Physician Practices

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.

“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).

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).

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

Georgia Schools and Businesses Post Warning Signs to Avoid Liability Under COVID-19 Pandemic Business Safety Act

September 2, 2020 | Little Health Law

As Georgia schools and other businesses respond to open and operate safely in the face of the COVID-19 Pandemic, many are posting warning signs consistent with a new law in the state passed to protect them from liability.

Georgia-based Business and Healthcare Law Firm

This summer, Georgia joined many other states in passing a law to protect businesses including healthcare facilities and workers from liability from lawsuits brought by individuals or their survivors related to infections from or exposure to COVID-19 in visiting the premises of or obtaining healthcare services or personal protective equipment from those facilities, entities or individuals. Senate Bill 359, signed by the Governor on August 5, 2020 provides that no healthcare facility or provider, entity or individual shall be liable for damages in an action involving a “COVID-19 liability claim” unless the claimant proves the actions of the healthcare facility, entity or individual resulted from gross negligence, willful and wanton misconduct, reckless or intentional infliction of harm.

Flattening the Curve Through Telemedicine

April 20, 2020 | Little Health Law

Telemedicine has new and profound importance due to the COVID-19 crisis. “Virtual” healthcare preserves patient protective equipment that would otherwi image_4-e1587393250939 se be used and allows physicians to manage chronic illnesses remotely, without the in-person interaction that exposes provider and patient to the risk of spread. This increased reliance on telemedicine has prompted state and federal legislative bodies to pass new rules and guidelines to promote access to telehealth services by reducing costs, increasing availability, and promoting relationships between healthcare providers and their patients. Our Georgia-based business and healthcare law firm follows regulatory developments that impact healthcare providers. As of the date of this post, seven states (Arizona, Florida, Kansas, Maine, New Jersey, Oregon, and Utah) have waived restrictions on telehealth. More relaxation of telehealth rules may be expected.

New Regulations: an Overview

Virtual medicine is expected to aid in slowing the spread of coronavirus by limiting contact between individuals. New telemedicine regulations encourage video and audio conversations between providers and their patients. Telemedicine platforms can serve a variety of functions, some assist with managing patient triage, while others provide alerts to providers and patients in regard to medication management. Other platforms allow for effective monitoring of chronic illnesses for patients, even with the strict social distancing guidelines that are currently in place. Thus, as part of an effort to allow healthcare providers to better support each other and their patients, the federal government has reduced the regulatory hoops that have previously limited access to Telehealth services. The CMS Fact Sheet discusses in depth the changes that have been made to provide virtual services.

THE METEORIC RISE IN IMPORTANCE OF TELEMEDICINE

April 13, 2020 | Little Health Law

As patients, naturally we intend to go to the doctor to get well. But there is a catch 22. What if the trip to the doctor or the emergency room to be made well might cause us to get sick, or more sick? Or what if we make the doctor sick, impairing his ability to care for other patients? Such risks have always existed to a degree, but nothing like today, during the Coronavirus pandemic.

Georgia-based Telemedicine Lawyers

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The extraordinary, unprecedented COVID-19 pandemic and staggering fallout has cast new and very bright light on telemedicine and its potential efficacies in providing safe health care. Above all, telehealth benefits include ability to provide healthcare without no risk of COVID spread, a serious health risk for both patient and healthcare practitioner to avoid that will necessarily attend both commuting and in-person interaction. Telemedicine offers another way to “go to” the doctor and for the doctor to render care, free of the risk of virus spread. Apart from all other advantages and conveniences of telemedicine, the paramount importance of health and safety (of both healthcare practitioner and patient) have never been underscored so forcefully.

To Compete or Not to Compete?

January 23, 2020 | Little Health Law

1221952_to_sign_a_contract_3 As a business and healthcare litigation firm focused exclusively on advising and representing health care providers, we work virtually every day with contracts that involve non-compete agreements and other forms of restrictive covenants. Almost all physician employment, for example, will involve a physician employment agreement that contains a restrictive covenant. Typically, a restrictive covenant will apply to prohibit certain competitive activities both during the employment and for some agreed period following employment, often one to three years. The details of such agreements can vary dramatically and, contrary to the impressions of many medical practice owners and employed physicians, there are not “standard” provisions for duration, geographic scope, etc. Further, Georgia and South Carolina case law and relevant statutory provisions are subject to interpretation, about which reasonable minds can often differ.

As a healthcare law firm, we are exposed to agreements on the transactional end, when the parties get married (i.e., when they sign the contract), and when they divorce (i.e., when the employment ends). If a non-compete issue is raised at the end of the relationship, the implications for employer and employee can be severe and, in unfortunate cases, devolve into litigation. For a highly compensated physician, whose ability to ply his/her trade following many years of education and training is suddenly impaired by the signed contract, whether to proceed with certain employment opportunities (that might violate a non-compete agreement) can make for a highly stressful decision-making process. Some factors that physicians may consider follow.

Should you determine if the non-compete agreement is enforceable?

Employment Litigation Update

December 31, 2019 | Little Health Law

861958_hidoc-on-white Because our healthcare law firm often handles employment-related disputes and litigation (for employers and employees alike), we follow developing trends in employment litigation. Employment discrimination lawsuits continue to make headlines in the healthcare industry. Between 2018 and 2019, numerous allegations regarding doctors, nurses, and administrative staff have resulted in litigation challenging existing employment practices of large network hospitals and small practices. For managers and owners of physician practices or small businesses, employment concerns should be regularly discussed with legal counsel.

Georgia Healthcare Business Litigation Attorneys

Over the last two years, a variety of claims have been brought forward by employees against their employers. The stories range from allegations of discrimination on the basis of sex, age, or race. For example, on April 26, 2019, employees of Mount Sinai Health System (Mount Sinai Health) filed a lawsuit in federal court alleging age and sex discrimination against female senior leaders of the health system. The lawsuit discussed practices that occurred under Dr. Prabhjot Singh’s management. Before the lawsuit, Dr. Singh served as the chair of the Department of Health System Design and Global Health. According to the lawsuit, numerous female employees were fired or forced to resign before being replaced by younger male employees. Furthermore, the lawsuit cites instances of Dr. Singh’s “screaming” and other aggressive behavior towards women on staff at Mount Sinai Health. On July 3, 2019, it was reported that Dr. Singh resigned from his position of leadership.

Improving Patient Access to Healthcare in Rural Areas

November 8, 2019 | Little Health Law

waiting-room-1486946-300x239 Providing access to high quality services to patients in rural areas is an ongoing challenge in the U.S. Throughout our country, a large percentage of citizens living in rural areas are less healthy than their peers in urban areas, as rural citizens lack access to healthcare providers in their small communities as well as personal financial resources and transportation options that would allow them to travel to larger cities where top-quality or specialty medical services are offered.

Georgia-based Healthcare Lawyers

According to Georgia’s State Office of Rural Health, citizens in rural Georgia are less healthy than those living in urban areas, are more likely to be uninsured or underinsured, and are more likely than Georgians in urban areas to suffer from heart disease, obesity, diabetes and cancer.