has led many job seekers to get their foot in the door anyway they can, even if it means interning without pay.  Indeed, as the complaint against Hearst Corp. asserts ...

Please join us on Wednesday, February 22, 2012 at 9:00 am EST for a complimentary seminar/webinar  presented by Epstein Becker Green attorneys Kara M. Maciel and Jordan Schwartz.  They will address how the new ADA standards affect the health care industry and describe specific actions that employers should take to comply with these updated legal requirements and avoid significant financial penalties.

Registration is free and you can register by clicking here.

We are pleased to announce that Epstein Becker Green’s first app - Wage & Hour Guide for Employers - is now available for download in the App Store on iTunes, for both iPhones and iPads.  You can find the app by searching for “Wage Hour” or clicking here. 

The Wage & Hour Guide app enables employers to access up-to-date federal wage and hour guidelines as well as various state guidelines, which can differ by jurisdiction.  In addition, users can obtain insights and commentary about the latest wage and hour developments and issues by accessing Epstein Becker Green’s Wage and Hour ...

 Medicaid home care aide services providers need to act quickly to avoid the risk of non-payment for services.  The New York State Home Care Worker Parity Act, Public Health Law § 3614-c, establishes minimum “total compensation” requirements for “home care aides” who perform Medicaid-reimbursed work for certified home health agencies (“CHHAs”), long term home health care programs (“LTHHCPs”) and managed care plans (“MCPs”).  The Act applies to both mainstream managed care plans and all forms of managed long term care plans, and also affects licensed and ...

Written by: Robert S. Groban Jr.

The U.S. Department of Justice's Office of Special Counsel ("OSC") was established by Immigration Reform and Control Act of 1986 ("IRCA"). The OSC investigates and prosecutes employers for discriminating against workers based on national origin, citizenship status, and document abuse. Liability can attach when an employer acts too zealously in satisfying its Form I-9 obligations, such as asking foreign-looking applicants for more or different documents than it seeks from "American" workers or instructing employment applicants on which ...

On December 6, 2011, the U.S. Department of Labor (“DOL”) issued a proposed rule on Form M-1 filing requirements, a proposed rule on DOL ex parte cease and desist orders, a notice of proposed form revision to Form M-1 and a notice of proposed form revision to Form 5500  implementing new requirements for multiple employer welfare arrangements (“MEWAs”) under the Patient Protection and Affordable Care Act (“PPACA”) (referred to as the “Proposed Rules”).  PPACA prohibits false statements or representations of fact about a MEWA’s financial condition ...

The plaintiff, a former employee of On Lok, inc., a non-profit organization which serves the Bay Area elderly population, filed a lawsuit after her employment was terminated when she was seven (7) months pregnant and shortly before her anticipated maternity leave was expected to begin.  She claimed pregnancy discrimination and retaliation in response to her request for leaves of absence under the California Family Rights Act and the California Pregnancy Disability Leave Law,  among other related causes of action.

 The Epstein Becker Green defense team of Steven Blackburn and ...

Acquirers of businesses often prefer to buy the assets of a seller, rather than the stock, to avoid assuming the seller’s liabilities.  Indeed,  the general common law rule is that a purchaser of assets does not assume the seller’s liabilities absent an agreement to do so, fraud or other inequitable conduct between the parties, whereas in a stock sale, the buyer steps into the shoes of the seller and assumes all assets and liabilities of the seller.  In an asset sale, the seller, in turn, would typically use part or all of the sale proceeds to pay its liabilities.  During the pre-sale due ...

Written By:  Ana S. Salper

Social media has revolutionized how we communicate with one another. From Facebook to Twitter, YouTube to blogs, social networking sites have permeated the workplace in ways that have significant implications for all employers.

Social media is both a source for marketing and promoting companies and products as well as an enterprise risk factor if not used appropriately or in a compliant way. In the health care industry, with the Health Insurance Portability and Accountability Act (“HIPAA”) and other privacy laws at stake, employers must have a ...

According to the 2011 Medical Group Management Association's Physician Compensation and Productivity Report, more than one-third of physician group practices in the U.S. are using some type of "work relative value unit" (commonly known as a wRVU) structure for compensation purposes, and more than 60% of physicians are paid on the basis of some type of wRVU metric. So, physicians clearly have some familiarity with the wRVU concept and its application in calculating physican "pay for productivity" compensation.

However, while wRVU models generally provide compensation ...

A monthly breakfast law briefing and networking series specifically  designed for health care and wellness company executives and human resources professionals.  This informative series will address labor and employment issues during these challenging times and offer solutions.

For additional information and to register,  contact Carla Llarena or by tel: (404) 869-5363.

February 8, 2012 
Today's OSHA: What Healthcare Companies and Practices Need to Know

March 14, 2012
It Can Hurt to Ask: TMI in the Digital Age
(Focusing on Social Media & Background Checks)

April 11, 2012

By:  Kara M. Maciel

Identifying and eradicating the misclassification of employees as independent contractors continues to be a key objective for the Obama Administration.  The U.S. Department of Labor (“DOL”) and the IRS have intensified their enforcement efforts regarding worker misclassification, and audits have increased substantially, particularly within the home health industry.  In September 2011, the DOL and IRS announced an effort to coordinate with each other and with several states by, pursuant to a Memorandum of Understanding, permitting ...

by Pamela D. Tyner

Physicians and healthcare workers devote years to improving the quality of their patients’ lives.  Despite the Hippocratic code and compulsory non-retaliation policies, incidents of disruptive behavior from physicians and healthcare workers, though largely shielded from the general public, continue to frequently surface internally at healthcare environments.  Amidst recent jarring headlines of workplace violence and bullying, news media have discovered this same trend is also on the rise as healthcare facilities across the nation struggle to ...

On August 30, 2011, the National Labor Relations Board (the “Board”) issued a highly controversial and very pro-labor rule requiring employers to post notices informing employees of their right to join or form a union.  The rule was originally supposed to go into effect in November, but was subsequently pushed back to January 31, 2012 as a result of mounting criticism against the rule.  Indeed, several lawsuits have been filed by business groups alleging that the Board overstepped its discretion in imposing the rule on employers.  A federal judge in one of the cases recently ...

Please join the attorneys of EpsteinBeckerGreen on June 7, 2011, at the National Press Club, as we present eight panels covering labor and employment topics that have increasingly impacted employers in the health care industry.

Our first panel, entitled Significant Labor and Employment Issues that Affect Health Entities, will include representatives from the health care industry, such as a hospitals, skilled nursing facilities, and emergency medical services. These executive panelists will discuss the critical labor and employment issues they are currently experiencing ...