By Dana Stripling, J.D., Of Counsel, Garlo Ward, P.C.
www.garloward.com
Posted December 2, 2003
DHHS’ Authority in HIPAA Case Unchallenged
The U.S. Supreme Court has decided to let stand a court ruling that the Department of Health and Human Services (DHHS) was allowed to issue the HIPAA privacy rule. A Medical Association in South Carolina Medical Association (SCMA) v. Thompson (No. 03-114, review denied 11/2/03), argued unsuccessfully to the Supreme Court that Congress impermissibly delegated too much legislative authority to DHHS by appointing the agency to issue the privacy regulations. The Association also asserted that the privacy rule was impermissibly vague.
Operators Face Criminal Charges in Freezing Death of Resident
Operators and the RN-Administrator of the Ronald Reagan Atrium I Nursing and Rehabilitation Center in Pittsburgh were charged with criminal negligence and involuntary manslaughter after an 86-year-old Alzheimer’s resident wandered through an open door into the courtyard outside where she later froze to death, the Associated Press reported. The door had been propped open so nursing staff could smoke outside. Earlier, the State regulatory agency fined the nursing home $12,000 and placed it on a provisional license in July after inspectors found evidence of patients falling, losing weight and wandering unsupervised.
“Are You Sure You Should Be Eating That?”
– Intrusive Questions About Diabetes Prohibited
The EEOC cautioned in an October 29th fact sheet that an employer cannot unduly delve into an employee’s self-monitoring of his or her diabetes as such violates the Americans With Disabilities Act’s (ADA) prohibition on asking unnecessary, intrusive questions. The EEOC explained, by way of example, that a daycare center owner may not ask a teacher who is eating a piece of cake at a child’s birthday party about the teacher’s diabetes, even if the owner is concerned that the teacher might lapse into a coma. The EEOC opined that such inquiries are based on the myth that people with diabetes should never have sweets. The EEOC noted that questions about diabetes are prohibited even if there are performance problems if those problems are unrelated to the person’s disability. By contrast, inquiries are permitted if the condition causes performance problems. For example, if a worker sweats and trembles while on the job, the supervisor may ask what is wrong and require a medical exam.
$365,000 Short-Staffing Penalties Upheld
A federal appeals court has upheld an assessment of $365,000 in civil monetary penalties (CMPs) for a Tennessee provider accused of inadequate staffing following the death of a resident. The CMPs involved two residents restrained in wheelchairs who fell down stairwells in separate incidents. Upon finding quality-of-care violations after the first incident, which resulted in a resident’s death, the Tennessee Department of Health levied penalties of $5,000 per day for four weeks. After a second incident, when another resident suffered a cut to the head, additional penalties of $7,500 per day, or $225,000, were assessed. The judges concluded that substantial evidence showed improper monitoring of corridors, as well as wandering and unsupervised residents.
Lawmakers Out To Protect Genetic Information
In further efforts to safeguard patient privacy, the Senate unanimously passed a bill that would prevent health insurance companies or employers from using genetic information to deny health coverage or employment. The “Genetic Information Nondiscrimination Act of 2003” (S 1053), as amended on the Senate floor October 2nd, garnered the co-sponsorship of key senators including Senate Majority Leader Bill Frist (R-Tenn) and Minority Leader Tom Daschle (D-S.D). According to Frist upon passage, “Today’s legislation takes that necessary step by protecting individuals with genetic predisposition toward certain diseases from the threat of discrimination.” As described in the Act, “federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research and new therapies.” Predictably, the insurance industry opposes the legislation, stating that the HIPAA privacy rule already provides for adequate patient privacy by safeguarding protected health information that can identify an individual. On the House side, genetic discrimination legislation remains in the Education and the Workforce Committee, which plans to hold hearings on the matter.
HIPAA Fraud Provisions All-Encompassing
According to the 2nd U.S. Circuit Court of Appeals in U.S. v. Lucien, No. 02-1228 (Oct. 14, 2003), HIPAA authorizes the prosecution of any individual – not just health care providers – for “health care fraud.” (18 USC ยง1347) The court further held that the target of the fraud need not even be a health plan. In Lucien, three individuals challenged their convictions for participating in an auto insurance fraud scheme involving staged collisions. The court rejected their arguments that HIPAA’s fraud provisions apply only to “health care professionals,” which the auto insurers that received the fraudulent claims were not. Regarding the scope of potential defendants under HIPAA, the court cited the Act itself, which authorizes the prosecution of “whoever” carries out a scheme “to defraud any health care benefit program.”
Hiring the Disabled:
EEOC Issues Advice
According to the EEOC in an October 7th statement, job applicants with disabilities who want accommodations must respond “quickly” to any reasonable inquiries about why accommodations are needed before employers have to make them. Thus, a job applicant with disabilities must explain how a requested accommodation would enable them to participate fully in the application process or interviews. If the disability or the need for accommodation is not obvious, an employer may request reasonable prompt documentation.
Suppose a facility requires applicants to take a written test about resident care and a person with dyslexia requests that the test be read to him as a reasonable accommodation. The facility’s HR department could requests more information and an explanation for why the accommodation is needed, and the applicant would have to respond as quickly as possible. Unfortunately, the EEOC did not define “quickly” or “promptly” with a specific time period.
New COBRA Rules
Anticipated rules, published in May’s Federal Register (68 F.R. 31831) [http://a257.g.akamaitech.net/7/257/2422/14mar20010800/
edocket.access.gpo.gov/2003/03-13057.htm], clarify COBRA’s new notice requirements and provide guidance as well as model notices. Under the new rules issued by the U.S. Department of Labor (DOL) on May 28th, group health plans will have to provide more specifics on COBRA rights and special notices when COBRA coverage ends early and someone is ineligible for coverage.
(1) Plans must provide an initial COBRA notice to employees and spouses within 90 days of coverage commencement, although special criteria apply when an employee and spouse become covered at different times.
(2) Plan administrators that receive a notice of a qualifying event from ineligible plan participants or beneficiaries must provide notice to those individuals explaining why they are ineligible for COBRA coverage.
(3) If COBRA coverage is terminated early, plan administrators must provide a special notice “as soon as administratively practicable” to COBRA qualified beneficiaries.
(4) A second 60-day COBRA election period for certain individuals who become eligible for trade adjustment assistance (TAA) must be included in the COBRA coverage section of summary plan descriptions.
(5) Plans must establish “reasonable” procedures for qualified beneficiaries to provide notice of certain qualifying events (including divorce).
DOL rules provide a model “general” notice on COBRA rights, as well as a model election notice that specifies language on the TAA (if applicable); the type of COBRA coverage that is available; how COBRA rights must be exercised and the consequences of failing to do so; independent election rights; plan payment requirements, schedule and policies; alternative coverage or conversion options (if applicable); and possible extensions of coverage due to disability or multiple qualifying events.
The DOL is seeking comments on the model notices, which are designed for single employer plans and can be “appropriately modified and supplemented” by employers. DOL proposes that the regulations, when made final, will become effective as of the first day of the first plan year that occurs on or after Jan. 1, 2004. In issuing the model notices, DOL stated that a plan’s reliance on the model general notice in ERISA Technical Release 86-2 (June 26, 1986) will no longer constitute good faith compliance with COBRA’s requirements.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
