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504 Rehabilitation Act Grievance Policy

February 28, 2012 By Pearson & Bernard Leave a Comment

The Rehabilitation Act of 1973 was the predecessor of the American Disabilities Act of 1990 and imposed a duty upon federal contractors, or entities that participate in federally funded programs to accommodate persons with “handicaps.” In addition, Section 504 of the law prohibits a business which participates in a program that receive federal financial assistance from discrimination which affects the receipt of the federal benefit and in employment of individuals. Thus this law applies to home health agencies which participate in Medicare or Medicaid who, as outlined in the law, employ more then fifteen (15) persons.
The regulations adopted to implement section 504 provides that “no qualified Handicapped individual shall on the basis of handicap be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receive or benefits from federal financial assistance.” The law and regulations do not require an affirmative action policy. Yet, the regulations outline specific discriminatory actions which are prohibited including denial of a benefit or service, providing a less effective benefit of service or a different benefit or service either directly or through a contract, license or other arrangement if such acts are done on the basis of a person’s handicap. As previously stated, the prohibition extends to access to services or facilities as well as to employment opportunities.
Similar to the ADA, Section 504 of the Rehabilitation Act generally requires program participant to reasonably accommodate a qualified person with a handicap in the employment setting. Such a duty is not stated for accessibility to services. Instead, the regulations simply prohibit using the handicap as the basis of denial, restriction or limitation on services.
The regulations require that a covered entity appoint a specific person to coordinate is compliance. In addition, the covered entity must institute a grievance policy applicable complaints about possible discriminatory acts. The grievance policy should address employment grievance and patient grievance and include the following:

1. Adopt a written grievance procedure to be incorporated in clinical and employment policies. The grievance policy should be included in patient admission packets.

2. The grievance procedures should outline that complaints be in writing and addressed to a management level person and/or the identified Grievance Coordinator.

3. Establish specific time frames for filing the compliant and the investigation of the changes.

4. Outline the time frame and chain of command for decision_making on the complaint including identifying the person or the job title of the person who will oversee the investigation of the complaint.

5. Provide for a grievance hearing_ a meeting of the aggrieved party and the decision makers including the Chief Executive Officer of the company as a final step in the procedure.

Agencies also must maintain a log of grievances from patients or employee that fall under section 504, by disabled person who are either patient, applicants for employment, etc. In addition, agencies must post a notice of compliance with Section 504 of the Rehabilitation Act which includes the name of the Grievance Coordinator. Agencies who advertise, either for employees or for educational purposes, should also include reference to being non_discriminatory on the basis of race, sex, disability, religion, or ethnic background.

In light of the recent cases, home health agencies should make sure they are in compliance with Section 504 of the Rehabilitation Act and address the issues in admission policies. A grievance procedure should be adopted and incorporated in agency admission and compliance policies. Decisions on admission or discharge should be characterized as related to the agency’s ability to provide or reasonable expectation to be able to provide the care for patients, which may include whether or not the agency can afford to pay its employees to provide services.

Filed Under: Blog, Home Health Agencies Tagged With: 504 Rehabilitation Act Grievance Policy, health agencies, healthcare agency

Recordkeeping Requirements Under The Fair Labor Standards Act (29 C.F.R. PART 516)

February 22, 2012 By Pearson & Bernard Leave a Comment

INTRODUCTION

The Fair Labor Standards Act, (FLSA), is a federal statute which requires an employer to compensate its non_exempt employees at a stated minimum wage and overtime pay at a rate of not less than one and one half times the regular rate of pay for all hours worked in excess of forty in any one workweek. The FLSA is a remedial statute, which reflects Congressional intent to provide broad federal employment protection to workers. The Office of Inspector General (OIG) and the Department of Labor have both targeted health care employers for enforcement actions. The consequences of non_compliance can be financially devastating.

The FLSA contains many other legally enforceable obligations for employers as well. This is the first in a series of articles about the requirements of the FLSA and will concern the record keeping requirements incumbent upon all employers. Future articles will deal with subjects such as exemptions from overtime requirements, the fee basis of payment, damages for non_compliance, joint employment and the distinctions between an employee and an independent contractor, with particular emphasis on those requirements as they affect health care providers.

RECORD KEEPING REQUIREMENTS

Under the FLSA, all covered employers are required to keep certain records on each non_exempt employee. There is no specified format for this data, but the employer is required to maintain the following information:

1. Employee’s full name and social security number
2. Address
3. Date of birth, if under 19
4. Sex and occupation
5. Time of day and day of week on which the employee’s work week begins
6. Hourly rate of pay
7. Hours worked each work day and total hours worked each work week
8. Total daily or weekly straight time earnings, exclusive of overtime
9. Total premium pay for overtime hours
10. Total additions to or deductions from wages paid each pay period
11. Total wages paid each pay period.
12. Date of payment and the pay period covered by each payment.

For exempt employees, the employer is required to keep all of the above, except for numbers 6_10, in such a manner that the employee’s entire remuneration, including fringe benefits and prerequisites, can be readily calculated. Under these provisions of the FLSA, each employer is required to display an official poster in the workplace which outlines the provisions of the Act. Note that an employer is required to keep a record of all hours worked by an exempt employee compensated by fee (#7).

An employer’s records under the FLSA must be kept in a place where they can be produced within 72 hours of a request by the Secretary of Labor, or the Administrator of the Wage and Hour Division. All of the required records are subject to inspection by the Administrator. If an employer, or group of employers, due to peculiar conditions under which they must operate, wish to modify one or more of these record keeping requirements, the employer(s) may submit a written petition to the Administrator of the Wage and Hour Division, requesting such a waiver.

Payroll records, collective bargaining agreements, plans, trusts, employment contracts and the employer’s sales and purchasing records must be kept for three years. Supplementary records, such as time cards, wage rate tables, orders, shipping and billing records must be preserved two years under the FLSA. An employee does not have the right to sue his or her employer for the employer’s failure to abide by the FLSA’s record keeping requirements. Only the Department of Labor can maintain such an action.

There are several exceptions to the record keeping requirements. Those of particular interest to health care providers include employees of hospitals and residential care facilities. Those institutions can invoke the so_called “8/80 Rule.” It does not apply to home health agencies. It is designed for employees of residential care facilities who are primarily engaged in the care of the sick, the aged, or mentally ill and whose patients reside on the premises. It permits the employer to establish a fourteen day work/reporting period, instead of the usual seven day work period required under the Act.

Consequently, the seven day record keeping requirements listed above are expanded to fourteen days in the case of residential care facilities who use the 8/80 rule. In addition, the FLSA requires that any institution using this exception to the record keeping requirements must have a written agreement which summarizes its terms and indicates how long it remains in effect.

Another exception to the general record keeping requirements is known as a “Belo contract.” A Belo contract, is designed for an employer whose employees work irregular hours and permits the employer to pay a fixed salary for a guaranteed number of hours, up to sixty, based upon an hourly rate. Employees are paid the guaranteed weekly wage regardless of the number of hours they actually work. Overtime would only be calculated during those work weeks when an employee worked in excess of sixty hours in a week. This exception requires that the wage must be set pursuant to a written employment contract.

The most common example would be a collective bargaining agreement between an employer and its unionized employees. Strict requirements that the employer keep accurate records of all hours worked are enforced because the employer must be able to demonstrate to the Department of Labor that there are fluctuations both above and below the guaranteed number of hours. Otherwise, the plan will be invalidated.

Filed Under: Blog, Home Health Agencies Tagged With: Fair Labor Standards Act, home health agencies

Avoiding Patient Abandonment Claims

January 15, 2012 By Pearson & Bernard Leave a Comment

Recent case law raise significant concerns about Healthcare Agency’s liability for abandoning patients who are discharged from services or have services reduced. Discharging patients is always an undesirable decision for HHAs, but agencies may discharge and avoid legal liability for abandonment if certain steps are followed.

To understand the legal concept of “patient abandonment” it must be distinguished from discharge. Abandonment, as applied in the health care setting, is a unilateral termination of services when there is a continuing need for health care services and a lack of reasonable notice to the patient. Thus there are three elements to a claim for abandonment.

The termination is not subject to mutual agreement i.e. is a unilateral decision by the health care provider;
The discharge occurs without reasonable notice to the patient- sufficient to allow the patient to obtain another care giver;
The patient must continue to need health care services provided by the health care entity.

In the Home care setting then, the a patient abandonment claim is viable where there is not sufficient notice to the patient. Courts generally use the concept of “reasonable” notice which implies that there has been sufficient time for patient to obtain another health care provider or find alternative means of obtaining the needed care.
To facilitate “reasonable notice,” agencies should follow the following steps:

Determine the patient’s need for services- as to frequency, duration, and availability of alternative care givers. If there exists an ongoing plan of care services likely should not be terminated until a normal endpoint, such as the next decertification date.
Similarly, if the patient is under a plan of care, then the HHA should advise the patient physician of the intent to discharge.
Provide the patient advance written notice of the intent to discharge him or her including the exact date services will end, and explanation of the reasons for the decision to discharge, and suggested alternative care givers. Notice should be sent by certified mail, return receipt requested to properly document the patient’s receipt. A copy of the notice should also be transmitted to the physician.

The procedures for patient discharge, as outline above, should be included in agencies’ clinical policies. The unilateral decision to discharge must be made in accordance with the above procedures and in light of each patients’ ongoing need. Thus the length of the notice to the patient which is “reasonable” likely will depend on the particular situation, i.e. the availability of other providers and the patient’s need for services.

In addition if the decision to discharge is based on financial hardship due to reimbursement limitations, an H.A. must be prepared to show that it can not longer reasonably expect to be able to meet the needs of the patient- i.e. can no longer pay staff to provide the care. Discharge notices should always include information on the 504 Rehabilitation Grievance Policy (See: “504 Rehabilitation Act Grievance Policy.” by Elizabeth Zink-Pearson, on this website). In the end, in these difficult situations, it is advisable to discuss the situation with your health care counsel to obtain advise on the particular issues pertaining to the proposed discharge.

Filed Under: Blog, Home Health Agencies Tagged With: Avoiding Patient Abandonment Claims, he, home health agencies