What are the two major differences between Antikickback Statute and the Ethics in Patient Referrals Act (a.k.a. "Stark")?

(answer:  Stark 1)  applies only to physicians and 2) can be per se (no proof of knowingly or willfully comitting is required) while Antikickback can apply to anyone, but proof is needed that the defendent committed this "knowingly and willfully.")

Elements of a False Claim

1- Knowingly presenting to the U.S. government

2- False or fraudulent claim for payment or approval

3- No intent to defraud is required

4--All of above.

Answer :4 is correct.

This is news you can use.  Often there is confusion over whether or not patient identifiers and names can be posted in clinical areas like the ED or OR.  According to Sarah Fontenot  BSN, JD and teacher in the BOG Review Course, safety always trumps privacy appropos of  HIPAA.  She states this is even on the HIPAA information website with examples of the whiteboard as NOT a violation.

 I find much confusion over this in hospitals and without having visible showings of which patient is where in the ED and on other clinical units, you increase the risk of medication errors, wrong tests and treatments in the rapid fire clinical areas. Without a roster like this that is easily visible to staff you are inviting sentinel events.

Take this back to your ED's and they will love you for it!

Shari Welch, MD

We must consider and be aware of the collective agreement process which can be long, arduous and could lead to mistrust if we are not prepared and the bargaining process which could impact productive and caring workplace relationships if we are not educated.

 There is certainly a need for unions in a number of environments, therefore we must also take a proactive approach in understanding the laws, regulations, challenges and opportunities that unions bring to our field.

We must take a proactive approach to this subject.

A few key points:

Under the Fair Labor Standards Act of 1938:

-"The act does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old.  Similarly, the act does not limit the number of hours of overtime that may be scheduled.  However, the act requires employers to pay covered employees not less than one and one-half times their regular rates of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt."

-"It is a violation of the act to fire or in any other manner discreminate against an employee for filing a complaint or for participating in a legal proceeding under the act."

-"In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney's fees and court costs."

Family and Medical Leave Act of 1993 (FMLA)

What is the purpose of FMLA?

a.  to provide a means of employees to balance their work and family responsibility by taking unpaid leave for certain reasons.  b.  to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.  c.  to ensure appropriate coverage for companies with less than 50 employees.  d.  Both answers a and b.  e.  A, b, and c are all correct

Correct answer: d.  Both answers a and b

"FMLA provides that eligible employees of covered employers have the right to take up to 12 weeks of job-protected leave in any 12-month period for qualifying events without interferance or restraint from their employers." (Department of Labor FMLA)

What are the qualifying events that would make someone eligible for up to 12 weeks of job-protected, unpaid leave during any 12-month period?

a.  Birth and care of the employee's child, or placement for adoption or foster care of a child with the employee  b.  care of an immediate family member (spouse, child, parent) who has a serious health condition  c.  care of an employee's own serious health condition  d.  all of the above

Correct answer:  d.  All of the above

Appreciating the specialized and technical nature of medical peer review, I'm interested in knowing if anyone is familiar with a process that incorporates the patient?  The trend to include and treat the patient as member of the care team, in my opinion, is extremely positive.  Realizing that patient feedback/data may be evaluated as part of the process, I'm wondering if there are hospitals/medical centers that actually provide opportunities for patients to participate in the peer review process, directly.  Have any organizations appointed patients to sit on the peer review committee?  With the increased emphasis on collaboration, coordination, and teamwork, I'd also be interested in hearing about organizations that have "mirrored" a 360 performance evaluation process by including nurses, social workers and others in the peer review process.  With a working concept, that suggests modifying the peer review process to broaden representation and perspective, what are the practical, legal, and regulatory barriers or issues that would need to be addressed?  While most organizations have established interdisciplinary performance improvement programs, one question is whether such an approach (interdisciplinary) would be appropriate for peer review.  Thoughts on any or all of these questions/issues would be appreciated, as would comments about best practices, challenges, etc.

Legal Issues in Reduction of Workforce Simulation

FastServe Inc. is a $25 million, 350-person business that markets branded sports apparel to the Generation Y segment. To reach this target population, FastServe opened two online marketing and distribution Web sites. Ten percent of the company’s workforce was assigned to manage the online distribution. However, the 3-D ‘drape-n-see’ mannequins were cumbersome to download and as a result, customers were not making enough transactions for the online marketing and distribution Web sites to be financially viable. Therefore, FastServe abandoned the two online Web sites. This created a precarious situation in which the company had to downsize the online division. Five employees were identified for possible retention. This student’s responsibility is to determine which three out of the five employees are to be terminated. Each of the five candidates for dismissal is part of a protected work class. If an employee suspects he or she was terminated for reasons related to race, sex, age, religion, disability, national origin, or sexual orientation, this constitutes unlawful discrimination and opens the door for damaging lawsuits. To avoid litigation and to determine which candidates to terminate, key concepts of employment law will be evaluated, extenuating regulatory circumstances need to be identified, the interests of the organization need to be upheld, and a balance of legal and business risk must be attained.

Key Concepts of Employment Law

Carl Haimes

Carl is a 34-year-old male homosexual who is responsible for maintenance of computer systems and LAN lines and installation of Mac, Windows, and Linux platforms. Carl is a contract employee who has an above average performance rating, has an above median productivity level, is a qualified system analyst, and has a BS in Information Systems. Carl has no problems with absenteeism.

A coworker, Ben, has been making insulting remarks to Carl about his sexual orientation. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on their sexual orientation. Ben’s comments to Carl created a hostile work environment. Reed, Shedd, Morehead, and Corley (2004) asserted, “Another type of sexual harassment is the hostile work environment, one in which coworkers make offensive sexual comments...Title VII prohibits ‘an offensive or hostile work environment,’ even when no economic losses occur” (p. 452). Carl has sought advice on how to handle this situation.

Brian Carter

Brian is a 32-year-old male contract employee who was solely responsible for programming the 3-D ‘drape and see’ mannequins and who has an advanced certification in VCC++ and ASP. Brian’s performance is rated average and his productivity is rated median. Brian worked long hours creating the Web site mannequins. As a result, Brian suffers from carpal tunnel syndrome because of extensive strain on his wrist. In the last two months, Brian has called off 17 days because of severe pain in his right wrist. The Head of Technology (HoT) at FastServe has become annoyed with Brian’s absenteeism and has suggested that with or without reasonable accommodation, Brian is no longer a good fit.

Qualified disabled are defined as those with a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job position...Reasonable accommodation is the process of adjusting a job or work environment to fit the needs of disabled employees. (Reed et al, 2004, p. 463)

The employment law that would affect Brian is The American with Disabilities Act (ADA). The ADA prohibits discrimination against the disabled based on a person having a disability currently, having a disability in the past, or being regarded as having a disability (Reed et al. 2004).

Sarah Boyd

Sarah is 53 years-old and has been employed full-time at FastServe for 15 years as a clerk in Dispatch. Sarah’s responsibilities include mail sorting, dispatching, Web request handling, and managing Agency traffic. Although Sarah has no formal college education, she is skilled in office administration. Sarah’s performance is rated average, her productivity is rated median, and she has accumulated 12 days of absenteeism in the last two months. Considering Dispatch is being automated, Sarah’s job will soon be redundant. The key employment law concept pertaining to Sarah is The Age Discrimination in Employment Act (ADEA) “[The ADEA] prohibits employment discrimination against employees ages 40 and older, and prohibits mandatory retirement of these employees” (Reed et al, 2004, p. 462).

Nora Manson

Nora is a 28-year-old black woman. She has a good mix of skills, recently salvaging two big accounts. However, her performance and productivity has been above average and below median respectively. Nora is a contract employee and is a college dropout who is trained in public speaking. Her duties include handling upset callers, telemarketing, and preparing for closing sales. The employment law that would affect Nora is Title VII of the Civil Rights Act of 1964: Discrimination because of Race or Color. University of Phoenix (2006) simulation declared, “Title VII of the Act, which deals with employment practices, prohibits discriminatory employment practices based on race or color” (Related Source section, ¶ 1).

Jenny Mills

Jenny is a 30-year-old contract employee with a BS in Public Relations who is five months pregnant. Jenny is a Call Center executive. Her responsibilities include handling customer inquiries and troubleshooting common instrument problems. Her performance rating is average and her productivity rating is median. Over the past two months, Jenny has been taking excessive breaks and has accumulated 14 days absenteeism in the last month. Male colleagues have started complaining. Jenny claims her call schedule has not been affected.

The employment law that pertains to Jenny is Discrimination based on Sex: Pregnancy Discrimination Act. University of Phoenix (2006) simulation indicated, “Under the Pregnancy Discrimination Act, an employer cannot force a pregnant woman to stop working until her baby is born, provided she is still capable of performing her duties properly” (Related Resource section, ¶ 1).

Extenuating Regulatory Circumstances

Employment-at-Will Doctrine

“Historically, unless employees contracted for a definite period of employment (such as for one year), employers were able to discharge them without cause at any time. This is called the employment-at-will doctrine” (Reed et al, 2004, p. 416). All employees considered for termination are contract employees, except Sarah Boyd who is a full-time employee. FastServe would not be able to terminate the contract employees under the employment-at-will doctrine. Terminating the contracted employees could lead to contractual liability. A limitation of the employment-at-will doctrine that pertains to Sarah, the full-time employee, is the Age Discrimination in Employment Act, which forbids age-based discharge of employees over age 40.

Collective Bargaining

Because of limitations on discrimination in the employment-at-will doctrine, unions have addressed job-security issues through collective bargaining.

Collective bargaining consists of the process of negotiation between representatives of a union and employers (represented by management, in some countries by employers' organization) in respect of the terms and conditions of employment of employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions. The parties often refer to the result of the negotiation as a Collective Bargaining Agreement (CBA) or as a Collective Employment Agreement (CEA). (Wikipedia, 2006, ¶ 2)

Another extenuating regulatory circumstance – collective bargaining issue - that relates to Sarah is seniority systems. Sarah has worked for FastServe for 15 years. Reed et al (2004) asserted,

Seniority systems give priority to those employees who have worked longer for a particular employer or in a particular line of employment of the employer. Employers may institute seniority systems on their own, but in a union shop, they are usually the result of collective bargaining. (p. 460)

Affirmative Action

Under affirmative action requirements, federally contracting employers are required to employ persons from minority groups that are not adequately represented in the workforce. This extenuating regulatory issue would affect the decision of whether or not to terminate Nora, especially considering the fact that Nora is an active member in the National Association for the Advancement of Colored People (NAACP). Nora has persuaded numerous African-American employees to file discrimination complaints against FastServe.

The mission of the National Association for the Advancement of Colored People is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate racial hatred and racial discrimination...The following statement of objectives is found on the first page of the NAACP Constitution — the principal objectives of the Association shall be:

• To ensure the political, educational, social, and economic equality of all citizens
• To achieve equality of rights and eliminate race prejudice among the citizens of the United States
• To remove all barriers of racial discrimination through democratic processes
• To seek enactment and enforcement of federal, state, and local laws securing civil rights
• To inform the public of the adverse effects of racial discrimination and to seek its elimination
• To educate persons as to their constitutional rights and to take all lawful action to secure the exercise thereof and to take any other lawful action in furtherance of these objectives, consistent with the NAACP's Articles of Incorporation and this Constitution. (National Association for the Advancement of Colored People [NAACP], 2006, ¶ 1).

Reverse Discrimination

Affirmative action programs have caused those with higher qualifications to claim reverse discrimination when minorities are given preference in employment. All the employees, except Sarah and Nora, have advanced education. In fact, Nora is a college dropout and her productivity rating is less than that of all the other employees considered for termination. Any one of those being considered for termination, with the exception of Sarah, can claim reverse discrimination.

Disparate Treatment

An extenuating regulatory circumstance that can affect the decision to terminate Jenny is disparate treatment.

There has been an increase in the need for laws protecting the rights of pregnant women. Due to disparate treatment of pregnant women, laws have been established to protect their employment rights.... Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. (Pregnancy discrimination, 2005, ¶ 3)

Jenny claims that her breaks are very short and are related to her pregnancy. Additionally, Jenny asserts that her call schedule has not been affected as evidence by her median productivity rating.

Undue Hardship

The ADA mandates that employers must accommodate the needs of disabled employees and customers. However, an employer can plead undue hardship if the company cannot reasonably accommodate a disabled employee. Undue hardship is defined as ‘“an action requiring significant difficulty or expense,’ as a reason for accommodating the needs of disabled employees” (Reed et al, 2004, p. 467). The ADA determines justification of undue hardship based on the cost of accommodating the disabled worker, the resources, and size of the employer, and the type of the employer’s business. Considering the demise of the two online marketing and distribution channels, FastServe can use this extenuating regulatory circumstance to terminate Brian because his skills are no longer needed and it would not be economically feasible to accommodate for Brian’s disability.

On the other hand, Brian can claim workers’ compensation benefits. University of Phoenix (2006) simulation indicated, “[Brian] has been diagnosed with carpal tunnel syndrome due to excessive strain on the wrist. He will submit the medical reports tomorrow, he said in a voice message to his supervisor” (HR Records: Brian Carter section, ¶ 1). Work related injuries cost an organization an enormous amount of money. Fottler, Hernandez, and Joiner (1998) asserted,

Workers compensation is a state law procedure for an individual who is injured on the job. The purpose of the procedure is to establish a certain system for compensation of an individual who incurs medical expenses and loses earnings due to job-related injury. In addition, a purpose is to have finality, so that the employer does not have open-ended continuing litigation over work-related issues. (p.27)

Hostile Environment Claim

Courts have ruled that an employer is liable to a plaintiff employee for a hostile working environment created by fellow employees only when the employer knows of the problem and fails to take prompt and reasonable steps to correct it, such as by moving the harassers away from the plaintiff employee. (Reed et al, 2004, p. 455)

An investigation revealed that on many occasions, Carl was subjected to rude and hostile remarks regarding his sexual orientation. Carl has brought this issue to the attention of FastServe. “Employers are liable for acts that occurred before 180 days of EEOC filing if they are part of a single hostile environment that continued within the 10-day period” (Reed et al, 2004, p. 455). This extenuating regulatory circumstance can greatly influence FastServe’s decision to terminate Carl.

Interests of the Organization

The interaction among three parties is the basis of agency law. In this scenario, the principal is FastServe, the agent is the employee, and the third party is the legal counsel. Under the agency principle, it is one’s obligation to act in the best interest of the organization as opposed to self-interest. Therefore, the decision of which three people to terminate translates into the maximum benefits for FastServe. “Legal counsel with expertise in labor and employment laws should be consulted any time an employer is implementing employment actions that result in termination of the employment relationship” (University of Phoenix, 2006, Concept Summary section, ¶ 3)

With the demise of the two online marketing and distribution channels, it has become necessary to downsize the online division. Among the five people identified for termination, two employees will be retained and three employees will be terminated based on past performance, skill levels, and advice from legal counsel. The three employees chosen for termination include Jenny Mills, Brian Carter, and Sarah Boyd.

Jenny Mills and Sarah Boyd were terminated because of non-critical skills. Since FastServe is terminating employees to cut costs, those with non-critical skills were the first to be terminated. Under agency principles, the employer is the principal and the employee is the agent. “[It is the agent’s duty] to act for the principal’s advantage and not to benefit the agent at the principal’s expense” (Reed et al, 2004, p. 340). FastServe must communicate with Mills and Boyd that layoffs from the online divisions are inevitable and those with non-critical skills need to be let go. A severance package that includes severance pay, accrued vacation pay, and outplacement services that benefits both FastServe and these two employees would be an optimal way to approach this situation. Considering that Jenny is a contract employee issues regarding contractual liability need to be addressed with legal counsel.

With the demise of the two online marketing and distribution channels, the decision to terminate Brian centers on the redundancy of his VC ++ expertise. However, considering Brian has carpal tunnel syndrome, which can be directly related to his work in constructing the virtual mannequins, FastServe should consider the possibility that Brian may be eligible for Workers’ Compensation benefits. “Workers Compensation is a no fault workplace insurance program which provides benefits to workers who have a workplace injury and protects employers from the threat of workplace law suits” (Workers Compensation Board, 2006, Employers section, ¶ 1).

When an injury occurs due to a work related injury, the worker’s responsibilities are to immediately report the accident/injury to your supervisor and employer, to get first aid if you require it, to see a doctor immediately, and to be sure to tell the doctor that you were hurt at work, and to complete the Workers Report of Accident/ form # 6. The employer's responsibilities are to promptly file an Employer's Report of Injury /Form 7 within 3 days of being notified by the employee.

A [worker’s] claim information initially goes to an Entitlement Manager who will be responsible for accepting or denying the claim. That person will assist in gathering the necessary information. If the injury causes wage loss benefits for more than four weeks, the claim will be transferred to the case management team. They will assist throughout an employee’s medical recovery. (Workers section, ¶ 2)

Additionally, tort or personal injury claims often accompany claims of disability discrimination. Therefore, it is essential that the legal counsel’s advice regarding tort liability be sought and followed.

Balancing Legal Risk and Business Risk

“The central proposition of agency theory is that rational self-interested people involved in cooperate endeavors always have incentives to reduce or control conflicts of interest so as to reduce the losses resulting from them” (Chew & Gillan, 2005, Some Closing Thoughts section, ¶ 3). Balancing the legal risk of terminating individuals from a protected class against the business risk of losing valuable talent is not an easy task. According to FastServe’s attorney, among all the candidates for termination, Nora Manson is the one most likely to file a discrimination claim based on race or color.

In fiscal year 2004, the U.S. Equal Employment Opportunity Commission (EEOC) received more than 27,000 complaints of racial discrimination, settled nearly 3,000 cases, and levied more than $61 million in fines, according to the most recent statistics available. In fact, the Commission saw a 125 percent increase in the number of color discrimination charges filed between 1994 to 2004. Even in this age of lawsuits and antidiscrimination laws, there are still plenty of people who will put a noose on someone's desk to make a point, says David Grinberg, a spokesperson for the EEOC. (Woolston, 2001, ¶ 4)

Considering Nora’s engagement in the NAACP, her involvement in persuading other African-Americans to file discrimination complaints against FastServe and the aforementioned race/color discrimination statistical findings regarding race relayed charges and awards, it would be in FastServe’s best interest to retain Nora. Nora has special achievements that should be recognized; however, she demonstrates below median productivity. FastServe should recognize Nora’s achievements and should address her productivity issues by following a progressive disciplinary process that includes a written warning and a three-month probation period. Adequate documentation is essential in the protection against unjustified employee lawsuits. “Sometimes called the paper fortress, this documentation consists of job descriptions, personnel manuals, and employee personnel files” (Reed et al, 2004, p. 420).

FastServe’s attorney indicated that this might not be a good time to lay off Carl considering his complaint regarding co-workers making rude and derogatory comments about his sexual orientation, thus creating an offensive and hostile work environment. “In 1986, the Supreme Court in Meritor Savings Bank v. Vinson ruled that Title VII prohibits ‘an offensive or hostile working environment’” (Reed et al, 2004, p. 452). An employer has a legal and ethical duty to investigate thoroughly the charges when an employee complains that he or she is experiencing sexual harassment. In fact, if an employer knows about the harassment and fails to take reasonable steps to remedy the situation, the employer is liable. Heathfield (2006) recommended the following steps to address an employee’s sexual harassment claim:

• Legally, the employer will want to avoid any possibility or appearance that the employee’s complaint was disregarded. Respond immediately.
  
• Ethically, the employer will not want to allow such behavior to exist in their workplace.
  
• The trust, morale, and fair treatment of employees are at stake. An employer’s actions send powerful signals about what another employee can expect in similar circumstances.
  
• You may want to consider reposting and reiterating your sexual harassment policies across your whole work place. Let the circumstances guide your judgment.
  
• In all cases, make sure you make and keep complete and accurate documentation. Employees who are unhappy with the results of your investigation may take additional legal action. (¶ 3)

Conclusion

When an organization must reduce its workforce through discharges/layoffs, it creates an economically and emotionally painful situation for both the employee and employer. When determining whom to terminate, an organization must keep in mind the various discrimination laws and extenuating regulatory circumstances that an employee in a protected class may claim to prove discrimination regarding race, sex, religion, disability, national origin, sexual orientation, and age. In determining which three employees to lay-off, the interests of the organization needed to be addressed first. Additionally, in determining who was to be laid-off and how each termination was to be handled, the advice of counsel was paramount. When deciding whether to terminate an employee from a protected class, it often becomes necessary to balance the legal and business risks. Minimizing and avoiding potential legal liability necessitates one to evaluate the circumstances surrounding an individual from a protected class and weighing the possibility of those individuals succeeding in a discriminatory lawsuit.

References

Chew, D. & Gillan, S. (2005). Corporate governance at the crossroads: A book of readings (1st ed). Retrieved November 16, 2006 from University of Phoenix, Week Four, rEsource, MBA/560 Enterprise Risk Course Web site: https://ecampus.phoenix.edu/secure/resource/resource.asp

Fottler, M. D., Hernandez, S. B., & Joiner, C. L. (1998). Essentials of human resources management in health services organizations. Albany, NY: Delmar.

Heathfield, S. (2006). How to address an employee sexual harassment complaint. Retrieved December 9, 2006, from http://humanresources.about.com/cs/workrelationships/ht/sexualharass.htm

National Association for the Advancement of Colored People [NAACP]. (2006). Our mission. Retrieved December 8, 2006, from http://www.naacp.org/about/mission/

Pregnancy discrimination. (2005, August). Retrieved December 8, 2006, from http://www.azete.com/preview/28320

Reed, O, Shedd, P., Morehead, J., & Corley, R. (2004). The legal and regulatory environment of business (13th ed). Retrieved November 16, 2006 from University of Phoenix, Week Four, rEsource, MBA/560 Enterprise Risk Course Web site: https://ecampus.phoenix.edu/secure/resource/resource.asp

University of Phoenix. (2006). Legal issues in reduction of workforce [Simulation]. Retrieved December 8, 2006, from University of Phoenix, Week Four, rEsource, MBA/560 Enterprise Risk Course Web site: https://ecampus.phoenix.edu/secure/resource/resource.asp

Wikipedia. (2006). Collective bargaining. Retrieved December 8, 2006, from http://en.wikipedia.org/wiki/Collective_bargaining

Woolston, C. (2001). Race discrimination. Retrieved December 9, 2006, from http://www.ahealthyme.com/topic/racediscrim

Workers Compensation Board. (2006). Retrieved December 9, 2006, from http://www.wcb.pe.ca/index.php3