Wednesday, December 18, 2013

Is Sniffing Sexual Harassment?

The New Orleans-based 5th U.S. Circuit Court of Appeals has found that sniffing may be considered sexual harassment.  Denise Royal claims she was fired without explanation shortly after she complained to her supervisor about being sniffed by co-workers.  Royal, employed as a leasing manager for an apartment complex, claimed that two maintenance workers would enter her office, hover over her as she sat at her desk and sniff her. The complaint alleges that the harassment occurred about twelve times, for each worker, over the four days of Royal’s brief employment.  When she complained to her supervisor she allegedly was told to let it go.   At a meeting, Royal complained of being sniffed, but one of the men claimed that it was a medical condition that she was misinterpreting.  Royal was fired later that afternoon. 

Royal filed suit against her former employer for sexual harassment and retaliation.   The United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman's shoes would have viewed herself as a victim of sexual harassment.  Royal appealed and the Fifth Circuit Court of Appeals held there is a genuine dispute of material fact whether the maintenance men's behavior violated Title VII.  The opinion stating that the magistrate judge “overemphasized the lack of physical contact. Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive.”  The court found that “sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal's sex.”

The North Carolina Equal Employment Practices Act prohibits discrimination in employment because of sex, including sexual harassment (NC Gen. Stat. Sec. 143-422.2 et seq.). The Act applies to all private employers of 15 or more employees. Employers with 15 or more employees are also covered by the federal fair employment law, Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits sexual harassment. Sexual harassment is an unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. Given this broad definition, it is not surprising that sexual harassment can take many forms in the workplace.  There are a number of steps that you can take to reduce the risk of sexual harassment occurring in your workplace.  Such steps include, adopting a clear sexual harassment policy in your employee handbook, conduct training sessions for employees where you review your complaint procedure, and train supervisors and managers on how to deal with complaints.

Thursday, December 5, 2013 Delays For Small Businesses

The Obama Administration announced a year delay in's small business functions. The administration had previously delayed online enrollment from October 1, 2013 to the end of November.  The announcement did not come as a surprise to many small businesses as they have already made other plans for insuring their workers in 2014, frequently achieved by renewing the existing policies. serves customers for health insurance in 36 states. It was originally designed to help small businesses as well as individuals.  However, Administration officials said with the widespread website problems, they had to focus on the basic functions of the website, so that individuals could shop for insurance, before offering online enrollment for small businesses.

Officials have encouraged small business owners to work through insurance brokers or agents. Owners who buy qualifying coverage through an agent may be eligible for tax credits under the Affordable Care Act. The New York Times reported an Administration official saying, “The agent, broker or insurer will help the employer fill out a paper application for SHOP eligibility and send it in to the SHOP marketplace." The insurer can also tell employers what premiums they would have to pay and can enroll employees.

The Wall Street Journal interviewed Sharon Hoyer, general manager of Dill Pickle Food Co-op in Chicago, which has nine full-time employees including herself, who said she preferred going through her agent. "I imagine we'll have a speedier response." 

The Wall Street Journal also interviewed Nancy Clark, owner of Glen Group, an eight-person advertising firm in North Conway, N.H., who said she sent in a paper application for small business coverage under the new healthcare law last week because the online option wasn't available. While she is still waiting to see how much group coverage would cost, she said it was likely she would ask each of her employees to apply for individual coverage online.  Ms. Clark said she would continue to pay for health coverage as she has done for the past 15 years, but "I am going to pay through raises."

Congress had wanted to provide small business employees with a range of health plan options. While some state-run exchanges, not affected by the announcement, will allow employers to offer such choices to employees, the federal exchange will not do so until 2015.

Tuesday, November 19, 2013

Reviewers Suing Yelp

Plaintiffs filed a California class action lawsuit in Los Angeles on October 22, 2013 against Yelp.  Yelp is a website that provides reviews of different businesses around the world.  The plaintiffs are a group of Yelp reviewers, claiming that they are unpaid writers who are vital to the company’s existence.  In the complaint, plaintiffs refer to themselves as writers and non-wage paid employees who have earned Yelp considerable sums of money.

The complaint states, “The practice of classifying employees as ‘reviewers’ or ‘Yelpers’ or ‘Elites’ or ‘independent contractors’ or ‘interns’ or ‘volunteers’ or ‘contributors’ to avoid paying wages is prohibited by federal law, which requires employers to pay all workers who provide material benefit to their employer, at least the minimum wage.”   The complaint further alleges that Yelp motivates its non-wage-paid writers to increase the volume of their production with incentives in the form of liquor, food, badges, and trinkets.

Lily Jeung, a contributor to Yelp, who was named an “Elite” reviewer, alleges that in order to maintain her status, she was “often directed to write more reviews if in Yelp's opinion her production seemed to slack off.”   Jeung had written about 1,100 reviews when Yelp abruptly closed her account.  Yelp sent an email explaining that it had flagged a number of the reviews she wrote in connection with an investigation of businesses that have tried to pay for positive reviews, as a result, her account was closed and the decision was final.

Anyone who reads online reviews knows it is hard to determine whether an online business review is authentic.  To combat this problem, Yelp has developed a computer algorithm in a continuous effort to identify and filter out phony reviews.  It is this computer algorithm that flagged some of Jeung’s reviews and closed her account.  It is Jeung’s stance that she was “fired from her position with no warning, a flimsy explanation, and no opportunity for recourse or appeal rights.”

Yelp has replied to the allegations by telling Fast Company “The argument that voluntarily using a free service equates to an employment relationship is completely without merit, unsupported by law and contradicted by the dozens of websites like Yelp that consumers use to help one another.”

Yelp’s website success does rely on an active base of reviewers, however opponents to the lawsuit have liken it to Facebook users demanding payment for status posts. Nicholas Thompson of the New Yorker told Bloomberg  that the "plaintiffs write so many reviews -- in some cases more than a thousand each -- for the simple reason that Yelp is an online community in which they enjoyed participating, not for the promise of working as a paid writer.  'They did it for the reasons why we all contribute online. We do it for prestige, we do it to connect with our friends, we do it because we think we're making the web a better place,' he said."

If the plaintiffs are successful in their lawsuit, this would change the landscape of online reviewing.  

Wednesday, November 6, 2013

The Employment Non-Discrimination Act

Today the Senate has adopted an amendment to the Employment Non-Discrimination Act (ENDA) from Sen. Rob Portman (R-Ohio) that would prevent retaliation against religious organizations.  It was only Monday, the ENDA achieved enough support in the Senate to move the bill towards a vote on final passage.  The ENDA is a bill that would make discrimination based on "an individual's actual or perceived sexual orientation or gender identity" illegal in such areas as hiring, firing and compensation in both the private and public workplaces. The measure would treat "sexual orientation" and "gender identity" in a fashion similar to other federally protected categories, such as race, gender, age and religion.

As it stands now, twenty-one states and the District of Columbia have laws prohibiting workplace discrimination on the basis of sexual orientation and many corporations have their own fully inclusive policies in place.  Current federal laws prevent workplace discrimination based upon age, color, disability, genetic information, national origin, race, religion and, sex, but no such protections occur for sexual orientation and gender identity. 

Different versions of the ENDA have been introduced since 1994 and the Senate last considered a version of ENDA in 1996, but the bill failed by one vote.  There are reports that the bill is unlikely to even be brought to a vote in the House as Speaker John Boehner is not in favor of the bill.  Boehner spokesman Michael Steel said in an email that “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”   The Washington Post has reported that states with laws similar to ENDA “have not seen a noticeable increase in litigation based on sexual orientation or gender identity.”

If the bill is passed, potential remedies for violating the law would be on par with other cases of employment discrimination. The former employee could potentially get the job or promotion they were denied, be awarded back pay and litigation costs and/or related compensatory or punitive damages.

Wednesday, October 23, 2013

Text Messaging Protected Health Information

The Robert Wood Johnson Foundation, conducted a study finding that nurses spend as much as 60 minutes of each work day tracking down physicians for a response to their patient care questions. Many healthcare providers believe it would be more efficient to send text messages in order to streamline the workflow, as well as, increase dialogue between physicians and patients.  An issue arises though, if the message contains Protected Health Information.  This is a result of the fact that text messages are electronic communications and therefore the message would be considered Electronic Protected Health Information (ePHI), which must comply with the Health Insurance Portability and Accountability Act (HIPAA).

It is challenging to send a HIPAA compliant text message as they carry a great deal of risk.  The risk stems from the fact that they are typically not encrypted, senders cannot authenticate the recipients, recipients cannot authenticate the senders and ePHI can remain stored on wireless carrier servers.  The Joint Commission has completely restricted  physicians or licensed independent practitioners from texting orders for patients to the hospital or other healthcare setting, stating that “this method provides no ability to verify the identity of the person sending the text and there is no way to keep the original message as validation of what is entered into the medical record.”  However, texting ePHI is not explicitly prohibited by the HIPAA Security Rule. 

The Security Rule requires that those providers who want to send ePHI via text must conduct a risk analysis.  A risk analysis consists of “an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the covered entity.”  The Security Rule further requires that Covered Entities and Business Associates acting on their behalf implement administrative, physical and technical safeguards.  The Security Rule does not propose specific safeguards, but provides a framework to assess and mitigate risks associated with such transmissions.  The American Health Lawyers Association have given examples of technical safeguards, such as, unique user identification, automatic logoff, encryption/decryption, auditing and authentication.

Text messaging remains an attractive and cost effective way to communicate ePHI.  Ultimately though, it is a policy decision where the decision-makers must weigh the risks and benefits of sending PHI through text messages.

Friday, October 4, 2013

Favorable Outcome for Abercrombie & Fitch In Religious Discrimination Lawsuit

The decision by U.S. District Court Judge Gregory Frizzell, granting summary judgment to the Equal Employment Opportunity Commission (EEOC) was reversed by the U.S. Court of Appeals on October 1, 2013.  The Tenth Circuit disagreed with the District Court's determination that Abercrombie & Fitch violated Title VII of the Civil Rights Act of 1964, by failing to provide a reasonable religious accommodation to a Muslim woman.  

The Tenth Circuit held that Abercrombie was instead entitled to summary judgment because there was no genuine dispute of material fact.  The court focused on the fact that the applicant never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she would need an accommodation because of the conflict with Abercrombie’s clothing policy.

Abercrombie has a “Look Policy” intended to promote the Abercrombie brand. Abercrombie claims that its Look Policy is critical to its “preppy” and “casual” brand as it does very little advertising through traditional media outlets.  Abercrombie asserted that a sales-floor employee who violates the Look Policy by wearing inconsistent clothing will cause consumer confusion, will fail to perform an essential function of the sales-floor employee position, and ultimately damage the brand.

In 2008, the then 17-year-old, Samantha Elauf, applied for a job at Abercrombie Kids in Tulsa, Oklahoma.  Prior to her interview, Ms. Elauf asked a friend who worked at Abercrombie whether wearing a hijab to work was permissible. The friend inquired and communicated to Ms. Elauf that it should not be a problem.  Ms. Elauf wore an Abercrombie T-shirt, jeans and a black hijab to her interview.  During the interview the assistant manager never mentioned the Look Policy by name but did describe the dress requirements. Ms. Elauf never informed the assistant manager that she was Muslim, never brought up the subject of the headscarf, or that she wore the headscarf for religious reasons.  The interview went fairly well, and she was rated by the assistant manager as eligible for hire.

Following the interview, the assistant manager sought approval from a senior manager in evaluating Ms. Elauf for the position.  A district manager determined that Ms. Elauf should not be hired because she wore a headscarf, which was a clothing item that was inconsistent with the Look Policy.  The Look Policy prohibited employees from wearing black clothing and “caps.” However, the policy did not explain the meaning of the term “cap.”

The EEOC sued on Ms. Elauf’s behalf, alleging violations of Title VII. The compliant stated that Abercrombie refused to hire her because she wore a hijab, and failed to accommodate her religious beliefs by making an exception to the Look Policy.  The U.S. District Court agreed, granting summary judgment to the EEOC after finding that Abercrombie and Fitch failed to produce sufficient evidence to dispute the EEOC’s claims.  

Title VII’s regulations impose an obligation on the employer “to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.”  However, Title VII’s regulations are only imposed after an employer is put on notice of the need for a religious accommodation. The Tenth Circuit found that not only did Ms. Elauf never inform Abercrombie before its hiring decision that her practice of wearing a hijab was based on her religious beliefs and that she needed an accommodation, the hijab was not discussed at all.  Therefore, the appeals court determined that the EEOC failed to establish its case under Title VII’s religion-accommodation theory.

Thursday, September 26, 2013

FDA Regulating Smartphone Apps

According to the Pew Research Center, more than half of all Americans own a smartphone and along with smartphones come thousands of different apps.  Typically, people use their apps to listen to music, read the news or get directions to their destination.  However, the Food and Drug Administration (FDA) got involved once individuals started developing health and wellness apps.  For example, there are apps that measure the electrical activity of the brain, that take an individual’s blood pressure and that store and transfer patient medical records.   In June of 2012, Congress passed a bill allowing the FDA to regulate medical apps on smartphones because the apps could pose a risk to a user's safety if they were to not function as intended. 

On September 23, 2013 the FDA issued guidance on its regulatory strategy for health and wellness apps for smartphones and other wireless devices. Senior Policy Advisor at the FDA, Bakul Patel, said it was important for the FDA to weigh the benefits of the innovation the apps bring to the industry and balance it against patient safety risk. 

There are three categories of apps that the FDA is regulating, which include, those that  connect to and control another regulated device, those that display, transfer, store, or convert patient-specific medical device data from a connected device and those that transform a mobile platform into a regulated medical device.  The FDA has currently cleared around 100 mobile medical applications and the review process has taken 67 days on average to complete.  The FDA does not intend to regulate apps that pose minimal risk to patients and consumer, such as those that help smartphone users organize and track their health information or count calories.

If we allow our smartphones to manage every other aspect of our lives, is the next logical step to have smartphones help improve health and healthcare delivery?  It is the clear direction the healthcare industry seems to be taking with there already being around 200 mobile health apps which have been co-branded with healthcare organizations. 

Thursday, September 19, 2013

Are Your Employee’s Astroturfing For You?

Yelp Inc. is suing a boutique bankruptcy law firm, McMillan Law Group, for allegedly “astroturfing.” Astroturfing is when statements are given on the internet, which appear to be from an independent, credible source but only because the source’s financial connection is withheld.   The term is derived from the synthetic carpeting that is designed to look like natural grass, AstroTurf. 

According to the Yelp, Inc. v. McMillan Law Group Inc. complaint, a number of employees from the law firm were using their personal accounts to give the firm five out of five stars and making statements, such as, “Exceeded expectations”   and “would recommend for a quick, efficient and pain-free bankruptcy experience.”  The complaint further alleges that the law firm created Yelp profiles for the purpose of leaving glowing reviews.

The McMillan Law Group contends that Yelp’s lawsuit against them is simply retaliation for the law firm’s small claims filing on February 13, 2013 against Yelp. The McMillan Law Group asserted that its contract with Yelp was void due to fraud in inducement to advertise and duress, and it further alleged that the website failed to provide promised services.  A court commissioner awarded McMillan Law Group $2,700 plus $95 in cost, as a refund for advertising.
Only time will tell if there is any truth to the allegations against McMillan Law Group for unfair business practices, but it serves as a warning to all businesses.  Do not have employees post fake reviews for your business as you may find yourself defending a lawsuit for astroturfing!

Friday, September 6, 2013

Be Ready for the September 23 HIPAA Deadline

On March 26, 2013 the final rules that implement the Health and Information Technology for Economic and Clinical Health (HITECH) Act went into effect. These rules directed that all providers and groups must be in compliance by September 23, 2013. That date is right around the corner and it is imperative to use these last few weeks to make the proper preparations to paper work and policies. Failure to do so can result in increased fines.

The following are key aspects of the law that providers must be aware of:

Business Associate Agreements
Image courtesy of digitalart
A business associate (BA) is any company that handles PHI, such as vendors and contractors. If no BA agreement exists, then one must be in place by September 23. Any already existing BA agreements that were previously considered HIPAA compliant have a 1 year extension on revisions, as long as no renewals are done between March 26 and September 23. Any BA agreement that is renewed after September 23 must follow the new laws. BAs are now considered responsible for their subcontractors and must have BA agreements with them.

Patient Rights
The ruling allows for patients to have expanded rights when it comes to the privacy and security of their PHI. After September 23, they will be able to request their records in electronic form. They can also request that a provider not disclose any treatments to the health insurance carriers when the patient has paid in full. There are also much stricter rules in place for the use of PHI for marketing and fundraising purposes. The law prohibits selling a patient’s PHI without their consent. September 23 is the deadline for adding and/or revising your practice’s Notice of Privacy Practices (NPP) to reflect these changes. The new changes will also implement the Genetic Information Nondiscrimination Act (GINA) of 2008, which ensures that patient’s genetic health information cannot be used by health insurance carriers for underwriting purposes.

It is vital for every practice to do the following updates before the September 23 deadline:
-Notice of Privacy Practices form
-Business Associate Agreements
-Authorization forms
-staff training
-HIPAA privacy policies
-HIPAA security policies
-Agreements between BAs and Subcontractors

Contact our office if you have any questions concerning your practice and the September 23 HIPAA deadline. We are available to aid in all forms of practice preparation and compliance to avoid the new higher fines of up to $1.5 million per violation that comes with deadline.

Monday, July 29, 2013

Delay in Health Law Penalties

On Tuesday, July 2, the Treasury Department announced its determination to delay enforcement of a portion of the Affordable Care Act which required certain large employers to provide health insurance for employees. Firms that have more than 50 employees have been granted a reprieve from the Obama Administration and now have until 2015 before they will be required to face the decision whether to provide health coverage to employees or face stiff sanctions. The original mandate, as set forth in the Affordable Care Act of 2010, requires that companies with 50 or more employees provide health benefits to full-time employees or face fines starting at $2,000 per full-time employee.  According to the U.S. Department of the Treasury, the decision to implement the enforcement delay was precipitated by concerns from a number of parties regarding the complexity of the new employer and insurer reporting requirements which go along with the mandate. The Feds hope to advance two goals through this 1-year extension.  First, the Administration hopes to utilize the delay as an opportunity for more time to consider methods to simplify the new reporting requirements that are consistent with the Affordable Care Act. The second goal is to allow more time for the adaptation of health coverage and reporting systems as employers work toward implementation of the mandated health coverage and reporting requirements.

It is important to note, also, that these actions by the Administration do not affect employee access to available premium tax credits or any other Affordable Care Act provision.

“Treasury Notes”, U.S. Department of The Treasury,
“Health-Law Penalties for Big Employers to Be Delayed in 2014”, The Wall Street Journal, 

Friday, June 28, 2013

Changes in NC Medicaid Claims Processing

On July 1, 2013 a much anticipated change will take place in the North Carolina Medicaid system when the state’s 34-year-old claims processing computer system, known as Legacy, will be retired and replaced by the new system, NC Tracks. After being awarded a contract in 2008, Computer Sciences Corporation (“CSC”), a Virginia-based company, developed the system based on a similar system currently in place in New York. CSC will manage call centers, claims processing, prior authorization reviews, pharmacy processes, and medical policy reviews.

The old system, administrated by Hewlett Packard, is no longer able to adapt to the numerous changes happening across the landscape of state and federal healthcare law.  NC Tracks has been developed to grow and change as healthcare changes and has the ability to expand if additional programs or government payers are added. NC Tracks has many other capabilities that will be of more immediate benefit. The system has the ability to process claims from multiple divisions of the Department of Health and Human Services. Also, it will combine the old Legacy system that processes claims for the Division of Medical Assistance (DMA), the Integrated Payment and Reporting System (IPRS) used by the Division of Mental Health, and the Purchase of Medical Care Services (POMCS) that handles claims for both the Division of Public Health and the Office of Rural Health and Community Care.
The new system will have the following online capabilities:
-recipient eligibility verification
-prior approval request
-claims submissions
-secure email messaging
-electronic remittance advice reports
-view claim status in real time 
While the Legacy system has some of these attributes, the NC Tracks system is designed for improved paperless processing and a higher level of efficiency for providers. It also claims to “streamline the claims process” and provides the ability for online enrollment, verification, and credentialing.
Despite the benefits reported by CSC and DHHS about NC Tracks, not everyone is so confident. In a report recently released by State Auditor Beth Wood’s office, multiple questions were raised about the readiness of the new system. There is concern that the system is not prepared for the onslaught of claims from the over 70,000 enrolled providers. The major is that the system has not been properly tested. There were issues with a portion of the test cases run, as well as unease that not all the testing has been completed with barely a month left before implementation. Also causing distress is the computer code used to write the software. CSC used an antiquated style of code from the 1950’s that is rarely used today. Detractors of the system are complaining that most people trained in writing the code are retired, and programmers from India had to be brought in to develop the system.
With the July 1st deadline looming, CSC has many promises to fulfill. After running two years over deadline and costs rising from the projected $265 million to $484 million, faith in NC Tracks is waning. Providers are hoping that the new system will be more user-friendly and make providing healthcare and supplies to Medicaid recipients easier, as promised. If NC Tracks fails to meet the demands of DHHS, this will be the mostly costly mistake in the state’s history.

Wednesday, May 29, 2013

Hiring Children and Teens as Summer Employees

The sun is finally shining and the end of school imminent, it is evident summer is here. With the change of seasons comes a rush of teens and college students looking for employment. In July 2012 there were 23.5 million employees between the ages of 16-24.  Businesses are smart to take advantage of this influx of economical labor, but it is important to understand the laws that surround hiring summer help.

The laws for hiring young people are dependent on age. Children under 14 may not work, except in very select jobs such as paper delivery, casual childcare, and acting. The following rules apply for children 14-15 years of age:
© Nezezon | Dreamstime Stock Photos
Stock Free mages
  • work time must be outside school hours
  • 3 hours a day on school days and 8 hours a day on non-school days
  • 18 hours a week during a school week and 40 hours during a non-school week
  • work hours must fall between 7am and 7pm unless it is June 1 and Labor Day, in which it is extended to 9pm

16- and 17-year-olds can work unlimited hours.

Both state and federal labor laws that govern the hiring of anyone under 18.  It is important to note that the more stringent law always applies. Though not a federal requirement, the state of North Carolina requires anyone under 18 to have a work permit. A new addition to NC requirements is the following: 14- and 15-year-olds may prepare food, but may not bake, cook over an open flame, or use manual deep fat fryers.  

The benefits of hiring summer employees are numerous. It is more economical for an employer than a normal full-time employee. They can complete tedious and low-priority tasks that are still important to the company. For example, a doctor’s office that needs to scan paper charts can pay a teenager to sit at the scanner all day for a fraction of what they would pay a regular employee. It is also helpful to have extra bodies during the time when multiple employees take vacation. Productivity will not be hampered by a skeleton staff, and there will not be a backlog of work once full time employees return to work. It is also important to realize the long-term effect having summer help can have on a business. Forming relationships with high school and college students can lead to outstanding full time employees that are comfortable and familiar with the company once they have completed school.

Using summer employees is beneficial on many levels. However, it can also cause major problems for a business that does not follow the applicable laws. Consult an attorney if your company is considering the possibility of summer help. It is vital to know the regulations about benefits, wages, and age related laws. Violations can be very costly with penalties up to $11,000 per child, per violation. For repeat offenders or those that cause injury or death, fines can be up to $100,000. Protect yourself by allowing an attorney to guide you through the ins and outs of hiring young people.

Another alternative is hiring summer interns. For more information read Understanding the Legal Issues of Unpaid Interns.

Child Labor in Nonagricultural Occupations in North Carolina. (n.d.) NC Department of Labor. Retrieved on May 15, 2013 from
Employment and Unemployment Amount Youth Summary. (August 21, 2012.) Bureau of Labor Statistics. Retrieved on May 15, 2013 from

Fact Sheet #43: Youth Employee Provisions of the Fair Labor Standards Act for Nonagricultural Occupations. (July 2010). Department of Labor. Retrieved on May 15, 2013 from

Wednesday, May 15, 2013

HIPAA Allows for Disclosures in Certain Situations

The US Department of Health and Human Services recognizes that medical providers play a vital role in protecting the general public. There is information that is only available to providers, and they have a responsibility to share that information with the appropriate officials if a patient presents the threat of danger to themselves or others. There are circumstances when HIPAA does allow for the release of PHI without patient authorization.

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The following are situations in which the Privacy Rule allows disclosures:  when it is necessary for treatment, to protect public health, or if concern exists that the patient may do harm to another. Examples include child abuse or neglect; when the effectiveness of a product or activity regulated by the FDA is in question; when there is a risk of a person contracting or spreading a communicable disease; or if there is a threat to do harm to a person or group of people.

Recent meetings before the US House Oversight and Commerce Committee have proven that it is necessary to address the provisions that allow for disclosures. Providers need to be better informed as to situations when it is permitted, and even ethical, to report information to those who are legally authorized to receive it.

Healthcare professionals live in fear of violating HIPAA. Afraid of disclosing any PHI, they rarely even report information in one of the situations for which the rule makes an exception. It is important for health care providers to educate themselves. Consult with a healthcare attorney that is well versed in HIPAA and privacy laws. They will also know about recent court cases in which precedent has been set, as well as applicable state laws. Also, if a situation presents with a patient that is concerning to the provider, the attorney can provide advice on how to progress. Other helpful resources are professional societies and the Department for Health and Humans Services.

The best way to follow the laws set forth in HIPAA is to understand them. Don’t use HIPAA as shield. Know what the Privacy Rule restrictions are and identify how best to protect your patients while also protecting those around them.

Ouellette, Patrick. (April 30, 2013) Weighing HIPAA privacy standards vs. public safety. Health IT Security. Retrieved on May 7, 2013 from
Rodriguez, Leon. (January 15, 2013) Message to Our Nation’s Health Care Providers. Department of Health and Human Services.  Retrieved on May 7, 2013 from
Public Health. (April 3, 2003.) US Department of Heath and Human Services. Retrieved on May 7, 2013 from
Witnesses Voice HIPAA Concerns During Congressional Hearing. (April 29, 2013.) iHealthBeat. Retrieved on May 7, 2013 from

Thursday, May 9, 2013

Bullying at Work

Bullying in classrooms and playgrounds is a hot topic right now. People all over the country are discussing ways to stop it from happening and how to help the victims. While everyone is quick to discuss childhood bullying, there is another type of bullying affecting people all over the country that no one seems to want to talk about--workplace bullying.

© Phil Date | Dreamstime Stock Photos
Called a silent epidemic by many, studies show that as many as 54 million Americans have been bullied at some point while at work. However, 40% of those targeted never tell their boss. Bullying is four times more prevalent than discrimination, but yet there are laws in place to protect employees from discrimination. No laws exist to protect employees from bullying. With no laws to protect them and employers that do not seem to discourage bullying, people prefer not to discuss that they are being bullied.

It is very important that management in every company works to eradicate bullying from its company culture. Not only does it cause problems among employees, it also costs time and money. Bullying leads to high turnover, low productivity, loss of sharing ideas and creative thinking, and can harm the company’s reputation. The following are important facts that employers should know about bullying:

Health Effects
Bullying has been proven to negatively affect the health of those targeted. 45% of people that are bullied suffer from stress-related health problems. These include:

Emotional stress
Digestive issues
High blood pressure
Low self esteem
Trouble in relationships

When employees are experiencing these health problems, they tend to miss more work and when they are at work, productivity is low.

Ways People Bully
There are numerous ways a bully can torture a target at work.  Approximately 70% of workplace bullies are supervisors. The following are things that employers should watch for during interactions between all employees, especially managers and those under their supervision:
  • Verbal abuse, shouting, swearing
  • Unjustified criticism or blame
  • Purposeful exclusion from activities
  • Ignoring work and ideas
  • Humiliation, embarrassment
  • Practical jokes

The best way for an employer to protect employees is awareness of how employees are interacting with each other. Bullying patterns in employee exchanges may indicate that a person is a repeat offender of some of the above list, if not all.

Strategies for Curtailing Bullying
Employers should take several steps to creating a bully-free workplace. The first step is to meet with a business attorney to develop an anti-bullying policy. Next, it is important to provide employee education and awareness. Train managers to watch for the signs and symptoms of bullying, and instruct managers regarding how they can help protect employees. Educate all employees about the company’s stance on workplace bullying. Make sure to impress upon employees that the company sincerely wants to know if they are being bullied and that steps will be taken to mediate the situation. It is vital that employers not create a hostile work environment by unwittingly rewarding bullies. Employers should treat all bullying claims seriously. Investigation and documentation of claims is very important.

About 20% of bullying turns into harassment. Once it reaches that point, the employee being targeted can sue the company. By creating policies that work to prevent bullying, a company can protect itself and its employees.

Conflict Management at Iowa. (December 14, 2010). The University of Iowa. Retrieved April 29, 2013 from
Results of the 2007 WBI U.S. Workplace Bullying Survey. (n.d.) Workplace Bullying Institute.
Workplace Bullying. (n.d.)Bullying Statistics. Retrieved April 29, 2013 from

Tuesday, April 30, 2013

Accountable Care Organizations

Since the implementation of the Affordable Care Act (ACA), the healthcare world has been inundated with new ideas, new laws, and a lot of change. One interesting part of the ACA that is not getting much attention is the formation of Accountable Care Organizations (ACOs) nationwide.  The objective of the formation of an ACO is to combine different areas of medical care into one functioning organization that allows providers to work together to treat patients in the most efficient and cost effective way and rewards the providers for their teamwork.  

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The ACA includes incentives to form ACOs in an effort to cut costs to Medicare. Centers for Medicare and Medicaid Services (CMS) estimates that patients taking advantage of an ACO will accrue approximately $960 million in savings for Medicare over three years. The savings comes from patients seeing doctors who are members of the same ACO and work together to streamline care. Duplicate testing and unnecessary procedures are avoided, and patients are well taken care of by doctors who are in constant communication. Two out of three Americans over 65 have multiple chronic conditions. These patients benefit the most from care provided by an ACO. Coordinated care leads to fewer mistakes, better coordination of care, and less hospital readmissions due to poor follow up care.

The ACA is attempting to turn the healthcare industry away from a purely fee-for-service system to a system that operates with more efficiency and less redundancy of work. In an ACO structure, physicians are rewarded for value and meeting pre-set standards in quality instead of being rewarded solely for volume of medical care. ACOs combine fee-for-service, care management, and performance incentives.

Opponents of ACOs are concerned that they too closely resemble the HMOs of yesterday. The biggest difference between the two is the lack of network in the former. ACO patients are not required to visit doctors that are in their ACO. They are free to visit any doctor that accepts their insurance. However, staying in the ACO network benefits patients because all of their doctors are working cohesively for the best possible healthcare outcome.

Providers are seeing numerous benefits for forming an ACO or joining an already existing one. The foremost advantage is the shared savings. When an ACO meets quality benchmarks and the cost-of-care falls below the established threshold, the entity then gets a portion of the savings. There are 33 measures in 4 domains that an ACO must hit. In the first year, an ACO is paid for reporting, and in the second and third years they receive incentives for reporting and performance.

While ACOs are still in the early stages of growth, the number is steadily climbing. Currently there are a total of 428 ACOs in 49 states. They still serve mostly Medicare patients, but the numbers of those for privately insured patients are growing as well. Unlike Medicare ACOs, private ACOs have a good bit more flexibility. However, they do serve the same purpose—sharing savings by joining together to provide coordinated quality care.

There is concern that ACOs that dominate the healthcare landscape in any particular area, especially rural areas where there are few healthcare choices, can be considered a monopoly. This was taken into consideration, and the same day that CMS established the rules for ACOs, the Justice Department and Federal Trade Commission also issued rules that allow a certain amount of consolidation for health care groups. If you are a physician looking for more information on establishing an ACO, refer to the CMS website for rules and regulations and contact your healthcare attorney.

Accountable Care Organizations (ACO). (March 22, 2013.) Centers for Medicare and Medicaid Services. Retrieved April 18, 2013 from
Accountable Care Organizations: Improving Care Coordination for People with Medicare. (March 12, 2012). Health Retrieved April 18, 2013 from
Bouchard, Stephanie. (November 22, 2011.) NCQA Releases ACO Guidelines. Healthcare IT News. Retrieved April 18, 2013 from
Muhlestein, David. (February 19, 2013) Continues Growth of Public and Private Accountable Care Organizations. Health Affairs Blog. Retrieved April 18, 2013 from

Wednesday, April 24, 2013

Freelance Part 3: Working as an Independent Contractor

In the last two posts Pros and Cons of Hiring Independent Contractors and The Legal Aspects of Independent Contractors we have looked at the pros and cons and the legal aspects of hiring freelancers. This post will address the issues that face individuals working as independent contractors.

The number of freelancers in the United States is rapidly rising. With the economy still shaky and layoffs still a concern for many, the idea of being an independent contractor is extremely appealing. While there are benefits, there are also drawbacks. It is important to explore all facets of being an independent worker before taking the plunge into self-employment.

The biggest drawback that prevents people from becoming a freelancer is the lack of benefits. When an employee is hired by a company, they normally receive benefits like health insurance, a 401K, and paid vacation days. Independent contractors are not allowed any of those perks. Employees often do not realize how much their employers pay in insurance, retirement and time-off. For many it is impossible to afford private health insurance and they do without.

Instability is another major concern for independent contractors. Working on a project-by-project basis can be extremely stressful. It is helpful to have a network of contacts, as well as an understanding of  the importance of self-promoting. In order to maintain a constant workload, freelancers often have to work hard to find clients. The money also comes in much more sporadically, and it can be difficult for someone who does not save and budget. There is also the issue with not getting paid at all.

The nature of the client/independent contractor relationship is inherently different than the employee/employer relationship. There is much less supervision and training, and if there is no work, there is no payment. There is also no recourse for discrimination in the workplace, since an independent contractor is a business, not an employee. Freelancers must also pay their own professional fees and keep up any licensures with no help from an employer.

Having a good attorney and a good accountant are important for any independent contractor. The attorney can assist in creating contracts, as well as provide guidance for intellectual property issues. They can also assist in recouping any outstanding debts owed from clients. They will provide guidance in determining the structure of your business. It is possible that being an LLC, or PLLC, is a good idea. The accountant is vital in helping to understand the taxes and paperwork involved in being an independent contractor. They will help to determine what can and cannot be used as deductions, and hopefully help to avoid an audit.

Most freelancers will admit they work much harder than they ever did as an employee. However, for many the benefits outweigh the risks. Having more control over scheduling and projects, as well as being your own boss, is the perfect solution for many. It is important to do research to determine if it is the right move. Carefully weigh the costs, benefits, and your own motivation. With a good accountant and lawyer helping guide the way, working as a freelancer can be very satisfying and profitable.

Beesley, Caron. Starting a Freelance Business—How to Take Care of Legal, Tax and Contractual Paperwork.(July 18, 2012). SBA.GOV. Retrieved March 31, 2013 from

Branch, Allan. (January 18, 2012) 6 Tips to Avoid IRS Audits for Freelancers. Freelance Switch.  Retrieved on March 31, 2013 from

Independent Contractor (Self Employed) or Employee? (January 10, 2013) IRS.  Retrieved on March 31, 2013 from

Friday, April 19, 2013

Freelance Part 2: The Legal Aspects of Independent Contractors

The pros and cons of hiring independent contractors were discussed in the Pros and Cons of Hiring Freelancers. Today we will look at the legal aspects of employing this type of worker.

The biggest issue with using freelancers is that it puts the government and the employer at odds. Both are looking for ways to impact their bottom line. The government wants the taxes associated with traditional employees and the company wants to avoid paying those taxes. In this case, more money in the employer’s pocket means less in Uncle Sam’s. It is important to be aware of how the government classifies independent workers.

Different agencies give varying verbiage outlining the definition of an independent contractor, but they all provide the same basic guidelines. It is important to avoid giving the IRS, or any other agency, any reason to conduct an audit. Understanding the following guidelines is key in ensuring that all freelancers remain classified that way.

An Independent Contractor…
--May earn either a profit or a loss from a job
--Uses their own tools and/or materials
--Is paid by the job or project
--Is hired to do a specific job or project
--Has multiple employers, or clients
--Pays their own expenses
--Sets their own hours
--Works on their own, with little training or management
--Completes jobs by their own means to achieve the desired end result
--Maintains their own work space
--Has a contract with the client

An Employee…
--Can be fired at any time and has the right to quit without liability
--Is paid by the hour or receives a salary
--Receives instruction and training
--Works full time
--Is managed closely and has a set way to complete the job
--Receives benefits such as worker’s compensation, health benefits, and   unemployment.

Again, there is not a strict set of rules that separates independent contractors from traditional employees. The Department of Labor states that it “depends upon circumstances of the whole activity.”

Being audited and found to have misclassified workers can cripple a company financially. The IRS assesses for payroll taxes plus interest, but can also recoup for the employee’s portion of the income taxes plus interest. The employee that was misclassified can also file paperwork for Uncollected Social Security and Medicare Tax on Wages.” Add in all the fees, lost time, and loss of productivity resulting from the audit, and the total bill will be in the thousands.

Red flags that the IRS watch  for include an independent contractor that tries to collect unemployment, file worker’s compensation, or files their own taxes wrong. Obtaining a 1099 from the freelancer for tax purposes and being very clear that they are not eligible for any employee benefits is important.

The classification of any independent contractor should be discussed with your attorney. Assigning the proper designation at the onset of employment, while perhaps slightly more costly in wages or benefits, is imperative for the health of the company.

Independent Contractor (Self Employed) or Employee? (January 10, 2013) IRS.  Retrieved on March 31, 2013 from

Small Business/Self Employed: When IRS Trouble Comes. (n.d.) Tax Law. Retrieved on March 31, 2013 from
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