Little Health Law Blog

4 Tips on Initiating an EEOC Action and COVID-19 Delays

May 19, 2021 | Little Health Law

As a healthcare and business law firm, we work with many employers and employees to prevent, resolve, and, if required, litigate employment matters. When the underlying issue alleged is iStock-928775258-300x200 discrimination in the workplace, the law grants the employee a required process for investigating the matter through the Equal Employment Opportunity Commission (“EEOC”). The federal laws enforced by the EEOC apply to employers with 15 or more employees (20 in age discrimination cases) and make it unlawful to discriminate against a person based on race, color, religion, national origin, sex, pregnancy, age, disability, or genetic information. The laws also generally make it unlawful for an employer to retaliate against an individual for reporting discrimination or participating in the EEOC process. If an employee believes her employer has unlawfully discriminated and the parties are unable to resolve the matter among themselves, the employee may wish to file a lawsuit against the employer. Before doing so, however, the employee must exhaust her administrative remedies by initiating an action with the EEOC.¹

Initiating EEOC Action

Charge of Discrimination

CMS’ Interoperability and Patient Access Final Rule Soon to Be Enforced

May 12, 2021 | Little Health Law

On May 1, 2020, the Centers for Medicare and Medicaid Services (“CMS”) published final rule CMS-9115-F known as the Interoperability and Patient Access final rule. “This final rule is the first ehrsiner_770-300x200 phase of policies centrally focused on advancing interoperability and patient access to health information.” 85 Fed. Reg. 25511. CMS states that this rule “puts patients first by giving them access to their health information when they need it most, and in a way they can best use it.” Policies and Technology for Interoperability and Burden Reduction, CMS.gov. The rule requires coordinated communication between patients, providers, and payers. These changes largely require the use of improved and updated technology, and CMS provides implementation support here. Although many of the requirements under the final rule went into effect on January 1, 2021, because of the hardships posed by COVID-19, “CMS will not enforce these requirements until July 1, 2021.” Id.

Payors carry the brunt of this regulatory change. Without detailing all requirements under the rule, a few are as follows. CMS-regulated payors must maintain a secure, standards-based application programming interface (API) that will support the exchange of patient electronic health information (“EHI”). These payers must also maintain a patient-facing API allowing patients to access their EHI, including information about claims and costs, and make provider directory information publicly available through an API. Further, payors are required to implement a process for exchanging data, which is not required until January 1, 2022.

Governed hospitals will soon have a duty to send event notifications of a patient’s hospital “admission, discharge, and/or transfer to another healthcare facility or to another community provider or practitioner” to “improve care coordination.” Interoperability and Patient Access Fact Sheet, CMS.gov (Mar. 9, 2020). CMS-regulated providers are encouraged to register all interoperability digital contact information through the National Plan and Provider Enumeration System (NPPES). A list of providers who fail to do so will be publicly available as a way to incentivize compliance. Landi, H., CMS’ New Interoperability Rule Requires Major Changes for Payers, Hospitals. Here are 6 Key Elements, Fierce Healthcare (Mar. 9, 2020).

3 Code Sections that Define a Georgia Chiropractor’s Scope of Practice

May 5, 2021 | Little Health Law

Our last blog post provided an overview of the Georgia Board of Chiropractic Examiners (“3 Aspects of the Georgia Board of Chiropractic Examiners”). Now, we wish to provide an overview of the scope of practice for chiropractors in Georgia. As mentioned in the last post, the main rules covering the practice of chiropractors in Georgia are found in Title 43, Chapter 9 of the Georgia Code. To begin to understand the scope of practice of a Georgia chiropractor, there are three main code sections we look to: O.C.G.A. § 43-9-1, 43-9-12.1, and 43-9-16.

O.C.G.A. 43-9-1 defines “Chiropractic” in subsection (2) as “the adjustment of the articulations of the human body, including ilium, sacrum, and coccyx, and the use of X-ray, provided that the X-ray shall not be used for therapeutical purposes. . . .”

O.C.G.A. § 43-9-12.1 provides in part:

3 Aspects of the Georgia Board of Chiropractic Examiners

April 28, 2021 | Little Health Law

Our healthcare business law firm works with many chiropractors on licensure and compliance matters. The rules governing chiropractors are not found within Georgia’s Medical Practice Act, and unnamed chiropractors are not governed by the Georgia Composite Medical Board (“GCMB”). See O.C.G.A. §§ 43-34-22, 43-9-2. Rather, the chiropractic rules are found in Title 43, Chapter 9 of the Georgia Code, which create the Georgia Board of Chiropractic Examiners (“GBCE”). During our 2020 holiday blogging, we blogged about the GCMB (“12 Days of the Georgia Composite Medical Board”) providing an overview thereof. Herein, we will provide a similar (albeit less holiday themed) overview of the GBCE. A forthcoming blog will focus on the scope of chiropractic practice in Georgia.

Scope

If you are a chiropractor, or doctor of chiropractor, or D.C., in Georgia, you are familiar with the GBCE. Under Georgia Code section 43-9-6.1, the GBCE is authorized to:

The National Practitioner Data Bank and Medical Board Reports

April 12, 2021 | Little Health Law

Every medical practitioner is familiar with the National Practitioner Data Bank (“NPDB”). Under federal regulations, eligible entities report to or query the NPDB. State medical boards report images adverse licensure actions to the NPDB. This includes such actions as a denial of a licensure application or voluntary surrender of a medical license. Sometimes, however, the information reported to the NPDB is inaccurate in whole or in part. Inaccurate reports can have serious adverse impacts on a medical provider’s ability to practice, maintain privileges, or gain licensures. Our healthcare law firm works with healthcare provider clients to try and correct their NPDB record when the provider believes the information provided by a medical board is inaccurate using statements and correction reports.

Submitting a Statement

The NPDB allows practitioners to submit statements at any time to explain or supplement a report. According to the NPDB, the statement is the provider’s “opportunity to provide additional information [the provider] would like included with the report.” A statement does not correct or void a reporting by a medical board, but it is a useful tool for a provider to explain an adverse licensure action when that is necessary. Further, statements can be submitted or edited at any time, so the efficiency of a statement makes it a useful tool even if the provider is also asking a medical board to submit a correction report.

Appealing an Adverse Georgia Superior Court Decision

March 25, 2021 | Little Health Law

Our healthcare and business law firm works with many clients who are involved in litigation. Cases begin by one party bringing an action (the “Plaintiff”) against another party (the “Defendant”) in unnamed-300x247 either a state or federal court. Generally speaking, cases begin at the trial court level; in Georgia, that is State or Superior Court or, if federal, District Court. The cases proceed and the judge or a jury makes a decision on the merits of the case. But what happens if the decision is adverse to your position? What is your recourse? The answer generally is to appeal the decision. This post outlines the basic steps and requirements around appealing a decision or ruling from a Georgia Superior Court.

Appealable Rulings/Decisions

If the judge in your superior court matter issues a decision, the first step is to determine whether it is appealable. Typically, only final decisions are appealable (those that dispose of the entire matter), which makes sense “to avoid piecemeal or fragmented appeals.” Dep’t of Transp. v. Douglas Asphalt Co., 677 S.E.2d 728, 730 (Ga. Ct. App. 2009). Georgia Code section 5-6-34 provides the rules around when a ruling of the superior court is directly appealable. A few of the appealable decisions are: “(1) All final judgments, that is to say, where the case is no longer pending in the court below . . . ; (4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions.” If you wish to appeal a decision not listed, the Georgia code allows the trial court to certify a decision for immediate appeal. O.C.G.A. § 5-6-34(b). If the decision you wish to appeal is not listed in section 5-6-34, you may still be able to file a discretionary appeal directly in the Court of Appeals following section 5-6-35.

2 Tactics for Negotiating Malpractice Insurance in Physician Employment Contracts

March 1, 2021 | Little Health Law

Our last blog post outlined 3 Practical Questions for Providers to Consider Before Signing an Employment Agreement. In this post, we focus on a question that is at the forefront of our physician- medical_malpractice_legal_terms-300x169 client’s mind when evaluating employment opportunities: “Am I responsible for paying for tail insurance coverage?” As a healthcare and business law firm, we routinely assist physicians in negotiating terms of employment agreements. Through our experience, we have developed tactics for negotiating compromises to the structure of tail insurance coverage agreements, and, herein, we share those tactics.

What is Tail Insurance?

During a physician’s employment, the employer generally acquires and pays for malpractice insurance covering the physician. But what happens when a claim is brought against a physician after her or his employment ends but for actions taken during the employment? The answer depends on the type of liability insurance purchased.

3 Practical Questions for Providers to Consider Before Signing an Employment Agreement

February 17, 2021 | Little Health Law

As a healthcare and business law firm, we routinely review and analyze employment agreements for physicians and other providers both when negotiating an agreement and after a dispute has 20150713_Contract_SS_144478477 arisen. Through our experience, we have developed tips and learned what is common, what is likely to cause disputes, and what is important in a practical sense for our provider clients. This post intends to outline three practical questions we believe important for our provider clients to consider when reviewing employment opportunities.

Question 1: Can I Complete all Contingencies Prior to my Start Date?

First things first, as a physician or other medical provider, you will necessarily be required to hold licenses, certifications, memberships, hospital privileges, provider numbers, etc. prior to providing services. Especially for providers just completing training, it is important the agreement allows you sufficient time to complete all contingencies before employment begins. If you are hesitant about your ability to complete the requirements before the start date written in the contract, there are changes to the contract you may be able to request, although there is no guarantee the employer will accept. First, you can request a later start date to give you sufficient time. Second, you can ensure there is language recognizing that the parties may agree on a later start date without terminating the agreement. Although the parties almost always have the option to modify contract terms, including language specifically referencing the ability to modify the start date is useful to set clear expectations. In our experience, clear expectations help avoid future disputes.

Contract Pitfall #1: Using an Incorrect Entity Name

February 9, 2021 | Little Health Law

As a healthcare and business law firm, we have many business entity clients. It is common for business-minded individuals to operate multiple registered companies. When entering business contract-300x200 contracts, it is easy for the entity name to be mistyped, written in an abbreviated or well-known form, or somehow written incorrectly, especially for those individuals operating many similar entities. There is generally no substantial penalty for such an error, however, it can cause unnecessary trouble should a contract dispute arise, including placing the rights, duties, and liabilities under the contract on the individual who signed as the nonexistent entity. This post intends to alert our business readers of this easily avoidable pitfall and provide an overview of how Georgia courts handle such situations.

To start, the best practice is to sign business contracts using your businesses registered name. To verify the full and correct business name of your entity in Georgia, you can visit Georgia’s Secretary of State website.

If, however, the contract has been signed by an individual purportedly acting on behalf of a nonexistent entity, the general standard is: “[A]n undertaking by an individual in a fictitious name is the obligation of the individual.” Courtland Hotel, LLC v. Salzer, 767 S.E.2d 750, 752 (Ga. Ct. App. 2014). Put another way, if you sign as a fictitious entity, you undertake the responsibilities agreed to by the fictious entity.

Clinical Laboratories & COVID-19: Guidance for Record Retention and Sharing

February 1, 2021 | Little Health Law

As a healthcare and business law firm, we assist many clinical laboratories in compliance and regulatory matters, and because of COVID-19, Georgia has seen a rise in the number of clinical lab-testing-adobe-stock-300x200 laboratories. A compliance question faced by many of our clients, particularly those who conduct COVID-19 testing, is how to properly maintain and share patient records. Herein, we note some of the rules around retaining and sharing patient records under Georgia law for clinical laboratories.

Record Retention

Georgia Code, Title 31, Chapter 22 provides rules for Clinical Laboratories. For entities that meet the definition of “clinical laboratory,” section 31-22-4(f) provides that “[r]ecords involving clinical laboratory services and copies of reports of laboratory tests shall be kept for the period of time and in the manner prescribed by the department.” The department refers to the Georgia Department of Community Health (“DCH”). DCH’s rules require reports of “all clinical laboratory services, including records of laboratory test requests and reports” to be retained for at least two (2) years for general laboratory records and quality control records, at least five (5) years for records of immunohematology and cytology, and at least ten (10) years for surgical pathology records. Rule 111-8-10-.26.