Health and Law
100honestywork
chapter_8.docxChapter 8
Learning Objectives
After completing this chapter, you will be able to:
· 1. Define the key terms.
· 2. Discuss the regulations concerning equal employment opportunity and employment discrimination.
· 3. Describe the regulations affecting employee health and safety.
· 4. Discuss the regulations affecting employee compensation and benefits.
· 5. Give examples of regulations affecting consumer protection and collection practices.
· 6. Describe accommodations that can be made in the workplace for persons with disabilities.
· 7. List several questions that may be legally asked during an employment interview and several questions that are illegal to ask during the interview.
· 8. Discuss guidelines for good hiring practices.
Key Terms
Affirmative action programs
Age Discrimination in Employment Act (ADEA)
Americans with Disabilities Act (ADA)
Autonomy
Bias
Bloodborne pathogens
Civil Rights Act
Clinical Laboratory Improvement Act (CLIA)
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Creditor
Debtors
Discrimination
Drug-Free Workplace Act
Emergency Medical Treatment and Active Labor Act (EMTALA)
Employee Retirement Income Security Act (ERISA)
Employment-at-will
Equal Credit Opportunity Act
Equal Employment Opportunity Act (EEOA)
Equal Employment Opportunity Commission (EEOC)
Equal Pay Act
Ethnocentric
Fair Credit Reporting Act
Fair Debt Collection Practices Act
Fair Labor Standards Act (FLSA)
Family and Medical Leave Act (FMLA)
Federal Insurance Contribution Act (FICA)
Federal Wage Garnishment Law
Garnishment
Just cause
National Labor Relations Act
Occupational Safety and Health Act (OSHA)
Parenteral
Patient dumping
Preempt
Pregnancy Discrimination Act
Rehabilitation Act
Right-to-know laws
Social Security Act
Stereotyping
Title VII of the Civil Rights Act
Truth in Lending Act (Regulation Z)
Unemployment compensation
Vesting
Workers’ Compensation Act
Wrongful discharge
THE CASE OF JANET K. AND EPILEPSY
Janet K. had suffered from epilepsy since she was an infant. Her condition was well controlled as she entered adulthood, and she was able to complete a nursing program in good health. She particularly enjoyed working as a scrub nurse in the operating room. Upon graduation she applied at the large university teaching hospital where she had performed her clinical work during her nursing program. The hospital knew of her epilepsy history and offered her a job in their medical records department. Janet petitioned to be able to work in surgery but the hospital administrators felt that it was too dangerous for Janet and for the surgical patients if she should have a seizure there.
While working in medical records Janet’s seizures began to return. She would have a seizure at least every month even though her medications had been changed. Janet noticed that some of her fellow medical records technicians would stay away from her for fear of not knowing how to help her during a seizure. One afternoon a physician was dictating his case records in a cubicle next to Janet’s when she had a seizure. He helped her and then went to the hospital administrator and told her that Janet should not be allowed to work in a hospital since it gave the hospital, with its image of healing, a bad reputation.
Janet, at the age of 27, was the only one terminated due to departmental downsizing. She died of a brain tumor five years later.
· 1. Are there some medical or mental conditions that should prevent a person from working in a hospital or other medical setting? If so, what are they?
· 2. What should have been done when Janet’s coworkers shunned her?
· 3. Was the physician who helped Janet when she had a seizure correct in asking the hospital administrator to dismiss (fire) her?
· 4. Should Janet have been given the opportunity to work in surgery? Why or why not?
Introduction
Applied ethics always involves people. And where better to promote good ethical practices than in the workplace—whether it is a hospital, medical office, clinic, nursing home, hospice, or agency? While it is just common sense to treat people one works with well, it is often the workplace where people suffer discrimination, harassment, and other unethical practices. You will note that many of these laws were established as far back as the 1930s. They are one of the reasons that we have fair standards and protection in the workplace today.
PROFESSIONALISM IN THE WORKPLACE
The profession of medicine, whether practiced by a physician, nurse, medical assistant, or other healthcare professional, is inherently meaningful. A medical or health-related career usually requires several years of education to achieve competence, and, in many cases, it is a career that a person selects for all of their working years. Healthcare professionals can justifiably find pride in their achievements.
Medical professionals do not enter their field of study with the expectation that they will have to compromise their professional behavior. However, it has become increasingly difficult to provide the level of care and concern for patients given the elements of increased documentation and sicker patients staying fewer days in a hospital to recover from illness or surgery. In some cases, very ill patients are being seen in medical offices, emergency room settings, or clinics because they do not have insurance to pay for a hospital stay.
In today’s world of specialization, patients may have several physicians managing their care. This can result in the patient’s spending less time with any one medical professional. In fact, many patients feel that the care they receive has become depersonalized as they never get to know any one caregiver very well. The reverse is also true, as medical professionals become frustrated that they do not have enough time to really get to know and understand their patients.
The case of Libby Zion illustrates this point. Libby was an 18-year-old college student who was treated in a large, busy New York teaching hospital. She entered the hospital’s emergency room with moderate aches and pains suggesting influenza. Libby also exhibited agitated behavior but did not tell the emergency room physician that she used drugs. She was given a sedating medication as well as physical restraints to control her agitated movements. Libby died eight hours after she was admitted. Her parents and several journalists investigated the competence and amount of time spent by the medical personnel who cared for Libby. They also examined information about the long hours that interns and residents work in a teaching hospital. The results of the parents’ crusade, media coverage, and a resulting court case meant that there is now a closer look at accountability and supervision in teaching hospitals. Interns and residents now have mandatory rest periods and days off work as a result of the Libby Zion case. More than 25 years after Libby’s death, her legacy lives on in the important changes made in the care of patients.
Professionalism means that each healthcare professional will monitor the time and care that each patient receives so that the care is effective, as well as efficient. It means that we treat all patients with the same standards regardless of race, color, religion, gender, or national origin. This responsibility should not be left to others.
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Efficiency is getting the job done; effectiveness is doing the right job! This is especially true in healthcare.
DISCRIMINATION IN THE WORKPLACE
In spite of knowledge about good healthcare habits, people working in the healthcare field often suffer from many of the same problems that affect their patients. For example, overweight nurses, medical assistants, and other healthcare professionals may experience discriminatory behavior due to their weight. In some cases, overweight or obese health-care professionals are either not hired or else they are placed in an unpopular work setting where they will not be seen or promoted. It is an injustice to discriminate against either a fellow employee or a patient because of their weight.
Some companies and hospital have implemented wellness programs, including weight loss, with the belief that healthy employees are more productive. Ethical concerns about privacy issues arise even from well-meaning wellness programs when electronic data records are kept to track the employee’s weight loss.
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As simple as this sounds, always treat a coworker as you wish to be treated.
PRIVACY AND THE WORKPLACE
The federal government has taken an active role in attempting to prevent violations of a patient’s privacy. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), discussed in Chapter 10 , includes stiff fines and other penalties if a patient’s privacy is violated. However, in spite of federal regulations, some healthcare workers are still invading a patient’s privacy, often just to satisfy curiosity.
For example, seven-year-old Nixzmary Brown was found beaten and starved and left to die in a small room that her brothers and sisters called “the dirty room.” Her mother and stepfather were both charged with the crime. According to New York’s Health and Hospitals Corporation, dozens of workers, including doctors, nurses, technicians, and clerks, opened the patient’s computer file even though they had nothing to do with the case. There were several employees who had a legitimate reason to view the file on a “need to know” basis, but investigators believe that 39 employees opening the file were just too many. It was determined that “sheer curiosity” had driven many of the healthcare workers to open Nixzmary’s file. The stepfather was convicted in 2006 of first degree manslaughter and sentenced to 29 years in prison. The mother was convicted in 2008 of first degree manslaughter and sentenced to 43 years in prison.
On October 9, 2009 the governor of the state of New York signed into law “Nixzmary’s Law” making the maximum penalty for torturing and murdering a child life in prison without parole. This child’s death caused an overhaul of the Child Protective Services system. The 39 hospital employees who violated the child’s privacy were suspended for 30 to 60 days without pay and received privacy training before returning to work.
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Opening a patient’s medical file should always be on a “need to know” basis. Any other reason may constitute an illegal action.
It is just as inappropriate to look at a coworker’s personnel file as it is to illegally examine a patient’s file. A coworker’s personnel evaluations and salary levels are privileged information. Viewing personnel records without a “need to know” could result in dismissal from a job.
CULTURAL CONSIDERATIONS
A person’s background and experience heavily influence personal beliefs. Ideally, everyone entering the medical profession should examine his or her own cultural background to be sure he or she will be able to provide patient care in sensitive situations.
Because family can be extremely important in some cultures, do not be surprised if your patient brings along the entire family for emotional and physical support. In some cultures, a male must always be present if a female member is being examined or meeting with strangers.
The diversity of the U.S. culture presents many challenges for both the healthcare professional and the patient. Stereotyping can occur when negative generalities concerning specific characteristics about a group are applied unfairly to an entire population. For example, a statement such as, “Those people are all welfare cheats” is unfair and incorrect when applied to a large group of people. A bias , or unfair dislike or preference against someone, can prevent a healthcare professional from making an impartial judgment. Do not judge a person by their clothes, body piercings or tattoos, or hygiene. As an example, different cultures have their own practices for personal hygiene. A bias occurs when a healthcare professional doesn’t pay any attention to a person who displays poor hygiene or has a body odor.
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It is always wise to keep one’s opinions about the use of deodorants, clean clothing, and frequent bathing to oneself, unless the patient’s health is suffering as a result of poor hygiene conditions. Slang terms for dealing with bodily functions should never be used. It’s perfectly acceptable to ask a patient if he or she has to use the bathroom.
Ethnocentric people tend to believe that their way of viewing and experiencing the world is superior to others’ views. It is a method for judging the actions of others according to our own cultural background. For example, if one is heterosexual, then to decide that gay and lesbian persons are inferior to one’s own background is ethnocentric and can result in stereotyping and prejudging people. In order to avoid these negative behaviors:
· Be aware of your coworkers’ and patients’ beliefs.
· Learn as much as you can about other cultures, races, and nationalities.
· Be sensitive to the feelings of others.
· Evaluate all information before accepting it as a belief.
· Always avoid ethnic jokes. Walk away if a coworker is telling an ethnic or disrespectful joke.
· Be open to differences in other people.
Communication can be a challenge for many people who do not understand English. For example, a nod of the head up and down means “yes” to an American, but it means “no” in some other cultures. Non-English-speaking patients need brochures and handouts in their own language. Many publications are now available in Spanish and other languages. Always attempt to find an interpreter when giving instructions to a non-English-speaking patient. If one is unavailable, the website http://babelfish.yahoo.com/ is helpful in translating English words and phrases into a second language. It is imperative, and in some cases required by law, that an interpreter be present when explaining important information to a patient. Patients in hospitals and other medical facilities are now routinely given a form to sign asking if they wish an interpreter. Patients may have to be assisted in finding the best community resource to help them because in some cultures it is unthinkable to ask strangers for help.
MED TIP
Healthcare professionals must be ready to help people regardless of their income levels, cultural origins, or attitude.
Since there is often a strong ethnic population in some hospitals and medical practices, it is wise to learn all you can about their beliefs. For example, in some cultures it is considered rude or disrespectful to look directly into a person’s eyes or to touch the top of a child’s head. Some cultures, including Americans, consider modesty to be extremely important. It is always important to make sure that patients are covered with either a gown or draped sheet when having an examination. In some cultures a woman is not allowed to undress or bare any part of her body in front of a man without her husband’s permission. Shaving hair before an examination or surgical procedure is not allowed in some cultures. These cultural restrictions can pose difficult situations that need to be handled carefully and sensitively.
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It is wise to keep in mind how you would wish to be treated if you were a patient in another country without the use of the language.
Many people, especially the elderly, do not like to be addressed by nicknames such as “dear” or “honey.” It is always wise to use a title such as Ms., Mrs., or Mr. unless told otherwise by the patient.
RELIGIOUS CONSIDERATIONS
Respecting religious beliefs of others can be a difficult, but necessary, responsibility for the healthcare professional. Advance directives, consent to treatment, and the use of birth control devices are often influenced by a person’s religious beliefs. In some cases, it may mean rejecting medical interventions such as blood transfusions, but in other instances it might mean that a patient rejects all medical care.
From an ethical perspective, the principle of patient autonomy , or independence for their beliefs, is always an important consideration. However, all of these, sometimes conflicting, conditions can result in confusion for the medical professional. As long as a person is competent, he or she has the right to make his or her own decisions. Bioethical and legal issues arise when a person is called upon to make this decision, based upon his or her own religious beliefs, for another person such as a child or an elderly or incompetent adult. In these cases a guardianship may have to be established by the courts so that the best interests of the patient are observed. There will always be ethical discussions about where religious boundaries should be drawn and when the state should step in to protect the individual.
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It is never appropriate to judge, either with verbal or nonverbal criticism, another person’s religious customs and beliefs. An exception occurs when there is evidence of abuse as a result of a religious practice.
There are some beliefs that do not allow a person to receive a blood transfusion. When such a situation occurs a physician may seek a court order for a child to receive blood over the objections of the parent. The case of Prince v. Commonwealth of Massachusetts reasoned that “Parents may be free to be martyrs themselves. But it does not follow that they are free in identical circumstances to make martyrs of their children” (Prince v. Commonwealth of Massachusetts, 321 U.S. 158 1944). An even more difficult situation arises when a pregnant mother refuses a transfusion that could save her life and the life of her unborn child. According to her religious beliefs, the mother may believe that “ingesting blood” may doom her in the eyes of her God. In this case a physician, or hospital administrator, would have to seek a court order to administer the blood transfusion.
MED TIP
Remember that the patient’s wishes should be honored if they differ from our own beliefs. The exception to this is when a belief may result in harm to either the patient or the health-care worker. In that case, a supervisor must intervene.
An employer has a legal obligation under the Civil Rights Act (discussed later in this chapter) to make accommodations so that employees can practice their religious observations. For example, members of the Jewish religion must observe Saturday as the Sabbath day on which they may not work. Therefore, it would be improper to set up Friday evening meetings after sundown or Saturday meetings that require all employees to attend. It would also be inappropriate to schedule Sunday morning meetings that Christian employees are required to attend. The law also requires that businesses must provide reasonable accommodations, such as a prayer room or a special cleansing bathroom, for employees to practice their religion, as long as it doesn’t interfere with other employees’ rights.
EFFECTIVE HIRING PRACTICES
There are many examples of lawsuits relating to hiring practices that would not have happened if the employer had acted within the confines of the law. Fairness is one of the most important elements when supervising employees. In addition, employers can improve the quality of their employees by using an effective screening process before the actual hiring takes place. It is imperative to perform thorough background checks on applicants in the healthcare field because they may not confess to a criminal record on an application form. Employers are at risk of lawsuits when they hire employees who are a foreseeable danger to others. Some recommendations for good hiring practices are presented in Table 8.1 .
The employee handbook usually explains behaviors, such as sleeping on the job, that can cause an employee’s termination. Management needs to use care when issuing a handbook. Statements in employee handbooks have been interpreted as “implied contracts” in a court of law. In Watson v. Idaho Falls Consolidated Hospitals, Inc., a nurse’s aide claimed wrongful discharge and sued her employer, a hospital, for violating provisions in the employee handbook when it terminated her. Employees had been asked to read and sign a revised handbook to show that they understood hospital policies regarding counseling, discipline, and termination. The court stated that management and the employees were under an obligation to follow the policies stated in the handbook. Because it was proved in court that the hospital violated the stated policy in the handbook when it terminated her, Watson won her suit. (Watson v. Idaho Falls Consol. Hosp. Inc., 720 P.2d 632, Idaho 1986).
In another case, a Minnesota court held, in a wrongful discharge suit, that the hospital’s employee handbook was clearly an employment contract. The handbook contained detailed statements on conduct and procedures for discipline, which the hospital violated when it fired the plaintiff (Harvet v. Unity Medical Ctr., 428 N.W.2d 574, Minn. Ct. App. 1988). These cases indicate that the employee handbook must be carefully examined for any erroneous or misleading statements.
TABLE 8.1 Recommendations for Good Hiring Practices
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· Develop clear policies and procedures on hiring, discipline, and termination of employees. · Effectively screen potential employees’ backgrounds. · Clearly state in all written materials, such as employee handbooks, memos, and manuals, that an employee handbook is not a contract. · Use a two-tier interview screening process. Have candidates interviewed both by health-care professionals who will supervise or work with the new employee and by trained human resource or personnel department employees. · Carefully assess the applicant’s skill level by having him or her perform some of the position requirements (i.e., drawing blood samples, teaching, performing surgical setups). · Develop an application form that asks for appropriate information about the applicant’s qualifications. · Provide a job description to every employee. · Develop a progressive disciplinary procedure and make the policy known to all employees and supervisors. · Whenever possible, have human resource personnel present during the firing process. Document what is said during this process. · Provide in-service training to supervisors on how to conduct job interviews and motivate and discipline employees. · Become familiar with the legal and illegal questions that can be asked in an employment interview. |
In addition, employees should be given opportunities to speak and present evidence in their own behalf. Employees should be allowed to see, comment on, or copy anything affecting them in written reviews and personnel file memos.
LEGAL AND ILLEGAL INTERVIEW QUESTIONS
The Equal Employment Opportunity Commission (EEOC) has strict guidelines on the types of questions that can be asked during a job interview. These questions have both ethical and legal considerations. Questions that may be interpreted as discriminatory cannot be asked. In some cases, a question may be legal but still inadvisable for an interviewer to ask. For example, while it is legal under the law to ask if an applicant is married, it is inadvisable because it may be discriminatory. Marriage has nothing to do with job performance. If an unmarried applicant is hired, a married applicant may believe that he or she was not given the job based on marital status. Table 8.2 contains a list of questions you can and cannot ask during an interview.
TABLE 8.2 Legal and Illegal Questions
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Questions |
Legal/Illegal |
|
Age? |
Legal to ask applicants if they are between the ages of 17 and 70, but not to ask their specific age. If their age falls outside these boundaries, then it is legal to ask their birth date. |
|
Birthplace? |
Legal, but inadvisable to ask where the applicants, their parents, spouse, or children were born. It is illegal to ask about their national heritage or nationality or that of their spouse. |
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Address? |
Legal to ask, along with how long the applicant has lived there. |
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Married? |
Legal to ask, but inadvisable. |
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Maiden name? |
Illegal as this could indicate a marriage. May inquire if reference information (educational, employment, license) is under a different name. |
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Children? |
Illegal to ask. It is also illegal to ask any questions relating to childcare arrangements. |
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Height and weight? |
Illegal to ask unless it relates to the job requirements. |
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Race or color? |
Illegal to ask. |
|
Religion or creed? |
Illegal to ask, but it is legal to ask if working on a particular day, such as a Saturday or Sunday, would interfere with applicant’s religious practices. |
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Ever been arrested? |
Illegal to ask because an arrest does not indicate guilt. It is legal to ask if the applicant has ever been convicted of a crime or have any pending felony charges. For example, “Have you been convicted within the past year on drug-related charges?” |
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Citizenship? |
Legal to ask, “Are you a citizen of the United States?” |
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Handicaps? |
Illegal to ask if an applicant has a handicap or a disease. It is legal to ask if the applicant has any physical impairment that would affect his or her ability to do the job. |
|
Organizations you belong to? |
Legal to ask applicants if they belong to any organizations. Illegal to ask about membership in any specific organization or to require applicants to list the organizations to which they belong. |
|
Languages? |
Legal to ask what languages a person can speak or write. However, it can be perceived as discriminatory and a method to determine a person’s national origin. |
|
Military experience? |
Legal to ask if the person has been a member of the armed forces, type of training, and when discharged. Illegal to ask what type of discharge was received (honorable, dishonorable, medical, etc.) |
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It is important in a healthcare setting to make careful background checks—especially relating to drug use—before hiring an individual.
FEDERAL REGULATIONS AFFECTING THE PROFESSIONALS
Both state and federal laws regulate the employer (physician) and employee (staff) relationship. In some cases, local laws in a particular city or county may also regulate a medical practice. Therefore, healthcare facilities and medical practices must remain current on regulations affecting employment practices, such as health, safety, compensation, workers’ compensation, unions, and discrimination laws. Generally, federal laws apply only to those businesses or organizations that employ a declared number of employees (such as 15, 20, 50 or more), and who work a minimum number of weeks in a period of a year. It is always wise to seek advice from legal counsel or a corporate attorney, if the organization has one on staff, concerning specific cases.
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It is a widely accepted policy that all employees, whether working in the healthcare field or elsewhere, should receive time away from their workstation for a lunch break (1/2 hour) and two 15 minutes breaks during an eight-hour workday. These breaks may be required as part of a union agreement if employees are unionized. These policies may be established in individual states by the Department of Labor.
In most situations, federal laws preempt , or overrule, state laws. However, there are some exceptions. One occurs when there is not a federal law relating to a topic, in which case the states can then regulate it. A second exception occurs if the court has already ruled that state law does not conflict with federal law, in which case the state law is enforced. Another exception is called a complete preemption, in which Congress prohibits states from regulating a particular area of law. An example of this is the Employment Retirement Income Security Act (ERISA), which is discussed later in this chapter.
The major categories of federal laws regulating the employer–employee relationships include equal employment opportunity and employment discrimination; employee health and safety; compensation and benefits regulations; consumer protection and collection practices; and federal labor acts. In discussing these regulations, many of the legal terms, such as a law and an act, are interchangeable. The cases discussed in this chapter illustrate the variety of lawsuits relating to these regulations.
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Each state has its own individual state and local laws. Always determine the local laws that pertain to your particular area. Local county health departments are a good source of information.
EQUAL EMPLOYMENT OPPORTUNITY AND EMPLOYMENT DISCRIMINATION
The government regulates many aspects of the employment relationship, including laws affecting recruitment, placement, pay plans, benefits, penalties, and terminations. The basis of the law is that people must be judged primarily by their job performance. A discussion of these laws should be prefaced with a look at the historical doctrine of employment-at-will.
Employment-at-Will Concept
The common-law doctrine of employment-at-will has historically governed the employment relationship. Employment-at-will , in which there is no contract of employment, means that employment takes place at the will of either the employer or the employee. Thus, the employment may be terminated at will, without notice, at any time, and without a reason. Conversely, the employee may quit at any time. The exception to this occurs when there is a specific employment contract between the employer and employee, specifying the duration and terms of employment. Then the relationship cannot be terminated during the contract period. The only protection of an at-will employment is that employees cannot be fired for an illegal reason—for example, due to the color of their skin or their age.
This concept of termination for any reason without incurring liability had been widely accepted. However, employment-at-will has begun to lose favor. Wrongful-discharge lawsuits, in which the employee believes the employer does not have a just cause , or legal reason, for firing the employee, have become more common. An example of this occurs when the employer asks employees to perform procedures for which they are not trained or that are not within the scope of their license. Even if employers win a wrongful-discharge lawsuit, they may ultimately be the losers due to the negative publicity and effect on employee morale. See Table 8.3 for a list of equal employment opportunity and employment discrimination laws.
TABLE 8.3 Equal Employment Opportunity and Employment Discrimination Laws
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· Title VII of the Civil Rights Act of 1964 · Civil Rights Act of 1991 · Equal Employment Opportunity Act (EEOA) of 1972 · Pregnancy Discrimination Act of 1978 · Age Discrimination in Employment Act (ADEA) of 1967 · Rehabilitation Act of 1973 · Americans with Disabilities Act of 1990 · National Labor Relations Act (NLRA) of 1935 |
Title VII of the Civil Rights Act of 1964 (1991)
Title VII of the Civil Rights Act prohibits discrimination (unfair or unequal treatment), in employment based on five criteria: race, color, religion, gender, or national origin. This strongly worded act means that employers may not refuse to hire, unlawfully discharge, or in any other way discriminate against employees based on these five criteria. This proposal, which came from the Kennedy administration, is considered one of the most important pieces of all legislation, as it affects employment opportunity and discrimination. This act applies to all organizations that have 20 or more employees working 20 weeks or more during a year.
Title VII affects all aspects of patient care in institutions that receive federal assistance, such as Medicare and Medicaid.
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Some of the most frequent violations in the healthcare employment field are related to Title VII issues.
The Equal Employment Opportunity Commission (EEOC) monitors Title VII, and the Justice Department enforces the statute. In some cases, the EEOC defers enforcement to local and state agencies. Employees must exhaust all administrative remedies offered from the EEOC before they can sue their employer under Title VII. The Equal Employment Opportunity Act, the Pregnancy Discrimination Act, and the Civil Rights Act of 1991 have further amended this act.
Title VII also makes sexual harassment a form of unlawful sex discrimination. Sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Quid pro quo, a Latin term meaning “something for something,” occurs when one valuable thing, such as a sexual favor, is given in exchange for another thing, such as job advancement. An employee who quits a job because sexual harassment created an offensive or hostile work environment may sue the employer for damages.
Affirmative action programs to remedy discriminatory practices in hiring minority group members are also covered under Title VII. These programs, required by federal statute, require that positive steps, such as hiring minority personnel, be taken to remedy past discrimination and to take steps to prevent future discrimination. Courts may mandate that affirmative action programs be implemented if there is evidence that an employer has intentionally discriminated against a particular minority group.
Who Is an Employee Under Title VII?
Title VII only prohibits employers from discriminating against employees. If an employer withholds employment taxes from a person’s income, then that person is considered an employee. While some cases are less clear, in general, if the employer can control the details of that person’s work then the person is considered to be an employee. In some cases, physicians who have lost medical staff memberships and thus hospital admitting privileges, have been able to sue the hospital under Title VII. An example of this is a federal case in which Dr. Pardazi sued the Cullman Medical Center. The federal case was tried in the 11th Circuit Court, and Title VII was the federal law that won the case for Pardazi (Pardazi v. Cullman Med. Ct., 838 F.2d 1155, 11th Cir. 1988).
Who Is an Employer Under Title VII?
A person who employs the services of another and provides payment for those services is considered an employer. In addition, an employer has the right to control the physical conduct of the employee in performing the service. The statute does not apply to independent contractors. A coworker is not an employer and, thus, is not liable under Title VII. The courts have also found that a parent company of the employer is not liable as the employer under Title VII (Garcia v. Elf Atochem, N. Am., 28 F.3d 446, 5th Cir. 1994).
Civil Rights Act of 1991
Congress amended Title VII by passing the Civil Rights Act of 1991. Wrongful discharge suits fall under this law. The Civil Rights Act permits the court to award both compensatory damages (for the loss of income or emotional pain and suffering) and punitive damages (to punish the defendant) to mistreated employees. Prior to this amendment, only compensatory damages were awarded.
Title VII provides that a hospital must treat physicians, nurses, other employees, and patients in a nondiscriminatory manner. It also prohibits hospital employees, such as nurses, from discriminating against patients, physicians, or fellow employees. In Simkins v. Moses H. Cone Hospital, a federal court held that two hospitals were prohibited from denying physicians appointments to the hospital staff on the basis of race. The court also prohibited these hospitals from refusing to admit patients or segregate patients on the basis of race. (Simkins v. Moses H. Cone Hospital, 323 F.2d 959, 4th Cir. 1963.)
Equal Employment Opportunity Act (EEOA) of 1972
The Equal Employment Opportunity Act (EEOA) authorizes the Equal Employment Opportunity Commission (EEOC) to sue employers in federal court on behalf of a class of people or an individual whose rights under Title VII have been violated.
Pregnancy Discrimination Act of 1978
Under the Pregnancy Discrimination Act , employers must treat pregnant women as they would any other employee, providing they can still do the job. This act has saved jobs for women and allowed them to advance even if they became pregnant or had to take a short leave for childbirth. An employer cannot force a woman to quit her job because she is pregnant. In addition, under this law, a woman cannot be refused a job because she has had an abortion. The pregnant woman is assured of equal treatment in such areas as disability, sick leave, and health insurance. The employer’s medical plan must cover pregnancy in the same way it would cover other medical conditions. If the worker is unable to work because of the pregnancy, then she qualifies for sick leave on the same basis as all the other employees.
If the employer offers employee leaves for disabilities, then a similar leave must be offered for pregnancy. Mandatory maternity leaves violate Title VII, because the Pregnancy Discrimination Act of 1978 is an amendment to that statute. In addition, the employer’s health plan must provide coverage for the dependent spouses of employees.
A federal district court found that a hospital had violated the Pregnancy Discrimination Act when it fired an x-ray technician upon learning that she was pregnant. The court felt that while it was necessary for the x-ray technician to avoid working in some areas of the x-ray department due to her condition, there were less discriminatory alternatives that the hospital could have used (Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 11th Cir. 1984).
This statute has many aspects that require special considerations. For instance, one federal court held that an employee who had job absences due to infertility treatments was not protected under this act (Zatarain v. WDSU-Television, Inc., WI 16777 E.D., La. 1995). In a 1994 case, a federal appellate court ruled that a pregnant home-health nurse who refused to treat an AIDS patient could be discharged under this statute (Armstrong v. Flowers Hosp., 33 F.3d 1308, 11th Cir. 1994).
Age Discrimination in Employment Act (ADEA) of 1967
The Age Discrimination in Employment Act protects persons 40 years or older against employment discrimination because of age. This law applies to employers who have 20 or more persons working for them. The employer will not be liable for violation of this law if there are extenuating circumstances, such as if the person does not have the ability to perform the job. If two people are up for hiring or a promotion and one of them is over 40, then the employer must be able to show (in writing) why the younger person, if hired or promoted, is more qualified. Education and performance, in addition to other factors, count toward qualification. Mandatory retirement is prohibited under this law except for certain exempt executives.
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Note that women and men over 40 are protected by both Title VII and this act.
Employers must be cautious about what they say or put into writing in the event that they must terminate a person’s employment. For example, in a 1985 age discrimination suit, a 62-year-old supervisor nurse resigned and then sued the hospital because its administration had told her “new blood” was needed and made comments about her “advanced age.” She believed these statements made working conditions intolerable. The nurse supervisor won the suit (Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 11th Cir. 1985).
Rehabilitation Act of 1973
The Rehabilitation Act prohibits employment discrimination of the handicapped. This act prohibits discrimination based on disability in any institution that receives federal financial assistance. Therefore, a hospital or agency that receives Medicare and Medicaid reimbursement must comply with this law. However, courts have held in favor of plaintiffs, such as hospitals and nursing homes, that are not equipped to care for a special-needs patient such as a violent or aggressive patient who abuses the staff (Grubbs v. Medical Facilities of America, Inc., 879 F. Supp. W.D., Va. 1995).
This act had a major influence on the Americans with Disabilities Act of 1990 because it included a very broad definition of “handicapped.” It included people with physical or mental impairment, someone who has had an impairment, and someone who currently has an impairment. This definition protected people with a recognizable handicap, such as a physical handicap, and opened many doors for people with handicaps such as mental disorders who were formerly forgotten. In addition, this law was the beginning of a legal means for people to challenge their denial of employment for physical or mental reasons.
Americans with Disabilities Act (ADA) of 1990
There are 43 million disabled persons in the United States. The Americans with Disabilities Act (ADA) prohibits employers who have more than 15 employees from discriminating against such individuals. Persons with Acquired Immune Deficiency Syndrome (AIDS) are also covered under this act. In order to comply with this act, the employer must make reasonable accommodations, such as lowering telephones, installing ramps, and making elevator floor numbers accessible to wheelchair-bound persons. The exception to this occurs if the accommodations would be an undue hardship for the employer, such as the significant difficulty of installing an elevator in an old building. The term undue hardship has caused problems, as there is no clear definition of the term hardship or a dollar amount that constitutes hardship. There is a two-year implementation window for employers who must comply with this law. Patients, as well as employees, are also protected under this statute.
Private physicians can be held liable under the ADA for acts that take place in their offices. For example, in 1995 a federal appellate court upheld a lower court decision that an HIV-positive patient could sue his primary care physician for allegedly failing to treat or refer him to another physician (Woolfolk v. Duncan, 872 F. Supp. 1381, E.D., Pa. 1995).
In Tugg v. Towney, a federal court ruled that the ADA requires a state to provide counselors who use sign language to counsel deaf patients in state mental facilities. According to the court, the facility did not satisfy the ADA statute by merely providing mental health services through the use of interpreters (Tugg v. Towney, 864 F. Supp. 1201, S.D. Fla. 1994). The ADA addresses the law as it affects the deaf. Other regulations, such as IDEA or FAPE, address the rights of the deaf and hard of hearing.
Basic accommodations that can be made for persons with disabilities include:
· Parking spaces, clearly marked for the handicapped, near an accessible doorway.
· Inclined ramps into buildings or over curbs in parking lots.
· Elevator floor numbers that are accessible to wheelchair-bound patients and employees.
· Handicap accessible bathrooms with handrails.
· Hallways with at least 36 inches of clearance for wheelchairs.
· Desks and counters that accommodate a wheelchair.
· Telephone adapters for the hearing impaired.
Figure 8.1 shows a sign language teacher with a child who has a hearing impairment.
Figure 8.1 Sign Language Teacher
© Trevon Baker Photography
TABLE 8.4 Employee Health and Safety Laws
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· Occupational Safety and Health Act (OSHA) of 1970 · Clinical Laboratory Improvement Act (CLIA) of 1988 · Health Maintenance Organization (HMO) Act of 1973 · Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 · Drug-Free Workplace Act of 1988 |
The National Labor Relations Act of 1935
This act, also called the Wagner Act, established some of the most basic union rights. The National Labor Relations Act prohibits employer actions, such as attempting to force employees to stay out of unions, and labels these actions as “unfair labor practices.” This act set up the National Labor Relations Board (NLRB) to enforce these labor laws.
See Table 8.4 for a list of employee health and safety laws.
EMPLOYEE HEALTH AND SAFETY
Both state and federal laws regulate issues affecting an employee’s health and safety. While the state law may be stricter than the federal law, it cannot be more lenient.
Occupational Safety and Health Act (OSHA) of 1970
Under the Occupational Safety and Health Act (OSHA) , an employer is required by law to provide a safe and healthy work environment: the employer must protect the worker against hazards. OSHA regulations preempt all other state and local regulations regarding employee safety and health, meaning that states may not pass any laws concerning the working environment. In addition, there are right-to-know laws in many states which give employees access to workplace safety information such as the use of hazardous or toxic substances.
Employers and office managers should become familiar with OSHA regulations as they apply to their specific fields, not only to protect employees but also to avoid fines for OSHA violations, which can be severe. In addition, the poor publicity and public relations resulting from a serious OSHA violation can damage an office or company’s reputation.
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It is better to err on the side of being too cautious when implementing OSHA regulations, rather than being too casual.
In 1991, OSHA developed rules to protect healthcare workers from bloodborne diseases. These are known as OSHA Occupational Exposure to Bloodborne Pathogens Standards. OSHA also established severe penalties of up to $7,000 for each violation of these standards by employers. These standards apply to any employee who has occupational exposure, which is defined as a reasonable anticipation that the employee’s duties will result in skin, mucous membrane, eye, or parenteral (a medication route other than rectal or oral) contact with bloodborne pathogens (disease-producing microorganisms) or other potentially infectious material. Healthcare workers, including physicians, nurses, medical assistants, laboratory workers, and housekeeping personnel, have occupational exposure. The OSHA standards mandate that each employee with occupational exposure must be offered the hepatitis B vaccination at the expense of the employer.
TABLE 8.5 List of Potentially Infectious Materials
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· Body fluid, including semen, amniotic fluid, pleural fluid, and cerebrospinal fluid, contaminated with blood · Saliva in dental procedures · Vaginal secretions · Tissues, cells, or fluids known to be HIV-infected · Microbiological waste (kits or inoculated culture media) · Pathologic waste (human tissue) · Any unidentified body fluid |
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Note that an employee may decline, in writing, to receive the hepatitis B vaccine. See Table 8.5 for a list of potentially infectious materials.
The OSHA standards refer to urine, stool, sputum, nasal secretions, vomitus, and sweat only if there is visible evidence of blood. The OSHA compliance checklist for medical facilities and offices includes: eyewash stations, fire extinguishers, first-aid kits, written training programs, labels for chemical and hazardous waste, sharps containers, exit signs, spill kits, accident report forms, and chemical inventory lists.
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In a medical workplace, additional safety issues may arise that are not found elsewhere, including protecting individuals against bloodborne pathogens.
The Hazard Communication Standard (HCS) from OSHA is meant to reduce injuries and illnesses in the workforce by alerting healthcare employees to potential dangers and risks when using hazardous chemicals and materials. Material Safety Data Sheets (MSDS) must be posted wherever hazardous materials are used. Employees are instructed to read the sheets and know how to handle all hazardous products, such as blood and chemicals.
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OSHA guidelines are available from the U.S. Department of Labor, Washington, DC.
Clinical Laboratory Improvement Act (CLIA) of 1988
The federal government now requires that all clinical laboratories that test human specimens must be controlled. The Clinical Laboratories Improvement Act (CLIA) , establishing minimum quality standards for laboratories, has been amended several times. The CLIA 1992 standards mandate that there must be written policies and procedures for a comprehensive quality assurance program that will evaluate the overall ongoing quality of the testing process. See Table 8.6 for a list of CLIA laboratory requirements. (See Figure 8.2 Laboratory technicians at work.)
TABLE 8.6 List of CLIA Laboratory Requirements
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· Evaluate the effectiveness of the laboratory’s policies and procedures. · Identify and correct problems. · Ensure the competence and adequacy of staff. · Take corrective action if errors are found. · Integrate corrective procedures into future policies and procedures. · Document employee training and assess competency after the first year. · Maintain the identity and integrity of patient samples during the entire testing process. · Laboratory is subject to inspection every two years if performing moderate or high complexity tests. |
CLIA testing regulations are mandated for most tests conducted in laboratories. However, there are certain tests that are waived if they are simple to run, almost foolproof, and if an erroneous result would not result in a negative impact on the patient. The Food and Drug Administration (FDA) has the responsibility for categorizing the tests and allowing the waiver (exemption) of testing. In general, tests approved by the FDA for home use are usually waived, although the manufacturer must request the waiver. Tests that require a microscope, calculations, or a judgment call are not waived and must meet CLIA standards. It is always advisable to search the CLIA website at www.hcfa.gov/medicaid/clia and www.cola.org for a complete list of waived tests. If the laboratory test is not on this list then it is not waived and must meet all CLIA requirements.
Figure 8.2 Laboratory Technologists
Health Maintenance Organization (HMO) Act of 1973
The Health Maintenance Organization Act (HMO) requires any company with at least 25 employees to provide an HMO alternative to regular group insurance for their employees if an HMO is available in the area.
Many new HMOs were formed in response to this law. HMOs have been able to cut healthcare costs in some areas by focusing on wellness such as well-baby physicals and mammograms. Under an HMO, the patient does not have the same wide choice of doctors as under a traditional healthcare plan. In addition, a patient may have to get a second opinion and permission from the HMO before having a major procedure performed.
Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985
The Consolidated Omnibus Budget Reconciliation Act (COBRA) is an important act that covers a wide range of federal government financing for health insurance coverage continuation after an employee has been laid off or left a job.
Millions of Americans are left without any healthcare coverage, many due to job loss. COBRA has helped to decrease this number of uncovered Americans. Under COBRA, a company with 20 or more employees must provide extended healthcare insurance to terminated employees for as long as 18 months—usually, but not always, at the employee’s expense. This insurance may be costly, but some people would be unable to obtain insurance any other way. COBRA has enforcement power as all federal funding may be lost for noncompliance.
COBRA also contains an amendment called EMTALA (Emergency Medical Treatment and Active Labor Act) which prohibits “patient dumping” from one hospital to another if the patient does not have health insurance. EMTALA is more fully discussed later in the chapter.
Drug-Free Workplace Act of 1988
Employers have become increasingly aware of how expensive drug-using employees are in terms of decreased productivity, workplace accidents, and increased healthcare costs. Even under the best security conditions, the nature of some healthcare organizations, such as hospitals, medical offices, and clinics, allows for employee access to various drugs. ( Figure 8.3 )
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To prevent drug abuse, some organizations, such as hospitals, require drug testing as a condition of employment.
Under the Drug-Free Workplace Act , employers contracting to provide goods or services to the federal government must certify that they maintain a drug-free workplace. The employer must inform the employee of the intent to maintain a drug-free workplace and of any penalties, such as discharge, that the employee would incur for violation of the policy.
Figure 8.3 All Healthcare Professionals must Understand the Drug-Free Workplace Act of 1988
© BSIP SA/Alamy
COMPENSATION AND BENEFITS REGULATIONS
These laws influence the compensation (salary) and benefits provided to employees. See Table 8.7 for a listing of compensation and benefits laws.
Social Security Act of 1935
The Social Security Act is a federal law that covers all private and most public sector employees. This act laid the groundwork for unemployment compensation in the United States. Social Security is paid by the employer and the employee in equal payroll taxes and Medicare participant premiums. Social Security is composed of several different, but related, programs: retirement, disability, dependent and survivor’s benefits, as well as health benefits under Medicare. The amount paid to the retiree or disabled or dependent survivor is calculated based on the worker’s average wages earned during his or her working life.
TABLE 8.7 Compensation and Benefits Laws
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· Social Security Act of 1935 · Fair Labor Standards Act (FLSA) of 1938 · Equal Pay Act of 1963 · Unemployment Compensation · Federal Insurance Contribution Act (FICA) of 1935 · Workers’ Compensation Act · Employee Retirement Income Security Act (ERISA) of 1974 · Family and Medical Leave Act (FMLA) of 1994 |
Fair Labor Standards Act (FLSA) of 1938
This is the main statute regulating employee benefits. The Fair Labor Standards Act (FLSA) establishes the minimum wage, requires payment for overtime work, and sets the maximum hours employees covered by the act may work. The act covers all nonmanagement employees in both for-profit and not-for-profit institutions.
The employer must pay one and one-half times the regular hourly pay rate for any work the employee performs over 40 hours in a seven-day (one-week) period. FLSA uses the single workweek to compute the hours of overtime. The law does not permit averaging hours over two or more weeks. Thus, an employee who works 35 hours one week and 45 hours the next—for a weekly average of 40 hours for the two weeks—must still be paid the overtime rate for five hours.
One exception allows hospitals to negotiate an agreement with their employees to establish a work period of 14 days. In this case, overtime pay would go into effect for employees who work more than 80 hours in the 14-day period. It is also acceptable to require fewer than 40 hours a week to qualify for overtime payment or a higher rate than one and one-half times the regular hourly pay, but the employer cannot require more hours or pay less than the law requires.
This law affects only full-time hourly employees. Some workers, such as management or salaried employees, are exempt from the minimum wage and overtime requirement of the FLSA. In addition, part-time employees and employees who are part of a time-sharing program generally do not benefit from this law.
The Fair Pay Act of 2013 amends the Fair Labor Standards Act (FLSA). This regulation guarantees overtime payment to employees earning less than $23,600 annually. Some employees, such as licensed practical nurses, are guaranteed overtime payment under this regulation. Registered nurses may also qualify depending on their status as either hourly or salaried. There can be steep fines for failure to make the required overtime payments.
Equal Pay Act of 1963
The Equal Pay Act , an amendment to the Fair Labor Standards Act, makes it illegal for an employer to discriminate on the basis of gender in the payment to men and women who are performing the same job. Equal work means work that requires equal skill, responsibility, and effort under the same or similar working conditions. For example, male orderlies cannot be paid more than female orderlies (Odomes v. Nucare, Inc., 653 F.2d 6th Cir. 1981).
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Employees generally “earn” a certain number of paid sick days per year based on the number of hours worked. These can be saved up and used when the employee has to take time off for an illness or surgery. Sick days are not part of earned vacation days. In general, they cannot be used except for sickness.
Unemployment Compensation
The Social Security Act was the origin of this insurance program. Today, employers pay taxes into a state unemployment compensation plan that covers employees who are unable to work through no fault of their own. The unemployment compensation laws provide for temporary weekly payments for the unemployed worker. State unemployment compensation insurance taxes for individual employers vary from state to state according to state laws and the turnover experience of the business.
In order to receive unemployment insurance, the employee must have worked for an employer who has paid, or was required to pay, unemployment compensation taxes. However, certain types of employers are exempt, such as employers for religious, educational, or charitable organizations; employers for small farming operations; employers of family members; and employers who use federal government labor.
While state unemployment insurance law provides temporary payments for those who lose their jobs, if an employee is fired for good cause, the employee is not entitled to unemployment benefits. In the case of Love v. Heritage House Convalescent Center, the court found that a nursing assistant was properly denied unemployment benefits because she was terminated for poor work attendance. According to the employee’s personnel record, the convalescent center had already shown great tolerance in allowing the employee to continue working as long as it had (Love v. Heritage House Convalescent Ctr., 463 N.E.2d 478, Ind. Ct. App. 1983).
Unemployment compensation was also denied in a case in which a nurse’s aide was discharged for leaving a resident unattended and unrestrained on a commode and for using the medication of one patient (a medicated cream) on another patient (Starks v. Director of Div. of Employment Section, 462 N.E.2d 1360, Mass. 1984).
Federal Insurance Contribution Act (FICA) of 1935
The Federal Insurance Contribution Act is the oldest act relating to compensation. Under FICA, employers are required to contribute to Social Security plans for their employees. There is a severe fine if the payment by the employer is not made on time. This act also requires detailed record keeping documenting the employer’s payment. The key to the proper implementation of this act is to hire a trusted office manager.
Workers’ Compensation Act
The Workers’ Compensation Act protects workers and their families from financial problems resulting from employment-related injury, disease, and even death. Under the law, employers typically pay into a fund to help cover costs when an employee is hurt or sustains an injury arising in the course of employment. Examples include a back injury, or a work-related disease, such as carpal tunnel syndrome from improper or prolonged computer keyboard usage.
The goal of workers’ compensation is to get the employee back to work as soon as possible. COBRA may allow for a retraining opportunity if the injury results in permanent inability to work in the same job. If there is a health problem within the first three months of employment on a new job, the previous employer may have to pay the workers’ compensation, as most of the benefits were paid into the employee’s fund by that employer. Some medical practices only handle patients with workers’ compensation injuries. Workers’ compensation programs are administered at the state level with no federal involvement or mandatory standards.
Under the Workers’ Compensation Act, an employee must submit a written notice of the injury to the employer. Generally, an employee will receive only a partial salary, such as two-thirds of salary, as compensation.
Workers’ compensation benefits are generally available even if the employee is at fault for his or her injury, but an employee who has violated hospital policy is not eligible to receive benefits. In Fair v. St. Joseph’s Hospital, the hospital employee was disqualified from receiving compensation because he violated the policy by fighting with a coworker (Fair v. St. Joseph’s Hosp., 437 S.E.2d 875, N.C. App. 1933).
Even if an employee is covered by workers’ compensation, the employee may still sue and recover for injuries caused by nonemployees. For example, in a 1994 case in California, a psychiatric nurse sued a psychiatric patient who kicked her in the abdomen, causing injury to her unborn child. The court ruled that the workers’ compensation law did not bar this lawsuit (Agnew-Watson v. County of Alameda, 36 Cal. Rptr. 2nd 196, CT. App. Cal. 1994).
Employee Retirement Income Security Act (ERISA) of 1974
The Employee Retirement Income Security Act (ERISA) regulates employee benefits and pension plans. Prior to the passage of ERISA, widespread abuse of pension plans led to their collapse, leaving retired employees without the pension benefits their companies had promised. ERISA responded to this problem by requiring employers to put aside money that can be used only to pay future benefits. ERISA also guarantees vesting of pension plans.
Vesting refers to a certain point in time; such as after 10 years of employment, when an employee has the right to receive benefits from a retirement plan. Under ERISA, employees who stay with a company for 10 years are entitled to 50 percent of the employer’s retirement plan even if they leave the company and take another job. The employee is entitled to 100 percent of the employer’s pension contribution after 15 years of employment, when he or she becomes fully vested. In some cases in the past, employees had been laid off just before they become vested. ERISA now prohibits this practice.
Family and Medical Leave Act (FMLA) of 1994
The Family and Medical Leave Act (FMLA) allows both the mother and father to take a leave of absence of up to 12 weeks, in any 12-month period, when a baby is born. The employee’s job, or an equivalent position, must be available when he or she returns to work. In almost all cases, the leave is without pay. The FMLA also requires employers to provide unpaid leave for up to 12 weeks to employees who request leave for their own or a family member’s medical or family-related situation, such as birth, death, or adoption.
The company must maintain the employee’s health coverage while the employee is on a family medical leave. The employee must be returned to the original or equivalent position he or she held before going on the leave. In addition, there cannot be any loss of employment benefits that accumulated prior to the start of the leave.
CONSUMER PROTECTION AND COLLECTION PRACTICES
The consumer protection and practices laws serve to protect the consumer from unfair practices. See Table 8.8 for a listing of these laws.
Emergency Medical Treatment and Active Labor Act (EMTALA)
The Emergency Medical Treatment and Active Labor Act (EMTALA) is a section of the Consolidated Omnibus Budget Reconciliation Act (COBRA) dealing with patient dumping , a slang term for transferring emergency patients from one hospital to another if the patient does not have health insurance or is unable to pay for services.
TABLE 8.8 Protection and Collection Practices
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· Emergency Medical Treatment and Active Labor Act (EMTALA) · Fair Credit Reporting Act of 1971 · Equal Credit Opportunity Act of 1975 · Truth in Lending Act (Regulation Z) of 1969 · Fair Debt Collection Practices Act of 1978 · Federal Wage Garnishment Law of 1970 |
Patients entering a hospital emergency room must now be stabilized before they can be transferred to another facility. If the patient cannot be stabilized then he or she can be transferred to a regional trauma center without incurring an EMTALA violation. According to this law, if a hospital is reported for patient dumping, the person doing the reporting (the whistleblower) may not be penalized. The government may impose stiff fines and even terminate Medicare agreements if the hospital is determined to have violated EMTALA. In addition, the patient can also sue the hospital. A physician may also be at risk for legal action if he or she misrepresents the patient’s condition. However, EMTALA does not apply to health maintenance organizations, private clinics, or private physicians’ offices. The practice of patient dumping has significantly diminished since the passage of EMTALA.
Fair Credit Reporting Act of 1971
The Fair Credit Reporting Act establishes guidelines for use of an individual’s credit information. If a patient has been denied credit based on a poor rating from a credit agency, the patient must be notified of this fact and given the name and address of the reporting agency. The agency must disclose the credit information to the consumer, who may correct and update this information.
Equal Credit Opportunity Act of 1975
The Equal Credit Opportunity Act prohibits businesses, including hospitals and medical offices, from granting credit based on the applicant’s race or gender—unfair treatment referred to as discrimination. This law mandates that women and minorities must be issued credit if they qualify for it, based on the premise that if credit is given to one person, it should be given to all persons who request it and are qualified.
Truth in Lending Act (Regulation Z) of 1969
The Truth in Lending Act (Regulation Z) requires a full written disclosure about interest rates or finance charges concerning the payment of any fee that will be collected in more than four installments. This is also called Regulation Z of the Consumer Protection Act. Installment payments are often used for orthodontia, obstetrical care, and surgical treatment. It is legal to include a finance charge if a patient pays the bill in installments. However, few physicians and dentists require this charge.
Fair Debt Collection Practices Act of 1978
The Fair Debt Collections Practices Act prohibits unfair collection practices by creditors (institutions or persons who are owed money). For example, the Federal Communications Commission (FCC) has issued guidelines for the specific times that credit collection phone calls can be made. It also prohibits telephone harassment and threats. Under this law, telephone calls for purposes of collections must be made between the hours of 8:00 a.m. and 9:00 p.m., with no weekend calls ( Figure 8.4 ).
Figure 8.4 Collection Calls are Made Between 8:00 a.m. & 9:00 p.m.
Table 8.9 provides some guidelines for collection efforts.
Using a Collection Agency
Medical offices and hospitals would not be able to remain in business if patients didn’t pay their bills for medical care. However, fair collection practices must be honored.
TABLE 8.9 Guidelines for Collection Efforts
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· 1. Establish policies and procedures relating to collections and instruct all staff on these procedures. · 2. Have a list of the established fees available for patients and staff. · 3. Discuss the fee, and when the fee is due, with the patient prior to treatment. · 4. Prepare written material for patients that includes general information about the office, such as office hours and emergency numbers to call when the office or facility is closed. Include information about the billing process and how insurance claims are handled. · 5. Request payment, whenever possible, before the patient leaves the office or healthcare facility. · 6. Be consistent in all billing practices. This includes sending statements to arrive on the first of each month and sending a follow-up letter on delinquent accounts when they reach a certain date, such as one month overdue. · 7. Use care when making telephone collection calls: · a. Always be courteous when speaking to patients. · b. Always introduce yourself. Make sure the patient understands the reason for the call. Do not misrepresent yourself by implying you are someone other than who you are. · c. Make all calls on weekdays between 8:00 a.m. and 9:00 p.m., observing the time difference for patients living in another time zone. · e. Never threaten an action that you do not intend to take. For example, do not tell the patient that the account will be handed over to a collection agency if payment is not received by this afternoon. · f. Try to establish a payment plan to get a commitment from the patient on when a full or partial payment can be made. · g. Do not harass, threaten, or intimidate the patient (debtor). |
Professional collection agencies are available when all other attempts to collect unpaid bills fail. The account should always be reviewed with the physician or head of the medical practice before turning it over for collection.
Once the patient is told the account is going to a collection agency, it must, by law, go. After the account has been turned over, no further collection attempts can be made by the physician’s office or hospital—that would be considered harassment. If the patient should contact the office or hospital after the account has been turned over for collection, the patient should be referred to the collection agency.
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Personnel involved in the billing and collections operations of any facility must have a full understanding of the laws regulating the collection process.
Bankruptcy
When patients become unable to pay their debts, they may file for bankruptcy. Bankruptcy is a legal method for providing some protection to individual debtors who owe money by establishing a fair method for distribution of the debtor’s assets to all the creditors. If a patient files for bankruptcy, a court-appointed trustee may place the patient’s assets in a special fund. The trustee then distributes the funds according to a predetermined method. Once a debtor files for bankruptcy a creditor , to whom money is owed, such as a physician who has an outstanding debt owed by the patient, may no longer seek payment from the patient but must instead file a claim in bankruptcy court at a later date.
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A creditor who fails to comply with bankruptcy laws, such as by harassing the debtor, can be cited for contempt of court.
Federal Wage Garnishment Law of 1970
Garnishment refers to a court order that requires an employer to pay a portion of an employee’s paycheck directly to one of the employee’s creditors until the debt is resolved. The Federal Wage Garnishment Law restricts the amount of the paycheck that can be used to pay off a debt.
Claims against Estates
When a patient dies, a bill should be sent to the estate of the deceased. It is important to follow up with the collection of bills to prevent the impression that the physician was at fault in the patient’s death. There is generally a specific time limit allowed when filing a claim against an estate. The probate department of the superior court in the county that is handling the estate can provide information on the time limits and also the name of the administrator of the estate.
The Statute of Limitations
This statute defines how long a medical practice has to file suit to collect on a past-due account. Because the time limit varies from state to state, an attorney should be consulted to determine the particular state’s law. If an aging account is more than three years old, the creditor should investigate the state’s statute of limitations before spending time, effort, and money to collect the debt. Because there is a statute of limitations on collecting a debt, it is important to attempt any debt collection as soon as possible.
POINTS TO PONDER
· 1. Why did the federal government enact laws such as Title VII, the ADA, and COBRA?
· 2. How do you respond to an illegal interview question?
· 3. Isn’t it important for an employer to know if a potential employee has a disability? Why or why not?
· 4. Should all healthcare employees be tested for HIV? Why or why not?
· 5. In your opinion, does the Family and Medical Leave Act of 1994 discriminate against working persons who do not have children or elderly parents?
· 6. Are you entitled to take off a couple of days to re-energize yourself if you do not use up all of your sick days during the year?
DISCUSSION QUESTIONS
· 1. Identify the principal kinds of illegal discrimination that result in unequal employment opportunities.
· 2. What amendments to Title VII are discussed within this chapter?
· 3. What are considered potentially infectious materials under OSHA guidelines?
· 4. What regulation assists terminated employees in obtaining extended healthcare coverage?
· 5. What does the Fair Labor Standards Act of 1938 control?
· 6. Who is eligible to receive a leave of absence under the Family and Medical Leave Act of 1994?
· 7. What does ERISA control?
