King and Ballow - Nashville

07/27/10 - WebLINE Alert: HHS Press Release HIPAA Privacy Case Settlement

The U.S. Department of Health and Human Services reports that one of the country's largest drug store chains agreed to a $1 million settlement of potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. HHS reports the company also agreed to take substantial corrective action to safeguard customer information.

Click below to read a copy of this press release:
http://www.hhs.gov/news/press/2010pres/07/20100727a.html

07/27/10 - Acceding to Patient Demand for Same-Race Provider Declared Illegal
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Providers who accede to patients’ racial preferences when making employee assignments risk violating Title VII of the Civil Rights Act. A federal court of appeals held recently that an Indianapolis area nursing home illegally discriminated against a black nursing assistant for adopting such a policy.

07/26/10 - ADA 20th Anniversary: Justice Publishes Proposed ADA Rules
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Today, marking the 20th Anniversary of the Americans with Disabilities Act, the Department of Justice published four advance notices of proposed rulemaking (ANPRM) addressing additional areas of accommodation.

07/26/10 - Pharmaceutical Sales Reps Qualify for Admin Exemption from Overtime
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Pharmaceutical companies who contend their sales reps are exempt from federal overtime pay are increasingly finding courts denying their use of the outside sales exemption. A recent federal decision may provide support for another option: the administrative exemption.

07/19/10 - Pharmaceutical Sales Reps Are Entitled to Overtime Pay
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Despite “sales rep” job titles, two recent decisions issued by a federal court of appeals warn pharmaceutical companies that their sales reps do not qualify for the outside sales exemption from the overtime requirements of the Fair Labor Standards Act (FLSA). These decisions govern federal wage practices within New York, Connecticut and Vermont, and are persuasive authority elsewhere.

07/13/10 - WebLINE Alert:
Secretary Sebelius Announces Final Rules To Support "Meaningful Use" of Electronic Health Records

U.S. Department of Health and Human Services Secretary Kathleen Sebelius today announced final rules to help improve Americans’ health, increase safety and reduce health care costs through expanded use of electronic health records (EHR).

Click below to read a copy of this news release:
http://www.hhs.gov/news/press/2010pres/07/20100713a.html

07/09/10 - WebLINE Alert: EEOC Press Release Health Delivery Inc. to Pay $45,000 to Settle EEOC Disability Discrimination Suit

A Saginaw, Michigan-based health services provider will pay $45,000 and furnish other relief to settle a disability discrimination lawsuit brought by U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that Health Delivery, Inc. unlawfully refused to return to work an employee with a record of depression even though she had completed a course of treatment and had been approved to return to work.

Click below to read a copy of this press release:
http://eeoc.gov/eeoc/newsroom/release/7-9-10.cfm

06/11/10 - NLRB Reaffirms Medical Interns and Residents are Statutory Employees
by Bruce E. Buchanan, K&B Healthcare Practice Member

Medical interns and residents, or house staff, may organize into unions. A recent decision issued by the National Labor Relations Board reaffirmed a previous decision finding medical interns and residents to be statutory employees with the right to organize. This may
signal an increase in collective bargaining attempts.

06/02/10 - WebLINE Alert:
EEOC Press Release:
National Denture Provider to Pay $150,000 to Settle EEOC Sex and Race Harassment Suit

Federal Agency Charged Affiliated Dentist Harassed Female Assistants
BOSTON – Affordable Care, Inc., a national denture provider, will pay $150,000 and furnish other relief to settle a sex and race discrimination lawsuit filed by the EEOC. The lawsuit, filed in March 2009 in federal court in Springfield, Mass., charged that Affordable Care violated federal law when its affiliated dentist, Nelson Wood, sexually and racially harassed two female employees.

Click below to read a copy of the EEOC Press Release http://www1.eeoc.gov//eeoc/newsroom/release/6-2-10.cfm?renderforprint=1

or >>Read the full article...

05/28/10 - WebLINE Alert:
FTC Extends Enforcement Deadline for Identity Theft Red Flags Rule

For more information, please click the link below: http://www.ftc.gov/opa/2010/05/redflags.sht

05/20/10 - Reporting Rudeness is Not “Protected Activity”
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Reporting incidents of “rudeness” by nursing staff and a vague accusation another nurse might need a drug test both fail to qualify as “illegal activities” under Tennessee’s Public Protection Act. This Act protects employees who are terminated for their refusal to participate in, or remain silent about “illegal activities.”

05/18/10 - Waiver of Employees’ Right to Sue Declared Invalid
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Two married paramedics may proceed in federal court with each of their separate employment disputes against a non-profit ambulance company based in Ann Arbor, Michigan, despite signing waivers to use a grievance review board as their exclusive remedy.

05/17/10 - Whistleblower Protection May Apply Before the Whistle Gets Blown
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

A hospice provider in Maryland failed to avoid liability under the state’s whistleblower protection laws by asserting the law did not apply to their termination of a nurse who made internal complaints about public safety and health before she reported those complaints to government authorities.

05/06/10 - WebLINE Alert:
OSHA Press Release:
OSHA requests information on exposure to infectious agents in health care settings, including hospitals, outpatient clinics, school clinics and correctional facilities, and settings such as laboratories that handle potentially infectious biological materials, medical examiner offices and mortuaries.

Click below to read a copy of the OSHA Press Release http://www.dol.gov/opa/media/press/osha/osha20100634.htm#

or >>Read the full article...

More information on the request for information and how to submit comments is available via the Federal Register notice of May 6, 2010 at: http://s.dol.gov/38.

05/05/10 - Workers Must Show Adverse Action to Prevail on Claim
by Max Nuyen, K&B Healthcare Practice Member

In a case that reads like a plot to a really bad television show, the U.S. Court of Appeals for the Fifth Circuit affirmed the sexual discrimination claims of several female employees who worked at a medical clinic. The court also dismissed one worker’s claim because she failed to establish she suffered any adverse employment action.

04/27/10 - WebLINE Alert:
U.S. Department of Justice Press Release:
Ex UCLA Healthcare Employee Sentenced To Federal Prison For Illegally Peeking at Patient Record

Click below to read a copy of the DOJ Press Release http://www.justice.gov/usao/cac/pressroom/pr2010/079.html

or >>Read the full article...

04/19/10 - Surprise FLSA Provision in Health Care Reform Legislation
by Bruce E. Buchanan, K&B Healthcare Practice Member

Unbeknownst to most employers and employees, the recently signed Health Care Reform bill includes new requirements under the Fair Labor Standards Act (FLSA), which are effective immediately. Specifically, employers are required to provide reasonable unpaid breaks for nursing mothers/employees. The statute does not place any limitation on the number of breaks to be provided nor their length.

04/16/10 - Doctor Loses ADA Claim
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

A Maryland hospital did not violate the Americans with Disabilities Act (ADA) when it terminated a resident doctor for failure to provide competent medical care with efficiency and reasonable autonomy. The resident, who was diagnosed with a possible Attention Deficit Disorder, was frequently behind schedule, ordered the wrong medications for patients, and failed to check up on a patient after their vital signs changed.

04/14/10 - WebLINE Alert:
EEOC Press Release: K-mart to pay $120,000 to settle an alleged age harassment, constructive discharge and retaliation action involving a pharmacist at a Honolulu store who was allegedly told she was "too old" and "greedy" for continuing to work at age 70.

Click below to read a copy of the EEOC Press Release:
K-mart To Pay $120,000 To Settle EEOC Age Bias Suit

04/08/10 - Loss of Charitable Exemption Costs Hospital $1M in Property Taxes
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Not-for-profit health care providers should ensure that their tax-exempt status is protected against scrutiny by states and other jurisdictions looking for potential tax revenues. On March 18, 2010, the Illinois Supreme Court found a Catholic-related hospital to be non-exempt under the state’s property tax code despite its non-profit corporate status and exemption from federal income tax.

04/02/10 - On-call Restrictions Did Not Entitle Nurses to Overtime Pay
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Two nurses were not entitled to overtime pay for the on-call restrictions posed by their work. While on-call, the nurses were required to carry a cell phone and pager, remain within 35 miles of Marinette, Wisconsin, return calls or pages within 15 minutes, and refrain from drinking alcohol.

04/1/10 - WebLINE Alert:
U.S. Department of Labor Wage and Hour Division Press Release:
The U.S. Department of Labor’s Wage and Hour Division has launched an initiative focusing on enforcement of the Fair Labor Standards Act for workers of Alabama and Mississippi assisted living and group home environments. “Our enforcement database shows that low-wage workers in the assisted living and group home industry are particularly vulnerable to wage violations,” said Kenneth Stripling, the Wage and Hour Division’s district director in Birmingham.

Click below to read a copy of the U.S Department of Labor Wage and Hour Division Press Release:
>>Read the full article...

04/01/10 - No Whistleblowing Protection Unless Conduct Is Clearly Prohibited
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

A medical technician, who claims he was illegally terminated for reporting incidents of safety violations affecting patient care, did not fall within Missouri’s public policy exception for wrongful discharge. The Missouri Supreme Court found the technician failed to cite any law specifically prohibiting the allegedly illegal conduct which he reported.

03/24/10 - WebLINE Alert:
13 States File Court Action in U.S. Court to Declare the Patient Protection and Affordable Care Act, HR 3590, Passed on March 23, 2010 Unconstitutional. Action filed by Attorney Generals for Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota.

Click below to read a copy of the Complaint:
Healthcare Reform Lawsuit

03/23/10 - Self-Diagnosis of Duration of Illness May Support FMLA Claim
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Employers in Pennsylvania, New Jersey, Delaware and the Virgin Islands should examine their policies under the Family and Medical Leave Act (FMLA) to recognize the more than three consecutive days of incapacity requirement for eligibility of FMLA leave may be satisfied through a combination of medical and lay evidence.

03/08/10 - Corporate Owners Held Not Personally Liable For Wrongful Termination
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Corporate owners of an occupational and physical therapy clinic in Houston, Texas were not personally liable for wrongful termination of an employee who claims she was fired for refusing to perform an illegal act.

02/22/10 - Sales Rep Exempt from Overtime Pay
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Employers, who seek to avoid overtime costs for employees who promote, but do not sell, pharmaceuticals, may find a potential option under the administrative duties exemption.

02/22/10 - California DLSE Issues Opinion Allowing Incremental Deductions from Leave Balances for Exempt Employees
by Paul Duvall, K&B Healthcare Practice Member

California employers have new options to consider in addressing exempt employees who take off work for less than a full day. Health care providers who have limited resources in time and money for their practice may find these options beneficial.

02/02/10 - WebLINE Alert:
U.S. DEPARTMENT OF LABOR'S OSHA PROPOSES RECORDKEEPING CHANGE TO IMPROVE ILLNESS DATA

Media Release from OSHA, US Department of Labor:
OSHA proposes to revise its recordkeeping regulation to restore a column to the OSHA 300 Log to record work- related musculoskeletal disorders (MSD). The 2001 Recordkeeping final regulation included an MSD column, which was deleted before the regulation became effective. This proposed rule would require a check mark in the MSD column, instead of the column currently marked, for an MSD. Proposed comments must be received by March 15.

For more information, go to this link:
http://osha.gov/pls/oshaweb/owadisp.show_document?p_
table=NEWS_RELEASES&p_id=17124 target="_blank"

For a copy of OSHA's new proposed rule and how to submit comments to it, go to this link:
http://osha.gov/pls/oshaweb/owadisp.show_document?p_
table=FEDERAL_REGISTER&p_id=21314 target="_blank"

01/22/10 - Medical Center Faces Liability for Provider Faces Class Action for Not Paying Overtime to IT Staff
by Paul Duvall, K&B Healthcare Practice Member

Another case adds to an emerging trend of class actions targeting health care providers for alleged violations of state and federal wage and hour laws. This time, a California hospital allegedly misclassified its information technology (IT) employees as exempt from overtime pay.

01/22/10 - WebLINE Alert:
TENNESSEE OFFICIALS ANNOUNCE GUIDEBOOK NOW AVAILABLE TO ASSIST NON-PROFIT ORGANIZATIONS

Media Release from the State of Tennessee Attorney General Robert E. Cooper, Jr.
For more information, click here or go to this link:
http://tn.gov/attorneygeneral/press/2010/story/pr10-03.pdf

For a copy of “What Every Board Member and Officer Should Know,” a reference tool for board members and officers of Tennessee nonprofits, click here
or go to this link:
http://tn.gov/attorneygeneral/nonprofit/nonprofitguidebook.pdf

01/18/10 - Requirement to E-Verify: Does It Apply to Your Practice?
by Bruce E. Buchanan, K&B Healthcare Practice Member

Are health care providers who provide services to participants of Medicare or the Federal Employees Health Benefits Program (FEHBP) considered subcontractors for the purposes of FAR EVerify? If so, those providers would have to E-Verify their new employees and employees providing services in performance of those contracts with the federally-based insurers.

01/15/10 - WebLINE Alert:
SEN. LEAHY AND 18 OTHERS URGE REPEAL OF ANTITRUST EXEMPTION FOR HEALTH INSURANCE

Media Release: Office of U.S. Senator Patrick Leahy (VT) -
For more information, click here or
go to this link:
http://leahy.senate.gov/press/201001/011310c.html

01/14/10 - Hospital Network Prevails in Antitrust Claim by Competing Physician-Owned Facility
by Mo Syed, K&B Healthcare Practice Member

The largest hospital company in Arkansas and its health-insurance company affiliate succeeded in dismissing allegations made by a physician-owned cardiology competitor that the hospital and insurance company conspired to restrain trade and monopolize the market for cardiology services for privately insured patients.

01/08/10 - New Rule Proposes Definition for Meaningful Use
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Health care providers who adopt meaningful use of certified electronic health record (EHR) technology by 2011 may receive significant federal incentives: up to $63,750 over five years for qualifying Medicaid use, or up to $44,000 over five years for qualifying Medicare use.

12/15/09 - WebLINE Alert:
H1N1 FLU VACCINE MANUFACTURER VOLUNTARILY RECALLS DOSES

Media Release from the State of Tennessee Department of Health -
For more information, click here or
go to this link: http://news.tennesseeanytime.org/node/4305

12/11/09 - WebLINE Alert:
TENNESSEE OFFERS H1N1 VACCINE TO EVERYONE

Media Release from the State of Tennessee Department of Health -
For more information, click here or
go to this link: http://news.tennesseeanytime.org/node/4200

12/10/09 - Alleged Race Based Hiring Criteria Supports Discrimination Claim
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

A health care services company for correctional facilities lost its attempt to dismiss a physician’s discrimination claim for failure to retain him as medical director at a Jackson, Mississippi correctional facility. The physician alleges a company representative told him he could not be hired or retained for the position because he is white.

>>Read the full article...

12/09/09 - Medical Center Faces Liability for Alleged Disability Discrimination by Physician Independent Contractor
by Paul Duvall, K&B Healthcare Practice Member

An independent contractor anesthesiologist may proceed with his discrimination claim against a Phoenix medical center for not accommodating his operating room and call schedules due to his disability from sickle cell anemia.

11/24/09 - Doctors Entitled to Immunity for Revoking Surgeon’s Privileges
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Physicians, who served on a peer review panel for a Rhode Island hospital, were entitled to immunity from liability under the Health Care Quality Improvement Act (HCQIA) for their role in determining a surgeon’s privileges should be revoked.

11/23/09 - Is the New “EEO is the Law” Poster on Display at Your Office?
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

The employment provisions in the Genetic Information Nondiscrimination Act of 2008 (GINA) went into effect over this weekend. This requires most providers to ensure either the new “EEO is the Law” poster or the supplement is prominently displayed at their office. Click on the link at the end of this post to print the supplement for immediate posting and to order the new poster.

11/19/09 - Preparation for Employee Issues with Flu and H1N1 Virus
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

The proportion of deaths due to the H1N1 continues to rise along with the number of outpatient visits and 46 states report geographic widespread activity. This information implicates a continuing concern regarding the H1N1 virus (a type of influenza responsible for the 2009 flu pandemic) and emphasizes the importance of maintaining efforts to prepare and protect employees. This post addresses factors providers should consider towards that goal.

10/22/09 -Respirator Protection for H1N1 Influenza
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Providers should confirm now that they have a sufficient supply of N95 disposable respirators, established protocols on priority of use to ensure sufficient supply, and completed medical evaluations, fit testing, and training for all employees who may need to use respirators for protection against the 2009 H1N1 virus.

10/14/09 - Risk of Employee Access to Patient Information and Red Flags Rule Compliance
by Mo Syed, K&B Healthcare Practice Member

Health care providers are increasingly discovering that information technology is a double edged sword, providing great benefits, but also raising the potential for violations of privacy and identity theft by their own employees. All providers must assess the risk of identity theft posed by their use of information technology by November 1, 2009, when the Federal Trade Commission’s Red Flags Rule (RFR) goes into effect.

10/05/09 - OSHA Focusing on Recordkeeping of Employee Injuries & Illnesses
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

The Occupational Safety and Health Administration announced on October 1, 2009 that it will begin a national emphasis program (NEP) to assess the accuracy of injury and illness data recorded by employers.

9/17/09 - New Law Requires Web-based Claim Preadjudication Tool for Providers
by Chris Lowe, K&B Partner and Healthcare Practice Member

Next year, health insurance companies will be required by Tennessee law to set up web sites accessible to providers, with an online preadjudication tool that can be used by providers for certain claims.

9/10/09 - No EMTALA Violation Without Transfer
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

The surviving family of an end state renal disease patient who died in a Puerto Rico hospital after a transfer order was issued and before any transfer took place failed to establish a valid claim under the Emergency Medical Treatment and Active Labor Act (EMTALA).

9/04/09 - Transfer of High Risk Pregnancy Did Not Trigger EMTALA
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

A Philadelphia area perinatal testing center was determined not to have violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when, during a routine scheduled monitoring visit, it referred a diabetic outpatient with a high risk pregnancy to another hospital for prolonged monitoring. Shortly after arriving at the hospital, the patient’s condition worsened leading to a caesarean delivery of a baby with traumatic brain injuries.

8/27/09 - New Medicare Audit Issues Identified For Providers in Indiana, Michigan and Minnesota
by Kathleen Henderson, K&B Partner and Healthcare Practice Chair

Medicare participating outpatient hospital and physician providers located in Indiana, Michigan and Minnesota may be audited by the Recovery Audit Contractor for Region B on three issue areas identified as potential improper payments categories.

Disclaimer Ala Rules Prof Conduct 7.2e: "No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers."