Little Health Law Blog

Employee’s Right to Federal Injunctive Relief Pending EEOC Action in Eleventh Circuit

June 16, 2021 | Little Health Law

As a healthcare and business law firm, we work with many healthcare employers and employees to resolve employment disputes. When disputes involve the civil rights of the employee, the Equal eeoc-gavel-new-300x250-1 Employment Opportunity Commission’s (“EEOC”) administrative process may be triggered. For instance, if an employee alleges discrimination based on sex or race under Title VII, the employee is required to file a Notice of Charge with the EEOC and allow the EEOC to review the charge for at least 180 days. After 180 days passes, the EEOC may issue the complainant-employee a Notice of Right to Sue, and then, the employee may file a federal lawsuit. Sometimes, however, the employee fears continued discrimination or retaliation from initiating the EEOC action. Can the employee bring an injunction in federal court enjoining the employer from discriminating or retaliating? This post intends to outline the Eleventh Circuit’s stance on this question. If you have questions regarding this blog post or employment matters, including unlawful discrimination in the workplace, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com.

At the outset, anti-discrimination laws generally provide equitable relief as a remedy. See, e.g., 42 U.S.C. § 2000e-5(g)(1). Further, the EEOC may move a federal court for an injunction pending the EEOC’s investigation. As recognized by federal courts, the EEOC taking such an intervening step requires many moving parts. In Drew v. Liberty Mut. Ins. Co., the Fifth Circuit painted a picture that that the complainant “would have to be fortunate enough for her complaint with EEOC so to divert the attention of the staff from its overwhelming burden of cases to distinguish it as one which demanded immediate attention, resulting in the preparation and filing of a suit by staff attorneys pending the usual course of processing the complaint before she would ever be able to act on her own to seek an end to the irreparable damage she was suffering. 480 F.2d 69, 74 (5th Cir. 1973). This begs the question—can the private employee move for an injunction pending the EEOC action?

Circuit courts are split on this issue. See David Tecson, Federal Remedies in Employment Discrimination Actions, at 6-7 (2007). The Eleventh Circuit precedent comes from the Fifth Circuit case in Drew, which is binding on the Eleventh Circuit because it was decided prior to 1981. In Drew, the court stated: “We conclude that in the limited class of cases, such as the present, in which irreparable injury is shown and likelihood of ultimate success has been established, . . . the individual employee may bring her own suit to maintain the status quo pending the action of the [EEOC]. . . .” Although circuits and even district courts within the Eleventh Circuit have disagreed with this stance, the present rule is that in limited circumstances, the employee may move for an injunction pending the EEOC action. As an example of disagreement, in McGee v. Puralator Courier Corp., 430 F. Supp. 1285, 1286-88 (N.D. Ala. 1977), the Northern District of Alabama disagreed with Drew in part because the EEOC requirement was a jurisdiction bar to bringing suit at that time. In 2019, the Supreme Court resolved the jurisdictional split on that issue and found exhausting the EEOC process was not a jurisdictional bar. Fort Bend Cnty., Texas v. Davis, 139 S.Ct. 1843 (2019). In 1984, the Eleventh Circuit, after splitting with the Fifth Circuit, summarily affirmed a Northern District of Georgia case applying Drew to a case involving a federal employee. Goza v. Bolger, 538 F. Supp. 1012, 1017 (N.D. Ga. 1982), aff’d, 741 F.2d 1383 (Table) (11th Cir. 1984). Although there is disagreement over the ability of an individual to bring a suit for injunctive relief pending an EEOC charge, it seems that it is available in limited circumstances in the Eleventh Circuit.

The Impact of COVID-19 & HB 307 on Telemedicine in Georgia

June 7, 2021 | Little Health Law

As a healthcare and business law firm, we work with may healthcare providers and employers who wish to integrate telehealth into their business models and, understandably, have questions. 4-300x169 What is telehealth versus telemedicine? What laws and rules govern the practice of telemedicine? Has COVID-19 impacted telemedicine? Etc. This post intends to outline some of the rules and laws relevant to practitioners, including the impact of HB 307 on telehealth in Georgia. If you have questions regarding this blog post or telehealth, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com.

As an initial matter, telehealth and telemedicine are distinct terms. Telemedicine is a subset of telehealth. The definitions of both are found within Georgia’s insurance code. Telehealth is defined as “the use of information and communications technologies, including, but not limited to, telephones, remote patient monitoring devices or other electronic means which support clinical health care, provider consultation, patient and professional health related education, public health, and health administration.” O.C.G.A. § 33-24-56.4(b)(6). “Telemedicine” is defined as:

[A] form of telehealth which is the delivery of clinical health care services by means of real time two-way audio, visual, or other telecommunications or electronic communications, including the application of secure video conferencing or store and forward transfer technology to provide or support health care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care by a health care provider practicing within his or her scope of practice as would be practiced in-person with a patient, and legally allowed to practice in this state, while such patient is at an originating site and the health care provider is at a distant site.

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.