Health Law Advisor

The United States is in the midst of an unusually lethal flu season, and health experts agree that despite inconsistencies in their effectiveness, flu shots are among the best ways to fight the spread of the flu. A recent holding from the Third Circuit Court of Appeals provides some good news for health care employers who require that their patient-facing employees receive flu shots, making it more difficult for employees to claim a religious exemption.

Courts have held that health care employers may require their patient-facing employees to be vaccinated against a number of ...

Last week, the federal Department of Health and Human Services (HHS) made two announcements aimed at providing additional protections for health care workers who object to providing services on moral or religious grounds.

On January 18, 2018, HHS announced the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR).  The stated goal of the new division is to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

The next day, on January 19, HHS ...

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic ...

Further emphasizing the split in authority on sexual orientation discrimination, last month the Eastern District of Missouri dismissed plaintiff Mark Horton’s claim that Midwest Geriatric Management LLC (“MGM”) violated Title VII by rescinding an offer of employment after learning that he is gay. Horton v. Midwest Geriatric Mgmt., LLC, Case No. 4:17CV2324, 2017 U.S. Dist. LEXIS 209996 (E.D. Mo. Dec. 21, 2017).

Horton asserted that MGM unlawfully discriminated against him on the basis of sex and religion. Horton’s sex discrimination claim comprised three theories ...

In 2008, Congress passed the Ryan Haight Act (21 U.S.C. § 802(54)) (“Ryan Haight”) following the death of Ryan Haight, a young man who overdosed on prescription painkillers he purchased from an online pharmacy without a valid prescription. Ryan Haight amended the federal Controlled Substances Act (21 U.S.C. 802 et seq.) and specifically prohibits dispensing controlled substances via the internet without a “valid prescription” which, according to the law, must be issued for a legitimate medical purpose and may only be issued once a physician has conducted at least one ...

On January 8, 2018, former New Jersey Governor Chris Christie signed new legislation (the “Amendment”) amending the New Jersey Law Against Discrimination (“NJLAD”) to add breastfeeding as a protected class under the law. The Amendment, which takes effect immediately, makes it unlawful to discriminate or retaliate against an employee that the employer knows, or should know, is either breastfeeding or expressing milk for her infant child.

The Amendment also requires employers to provide reasonable accommodations to nursing women, unless it would result in an undue ...

On January 16, 2018, the Department of Health and Human Services Office of Inspector General (OIG) published its most recent update to the agency’s “Work Plan.”  Of note to Durable Medical Equipment (DME) manufacturers, suppliers and prescribers, OIG signaled increased interest in the investigation of three specific off-the-shelf orthotic devices identified by the HCPCS codes:

• L0648—back bracing
• L0650—back bracing
• L1833—knee bracing

According to OIG, the government paid out $349 million for these braces in 2016, representing a 97% increase from just 2014.  OIG ...

On January 12, 2018, the Maryland General Assembly completed its expected override of Governor Hogan’s May 25, 2017, veto of a bill it passed last April, joining eight other states, the District of Columbia, and various local jurisdictions (including Montgomery County, Maryland) already requiring employers to provide paid sick and safe leave.

As we reported  when the bill originally passed, the new law will require most employers with at least 15 employees to provide up to five paid days (forty hours) per year of sick and safe leave to their employees, and smaller employers to ...

On January 5, 2018, consistent with the 21^st Century Cures Act’s focus on creating interoperability and correspondingly a Trusted Exchange, the Office of the National Coordinator for Health Information Technology (“ONC”) released its “Draft Trusted Exchange Framework” (“Draft Framework”).  The Draft Framework is intended to streamline the exchange of Electronic Health Information (“EHI”) so that both health care providers and patients have better access to health information, thus improving communication and quality health care.  EHI includes ...

One of the challenges to increasing Medicare coverage of telehealth services is amending the statutory language in the Social Security Act (42 U.S.C. § 1395m) to remove geographic and other limitations. The Congressional Budget and Impoundment Control Act of 1974 requires the Congressional Budget Office (“CBO”) to provide cost estimates of proposed legislation. These CBO scoring reports provide estimates on the spending and revenues associated with legislation, generally over the window of 10 years beyond the effective date of the legislation. Therefore, budgetary ...