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Welcome to the first of our holiday-themed (at least in title) blog posts.  As we approach the holidays at the conclusion of a financially challenging year, cost savings may be on the minds of many indexhealthcare business owners.  Healthcare employers may be considering—or have already considered—measures to save money and reduce payroll.  2020 was a difficult year for most businesses, and reducing payroll is an oft-appealing way to reduce expenses.  Frequently, a business’s highest paid earners are also among the older employees.  That fact prompts a look at the Age Discrimination in Employment Act of 1975 (“ADEA”) prior to making any employment decisions, such as eliminating positions.

For healthcare employers with 20 or more employees, the ADEA governs and makes it an unlawful employment practice to “discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s age.”  29 U.S.C. § 623.  The regulations create a protected class for individuals who are “40 years or older.”  29 C.F.R. § 1625.2.  To be certain, the ADEA and accompanying regulations do not require preferential treatment of employees over 40, and “[f]avoring an older individual over a younger individual because of age is not unlawful discrimination.”  Id.

An employee establishes a prima facie case of age discrimination by showing he or she “was (1) a member of the protected age group, (2) subjected to an adverse employment action, (3) qualified to do the job, and (4) replaced by or otherwise lost a position to a younger individual.”  Johnson v. Unified Gov’t of Athens-Clarke Cnty., 209 F. Supp. 3d 1335, 1341–42 (M.D. Ga. 2016).  The fourth prong, however, is generally not satisfied when it comes to position eliminations because the older employee was not replaced by anyone.  See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.2d 1264, 1271 (11th Cir. 2014).   The law accounts for this by altering the fourth prong in “reduction in force” cases, requiring the employee to “present sufficient evidence from which a reasonable jury could find that the employer intended to discriminate on the basis of age through its employment decision.”  Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1459 (11th Cir. 1997).  One such “method of establishing a nexus between age discrimination and adverse employment action is by statistical proof of a pattern of discrimination.”  Pace v. S. Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983).

South Carolina law recognizes breach of contract as a valid legal claim creating liability for the breaching party and damages for the non-breaching party. Before there can be a breach, ho051320015647-300x188wever, a party must establish a valid contract. A contract is created when there has been an offer identifying a “bargained for exchange,” acceptance of that offer, and an exchange or promise to exchange valuable consideration. Sauner v. Public Serv. Auth. of S.C., 581 S.E.2d 161, 166 (S.C. 2003). Once a contract has been created, both parties are bound by their duties thereunder.

Sometimes, however, a party stops performing his or her duties under the contract. He or she may communicate to the other party a desire to stop performing some or all duties or may simply stop performing all together. This is considered a breach of the contract. There can be many reasons for breach, including a disagreement between the parties or external circumstances that interfere with a party’s ability to perform.

The question, then, is what to do when one party stops performing. The first step is to look for an answer in the contract itself—did the parties agree to what happens in this situation? For example, if the non-performance is caused by some external factor out of the parties’ control making it more difficult than anticipated to perform, the contract may include a provision excusing a parties’ non-performance.

Last week, we posted Part 1 of this blog series.  Therein, you will find a discussion of employment discrimination laws that are potentially triggered when an employee requests to telework for tixeo-virtual-openspace-300x202health, safety, or disability reasons.  In Part 2, we examine how the state of businesses during the COVID-19 pandemic impacts the discussion of whether telework is a reasonable accommodation.

For many years, employers have asserted that regular attendance at the job site is an essential job function, and employers have often been successful with this argument and, consequently, avoided providing telework as a reasonable accommodation.  See, e.g., EEOC v. Ford Motor Co., 782 F.3d 753, 775 (6th Cir. 2015) (collecting cases).  Prior guidance from the Equal Employment Opportunity Commission (“EEOC”) stated that considerations as to whether telework is a reasonable accommodation “include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.”  Work at Home/Telework as a Reasonable Accommodation, EEOC Guidance (Feb. 3, 2003).  Because of the spread of COVID-19, many businesses have now operated on a telework model and done so successfully.  In fact, the Brookings Institute suggests up to half of American workers were working from home in April of this year.  Telecommuting Will Likely Continue Long After the Pandemic, Brookings Institute (Apr. 6, 2020).  Now that teleworking has been widely, and often effectively, used, the conversation around teleworking as a reasonable accommodation has evolved.

In September, the EEOC offered its guidance on the subject.  What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Sept. 8, 2020).  Therein, the EEOC recognized, “There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19.”  Id. § D.1.  An employer, however, is not automatically required to grant telework as a reasonable accommodation simply because the employee was allowed to telework for the purpose of slowing the spread of COVID-19.  In sum, “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.”  Id. § D.15.  If the employee has such a limitation and teleworking is a reasonable accommodation, the employer must show telework imposes an undue hardship.

As mandatory work-from-home restrictions related to COVID-19 relax, many employees have asked to continue working remotely to protect themselves and their families. Understandably, manycsm_FlatDesign-Telework_c532b56131-300x196 employers are unsure how to respond to such requests on both a practical and legal level.  This two-part series addresses some legal considerations for employers and employees regarding teleworking as a way to minimize health risks posed by COVID-19 for individuals with disabilities.  In Part 1, herein, we provide an overview of the reasonable accommodation laws protecting an employee with a disability.

Whether an employer is required to allow an employee to telework to accommodate a disability triggers the Rehabilitation Act and the Americans with Disabilities Act.  Both Acts prohibit employers from discriminating against an otherwise qualified individual with a disability.  42 U.S.C. § 12112(a); 29 U.S.C. § 794(a).  Discrimination includes failing to reasonably accommodate an employee with a disability.  42 U.S.C. § 12112(b)(5).

Qualified Individual with a Disability

Your reputation as a medical provider is a commodity you must protect, especially regarding your aptitude for providing patient care.  Of course, you may not be a perfect fit at every medical indexpractice.  When that happens, your employment may end, and you seek other employment.  No harm, no foul.

But what happens when your past employer provides a negative reference to your prospective employer?  Worse still, what if the reference falsely criticizes your competence as a medical provider?  And what if that false reference costs you the position?  Your past employer may be guilty of engaging in improper behavior providing you a remedy at law.

Defamation

If you are a non-physician owner of a medical practice, you may wonder what requirements govern the process of closing your small business.  Our Georgia-based business and healthcare law firm doctor-with-closed-sign-icon-300x233assists medical practice owners with set up, a variety of business transactions, dissolutions and wind-down of the business.  Medical licensing rules do not necessarily govern the non-physician owner, but there are potential obligations all owners should be aware of.

First, Retain Patient Medical Records.

Assuming the medical practice owns at least certain patient medical records, Georgia law requires the medical practice to maintain medical records for ten years from the date of creation and make those records available to patients upon request.  O.C.G.A. § 31-33-2(a)(1)(A).  There are exceptions to the ten-year rule.  For instance, a provider who is retiring or selling his or her practice is excepted if the provider completes certain tasks, including notifying the patients of the impending retirement or sale and offering to provide each patient’s records to another provider of the patient’s choice and, if requested, the patient. O.C.G.A. § 31-33-2(a)(1)(B)(i).  There are possible vendors with whom you may contract to assume this responsibility, if desired.  And if the medical records are electronic medical records (“EMR”) controlled by a third-party vendor, the vendor’s contract should be carefully reviewed and followed, subject to Georgia law requirements.

As Georgia schools and other businesses respond to open and operate safely in the face of the COVID-19 Pandemic, many are posting warning signs consistent with a new law in the state passed to protect them from liability.https://www.healthcarelaw-blog.com/files/2020/09/ewscripps.brightspotcdn.com_-300x169.jpg

Georgia-based Business and Healthcare Law Firm

This summer, Georgia joined many other states in passing a law to protect businesses including healthcare facilities and workers from liability from lawsuits brought by individuals or their survivors related to infections from or exposure to COVID-19 in visiting the premises of or obtaining healthcare services or personal protective equipment from those facilities, entities or individuals.  Senate Bill 359, signed by the Governor on August 5, 2020 provides that no healthcare facility or provider, entity or individual shall be liable for damages in an action involving a “COVID-19 liability claim” unless the claimant proves the actions of the healthcare facility, entity or individual resulted from gross negligence, willful and wanton misconduct, reckless or intentional infliction of harm.

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion relief act to provide financial support for individuals, businesses and CARES-ACT-close-scaled-e1585882477755-300x195government organizations that experienced revenue losses from COVID-19. The purpose of the Act is to offer financial relief and to establish telehealth benefits for patients needing non-COVID-19 services. Section A of the Act authorizes programs for relief and contains information about mandatory spending provisions, while section B contains provisions regarding discretionary and emergency appropriations. Over the next few weeks, this blog will discuss recent changes to the CARES Act, and the impact that those modifications are having on hospitals and physician practices. This post provides a brief overview of the CARES Act, as well as the attestation process that providers must follow upon receiving funds.

The Provider Relief Fund

The federal government partnered with United Health Group to disburse funds to providers from the Center for Medicare & Medicaid Services (CMS), through the Provider Relief Fund (the “Fund”). This $175 billion fund provides monetary relief for hospitals and healthcare providers on the front lines of the coronavirus response in the form of grants. The grants may be used for necessary expenditures due to the COVID-19 public health emergency and other expenses related to the Coronavirus that were not already part of an approved state or government budget.

About 20% of United States tax dollars are spent on heathcare.  Naturally, reducing improper payments has been a priority of CMS. Thus, all medical practice managers and healthcare providers should be aware of CMS’s process of contracting with Uniform Program Integrity Contractors (UPIC’s), private entities hired by CMS Health-Audit-300x200to audit providers suspected of fraud. UPIC contracts combine Zone Program Integrity Contractors (ZPIC’s) and Medicaid Integrity Contractors (MIC’s) to coordinate Medicare and Medicaid auditing. UPIC’s focus primarily on Medicare claims, and seek to distinguish between provider billing errors or fraud.

UPIC Audit Lawyers

Our business and healthcare law firm follows legal trends in the healthcare industry.  UPIC’s are private sector organizations that review Medicare claims in order to assist the government in recovering overpayments to healthcare providers.  UPIC audits are often generated through data analysis or by review of consumer complaints and most often target specific healthcare providers. UPIC’s conduct screening, medical reviews, and investigations, while also implementing remedies and collaborating with state and local governments to ensure compliance with payment guidelines. UPIC’s are organized regionally, with Georgia and South Carolina falling in District 4 and managed by Safeguard Services.  In recent years, home health agencies, DME companies, therapy clinics, and laboratories have been targets for fraud investigations through extensive audits.

Telemedicine has new and profound importance due to the COVID-19 crisis.  “Virtual” healthcare preserves patient protective equipment that would otherwiimage_4-e1587393250939se be used and allows physicians to manage chronic illnesses remotely, without the in-person interaction that exposes provider and patient to the risk of spread. This increased reliance on telemedicine has prompted state and federal legislative bodies to pass new rules and guidelines to promote access to telehealth services by reducing costs, increasing availability, and promoting relationships between healthcare providers and their patients.   Our Georgia-based business and healthcare law firm follows regulatory developments that impact healthcare providers.  As of the date of this post, seven states (Arizona, Florida, Kansas, Maine, New Jersey, Oregon, and Utah) have waived restrictions on telehealth. More relaxation of telehealth rules may be expected.

 New Regulations: an Overview

Virtual medicine is expected to aid in slowing the spread of coronavirus by limiting contact between individuals.  New telemedicine regulations encourage video and audio conversations between providers and their patients.  Telemedicine platforms can serve a variety of functions, some assist with managing patient triage, while others provide alerts to providers and patients in regard to medication management.  Other platforms allow for effective monitoring of chronic illnesses for patients, even with the strict social distancing guidelines that are currently in place. Thus, as part of an effort to allow healthcare providers to better support each other and their patients, the federal government has reduced the regulatory hoops that have previously limited access to Telehealth services. The CMS Fact Sheet discusses in depth the changes that have been made to provide virtual services.

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