President Bush is expected to sign into law the Genetic Information Nondiscrimination Act (GINA) passed last week by Congress. The new law, which has been debated in Congress for 13 years, adds to current federal anti-discrimination laws (including Title VII) prohibitions on employers and insurance companies using genetic tests showing people are at risk of developing cancer, heart disease or other ailments to reject their job applications, promotions or health care coverage, or in setting premiums. Like HIPAA (Health Insurance Portability and Accountability Act of 1996), GINA provides for an exception to use or acquisition of genetic information with the voluntary signed consent of an employee or applicant.
In sum, GINA prohibits health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Employers, with very few exceptions, cannot use genetic information in hiring, firing or promotion decisions and must maintain any genetic information strictly confidential in compliance with the ADA (medical records) and HIPAA. As for enforcement, procedures and damages –– think ADA. In other words, private employers with fifteen or more employees are subject to GINA. The Equal Employment Opportunity Commission (EEOC) will be charged with investigating complaints, and the procedure and remedies are mostly identical to other federal anti-discrimination laws.
The law will go into effect in November 2009, by which time the Department of Labor is supposed to have enacted its regulations for GINA.
What in the World Do I Care About Genetics? While genetic testing for employment purposes is not regularly used by most of our clients, most do require post-offer medical examinations and verification of absences and FMLA time. Studies cited in support of GINA show that nearly two-thirds of major U.S. companies require medical examinations of new hires, of which 14% conduct tests for susceptibility to workplace hazards, among other things. The federal government for several years has prohibited the federal government from requiring genetic testing or from considering a person’s genetic information in hiring or promotion decisions. Plus, there are labs actively marketing to employers in connection with disability and workers’ compensations claims. GINA significantly proscribes the use of any testing with a genetic component.
Does Texas Have a Similar State Law? Well, yes, Virginia…it does! Texas is one of 31 states (according to National Human Genome Research Institute) that have already adopted laws regarding genetic discrimination in the workplace. Texas’ law has been in effect since 1997. Parallel to GINA, Texas law:
• Provides for protection against discrimination by employers with 15 or more employees, employment agencies, or labor unions based on information about an individual’s genetic characteristics or on the refusal of an individual to take a genetic test or submit a family health history.
• Provides a civil penalty if a person improperly discloses genetic information.
• Employers must keep genetic testing confidential unless an individual specifically authorizes release of such information, or unless they are required to release information pursuant to a court order, or otherwise required by law.
What Difference Will This Make If I Don’t Require Genetic Testing? Like any other anti-discrimination law, employers will want to have a clear written policy as well as procedures prohibiting conduct in violations of GINA as well as educate workers on what is not prohibited by the Act.
Does GINA Affect Our Employee Wellness Program? Yes. Under both HIPAA and, now, GINA, employers may use both personal health and genetic information as part of a qualified wellness program. Wellness programs generally reward participants for reaching a desired health outcome … giving up smoking or losing weight, for example, or carrying out a specified exercise regime. You can see the U.S. Department of Labor’s new rules for creating workplace wellness programs that comply with existing HIPAA law (no doubt soon to be amended to include GINA).
To prevent employers from practicing “back door discrimination,” a wellness plan must meet very specific requirements. Check with your legal counsel regarding wellness programs to keep your plan “legally healthy.”
Little Known Fact: Per the National Human Genome Research Institute, everyone probably has at least six genetic mutations placing them at greater risk for some disease. Although these mutations do not necessarily mean that a disease will develop, researchers said, that the person is more likely to get the disease than someone without the genetic mutation.
The House voted 414-1 for GINA last Thursday, a week after the legislation passed the Senate on a 95-0 vote. The only member of Congress to vote against the bill was Rep. Ron Paul, R-Texas. Click here to read the complete text of GINA.
The U.S. Citizenship and Immigration Services (CIS), which enforces federal employment verification requirements, has issued the first updated Form I-9 since 1991. Devised to help employers verify that every new employee is either a U.S. citizen or authorized to work in the U.S., the law requires that the new Form I-9 be used for all individuals hired on or after November 7, 2007. However, CIS also granted a 30-day “transition period” for employers to begin using the new form. That transition period ended last week on December 26, 2007. Employers’ use of the prior version of the Form I-9 may now result in administrative penalties.
CIS also revised its “Handbook for Employers” last month, which explains the new I-9 process in detail and includes questions and answers on filling out the form, examples of the acceptable documents, and a copy of the Form I-9. To verify that you have the correct version, the new form is identified in the lower right hand corner as “Form I-9 (Rev. 06/05/07) N.”
The Employer Information Report, commonly known as the EEO-1 Report, has finally gotten a major makeover that affects what information you must collect about your employees and how you collect it. The Equal Employment Opportunity Commission (EEOC) revised the form in response to additions made to racial and ethnic categories collected for the 2000 census and issued final regulations in November 2005. (Federal Register, Vol. 70, No. 227, Monday, November 28, 2005.)
Private employers with 100 or more employees, as well as federal contractors with 50 or more employees and a contract of $50,000 or more are required to submit annual EEO-1 reports to the Joint Reporting Committee (JRC), a committee of the EEOC and the Office of Federal Contract Compliance Programs (OFCCP). These reports track employee data by race, ethnicity, sex, and job classification. The EEOC uses the data to support enforcement of federal anti-discrimination laws and to analyze employment patterns. The OFCCP uses the information to target employers for compliance evaluations. The EEO-1 must be filed each year by September 30th.
Summarized below are the changes made to the EEO-1 form and reporting requirements.
Previously, you had to collect information on five EEO-1 race/ethnicity categories: Hispanic, White, Black, Asian or Pacific Islander, and American Indian or Alaskan Native. The new changes increase the categories to seven: Hispanic or Latino, White, Black or African-American, Native Hawaiian or Other Pacific Islander, Asian, American Indian or Alaska Native, and Two or More Races. In order to yield more accurate data about Hispanics or Latinos the EEOC has adopted the “two-question format” which requires employees, when self-identifying their race, to first report their Hispanic or Latino status and then report the race or races they consider themselves to be. The EEOC will require employers to report the number of employees who identify themselves as “two or more races,” but will not require reporting of the specific races.
The EEOC also changed the EEO-1 job categories. The new categories continue to be skill-based rather than industry-based, but the Officials and Managers category has been split into two subcategories: Executive/Senior Level Officials and Managers and First/Mid-Level Officials and Managers. The EEOC believes the subcategories will allow for more detailed assessment of female and minority involvement at different levels.
Residing in the highest levels of organizations, these Executive/Senior Level Officials and Managers plan, direct or coordinate activities with the support of subordinate executives and staff managers. In larger organizations, they include those individuals within two reporting levels of the CEO, whose responsibilities require frequent interaction with the CEO. Examples of these kinds of managers are: chief executive officers; chief operating officers; presidents or executive vice presidents of functional areas or operating groups; chief marketing officers; chief legal officers; and managing partners.
First/Mid Level Officials and Managers receive direction from the Executive/Senior Level Management and typically lead major business units. They implement policies, programs and directives of Executive/Senior Level Management through subordinate managers and within the parameters set by Executive/Senior Level Management. Examples of these kinds of managers are: vice presidents and directors; regional or divisional controllers; treasurers; and human resource, information systems, marketing and operational managers. The First/Mid Level Officials and Managers subcategory also includes those who report directly to middle managers. Examples of these kinds of managers are: first-line managers; team managers; unit managers; operations and production managers; call center or customer service managers; technical support managers; and branch or product managers.
In addition, the old Office and Clerical category has been changed to Administrative Support Workers, and current references to skilled, unskilled, or semi-skilled work have been dropped. The Laborers category is now Laborers and Helpers.
The revisions also change the information gathering process. In the past, the EEOC directed you to obtain the racial and ethnic information by visual surveys of the workforce or from post-employment records. The new revisions instruct you to ask employees to self-identify and only rely on the old method as a back up when self-identification is not possible.
In order to complete the new EEO-1 form, you will ultimately need to re-survey your workforce to gather the necessary data. However, for the EEO-1 report due on September 30, 2007, employers are only required to use the new EEO-1 form. Reporting employers are not required to re-survey their workforce for the 2007 report. This means that in 2007, you may fill out the new form with only the limited race data collected in accordance with the old EEO-1 form. Note that the regulations require that employers make their count within the three months prior to the September 30th reporting deadline.
The EEOC has provided helpful information on the new EEO-1 Report on its Web site at http://www.eeoc.gov/eeo1/index.html, including a discussion of the revisions to the EEO-1 form and how to implement the new racial and ethnic categories.
We can help you develop an employee survey form that elicits the proper EEO-1 information. Please do not hesitate to call if you have any questions about the new EEO-1 requirements or need assistance revising your EEO-1 form.
The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime pay requirements for non-exempt employees. (Non-exempt employees are those who are (a) not paid on a salary basis, and/or (b) not employed in an executive, administrative, professional or outside sales capacity.) The FLSA requires employers to pay non-exempt employees the minimum wage for all hours worked and to pay one and one-half times the regular rate of pay for all hours worked over forty in any work week. Generally speaking, travel time for non-exempt employees that is “all in a day’s work” and travel time during which the employee is performing work, including the “work” of driving, must be counted as hours worked for both minimum wage and overtime computation purposes. Following are the gritty details of travel time pay under the often confusing and confounding Department of Labor rules. Whether you count travel time as “working time” depends on both the kind of travel involved and when it occurs.
Note: The FLSA establishes the minimum pay requirements. Competitive markets in the health care field may require some of you to pay more than these minimums required under the FLSA.
1. Ordinary Home to Work (29 C.F.R. § 785.35)
Generally, normal commuting travel from home to work is not work time and, therefore, does not have to be paid. According to the FLSA regulations, “an employee who travels from home before his regular work day and returns to his home at the end of the work day is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites.”
2. Emergency Home to Work (29 C.F.R. § 785.36)
During emergency situations, travel from home to work is work time. For example, an employee who has already gone home after work subsequently gets called out at again that night due to a consumer emergency. All that travel time is working time that must be paid.
3. Special One-Day Assignment in Another City, Home to Work (29 C.F.R. § 785.37)
You must pay a non-exempt employee for all time spent traveling to a seminar, training session, or other work assignment that lasts for a day. You also must pay for all time spent at the seminar, training session, or working. The employee is considered to be on a special assignment performed for the employer’s benefit.
For example, if a non-exempt aide travels one hour to a training, attends the training for eight hours, and then drives home for one hour, s/he will be entitled to pay for the eight hours at the training and the two hours of travel time. However, you may deduct from the total working time the employee’s “normal” commute time and any meal period not spent performing work or in the training session.
4. Travel That’s All in a Day’s Work (29 C.F.R. § 785.38)
All time an employee spends traveling as part of his or her principal work activity, such as travel from job site to job site during the workday, must be paid as hours worked. For example, if an employee is required to report at your office first to receive instructions or pick up certain materials for work, the travel from the office to the assigned work site also counts as hours worked.
5. Overnight Travel Away from Home (29 C.F.R. § 785.39)
If a non-exempt employee travels to a training session or work assignment, traveling the day before the session or work actually begins, only the travel time that cuts across (overlaps) the employee’s regular workday must be paid. For example, if an LVN normally works from 6 a.m. to 2 p.m., and leaves for an out-of-town training session at 1 p.m. and arrives at 4 p.m., you are only required to pay for one hour of travel time.
Note that overnight travel time on non-working days is considered work time if conducted during the employee’s normal work hours. For example, if the same employee travels on a regular day off, perhaps Sunday, you must pay for any travel time between 6 a.m. and 2 p.m. Again, you may deduct normal meal periods from the travel time, as long as the employee does not perform work during the meal period.
The DOL has created some disparities in how the out-of-town travel is compensated. Employees traveling on the same day of the assignment are paid for all the time spent traveling. By contrast, employees traveling the day before the work assignment are paid only for the travel time that cuts across their normal workday.
6. Work Performed While Traveling (29 C.F.R. § 785.41)
Of course, travel time during nonworking hours may be considered compensable work time if the employee actually performs work while traveling.
7. Transportation Choices Matter (29 C.F.R. § 785.40)
The Department of Labor does not treat as compensable time spent traveling away from home outside regular working hours if the worker is a passenger on an airplane, train, boat, bus or in an automobile. Even more oddly, you can arrange for the employee to travel outside normal working time. Thus, a non-exempt employee whose regular shift is 9:00 a.m. to 5:00 p.m., Monday through Friday, who is required to travel by bus on Sunday night in order to be at an out-of-town meeting on Monday morning, he/she does not have to be paid for travel time.
If an employee elects to drive to an out-of-town assignment instead of using offered public transportation, the employer has the option to consider as hours worked either the actual time spent by the employee in driving or the time that would have been counted as hours worked had the employee used public transportation. If, on the other hand, a non-exempt employee must drive and no alternative public transportation is offered, all driving time must be considered hours worked and must be compensated at either the regular or overtime rate because the act of driving is considered work that is required by you.
The Home Health Aide Illustration
By way of example, a home health aide who works from 8:00 a.m. to 10:00 a.m., goes home, and then returns to work for a 3:00 p.m. to 11:00 p.m. shift.
Are the hours between shifts (10:00 a.m. to 3:00 p.m.) compensable time? As the aide is permitted to leave the worksite and go home, the only remaining question in this case is whether the employee is considered “on duty” between the end of the first shift and the beginning of the second. The terms “on duty” and “off duty” have been defined extensively under federal law. To determine whether an employee who is free to leave the worksite between shifts is on or off duty, the U.S. Department of Labor will consider the following factors to determine the employee’s duty status. Generally, if: (1) the aide is completely relieved of all work-related duties; (2) the aide knows in advance that s/he will have time off between shifts; (3) the time off is long enough for the aide to effectively use the time as s/he wishes; and (4) the employee does not have to return to work until a definite, specified time, the aide can be considered off duty and the time is not compensable working time. The above scenario appears to meet these criteria. Each situation must always be evaluated on a case-by-case basis. There may be situations where the period of inactivity is too unpredictable, or is of such short duration, that an employee is prevented from effectively using the time for his/her own purposes and, therefore, the employee remains “on duty.”
Is the travel time compensable time? Assuming the aide is off duty between shifts, then travel to and from the interim worksites is not “working time” and not compensable travel time because the aide is not traveling from one place to another at the direction of the employer. Therefore, in the above scenario, the travel time from home to work at 8:00 a.m., from work to home (or anywhere else the employee chooses to go) at 10:00 a.m., from home to work at 3:00 p.m., and from work to home at 11:00 p.m. is not compensable time.
There’s nothing intuitive about the wage and hour laws. Make sure your pay practices meet the minimum standards, and call you legal counsel if you’re ever confronted with a questionable scenario or employee complaints.
In mid-2004, the United States Court of Appeals for the Second Circuit became the first federal appellate court holding that the companionship services exemption under the federal Fair Labor Standards Act (“FLSA”) could not be used by home health agencies to avoid paying its home care attendants minimum wage and overtime pay. (Coke v Long Island Care at Home, Ltd., 376 F3d 118 (2d Cir 2004)). Citing a 2005 Wage and Hour Advisory Memorandum issued by the Department of Labor (DOL), the US Supreme Court remanded the Coke case back to the Second Circuit for reconsideration. The Second Circuit stuck to its original decision, and the home health agency at issue has asked the United States Supreme Court, again, to overturn that decision. On January 5, 2007, the Supreme Court agreed to hear the case.
Congress provided exemption from both minimum wage and overtime requirements of the FLSA for domestic service workers who provide companionship for the elderly and infirm. 29 U.S.C. § 213(a)(15). For nearly 30 years, the DOL has interpreted this section to apply to companionship employees who are employed by “third party” home health agencies other than the family or household actually using their services. Granted, the DOL has periodically proposed eliminating this exemption for third party employers but, following public comment, has invariably chosen not to do so.
If the Supreme Court upholds the Second Circuit’s decision, it will be a dramatic reversal in longstanding wage-and-hour practices making companionship services affordable for the elderly and infirm. The Second Circuit’s decision is in direct conflict with the Tenth Circuit, which has held that companion employees need not be employed directly by the family or household receiving services for the exemption to apply.
Regulations of the Wage and Hour Division (29 CFR § 552.1-552.110) establish the criteria that must be met before the companionship services exemption applies to an employee.
(1) The Services Provided Must Constitute “Companionship Services,” or “…those services which provide fellowship, care and protection for a person who because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services.”
(2) General Household Work May Not Exceed 20% Of the Total Weekly Hours Worked. Household work related to personal care, which would not constitute “general” household work, would include preparing meals, making beds, washing clothes or other related similar services such as washing dishes, sweeping the floor after meals or scrubbing the bathtub after a bath. Other housekeeping activities not related to the individual’s personal care, such as dusting furniture, vacuuming, washing floors and windows, or cleaning refrigerators and ovens, must be considered to be non-exempt ”general household work“ which is subject to the 20% time limitation.”
(3) Non-Trained Personnel (the exemption is not available for employees whose duties require the training of a registered nurse or a licensed practical nurse).
(4) Services must be provided in or about the private home of the person (that is, not group homes or assisted living facilities, according to the DOL).
(5) Joint Employment With the Client. The exercise of some supervision and control by the client over the employee providing the services can be sufficient to create the employment relationship for this purpose (e.g., the client’s involvement in choosing the employee who provides services, participation in scheduling, and participation in choosing the services to be performed).
The Coke decision is very significant for all home health agencies that rely on the FLSA’s companionship services exemption to exempt their employee’s from minimum wage and overtime pay. Directly applicable only in New York, Vermont and Connecticut, the Coke case creates a precedent that must be addressed by the Supreme Court. We will keep you advised of any ruling.
As proposed by the House of Representatives, minimum wage requirements would increase from the current standard of $5.15 to $7.25 in approximately three years. Introduced by Representative George Miller, the Fair Minimum Wage Act passed the House by 315-116 on January 10, 2007, and is expected to affect up to 13 million of America’s minimum wage workers.
As currently drafted, minimum wages would increase as follows:
• 60 days after enactment: The minimum wage will increase from the current $5.15 to $5.85
• One year after the first increase: The minimum wage will increase to $6.55
• One year after the second increase: The minimum wage will finally increase to $7.25
We will continue to keep you updated as the proposed statute evolves. You can find more details on the Act at the U.S. House of Representatives’ Committee on Education and Labor website: http://edlabor.house.gov/micro/minimumwage.shtml.
In mid-2004, the United States Court of Appeals for the Second Circuit became the first federal appellate court holding that the companionship services exemption under the federal Fair Labor Standards Act (“FLSA”) could not be used by home health agencies to avoid paying its home care attendants minimum wage and overtime pay. (Coke v Long Island Care at Home, Ltd., 376 F3d 118 (2d Cir 2004)). Citing a 2005 Wage and Hour Advisory Memorandum issued by the Department of Labor (DOL), the US Supreme Court remanded the Coke case back to the Second Circuit for reconsideration. The Second Circuit stuck to its original decision, and the home health agency at issue has asked the United States Supreme Court, again, to overturn that decision. On January 5, 2007, the Supreme Court agreed to hear the case.
Congress provided exemption from both minimum wage and overtime requirements of the FLSA for domestic service workers who provide companionship for the elderly and infirm. 29 U.S.C. § 213(a)(15). For nearly 30 years, the DOL has interpreted this section to apply to companionship employees who are employed by “third party” home health agencies other than the family or household actually using their services. Granted, the DOL has periodically proposed eliminating this exemption for third party employers but, following public comment, has invariably chosen not to do so.
If the Supreme Court upholds the Second Circuit’s decision, it will be a dramatic reversal in longstanding wage-and-hour practices making companionship services affordable for the elderly and infirm. The Second Circuit’s decision is in direct conflict with the Tenth Circuit, which has held that companion employees need not be employed directly by the family or household receiving services for the exemption to apply.
Regulations of the Wage and Hour Division (29 CFR § 552.1-552.110) establish the criteria that must be met before the companionship services exemption applies to an employee.
(1) The Services Provided Must Constitute “Companionship Services,” or “…those services which provide fellowship, care and protection for a person who because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services.”
(2) General Household Work May Not Exceed 20% Of the Total Weekly Hours Worked. Household work related to personal care, which would not constitute “general” household work, would include preparing meals, making beds, washing clothes or other related similar services such as washing dishes, sweeping the floor after meals or scrubbing the bathtub after a bath. Other housekeeping activities not related to the individual’s personal care, such as dusting furniture, vacuuming, washing floors and windows, or cleaning refrigerators and ovens, must be considered to be non-exempt ”general household work“ which is subject to the 20% time limitation.”
(3) Non-Trained Personnel (the exemption is not available for employees whose duties require the training of a registered nurse or a licensed practical nurse).
(4) Services must be provided in or about the private home of the person (that is, not group homes or assisted living facilities, according to the DOL).
(5) Joint Employment With the Client. The exercise of some supervision and control by the client over the employee providing the services can be sufficient to create the employment relationship for this purpose (e.g., the client’s involvement in choosing the employee who provides services, participation in scheduling, and participation in choosing the services to be performed).
The Coke decision is very significant for all home health agencies that rely on the FLSA’s companionship services exemption to exempt their employee’s from minimum wage and overtime pay. Directly applicable only in New York, Vermont and Connecticut, the Coke case creates a precedent that must be addressed by the Supreme Court. We will keep you advised of any ruling.
The Department of Labor (DOL) has been promising new Family and Medical Leave Act (FMLA) rules since 2002. In each subsequent Agenda published by the DOL, it promised that amendments would be out “soon.” Finally, the DOL announced in the December 1, 2006 Federal Register [http://www.dol.gov/esa/whd/FMLARequestForInformation.pdf] that it wants your comments on the FMLA. All comments are due by February 2, 2007.
The DOL has long been aware that employers struggle under the burdens of the FMLA: the use of intermittent leave, scheduling, and medical certification, among a few issues. The courts have already invalidated many of the current regulations. The DOL’s request for your comments before issuing proposed rules may suggests the agency’s interest in responding to these concerns and criticisms.
The DOL is asking for your input on the following 12 areas of concern, although comments may address any area of the FMLA.
1. who is an “eligible employee,” including what is a “worksite;”
2. the definition of a “serious health condition;”
3. the definition of “day” in calculating leave and defining a medical condition;
4. substitution of paid leave;
5. attendance policies;
6. different types of FMLA leave;
7. light duty;
8. essential functions;
9. waiver of rights;
10. communication between employers and employees;
11. leave determinations and medical certifications; and
12. employee turnover and retention.
The DOL is also looking for comments on companies’ actual use of FMLA leave, including the financial impact of intermittent leave and the FMLA’s different impact on employers of varying sizes.
Make Your Comments Known: Submit your written comments by February 2, 2007, to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, D.C. 20210. You can also email your comments to whdcomments@dol.gov. Finally, you can fax comments of 20 pages or less to (202) 693-1432.
For more information, visit the DOL’s website [http://www.dol.gov/esa/whd/fmlacomments.htm], or call the DOL directly at 1-866-4USWAGE (1-866-487-9243).
The recent decision in United States v. Regence Blue Cross (10th Cir 12/05/2006) illustrates the power of qui tam, or private, civil lawsuits under the False Claims Act (FCA). Under the FCA, an action can be commenced either by the United States itself, or as a “qui tam” action, by a private person acting “for the United States Government” against providers “in the name of the Government.” The false claim may take many forms: overcharging for a product, failing to perform a service, delivering less than the promised amount of goods or services, underpaying money owed to the government, and charging for one thing but delivering another, to list just a few examples. The legal definitions of a false claim can be found in section § 3729 of the Act.
In this case, a former employee sued more than seven years after alleged violations were committed. Specifically, the plaintiff claimed that her former employer, three managers, and a related laboratory presented false Medicare claims to the Government, submitted a false budget payment request to the Health Care Financing Authority (“HCFA”), fraudulently avoided adverse contract action by HCFA by backdating and falsifying documents to manipulate its contract performance ratings, and retaliated against her under the FCA’s “whistleblower” protections and in violation of State law.
The employee’s job included reviewing claims submitted by medical service providers, including laboratories. After complaining internally that a laboratory was presenting false claims for Medicare reimbursement, and that Regence had failed to take appropriate action to stop this “fraud,” Ms. Sikkenga filed a qui tam suit. While the trial court had dismissed all Ms. Sikkenga’s claims, the 10th Circuit reversed, permitting some of Sikkenga’s fraud claims as well as her state law claim to proceed.
While the final determination on Ms. Sikkenga’s is yet to be made, this case highlights why we continue to see increases in qui tam actions. A company or individual that has made a false claim may be liable for triple damages, a civil fine of $5,500 to $11,000 per false claim, and the attorney’s fees of the citizen whistleblower. Individuals or companies that cause someone else to submit a false claim can also be found liable under the False Claims Act.
The standard of proof in a False Claims Act case is “preponderance of the evidence”, i.e., the claim is more likely true than not. This is the same burden of proof ordinarily applicable in most civil cases, and is easier to meet than the “beyond a reasonable doubt” standard used in criminal cases.
So what should you do? Recognize the new importance of business ethics and corporate compliance policies and training, teach supervisors and staff about ethical obligations, and have clear complaint policies and procedures in place for responding to whistleblowers.
While HIPAA protects the health information of individuals, it does not create a private cause of action for those aggrieved (65 Fed. Reg. 82566). This is made abundantly clear from the commentary to the regulations and HIPAA’s legislative history. And while many federal district courts have dismissed individual plaintiffs’ lawsuits under this rule, the Fifth Circuit, in the case of Acara v. Banks (5th Cir. Nov.13, 2006), has become the first federal appellate court to affirm the ruling. The Fifth Circuit supported its decision by noting that the U.S. Department of Health and Human Services was granted comprehensive enforcement powers under HIPAA through its Office of Civil Rights.
Enforcement by regulators, rather than through private actions, hopefully allows for a uniform national standard with which providers can comply and that consumers will understand. By contrast, private causes of action would result in the competing interpretations resulting less certainty and clarity.
What are the patient’s rights under HIPAA? Under HIPAA, patients have the right to:
· Receive a privacy notice to inform them about how protected information will be used and disclosed;
· Request that uses and disclosure of protected information be restricted (covered entities are not required to always agree to restrictions);
· Inspect, copy and amend their medical records (providers are allowed to charge a reasonable fee for copying expenses);
· Get an accounting of the disclosure of their protected information for the past six years; and
· File a complaint.
But then…there’s always State law. State law, however, may arguably provide other theories of liability, such as violations of other statutory confidentiality restrictions, slander, intentional infliction of emotional distress, casting in a false light, etc. And remember that such HIPAA restrictions apply in employer use of workers’ protected health information in addition to that of consumers. Rather than a straightforward “HIPAA lawsuit,” you are much more likely to see HIPAA’s privacy requirements to bolster claims for other breaches of confidentiality and privacy rights under Texas law.