• Caregiver Misconduct Reporting Update/ Refresher • Reporting Obligations For Physician And Nurse Misconduct • Fair Labor Standards Act Update • Opioid Use/ Abuse Update • Gender Pay Disparity • FMLA Update • Independent Contractor Update • Medical Staff Corrective Action Update/ Refresher • HIPAA Breach Update • Whistleblower Update/ Refresher

1. WISHHRA -
A SCINTILLATING
ANNUAL UPDATE
Presented by Sarah Coyne

2. • I know you missed me since last year's scintillating update!
• Today we have more fun on the legal front for health care HR
folks!
• My goals in selecting topics:
– News/ trends/ developments
– Refreshers on persistently problematic issues
Me Again!

3. Scintillating Topics
• Caregiver Misconduct
Reporting Update/ Refresher
• Reporting Obligations For
Physician And Nurse
Misconduct
• Fair Labor Standards Act
Update
• Opioid Use/ Abuse Update
• Gender Pay Disparity
• FMLA Update
• Independent Contractor
Update
• Medical Staff Corrective
Action Update/ Refresher
• HIPAA Breach Update
• Whistleblower Update/
Refresher

4. • As highlighted last year, Wisconsin Administrative Code Chapter
DHS 13 – Caregiver Misconduct.
• Incorporate into new employee and ongoing training for all
caregivers.
• Caregiver is defined broadly – anyone who interacts with
patients. Train broadly.
• Incident reporting system - internal.
• As of February of this year, all reports must be made online –
Misconduct Incident Reporting System. Good idea to create
account now because it takes several days to activate – hopefully
you never need it.
Wisconsin Caregiver Misconduct Reporting

5. • Immediately protect clients from subsequent incidents of
misconduct (abuse, neglect, misappropriation and injury of
unknown source).
• Investigate all allegations of misconduct quickly and use
worksheets and create reports that are maintained (last thirty)
onsite whether or not you report.
• The whole investigation and report must occur within seven
calendar days of when your organization knew or should have
known – five working days for nursing homes.
Essential Points For Employees To Understand
– Caregiver Misconduct

6. • For credentialed practitioners – investigation by the Department
of Safety and Professional Services – licensing implications.
• For entities regulated by Wisconsin DHS (e.g. hospitals) –
potential survey on the requirements of the caregiver
misconduct regulations (DHS 13).
• Survey on CMS' behalf for violation of patient rights.
• If connected to an egregious violation of a particular patient's
rights, investigation by the Quality Improvement Organization
which serves as a screening mechanism for potential sanctions
by the Office of Inspector General.
• Potential DOJ follow up if criminal in nature.
Caregiver Misconduct – Potential Additional
Consequences

7. • There is no legal mandate or prohibition on whether the hospital
may take an employment action during the pendency of a
caregiver misconduct investigation – it is up to the hospital.
• There is no absolute requirement to suspend during the
pendency of the investigation, although depending on the
severity, it is often a good idea.
• Options other than sanctions include: increased supervision,
alternative work assignment and training.
Consequences For Employees –
Caregiver Misconduct

8. • Physicians are required to report other physicians to the
Medical Examining Board for unprofessional conduct or conduct
that creates a danger for patients or the public, or for possible
medical incompetence or possible mental or physical
impairment that would render the physician unable to safely
practice.
– "Promptly" – can be after the investigation.
– Can be done collectively – hard call when source is peer review.
• Nurses are required to report other nurses to either the Board of
Nursing OR to institutional supervisory personnel for
unprofessional conduct.
Reporting Physician And Nurse Misconduct

9. • March 7, 2019 – proposed overtime rules.
• Changes one of the tests (the salary level test) for when
employees are non-exempt/ entitled to overtime pay.
• Under the proposed rule, the minimum salary amount to qualify
for exempt status would increase from $455 per week ($23,660
per year) to $679 per week ($35,308 per year).
• The proposed rule would also allow for up to 10% of an
employee's salary to come from nondiscretionary bonuses and
incentive payments so long as those forms of compensation are
paid (at a minimum) on an annual basis.
Fair Labor Standards Act - Overtime

10. • The proposed rule also would significantly increase the annual
compensation threshold from $100,000 to $147,414 for
employees to qualify for the highly compensated employee
exemption.
• The DOL indicates in the proposed rule that it “intends to
propose an update to the earnings thresholds every four years”
through the traditional notice and comment rulemaking process.
– Obama's 2016 rule was different in that employers would have
been required to update every three years, tied to the consumer
price index for all urban consumers.
Fair Labor Standards Act –
Highly Compensated

11. • Proposed rule March 28, 2019
• Which kinds of reimbursement/ perks/ benefits must be included
in the calculation of the "regular rate" – used for calculating time
and one half.
• Proposal would allow employers to exclude:
– Tuition
– Wellness, onsite treatment, gym/ fitness, employee discounts
– Benefit plans
– Certain expenses and travel benefits
Fair Labor Standards Act –
Calculating Time And One Half

12. • Opioid addiction is more likely to be considered a disability
under the ADA.
• Recent case – settlement in January against a health care
provider where provider refused to schedule a new patient
family practice appointment with a patient who admitted taking
suboxone. They did not want to treat patients with opioid usage
at this particular clinic.
• Failure to reasonably accommodate.
• Health care provider agreed not to discriminate on the basis of
opioid use disorder, modify all of its relevant policies, draft and
submit a non-discrimination policy within thirty days, adopt and
disseminate it once approved by DOJ.
The Opioid Conundrum

13. • Practitioner shows up impaired for shift.
• Unable/ unsafe to treat patients.
• How do you reasonably accommodate this when the health
care providers are so heavily regulated with regard to patient
care and safety?
• What is the "interactive process" here?
– Once versus more than once? Is once too many?
– Do we trust rehab/ independent external evaluation to really
safeguard patients?
Opioid Use By Employed Caregivers

14. • With reports showing persistent male-female disparities in pay
among all specialties even after accounting for age, experience,
faculty rank, and measures of research productivity and clinical
revenue, the AMA House of Delegates (HOD) took sweeping
action to study, act and advocate to advance gender equity in
medicine and within the AMA.
• At the 2018 AMA Annual Meeting in Chicago, the HOD adopted
a new policy – advocacy for pay structures based on objective
gender-neutral criteria.
• Training to identify and mitigate implicit bias in compensation
determination for those in positions to determine salary and
bonuses, with a focus on how subtle differences in the further
evaluation of physicians of different genders may impede
compensation and career advancement.
Gender Pay Disparity –
The AMA Is On The Move (1 of 2)

15. • The AMA is also directed to:
– Conduct extensive statistical research and issue reports.
– Assure that it is paying its own employees according to gender
neutral criteria.
– Recommend elimination of the question of prior salary from job
applications for physician recruitment in academic and private
practice.
– Create an awareness campaign to inform physicians of their rights.
– Develop guidance for medical schools on gender equity in
compensation.
Gender Pay Disparity (2 of 2)

16. • DOL – 2019 opinion.
• Do not delay in starting the FMLA clock as soon as it is known.
• No substitution of paid leave to stop the FMLA clock – 12 weeks
means 12 weeks.
• Neither the employee nor the employer has the right to choose
that the employee takes vacation pay over FMLA pay, where
FMLA applies.
FMLA 2019

17. • On January 25, 2019, the National Labor Relations Board
(NLRB) reversed an Obama-era decision addressing the
standard for distinguishing between independent contractors
and employees.
• The prior NLRB held that if a worker is economically dependent
on the business providing the work (i.e., the business provides
most or all of the work done by that worker), then that person is
most likely an employee, not an independent contractor.
• The Trump-appointed NLRB majority reversed that “economic
dependence” standard in its recent Super Shuttle decision, 367
NLRB No. 75 (Jan. 25, 2019), holding instead that it will analyze
independent contractor vs. employee status using the traditional
10-factor common law test viewed through the prism of
“entrepreneurial opportunity.”
Independent Contractor –
The Pendulum Swings

18. • A topic of constant confusion.
• Each employed physician/ practitioner has medical staff
privileges and also has an employment arrangement.
• Under the Stark Law, the arrangement does not require an
employment agreement, although usually one exists.
• When there is a clinical quality or integrity or behavior issue,
this could be handled through employment, through medical
staff corrective action, or some hybrid.
• Important to have a communication liaison, regardless.
Medical Staff Corrective Action/
NPDB Reporting

19. • Governed by the medical staff bylaws.
• Completely a medical staff function – administration may have a
role but the primary function is medical staff, reporting up to the
board – the board always has final approval.
• This is an action on clinical privileges – not an action on
employment.
• Does your employment agreement contemplate that if clinical
privileges end, employment ends? Vice versa?
Medical Staff Corrective Action

20. • If a privileged practitioner has issues worthy of employment
termination, it is certainly less of a headache to proceed with
that termination.
• Recognize, however, what happens to clinical privileges.
• Recognize potential negligent credentialing issues if medical
staff defers entirely to employment track (document well).
Taking The Employment Road

21. • Entities who are required to report to NPDB (including all
hospitals) must report when:
– The practitioner's clinical privileges are restricted for more than
thirty days.
– The practitioner voluntarily resigns while under investigation or to
avoid an investigation.
• What is an investigation?
– Arguably does not include purely employment activities.
– Arguably does not include peer review activities prior to corrective
action.
– NPDB defines it expansively.
NPDB Reporting

22. • Health Care Quality Improvement Act (HCQIA) gives immunity
to participants in professional review actions – which essentially
means medical staff corrective action looking at whether issues
of professional competence or conduct require action on clinical
privileges.
• Wis. Stat. s. 146.37 provides immunity to participants in "health
care services review" – which is broader – would include peer
review committees.
Immunity For Corrective Action

23. • Jussie Smollet's records were reportedly accessed in an
unauthorized manner by up to sixty Northwestern Hospital
employees who were then terminated.
• The Lesson: DO NOT SNOOP – WE CAN TELL IF YOU DO.
• Security reminders are a required element of the HIPAA
Security Rule – for covered entities and business associates.
• Employees need to learn – including physicians – that they
cannot snoop in their own or anyone else's records.
The Jussie Smollet Lesson

24. • The federal False Claims Act allows private citizens to bring "qui
tam" or whistleblower lawsuits.
• Health care employees alleging that their employers committed
fraud on the federal government have hefty financial incentives
and significant protections.
• Where an employee is complaining of potential fraud or false
claims, there can be no retaliation and the complaints – even if
they seem crazy – should not be ignored.
• Where compliance issues are recognized in the normal course,
consider whether there are likely whistleblowers which may
inform the urgency of self-reporting.
Whistleblowers - Federal

25. • Wis. Stat. s. 146.997.
• “Health care worker protection.”
• Employee of a health care facility who discloses violation of law
to authorities in good faith are protected from retaliation.
• If threatened with disciplinary action in violation of this section,
the Department of Health Services may take action and there
may be civil penalties.
• Notice to employees must be posted about their rights under
this statute – in conspicuous place or places in the facility.
Whistleblowers – State Law (1 of 3)

26. • Any employee of a health care facility or provider may report –
without retaliation:
– Any information;
– The disclosure of which is not expressly prohibited by any state law
or rule or any federal law or regulation;
– That would lead a reasonable person to believe:
• The facility/ provider has violated a federal or state law or regulation;
OR
• The quality of care being provided violates law, regulation or clinical or
ethical standards set by a professionally recognized accrediting or
standard-setting body – and poses a risk to public health or safety.
Whistleblowers – State Law (2 of 3)

27. • The report may be made to:
– State agency.
– Professionally recognized accrediting or standard setting body.
– To any officer or director of the health care facility or provider.
– To any employee of the facility or provider who is in a supervisory
capacity or otherwise in a capacity to take corrective action.
Whistleblowers – State Law (3 of 3)

28. • Update your Code of Conduct and internal compliance policy
and educate regularly on both.
• Document the management response to reports of compliance
issues/ fraud very carefully – thorough and independent
investigations.
• Ensure that the management response occurs in a timely
manner and if wrongdoing has occurred, affirmatively hold the
culprits accountable.
• Do your very best to ensure confidentiality in reporting – if legal
action occurs down the line, it is not always possible so don't
over-promise.
• Consider having employees certify regularly that they are not
aware of any compliance/ fraud issues.
Whistleblower Practical Advice

29. • Negligent Hiring
• Negligent Credentialing
• Employee Accommodations for Hazardous Drugs
• Antitrust Issues – Gun Jumping
• Employees Who Are Also Patients
– Occupational Health Records
– Wellness Fairs
A Mishmash Of Other Issues

30. Sarah E. Coyne
(608) 283-2435
sarah.coyne@quarles.com
Any Questions?
© 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the
information contained herein is intended as legal advice or opinion relative to specific matters, facts,
situations or issues. Additional facts and information or future developments may affect the subjects
addressed in this document. You should consult with a lawyer about your particular circumstances before
acting on any of this information because it may not be applicable to you or your situation.