Little Health Law Blog

Ringing in the New Year in Compliance with the Equal Pay Act

December 31, 2020 | Little Health Law

Welcome to the fifth and final of our business and healthcare law firm’s holiday-themed blog posts. We hope you have enjoyed this holiday season so far and have a great time ringing in the new new-years-eve-hero-300x300 year tonight. Happy 2021!

Many of our healthcare provider and healthcare business clients own their businesses and employ many individuals. Being an employer carries with it numerous statutory and regulatory obligations. As legal counsel, we often take the role of advising our healthcare employer clients on employment matters. Herein, we discuss the requirements placed on employers by the Equal Pay Act (“EPA”), which attempts to eliminate gender discrimination in pay.

At 29 U.S.C. § 206(d)(1), the EPA provides: “No employer having employees subject to any provisions of this section shall discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” To avoid violating the EPA, it is useful to analyze what must be proven if an employer is accused of violating the EPA.

It’s beginning to look a lot like . . . we need a Declaratory Judgment

December 22, 2020 | Little Health Law

Welcome to the fourth of our business and healthcare law firm’s holiday-themed blog posts. We hope you are enjoying this holiday season despite the challenges COVID-19 presents. In this 104907278_christmasargument week’s post, we discuss the propriety of declaratory judgments as a litigation tool.

Many of our healthcare provider and healthcare business clients are in complex business relationships with other persons or entities. Within such relationships, it is common for the parties to have questions on whether proposed actions would violate the legal parameters of the business relationship. When these questions arise prior to any action being taken, state and federal courts generally provide a mechanism for the parties to seek a decision on the legality of the prospective action; the mechanism is an action for a declaratory judgment.

Declaratory Judgment Acts

“The Theme I’ve Been Waiting for All My Life”: CMS’ Proposed Rule Promoting Electronic Access to Health Information

December 11, 2020 | Little Health Law

Welcome to the third of our business and healthcare law firm’s holiday-themed blog posts. This week’s post is inspired by my favorite holiday movie, A Christmas Story, and the eloquent words websiteshowart15167-300x300 Ralphie wrote: “A Red Ryder BB gun with a compass in the stock, and this thing which tells time.” Analyzing Ralphie’s literary genius, he gave Miss Shields three enticing facts: the main description, a vital component, and an interesting addition. Following suit, I will provide three enticing facts of CMS’ new proposed rule.

First, the shortened name of the rule is: “Reducing Provider and Patient Burden by Improving Prior Authorization Processes and Promoting Patients’ Electronic Access to Health Information.” According to CMS, the purpose of the proposed rule is “[t]o drive interoperability, improve care coordination, reduce burden on providers and payers, and empower patients.” The ingenuity of the proposed rule stems from the fact that it is not only designed to grant patients better access to their records; it is designed to grant all vital parties’ necessary access to records—meaning patients, payors, and providers.

Second, the new rule requires each payer to use an Application Programming Interface (“API”) that allows each payer’s system to communicate with other payers. The new rule also does not require patients to request the transfer of claims data. As such, a patient’s new payer will have access to all of his or her claims data almost immediately upon enrollment. Importantly, on the new API, payers can send “patient claims, encounter data, and clinical data directly to providers[].” Verma, Seema, Reducing Provider and Patient Burden and Promoting Patients’ Electronic Access to Health Information, CMS.gov (Dec. 10, 2020).

12 Days of the Georgia Composite Medical Board

December 4, 2020 | Little Health Law

Welcome to the second of our business and healthcare law firm’s holiday-themed blog posts. As I am sure we all noticed during 2020, many people took the opportunities presented this year to relocate. Study: Pandemic Spurred a Wave of Relocations, Washington Post (July 3, 2020). I heard from many who always wanted to move, generally to be closer to family, and finally decided to take the plunge once the shutdown began.

When physicians and other medical professionals choose to move to a new state, there is a process that must be completed. As attorneys who assist physicians and other medical professionals with licensing, we assisted many physicians this year who desired to move to Georgia and acquire the proper license to work here. Given that we will likely continue to see this behavioral trend, we wish to, herein, acquaint non-Georgians and Georgians alike with Georgia’s medical professional licensing board by providing the following 12 facts:

The licensing Board in Georgia is known as the Georgia Composite Medical Board (“GCMB”).

Let’s Talk Turkey…Considering Federal Age Discrimination Laws Before Reducing Your Healthcare Work Force

November 25, 2020 | Little Health Law

Welcome to the first of our holiday-themed (at least in title) blog posts. As we approach the holidays at the conclusion of a financially challenging year, cost savings may be on the minds of many index healthcare business owners. Healthcare employers may be considering—or have already considered—measures to save money and reduce payroll. 2020 was a difficult year for most businesses, and reducing payroll is an oft-appealing way to reduce expenses. Frequently, a business’s highest paid earners are also among the older employees. That fact prompts a look at the Age Discrimination in Employment Act of 1975 (“ADEA”) prior to making any employment decisions, such as eliminating positions.

For healthcare employers with 20 or more employees, the ADEA governs and makes it an unlawful employment practice to “discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623. The regulations create a protected class for individuals who are “40 years or older.” 29 C.F.R. § 1625.2. To be certain, the ADEA and accompanying regulations do not require preferential treatment of employees over 40, and “[f]avoring an older individual over a younger individual because of age is not unlawful discrimination.” Id.

An employee establishes a prima facie case of age discrimination by showing he or she “was (1) a member of the protected age group, (2) subjected to an adverse employment action, (3) qualified to do the job, and (4) replaced by or otherwise lost a position to a younger individual.” Johnson v. Unified Gov’t of Athens-Clarke Cnty., 209 F. Supp. 3d 1335, 1341–42 (M.D. Ga. 2016). The fourth prong, however, is generally not satisfied when it comes to position eliminations because the older employee was not replaced by anyone. See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.2d 1264, 1271 (11th Cir. 2014). The law accounts for this by altering the fourth prong in “reduction in force” cases, requiring the employee to “present sufficient evidence from which a reasonable jury could find that the employer intended to discriminate on the basis of age through its employment decision.” Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1459 (11th Cir. 1997). One such “method of establishing a nexus between age discrimination and adverse employment action is by statistical proof of a pattern of discrimination.” Pace v. S. Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983).

Breach of Contract Under South Carolina Law

November 18, 2020 | Little Health Law

South Carolina law recognizes breach of contract as a valid legal claim creating liability for the breaching party and damages for the non-breaching party. Before there can be a breach, ho 051320015647-300x188 wever, a party must establish a valid contract. A contract is created when there has been an offer identifying a “bargained for exchange,” acceptance of that offer, and an exchange or promise to exchange valuable consideration. Sauner v. Public Serv. Auth. of S.C., 581 S.E.2d 161, 166 (S.C. 2003). Once a contract has been created, both parties are bound by their duties thereunder.

Sometimes, however, a party stops performing his or her duties under the contract. He or she may communicate to the other party a desire to stop performing some or all duties or may simply stop performing all together. This is considered a breach of the contract. There can be many reasons for breach, including a disagreement between the parties or external circumstances that interfere with a party’s ability to perform.

The question, then, is what to do when one party stops performing. The first step is to look for an answer in the contract itself—did the parties agree to what happens in this situation? For example, if the non-performance is caused by some external factor out of the parties’ control making it more difficult than anticipated to perform, the contract may include a provision excusing a parties’ non-performance.

Telework as a Reasonable Accommodation During the COVID-19 Pandemic: Part 2—Telework as a Reasonable Accommodation

November 3, 2020 | Little Health Law

Last week, we posted Part 1 of this blog series. Therein, you will find a discussion of employment discrimination laws that are potentially triggered when an employee requests to telework for tixeo-virtual-openspace-300x202 health, safety, or disability reasons. In Part 2, we examine how the state of businesses during the COVID-19 pandemic impacts the discussion of whether telework is a reasonable accommodation.

For many years, employers have asserted that regular attendance at the job site is an essential job function, and employers have often been successful with this argument and, consequently, avoided providing telework as a reasonable accommodation. See, e.g., EEOC v. Ford Motor Co., 782 F.3d 753, 775 (6th Cir. 2015) (collecting cases). Prior guidance from the Equal Employment Opportunity Commission (“EEOC”) stated that considerations as to whether telework is a reasonable accommodation “include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.” Work at Home/Telework as a Reasonable Accommodation, EEOC Guidance (Feb. 3, 2003). Because of the spread of COVID-19, many businesses have now operated on a telework model and done so successfully. In fact, the Brookings Institute suggests up to half of American workers were working from home in April of this year. Telecommuting Will Likely Continue Long After the Pandemic, Brookings Institute (Apr. 6, 2020). Now that teleworking has been widely, and often effectively, used, the conversation around teleworking as a reasonable accommodation has evolved.

In September, the EEOC offered its guidance on the subject. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Sept. 8, 2020). Therein, the EEOC recognized, “There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19.” Id. § D.1. An employer, however, is not automatically required to grant telework as a reasonable accommodation simply because the employee was allowed to telework for the purpose of slowing the spread of COVID-19. In sum, “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.” Id. § D.15. If the employee has such a limitation and teleworking is a reasonable accommodation, the employer must show telework imposes an undue hardship.

Telework as a Reasonable Accommodation During the COVID-19 Pandemic: Part 1—Overview of Reasonable Accommodation Laws

October 28, 2020 | Little Health Law

As mandatory work-from-home restrictions related to COVID-19 relax, many employees have asked to continue working remotely to protect themselves and their families. Understandably, many csm_FlatDesign-Telework_c532b56131-300x196 employers are unsure how to respond to such requests on both a practical and legal level. This two-part series addresses some legal considerations for employers and employees regarding teleworking as a way to minimize health risks posed by COVID-19 for individuals with disabilities. In Part 1, herein, we provide an overview of the reasonable accommodation laws protecting an employee with a disability.

Whether an employer is required to allow an employee to telework to accommodate a disability triggers the Rehabilitation Act and the Americans with Disabilities Act. Both Acts prohibit employers from discriminating against an otherwise qualified individual with a disability. 42 U.S.C. § 12112(a); 29 U.S.C. § 794(a). Discrimination includes failing to reasonably accommodate an employee with a disability. 42 U.S.C. § 12112(b)(5).

Qualified Individual with a Disability

What Are Your Options When a Negative Reference Costs You a Job?

October 12, 2020 | Little Health Law

Your reputation as a medical provider is a commodity you must protect, especially regarding your aptitude for providing patient care. Of course, you may not be a perfect fit at every medical practice. When that happens, your employment may end, and you seek other employment. No harm, no foul.

But what happens when your past employer provides a negative reference to your prospective employer? Worse still, what if the reference falsely criticizes your competence as a medical provider? And what if that false reference costs you the position? Your past employer may be guilty of engaging in improper behavior providing you a remedy at law.

Defamation

5 Tips for a Non-Physician Closing a Medical Practice in Georgia

October 8, 2020 | Little Health Law

If you are a non-physician owner of a medical practice, you may wonder what requirements govern the process of closing your small business. Our Georgia-based business and healthcare law firm assists medical practice owners with set up, a variety of business transactions, dissolutions and wind-down of the business. Medical licensing rules do not necessarily govern the non-physician owner, but there are potential obligations all owners should be aware of.

First, Retain Patient Medical Records.

Assuming the medical practice owns at least certain patient medical records, Georgia law requires the medical practice to maintain medical records for ten years from the date of creation and make those records available to patients upon request. O.C.G.A. § 31-33-2(a)(1)(A). There are exceptions to the ten-year rule. For instance, a provider who is retiring or selling his or her practice is excepted if the provider completes certain tasks, including notifying the patients of the impending retirement or sale and offering to provide each patient’s records to another provider of the patient’s choice and, if requested, the patient. O.C.G.A. § 31-33-2(a)(1)(B)(i). There are possible vendors with whom you may contract to assume this responsibility, if desired. And if the medical records are electronic medical records (“EMR”) controlled by a third-party vendor, the vendor’s contract should be carefully reviewed and followed, subject to Georgia law requirements.