OCR’s 8th Investigation Announcement Clearly Warns HHS-Funded Organizations To Ensure Merit-Based Decisions & Manage Antisemitism & Other Prohibited Discrimination Risks

May 14, 2025

Academic medicine and other education, health care, Medicare or Medicaid Advantage insurers, and other organizations received another warning to update and strengthen the defensibility of their policies and practices system-wide for preventing anti-Semitism, and other race, color, national origin, race, religious or other discrimination from the Department of Health & Human Service’s May 13, 2025, announcement of another investigation of another university for anti-Semitism in violation of the Civil Rights Act of 1964 (“CRA”) and other federal civil rights laws. 

The Civil Rights Act of 1964 (the “CRA”), the Equal Protection Clause of the 14th Amendment to the United States Constitution, Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) and various other federal laws discrimination on the basis of race, national origin, color and certain other status by covered government or private organizations by health care, Medicare and Medicaid Advantage, academic medicine and other education, child care, research and other HHS-funded organizations, employers and other entities.

Since President Donald J. Trump (“President Trump”) took office in January, HHS OCR, the Departments of Education and Justice, the Equal Employment Opportunity Commission (“EEOC”) and other federal agencies are aggressively investigating anti-Semitism, anti-Christianity, and certain other race, color, national origin and religious discrimination by academic medicine and other educational institutions, health care organizations, health insurers, employers and other organizations covered by these civil rights laws. These investigations and enforcement actions target prohibited discrimination in all forms, including the use of race, national original, color, sex, religion and other non-merit based criteria, even when those criteria are applied to promote racial balancing, diversity or other similar goals.

Trump Merit-Based Civil Rights Executive Orders Heighten Public & Private Civil Rights & Other Discrimination Risks

This heightened investigation and enforcement emphasis is a direct response to the directives of President Trump in a series of Executive Orders directing federal agencies zealously to combat anti-Semitism, anti-Christian, and other discrimination or bias based on race, color, national origin and religion.  See e.g., Executive Order 14188 – Additional Measures To Combat Anti-Semitism (January 29, 2025); Executive Order 14202, Eradicating Anti-Christian Bias (February 6, 2025); Executive Order 14291, Establishment of the Religious Liberty Commission (“May 11, 2025); and Executive Order 14291, Establishment of the Religious Liberty Commission (May 1, 2025).

As part of these directives, President Trump specifically singled out anti-Semitism for special attention and concern, In Executive Order 14188, for instance, President Trump directed HHS, the Justice Department and other agencies to vigorously enforce the Civil Rights Act to combat the rise of anti-Semitism and anti-Semitic incidents in the U.S. and around the world.  While Executive Order 14188 specifically targeted the use of the Civil Rights Act and other federal prohibitions against race, color and national origin discrimination to fight anti-Semitism, Executive Order 14188 also noted that anti-Semitism also can violate federal protections against religious discrimination, stating:

…[Title VII] prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

The Trump Administration’s emphasis on protecting federal right of conscience and other religious freedom protections is made more perilous by his sharp disagreement, revocation, and characterization as patently illegal various key aspects of the interpretation and enforcement policies of the Biden, Obama and other previous administration regarding federal right of conscience and other religious freedom, sexual orientation, reproductive rights and other civil rights policies and protections. See e.g., Executive Order 14281 -Restoring Equality of Opportunity and Meritocracy (April 23, 2025). These directives and widespread coverage and publicity of the actions by HHS and other federal agencies to implement and enforce the Administration’s Merit Based interpretation and enforcement of civil rights laws are fueling a a slew of new federal investigations and enforcement, as well as encouraging and shaping private discrimination claims by both parties advantaged or disadvantaged by the Administration’s interpretations.

As reflected by OCR’s May 13, 2025 announcement of its investigation of complaints against a “prestigious” midwestern university (“University”), OCR and other federal agencies are responding by zealously investigating complaints of anti-Semitism or other race, color, national origin and religious discrimination by academic and other health care, education, health insurance and other organizations receiving federal funding under programs managed by HHS.

Announced OCR Investigations Since February Show HHS Enforcement Risks

According to OCR, the investigation announced on May 13, 2025, and other investigations “[are] part of a broader effort by the Administration’s multi-agency Joint Task Force to Combat Anti-Semitism. OCR opened the investigation against the University in response to a complaint from a multi-stakeholder advocacy organization that alleges “systemic concerns regarding the University’s actions to maintain a campus climate, academic direction, and institutional policy that ensures nondiscrimination on the basis of race, color, and national origin.” OCR says its investigation will examine whether the University complied with its obligations under Title VI not to discriminate against Jewish students, such that it denied them an educational opportunity or benefit.

Before OCR issued is May 13, 2025, announcement, OCR and other federal agencies previously had announced Civil Rights Act and other investigations of illegal anti-Semitism at four academic medical centers based on their response to protests and other anti-Semitic activity during graduation and other activities. In addition, OCR also had announced similarly high-profile investigation or enforcement actions against Harvard University and Harvard Law Review, a HHS-funded health services research scholarship program; eight medical schools and hospitals; a HHS-funded health research program;  a California-based medical school; the State of Maine and others for impermissibly applying race, color, national origin, sex, religious or other prohibited criteria in operating their programs.

The message from these and other HHS investigations and enforcements is clear.  “Institutions of higher education receiving HHS Federal financial assistance are responsible for complying with Title VI’s nondiscrimination mandates,” said Anthony Archeval, Acting Director of the Office for Civil Rights at HHS. “OCR is committed to ensuring students’ education, safety, and well-being are not disrupted due to discrimination at institutions funded by taxpayer dollars.”

Dear Colleague Letter Advises Academic Medicine & Other HHS-Funded Organizations On Implementing Merit Based Decisionmaking

While warning academic medical and other health care and other HHS-funded organizations against the application of non-merit based criteria and other prohibited race, national origin, color, sex and religious discrimination, OCR also has sought to encourage covered entities to adapt their policies and practices to comply with President Trump’s merit based interpretation of the Civil Rights Act and other federal civil rights law prohibitions against race, color, national origin, sex and religious discrimination through a May 6, 2025, “Dear Colleague” Letter.  In the dear Colleague Letter, OCR ‘clarifies’ its updated policies interpreting and enforcing what constitutes race-based discrimination under Title VI, Section 1557, and the Equal Protection Clause of the United States Constitution as applied to student admissions, academic and campus life, and the operation of university hospitals and clinics.

The Dear Colleague Letter reiterates that Title VI and Section 1557 prohibit academic medical and other covered organizations from relying on race-based criteria, racial stereotypes, and facially neutral criteria that operate as a pretext for race.  Instead, citing to the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) and President Trump’s Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, the Dear Colleague Letter warns HHS funded academic medicine and other organizations that these federal rules require health care providers, and those in the health professions pipeline make their selections and decisions “based on merit and clinical skills, not race” or other non-merit based criteria even when the purpose of the use of the criteria is to promote diversity or racial-balancing.

The Dear Colleague Letter discloses that in applying its merit-based interpretation of Title VI and Section 1557, OCR will prioritize enforcement against HHS funded organizations that:

  • Use race as part of their application or employment processes;
  • Require diversity, equity, and inclusion statements in connection with hiring or promotion; or
  • Lack clear policies demonstrating compliance with Students for Fair Admissions v. Harvard.

Accordingly, the Dear Colleague Letter advises medical schools and other HHS-funded organizations to:

  • Ensure their policies and procedures comply with existing federal civil rights laws;
  • Discontinue criteria, tools, or processes that serve as substitutes for race or are intended to advance race-based decision-making; and
  • End reliance on third-party contractors, clearinghouses, or data aggregators that engage in prohibited uses of race.

Act Now To Mitigate Risks From Past, Current & Future Non-Merit Based Decisions & Other Prohibited Discrimination

The new emphasis of HHS and other agencies on investigation and enforcement of federal protections for race, national origin, and other civil rights laws alone should prompt all health care and other HHS-regulated authorities prospectively to reevaluate and update their own practices to strengthen their defensibility under new standards.

As the Trump Administration civil rights directives and interpretations apply to all federal agencies, all organizations should consider and redress their exposure to civil rights or other discrimination under EEOC and other workforce, Department of Justice, and other applicable agency rules when assessing the adequacy of their existing policies and practices.

Organizations also should anticipate the likely need to defend past actions taking into account given the practice of HHS and other agency to apply the merit-based civil rights law interpretations of the Trump Administration even to events and actions that occurred while organizations were subject to the diversity, equity and inclusion friendly interpretations of federal civil rights laws during the Biden Administration. Since the investigation and enforcement actions announced by HHS and other agencies so far retroactively apply the newly announced Trump-era interpretations and standards to investigations of events and actions that occurred during the Biden Administration, prospective changes to enhance the defensibility of current and future actions alone may not be enough. Rather, health care and other organizations need to prepare for the possibility that HHS or other agencies may require their organization to defend Biden-era events under the new Trump Administration interpretations and enforcement policies. In the face of these developments, all health care organizations receiving funding from HHS should review their current and past policies and actions implicating federally civil rights laws to assess and manage their potential past exposures and mitigate future risks. 

Because the process of reviewing and revising their policies and practices inevitably will require medicine and other HHS-funded institutions to identify and engage in legally and politically sensitive discussions of past and current policies, events, and actions affecting the competing interests of individuals or organizations whose opportunities are either helped or hurt by the Trump Administration’s transition to a merit-based interpretation of civil rights laws as well as potential whistleblower and retaliation exposures, academic medicine and other HHS-funded organizations generally should work with within the scope of attorney-client privilege with legal counsel experienced with these and other civil rights laws and dealing with OCR and other agencies in relation to investigations and enforcement actions under these rules.

The author of this update, Cynthia Marcotte Stamer has decades of experience advising, representing, and defending health care providers, Medicare and Medicaid Advantage and other public and private health plans and plan sponsors, public and private employers, government contractors and grant recipients, educational organizations, child care facilities, employers, technology, data, third party administrators, and other managed care and other health care, defense, technology, life sciences and other clients about Civil Rights Laws and other religious, civil rights and other discrimination, HIPAA and other privacy and data security, False Claims Act and other billing and reimbursement, quality, technology, licensing and accreditation, whistleblower and other workforce, enforcement, governmental affairs, dispute resolution, and other compliance, risk management and operational matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her. 

For More Information

We hope this update is helpful. For more information about the  or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452-8297.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on workforce and other risk management and compliance.

Ms. Stamer’s work throughout her career has focused heavily on working with health care, health insurance and managed care, insurance and financial services, defense contractors, and other workforce and data sensitive businesses domestically and internationally on employment, benefits, data and other knowledge use and protection, Federal Sentencing Guidelines and other workforce and heath care management, internal and operational controls, regulatory and public policy and other legal and operational concerns.  As a part of this work, she has had extensive involvement in Civil Rights Laws, Section 1557 and other discrimination compliance, training, risk management and defense.

In addition, Ms. Stamer serves as a Scribe for the American Bar Association (“ABA”) Joint Committee on Employee Benefits annual agency meetings with OCR and shares her thought leadership as International Section Life Sciences Committee Vice Chair, and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 

Author of many highly regarded compliance, training and other resources on cybercrime and other data privacy and security, health and other employee benefits, health care, insurance, workforce and other risk management and compliance, Ms. Stamer is widely recognized for her thought leadership and advocacy in these matters.  

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

Health Care Organizations Urged To Strengthen Right Of Conscience Defenses As HHS Opens 2 Right Of Conscience Investigations Within 1 Month Of Opening New Child Chemical Or Surgical Mutilation Whistleblower Portal

May 12, 2025

Health care organizations should move quickly to verify the defensibility of their current and past practices and actions for offering and providing religious accommodation and avoiding religious discrimination in light of the announcements by the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) of the opening of two new Church Amendment right of conscience investigations less than a month after of OCR published a new right of conscience guidance and launched a new online portal for whistleblowers to use to submit tips or complaints regarding the chemical and surgical mutilation of children. These developments are particularly concerning in light of the sharp reversal of the policies of the prior administration and the apparent current readiness of the agencies to treat actions taken under the previous administration’s policies as grounds for investigation or enforcement.

Federal Statutes Protect “Right of Conscience” In Health Care

While Federal protections against religious discrimination and infringement on rights of conscience and longstanding and well-established through the religious freedom and discrimination provisions of the First Amendment to the United States Constitution and the Civil Rights Act of 1964 (the “CRA”), and health care specific laws such as the Church Amendment, Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) and other federal laws, President Trump’s policy directions on right of conscience and other religious freedom and discrimination are fueling new requirements and risks for health care organizations and other businesses and government organizations.

HHS interpretation and enforcement of the prohibitions against religious or other discrimination under Sectio 1557 and other federal rules protecting Rights of Conscience in health care is now rapidly evolving in response to recent Executive Orders of President Trump. Its announcement of two right of conscience investigations against health care organizations in less than a month illustrate the exploding risks that health care providers and other organizations receiving HHS funding face for excluding or discriminating against health care providers, patients, and certain other federal program participants who refuse on religious or moral grounds to participate in certain health care services under these federal health care right of conscience rules including the following:

Church Amendment

Enacted in the 1970s to protect the rights of individuals and entities to object to performing or assisting in the performance of certain procedures because of their religious beliefs or moral convictions, the Church Amendment:

  • Prohibits public officials and authorities from requiring recipients of certain federal financial assistance to provide or make their facilities available for abortion or sterilization when the recipient has a religious or moral objection to sterilization or abortion.
  • Prohibits entities that receive certain federal financial assistance from discriminating against physicians and health care personnel:
    • because they performed a lawful sterilization, abortion, or other lawful health service or research activity,
    • because they refused to perform a lawful sterilization, abortion, or other lawful health service or research activity, or
    • because of their religious beliefs or moral convictions about sterilization, abortion, or any other lawful health services or research activities.
  • Protects individuals who object because of their religious or moral beliefs to performing or assisting in the performance of any part of a federally funded health service program or research activity.
  • Prohibits entities that receive certain federal financial assistance from discriminating against applicants for training or study because the applicant is reluctant or willing to participate in abortions or sterilizations due to their religious or moral beliefs.
Coats-Snow Amendment

The Coats-Snowe Amendment codified as Section 245 of the Public Health Service Act,  prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity:

  • Refuses to undergo training in the performance of abortions;
  • Refuses to require or provide abortion training;
  • Refuses to perform abortions, or to provide referrals for abortion training or for abortions;
  • Refuses to make arrangements for any of the above activities related to abortion; or
  • Attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
Weldon Amendment.

The Weldon Amendment provides that none of the funds made available in those HHS appropriations acts may be made available to a Federal agency or program, or to a state or local government, if the agency, program, or government discriminates against any institutional or individual health care entity on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. It defines “health care entity” to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”

Trump Policy Directives Drive New Risks By Changing Prior Religion & Other Discrimination Interpretations & Prioritizing New Rule Enforcement For Past, Current & Future Actions

Although U.S. law long has protected religious freedom through the protections of the First Amendment to the United States Constitution, the Civil Rights Act of 1964 (the “CRA”), Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) and other federal laws, President Trump’s policy directions on right of conscience and other religous freedom and discrimination, HHS interpretation and enforcement of these Rights of Conscience now are rapidly evolving in response to recent Executive Orders of President Trump. 

Most directly, HHS’ new emphasis on investigation and enforcement of Rights of Conscience directly responds to Executive Orders of President Trump on religious freedom.  On his Executive Order 14188 – Additional Measures To Combat Anti-Semitism (January 29, 2025), for instance, President Trump in declaring his administration’s commitment to combating the rise of anti-Semitism and anti-Semitic incidents in the United States and around the world and directing the Justice Department and other agencies to vigorously enforce Civil Rights Act Title VI, specifically noted the current prohibitions against anti-Semitism embedded in U.S. religious freedom laws, stating:

Title VI of the Civil Rights Act of 1964 (Title VI) prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

In Executive Order 14202, Eradicating Anti-Christian Bias (February 6, 2025), President Trump ordered HHS and other agencies to review and recommend policy changes and other remedial actions to correct any unlawful anti-Christian policies, practices of the Biden Administration and develop other strategies to protect the religious liberties of Americans.

Subsequently, in his May 11, 2025, Executive Order 14291, Establishment of the Religious Liberty Commission, President Trump took aim at threats to religious freedom from efforts of certain Federal, state and local policies that President Trump views as infringing longstanding conscience protections, preventing parents from sending their children to religious schools, threatening loss of funding or denial of non-profit tax status for faith-based entities, and singling out religious groups and institutions for exclusion from governmental programs. To redress these threats, President Trump announced it is “the policy of the executive branch to vigorously enforce the historic and robust protections for religious liberty enshrined in Federal law” and to “promote citizens’ pride in our foundational history, identify emerging threats to religious liberty, uphold Federal laws that protect all citizens’ full participation in a pluralistic democracy, and protect the free exercise of religion.”

To implement this policy, President Trump established a “Religious Liberty Commission” to prepare a comprehensive report on the foundations of religious liberty in America, the impact of religious liberty on American society, current threats to domestic religious liberty, strategies to preserve and enhance religious liberty protections for future generations, and programs to increase awareness of and celebrate America’s peaceful religious pluralism. In defining the directives of the Commission, President Trump expressly included among the topics for consideration by the Commission “[c]onscience protections in the health care field and concerning vaccine mandates” and the Permitting time for voluntary prayer and rright of all Americans to freely exercise their faith without fear or Government censorship or retaliation. See Executive Order 14291, Establishment of the Religious Liberty Commission (May 1, 2025).

The Trump Administration’s emphasis on protecting federal right of conscience and other religious freedom protections is made more perilous by his sharp disagreement, revocation, and characterization as patently illegal various key aspects of the interpretation and enforcement policies of the Biden, Obama and other previous administration regarding federal right of conscience and other religious freedom, sexual orientation, reproductive rights and other civil rights policies and protections. See e.g., Executive Order 14281 -Restoring Equality of Opportunity and Meritocracy (April 23, 2025);

Beyond these religious freedom directives, President Trump also has issued other Executive Orders reversing key Biden Administration policies on politically sensitive policies often overlapping with issues of religious conscience.  For instance, in one of his earliest actions upon commencing his second Presidency, President Trump overruled previous administrations’ policies that promoted and protected the right of individuals to self-define their own sex regardless of biological sex at birth and associated safeguards and protection by directing[1] that U.S. law recognize only two genders, male and female, the assignment of which is determined by the gender of an individual at birth.

Subsequently, in Executive Order 14187, Protecting Children From Chemical and Surgical Mutilation (January 28, 2025) overruled Biden Administration policies protective of gender transition and other treatments for gender dysphoria by ordering HHS to end take action to terminate all regulations and other policies and practices that allow or support chemical and surgical mutilation of children as a treatment of gender dysphoria.

Meanwhile, in his Executive Order 14182-Enforcing the Hyde Amendment (January 24, 2025), President Trump reversed key policies undertaken by the Biden Administration to mitigate the effects of the Supreme Court’s landmark Dobbs vs. Jackson Women’s Health Organization decision that overturned Roe vs. Wade by declaring the U.S. Constitution does not protect a woman’s right to an abortion.

In response to these and other Trump Executive Orders, HHS on April 14, 2025, published its new Guidance for Whistleblowers on the Chemical and Surgical Mutilation of Children (the “Whistleblower Guidance”).  The Whistleblower Guidance explains the conditions under which the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) allows health care providers, health plans, health care clearinghouses or their business associates (“HIPAA Entities”) to disclose information about chemical or surgical mutilation of children in violation of Executive Order and key federal anti-retaliation protections for whistleblowers making these disclosures or engaging in other exercises of their Rights of Conscience under the Church Act.

New HIPAA Whistleblower Guidance

The HIPAA Privacy Rule generally prohibits use, disclosure, and protection of protected health information (“PHI) by HIPAA Entities.  The Whistleblower Guidance notes that since its inception, the Privacy Rule has provided various pathways for HIPAA Entities to use and disclose PHI in connection with whistleblowing actions of their workforce members or business associates.  

Along with the option to use de-identified information in whistleblower disclosures, the Whistleblower Guidance also notes that the whistleblower provision of the Privacy Rule provides that a HIPAA Entity is not considered to violate the Privacy Rule when a workforce member or business associate discloses PHI in the following circumstances:

  • The workforce member or business associate has a good faith belief that the conduct being reported is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public[2], and
  • The workforce member or business associate of the covered entity discloses PHI to any of the following:
  • A health oversight agency[3] or public health authority[4] authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity.
  • An appropriate health care accreditation organization[5], such as a state medical board, for the purpose of reporting the allegation of failure to meet professional standards[6] or misconduct by the covered entity.
  • An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining his or her legal options with respect to whistleblowing.

Thus, the Whistleblower Guidance states the Privacy Rule protects a HIPAA Entity from liability for the good-faith whistleblower action of a member of its workforce or a business associate in these situations, but does not protect the HIPAA Entity where, for example, a member of its workforce or its business associate discloses PHI to a member of the media or in some other manner not in accordance with an allowable exception to the Privacy Rule.

Since the HIPAA Entities bear responsibility for inappropriate disclosures of PHI by whistleblowers from their workforce, the Whistleblower Guidance sends a strong message to HIPAA Entities to properly document and train workforce members about when and how HIPAA allows or prohibits the use of PHI when reporting known or suspected violations of the law.

Along with discussing when HIPAA allows whistleblowers to uses or disclose PHI to report illegal behavior, the Whistleblower Guidance also highlights the following as among the federal laws most likely pertinent for “protecting whistleblowers who take action related to ensuring compliance with” the Executive Order. EO 14187:

  • The National Defense Authorization Act of 2013 (“NDAA”) contains a broad whistleblower protection for employees of federal contractors and grantees by providing that “[a]n employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to” certain statutorily defined officials and entities “information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.”
  • The False Claims Act (“FCA”) anti-retaliation provisions protect “employee[s], contractor[s], [and] agent[s]” from discharge, demotion, suspension, or any other manner of discrimination “in the terms and conditions of employment” because of lawful acts taken by the individual in furtherance of a claim under the FCA or “other efforts to stop one or more violations of [the FCA]”  where an individual must generally show that: (1) he or she is a covered “employee, contractor, or agent”; (2) he or she was engaged in activity protected by the statute; (3) he or she was retaliated against; and (4) the retaliation was “because of” protected activity.
  • The Church Amendments prohibits entities that receive certain federal financial assistance from discriminating “in the employment, promotion, or termination of employment of any physician or other health care personnel” or discriminating “in the extension of staff or other privileges to any physician or other health care personnel” because that individual “refused to perform or assist in the performance” of a “lawful sterilization procedure” “on the grounds that his performance or assistance in the performance of the procedure . . . would be contrary to his religious beliefs or moral convictions,” or “because of his religious beliefs or moral convictions respecting sterilization procedures[.]”  In addition, 42 U.S.C. § 300a-7(d) provides: “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”  
  • The HIPAA Privacy Rule generally requires HIPAA Entities to have and apply appropriate sanctions against members of its workforce who failed to comply with their privacy policies or procedures or with the requirements of the rule. However, Privacy Rule § 164.530€(1) explicitly excludes the application of sanctions to a member of the HIPAA Entity’s workforce for whistleblowing activity.

2 New Right Of Conscience Investigations Signal Growing Enforcement Risks

OCR’s announcement of its opening of two Right of Conscience investigations sends a clear warning to health care providers and other HHS-funded entities to ensure the defensibility of their own practices and policies for honoring the rights of conscience of their workforce and others they do business with in the course of their operations.

  • 1st Right Of Conscience Investigation Announcement On April 14

On April 14, 2025, OCR announced its initiation of its first investigation of a major pediatric teaching hospital for allegedly terminating the employment of a whistleblower nurse for exercising her federally protected rights of conscience.  According to the OCR announcement, the pediatric teaching hospital allegedly terminated the employment of a whistleblower nurse for exercising her federally protected rights of conscience. The OCR announcement states that the investigation will examine whether the pediatric hospital violated the Church Amendments by firing a whistleblower nurse after she requested a religious accommodation to avoid administering puberty blockers and cross-sex hormones to children, which she opposed due to religious beliefs about the sterilization effects of these interventions.  The announcement also quotes Acting HHS OCR Director Anthony Archeval as stating, “The Department will robustly enforce Federal laws protecting these courageous whistleblowers, including laws that protect health care professionals from being forced to violate their religious beliefs or moral convictions.” 

  • 2nd Right of Conscience Investigation Announcement On May 12

Less than one month after announcing its first investigation, OCR on May 12, 2025, announced its second right of conscience investigation against a hospital which is part of a larger health care system.  According to the announcement, the investigation will focus on how the hospital accommodates its health care personnel who decline to perform or assist in the performance of abortion procedures contrary to their religious beliefs or moral convictions. 

The second announcement notes that the investigations are “part of a larger effort to strengthen enforcement of laws protecting conscience and religious exercise.” It also quotes Acting OCR Director Archeval as stating, “The Department is committed to enforcement of our nation’s laws that safeguard the fundamental rights of conscience and religious exercise,” …  “Health care professionals should not be coerced into, fired for, or driven out of the profession for declining to perform procedures that Federal law says they do not have to perform based on their religious beliefs or moral convictions.” 

The new emphasis of HHS and other agencies on investigation and enforcement of federal protections for rights of conscience and other religious freedoms and other civil rights laws alone should prompt all health care and other HHS-regulated authorities prospectively to reevaluate and update their own practices to strengthen their defensibility under new standards. When assessing the adequacy of their existing policies and practices, health care and other covered organizations also should anticipate the likely need to defend past actions taking into account the Trump Administration’s sharp redirection of interpretations and enforcement away from the policies of the Biden Administration. Since the investigation and enforcement actions announced by HHS and other agencies so far retroactively apply the newly announced Trump-era interpretations and standards to investigations of events and actions that occurred during the Biden Administration, prospective changes to enhance the defensibility of current and future actions alone may not be enough. Rather, health care and other organizations need to prepare for the possibility that HHS or other agencies may require their organization to defend Biden-era events under the new Trump Administration interpretations of the Church Amendments, the CRA, Section 1557, and other federal rules on religious or other Civil Rights law discrimination. In the face of these developments, all health care organizations receiving funding from HHS should review their current and past policies and actions implicating potential exercises of rights of conscience regarding to the treatment of children for gender dysphoria, abortion and other reproductive rights and other areas likely to implicate the Church Amendments or other federally protected religious rights to assess their potential past exposures and mitigate future risks. 

The author of this update, Cynthia Marcotte Stamer has decades of experience advising, representing, and defending health care providers, Medicare and Medicaid Advantage and other public and private health plans and plan sponsors, public and private employers, government contractors and grant recipients, educational organizations, child care facilities, employers, technology, data, third party administrators, and other managed care and other health care, defense, technology, life sciences and other clients about Civil Rights Laws and other religious, civil rights and other discrimination, HIPAA and other privacy and data security, False Claims Act and other billing and reimbursement, quality, technology, licensing and accreditation, whistleblower and other workforce, enforcement, governmental affairs, dispute resolution, and other compliance, risk management and operational matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her. 

For More Information

We hope this update is helpful. For more information about the  or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452-8297.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on workforce and other risk management and compliance.

Ms. Stamer’s work throughout her career has focused heavily on working with health care, health insurance and managed care, insurance and financial services, defense contractors, and other workforce and data sensitive businesses domestically and internationally on employment, benefits, data and other knowledge use and protection, Federal Sentencing Guidelines and other workforce and heath care management, internal and operational controls, regulatory and public policy and other legal and operational concerns.  As a part of this work, she has had extensive involvement in Civil Rights Laws, Section 1557 and other discrimination compliance, training, risk management and defense.

In addition, Ms. Stamer serves as a Scribe for the American Bar Association (“ABA”) Joint Committee on Employee Benefits annual agency meetings with OCR and shares her thought leadership as International Section Life Sciences Committee Vice Chair, and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 

Author of many highly regarded compliance, training and other resources on cybercrime and other data privacy and security, health and other employee benefits, health care, insurance, workforce and other risk management and compliance, Ms. Stamer is widely recognized for her thought leadership and advocacy in these matters.  

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides health care, human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on health care, leadership, governance, human resources, employee benefits, data security and privacy, insurance, and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources including the following recent publications about related emerging developments:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general information and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstances at the particular time. No comment or statement in this publication is to be construed as legal advice or admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law constantly and often evolves, subsequent developments that could impact the currency and completeness of this discussion are likely. The author and Solutions Law Press, Inc. disclaim and have no responsibility to provide any update or otherwise notify anyone of any fact or law-specific nuance, change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

[1] See e.g., Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025).

[2] 45 CFR 164.502(j)(1)(i).

[3] 45 CFR 164.501.

[4] 45 CFR 164.501.

[5] 65 Fed. Reg. at 82492.

[6] See 65 Fed. Reg. at 82727

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Posted by Cynthia Marcotte Stamer

Accommodating Patient Preferences No Defense To Prohibited Employment Discrimination

July 31, 2023

A new federal Equal Employment Opportunity Commission (“EEOC”) lawsuit reminds health industry and other employers that patient or other customer preferences do not justify or excuse an employer’s discrimination against employees in violation of the Civil Rights Act or other federal employment discrimination laws.

Brooklyn-based home health company ACARE HHC Inc., doing business as Four Seasons Licensed Home Health Care Agency (“Four Seasons”) faces a race discrimination suit for allegedly removing home health aides from their work assignments due to their race and national origin to accommodate client preferences.

According to a lawsuit (EEOC v. ACARE HHC d/b/a Four Seasons Licensed Home Health Care, 23-cv-5760), filed by the EEOC in the U.S. District Court for Eastern District of New York on July 31, 2023, Four Seasons violated the Title VII of the Civil Rights Act of 1964 (“Civil Rights Act”) by routinely acceding to racial preferences of patients in making home health aide assignments. The EEOC claims Four Seasons routinely removed Black and Hispanic home health aides based on clients’ race and national origin-based requests. Four Seasons would transfer aides to a new assignment or, if no other assignment was available, the aides lost their employment completely. The EEOC charges this alleged conduct violates the Civil Rights Act, which among other things prohibits employers from discriminating against employees on the basis of race and national origin. The EEOC seeks compensatory damages and punitive damages for the affected employees, and injunctive relief to remedy and prevent future discrimination based on employees’ race and national origin.

The lawsuit, warns employers against resigning or assigning workers to accommodate racial or other prohibited discriminatory preferences of customers, or business partners. “Making work assignment decisions based on an employee’s race or national origin is against the law, including when these decisions are grounded in preferences of the employer’s clients,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office.

The lawsuit is one of a plethora of enforcement Civil Rights and other federal discrimination law actions by EEOC, the Department of Health and Human Services Office of Civil Rights, and other federal agencies under the Biden Administration’s prioritization of expansion and enforcement of discrimination and other discrimination and equal opportunity laws.

In light of these efforts, employers should take immediate steps to update policies, postings, training, and practices to ensure their ability to defend their compliance with race and other federal nondiscrimination laws.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and VIce-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstances at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules make it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access to this publication. 

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Leave a Comment » | Abortion, Academic medicine, air ambulance, Child Care, Childcare, Childrens Health Insurance Program, Civil Rights, Conditions of Participation, Corporate Compliance, Direct Primary Care, Discrimination, DME, Doctor, drug treatment, early childhood education, Emergency Care, Employer, exchange plans, Federal Health Center, Health Care, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Quality, Health Insurance, Health Plan, HHS, Home Health, home health, Hospice, Hospital, Hospital, hospitals, Indian Health, Inpatient Rehabilitation, Inpatient Rehabilitation Facility, Life Sciences, long-term care, Medicare Prescription Drug Program, Mental Health, Nonprofits, nursing home, OCR, OIG, Physician, Prescription Drugs, Provider contracting, Rehabilitation Act, Reproductive Rights, Section 1557, Sexual Abuse, Sexual Assault, Sexual Harassment | Permalink
Posted by Cynthia Marcotte Stamer

HHS Recommits To LGBTQ Nondiscrimination Protections In Newly Proposed Rules; Religious Exemption Likely Limited By Pending HHS Changes In Religious Freedom Protections

July 11, 2023

Health care providers, health insurance issuers, health care professional associations, state and local government entities and other organizations and providers participating or receiving funds from the Department of Health and Human Services (“HHS”) funded programs should evaluate their likely responsibilities and exposures for preventing discrimination on the basis of sexual orientation and gender under the Notice of Proposed Rule Making (“NPRM”) to the Health and Human Services Grants Regulation (the “Proposed HHS Grants Rule”) the HHS Office for Civil Rights (“OCR”) and the Assistant Secretary for Financial Resources (“ASFR”) released to the public today (July 11, 2023) and scheduled for joint publication the Federal Register on July 13, 2023.  

Proposed HHS Grants Rule Overview

The NPRM builds on HHS’ efforts to ensure access to health and human services for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (“LGBTQI”) individuals in furtherance of President Biden’s Executive Orders on Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation and Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals by reaffirming the prohibition against discrimination on the basis of sexual orientation and gender identity in federal statutes administered by HHS while defining procedures through which HHS would permit organization with religious objections to seek an exemption from or modification of the otherwise applicable requirements. 

The Proposed HHS Grants Rule clarifies and reaffirms HHS’ prohibition against LGBTQI discrimination by stating, “In statutes that HHS administers which prohibit discrimination on the basis of sex, the Department interprets those provisions to include a prohibition against discrimination on the basis of sexual orientation and gender identity, consistent with the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and other federal court precedent applying Bostock’s reasoning that sex discrimination includes discrimination based on sexual orientation and gender identity.”

The Proposed HHS Grants Rule represents the latest effort of HHS to finalize and implement prohibition against LGBTQI individuals in HHS first undertaken in 2016.  Since HHS originally adding the prohibition against LGBTQI discrimination to its HHS Grants Rule, HHS faced various court challenges to its LGBTQI nondiscrimination provisions.  These challenges included lawsuits challenging HHS’ interpretation of the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) (“Title VII”) as prohibiting discrimination based on sexual orientation and identity, First Amendment religious freedom challenges and challenges based on alleged violations of the Administrative Procedures Act.  

In the intervening years, HHS originally granted various waivers, then subsequently adopted a blanket non-enforcement policy to address First Amendment religious freedom concerns about the LGBTQI discrimination prohibition and attempted to resolve Administrative Procedures Act challenges in subsequently published versions of the rules.  Meanwhile, the U.S. Supreme Court resolved objections to HHS’ expansive interpretation of Title VII as extending to LGBTQI when it affirmed Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation and gender identity in Bostock v. Clayton County, 140 S. Ct. 1731 (2020).

As currently proposed, the HHS Grants Rule has a sweeping reach.  In the Proposed HHS Grant Rule, HHS reaffirms that discrimination against LGBTQI individuals is prohibited in virtually all HHS-funded and administered programs while revising the existing HHS Grants Rule to address when and how a provider with faith-based objections to the rules can seek exemption or other religious accommodations from HHS.  

As currently proposed the Proposed HHS Grants Rule would treat LGBTQI discrimination as prohibited discrimination on the basis of sex in most HHS regulated or funded programs.  The LGBTQI discrimination prohibition would apply to authorizations for domestic resettlement of and assistance to refugees; assistance in transition from homelessness; Children with Serious Emotional Disturbances; Title VII Health Workforce Programs; Nursing Workforce Development; Preventive Health Services Block Grant; Substance Abuse Treatment and Prevention Block Grant; Community Mental Health Services Block Grant; Maternal and Child Health Block Grant; Disaster relief; Low-Income Home Energy Assistance Program; Head Start; Community Services Block Grant Program; and Family Violence Prevention and Services programs.

HHS’ announcement of its plans to reaffirm its LGBTQI equal protection requirements in the HHS Grants Rule likely will prompt new attention and scrutiny from organizations and individuals with faith-based objections to its mandates, particularly given HHS’ release of the rule comes less than two weeks after the Supreme Court’s June 30, 2023 landmark ruling in 303 Creative LLC . v. Elenis, 600 U. S. ____ (2023),  upholding the right of a website designer, who believes same-sex marriage contravenes her faith, to exemption from enforcement of a state law that prohibited a public business from communicating to patrons that service would be refused based on sexual orientation. 

The Proposed HHS Grants Rule includes provisions requiring HHS to accommodate the religious rights of organizations or individuals with faith-based objections protected by the Religious Freedom Restoration Act (“RFRA”) or the First Amendment when administering and enforcing its provisions without specifically detailing the procedures for raising such objections or the standards HHS will apply to decide whether to approve a request for religious exemption or accommodation.  

In this respect, the Proposed HHS Grants Rule provides that a recipient at any time may notify the HHS awarding agency, ASFR, or the Office for Civil Rights (OCR) of the recipient’s view that it is exempt from, or requires modified application of, certain provisions of the Rule due to the RFRA, the First Amendment or another religious freedom law.  The Proposed HHS Grants Rule also directs that once the awarding agency receives notice of religious objection from a particular recipient, “any relevant ongoing compliance activity regarding the recipient shall be held in abeyance” until the applicable agencies in legal consultation with the HHS Office of the General Counsel determine whether the recipient is exempt from the application of certain provisions or entitled to modified application of the rules based on a federal religious freedom law. 

While the Proposed HHS Grants Rule does not detail the procedures for requesting religious accommodation or the standards HHS will use to decide whether to approve requests, HHS does address those standards and procedures in other guidance, the current provision of which are highlighted on the HHS Conscience and Religious Freedom Webpage.  It bears noting, however, that along with the Proposed HHS Grants Rule, HHS also currently is considering a separate proposal to narrow the availability of religious and conscience objections to its rules it announced in a January 5, 2023 Notice of Proposed Rule Making titled “Safeguarding the Rights of Conscience as Protected by Federal Statutes”  (“Proposed Religion Rule”).  While the official comment period for the Proposed Religion Rule closed on March 6, 2023, its provisions, if adopted as proposed, could materially affect the interpretation and enforcement of the HHS Grants Rule.  Accordingly, organizations and other parties concerned about the likely interpretation and enforcement of the HHS Grants Rule with respect to parties claiming religious freedom objections should consider the likely implications of the Proposed Religion Rule in their evaluation of the HHS Grants Rule. 

In response to the HHS Grants Rule, all health care providers, health plans and others expected to be impacted by the Proposed HHS Grants Rule should both begin preparing to adjust their existing policies and practices in anticipation of the finalization of the Proposed HHS Grants Rule as well as submit relevant concerns and other feedback on the Proposed Rule by the September 11, 2023 comment deadline established in the NPRM.  Providers and other stakeholders with potential faith-based concerns about any of the requirements of the Proposed HHS Grants Rule should take particular note of the Rule’s proposed provisions regarding religious accommodation, taking into account the Proposed Religion Rule purposes of this planning as well as their timely submission of any comments by the applicable September 11, 2023 comment deadline.

For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

Solutions Law Press, Inc. invites you to receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on health and managed care and employer benefits legal, public policy and operational concerns in the healthcare, employer benefits, and insurance and financial services industries. She speaks and publishes extensively on HIPAA and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested in reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstances at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules make it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access to this publication. 

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2023 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Leave a Comment » | Abortion, Academic medicine, air ambulance, Child Care, Childcare, Childrens Health Insurance Program, Civil Rights, Conditions of Participation, Corporate Compliance, Direct Primary Care, Discrimination, DME, Doctor, drug treatment, early childhood education, Emergency Care, Employer, exchange plans, Federal Health Center, Health Care, Health Care, Health Care Finance, Health Care Fraud, Health Care Provider, Health Care Quality, Health Insurance, Health Plan, HHS, Home Health, home health, Hospice, Hospital, Hospital, hospitals, Indian Health, Inpatient Rehabilitation, Inpatient Rehabilitation Facility, Life Sciences, long-term care, Medicare Prescription Drug Program, Mental Health, Nonprofits, nursing home, OCR, OIG, Physician, Prescription Drugs, Provider contracting, Rehabilitation Act, Reproductive Rights, Section 1557, Sexual Abuse, Sexual Assault, Sexual Harassment | Permalink
Posted by Cynthia Marcotte Stamer

SCOTUS: Emotional Injury Damages Not Recoverable In Patient’s Private Rehab Act and ACA Disability Discrimination Lawsuit But Other Significant Liability Risks Remain

May 2, 2022

Today’s Supreme Court ruling that emotional distress damages are not recoverable in a private action to enforce the disability discrimination and accommodation requirements of either the Rehabilitation Act of 1973 (“Rehab Act”) or the Patient Protection and Affordable Care Act (“ACA”) prevents health care and other businesses subject to these requirements against the risk of large emotional injury awards in private actions for discrimination based on these laws. However, health care providers and other organizations subject to these requirements should use care to maintain compliance to avoid large actual damage awards to plaintiffs bringing private lawsuits, program exclusion, penalties or other governmental sanctions or both.

Cummings Supreme Court Ruling

The May 1, 2022 United States Supreme Court ruling in Cummings v. Premier Rehab Keller authored by Supreme Court Justice John Roberts resulted from a suit that sought emotional distress damages brought by filed by a deaf and legally blind woman, Jane Cummings against Premier Rehab Keller after it denied her request that it provide an American Sign Language interpreter at her physical therapy sessions.  Premier Rehab told Cummings the therapist could communicate with her through other means,  Claiming Premier Rehab’s failure to provide an ASL interpreter constituted discrimination on the basis of disability in violation of the Rehab Act and Section 1557 of the ACA, Cummings sued Premier Rehab seeking various damages and other relief, including emotional distress damages.

The Supreme Court took notice that Premier Rehab was subject to these laws because its receipt of Medicare and Medicaid payments qualified as federal financial assistance triggering their applicability.

The Supreme Court affirmed the previous District Court and Fifth Circuit Court of Appeals’ rulings that emotional distress damages are not recoverable in a private action to enforce either the Rehab Act or the ACA.

The Supreme Court Majority based its decision on its finding that the Rehab Act and Act both are spending statutes that condition their offer of federal funding on a promise by the recipient not to discriminate creating what amounts essentially to a contract between the Government and the recipient of funds.  Following previously established Supreme Court precedent for “private spending clause actions,” the Court ruled the emotional distress or other remedy is not available unless “the funding recipient is on notice that by accepting federal funding, it exposes itself to liability of that nature.”

To decide whether emotional distress damages are available under the Spending Clause statutes in this case, the Court therefore asked if a prospective funding recipient deciding whether to accept
federal funds would have had “clear notice” regarding that liability. Because the two statutes are silent on the availability of emotional injury damages, the Supreme Court followed prior precedent by looking to whether the emotional damages sought by Cummings were the type of damages traditionally available in suits for breach of contract so as to put Premier Rehab and other defendants on notice of their exposure to such damages from actions under the Rehab Act or ACA.  While acknowledging some exceptional circumstances where punitive damages may be recovered where “the conduct constituting the breach is also a tort for which punitive damages are recoverable,” the Court found such damages “are generally not available for breach of contract.” Concluding that the recognized exception to the general rule was insufficient to give funding recipients the requisite notice that they could face such damages. the Supreme Court ruled that funding recipients under the Rehab Act and the ACA “have not, merely by accepting funds, implicitly consented to liability for punitive damages.” 

To read the full Majority opinion and related consenting and dissenting opinions, see here. 

Liability Risks Remain Substantial Despite Cummings Ruling

While the Supreme Court’s ruling means private litigants cannot recover emotional injury damages in discrimination actions brought to enforce the Rehabilitation Act or the ACA, health industry and other organizations remain subject to other substantial liability risks for improper discrimination in violation of those laws.  Beyond recoveries for actual damages, attorneys’ fees and costs recoverable by private litigants, covered organizations also can face substantial civil monetary penalties, program disqualification, in some instances even False Claims Act liability for billing in violation of program conditions of participation and other risks.  As federal agencies continue to make enforcement of these sanctions a priority, organization covered by either of these laws should use care to maintain appropriate compliance and risk management to ensure their ability to defend against any potential charges.  

For instance, HHS recently reaffirmed its continued commitment and prioritization of protecting disabled individuals against disability discrimination by its publication of its February 4, 2022 FAQs for Healthcare Providers during the COVID-19 Public Health Emergency: Federal Civil Rights Protections for Individuals with Disabilities under Section 504 and Section 1557. Published to remind health care providers of their obligations under law and provide examples of applicability, HHS clarifies in that guidance that federal civil rights laws apply to health care providers, including those administering COVID-19 testing, medical supplies, and medication. These rules also apply to entities providing hospitalization, long-term care, intensive treatments, and critical care, such as oxygen therapy and mechanical ventilators. HHS also confirm that federal civil rights laws apply to state Crisis Standard of Care plans, procedures, and related standards for triaging scarce resources that hospitals are required to follow. HHS Issues New Guidance for Health Care Providers on Civil Rights Protections for People with Disabilities. See also New Guidance to Boost Accessibility and Equity in COVID-19 Vaccine Programs (December 22, 2021); HHS Takes Action to Prevent Discrimination and Strengthen Civil Rights (November 18, 2021); HHS and DOJ Issue Guidance on “Long COVID” and Disability Rights Under the ADA, Section 504, and Section 1557 (July 26, 2021); OCR Provides Technical Assistance to the State of Arizona to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination (May 25, 2021); HHS Announces Prohibition on Sex Discrimination Includes Discrimination on the Basis of Sexual Orientation and Gender Identity (May 10, 2021); New Legal Guidance and Resources to Ensure — and Expand — Access to COVID-19 Vaccines for People with Disabilities and Older Adults (April 13, 2021).

HHS’ guidance announcements all include a warning like the one from OCR Director Lisa J. Pino in the February 4, 2022 announcment that “OCR will continue our robust enforcement of federal civil rights laws that protect people with disabilities from discrimination, including when Crisis Standards of Care are in effect.”

The current and historical enforcement record of HHS demonstrates the teeth behind this commitment. OCR has a long and continuing history of extracting substantial settlements or civil monetary penalties from health care or other organizations receiving Medicare, Medicaid or other federal funds administered by HSS for engaging in conduct OCR finds inconsistent with the ACA or Rehabilitation Act discrimination requirements. See, e.g., Settlement Agreement Reached with Rhode Island Department of Children, Youth and Families to Address Discrimination Against Parents with Disabilities (March 30, 2022); Massachusetts Healthcare Provider Resolves Allegations of Discriminatory Practices Regarding Patients Needing Opioid Use Disorder Treatment (December 22, 2021); HHS Office for Civil Rights and U.S. Attorney’s Office for the District of Massachusetts Settle Disability Discrimination Case with Baystate Medical Center (November 17, 2021); HHS Office for Civil Rights and U.S. Attorney’s Office Settle Disability Discrimination Case with Backus Hospital (October 5, 2021); Rhode Island, Massachusetts Healthcare Provider Resolves Allegations of Discriminatory Practices Regarding Patients Needing Opioid Use Disorder Treatment (August 9, 2021).

These OCR guidance and enforcement actions and similar activities by other federal agencies send a strong message that OCR and other federal agencies will continue and expand their zealous investigation and enforcement of disability and other violations by health care providers and other public and private organizations covered by the Rehabilitation Act, the ACA or other federal discrimination and civil rights laws. Health care providers and others regulated by these federal discrimination laws should consider auditing the adequacy of existing practices, reaffirming their own and their business partners’ compliance, retraining workforce and taking other appropriate steps to help prevent illegal discrimination within their organization and to position their organization to respond and defend against potential discrimination investigations or charges.

For Additional Information Or Assistance

If you need have questions or need assistance with health, health or other insurance, employee benefit, payroll, investment or other data, systems or other privacy or security related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.  Longtime scribe for the American Bar Association Joint Committee on Employee Benefits agency meeting with OCR and author of leading publications on HIPAA and other privacy and data security concerns, Ms. Stamer regularly assists clients and provides input to Congress, OCR and other agencies, publishes and speaks extensively on medical and other privacy and cybersecurity, health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns.

Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications. Her insights on HIPAA risk management and compliance frequently appear in medical privacy related publications of a broad range of health care, health plan and other industry publications.  She also is a highly-sought out speaker on privacy and data security who serves on the planning faculty and speaks for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.  You can get more information about her HIPAA and other experience here.  If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters, e-mail Ms. Stamer or call (214) 452-8297.  

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.  

Important Information About This Communication

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2022 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

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Posted by Cynthia Marcotte Stamer

Child Care Providers Should Update COVID-19 Protocols For Revised CDC Guidelines

November 16, 2021

Child care centers, home-based and family child care programs, Head Start programs, and other prekindergarten programs (“ECE”) should review and update Infectious disease and other protocols in response to updated COVID-19 guidance from the Centers for Disease Control and Prevention (CDC) released today.

The updated version of the CDC COVID-19 Guidance for Operating Early Care and Education/Child Care Programs guidance outlines strategies for ECE programs to implement to reduce the spread of COVID-19 and to maintain safer operations including:

  • Emphasizes the importance of universal masking for everyone ages 2 and older, regardless of vaccination status;
  • Provides more information on screening testing;
  • Updates guidance for fully vaccinated staff; and
  • Encourages ECE programs to promote vaccinations among staff and families, including pregnant women, by providing information about COVID-19 vaccination, encouraging vaccine trust and confidence, and establishing supportive policies and practices.

Although fewer children have been sick with COVID-19 compared with adults during the pandemic, the CDC says children can be infected with the virus that causes COVID-19, get sick, and spread the virus to others. CDC’s science brief on transmission in schools includes scientific evidence about the spread of the virus among children and in school and ECE settings.

More Information

We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates by registering on our Solutions Law Press, Inc. Website and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy.  

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

Past Board President of the Richardson Development Program for Children ECE and Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, Vice Chair of the ABA International Section Life Sciences Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is most widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health industry legal, public policy and operational concerns.

Ms. Stamer’s work throughout her 30 plus year career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. 

As a part of this work, she has continuously and extensively worked with domestic and international health plans, their sponsors, fiduciaries, administrators, and insurers; managed care and insurance organizations; hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; EHR, claims, payroll and other technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies. 

This involvement encompasses helping health care systems and organizations, schools, ECEs, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EHR, HIPAA and other technology, data security and breach and other health IT and data; STARK, ant kickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care; internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement; and other strategic and operational concerns.

Author of a multitude of health industry and other highly regarded publications and presentations, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here.  

IMPORTANT NOTICE ABOUT THIS COMMUNICATION

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein. ©2021 Cynthia Marcotte Stamer. Limited non-exclusive right to republish granted to Solutions Law Press, Inc.™

Leave a Comment » | Child Care, Childcare, Conditions of Participation, Coronavirus, Covid, COVID-19, Health Care, Pandemic, Patient Empowerment, Section 1557 | Permalink
Posted by Cynthia Marcotte Stamer

Jackson Health System Nailed With $2.15 Million Plus Penalty For Violating HIPAA

October 23, 2019

Jackson Health System (JHS) has paid a heavy price for violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security and Breach Notification Rules between 2013 and 2016.

The $2,154,000 civil monetary penalty the Miami, Florida-based nonprofit academic medical system paid to the Department of Health & Human Services Office for Civil Rights (OCR) to settle OCR charges it violated the HIPAA Security & Breach Notifications= Rules makes clear the urgent need for other health care providers, health plans, healthcare clearinghouses and their business associates to verify the adequacy of their organizations with HIPAA’s privacy, security and breach notification rules currently and on an ongoing basis.

The $2.1 million plus payment was required to satisfy a civil monetary penalty assessment OCR imposed in a Notice of Proposed Determination and Notice of Final Determination made public by OCR on October 23, 2019 in response to findings from a series of investigations of HIPAA breach and compliance concerns raised between 2013 and 2016 raised by various HIPAA-mandated breach reports and media reports that raised concerns about improper access disclosure and use of patient PHI between 2013 and 2016.  When JHS did not challenge the findings or determination became final.  OCR reports JHS has paid the specified $2.154,000 civil monetary penalties.

JHS HIPAA Violations Found By OCR

JHS operates six major hospitals, a network of urgent care centers, multiple primary care and specialty care centers, long-term care nursing facilities, and corrections health services clinics, provides health services to approximately 650,000 patients annually, and employs about 12,000 individuals.  The OCR investigation stemmed from a series of breach and media reports spanning several years and revealed a host of long standing violations of long-standing HIPAA requirements and a failure to accurately disclose or correct those or other violations of a nature that likely continue to exist in many health care systems and other covered entities.

On August 22, 2013, JHS submitted a breach report to OCR stating that its Health Information Management Department lost paper records containing the protected health information (PHI) of 756 patients in January 2013. JHS’s internal investigation determined that an additional three boxes of patient records also were lost in December 2012; however, JHS did not report the additional loss or the increased number of individuals affected to 1,436, until June 7, 2016.

In July 2015, OCR initiated an investigation following a media report that disclosed the PHI of a JHS patient. A reporter had shared a photograph of a JHS operating room screen containing the patient’s medical information on social media. JHS subsequently determined that two employees had accessed this patient’s electronic medical record without a job-related purpose.

On February 19, 2016, JHS submitted a breach report to OCR reporting that an employee had been selling patient PHI. The employee had accessed inappropriately over 24,000 patients’ records since 2011.

According to OCR Director Roger Severino, “OCR’s investigation revealed a HIPAA compliance program that had been in disarray for a number of years. …This hospital system’s compliance program failed to detect and stop an employee who stole and sold thousands of patient records; lost patient files without notifying OCR as required by law; and failed to properly secure PHI that was leaked to the media.”

These and other findings led to the OCR determination in the Notice of Proposed Determination and Notice of Final Determination that JHS failed to provide timely and accurate breach notification to the Secretary of HHS, conduct enterprise-wide risk analyses, manage identified risks to a reasonable and appropriate level, regularly review information system activity records, and restrict authorization of its workforce members’ access to patient ePHI to the minimum necessary to accomplish their job duties.  OCR assessed the $2.1 million civil monetary penalty based on these determinations.

Lessons For Other Health Providers &  HIPAA Covered Entities Likely Similarly Exposed

The JHS civil monetary penalty is the latest in a growing series of OCR enforcement and regulatory actions that drive home the perils HIPAA-covered health care, health plan, healthcare clearinghouse and  business associates risk by failing to responsibly and effectively manage their HIPAA compliance.  A review of the available JHS record reveals that like all too many HIPAA-covered entities, JHS never adequately implemented appropriate measures to operationally comply with many of the original HIPAA requirements and perpetuated those deficiencies despite the series of breaches.  Sadly, many other health care systems and other HIPAA-covered entities are subject to the same practices. Failing to address these compliance issues makes these non-compliant entities susceptible to the same type of enforcement and other liabilities that JHS now has experienced.

OCR enforcement data documents a steady  rise in OCR investigation and enforcement activity.  OCR set all-time records for HIPAA Enforcement in 2018.  Heavy enforcement activity has continued in 2019.   Before its October 23, 2019 announcement of the JHS civil monetary penalties, OCR already had announced:

Given these and other previously announced enforcement initiatives and actions, all HIPAA covered entities and their business associates are urged to maintain hyper-vigilance about their own HIPAA compliance with long standing as well as emerging HIPAA requirements taking into account old, recent, and emerging guidance and enforcement activities of OCR.  Given the almost certain discovery or discussion of known or uncovered compliance concerns and other sensitive information, covered entities are cautioned that these activities generally should be undertaken under the guidance of an experienced attorney within the scope of attorney client privilege.

For More Information

We hope this update is helpful. For more information about this or other labor and employment developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates and join discussions about these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Solutions Law Press Health Care Risk Management & Operations Group and registering for updates on our Solutions Law Press Website.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

As a primary focus of this work, Ms. Stamer has worked extensively with domestic and international hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, insurers, self-insured health plans and other payers, health industry advocacy and other service providers and groups and other health industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies.

Scribe for the ABA JCEB Annual Agency Meeting with OCR, Vice Chair of the ABA International Section Life Sciences Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is noted for her decades-long leading edge work, scholarship and thought leadership on health and other privacy and data security and other health industry legal, public policy and operational concerns.  This  involvement encompasses helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve  sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology,  data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care;  internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement;  and other strategic and operational concerns.

Author of leading works on HIPAA and a multitude of other health care, health plan and other health industry matters, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc. disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2019 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Leave a Comment » | Academic medicine, Conditions of Participation, continuing medical education (CME), Corporate Compliance, Cultural diversity, Discrimination, Doctor, Employer, Employment law, Federal Health Center, Federal Sentencing Guidelines, Health Care, Health Care Provider, Health Care Quality, Home Health, Hospital, hospitals, Immigration, Inpatient Rehabilitation, Labor Law, Laws, Life Sciences, Medical Privacy, Patient Empowerment, Peer Review, Psychiatric, Section 1557, Sexual Abuse, Sexual Assault, Sexual Harassment, Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer

IRS Proposes Easing Disclosure Requirements For Certain Tax-Exempt Entities

October 9, 2019

December 10, 2019 is the deadline for charitable and other tax-exempt organizations to comment on proposed regulations the Internal Revenue Service (“IRS”) intends to use to implement clarify the reporting requirements generally applicable to tax-exempt organizations as they apply to returns filed after September 6, 2019.

The proposed regulations officially published by the IRS in the September 10, 2019 Federal Register implement changes in response to various statutory amendments and certain grants of reporting relief announced by the Treasury Department and the IRS in prior guidance to help many tax-exempt organizations generally find the reporting requirements in one place.  Among other provisions, the proposed regulations incorporate the existing exception from having to file an annual return for certain organizations that normally have gross receipts of $50,000 or less, which is found in Revenue Procedure 2011-15.

In addition, the proposed regulations also reissue relief for certain tax-exempt entities from requirements to report contributor names and addresses on annual returns filed by certain tax-exempt organizations.  Originally announced last year in Revenue Procedure 2018-38, the relief was invalidated by a district court ruling that the Treasury Department and the IRS failed to follow required notice and comment procedures.  Under the proposed regulations, filing requirements for Section 501(c)(3) organizations and Section 527 political organizations remain unchanged, and all organizations are required to keep the contributor information and make it available to the IRS upon request.

Additionally, the IRS issued Notice 2019-47 (PDF) providing penalty relief for certain exempt organizations that, consistent with the 2018 guidance from the IRS, do not report the names and addresses of contributors on annual returns for tax years ending on or after December 31, 2018, but on or before July 30, 2019.

Need more information or help evaluating or responding to this or developments?  Contact the author licensed attorney experienced in FDA and other health care and other regulatory affairs matters.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including extensive experience advising and representing health care systems and providers about sexual abuse, assault, harassment, discrimination and other personal and professional misconduct policies, training and other prevention and investigation, peer review and other discipline, mitigation and charges defense, as well extensively published and conducted workshops on “Sex, Drugs & Rock ‘N Role:  Preventing and Addressing Personal Misconduct In Healthcare,” “What To Do When Your Employee’s Life Becomes Your Business,” and other educational training and publications for health industry clients and others on these concerns.

In these and other legal, management, governmental affairs work and speaking and publications, Ms. Stamer When working with these and other clients, Ms. Stamer merges a talent for creative problem solving with her detailed legal and operational knowledge and experience to help her clients develop and use legally defensible, pragmatic, client-centric law, performance and risk management tools and processes to manage people, performance, quality, compliance, risk and other operational needs on a real-time, “on demand” basis as well as outsourced general, operations, regulatory affairs or other special counsel capacity on an interim, special project, or ongoing basis.  Her clients have included domestic and international hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, insurers, self-insured health plans and other payers; and other health industry clients.

Her involvement encompasses helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, discipline and defend sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology,  data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care;  internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement;  and other strategic and operational concerns.

Author of leading works on a multitude of health care, health plan and other health industry matters, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2019 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Leave a Comment » | Academic medicine, Conditions of Participation, continuing medical education (CME), Corporate Compliance, Cultural diversity, Discrimination, Doctor, Employer, Employment law, Federal Health Center, Federal Sentencing Guidelines, Form 990, Health Care, Health Care Finance, Health Care Provider, Health Care Quality, Home Health, Hospital, hospitals, Immigration, Inpatient Rehabilitation, Labor Law, Laws, Life Sciences, Medical Privacy, Patient Empowerment, Peer Review, Psychiatric, Rural Health Care, Section 1557, Sexual Abuse, Sexual Assault, Sexual Harassment, Tax, Tax-Exemption, Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer

Important Lessons For Health Care Providers From Michigan State Settlement Of OCR Larry Nassar Sexual Abuse Investigation

August 12, 2019

Health care providers should review and tighten their policies and practices for conducting therapies or other  procedures on children and other procedures on any patient involving the exposure of the breasts, genitalia or rectum where a patient is fully or partially disrobed as well as sexual assault, abuse and harassment policies and procedures  in light of a resolution agreement between the Board of Trustees of Michigan State University (“MSU”) d/b/a Michigan State University and MSU HealthTeam (“MSU HealthTeam”) and MSU Health Care, Inc. (“MSU Health Care”) announced by the U.S. Department of Health and Human Services, Office for Civil Rights (“OCR”) arising from a civil rights compliance review OCR initiated after federal and state criminal investigations found that an osteopathic physician Larry Nassar sexually abused gymnasts and others while employed as an associate professor by MSU.

OCR opened a compliance review of MSU to determine if its doctors’ offices and clinics violated Title IX of the Education Amendments of 1972 (“Title IX”) and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) after federal and state criminal investigations found Nassar sexually abused hundreds of women and girls under his care over decades while an associate professor at MSU.

Considered alone or in conjunction with the growing awareness and concern fueled by the #me too movement, widespread publicity about the sexual misconduct of Nassar  alleged Bill Cosby, billionaire Jeffrey Einstein, who died in prison while awaiting trial last Saturday and others, and OCR’s reaffirmation of its commitment to vigorously enforce civil rights laws in connection with its May 24, 2019 proposal of changes to its Section 1557 implementing regulations, the Resolution Agreement sends a strong signal to health care organizations and individual physician and other health care providers of the advisability of proactively preventing and managing their exposure to potential sexual abuse, assault and harassment complaints brought by patients, caregivers, employees and others.

The OCR investigation that led to the Resolution Agreement arose from a compliance review OCR started after Nassar was sentenced to 40 to 125 years in prison on February 5, 2018, after entering a guilty plea to seven counts of felony criminal sexual conduct in the first degree in Eaton County, Michigan.  He also has been convicted to various other federal and state sexual offenses.  Additionally, the former dean of MSU’s College of Osteopathic Medicine, William Strampel, was convicted of felony misconduct stemming from a charge that he used his public office to sexually harass students and a separate charge of willfully neglecting to monitor Nassar after an earlier investigation.

Title IX and Section 1557 are two of a multitude of federal laws prohibiting sex discrimination enforced by OCR, Title IX prohibits discrimination on the basis of sex in federally assisted education programs or activities while Section 1557 prohibits discrimination on the basis of sex, race, color, national origin, age and disability in certain health programs or activities.

The Resolution Agreement resolves potential additional enforcement action by OCR against MSU arising from the investigation commenced in response to the Nassar convictions as well as enforcement actions OCR had initiated against the MSU Entities for failing to comply with an earlier OCR resolution agreement.

In return for OCR’s agreement to close its investigation, the Resolution Agreement requires the MSU Entities to implement specific procedures for conducting examinations and procedures involving children as well as procedures and therapies conduct on patients of any age and gender s where the patient is disrobed, in full or in part, and there is exposure of the breasts, genitalia or rectum (“sensitive examinations”) as well as strengthen its other policies, notices and practices impacting the prevention, investigation and redress of sexual abuse, sexual assault, sexual harassment and other sex discrimination against patients, staff, employees and others.

Notably, to help safeguard patients from future sexual assault or abuse, the Resolution Agreement requires the MSU Entities to adopt, communicate to patients and staff and enforce specific policies patient privacy, chaperones and informed consent and patient privacy including

  • Requiring that staff always follow Universal Precautions with conducting “sensitive examinations,” which the Resolution Agreement defines as “procedures or therapies where the Patient is disrobed, in full or in part, and there is exposure of the breasts, genitalia or rectum);
  • Require that staff provide the patient with: an explanation of the required examination, procedure or therapy before beginning the procedure and secure informed consent from the patient or if the patient lacks decision making capacity, the consent of the patient’s guardian before conducting any sensitive examination;
  • Always honor the Patient’s request to have a parent, relative or friend present as a support person present during any sensitive examination;
  • Requiring a chaperone for all sensitive examinations;
  • For sensitive examinations of patients of 10 years of age or greater that the chaperone be an authorized member of the health care team and in other cases allow patients and/or their parent or other support person, as well as providers to request a chaperone at any time;
  • Require that physical examinations of an infant, toddler or child always be performed in the presence of a patient or guardian unless the parent or guardian or, if the parent is unavailable or in situations involving suspected abuse, mental health or other instances where the parental presence would interfere with the examination, another member of the health care team;
  • Require the use of a chaperone for sensitive examinations be documented in the patient record or where a patient declines or refuses a chaperone for an examination where one is required, require that the provider document the offer and its declination in the record and have the patient or guardian sign a waiver;
  • Always honor a patient’s request to have a chaperone present even when the patient also has a support person present when conducting a sensitive examination; and
  • Allow the patient’s wishes and comfort to determine the sex of the chaperone and accommodate, to the extent practicable, a patient’s request for a same sex chaperone

Moreover, the Resolution Agreement also dictates that the MSU Entities ensure that staff always provide patients undergoing sensitive examinations with an appropriate gown, privacy for undressing and dressing, and sensitive draping to maximize physical privacy.

In addition to these specified required procedures for the actual conduct of sensitive medical examinations, the Resolution Agreement also requires that the MSU Entities significantly strengthen their policies, notifications, procedures, and training regarding sexual assault, sexual abuse, sexual harassment and sex discrimination including to:

  • Revise their existing non-discrimination notices and sexual misconduct policies to clarify Title IX’s and Section 1557’s prohibitions against sex discrimination, including sex discrimination, sexual harassment, sexual abuse and sexual assault, against men and women;
  • In the revised non-discrimination notices and sexual misconduct policies clearly communicate that patient, staff or individuals who believe they are victims of sexual harassment, abuse, assault or other sexual harassment are “encouraged” to report their concerns to the designated MSU Entities’ Title IX and Section 1557 compliance team, the MSU police and OCR and explains the procedures for making those reports;
  • Conspicuously post and distribute the revised nondiscrimination and sexual misconduct policy notices which clearly communicate the clarified non-discrimination and sexual harassment policies;
  • Improve their processes for notifying students, staff, patients and others about reporting and for investigating and resolving Title IX and Section 1557 complaints (including for MSU-students, non-MSU-student patients, faculty and staff) including specific requirements concerning reporting to and coordination between MSU Entities’ compliance staff and law enforcement;
  • Designate a responsible official to coordinate the acceptance, investigation and resolution of Title IX and Section 1557 complaints;
  • Conduct all-staff training, planning and coordination between MSU Entities’ compliance and investigation teams and law enforcement, and provide bi-annual reports to OCR during the three year term of the agreement;
  • Require that all grievances or complaints alleging sexual assault, sexual abuse, sexual harassment or other sex discrimination filed by any patient, staff or other individual related to the MSU Health Team, be reviewed and investigated by, or under the supervision of, a dedicated independent health care investigator approved by OCR, who MSU may only terminate for cause with OCR’s consent.

While neither exhaustive nor binding on any other health care providers, the conditions (CR imposed against MSU under the Resolution Agreement are concrete steps other health care organizations and providers, academic institutions and other organizations and individuals at risk of claims directly or vicariously should consider using as part of their efforts to prevent and defend themselves against potential exposures to sexual misconduct charges.

With the #metoo movement and other widespread media coverage of the Nassar, Jeffery Epstein, Bill Cosby and other sex scandals fueling growing awareness and discussion about sexual abuse, assault and harassment, physicians and other individual health care providers as well as the health care systems, clinics and other health industry organizations, educational institutions and businesses generally face heightened risks of accusations by patients, caregivers, employees, and others of sexual misconduct.  Whether founded in fact, hypersensitivity, or independent agenda, recent history proves the potentially financially costly civil judgments or settlements, as well as career if not freedom ending consequences health care providers and institutions if unable to defend these claims. In addition to the criminal sentences imposed upon Nassar and, for instance, MSU previous entered into a civil settlement with more than 300 alleged victims of 332 women and girls who alleged they were Nassar sexual assault victims. See MSU reaches $500M settlement with Nassar victims.  This huge civil liability and the fact that MSU accepteed it rather than risk a potential jury verdict reflects the significance of the this liability risk.

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including extensive experience advising and representing health care systems and providers about sexual abuse, assault, harassment, discrimination and other personal and professional misconduct policies, training and other prevention and investigation, peer review and other discipline, mitigation and charges defense, as well extensively published and conducted workshops on “Sex, Drugs & Rock ‘N Role:  Preventing and Addressing Personal Misconduct In Healthcare,” “What To Do When Your Employee’s Life Becomes Your Business,” and other educational training and publications for health industry clients and others on these concerns.

In these and other legal, management, governmental affairs work and speaking and publications, Ms. Stamer When working with these and other clients, Ms. Stamer merges a talent for creative problem solving with her detailed legal and operational knowledge and experience to help her clients develop and use legally defensible, pragmatic, client-centric law, performance and risk management tools and processes to manage people, performance, quality, compliance, risk and other operational needs on a real-time, “on demand” basis as well as outsourced general, operations, regulatory affairs or other special counsel capacity on an interim, special project, or ongoing basis.  Her clients have included domestic and international hospitals, health care systems, clinics, skilled nursing, long term care, rehabilitation and other health care providers and facilities; medical staff, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, insurers, self-insured health plans and other payers; and other health industry clients.

Her involvement encompasses helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, discipline and defend sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology,  data security and breach and other health IT and data; STARK, antikickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care;  internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement;  and other strategic and operational concerns.

Author of leading works on a multitude of health care, health plan and other health industry matters, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources available here such as:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author reserves the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The presenter and the program sponsor disclaim, and have no responsibility to provide any update or otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2019 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication, please contact the author directly. All other rights reserved.

Leave a Comment » | Academic medicine, Conditions of Participation, continuing medical education (CME), Corporate Compliance, Cultural diversity, Discrimination, Doctor, Employer, Employment law, Federal Health Center, Federal Sentencing Guidelines, Health Care, Health Care Provider, Health Care Quality, Home Health, Hospital, hospitals, Immigration, Inpatient Rehabilitation, Labor Law, Laws, Life Sciences, Medical Privacy, Patient Empowerment, Peer Review, Psychiatric, Section 1557, Sexual Abuse, Sexual Assault, Sexual Harassment, Uncategorized | Permalink
Posted by Cynthia Marcotte Stamer