Health Law Pointers - Volume II, No. 6

Family and Medical Leave Act Quiz:

The Family and Medical Leave Act ("FMLA") presents numerous compliance issues for many employers1. Test how well you know your obligations to employees under FMLA by answering the three questions noted below.

True or False:

1) A "serious health condition" under FMLA and a "disability" under the Americans With Disabilities Act are considered equivalent.

2) An employee is eligible for FMLA leave protection if the employee suffers from a serious health condition that keeps her from working in her current position.

3) An employer may terminate an employee because the employee is working in a similar capacity for another employer while out on FMLA leave.

See answers below.

1 Employers with 50 or more employees within a 75 mile radius are required to comply with FMLA.

Governor Pataki Approves Historic Medicaid Fee Increases

On September 26, 2000, Governor Pataki approved significant Medicaid fee increases for office visits, ophthalmology visits, anesthesia and emergency room services. The new rates took effect October 1, 2000. The Governor hopes that these increases will entice quality health care providers to participate in the State’s Medicaid program. To view Governor Pataki’s letter and the new schedule of fees, click on the following sites:

New York Court Says Physician Assistants
May Perform Medical Services Without
A Supervising Physician Present

A New York State Supreme Court judge recently allowed a jury to decide if a physician assistant ("PA") violated the Education Law when the PA performed an advanced breast biopsy instrumentation on a patient without her supervising physician present. The patient alleged in her complaint that she was injured because of the PA’s negligence because the PA failed to wait for the physician. In deciding not to grant summary judgment in favor of the patient, the court found that the Education Law does not necessarily require the supervising physician to be continuously present during the procedure. The court relied on the legislative history of Section 6542(1) of the Education Law, which appears to support the conclusion that the PA may perform the procedure so long as the physician is available to respond to questions and emergencies. To view Section 6542(1) of the Education Law, go to

Final Standards Set by HHS for Electronic Health Care Transactions

On August 11, 2000, the Department of Health and Human Services ("HHS") issued its final rule setting forth industry-wide standards for the electronic transfer of health care transactions. The new rule became effective October 17, 2000. All health plans, providers and clearinghouses must be in compliance with the rule within three years2. Under the rule, the standards developed by the American National Standards Institute Accredited Standards Committee X12N shall apply to all health claims, enrollment, eligibility and payment transactions, except pharmacy transactions. The National Council for Prescription Drug Programs standards shall be followed for all pharmacy transactions.

At this time, it is not recommended that small group practices and health plans spend significant resources in attempting to comply with this new rule. The rule is not only subject to substantial revision before the projected compliance dates, but HHS Secretary, Donna E. Shalala, stated that HHS would seriously consider suspending or withdrawing this rule if its rules regarding the privacy of individual health information as required under the Health Insurance Portability and Accountability Act of 1996 are not in place before the stated compliance deadlines.

2 Health plans with more than $5 million in annual receipts must comply with the new electronic data interchange rule within two years. All others will have three years to comply.

Federal Prosecutors Charge Florida Pharmacist
With Dispensing Drugs Without a Prescription

A South Florida pharmacist has been charged with dispensing drugs without a prescription after federal prosecutors determined that he dispensed thousands of Viagra pills over the Internet prior to obtaining a physician’s prescription. The pharmacist provided Viagra to customers of an Internet company known as An employee of the Internet company also pled guilty to the same charge. If convicted, the pharmacist could lose his pharmaceutical license in addition to facing criminal penalties.

Answers to FMLA Quiz:

1) False. The standard for determining eligibility under FMLA is whether the employee suffers from a "serious health condition," which is defined by the Department of Labor as an illness, injury, impairment or a physical or mental condition that meets one or more of the following conditions:

bullet inpatient care in a hospital, hospice or residential medical facility;
bullet a period of incapacity or more than three consecutive calendar days that also involves continuing medical treatment by a health care provider;
bullet any period of incapacity because of pregnancy or for prenatal care
bullet any period of incapacity or treatment for such incapacity because of a chronic health condition, such as asthma;
bullet permanent or long-term care for illnesses such as cancer or severe stroke; or
bullet any period of illness for surgery, accidental injury or illnesses that would result in three consecutive calendar days of incapacity if untreated (i.e. – dialysis for kidney disease, chemotherapy for cancer), including treatment for substance abuse.

Under the ADA, the legislation focuses on ability, not disability. In order to be protected against discrimination under this federal statute, an individual must be a "qualified individual with a disability". This means that the individual must have a physical or mental impairment which substantially affects one or more major life activities (i.e. working, walking, breathing, etc.) and must meet the educational or experience requirements of the employment position and be able to perform the "essential functions of the job" with or without reasonable accommodations.

2) True. A serious health condition (defined above) need not make the employee totally disabled or even unable to perform any other job. One of the motivating factors driving the adoption of FMLA was Congress’ concern over the lack of job security for employees with serious health conditions. It does not matter that the employee could find work elsewhere. Rather, it only matters that the employee suffers a "serious health condition" that prevents her from performing her current job.

3) False. According to the United States Court of Appeals for the Eighth Circuit, an employer may not terminate an employee who has been granted FMLA leave even if the employee is working in a similar capacity for another employer if the employee’s "serious health condition" prevents her from performing her job with the employer granting FMLA leave. Stekloff v. St. John’s Mercy Health Systems, 218 F.3d 858 (8th Cir. 2000). In Stekloff, the employee, a registered psychiatric nurse, had an argument with her supervisor just prior to walking off the job and obtaining a physician’s recommendation that she take two weeks off. Her physician emphasized that she needed a break from St. John’s because the working environment there was "re-injuring a traumatized area of her life." Id. at 860. The employee, however, also worked as a registered nurse at a skilled nursing facility and continued to work in this position while out on FMLA leave from St. John’s. After eight days of leave, St. John’s terminated the employee for abandoning her position. Relying on the Department of Labor regulations, the court found that the employee was protected by FMLA because her serious health condition temporarily prevented her from working at St. John’s even though she was able to continue to work in another position.

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