Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

On January 31, 2017, the Supreme Court of Florida issued an opinion regarding the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”). This decision is of extreme importance to the health care industry in Florida as it will significantly impact the peer review activities of hospitals and other health care providers within the state. Continue Reading Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

IMMIGRATION NEWS FLASH: USCIS Filing Fees Increased Significantly on December 23, 2016!

image On December 23, 2016, the U.S. Citizenship and Immigration Services (USCIS) significantly raised filing fees for over three (3) dozen types of petitions and applications filed to seek immigration benefits. The last filing fee increase was in November 2010.Continue Reading IMMIGRATION NEWS FLASH: USCIS Filing Fees Increased Significantly on December 23, 2016!

The New I-9 Form And Increased Employer Fines For Violations

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new I-9 Employment Eligibility Verification Form. (All employers are required to complete an I-9 Form for each new employee to document the verification of the employee’s identity and authorization to work). The new I-9 Form is effective January 22, 2017, employers should start using the new I-9 Form immediately for all new hires and reverifications. The prior version, which has been in effect since 2013 is now obsolete. The new I-9 Form can be found here: https://www.uscis.gov/i-9.Continue Reading The New I-9 Form And Increased Employer Fines For Violations

New Overtime Rules Have Far-Reaching Effects

This week the Obama Administration released a final rule, effective December 1, 2016, which significantly raises the salary threshold for workers to qualify for overtime. Previously, many employees who earned to $23,660 were entitled to overtime pay at time-and-a-half compensation for any hours worked in excess of forty during the week. Under the new rule, the threshold is now at $47,476, meaning that many employees who make up to $913 per week are entitled to time-and-a-half compensation if they work over 40 hours per week. In addition to raising the threshold for exempt employees, the Rule also raises the threshold to be considered a “highly compensated employee” under the Fair Labor Standards Act from $100,000 to $134,004 annually.Continue Reading New Overtime Rules Have Far-Reaching Effects

PUBLIC RECORDS LITIGATION: Condition Precedent for Seeking Attorneys’ Fees Against the State

In a recent case – State of Florida, Department of Economic Opportunity v. Consumer Rights, LLC – the First District of Appeal reversed the trial court’s award of attorney’s fees under Florida’s public records law, because the party seeking the public records failed to give notice of the claim for attorney’s fees to the Department of Financial Service at the time it filed the complaint pursuant to Section 284.30, Florida Statutes.

Section 284.30, Florida Statutes, provides as follows:

State Risk Management Trust Fund; coverages to be provided.—A state self-insurance fund, designated as the “State Risk Management Trust Fund,” is created to be set up by the Department of Financial Services and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees. (Emphasis added.)

In its opinion, the Court noted that “[t]he statute explicitly excludes eminent domain, inverse condemnation, or Public Employees Relations Commission suits from this statute’s requirements. If the Legislature sought to exclude public records cases from these requirements, it would have listed it with the other exclusions. As such, the plain language of the statute shows that the Legislature intended to include public records cases within its purview.”

Accordingly, the Court concluded that the notice requirement of Section 284.30 was a condition precedent to the award of attorney’s fees and reversed the award of fees in this case, despite a finding by the trial court that the agency had “unjustifiably delayed in producing the records” in violation of Chapter 119, Florida Statutes.
A motion for rehearing has been filed with the Court.

For more information regarding this issue or other open government issues, contact Mark Herron at mherron@lawfla.com

EDUCATION LAW – Federal Court holds that commercial banner hung on school fence is not entitled to any First Amendment free-speech protection

School boards often have programs allowing private businesses or organizations to hang banners on school property in return for donations to support school activities. The banners are a way of saying “thank you” to these businesses and organizations for their financial support. These banner programs raise a host of liability issues for school boards under the First Amendment – depending upon whether the banners are considered “private speech” or “government speech.”
Continue Reading EDUCATION LAW – Federal Court holds that commercial banner hung on school fence is not entitled to any First Amendment free-speech protection

EEOC Extends Workplace Protection for Sexual Orientation

On the heels of the U.S. Supreme Court’s landmark same-sex marriage decision, the EEOC has issued a decision of its own that could help extend workplace protections for the LGBT community. On July, 15, 2015, the EEOC ruled that existing civil rights laws bar workplace discrimination on the basis of sexual orientation. The complaint was filed by a federal air traffic control employee against the Secretary of the Department of Transportation, alleging that the complainant was denied a job opportunity because of his sexual orientation. After the Department dismissed the complaint, the complainant appealed the decision to the EEOC, which reversed the Department’s decision.Continue Reading EEOC Extends Workplace Protection for Sexual Orientation

FTC Action Should Serve as a Wake Up Call to Health Care Providers and Business Associates

Late in August of 2013 the Federal Trade Commission filed a complaint against medical testing company LabMD, Inc., alleging that the company failed to reasonably protect the security of consumers’ personal data, including medical information. In November of 2013, LabMD filed a Motion to Dismiss the complaint, arguing, among other things, that the FTC did not have the authority to regulate a private company’s data security practices as “unfair…acts or practices” under the FTC Act (15 U.S.C. §45(a)(1)). Included in LabMD’s argument was the contention that Congress, by enacting HIPAA, stripped the FTC of any authority that the FTCA over data security. The FTC Commissioners found LabMD’s arguments unpersuasive and in a January 16, 2014 order denied the Motion to Dismiss.

(See http://www.ftc.gov/sites/default/files/documents/cases/140117labmdorder.pdf)

Health care providers and business associates should take heed that, while such enforcement has been rare, the FTC does have the authority to take action to protect consumers in data security matters that would normally be considered within the exclusive province of the Office of Civil Rights. HIPAA covered entities and business associates that handle patient information should remain vigilant in their efforts to maintain appropriate safeguards for patient information.

William Dillon
Board Certified in Health Law

Merry Christmas from the OCR – Dermatology Practice Settles Potential HIPAA Violations

On December 24, 2013 the HHS Office of Civil Rights (“OCR”) and Adult & Pediatric Dermatology, P.C., of Concord, Massachusetts entered into a Resolution Agreement whereby the practice agreed to settle potential violations of the HIPAA privacy and security rules. The potential violations of HIPAA resulted from the theft of an unencrypted thumb drive, containing the ePHI of approximately 2,200 patients, from the car of a practice employee.

Upon being notified of the breach the OCR conducted an investigation and determined that the practice had failed to conduct and accurate and thorough analysis of potential risks to ePHI in the care of the practice. The OCR further determined that the practice did not have adequate written policies and procedures and did not adequately train employees.

The Resolution Agreement entered into between the practice and the OCR requires the practice to make a $150,000.00 payment to the OCR as well as implement a corrective action plan. The Resolution Agreement is not an admission of liability by the practice.

A copy of the Resolution Agreement may be found at:

http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/apderm-resolution-agreement.pdf

Physician practices should view this settlement as clear indication that OCR expects the compliance of all covered entities and not just large entities such as hospitals, universities and managed care entities. Physician practices that are not yet in compliance with the HIPAA privacy and security rules should take the appropriate steps to come into compliance.

William Dillon
Board Certified in Health Law