And take that!!

The National Labor Relations Board is suing an ambulance company for firing a worker. The company fired the worker after she posted derogatory comments about her supervisor on FACEBOOK (TM), from her home computer.

The company says the employee was fired for multiple reasons.

The NLRB says the company violated the employee's rights, and that further derogatory comments from her and other employees were "concerted activity" protected by federal labor laws.

The new and marvelous age of technology.

Nursing Shortage

As Labor Day approaches it is a good time to think about health care labor issues, some good news, some bad news.

A phenomena many of us have noticed over the years (hard to exactly quantify though) is that recessions pull nurses back into the labor market. Nurses (about 94% female) often have husband or significant others who lose jobs or hours.

Also, some of the staffing pressure is off at the hospital level because elective procedures are down and that takes pressure off the nursing staffing.

Recessions are not the desired means of correcting the shortage though.

The discussions on the shortage go back at least 20 years, and amazingly little progress has been made during that time.

There are some new and expanded programs, but a big problem now is the lack of nursing faculty. Unlike many PhD qualified professors, nursing professors are in big demand for management positions, usually in hospitals and health systems. So we are cannibalizing our own nursing pipeline.

University nursing programs are labor intensive, resource intensive and not nearly as prestigious as producing more MBAs, lawyers and economists.

While universities will get into bidding wars over top flight business, science or law professors, the willingness to play in the nursing salary market seems muted (perhaps if nursing was 94% male???).

The shortage will persist; the average age of RNs is climbing, the boomer nurses are heading for the exit while the boomer patients are becoming seniors, clinical skill requirements are accelerating, tighter reimbursements leave providers with less flexible budgets, and at times up to half of all licensed nurses are not working in direct care nursing - - all which seems to be a perfect storm.

We can send a man to the moon, but we can't figure out how to solve this problem in a country where lots of people need new careers (and yes, lots of people are not suited for nursing). Maybe when we have to shut a lot of hospitals?

Resident Rights versus Caregivers Rights

In 1987 the federal government passed a comprehensive "bill of rights" for nursing home patients. Most states followed.

The law gives nursing home residents wide protection, including (when mentally able) the ability to refuse care, meals and just about anything else they please.

Resident care preferences regularly create all sorts of difficult issues though, including:

can white residents refuse care from black nurses and nurse aides? ( a common problem)

can female residents refuse care from male caregivers?  (the courts say yes on privacy grounds)

can residents request care from specific employees (a latino requesting a latino)?

can residents request care from specific employees just because they like the employee?

According to a recent federal court decision in an Indiana case, if a white resident requests "no blacks" and the facility accommodates (apparently following Indiana law) the facility has discriminated against the employee.

This appears to be a no-win situation, but is probably not a settled issue yet.

HIPAA Horrors

This has been a week for HIPAA horrors.

A reporter dropping some trash at a landfill in Massachusetts stumbled on a huge pile of medical records. It seems a former billing company for pathologists who served four hospitals had dumped the records without bothering to shred them. Now the hospitals and pathologists are on the hook – ouch.

Then a psychiatrist on the west coast left his laptop on the back seat of his car, and to his surprise (?) it was stolen, and the laptop contained demographic and billing information on thousands of patients.

Obamacare (PPAPA) Whistleblower Provisions

The Patient Protection and Affordable Care Act of 2009 (H.R. 3590, aka PPACA) includes a number of whistleblower clauses, with some focused specifically on long-term care.

The broadest provision (Act Section 1558) added whistle blower protection to the Fair Labor Standards Act, referenced only to Title I provisions in the bill (critics wonder why not Titles 2 – 9, but there are other pre-existing regs in the federal (and state) law).

Procedural and remedy sections are tied to and mirror the provisions in the Consumer Product Safety Improvement Act of 2008. These include a 180 day statute of limitations, initial complaints are filed with OSHA, options on litigation venues, a right to a jury trial, and a broad range of remedies. The causation and proof standards are very favorable to the employee, and may be an impossible standard for the employer .

Another Section, 6703(b)(3) creates an additional special responsibility for long-term care providers (on top of numerous other reporting regulations) to inform all officers, employees and contractors of mandatory reporting and whistleblowing situations.

Section 6105, specifically focused on long-term care adds a mandatory complaint form for each nursing home (more paperwork, yippee!) and a prohibition against retaliation. Each state must develop (another) process to track and investigate complaints.

Employer “gag order” policies are voided by employee free speech rights, although “gags” related to HIPAA privacy and related issues would appear to remain valid (whistleblowing should be done through government channels therefore not violating HIPAA regs).

Employers may not use mandatory arbitration clauses to bypass or void these statutory rights.

Violating HIPAA at the Speed of Light

Rarely does a week go by without a story of how "social media"** have caused problems for an employer, often because of posting confidential information, photos or just nasty comments about some phase of the business operation or co-workers.

In health facilities the stakes are much higher.

Now is the time to develop policies and educate the staff, BEFORE something bad happens.



** Facebook, MySpace, Twitter, and of course email is also a problem.

FTC Red Flags Delayed Again

The Federal Trade Commission has delayed the "red flag" identity theft rules for (most) health care providers. The rules originated in the Fair and Accurate Credit Transactions (FACT) Act of 2003.

The act defines most medical providers as creditors.

The new effective date is January 1, 2011.

Stay tuned.

Email is Evil!

People will make comments in email they would never make in a formal letter or memo.

This is dangerous to your organization.

Every organization should have clear policies on email, text messages, and social media,

Email is Evil!

People will make comments in email they would never make in a formal letter or memo.

This is dangerous to your organization.

Every organization should have clear policies on email, text messages, and social media,

CLASS Act

The health care reform bill included a new program to provide long-term care insurance, with automatic enrollment and then an opt-out provision. This program will phase in.

A New Era Begins - 3/21/2010

An Editorial:

The passage of the health care reform bill is a major milestone for U.S. health care services.
With passage, we will need to unravel the bill and the real story and prepare for the intended and unintended consequences of this massive effort.

The legislation is neither as bad as the Republicans make it out to be, not as fabulous as the Democrats claim. The bill changes the health care system to an amazing depth and breadth, and despite the proclamation of economists, politicians and policy wonks, we do not really know the full impact of the bill.

Reform is needed, we will soon be hitting the point at which employers have trouble providing health insurance to employees at an affordable price, the alternatives being dropping coverage or taking more from employees pockets.

President Obama will be hammered by the political right for going too far too fast, and by the progressive left of his own party for being timid. The left wanted a single payer system, was willing to settle for a public option, but left the table with only hope reform will be revisited, as it will.

The amount of misinformation, over generalization and plain old hot air tossed around during the debate make a calm analysis difficult, and will leave citizens and patients confused and alarmed, probably more than required. The bill is full of slow phase-ins and long transitions as we attempt to turn around one-sixth of our economy and attempt to attain several seemingly contradictory goals.

A great deal of the debate has focused on the budget impacts, and specifically the positive or negative impact on the deficit over a ten year span. The bill is full of wiggles and gimmicks, and as the vote drew near the Congressional Budget Office (CBO) estimated a positive deficit impact of about $140 billion in ten years.

Truth be told no one has any real idea what the bill will do to the deficit over ten years. Anyone who has studied the history of Medicare and Medicaid knows the legislative budget estimates tend to melt in the face of annual politicking and lobbying.

There are problems needing immediate attention. State budgets, hammered by the recession will have to be cut Medicaid benefits, a backwards step. Medicare physician reimbursement formulas, problematic for a decade, are being patched again while Congress dances around a permanent solution. Private insurers and employers will have to adjust quickly to new regulations and cost structures. Changes in Medicare are inevitable.

We can improve coverage and contain cost, but the reforms have to be constructed so carefully it is unlikely any political process has or will do so.

Now we know when the journey begins and the direction it is going. The details will be tough to work out, and there are many battles ahead, but decision making improves as certainty increases. We may get a good place, but not without many bumps and bruises.

The Feds Are Coming

After 8 years of lethargy the Department of Labor is gearing up to vigorously enforce both wage-and-hour and OSHA regulations.

The wage-and-hour regs are complex and widely misunderstood. The OSHA rules are better understood but often ignored.

Details on both topics will follow.