Government Coercion As A Vehicle To Alter Healthcare

Posted on November 14, 2011 in the National Law Review an article by attorney Frank R. Ciesla of Giordano, Halleran & Ciesla, P.C.  regarding  the Massachusetts Legislature, which previously mandates health insurance for all, has now moved into its next stage of attempting to contain the cost of healthcare:

 

The front page of the New York Times on Tuesday, October 18, 2011 stated that the Massachusetts Legislature, which previously mandates health insurance for all, has now moved into its next stage of attempting to contain the cost of healthcare.  One way of containing the cost that has been applied around the globe is to regulate the rates charged by insurers, which forces insurers to regulate the rates paid to providers.  Another way is to set an overall budget for healthcare as is done in Canada or certain European countries.  As the Times describes the Massachusetts plan, the approach being considered there is a flat “global payment” to networks of providers for keeping patients well.   All of these approaches alter the way providers are paid and attempt to shift the risks to the insurance companies or the providers.  In my opinion, each of these approaches illustrates the use of the governmental power of coercion to alter the healthcare field.

This use of coercion is shown in various ways in the Affordable Care Act (ACA), by penalizing employers for not providing healthcare insurance so that employer provided healthcare is no longer “voluntary,” by penalizing individuals who do not obtain healthcare insurance, and by requiring the expansion by the states of the State Medicaid programs to cover a larger portion of the population.

Coercion is not new to the healthcare field.  The federal government has long used its power of coercion to compel individuals and employers to pay the Medicare tax, and while Medicare Part B is voluntary, higher income individuals who select Part B are required to pay a higher premium than the vast majority of individuals participating in Part B.  The Medicare and Medicaid programs, while “voluntary” for physicians but not for hospitals in New Jersey, sets the rates they pay.

One of the new approaches to cost control under the ACA is the creation of Accountable Care Organizations (ACO) in which some of the risk of patient outcomes is shifted to the providers.

What is missing so far in the discussion of ACOs and in the Massachusetts debate, is a general obligation on the part of the beneficiaries as to their compliance with medical instructions, as well as their election to live a healthy lifestyle.  The government has exercised some coercion in this area, for instance, with significantly higher taxes on cigarettes as well as the numerous bans on smoking in various places.  Society’s experience with Prohibition has made it clear that that is not the approach to take again, in the area of cigarettes, or quite frankly, in any other area.  It should be noted that we are seeing calls for the legalization of marijuana and the taxation of marijuana rather than continuation of the current prohibition against the use of marijuana.  A similar approach is being taken in the area of alcohol with higher taxes on alcohol.

Whether or not this coercive tool, taxation or in the case of smoking, prohibition in certain areas, will be extended to other activities or circumstances, such as obesity, which result in additional healthcare costs is yet to be seen.  However, the changing of the paradigm in the healthcare delivery system, from payment to providers for the care they render to patients (whether or not the party is compliant with medical directions or the patients choose an unhealthy lifestyle) to shifting the risk resulting from bad patient conduct to the providers, is a giant step into the unknown.  One question that will need to be addressed is what authority will providers have in this new paradigm to require patient compliance with both medical directives and with lifestyle changes.

© 2011 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

2011 Wisconsin Act 49: Wisconsin Tax Law Amended to Conform with Federal Adult Child Coverage Requirements

Posted in the National Law Review an article by Alyssa D. Dowse and Timothy C. McDonald of von Briesen & Roper, S.C.  regarding Wisconsin’s state income tax law for health coverage provided to an employee’s adult child to the exclusion provided for that coverage under federal income tax law.

As expected, Governor Scott Walker has signed legislation to conform the exclusion under Wisconsin state income tax law for health coverage provided to an employee’s adult child to the exclusion provided for that coverage under federal income tax law. If an employer’s health plan extends coverage to an employee’s adult child, then, through the end of the tax year in which the child attains age 26, the employee will not be subject to either federal or Wisconsin state income tax on the value of that coverage. This is the case regardless of whether the child otherwise qualifies as the employee’s tax dependent. This change in Wisconsin law is effective for tax years beginning on or after January 1, 2011.

If employer health plan coverage is provided to an employee’s adult child after the tax year in which the child attains age 26, then, as under current law, the employee will be subject to federal and Wisconsin state income tax on the value of that coverage unless the child qualifies as the employee’s tax dependent for health plan purposes.

Governor Walker signed 2011 Wisconsin Act 49 (the “Act”), which amends Wisconsin tax law to conform the state income tax exclusion for coverage provided to an employee’s adult child to the federal income tax exclusion, on November 4, 2011.

©2011 von Briesen & Roper, s.c

CMS Releases its CY 2012 OPPS Final Rule

Posted recently in  the National Law Review by Scott J. Thill of von Briesen & Roper, S.C.  regarding  CY 2012 Outpatient Prospective Pzyment System:

 

CMS has released its CY 2012 Outpatient Prospective Payment System (OPPS) Final Rule, effective January 1, 2012.  Notable provisions of the Final Rule include:

  • A market basket update of 1.9%.
  • Adjustment to payment rates for certain cancer hospitals.
  • A process for the APC Panel to evaluate requests for alternative supervision levels for hospital outpatient therapeutic services and issue recommendations to CMS on the same.
  • The addition of three quality measures for hospital outpatient departments to report for purposes of the CY 2014 and CY 2015 payment determinations.  The new measures include: (i) a measure relating to cardiac rehabilitation patient referrals; (ii) a measure relating to the use of a safe surgery checklist; and (iii) a measure relating to hospital outpatient department volume for selected surgical procedures.
  • A reduction in the number of randomly selected hospitals (from 800 to 450) for validating hospital outpatient quality reporting data for the CY 2013 payment determination.
  • Revisions to the hospital value-based purchasing program.
  • A process for physician-owned hospitals to apply for an exception to the federal prohibition on expanding facility capacity in physician-owned hospitals.

Health Care Information Privacy and Security Forum

The National Law Review is pleased to inform you of American Conference Institute’s Health Care Information Privacy and Security Forum Conference on Monday, December 05 to Tuesday, December 06, 2011 at the Union League, Philadelphia, PA.

ACI

Our Nation is poised to harness the power of information technology to improve health care. Transforming our health care system into a 21st century model is a bold agenda… [I]t is more important than ever to ensure consumer trust in theprivacy and security of their health information and in the industry’s use of new technology.

Statement on Privacy and Security, Building Trust in
Health Information Exchange, July 8, 2010.
We Have Entered the Era of Health Information Technology and Face New and Daunting Challenges in Keeping Health Information Private and Secure. Assess Your Current HIPAA Compliance Program to Ensure Best HIT Practices as You Prepare for New Privacy and Security Responsibilities in the Age of HITECH.

Privacy and security of health care information are critical concerns for HIPAA covered entities and an ever expanding circle of business associates.  Knowing the basics of the HIPAA are no longer enough in the age of HITECH when mandates giving rise to the predominance of EHRs and HIEs are taking center stage in the privacy and security challenges with which privacy, information, and security officers, and their counsel must contend every day.  The modes and modalities for storing health care information are becoming more and more complex in the age of HIT — as are the safeguards for keeping this information from unauthorized disclosure.

Now is Not the Time for Regulatory Paralysis, but for Action.

Industry stakeholders are analyzing their obligations under the draft accounting and disclosure rule and awaiting the release of the final HIPAA privacy rule. However, they know that they cannot remain paralyzed with anticipation, but must act upon the information they have and that which they are already obligated to do. Now is the time to ensure that all systems are in compliance with existing law and regulation and flexible enough for reconciliation with new requirements.

Attend ACI’s Health Care Privacy and Security Forum and Get the Critical Information that You Need to Meet Your HIPAA
and HITECH Privacy and Security Challenges Head-On.
 

ACI’s Health Care Privacy and Security Forum has been designed to help you navigate the legal and business complexities associated with HIPAA, HITECH (as well as state privacy and security laws and regulations) and the ever evolving legal and regulatory privacy and security landscape. Our faculty of privacy and security experts will walk you through legal and business challenges associated with the anticipated regulations; HIT infrastructure and EHRs; HIEs; business associates; breach; encryption; and enforcement.

Benefit from Special Training and Strategy Sessions that Will Address the Essentials of HIPAA and HITECH and Critical Privacy and Security Compliance Audit Competencies.

To enhance and complete your conference experience, we are pleased to offer the following training and strategy sessions:

•    HIPAA and HITECH Boot Camp: Intensive Training in Privacy and Security Essentials for Health Care Professional
s which will provide you with the legal and regulatory backdrop for the more in-depth HIPAA and HITECH controversies discussed in the main conference. This is the perfect course for attendees who are new to health care privacy and security matters or for more experienced professionals who are in need of a refresher; and

•    The Working Group on Auditing, Updating and Perfecting Your Existing HIPAA / HITECH Privacy and Security Compliance Program which will help you implement best practices to ensure that your current health care privacy and security program is in-check with current law and regulations and prepare you for HITECH-mandated HHS compliance audits applicable to both HIPAA covered-entities and business associates.

As an added bonus, your conference registration includes
your choice of one of these sessions.

Reserve Your Place Now at this Critical HIPAA and HITECH Event.
Clearly, this is the health care privacy and security conference that every legal or business advisor to a HIPAA covered entity or business associate cannot afford to miss. Register now by calling 1-888-224-2480, faxing your registration form to 1-877-927-1563 or logging on to www.AmericanConference.com/HIPAA-HITECH.

Medicare Part B premiums for 2012 lower than projected

Recently posted in the National Law Review an article by U.S. Department of Human & Health Services regarding Medicare Part B premiums:

Health & Human Services

Affordable Care Act helps keep Medicare affordable 

The U.S. Department of Health and Human Services (HHS) announced that Medicare Part B premiums in 2012 will be lower than previously projected and the Part B deductible will decrease by $22. While the Medicare Trustees predicted monthly premiums would be $106.60, premiums will instead be $99.90. Earlier this year, HHS announced that average Medicare Advantage premiums would decrease by four percent and premiums paid for Medicare’s prescription drug plans would remain virtually unchanged.

Thanks to the Affordable Care Act, people with Medicare also receive free preventive services and a 50 percent discount on covered prescription drugs when they enter the prescription drug “donut hole.”  This year, 1.8 million people with Medicare have received cheaper prescription drugs, while nearly 20.5 million Medicare beneficiaries have received a free Annual Wellness Visit or other free preventive services like cancer screenings.

“The Affordable Care Act is helping to keep Medicare strong and affordable,” said HHS Secretary Kathleen Sebelius. “People with Medicare are seeing higher quality benefits, better health care choices, and lower costs. Health reform is also strengthening the Medicare Hospital Insurance Trust Fund and cracking down on Medicare fraud.”

Medicare Part B covers physicians’ services, outpatient hospital services, certain home health services, durable medical equipment, and other items. In 2012, the “standard” Medicare Part B premium will be $99.90. This is a $15.50 decrease over the standard 2011 premium of $115.40 paid by new enrollees and higher income Medicare beneficiaries and by Medicaid on behalf of low-income enrollees.

The majority of people with Medicare have paid $96.40 per month for Part B since 2008, due to a law that freezes Part B premiums in years where beneficiaries do not receive cost-of-living (COLA) increases in their Social Security checks. In 2012, these people with Medicare will pay the standard Part B premium of $99.90, amounting to a monthly change of $3.50 for most people with Medicare. This increase will be offset for almost all seniors and people with disabilities by the additional income they will receive thanks to the Social Security cost-of-living adjustment (COLA). For example, the average COLA for retired workers will be about $43 a month, which is substantially greater than the $3.50 premium increase for affected beneficiaries. Additionally, the Medicare Part B deductible will be $140, a decrease of $22 from 2011.

“Thanks in part to the Affordable Care Act, people with Medicare are going to have more money in their pockets next year,” said Centers for Medicare & Medicaid Services (CMS) Administrator Donald Berwick, M.D. “With new tools provided by the Affordable Care Act, we are improving how we pay providers, helping patients get the care they need, and spending our health care dollars more wisely.”

Today, CMS also announced modest increases in Medicare Part A monthly premiums as well as the deductible under Part A. Monthly premiums for Medicare Part A, which pays for inpatient hospitals, skilled nursing facilities, and some home health care, are paid by just the 1 percent of beneficiaries who do not otherwise qualify for Medicare. Medicare Part A monthly premiums will be $451 for 2012, an increase of $1 from 2011. The Part A deductible paid by beneficiaries when admitted as a hospital inpatient will be $1,156 in 2012, an increase of $24 from this year’s $1,132 deductible. These changes are well below increases in previous years and general inflation.

For more information on how seniors are getting more value out of Medicare, please visit:http://www.healthcare.gov/news/factsheets/2011/10/medicare10272011a.html

For more information about the Medicare premiums and deductibles for 2012, please visit:https://www.cms.gov/apps/media/fact_sheets.asp

© Copyright 2011 U.S. Department of Human & Health Services

Health Care Information Privacy and Security Forum

The National Law Review is pleased to inform you of American Conference Institute’s Health Care Information Privacy and Security Forum Conference on Monday, December 05 to Tuesday, December 06, 2011 at the Union League, Philadelphia, PA.

 

ACI

 

Our Nation is poised to harness the power of information technology to improve health care. Transforming our health care system into a 21st century model is a bold agenda… [I]t is more important than ever to ensure consumer trust in theprivacy and security of their health information and in the industry’s use of new technology.

Statement on Privacy and Security, Building Trust in
Health Information Exchange, July 8, 2010.

 

We Have Entered the Era of Health Information Technology and Face New and Daunting Challenges in Keeping Health Information Private and Secure. Assess Your Current HIPAA Compliance Program to Ensure Best HIT Practices as You Prepare for New Privacy and Security Responsibilities in the Age of HITECH.

Privacy and security of health care information are critical concerns for HIPAA covered entities and an ever expanding circle of business associates.  Knowing the basics of the HIPAA are no longer enough in the age of HITECH when mandates giving rise to the predominance of EHRs and HIEs are taking center stage in the privacy and security challenges with which privacy, information, and security officers, and their counsel must contend every day.  The modes and modalities for storing health care information are becoming more and more complex in the age of HIT — as are the safeguards for keeping this information from unauthorized disclosure.

Now is Not the Time for Regulatory Paralysis, but for Action.

Industry stakeholders are analyzing their obligations under the draft accounting and disclosure rule and awaiting the release of the final HIPAA privacy rule. However, they know that they cannot remain paralyzed with anticipation, but must act upon the information they have and that which they are already obligated to do. Now is the time to ensure that all systems are in compliance with existing law and regulation and flexible enough for reconciliation with new requirements.

Attend ACI’s Health Care Privacy and Security Forum and Get the Critical Information that You Need to Meet Your HIPAA
and HITECH Privacy and Security Challenges Head-On.

ACI’s Health Care Privacy and Security Forum has been designed to help you navigate the legal and business complexities associated with HIPAA, HITECH (as well as state privacy and security laws and regulations) and the ever evolving legal and regulatory privacy and security landscape. Our faculty of privacy and security experts will walk you through legal and business challenges associated with the anticipated regulations; HIT infrastructure and EHRs; HIEs; business associates; breach; encryption; and enforcement.

Benefit from Special Training and Strategy Sessions that Will Address the Essentials of HIPAA and HITECH and Critical Privacy and Security Compliance Audit Competencies.

To enhance and complete your conference experience, we are pleased to offer the following training and strategy sessions:

•    HIPAA and HITECH Boot Camp: Intensive Training in Privacy and Security Essentials for Health Care Professional
s which will provide you with the legal and regulatory backdrop for the more in-depth HIPAA and HITECH controversies discussed in the main conference. This is the perfect course for attendees who are new to health care privacy and security matters or for more experienced professionals who are in need of a refresher; and

•    The Working Group on Auditing, Updating and Perfecting Your Existing HIPAA / HITECH Privacy and Security Compliance Program which will help you implement best practices to ensure that your current health care privacy and security program is in-check with current law and regulations and prepare you for HITECH-mandated HHS compliance audits applicable to both HIPAA covered-entities and business associates.

As an added bonus, your conference registration includes
your choice of one of these sessions.

Reserve Your Place Now at this Critical HIPAA and HITECH Event.
Clearly, this is the health care privacy and security conference that every legal or business advisor to a HIPAA covered entity or business associate cannot afford to miss. Register now by calling 1-888-224-2480, faxing your registration form to 1-877-927-1563 or logging on to www.AmericanConference.com/HIPAA-HITECH.

HHS Halts Implementation of the CLASS Program

Recently posted in the National Law Review an article written by Meghan C. O’Connor of von Briesen & Roper, S.C. regarding HSS’ announcement regarding CLASS Act:

The U.S. Department of Health and Human Services (HHS) announced plans today (October 14, 2011) to halt implementation of the Community Living Assistance Services and Supports (CLASS) Act. The CLASS Act is a voluntary, federally administered long-term care insurance program introduced in theAffordable Care Act (ACA). The program would have provided benefits to purchase long-term services and supports. Details regarding implementation and enrollment were to be announced by October 1, 2011.

Secretary Sebelius sent a letter to congressional leaders today noting no “viable path forward for CLASS implementation at this time.” The ACA conditioned implementation of the CLASS program on certification that the program would be actuarially sound and financially solvent for 75 years. However, HHS actuaries and the Congressional Budget Office could not find a way to meet these contingencies

Secretary Sebelius emphasized the continued need for affordable long-term care services and the lack of viable options in the current market.

©2011 von Briesen & Roper, s.c

ANALYSIS: 'ObamaCare' label is sticking

Posted on September 29, 2011 in the National Law Review an article by Wendell Potter  of Center for Public Integrity regarding backers of the president’s health plan are loosing the public relations battle:

Backers of the president’s health plan are losing the public relations battle

The Kaiser Family Foundation just released the findings of its annual survey of businesses to determine how much the cost of employer-sponsored health coverage has gone up. There were some unexpected findings.

Tea Party members protest President Obama’s health care mandate in Cincinnati. Tom Uhlman/AP

One was that the average cost of annual premiums for family coverage is now more than $15,000. The 9 percent increase in the cost of health insurance over last year caught many people by surprise, because it represented a bigger hike in premiums than in recent years.

What seems clear is that insurers decided last year to charge their customers considerably more than necessary this year to be able to meet Wall Street’s profit expectations; insurance companies are also concerned that such increases will be more difficult once health care reform is fully implemented in 2014.

Here’s another surprise. Kaiser found that 50 percent of small employers are aware that they are now eligible for a tax credit from the federal government—thanks to the Affordable Care Act—if they provide subsidized coverage to their employees. I can hardly believe the awareness of the tax credit is that high.

As I have traveled across the country in recent weeks, speaking to a wide range of audiences, one thing has become abundantly clear: the provisions of the Affordable Care Act already in effect are anything but abundantly clear to people.

That’s because opponents of health care reform have won the public relations battle in defining the Affordable Care Act.

While the most recent Kaiser survey did not seek the views of the general population nor ask employers what they think or know about the Affordable Care Act, other polls show that advocates of the new law have been losing ground in the battle for public support.

This week I have been speaking at Florida churches —  a Catholic church in Winter Park, outside Orlando, Monday night, and a Unitarian Universalist church in Clearwater Tuesday night.  The hosts wanted an overview of what’s in the new law and what’s not—to provide factual, unbiased information and also to dispel many of the myths that have gained traction, starting before the law was even enacted.

What the hosts told me—and what I learned from talking to people who attended the forums—is that the Obama Administration and the national groups that backed  the legislation have essentially been missing in action when it comes to explaining the benefits of the law.

Kaiser’s finding that 50 percent of small businesses were familiar with the tax credit would certainly come as a shock to Dr. Patrick Cannon, advocacy director for Florida CHAIN (Community Health Action Information Network). He has been traveling the state trying to reach small business owners and educate them about the tax credit.

He has found almost no one even knows about it. This undoubtedly helps explain why the number of small businesses offering coverage to their employees dropped significantly in the most recent Kaiser survey.

Cannon believes that one of the reasons is that reform advocates missed an important opportunity to brand the Affordable Care Act in positive terms—starting with the most basic term of all, the name of the law itself.

As Cannon pointed out, opponents of the law  use a single term to describe the law: ObamaCare. The term has so seeped its way into the vernacular that even some of the law’s advocates have started using that pejorative label. The groups that support the law, he notes, use a wide range of terms to describe it.

Cannon is embarking on an effort among supporters to be consistent in calling it the Affordable Care Act.

Because opponents have been able to define the law on their own terms (or term), advocates are finding it increasingly difficult to have civil conversations with people about it—including with independents.

Liz Buckley, executive director of Focus Orlando, told me that, “If you even try to have conversations with people about it, people think you’re just trying to reelect Obama. They just shut down the conversation.”

Why the administration has been so inept or disengaged is baffling. It’s true that people will be skeptical of information about the law that comes straight from the White House, but the folks behind the Obama campaign in 2008 seemed to know how to get third parties motivated and active on behalf of the candidate.

Where are those folks now? If the White House is serious about making sure the law goes forward—and making sure the Obama legacy is a positive one—they better get in gear and turn public awareness and attitudes around. Otherwise, pretty soon,it may be too late.

Reprinted by Permission © 2011, The Center for Public Integrity®. All Rights Reserved.

Coming Home: Service Members Bring Value, Benefits to Workplace

Posted in the National Law Review an article by Drew B. Millar of Dinsmore & Shohl LLP regarding a significant number of returning servicemen and women are out of work:

Among the millions of Americans who are out of work are a significant number of returning servicemen and women. Many employers are distracted by the host of employment issues that can arise in employing these individuals and, to some extent, their families. Among the applicable laws are the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA).

While an understanding of the rights afforded to servicemembers by these statutes is essential, employing these individuals provides much more than a sense of patriotism for employers. Specific tax incentives exist (and more have been proposed) to get these individuals back to work. Many possess unique skills and abilities that would be an asset to any workforce. This article provides simple guidance about the laws that employers need to be aware of that impact the hiring of veterans and provide incentives for doing so.

USERRA mandates that employees be given a leave of absence to serve in the uniformed services and prohibits discrimination against employees because of their service. USERRA applies to all public and private employers regardless of size. This leave of absence can be as long as five (5) years and there are specific pronouncements on how the leave can be treated and what benefits the employee is entitled to while on qualifying leave. After the employee’s period of service has ended, the employer has an obligation to re-employ the individual in the same or similar position depending on the length of the leave period.

The FMLA also has a leave provision specifically designed to protect injured servicemembers and their families. While employees must have worked at least 1,250 hours during the preceding twelve-month period, under USERRA, an employee returning from fulfilling his or her National Guard or Reserve Military obligation shall be credited with the hours of service that he or she would have performed (based on pre-service work schedule) but for the period of military service to meet this requirement.

Military Caregiver leave or Covered Servicemember leave permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of unpaid leave during a rolling twelve-month period to care for a injured member of the Armed Forces, National Guard, or Reserves. A covered servicemember also includes a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness” if the veteran was a member of the armed services at any time in the five years preceding the medical treatment. The 12-month period to be used for purposes of tracking this leave entitlement begins when the employee starts using his or her leave. Therefore, it is possible that the 12-month period utilized for tracking other forms of FMLA leave may not be the same as what is being utilized for tracking this entitlement.

Importantly, an employee is not entitled to more than 26 total weeks of FMLA leave including Military Caregiver leave, during the 12-month period that commences with the need for leave. Therefore, an employee is not entitled to 26 weeks of leave to care for a family member under this provision, plus an additional 12 weeks of leave for other FMLA-qualifying reasons. Employees may utilize the 26-week entitlement for each servicemember and for each illness or injury incurred. An employee may take 26 weeks of leave in consecutive 12-month periods for family members covered by this provision.

While these laws may seem to discourage the hiring of our returning servicemembers, employers who wisely elect to recruit such individuals can make a significant dent in their federal taxes. Currently, the Work Opportunity Tax Credit (WOTC) Program provides up to a $2,400 credit if the hired veteran is 1) a member of a family that has received Food Stamps for at least 3 consecutive months in the 15 months prior to the date of hire; or 2) a person with a disability who is participating in a vocational rehabilitation program through US Veteran’s Administration. The aforementioned credit increases to $4800 for disabled veterans who were 1) hired within one year of having been discharged, or released from active duty, or 2) unemployed for any six of the last 12 months. In addition, a majority of states offer partial, or total exclusions, from state-level taxes for combat and/or other military compensation paid to troops/reserves. President Barack Obama also recently proposed a $2,400 tax credit for hiring an unemployed veteran and $4,800 for hiring a veteran who has been unemployed for six months or longer. The existing tax credit for hiring veterans with a service-connected disability would also be raised to $9,600.

Many federal and state programs are also available for these men and women to receive training and be reintegrated into the workforce. Several resources, including Employer Support of the Guard and Reserve (www.esgr.org) and the Department of Labor’s VETS Program (http://www.dol.gov/vets/), provide services to servicemembers and employers to assist in these efforts. The Kentucky Office of Employment and Training also has Veterans Employment Representatives and Disabled Veteran Outreach Specialists specifically assigned to assist veterans with their employment and training needs (http://oet.ky.gov/des/veteran/veteran.asp).

In short, an employer in today’s job market would be wise to actively recruit individuals who have returned from active duty in the military or have the prospect of being called to active duty at some point during their employment. These employees bring valuable skills and hiring them should be a serious consideration of any employer in this economic climate.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

Specialty Healthcare 357 NLRB Decision No. 83: Impact on Nursing Home and Resident Care Industry

Posted on September 6, 2011 in the National Law Review an article by  Joshua W. Pollack of von Briesen & Roper, S.C. regarding a decision for those in the nursing home and resident care industry:

 

Recently, the National Labor Relations Board (NLRB) handed down an important decision for those in the nursing home and resident care industry: Specialty Healthcare, 357 NLRB No. 83. In this decision, the Board redefined the standard for “unit determination” cases for the “non-acute health care industry.” The Board’s conclusion reversed twenty years of precedent and made further unionization in the nursing home industry likely.

The Board’s decision makes unionization more likely because a key factor in the success of an organizing campaign is the size of the bargaining unit. Traditionally, unions fare better when organizing a smaller unit, whereas employers fare better when the union must organize a larger unit. Under the newly announced “traditional community of interest” standard, smaller units will be harder to challenge by employers, and thus are likely to proliferate. The Board summarized the new standard

[when a union] petition[s] for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

Applying this standard, the Board held that a unit of Certified Nursing Assistants was the appropriate bargaining unit because the employer was unable to show that there was a larger group that had an “overwhelming community of interest” that overlapped the interest of the CNAs. In application, this rule will make it harder for employers to challenge prospective units and increase a union’s ability to organize smaller units.

Employers should be aware that Specialty Healthcare gives unions an advantage in their organizing efforts, and as a result employers should take proactive steps to prepare for a potential union campaign, especially those employers in the non-acute health care industry. At a minimum, supervisors should know the warning signs of unionization and how to respond. Supervisors should also be empowered with the information necessary to articulate the company’s position of a union-free workplace with credibility. Lastly, employers should also institute policies that guide employees regarding union solicitation, union access to facilities, and employee uniform policies.

©2011 von Briesen & Roper, s.c