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.