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The National Law Forum - Page 510 of 753 - Legal Updates. Legislative Analysis. Litigation News.

Department of State Releases December 2014 Visa Bulletin

Morgan Lewis

The Bulletin shows that cutoff dates in the EB-2 India category remain severely backlogged, cutoff dates in EB-3 for the Rest of the World and China advance by five months, and EB-3 China is now ahead of EB-2 China.

The U.S. Department of State (DOS) has released its December 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the December 2014 Visa Bulletin Say?

The December Visa Bulletin shows no change in the cutoff date for the EB-2 India category. EB-3 cutoff dates for the Rest of the World and China will advance by five months.

The cutoff date for F2A applicants from all countries will advance slightly in December.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will remain at February 15, 2005. The cutoff date for applicants in the EB-2 category chargeable to China will advance to January 1, 2010. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to December 1, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by five months to June 1, 2010, which is now ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the Rest of the World will advance by five months to November 1, 2012.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: June 1, 2010 (forward movement of 152 days)

India: December 1, 2003 (forward movement of 7 days)

Mexico: November 1, 2012 (forward movement of 153 days)

Philippines: November 1, 2012 (forward movement of 153 days)

Rest of the World: November 1, 2012 (forward movement of 153 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The December Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through December 2014.

China

The November Visa Bulletin indicated a cutoff date of December 8, 2009 for EB-2 applicants chargeable to China. The December Visa Bulletin indicates a cutoff date of January 1, 2010, reflecting forward movement of 23 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2010 may file AOS applications or have applications approved in December 2014.

India

The cutoff date for EB-2 applicants chargeable to India remains at February 15, 2005. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to February 15, 2005 may file AOS applications or have applications approved in December 2014.

Developments Affecting the EB-3 Employment-Based Category

China

The November Visa Bulletin indicated a cutoff date of January 1, 2010. The December Visa Bulletin remains unchanged, with a cutoff date of June 1, 2010. This means that applicants in the EB-3 category chargeable to China with a priority date prior to June 1, 2010 may file AOS applications or have applications approved in December 2014.

India

The November Visa Bulletin indicated a cutoff date of November 22, 2003. The December Visa Bulletin indicates a cutoff date of December 1, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to December 1, 2003 may file AOS applications or have applications approved in December 2014.

Rest of the World

The November Visa Bulletin indicated a cutoff date of June 1, 2012 for EB-3 applicants chargeable to the Rest of the World. The December Visa Bulletin indicates a cutoff date of November 1, 2012, reflecting forward movement of 153 days. This means that applicants in the EB-3 category chargeable to the Rest of the World with a priority date prior to November 1, 2012 may file AOS applications or have applications approved in December 2014.

Developments Affecting the F2A Family-Sponsored Category

The November Visa Bulletin indicated a cutoff date of September 22, 2012 for F2A applicants from Mexico. The December Visa Bulletin indicates a cutoff date of January 1, 2013, reflecting forward movement of 75 days. This means that applicants from Mexico with a priority date prior to January 1, 2013 will be able to file AOS applications or have applications approved in December 2014.

The November Visa Bulletin indicated a cutoff date of March 1, 2013 for F2A applicants from all other countries. The December Visa Bulletin indicates a cutoff date of March 22, 2013, reflecting forward movement of 21 days. This means that F2A applicants from all other countries with a priority date prior to March 22, 2013 will be able to file AOS applications or have applications approved in December 2014.

Developments in the Coming Months

As noted in last month’s alert, the DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

  • The cutoff date in the F2A category will likely advance by three to five weeks per month.

Employment-Based Second Preference Category

  • The worldwide category will likely remain current.
  • The cutoff date in the EB-2 China category will likely advance by three to five weeks per month.
  • The cutoff date in the EB-2 India category will likely remain unchanged.

Employment-Based Third Preference Category

  • The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.
  • The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date by February 2015.
  • The cutoff date in the EB-3 India category will advance little, if at all.
  • The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
  • The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the December 2014 Visa Bulletin in its entirety, please visit the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
OF
Morgan, Lewis & Bockius LLP

Ohio District Court Deems Hospital Alliance a Single Entity Incapable of Conspiring Under the Antitrust Laws

Mintz Levin Law Firm

By Dionne Lomax

On October 21, 2014, the U.S. District Court for the Southern District of Ohio granted Defendants’ motion for summary judgment, holding that Premier Health Partners (“Premier”) and its affiliate hospitals, Atrium Health Systems, Catholic Health Initiatives, MedAmerica Health Systems, Samaritan Health Partners, and Upper Valley Medical Center (collectively, “Defendants”), operating under a joint operating agreement (“JOA”), constituted a single entity incapable of conspiring in violation of Section 1 of the Sherman Act. The Medical Center at Elizabeth Place v. Premier Health Partners, et al., Case No. 3:12-cv-26 (S.D. Ohio, Oct. 21, 2014).

Plaintiff, a 26-bed acute-care hospital in Dayton, Ohio, alleged that Defendants orchestrated a per se illegal group boycott to deny it access to the physicians, physician referrals, and managed care contracts it needed to compete. Defendants moved for summary judgment, arguing that their actions under the JOA constituted conduct by a single entity, and thus, under Copperweld Corp. v. Independent Tube Corp. (“Copperweld”), 467 U.S. 752 (1984), they were incapable of conspiring in violation of Section 1 of the Sherman Act, which applies only to joint conduct.

Copperweld is a seminal antitrust decision in which the Supreme Court held that a parent corporation and its wholly owned subsidiary are not legally capable of conspiring with each other under Section 1 of the Sherman Act. The Copperweld doctrine has subsequently been extended to other arrangements beyond a parent and its wholly owned subsidiary, including partially owned subsidiaries, partial ownership arrangements, joint venture arrangements, and joint operating agreements between entities that are not under common ownership of a single parent.

Plaintiff argued that Defendants are not a single entity and not protected under Copperweld because they (1) do not share ownership assets and remain independently owned and operated; (2) are actual and potential competitors (as evidenced by comments of senior management related to the issues of separateness and the competitive dynamic among the hospitals); (3) made statements in public disclosures that support a finding that Defendants are separate (e.g., statements in IRS Form 990s that the JOA members agreed to jointly operate separate healthcare systems pursuant to the terms of the JOA, and statements in bond documents that affiliate hospitals were separately responsible for their assets and liabilities); and (4) conducted themselves in the market as if they were separate (e.g., entering into contracts with payers under the affiliate hospital’s name rather than under Premier’s name).

The District Court disagreed. Citing the Supreme Court’s decisions in Copperweld and American Needle, Inc. v. National Football League, 560 U.S. 183 (2010), the court declined to use a bright-line rule regarding asset ownership and the corporate form to assess the parties’ conspiratorial capacity, focusing instead on the economic realities and how the parties actually functioned and operated in the market.

According to the court, “contractual control is sufficient to demonstrate that the Defendants are a single entity.” Thus, the fact that the JOA participants did not share ownership of assets did not cause the court to deem them separate entities, because the participants delegated operational, strategic, and financial control to Premier under the Alliance Agreement, much like the hospitals inHealth America Pennsylvania, Inc. v. Susquehanna Health System, 278 F. Supp. 2d 423 (M.D. Pa. 2003) (where the court deemed the hospitals a single economic actor under Copperweld). The court also gave little credence to statements in certain documents regarding competition among JOA participants. The court did not believe the Defendants could be considered “actual or potential competitors” because they were not pursuing separate economic interests. The court defined the Defendants as “a single, unified economic unit” because “all of the money goes to the bottom line – the Network Net Income” and the Defendants’ “actions are guided or determined by one corporate consciousness.” Similarly, the statements in IRS and bond documents and Defendants’ contracting conduct did not support a finding of separateness because there was evidence that Premier had the power over all system activities, including (1) developing and approving strategic plans, business plans, and budgets; (2) controlling the hospitals’ debt incurrence; (3) assessing costs to the hospitals to implement new technologies and programs; (4) allocating the system’s income and losses to the hospitals’ four parent holding companies; (5) establishing credentialing criteria under which decisions on medical staff admissions, privileges, and membership would be determined; and (6) negotiating all managed care contracts and managing all relationships with payers.

As health care providers and health industry participants seek to find innovative ways to collaborate, this case is an important reminder that courts place significant emphasis on how joint venture participants function and operate rather than the corporate form of the organization. Thus, the existence of a joint operating agreement does not provide an automatic shield from antitrust scrutiny if the activities of the joint arrangement are challenged. In addition, as this case demonstrates, the examination of conspiratorial capacity involves a highly factual inquiry where principal considerations include a parent’s or general partner’s ability to control the actions of the affiliates or members and the resultant unity of interest between the joint venture participants.

Risks of Running a Brewery & How to Avoid Them

Poyner Spruill Law firm

Beware of These Risks

Underage Drinkers, Intoxicated Patrons & Employee Restrictions

Restrictions on Employees

  • Employees are prohibited from drinking while on the job.

  • Employees who sell or serve alcoholic beverages must be at least 18 years old.

  • Employees under 21 years old are not permitted to mix drinks containing liquor.

  • Minors who are 16 or 17 years old are permitted to work at the brewery only if they do   not serve or sell any alcoholic beverages.

Sales to Underage Drinkers

It is unlawful to sell or serve alcohol to persons under 21 years old.

What should you do to protect yourself?

  • Train employees to request proper identification from customers.

  • Create a written policy for checking identification and have employees acknowledge that they have read and understand the policy.

  • Diligently supervise employees and their age verification practices.

How much might it cost you?

  • There is a cap on damages of $500,000 per occurrence.

Sales to Intoxicated Patrons

It is unlawful for a brewery or an employee of the brewery to knowingly sell alcoholic beverages to an intoxicated person.

What should you do to protect yourself?

  • Train employees on warning signs that a customer may have had too much to drink.

  • Be cautious in your assessment of a customer’s condition.

How much might it cost you?

  • There is no cap on damages for sales to intoxicated persons.

  • A court may even impose punitive damages against you.

ARTICLE BY

Amanda L Sherin
Deborah E. Sperati
OF
Poyner Spruill LLP
© 2014 Poyner Spruill LLP. All rights reserved.

The DOJ Increases Scrutiny of Whistleblower False Claims Act Suits

McBrayer NEW logo 1-10-13The Criminal Division of the Department of Justice (“DOJ”) recently announced that it will review all complaints filed under the qui tam provisions of the federal False Claims Act (“FCA”) to determine if a parallel criminal investigation is appropriate. This announcement came during a September 17, 2014 speech by the recently-confirmed Assistant Attorney General for the Criminal Division of the DOJ, Leslie Caldwell, at the Taxpayers Against Fraud Education Fund Conference in Washington D.C. This DOJ announcement signals a departure from prior policy, which allowed, but did not require, the Criminal Division to investigate Civil Division claims. In the past, the decision to open a criminal investigation was left to the discretion of each U.S. Attorney’s Office.

FraudNow, the Civil Division of the DOJ will share all new qui tam complaints with the Criminal Division as soon as they are filed. This change in procedure will likely be detrimental for defendants in future qui tam cases. With the Criminal Division more involved in False Claims cases, settlements with the government may become more difficult due to the need for approval from both the Civil and Criminal Divisions. Defendants may also face increased pressure to accept settlement offers from the government to avoid high-risk criminal penalties.

In 2009, Attorney General Eric Holder and Department of Health and Human Services Secretary Kathleen Sebelius announced the creation of an interagency task force, the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”), to increase coordination and optimize criminal and civil enforcement.  This coordination yielded momentous results: the Department recovered $12.1 billion dollars under the False Claims Act from January 2009 through the end of the 2013 fiscal year.  Most of these recoveries relate to fraud against Medicare and Medicaid Programs. In fiscal year 2013 alone, the DOJ recovered $2.6 billion dollars for health care fraud violations and brought health care fraud-related prosecutions against 345 individuals.

Thus, providers seeking reimbursement from federal programs should be aware that non-compliance risks have never been greater. Providers or entities faced with a civil qui tam suit should immediately evaluate their exposure to possible criminal charges. Because an ounce of prevention is worth a pound of cure, companies should closely review their compliance programs and pay special attention to the protocols in place to prevent and detect potential false claims or billing violations.

ARTICLE BY

Emily M. Hord
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC

Veteran's Day: In Flanders Field . . .

Allen Matkins Law Firm

Today is Veterans Day.  The date commemorates the ending of the First World War on November 11, 1918 at 11:00 a.m.  The following year, President Woodrow Wilson proclaimed the first “Armistice Day”, as it was then known:

“To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations.”

A custom arose among allies of wearing poppies in remembrance of the soldiers who were killed in the Great War.  Why poppies? The association was inspired by a very popular poem written by Canadian Lieutenant Colonel John McCrae. The poem opens with these lines:

In Flanders fields, the poppies blow
Between the crosses, row on row,

John McCrae did not live to see the end of the war. He died of an illness in France in 1918.

It has been 100 years since the start of the First World War in July 1914.  The United States did not declare war until April, 1917.  England is commemorating the centennial by installing 888,246 brilliant red ceramic poppies in the moat of the Tower of London.  The BBC has published these stunning pictures.

More than 4 million American soldiers served in the American Expeditionary Forces during World War I.  The last of these Doughboys, Corporal Frank Buckles, died in 2011 at the age 0f 110.

California is currently home to 1,851,570 veterans, including 1,387,510 who are wartime veterans.

Today is Veterans Day.  Let’s all remember and honor the service of the men and women who have served our country.

ARTICLE BY

Keith Paul Bishop

OF

Allen Matkins Leck Gamble Mallory & Natsis LLP

Special Edition Health Care Law Update – November 11, 2014

Mintz Levin Law Firm

Elections Wrap Up, Lame Duck Preview, and a Changing Congress

In this ML Strategies Special Edition Health Care Update, we bring you a detailed look at two of the most pressing health care policy topics facing policymakers:

  1. Sorting out Congressional leadership changes post-midterm elections and looking ahead to the  upcoming Lame Duck session of Congress; and
  2. Monitoring the rapidly escalating effort to combat the Ebola epidemic.

Impact of Midterm Elections

On November 4th, voters cast their ballots giving the Republican Party control of the upcoming 114th Congress. Looking ahead to the new Congress, there will be some significant changes to the leadership on Committees of jurisdiction. While leadership will not be officially decided until Congress convenes in January, some predictions are below.

  • Senate Finance Committee: Senator Orrin Hatch (R-UT) will chair the Committee. As Chairman, Hatch is expected to focus on tax reform and is likely to advance his bill S. 232, to repeal the Affordable Care Act’s (ACA) excise tax on medical devices as part of this process. Hatch can also be expected to push for additional transparency from the Department of Health and Human Services (HHS) and support policy changes to the ACA such as we have seen the House pass in the 113th Congress. Senator Ron Wyden (D-OR) will be the ranking member. Hatch and Wyden have a strong working relationship and share interest in tax reform. Wyden is also a strong supporter of the ACA and is unlikely to support repealing or replacing the health care law, be they partial or wholesale proposals. On the whole, Democrats will likely have to cede at least two seats to the Republicans, meaning they will have to drop at least one member from the committee.
  • Senate Health, Education, Labor and Pensions (HELP) Committee: Senator Lamar Alexander (R-TN) is expected to chair the HELP Committee. Alexander will likely turn first to Ebola, should there be lingering issues unresolved after the Lame Duck. Alexander and the Committee’s current chair, Senator Tom Harkin (D-IA), introduced a bill to accelerate the development of Ebola treatments and vaccines. Alexander will also try to chip away at the ACA. In the past, he has said the Committee will vote early in the next Congress to repeal the ACA, though he conceded that the law will stay in effect as long as President Obama is in office. Alexander is more optimistic about tweaks to the ACA. Among his top priorities are addressing wellness, passing a 40 hour work week bill, and tackling small business insurance.

The Democrats have yet to pick their ranking member. As Senator Barbara Mikulski (D-MD) will opt for the ranking membership of the Appropriations Committee, Senators Patty Murray (D-WA), Bernie Sanders (I-VT), and Bob Casey (D-PA) could all be the lead Democrat on the Committee. The subcommittee chairs will likely be Senator Mike Enzi (R-WY) for Children and Families, Senator Richard Burr (R-NC) for Primary Health and Aging, and Senator Johnny Isakson (R-GA) for Employment and Workplace Safety.

  • House Energy and Commerce Committee: Representative Fred Upton (R-MI) will continue to chair the Committee. His agenda will resemble that in the 113th Congress, promoting the 21st Century Cures Initiative, which, among other things, promotes accelerated discovery of cures, streamlined development of drugs and devices, and greater use of health care technology to offset rising health care costs. He will also likely continue to try and reign in various provisions of the ACA. Other than the law’s repeal, which the Committee will likely take up at the start of the next Congress, Upton may seek to scuttle the employer mandate and the medical device tax. In addition, he may seek to overhaul or even dismantle the Independent Payment Advisory Board (IPAB), which would administer provider cuts unilaterally if certain spending thresholds are surpassed. Upton recently released the Committee’s record of success webpage and outlined several priorities for the new Congress, including building on the work already done on the 21st Century Cures Initiative.

On the Democratic side, with Representatives Henry Waxman (D-CA) and John Dingell (D-MI) retiring, Representative Frank Pallone (D-NJ) is in line to be ranking member. However, Minority Leader Pelosi has been a strong advocate for Representative Eshoo to take the Ranking Membership. With top slots opening up on other committees because of midterm losses, some congressional analysts believe that Pallone could end up moving back to the Natural Resources committee in place of Rep. Peter DeFazio (D-OR), who is likely to become Ranking Member on the House Transportation and Infrastructure Committee, following the loss of current Ranking Member Nick Rahall (D-WV). Of the 10 or so House Democrat losses, including Representatives John Barrow (D-GA) and Brad Schneider (D-IL), that are official, the majority of them have indicated explicitly, or have been characterized by others, as Pallone supporters- so it will be interesting to see how that plays out if it comes down to the last few votes.

  • House Ways and Means Committee: Representatives Paul Ryan (R-WI) and Kevin Brady (R-TX) are jockeying for the chairmanship, but it is widely believed that Representative Ryan will most likely prevail. Like Senator Hatch, Ryan will focus on tax reform. He will inherit Chairman Camp’s template, which he’ll likely keep with some changes. This effort could very well effect the health care community should Ryan join Senator Hatch in an attempt to repeal the medical device tax. Ryan will also address health care, separate from taxes, including holding hearings to critique the law and to demand more transparency and build on efforts in the 113th Congress to pursue Medicare fraud, waste, and abuse legislation. Representative Sander Levin (D-MI) is expected to remain the Ranking Member. However, House Democrats are eyeing Representative Chris Van Hollen (D-MD) to rejoin the committee. A budget expert with a strong grasp on tax policy, Van Hollen could serve as a vocal counterweight to Ryan, reprising a role he played opposite Ryan on the Budget Committee.

Lame Duck Preview

President Obama, who began his presidency with a Democratic majority in the Congress, will now round out his last two years in office with a Republican majority. This leaves the upcoming Lame Duck session as the last opportunity for the president and his Democratic colleagues in the Senate to set the legislative agenda.

Among one of the items most likely to pass is the FY 2015 appropriations legislation. With no appropriations legislation finalized prior to recessing for elections, Congress approved a short-term Continuing Resolution (CR) funding the Federal government at Fiscal Year 2014 levels through December 11, 2014. Before the CR expires, the Lame Duck Congress will likely pass either: 1) another short-term CR running through February or March 2015; 2) a long-term CR for the remainder of the fiscal year ending on September 30, 2015; or 3) an Omnibus appropriations bill setting new spending levels for FY15. Additionally, in the days after the midterm election, President Obama submitted an emergency funding request of $6.18 billion for the fight against Ebola and will push Congress to pass the request during the Lame Duck.

The Lame Duck offers some hope of passing a permanent solution to the Medicare physician payment formula, also known as the “SGR” or the “Doc Fix.” Looking to vehicles such as tax extenders or an omnibus spending bill, Congress still must determine how to pay for reforming the SGR. Members of the House GOP Doctors Caucus wrote to House leadership requesting that Congress take up SGR reform before the end of the year. The letter notes that the Lame Duck is a unique opportunity to bring much-needed stability to the Medicare program that will benefit seniors and physicians alike and requested more discussions on offsetting an SGR repeal.

While stakeholders and experts remain skeptical that such an effort would be successful, lawmakers are pulling out all the stops to engage industry to support a potential SGR fix this year. However, the current temporary extension of the SGR patch continues through March 2015, meaning that action could slip to next year.

Should Congress attempt to push through a comprehensive SGR bill in the Lame Duck, this would provide a vehicle for other Medicare proposals that are kicking around the House Ways and Means Committee—including Representative Brady’s draft fraud, waste, and abuse package, Protecting Integrity in Medicare Act of 2014 (PIMA), and Medicare extenders. Representative Brady reportedly wanted to introduce PIMA in the Lame Duck and, if there is bipartisan interest, pass the legislation under suspension. However, there has been no groundwork laid for this package in the Senate, so passing the package without a larger vehicle (such as SGR) may be unlikely.

Ebola Epidemic and Lame Duck Response

On November 4th, President Obama convened his national security and public health teams to discuss Ebola preparedness at home and the whole-of-government approach to contain the epidemic at its source in West Africa. The President’s advisors noted HHS’ efforts to ensure U.S. hospitals and the broader health system are prepared to identify, isolate, and treat patients. The team also discussed the screening of individuals traveling from the affected West African countries and the monitoring requirements these individuals are subject-to upon arrival in the U.S. There was consensus that, despite initial signs of progress in Liberia, the international community must continue to attack the problem aggressively at the source of the epidemic in West Africa.

Following this meeting, the Obama Administration announced it is seeking $6.18 billion through an emergency funding request to Congress to enhance efforts to address the Ebola crisis. The White House has requested $2.43 billion for HHS, including $1.83 billion for the Centers for Disease Control (CDC) to prevent, detect, and respond to the Ebola epidemic, $333 million for the Public Health and Social Services Emergency Fund (PHSSEF) for health worker training, manufacturing of synthetic therapeutics and vaccines, and modeling and genetic sequencing of the Ebola virus, $238 million for the National Institutes of Health (NIH) to conduct clinical trials of investigational vaccines and therapies, and $25 million for the Food and Drug Administration (FDA) to regulate Ebola vaccines and therapeutics. The Administration is also requesting $1.98 billion for USAID to scale up foreign assistance in West Africa, $127 million for the Department of State to support UN Mission for Ebola Emergency Response (UNMEER)operations, and a $1.54 billion contingency fund.

The President communicated this request to Congress in a November 5th letter to congressional leadership requesting that Congress consider his Administration’s $6.18 billion emergency appropriations request to implement a comprehensive strategy to contain and end the Ebola outbreak at its source in Africa, enhance domestic preparedness, speed procurement and testing of vaccines and therapeutics, and accelerate global capability to prevent spread of future infectious diseases. President Obama urged expeditious consideration of the proposal.

As we enter the Lame Duck, Congress is expected to tackle Ebola as a priority when it reconvenes. On November 12th, the Senate Appropriations Committee will hold a hearing on the U.S. Government response to the Ebola outbreak. Witnesses will include HHS Secretary Sylvia Matthews Burwell, CDC Director Dr. Tom Frieden, National Institute of Allergy and Infectious Diseases (NIAID) Director Dr. Anthony Fauci, DHS Secretary Jeh Johnson, Deputy Secretary of State for Management and Resources Heather Higginbottom, USAID Assistant Administrator for Democracy, Conflict, and Humanitarian Assistance Nancy Lindborg, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict Michael Lumpkin, and Joint Chiefs of Staff Deputy Director for Political-Military Conflict James Lariviere.

On the heels of the Appropriations Committee hearing, the House Foreign Affairs Committee will hold a November 13th hearing to examine international and U.S. efforts to combat the Ebola epidemic in West Africa. The hearing, “Combating Ebola in West Africa: the International Response,” will feature witnesses including: USAID Administrator Rajiv Shah, State Department Deputy Assistant Secretary for the Bureau of African Affairs Bisa Williams, DOD Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Michael Lumpkin, DOD Deputy Director for Politico-Military Affairs (Africa) Major General James Lariviere, and DOD Joint Staff Surgeon Major General Nadja Y. West.

As Congress turns its attention to the Administration’s response, the FDA continues to work with industry to develop a vaccine to combat Ebola. Outlining a plan at an American Society of Tropical Medicine and Hygiene conference last week, Dr. Luciana Borio, head of the FDA’s Ebola response team, said the FDA is taking a “novel” approach and will test multiple drugs at once in an umbrella study with a single comparison group. This plan is intended to accelerate the testing process as patients will be paired with a drug and with someone from a comparison group to look for patterns.

* * *

Implementation of the Affordable Care Act

In-Patient Hospitalization Guidance: HHS and the Internal Revenue Services (IRS) released guidance stating that group health plans must cover hospitalizations in order to satisfy minimum value under the ACA. The guidance, which will be followed up by proposed regulations, states the agencies “believe that plans that fail to provide substantial coverage for in-patient hospitalization services or for physician services” do not meet minimum value requirements.

Other Federal Regulatory Initiatives

CMS Innovation Center Webinar: On November 10th, the Centers for Medicare & Medicaid Services (CMS) Innovation Center will hold a webinar to provide an update on the work of the Center and the models being tested to improve care for patients, communities, and lower costs. Dr. Patrick Conway, CMS Deputy Administrator for Innovation and Quality and CMS Chief Medical Officer, will be the lead presenter in the webinar.

New Members of the Health IT Policy Committee: HHS Secretary Burwell announced the appointment of a new member to the Health Information Technology Policy Committee (HITPC) and renewed appointments for three members of the Health IT Standards Committee (HITSC). The new appointment is Anjum Khurshid, director of the health systems division of the Louisiana Public Health Institute.

HHS Survey on Health Coverage: The HHS Assistant Secretary for Planning and Evaluation (ASPE) released the findings of a survey of health insurance coverage for 2013 and 2014. Among other things the survey finds that, as of June 2014, 10.3 million nonelderly Americans, age 18 to 64, gained health insurance coverage since the beginning of the ACA open enrollment.

HRSA Awards Mental Health and Substance Abuse Funding: The Health Resources and Services Administration (HRSA) announced $51.3 million in ACA funding to support 210 health centers in 47 states to establish or expand behavioral health services for nearly 440,000 people.

ONC Data Sheds Light on Attestation Rates: The Office of the National Coordinator for Health IT (ONC) released a data analytics update on the 2014 attestation experience. The update shows that 4,656 doctors and other eligible providers and 258 hospitals had attested to Stage 2.

CDC Releases Monitoring Guidance for Ebola: The CDC released updated monitoring and movement guidance defining four risk levels based on degree of exposure to Ebola. The guidance helps to ensure a system is in place to quickly recognize symptoms that may necessitate a person be routed to medical care.

Other Health Care News

Study of Marketplace Insurance Premiums: The Robert Wood Johnson Foundation and the Urban Institute released a study of public filings from 17 states and Washington, DC of marketplace insurance premiums in early approval states. The report finds that premium increases will be low, with 10 states increasing only 5 percent, 2 states increasing more than 5 percent, and 6 states seeing premium reductions.

Specialty Providers Press NAIC on Access: The Alliance of Specialty Medicine sent a letter to the National Association of Insurance Commissioners (NAIC) regarding draft policy models for individual and small group market health insurance coverage. The Alliance urged NAIC to ensure consumers have access to specialists without suffering high out-of-pocket costs.

WHO Recommends Overdose Policies: The World Health Organization, estimating that 69,000 people die a year from opioid overdose, advised that those likely to witness an overdose incident, such as family members, should be given access to the opioid antidote naloxone and trained in its use. The FDA approved use of naloxone injectors for family use in April 2014.

Survey of ICD-10 Preparation: The American Health Information Management Association and the eHealth Initiative released a survey of health delivery organizations and clinicians finding that 65 percent of respondents indicated that they could begin end-to-end testing prior to the fourth quarter of 2015 but that there remain concerns that revenue will decrease during the first year of ICD-10 compliance.

Georgetown University Survey of Children’s Insurance: Georgetown University’s Center for Children and Families found that in 2013, for the first time in five years, children’s health uninsured rates did not drop. The 2013 rate was 7.1 percent, compared to 7.2 percent in 2012. Since 2008, the number of uninsured children has shrunk from 6.9 million to 5.2 million.

Upcoming Congressional Hearings

Senate

On November 12th, The Senate Appropriations Committee will hold a hearing on the U.S. Government response to the Ebola outbreak.

House

On November 13th, the House Committee on Foreign Affairs will hold a hearing titled, “Combating Ebola in West Africa: The International Response.”

ARTICLE BY

Joseph P. Hammang, PhD
Alexander Hecht
Andrew J. Shin
Abby Matousek
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

USCIS Has a New Looking Website with Enhancements

Greenberg Traurig Law firm

U.S. Citizenship and Immigration Services (USCIS) launched its new-look website late last week.  Visitors to the website will find a cleaner looking page with better navigation tools than before.  The mobile device version of USCIS’s website has been updated with an enhanced Case Status tool that allows visitors to get updates on pending cases, including case history, next steps and more detailed case-related information than before.  The updated home page also makes finding USCIS news, outreach events, educational webinars, and other services easier.  Additional updates from USCIS are expected in the upcoming months as part of the agency’s effort to allow visitors to obtain more and more information online, rather than spending hours on the phone with USCIS Customer Service or visiting a local USCIS District Office.

Article by:
Ian R. Macdonald

Of:
Greenberg Traurig

This is the week! Join LMA New England for their Regional Conference, November 13-14 in BOSTON!

Register today for the LMANE 2014 Regional Conference:
LMA-NE-2014-3
When

NOVEMBER 13 & 14

Where

Revere Hotel, Boston, MA

REGISTER NOW!

There are many benefits to attending the LMANE Regional Conference, below are just a few:

LMANE Legal Marketing Association New England Boston Regional Conference

You will walk away feeling energized and full of new ideas to bring back to your firm!

What ERISA Plans Should Know about Money Market Reform

Drinker Biddle Law Firm

Most U.S. money market funds will begin restructuring their operations beginning in 2014 and throughout 2015 and 2016 as a result of the SEC’s adoption of wide ranging changes to the rules regulating these funds.  Since many plan participants invest in money market funds, ERISA plan sponsors, recordkeepers and investment consultants and other advisers will need to plan for operational, contractual, disclosure and other changes in connection with these new rules.

Floating and Stable NAV Funds

One of the biggest rule changes involves how money market funds will be allowed to value their shares.  Currently, money market funds generally offer shares at a stable net asset value (“NAV’) of $1.00.  Under the SEC’s new money market rules, only government and “retail” money market funds can offer their shares at a stable NAV.  Government money market funds are those funds that hold at least 99.5% of their investments in government securities, cash or repurchase agreements collateralized by government securities.  Money market funds that don’t qualify to offer shares at a stable NAV because of the nature of their shareholder base (i.e., institutional money market funds) will have to float their NAVs, meaning the share price will fluctuate from day to day.

Retail money market funds are funds that restrict investors only to beneficial owners that are natural persons.  A beneficial owner is any person who has direct or indirect, sole or shared voting and/or investment power.  Under the new rules, retail money market funds will be required to reasonably conclude that beneficial owners of intermediaries are natural persons.  The SEC stated that tax-advantaged savings accounts and trusts, such as (i) participant-directed defined contribution plans; (ii) individual retirement accounts; (iii) simplified employee pension arrangements, and other similar types of arrangements, would qualify for the natural person test.  On the other hand, defined benefit plans, endowments and small businesses are not considered “natural persons” and would not be eligible to invest in a retail money market fund.

It is widely expected that the SEC’s new money market rules will result in many changes in fund offerings.  For example:

  • Money market funds that currently have both institutional and natural persons as holders may spin off the institutional holders into separate floating NAV funds;

  • Some institutional funds may decide to liquidate or merge with other funds;

  • Some advisers may begin offering new money fund-“like” products that only hold short term securities (60 days or less maturity) and therefore value fund holdings at amortized cost; and

  • Some prime money market funds may change their investment strategies to operate as a government money market fund in order to steer clear of the floating NAV and liquidity fee and gate rules (discussed below).

Effect on ERISA Plans.  The SEC provided examples of how funds could satisfy the natural person definition with intermediaries, including through: contractual arrangements, periodic certifications and representations or other verification methods.  Accordingly, ERISA service providers who hold fund shares in omnibus accounts may expect to be contacted by retail money market funds to provide these certifications or representations and/or to enter into new agreements with funds for this purpose.

ERISA plan sponsors and investment consultants and advisers will also need to be alert to potential changes to existing money market funds currently offered in plans to which they provide services and/or new fund offerings that may be appealing to and/or better serve the best interests of participants.

Liquidity Fees and Redemption Gates

All money market funds, except government money market funds, will be subject to the SEC’s new rules with respect to the imposition of liquidity (or redemption) fees and redemption gates during periods when a money market fund’s weekly liquid assets dip below certain thresholds.  Under these new rules a fund board may impose up to a 2% liquidity fee and a gate on fund redemptions if weekly liquid assets fall below 30% of total assets.  The fund board must impose a 1% liquidity fee if weekly liquid assets fall below 10% of total assets, unless the board decides otherwise.  Of course, if 10% of a money market fund’s assets are below 10% of a fund’s total assets, it would be unlikely that a board would not impose liquidity fees and redemption gates.  The redemption gates can last no longer than 10 days and cannot be imposed more than once in a 90-day period.

Effect on ERISA Plans.  The liquidity fee and gate requirements will usually only be triggered in times of extreme market stress.  But they are features that many ERISA participants and ERISA service providers will not find appealing.  For that reason, there may be more demand from participants for government money market funds, which may, but are not required to, comply with the fee and gate rules.  It is not expected that government money market funds will opt to become subject to these fee and gate rules.

The liquidity fee and redemption gate rules will require recordkeepers to make technical changes in their operations.  These operational changes could be expensive and time consuming to implement especially for smaller plans.  In particular, it should be noted that liquidity fees may vary in amount depending on a fund board’s determination and redemption gates may vary in the amount of days and will need to be removed quickly upon notice by a fund board.  Additionally, there may be contractual impediments to implementation of liquidity fees and gates, which are discussed below.

Many commenters on the proposed money market rules raised questions with the SEC regarding possible conflicts caused by the application of the fee and gate rules to funds in ERISA and other tax-exempt plans.  Specifically, commenters mentioned the following issues with the fee and/or gate rules:

  • possible violations of certain minimum distribution rules that could be interfered with by the gate rule;

  • potential taxation as a result of the inability to process certain mandatory refunds on a timely basis;

  • delays in plan conversions or rollovers;

  • possible conflicts with the Department of Labor’s (“DOL”) qualified default investment (“QDIA”) rules; and

  • conflicts with plan fiduciaries’ duties regarding maintenance of adequate liquidity in their plans.

The SEC’s response generally was that these concerns either were unlikely to materialize or could be mitigated by ERISA plan sponsors or service providers.  For example, with respect to QDIAs, the SEC suggested that a plan sponsor or service provider could (i) loan funds to a plan for operating expenses to avoid the effects of a gate, or (ii) pay a liquidity fee on behalf of a redeeming participant.  In connection with rollovers or conversions, the SEC likewise pointed out that if the liquidity fee caused a hardship on a participant, then the ERISA fiduciary or its affiliate could simply pay the liquidity fee; failing that, the SEC suggested that the fiduciary consider a government money market fund for investment purposes, which is not required to comply with the fee and gate rules.

The SEC continues to work with the DOL on these and other ERISA-and tax exempt specific issues but thus far has not provided any relief from its fee and gate rules for these types of plans and accounts.  Thus, ERISA fiduciaries and plan sponsors may need to consider money market fund offerings in their plans in light of these issues.

Contractual Issues

As noted above, the “natural person” requirements for retail money market funds will require these funds to ascertain information regarding beneficial ownership of fund shares from ERISA intermediaries.  Retail money market funds may ask ERISA intermediaries to make representations about their customers through revised service agreements containing representations about the nature of the intermediaries’ customers.  These funds may also use periodic certifications or questionnaires to obtain this information.

In addition, many existing contracts between money market funds and intermediaries have restrictions in them regarding the imposition of redemption fees and may restrict a fund’s right to delay effecting redemptions thereby putting them in conflict with the new liquidity fee and redemption gate rules.  Recordkeepers who contract with retail or institutional money market funds may therefore be asked by these funds to amend or otherwise revise their servicing agreements with the funds to provide for liquidity fees and redemption gates.

Pricing Changes

The new money market rules will require all floating NAV money market funds to price their shares to four decimal places (e.g., $1.0000).  Recordkeepers will need to adjust their systems to accommodate the four-decimal place pricing system.

Disclosure and Education/Training

ERISA service providers will need to train and educate their personnel on the new money market rules and fund options so that they can answer participants’ questions.  ERISA service providers will need to develop disclosure for ERISA participants that clearly describes the risks and differences in money market funds and new fund options.

Compliance Dates

The new money market rules take effect in various stages over the next two years.  Importantly, the floating NAV, decimal pricing, and liquidity fee and gate rules become effective on October 14, 2016.  That said, the mutual fund industry appears to be moving quickly to prepare to comply, and it is probable that investment advisers to money market funds will begin to make some changes, for example, creating new funds and separating retail and institutional shareholders into different funds well ahead of the 2016 compliance date.  Therefore, ERISA service providers will need to be alert to the possibility that their operations may need to be adjusted as these changes occur.

The SEC’s new money market rules will usher in many changes to money market funds over the next 18-24 months that will affect ERISA and tax-exempt participants who invest in these vehicles and ERISA service providers.  ERISA service providers should begin preparing for these changes by assessing their systems, as applicable, to evaluate whether they can comply with the new rules and, if not, what other investment options might be available to address participants’ short-term investment needs.  ERISA service providers may also want to consider whether non-government money market funds or other short-term liquidity vehicles should be offered to ERISA participants in light of the new fee and gate rules.

ARTICLE BY

Diana E. McCarthy
OF
Drinker Biddle & Reath LLP

Employers: How Prepared Are You for Ebola?

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Rapidly changing circumstances raise workplace questions.

The Ebola epidemic in 2014 has already been confirmed by the U.S. Centers for Disease Control (CDC) as the worst in history. The extent of this outbreak is still unknown, as reports of Ebola transmissions continue not only in West Africa but also (for the first time in history) inside U.S. and European borders. Because of the potential risks in a globalized economy, the U.S. government, its various agencies, and employers alike are now scrambling to ensure that appropriate rules and procedures are in place to prevent any further exposure to the disease. Reactions have been swift and fluid as officials learn more about the presence of the virus in West Africa and beyond and as they develop strategies to respond. Among the federal agencies that have already taken action, the CDC has recently issued “tightened” guidance for proper personal protective equipment (PPE) in the healthcare industry, and the Occupational Safety and Health Administration (OSHA) has issued guidance covering a number of workplace safety issues. The situation is changing rapidly and further action is expected by the U.S. government, especially after the White House announced the appointment of an Ebola Response Coordinator (or Ebola Czar).

In the United States, employers are facing challenges and questions on how to best address a wide variety of issues, including workplace safety, travel policies, employee relations, leaves of absence, and refusal to work requests. Whether responding to Ebola or other emergencies, employers should use protocols that include emergency preparedness and response plans, such as assigning responsibilities, assessing the hazard, conveying effective communications, and implementing security measures to address those key issues. In the meantime, here is what you need to know right now.

OSHA’s Interim Guidance

OSHA quickly released interim guidance for workers within the United States that focuses on those in industries most likely to be affected by the Ebola crisis:

  • Healthcare workers

  • Airline and other travel industry personnel

  • Mortuary and death care workers

  • Laboratory workers

  • Border, customs, and quarantine workers

  • Emergency responders

  • Employers in critical infrastructure/key resource sectors, such as bus drivers and pharmacists

Employers in these key industries must evaluate how they currently respond to emergencies and if those preparedness and response plans are adequate or need modification, particularly when assessing hazards specific to their jobsites (OSHA lists industry-specific information on its website). These employers should explore ways to proactively combat and contain the virus, such as obtaining PPE, implementing cleaning and sanitation procedures, and evaluating whether engineering controls, such as pressurized glass, respirators, and decontamination devices, should be used. If an employer happens to be a hospital or similarly licensed accredited facility, state licensing and other laws as well as accreditation bodies may require those organizations to activate emergency preparedness plans. Employers should communicate with their workers and train them about sources of Ebola and any required precautions.

On its newly released website dedicated to Ebola, OSHA has asserted jurisdiction over potential worker exposure via several regulations already in place. Most notably, the Ebola virus has been classified as a “bloodborne pathogen” under OSHA’s Bloodborne Pathogens standard,[1] which explicitly covers pathogens like hepatitis B virus (HBV) and human immunodeficiency virus (HIV). The Bloodborne Pathogens standard imposes a range of requirements on employers whose workers can be reasonably anticipated to contact blood or other potentially infectious materials (OPIM), such as saliva and semen. Covered employers must train employees, prepare exposure control plans, and use “universal precautions,” engineering and work practice controls, PPE, and housekeeping measures to contain the virus. Employers must also offer medical evaluations, blood tests, and follow-up evaluations after any worker is exposed to blood or OPIM. The standard contains many other nuanced requirements, including carefully documenting compliance measures. Given the complexities of the regulation, employers are strongly encouraged to seek legal advice if workers could anticipate exposure and to seek emergency, medical, and legal advice if any work-related exposure to blood or OPIM occurs.

Beyond this standard, OSHA has reminded employers that—when undertaking precautions for contact-transmissible diseases and any bioaerosols containing the Ebola virus—they must comply with OSHA’s (1) Respiratory Protection standard[2] if respirators are used on the job and (2) PPE standard[3] wherever PPE is used as a precaution. Finally, OSHA reiterated that it may issue citations against employers under the General Duty Clause of the Occupational Safety and Health Act of 1970[4]—OSHA’s “catch all” provision, which is used if no other regulation applies and where an employer allegedly fails to keep its workplace free of recognized hazards that can cause death or serious bodily harm to workers.

CDC Involvement

The primary U.S. agency embroiled in the fight against Ebola is the CDC. Of the many steps taken by the CDC in this effort, highlights of the latest guidance and advice are outlined below.

“Tightened Guidance” on PPE for U.S. Healthcare Workers

Following widespread criticism after two nurses contracted Ebola while treating a patient in Dallas, Texas, the CDC released on October 20 “tightened guidance” for PPE used by healthcare workers while caring for patients with Ebola. According to the CDC, three guiding principles control: (1) Employees must receive rigorous and repeated training to fully understand how to use PPE, (2) no skin can be exposed when PPE is worn, and (3) a trained monitor must be present to supervise all workers as they put on or take off PPE. The CDC also described “different options for combining PPE to allow a facility to select PPE for their protocols based on availability, healthcare personnel familiarity, comfort and preference while continuing to provide a standardized, high level of protection for healthcare personnel.” Among the recommendations for monitoring the safe use and removal of PPE, the CDC provides advice on step-by-step PPE removal, as well as disinfection of gloved hands.

In addition to PPE, the CDC further underscored other critical prevention activities to respond to the Ebola risk, including (1) prompt screening and triage of potential patients, (2) designating site managers who have the responsibility to ensure proper implementation of precautions, (3) limiting personnel in the isolation room, and (4) effective environmental cleaning. Employers in the healthcare industry should be aware that the CDC has highlighted management responsibility “to provide resources and support for the implementation of effective prevention precautions” and that management “should maintain a culture of worker safety in which appropriate PPE is available and correctly maintained, and workers are provided with appropriate training.” For more information and advice for healthcare workers, visit the CDC’s website.

Health and Travel Advisories

Given the severity of the risk that Ebola poses, the CDC has issued health and travel alerts, which it will continue to update as the situation develops. In the wake of various governors, particularly those from New York, New Jersey, and Illinois, having announced plans to quarantine health workers traveling from West Africa who treated Ebola patients, the CDC has also updated its guidance on October 27 regarding the monitoring and movement of persons with potential Ebola exposure. The guidance applies to anyone who recently traveled to West Africa and may have been exposed to Ebola and includes newly created tiered categories of risk, ranging from high to no risk and based on exposure to Ebola. Depending on the risk category, the CDC recommends that state and local health authorities isolate travelers who are exhibiting signs of illness or conduct “active” or “direct active” monitoring of signs and symptoms of Ebola for other at-risk individuals.

Health officials will make at least daily contact with these travelers, requiring travelers to disclose (1) temperatures and any other Ebola symptoms, such as headache, diarrhea, and vomiting, and (2) intent to travel out of state. For individuals who are under direct active monitoring, the CDC recommends that discussions with the individual include plans to work, travel, take public transportation, or go to busy public places to determine whether these activities are allowed.

Employers, and particularly employers with an international presence, should closely monitor these CDC travel advisories,[5] as well as advisories published by the World Health Organization (WHO).[6] Employers should evaluate their own travel policies and alerts against those published by the CDC and the WHO.

Protecting Employees from Impacted Regions from Harassment and Protecting the Confidentiality of Medical Information

Like the CDC, employers must respect workers’ privacy—and, particularly, the confidentiality of their medical information pursuant to the Americans with Disabilities Act (ADA)—and they must also comply with rules and guidance from OSHA, the CDC, and other agencies. Employers should balance their need to ensure workplace safety with their obligation to avoid unnecessary or overbroad medical inquiries, which are prohibited by the ADA. Of course, if an employee is exhibiting symptoms of Ebola exposure, it is appropriate to urge him or her to see a doctor. However, the decision to send an employee for a medical exam or to request medical documentation should be based on objective information—not unfounded fears that may or may not be grounded in reality. As an example, without some reason to believe there has been Ebola exposure, it could be risky to request medical information simply because an employee visited an Ebola-impacted region.

Employers should also take caution and consult legal counsel before they send home an employee suspected of Ebola exposure. The decision to remove an employee from the workplace for medical reasons must based on objective belief that the employee may present a direct threat of significant, imminent harm to himself or herself or others. These decisions should not be based on rumor or unfounded concerns.

To address these issues, employers should train human resources employees about the CDC guidance so they can understand the medical and scientific realities of Ebola exposure and, therefore, be prepared to respond appropriately if employees express concern about a coworker believed to be at risk for Ebola exposure. Similarly, employers should take all necessary steps to ensure that employees who are, or who are perceived to be, from regions impacted by Ebola do not experience harassment based on race, national origin, or any perceived medical condition.

HIPAA

The Ebola situation has also introduced some Health Insurance Portability and Accountability Act (HIPAA) interpretation questions for employers that are Covered Entities—such as healthcare providers—but also for those that sponsor a Covered Entity group health plan. HIPAA protects an individual’s protected health information (PHI), which includes, for example, medical, demographic, and other identifying information. HIPAA restricts Covered Entities from disclosing PHI about a worker or plan participant, except in limited circumstances. To date, the U.S. Department of Health and Human Services has not indicated that the Ebola crisis will change its enforcement or interpretation of HIPAA. The HIPAA Privacy Rule and Security Rules, as amended by the Health Information Technology for Economic and Clinical Health Act, will still apply to Covered Entities. Although narrow exceptions exist for use or disclosure for certain public health purposes, this exception will likely only apply in limited situations for limited organizations. Covered Entities should review their policies and procedures to determine if and how infectious diseases, particularly Ebola, are addressed. They should also train their Privacy Employees—workers who act on behalf of the Covered Entity—to continue to protect an individual’s PHI. Before disclosing any PHI, Covered Entities should exercise caution and consult with legal counsel to confirm that a use or disclosure will not constitute a HIPAA violation.

Labor Relations

In light of the media furor from various healthcare and service workers’ unions regarding Ebola risks to workers, employers should also expect to receive collective bargaining demands related to training, adequate safety procedures, and protective equipment and medical services provided to exposed employees, potentially including demands for leave (whether paid or unpaid). Employers should be proactive, therefore, in reaching out to union representatives of healthcare workers to develop protocols on how best to handle these types of issues, and, given the labor laws, should not act unilaterally, even if well intentioned and even if the to-be-implemented protocols are favorable to employees. Employers should also review their current collective bargaining agreements for any clauses or language requiring the employer to implement procedures related to infectious diseases or the safety of their workers. Finally, even nonunion workers can exercise rights under the National Labor Relations Act (NLRA) to engage in concerted activity for their mutual aid and protection if workers fear their safety is not adequately protected. A refusal to work because of safety concerns related to Ebola, therefore, could be protected under the NLRA, and employers should carefully consider this issue prior to implementing discipline to employees for refusing to work.

Immigration

In coordination with the CDC, the Department of Homeland Security (DHS) implemented a set of travel restrictions[7] involving additional screening and protective measures for travelers from Ebola-affected countries at U.S. ports of entry. Travelers to the United States who are arriving directly or indirectly from Liberia, Sierra Leone, or Guinea will undergo enhanced screening that includes the following:

  • Identifying and interdicting travelers from the Ebola-affected countries.

  • Isolating these travelers from the rest of the traveling public while the individual completes a questionnaire and contact information form.

  • Medically trained personnel will take the traveler’s temperature. If the traveler has a fever or other symptoms, or may have been exposed to Ebola, U.S. Customs and Border Protection (CBP) will refer the traveler to the CDC for a public health assessment. The CDC will then determine whether the traveler can continue to travel, should be taken to a hospital for further evaluation, or should be referred to a local health department for further monitoring.

  • Encouraging the traveler to seek healthcare at the first sign of any potential illness.

If CBP discovers that a traveler has been in one of the three countries in the prior 21 days, he or she will be referred for additional screening, and, if necessary, the CDC or other medical personnel in the area will be contacted pursuant to existing protocols. The enhanced screening is in place at the five U.S. airports that account for 94% of travelers flying to the United States from Ebola-affected countries. The airports are John F. Kennedy International, Newark Liberty International, Washington Dulles International, Hartsfield-Jackson Atlanta International, and Chicago O’Hare International. DHS has authority under existing law to deny admission to individuals who represent a public health threat.

Given the rapidly changing circumstances, employers are faced with many labor and employment challenges to consider.

[1]. 29 C.F.R. § 1910.1030.

[2]. 29 C.F.R. § 1910.134.

[3]. 29 C.F.R. 1910.132.

[4]. View the act here.

[5]. View the advisories here.

[6]. View the advisories here.

[7]. View the restrictions here.

ARTICLE BY

Jonathan L. Snare
Joyce A. Cowan
Eric S. Bord
Ross H. Friedman
Michelle Seldin Silverman
Georgina L. O’Hara
OF
Morgan, Lewis & Bockius LLP