Health Law Pointers

 
Volume XX, No. 1
Friday, September 27, 2018

 

NEWSLETTER EDITOR
Lawrence M. Ross
[email protected]
 
ASSOCIATE EDITOR
Nicholas A. Pusateri
[email protected]
 

As a public service, we are pleased to present this issue of our health law newsletter addressing the legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail or call the Editor, Lawrence M. Ross, at (716) 849-8900. Special thanks to our colleagues, Tammy L. Riddle and Katherine L. Wood, for their contributions to this issue.

 

 
 

 

Employers, is your Sexual Harassment Prevention Policy Up to Date? 

Earlier this year, in what has been referred to as “advancing the women’s agenda,” Governor Cuomo’s budget bill passed comprehensive anti-sexual harassment legislation that impacted all New York State employers and expanded protection against sexual harassment to non-employees in the workplace.  The two main requirements of the law are that every employer must have a written sexual harassment prevention policy and employers must provide all employees with annual sexual harassment prevention training.  The law takes effect on October 9, 2018 and requires all employers to train their employees by January 1, 2019.

Minimum Policy Requirements

An employer can adopt the model policy published by the DOL and Division available in draft form on the DOL website to meet its obligations pursuant to Section 201-g of the Labor Law or it must adopt a written sexual harassment prevention policy that meets or exceeds the minimum standards below:

  1. Prohibit sexual harassment consistent with the guidance issued by DOL in consultation with the Division;
  2. Provide examples of the prohibited conduct that would constitute unlawful sexual harassment;
  3. Include information concerning the federal and state statutory provisions concerning sexual harassment, and remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  4. Include a complaint form;
  5. Include a procedure for timely and confidential investigation of complaints and ensure due process for all parties;
  6. Inform employees of their rights of redress and all available forums for adjudicating complaints administratively and judicially;
  7. Clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory or managerial personnel who knowingly allow such behavior to continue; and
  8. Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful.

Minimum Training Standards

Every employer in New York State must also provide annual sexual harassment prevention training to its employees starting October 9, 2018, and the training must be provided in the language that is spoken by their employees.  An employer that does not adopt the model training must adopt a training plan that meets or exceeds the following minimum standards:

  1. Be interactive;
  2. Include an explanation of sexual harassment consistent with the guidance issued by the DOL in consultation with the Division;
  3. Include examples of the conduct that would constitute unlawful sexual harassment;
  4. Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  5. Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  6. Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Conclusion

With October 9th just around the corner, now is a good time for employers to start reviewing their current policies to determine what revisions are needed to comply with the new legislation and to begin developing a training program to ensure employers meet the January 1, 2019 deadline for training all employees. 

 

 

 

Home Care Service Providers Beware: Amendments to New York State Law Increase Transparency and Give State Agencies More Control Over Your Business

Recent amendments to New York’s Public Health Law have advanced the State’s agenda of increasing control over Licensed Home Care Services Agencies (LHCSAs),[1] improving the quality and availability of LHCSA services, and decreasing costs to the Medicaid program. Over the past few years, LHCSAs have gained greater recognition as a critical part of the overall health care continuum. With increased prominence, however, comes greater scrutiny by State agencies. Increased scrutiny may also be a function of sloppy business practices and inattention to compliance matters. LHCSAs have been cited by regulators for a variety of violations, including fraudulently billing Medicaid and failing to pay their employees strictly in accordance with the requirements of New York’s Labor Law. The Public Health Law amendments are aimed at providing New York regulators with a closer look at how these agencies run their businesses and limiting the number existing LHCSAs.

State Registration. A new provision added to the Public Health Law, Section 3605-b, requires all existing LHCSAs to annually register with New York’s Department of Health (DOH). The reporting period begins on January 1, 2019.

The penalties are severe for tardy filing or noncompliance. DOH will prohibit operations by any LHCSA that does not timely comply with the annual registration. This means that even innocent violations will effectively bar a noncompliant LHCSA from operating or providing nursing, home health aide, or personal care services, or from receiving payment for providing such services until the organization is duly registered (!). DOH will also impose a monthly fine of $500.00 on each LHCSA that does not submit a complete and accurate registration within the required time period. Even more remarkable is the fact that DOH can revoke a LHCSA’s license for failure to register for two annual registration periods, regardless of whether the failure to register happens in two consecutive years. In other words, two strikes and you’re out. Late registration in multiple years could also subject a LHCSA to license revocation by DOH.

The public will easily be able to discern if an LHCSA is in compliance with this new requirement as the DOH intends to post on its website a list of all New York LHCSAs and each agency’s current registration status.

Cost Reporting. Public Health Law Section 3612 was amended to authorize the DOH Commissioner to require LHCSAs to report costs incurred by the agencies when providing Medicaid beneficiaries with health care services.

Upon notice from the Commissioner, a LHCSA will now have 90 days to report such costs to DOH. DOH may grant an additional 30-day extension upon a written request that demonstrates sufficient rationale or support, in DOH’s discretion, that the LHCSA cannot submit the report by the due date for reasons beyond its control. Should DOH identify any perceived inaccuracies in the LHCSA’s cost report, the LHCSA will have up to 30 days to correct the report to the satisfaction of DOH, or provide evidence to corroborate that the report was correct as initially filed.

Contract Limitations. For the past several years, New York’s Medicaid program has been changing from a largely fee-for-service payment model to a managed care model. As part of the process, DOH has been moving Medicaid recipients that need LHCSA services to managed long term care plans (MLTCPs). MLTCPs are private organizations that receive Medicaid funds and then contract with providers such as LHCSAs to provide covered services to Medicaid recipients. MLTCPs, however, have been overwhelmed with requests from LHCSAs to become such contracted providers (for example, some MLTCPs have contracted with over 100 LHCSAs).

Effective October 1, 2018, an amendment to Public Health Law Section 4403-f (7) limits, for a period of two years, the total number of LHCSAs that a MLTCP can contract with. The number of allowable LHCSAs depends upon the MLTC plan’s enrollment and location: for New York City, Nassau, Suffolk and Westchester counties (“Downstate”), the ratio is one LHCSA per each 75 enrollees; for the rest of the State, the ratio is one LHCSA per each 45 enrollees. A year from now, on October 1, 2019, the ratios will be adjusted: for Downstate, the ratio will become one LHCSA per each 100 enrollees; and for the rest of the State, the new ratio will be one LHCSA per each 60 enrollees. An MLTCP operating throughout the State is required to comply with the appropriate requirements for each region.

DOH, however, can increase a MLTCP’s maximum number of contracted LHCSAs, on a county by county basis, if the increase is necessary to avoid disruption of services in the area, or to ensure adequate access to services in the area (including special needs services and services that are culturally and linguistically appropriate).

Moratorium on New LHCSAs. New provisions in Article 36 of the Public Health Law impose a moratorium on applications for LHCSA licensure. The moratorium expires on March 31, 2020, unless extended further. As a result, DOH presently cannot accept or process a LHCSA application unless it meets one of three exceptions:

  • Assisted Living Program.  An application for LHCSA licensure accompanied by an application for licensure of an Assisted Living Program (ALP) (pursuant to Social Services Law Section 461-a) may be granted an exception. The ownership of each the LHCSA and the ALP must be identical. If the exception is granted, the LHCSA can only provide services to the ALP residents.
  • Change of Ownership.   Applications requesting a transfer or change of ownership in an existing LHCSA that has been operating for at least five years, for the purpose of merging the ownership of at least two LHCSAs, may be exempt from the moratorium. The exception aims to reduce the number of existing LHCSA license numbers.
  • Serious Concern. DOH may grant an exception if an LHCSA applicant demonstrates, in DOH’s discretion, that licensure is appropriate because the proposed LHCSA would address a serious concern. Serious concerns include inadequate access to: home care services in a geographic region; adequate or appropriate care, language and cultural competence; or special needs services. A presumption of adequate access exists if at least two LHCSAs operate in a county.

A revised LHCSA application and instructions include additional information about each exception and the necessary information that must be included for DOH to consider an exception. Click here for access to the revised application and instructions.

We encourage existing and proposed LHCSAs to contact Nick Pusateri or Lawrence Ross of our office about these recent changes to the Public Health Law to determine how and to what extent their business will be affected by the new legislation.  We would be happy to discuss any questions or concerns you may have in person or over the telephone


[1] LHCSAs provide hourly nursing care and homemaker, housekeeper, personal-care attendants and other health and social services inside people’s places of residence. Generally, LHCSAs’ services are available to persons who have private insurance and those who pay privately. In other cases, LHCSAs contract with local social services departments or certified home health agencies to provide services to persons with Medicaid coverage.

 

 

 

Presented with an Employment Agreement?  Beware of “Maximum Leave” Policy Provisions

In recently assisting a client with review of a physician’s employment contract, we came across a baffling provision. The provision read, in part:

Doctor agrees that the amount of time off of work he/she is eligible for under the Hospital’s [Family Medical Leave Act] policy in the applicable twelve-month period at the time any illness or disability occurs shall satisfy the Hospital’s duty to provide his/her time off as a reasonable accommodation for any such illness or disability under the federal Americans with Disabilities Act or the New York State Human Rights Law.  Doctor agrees that the Hospital shall not be obligated to provide any additional time off as a reasonable accommodation and that it would be an undue hardship for it to do so.

This policy is just one example of a “Maximum Leave” policy.  “Maximum Leave” policies limit the amount of time off of work for an employee to an employer-determined maximum amount even if the employee would otherwise be able to perform his/her job duties with additional time off.

Fortunately for medical professionals presented with similar contractual provisions, these policies are unlawful under the Americans with Disabilities Act.  Under the ADA, employers must evaluate each request for an accommodation on a case-by-case basis.  Blanket statements that leave over twelve weeks is an undue hardship to the employer and that extended leave will not be granted is a failure on the employer’s part to engage in a case-by-case analysis of undue hardship required under the ADA. 

If you find yourself presented with an employment agreement that contains a provision such as the one above, you should absolutely insist that your potential employer remove the provision.  Better yet, have Hurwitz & Fine’s team of experienced Health Law and Employment Law attorneys review and negotiate your employment agreement.

 

 

 

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