NLRB Orders Union Elections In 31 California Health Care Facilities To Proceed

March 2, 2010

By Cynthia Marcotte Stamer

National Labor Relations Board (NLRB) Regional Director Alan B. Reichard has ordered elections to proceed between rival unions in about 31 health care facilities in northern California.   The Monday, March 2, 2010 order by Regional Director Reichard sets the stage for elections between the Service Employees International /United Healthcare Workers-West (SEIU-UHW) and the National Union of Healthcare Workers (NUHW), which are competing to represent thousands of health care workers throughout California.  Under the order, some elections may be preceded by hearings to clarify the voting group; others will proceed by agreement of the parties regarding such issues as voting dates and times and voter eligibility.

While the order allows elections in many facilities to proceed, approximately 32 elections are still blocked by allegations brought by SEIU-UHW against NUHW and its principals.  These allegations remain under active consideration by the NLRB’s Office of the General Counsel.

To review the March 2, 2010, see here.

Many health care organizations and other employers are concerned about the potential financial and operational costs that organization of their workforce might produce.  Whether concerned about the potential for future organization activities, confronting a union certification election or dealing with union representation in their workplace, health industry and other employers concerned about union organizing or representational activities must act carefully. 

Federal labor law requires that employers tread carefully when dealing with union or other organizational activity.  Existing federal law limits the actions that employers can take to deter or influence worker choices about whether to support or oppose a union certification campaign, to influence the certification of one union representative over another. 

Legislation supported by the Obama Administration and the Democratic Leadership in Congress such as the Employee Free Choice Act of 2009 (H.R.1409 /S 560) would further expand these protections. If adopted as proposed, this legislation would further facilitate union organizing efforts and give union representatives new tools to pressure employers for contractual concessions to union negotiations.

Health industry and other employers concerned with these issues generally should carefully monitor and respond to proposed legislation and consult with qualified labor and employment counsel before discussing or taking other action in response to these activities to minimize risks of unintentionally running afoul of these requirements and to position their efforts for maximum effectiveness.

For Assistance With Compliance Or Other Concerns

If your organization needs advice or assistance in responding to labor and employment issues in your health care organization or other health care matters, consider contacting the author of this article, Curran Tomko Tarski LLP Partner Cynthia Marcotte Stamer at (214) 270-2402 or via e-mail here

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is nationally known for her more work, training and presentations, and publications on health and managed care staffing and employment, compensation, regulatory, and other operations, risk management and compliance matters. 

Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 22 years experience advising health industry clients about these and other matters.  A popular lecturer and widely published author on health industry and human resources matters, Ms. Stamer continuously advises health industry clients about these and other related concerns.  Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, and other operations and risk management concerns.  Her insights on these and other related matters 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.  For additional information about Ms. Stamer, her experience, involvements, programs or publications, see here.  

Other Recent Developments

If you found this information of interest, you also may be interested in information about upcoming programs to be presented by Ms. Stamer, acquiring a copy of a recording or materials from previous programs she has presented, or arranging training for your organization.  For more information about these opportunities, contact Ms. Stamer directly.

If you found this information of interest, you also may be interested in reviewing some of the following recent Updates available online by clicking on the article title:

For More Information

We hope that this information is useful to you.  If you need assistance with auditing or defending these or other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270‑2402, cstamer@cttlegal.com, Edwin J. Tomko at (214) 270-1405 or another Curran Tomko Tarski LLP Partner of your choice. Ms. Stamer has extensive experience advising clients and writes and speaks extensively on these and other health industry and other internal controls and risk management matters. 

You can review other recent health care and internal controls resources and additional information about the health industry and other experience of Ms. Stamer here.  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 or updating your profile at here or e-mailing this information to cstamer@cttlegal.com.

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 or updating your profile at here or e-mailing this information here.  To unsubscribe, e-mail here.

©2010 Cynthia Marcotte Stamer.  All rights reserved.


House Democratic Leaders Work To Resolve Differences In Committee Versions of Health Care Reform Legislation and Build Public Support During August Recess

August 5, 2009

Democratic Leaders in the House of Representatives plan to hammer out differences three versions of the America’s Affordable Health Choices Act (H.R. 3200) as separately passed by three key House Committees in July before House members return from their August recess in hopes of bringing the agreed to version of H.R. 3200 to the full house in September.  Regardless of which version ultimately emerges, the enactment of H.R. 3200 would result in sweeping new regulation and federal control over health care providers, health care payers, employers, and individuals.

After negotiating a last minute pre-August recess deal with certain Blue Dog Democrat Committee members, the House Energy and Commerce Committee on July 31, 2009 passed its version of H.R. 3200, the America’s Affordable Health Choices Act (H.R. 3200). The version of H.R. 3200 passed by the House Energy and Commerce Committee incorporates a series of amendments to the language of H.R. 3200 as originally introduced.  For instance, this version of H.R. 3200 provides incentives for states to adopt certain tort reforms, provides for a public plan option that would reimburse physicians based on negotiated rates rather Medicare rates, and would allow states to offer both state-based heath insurance exchanges and health insurance co-ops. To review H.R. 3200 as amended by the House Energy and Commerce Committee, see here.

The approval by the Energy and Commerce Committee of its version of H.R. 3200 follows the July 17, 2009 approval by the House Ways and Means Committee and Education and Labor Committee of their own versions of H.R. 3200.  For details on the version of H.R. 3200 approved by the House Ways and Means Committee, see here.  For details on the version of H.R. 3200 approved by the House Education and Labor Committee, see here

Leading House Democrats have announced their intention to work to resolve differences between these three versions of H.R. 3200 as passed by these Committees during August recess in hopes of  bringing the agreed to version of H.R. 3200 to a vote  of the full House of Representatives in September.

Meanwhile, House members from both parties also generally are using the August recess as an opportunity to reconnect with local constituents on health care reform and other core issues.

For More Information

The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns.  You can get more information about her health industry experience here.  

We hope that this information is useful to you.  If you need assistance monitoring, evaluating or responding to these or other proposed health care or other regulatory reforms or with other health care compliance, risk management, transaction or operation concerns, please contact the author of this update, Curran Tomko Tarski LLP Health Practice Group Chair, Cynthia Marcotte Stamer, at (214) 270-2402, cstamer@cttlegal.com or your other favorite Curran Tomko Tarski LLP Partner.

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here.

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Solutions Law Press Health Care Update publication available here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law Press Health Care Update here and be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

©2009 Cynthia Marcotte Stamer.  All rights reserved. 


Where To Read & Share Your Feedback About The Health Care Reform Legislation

August 1, 2009

As the health care reform policy debate continues, Americans increasingly are asking where to read the text of the health care reform legislation that members of Congress are debating and how to share their input. 

 While numerous alternatives presently are pending before Congress, much of recent discussion and debate has focused around one of the following bills:

  • H.R. 3200: America’s Affordable Health Choices Act of 2009,  introduced in the House by Rep Dingell, John D. on July 14, 2009  the text of which as originally introduced may be reviewed  here.  It has been the focus of significant mark up negotiation through out July before the following House Energy and Commerce, House Ways & Means, and House Education & Labor Committees; and
  • S. __, the Affordable Health Choices Act approved by the Senate Committee on Health, Education, Labor and Pensions, the text of which as approved may be reviewed here.

When reviewing these bills, Americans should keep in mind that members of Congress are engaged in ongoing negotiations about the specific provisions and language of these bills, as well as other legislation.  Official developments generally may be monitored here.

Many American businesses and individuals also are asking about how and where to share their views, how to organize others to do the same and other questions about getting the word out. Here a some quick ideas. We encourage others to share. 

  • The Coalition For Patient Empowerment and the Coalition for Responsible Health Care Reform linkedin group are two one of many resources where individuals are sharing information about these matters. 
  • Concerned individuals should share their views both by faxing, e-mailing or telephoning key decisionmakers in Congress, as well as joining and participating in activities of other individuals and groups that share their concerns.  Contact and get involved with this and other groups that share your concerns.
  • Contact the offices of your Congressional representatives in the House and Senate as well as other members of Congress that support your views and ask them about other groups and ways that you can share your views. They will welcome your input and involvement.
  •  If you are aware of or involved in a group that shares your views, we encourage you to share it on the Coalition for Responsible Health Care Reform linkedin group.  If you or others are planning a town hall or other health care reform meeting, use this or other linked in groups to spread the word.
  • If you are interested in volunteering to plan events in your region, let us know.   

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, and registering to receive these updates here.

When communicating, consider targeting your messages to members of Congress whose votes are likely to be impacted by your communications. 

For instance, with both the House and Senate in the majority in Congress, Democrats generally have greater control over what legislation moves forward.  The Democratic Leadership of the House and Sentate generally can get legislation passed by their members as long as they can maintain consensus among the members of their parties.  In connection with the health care reform proposals, however, cost and other considerations have made maintaining a consensus more difficult than on other legislation.  Certain fiscally moderate members of the Democratic Party have expressed concern about the expense and other aspects of their Leadership proposed health care reform proposals.  These Democrats in Congress generally the members of Congress whose votes are most likely to be impacted by public input and feedback generally and from voters in their districts and contributors specifically. 

In the House of Representatives, these members likely are the “Blue Dog Democrats.”  Read about Blue Dog Democrats here.    

The fiscal conservatism of Blue Dog Democrats makes them more likely to listen to concerns about the cost and other concerns relating to the health care reform bills touted by the Democrat Leadership in the House and Senate.  In fact, many Blue Dog Democrats already are speaking out about their concerns about the cost and other aspects of the Bill. 

Contact from voters and contributors in their districts and others could make a major difference in the ability that the House Democrat Leadership needs to pass their Bill.  Immediately contacting these members and getting others – particularly voters and contributors in the districts that elect these members – is one of the most important steps that concerned Americans can do to position their concerns to be heard.   

For most concerned voters, telephone or fax contact is the best means to convey these messages.  To minimize spam, most members only accept e-mail submitted through their website links.  Security concerns can delay receipt of written correspondence for weeks.

For persons interested in making their voices heard and sharing information with others who wish to do the same, the following contact information may be of interest:

The number of the Capital Switchboard is 202-224-3121.

The Blue Dog Leadership Team and there telephone and fax numbers are:

Rep. Stephanie Herseth Sandlin (SD), Blue Dog Co-Chair for Administration, Telephone: 202.225.2801 , Fax: 202.225.5823

Rep. Baron Hill (IN-09), Blue Dog Co-Chair for Policy,Telephone: 202-225-4031, Fax: (202) 226-6866

Rep. Charlie Melancon (LA-03), Blue Dog Co-Chair for Communications, Telephone: 202-225-4031, Fax: (202) 226-3944

Rep. Heath Shuler (NC-11), Blue Dog Whip, Telephone:  202-225-6401, Fax: (202) 226-6422

The Blue Dog Members and their telephone numbers are :

  • Altmire, Jason (PA-04),(202)225-2565
  • Arcuri, Mike (NY-24), (202)225-3665
  • Baca, Joe (CA-43),(202)225-6161
  • Barrow, John (GA-12), (202) 225-2823
  • Berry, Marion (AR-01), (202) 225-4076
  • Bishop, Sanford (GA-02), (202) 225-3631
  • Boren, Dan (OK-02), (202) 225-2701
  • Boswell, Leonard (IA-03), (202) 225-3806
  • Boyd, Allen (FL-02), (202) 225-5235
  • Bright, Bobby (AL-02), (202) 225-2901
  • Cardoza, Dennis (CA-18), (202) 225-6131
  • Carney, Christopher (PA-10), (202) 225-3731
  • Chandler, Ben (KY-06), (202) 225-4706
  • Childers, Travis (MS-01), (202) 225-4306
  • Cooper, Jim  (TN 5th), (202) 225-4311
  • Costa, Jim  (CA 20th), (202) 225-3341
  • Cuellar, Henry  (TX 28th), (202)  225-1640
  • Dahlkemper, Kathleen A. (PA 3rd), (202) 225-5406
  • Davis, Lincoln (TN 4th),(202) 225-6831
  • Donnelly, Joe  (IN 2nd), (202) 225-3915
  • Ellsworth, Brad  (IN 8th), (202) 225-4636
  • Giffords, Gabrielle  (AZ 8th), (202) 225-2542
  • Gordon, Bart  (TN 6th), (202) 225-4231
  • Griffith, Parker  (AL 5th), (202) 225-4801
  • Harman, Jane  (CA 36th), (202) 225-8220
  • Herseth Sandlin, Stephanie  (SD At Large), (202) 225-2801
  • Hill, Baron P.  (IN 9th), (202) 225-5315
  • Holden, Tim  (PA 17th), (202) 225-5546
  • Kratovil, Frank Jr. (MD 1st), (202) 225-5311
  • McIntyre, Mike  (NC 7th), (202) 225-2731
  • Marshall, Jim  (GA 8th), (202) 225-6531
  • Matheson, Jim  (UT 2nd), (202) 225-3011
  • Melancon, Charlie  (LA 3rd), (202) 225-4031
  • Michaud, Michael H. (ME 2nd), (202) 225-6306
  • Minnick, Walt  (ID 1st), (202) 225-6611
  • Mitchell, Harry E.  (AZ 5th), (202) 225-2190
  • Moore, Dennis  (KS 3rd), (202) 225-2865
  • Murphy, Patrick J.  (PA 8th), (202) 225-4276
  • Nye, Glenn C.  (VA 2nd), (202) 225-4215
  • Peterson, Collin C.  (MN 7th), (202) 225-2165
  • Pomeroy, Earl  (ND At Large), (202) 225-2611
  • Ross, Mike  (AR 4th), (202)  225-3772
  • Salazar, John T.  (CO 3rd), (202) 225-4761
  • Sanchez, Loretta  (CA 47th), (202) 225-2965
  • Schiff, Adam B.  (CA 29th), (202) 225-4176
  • Scott, David  (GA 13th), (202) 225-2939
  • Shuler, Heath  (NC 11th), (202) 225-6401
  • Space, Zachary T. (OH 18th), (202) 225-6265
  • Tanner, John S.  (TN 8th), (202) 225-4714
  • Taylor, Gene  (MS 4th), (202) 225-5772
  • Thompson, Mike  (CA 1st), (202) 225-3311
  • Wilson, Charles (OH-06), (202) 225-5705

We also encourage you and others to join the discussion about these and other health care reform proposals and concerns by joining the Coalition for Responsible Health Care Reform Group on Linkedin, registering to receive these updates here The author of this article, Curran Tomko and Tarski LLP Health Care Practice Chair Cynthia Marcotte Stamer has extensive experience advising and assisting health industry clients and others about a diverse range of health care policy, regulatory, compliance, risk management and operational concerns.  You can get more information about her health industry experience here.  

If you need assistance evaluating or formulating comments on the proposed reforms contained in the House Bill or on other health industry matters please contact Cynthia Marcotte Stamer, CTT Health Care Practice Group Chair, at cstamer@cttlegal.com, 214.270.2402 or your other favorite Curran Tomko Tarski LLP attorney. 

Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on our electronic Solutions Law Press Health Care Update publication available here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please register to receive this Solutions Law Press Health Care Update here and be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. You can access other recent updates and other informative publications and resources provided by Curran Tomko Tarski LLP attorneys and get information about its attorneys’ experience, briefings, speeches and other credentials here.

For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

©2009 Cynthia Marcotte Stamer.  All rights reserved.


HHS, Sesame Workshop, & Ad Council National Ad Campaign Reminds Americans Of Need to Continue To Protect Against H1N1 (Swine Flu) Virus

June 3, 2009

Declining press attention on the H1N1 flu virus (swine flu) pandemic does not mean the need for precautions is over for Americans, their employers, schools and other community organizations.

The Department of Health and Human Services (HHS),the Ad Council and Sesame Workshop, the nonprofit educational organization behind Sesame Street, recently launched a national public service advertising campaign designed to encourage American families and children to take steps to protect themselves from the 2009 H1N1 flu virus (swine flu) and continue to practice healthy habits.  The announcement of the campaign signals continuing concerns by government and other health experts that the swine flu pandemic may continue to circulate or even worsen unless proper precautions are taken.

The 2009 H1N1 flu virus is a new flu virus of swine origin that was first detected in April 2009. While press attention has died down in recent weeks, the virus is spreading from person-to-person, sparking a growing outbreak of illness in the U.S. and internationally. To date, over 5,700 cases have been reported in the United States and there are nine deaths associated with the novel H1N1 infection. Experts believe that the 2009 H1N1 flu spreads in the same way that seasonal influenza viruses spread — primarily through the coughs and sneezes of people who are sick with the virus.

HHS Secretary Kathleen Sebelius unveiled the campaign at the HHS/Department of Education Childcare Center in Washington, D.C. The PSAs will be distributed nationwide and will be supported in airtime donated by television stations. 

The new PSA campaign focuses on the importance of providing parents, teachers and children with accurate information about how to practice healthy habits, highlighting proper hand-washing and simple everyday actions that lead to staying healthy and keeping germs away. Created by Sesame Workshop, the television PSAs encourage audiences to visit http://www.cdc.gov to get more information on how to stay healthy. The PSAs are an extension of Sesame’s Healthy Habits for Life initiative, which helps young children and their caregivers establish an early foundation of healthy habits.  As part of HHS/Ad Council campaign, Sesame Workshop produced a television PSA featuring Sesame Street’s Elmo and Gordon explaining the importance of healthy habits such as washing your hands, avoid touching your eyes, nose and mouth and sneezing into the bend of your arm.

The PSAs are part of an initiative to provide practical steps recommended by HHS’ Centers for Disease Control and Prevention (CDC) to help prevent the spread of the flu virus and other infectious disease, including:

Avoid close contact with people who are sick.

Keep your distance from others if you are sick.

When possible, stay home from work, school, and errands when you are sick, and don’t send your children to childcare or school if they are sick.

Cover your mouth and nose when coughing or sneezing.

Wash your hands often with soap and water, especially after coughing and sneezing.

Avoid touching your eyes, nose and mouth.

Cynthia Marcotte Stamer and other attorneys practicing with Curran Tomko Tarski LLP are experienced advising and representing health industry clients, community organizations and others about federal and state regulatory, reimbursement, grant, enforcement and other health industry risk management and compliance concerns.   If you have questions about these matters, please contact Ms. Stamer at 214.270.2402.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. 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 or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.


HHS, Sesame Workshop, and the Ad Council Launch National Campaign to Protect Families from H1N1 (Swine Flu) Virus and Stay Healthy

June 3, 2009

The Department of Health and Human Services (HHS),the Ad Council and Sesame Workshop, the nonprofit educational organization behind Sesame Street, recently launched a national public service advertising campaign designed to encourage American families and children to take steps to protect themselves from the 2009 H1N1 flu virus (swine flu) and continue to practice healthy habits.  The announcement of the campaign signals continuing concerns by government and other health experts that the swine flu pandemic may continue to circulate or even worsen unless proper precautions are taken.

The 2009 H1N1 flu virus is a new flu virus of swine origin that was first detected in April 2009. While press attention has died down in recent weeks, the virus is spreading from person-to-person, sparking a growing outbreak of illness in the U.S. and internationally. To date, over 5,700 cases have been reported in the United States and there are nine deaths associated with the novel H1N1 infection. Experts believe that the 2009 H1N1 flu spreads in the same way that seasonal influenza viruses spread — primarily through the coughs and sneezes of people who are sick with the virus.

HHS Secretary Kathleen Sebelius unveiled the campaign at the HHS/Department of Education Childcare Center in Washington, D.C. The PSAs will be distributed nationwide and will be supported in airtime donated by television stations. 

The new PSA campaign focuses on the importance of providing parents, teachers and children with accurate information about how to practice healthy habits, highlighting proper hand-washing and simple everyday actions that lead to staying healthy and keeping germs away. Created by Sesame Workshop, the television PSAs encourage audiences to visit http://www.cdc.gov to get more information on how to stay healthy. The PSAs are an extension of Sesame’s Healthy Habits for Life initiative, which helps young children and their caregivers establish an early foundation of healthy habits.  As part of HHS/Ad Council campaign, Sesame Workshop produced a television PSA featuring Sesame Street’s Elmo and Gordon explaining the importance of healthy habits such as washing your hands, avoid touching your eyes, nose and mouth and sneezing into the bend of your arm.

The PSAs are part of an initiative to provide practical steps recommended by HHS’ Centers for Disease Control and Prevention (CDC) to help prevent the spread of the flu virus and other infectious disease, including:

  • Avoid close contact with people who are sick.
  • Keep your distance from others if you are sick.
  • When possible, stay home from work, school, and errands when you are sick, and don’t send your children to childcare or school if they are sick.
  • Cover your mouth and nose when coughing or sneezing.
  • Wash your hands often with soap and water, especially after coughing and sneezing.
  • Avoid touching your eyes, nose and mouth.

Cynthia Marcotte Stamer and other attorneys practicing with Curran Tomko Tarski LLP are experienced advising and representing health industry clients, community organizations and others about pandemic planning and other disease management and health industry risk management and compliance concerns.   If you have questions about these matters, please contact Ms. Stamer at 214.270.2402.

For More Information

We hope that this information is useful to you. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 270-2402 or via e-mail to cstamer@CTTLegal.com.

You can review other recent updates and other publications by Ms. Stamer and other helpful health care resources and additional information about Ms. Stamer and her experience, see Stamer Health Industry Experience. 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 or updating your profile at here or by registering to participate in the Solutions Law Press Health Care Update blog at Health Care Update Blog. For important information concerning this communication click here.


Newly Enacted FERA Amendments To False Claims Act Signal New Risks For Health Industry Organizations & Others

May 26, 2009

Health care providers and other parties covered by the False Claims Act, 31 U.S.C. § 3729 (FCA), now face expanded whistleblower and other liability under amendments to the FCA enacted under the “Fraud Enforcement and Recovery Act of 2009”(FERA).  The amendments increase the likelihood both that whistleblowers will turn in health care providers and other individuals and organizations that file false claims in violation of the FCA and the liability that violators may incur for that misconduct.

Signed into law by President Obama last Wednesday (May 20, 2009), FERA immediately upon enactment:

  • Amends the whistleblower protections afforded to employees, contractors and agents who suffer retaliation for taking lawful efforts to stop violations of the FCA and to make it easier for those individuals to pursue retaliation claims;
  • Expands liability under for making false or fraudulent claims to the federal government under the FCA;
  • Applies liability under the FCA for presenting a false or fraudulent claim for payment or approval (currently limited to such a claim presented to an officer or employee of the federal government); and
  • Requires persons who violate such Act to reimburse the federal government for the costs of a civil action to recover penalties or damages 

Concurrent with President Obama’s signature of FERA into law, the U.S. Departments of Justice (DOJ) and Health & Human Services (HHS) jointly announced the expansion of federal health care fraud enforcement efforts.  On May 20, 2009, HHS and DOJ announced their activation of a new interagency team to combat health care fraud highlights the increasing need for health care providers and health plans to review and tighten their practices for dealing with Medicare and other federal programs to survive scrutiny under federal health care fraud initiatives.  Coupled with FERA and the already significant increase in federal health care fraud detection and enforcement activities in recent years and a proposed 50 percent increase in funding for these activities included in President Obama’s Fiscal Year 2010 budget, health care providers and payers must be prepared to defend their dealing with Medicare, Medicaid and other federal health care programs.

The expanded protections afforded under FERA to whistleblowers and others suffering retaliation for opposing or reporting illegal actions can be expected to serve as a key tool in these efforts. These new retaliation safeguards are designed further increase the likelihood that employees and other insiders will help government officials ferret out false claims and other fraud. Specifically with regard to retaliatory action claims Section 4(d) of FERA amends 31 U.S.C.§ 3730(h) to provide for the recovery of “all relief necessary to make that employee, contractor, or agent whole” where that individual is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts he does or takes on behalf of an individual in furtherance of other efforts to stop a violation of the FCA. 

FERA expressly provides that relief to victims of retaliation will include “reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.” 

The FERA amendments to the FCA, the new TEAMS enforcement effort announced simultaneously with its signature into law mean that health care industry organizations and others covered by the FCA must implement appropriate fraud prevention, detection, redress and other procedures to help defend against possible FCA or other health care fraud claims and investigations.

The attorneys at Curran Tomko Tarski, LLC have extensive experience representing and advising health industry and other clients against FCA and other federal health care and fraud laws. 

For More Information

We hope that this information is useful to you. If you need assistance with auditing or defending health care fraud concerns or other health care compliance, risk management, transactions or operations concerns, please contact Curran Tomko Tarski LLP Partners Cynthia Marcotte Stamer at (214) 270-2402, CStamer@CTTLegal.com; Michael T. Tarski at (214) 270-1420 or MTarski@CTTLegal.com; Edwin J. Tomko at (214) 270-1405 or ETomko@CTTLegal.com.

You can review other recent health care and internal controls resources and additional information about the health industry and white collar experience of the Curran Tomko Tarski LLP attorneys at http://www.CTTLegal.com. 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 or updating your profile at CTTLegal.com or e-mailing this information to CStamer@CTTLegal.com.


HIPAA Complaint Basis For Texas Whistleblower Claim

April 4, 2009

In a March 19, 2009 ruling, the U.S. District Court for the Northern District of Texas recently recognized that the Texas Whistleblower Act prohibits health care organizations run by the State of Texas from retaliating against employees for making good faith complaints of violations of the Privacy Rules of the Health Insurance Portability Act (“HIPAA”).Nevertheless, the court dismissed the wrongful discharge lawsuit brought by a former Terrell State Hospital security guard who alleged he was wrongfully fired for complaining to the U.S. Department of Health and Human Services Office of Civil Rights (”OCR”) that the Hospital violated the HIPAA Privacy Rules because the plaintiff had failed to present sufficient proof that he was terminated in retaliation for filing a HIPAA complaint.

 

Illustrative of a growing number of state law retaliatory discharge claims brought be employees claiming to have been retaliated against for complaining about alleged violations of HIPAA’s Privacy Rules, Faulkner v. Department of State Health Servs., 2009 U.S. Dist. LEXIS 22419 (N.D. Tex. Mar. 19, 2009), involved claims made by plaintiff Anthony Faulkner (”Faulkner”) that the Texas Department of State Health Services (”DSHS”); Terrell State Hospital; Texas DSHS Commissioner David L. Lakey, M.D.; Terrell State Hospital Superintendent Fred Hale; and Terrell State Hospital Risk Management Coordinator Clent Holmes, R.N. violated the Whistleblower Act and the First and Fourteenth Amendments by firing him seven days after he complained to OCR that Terrell State Hospital violated the HIPAA Privacy Rule by leaving admissions logs containing patient names and admission dates in a public area.

The Texas Whistleblower Act generally prohibits a state or local governmental entity from terminating or taking any other adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.See Tex. Gov’t Code § 554.002(a).While the Court affirmed that the Texas Whistleblower Act permits a public employee of the State of Texas discharged or otherwise retaliated against for complaining in good faith to OCR that his public employer or its employee violated the HIPAA Privacy Rules, the Court nevertheless granted summary judgment to the defendants.

According to the court, Faulkner’s failure to introduce evidence rebutting defendant’s affidavit that he was terminated for repeatedly violating rules requiring him to report suspected abuse of patients precluded him from proving his termination was in retaliation for his filing of the HIPAA complaint.Meanwhile, the court also ruled that Faulkner’s claims against the individual defendants should be dismissed as the Whistleblower Act only creates a cause of action against governmental entities and not their employees. Having found Faulkner’s constitutional claims also without merit, the District Court granted the defendant’s motion for summary judgment.

While the defendants were able to overcome Faulkner’s retaliatory discharge claim, the decision highlights the need for health care providers and other HIPAA covered entities to take appropriate precautions to defend against potential wrongful discharge, retaliation or other claims by employees or other service providers for complaining of possible HIPAA violations or for attempting to exercise other HIPAA-protected rights.HIPAA covered entities now should avoid engaging in actions that might unnecessarily fuel claims of retaliation.  They also should carefully document and preserve evidence necessary to demonstrate the legitimacy of their disciplinary actions on an ongoing basis.

We hope you found this information helpful. If your organization needs assistance with understanding or managing its responsibilities or liabilities under HIPAA or other health care or employment laws or wishes to inquire about HIPAA training or other services and experience of Cynthia Marcotte Stamer, please contact Ms. Stamer via e-mail at Cstamer@Solutionslawyer.net or by telephoning Ms. Stamer at 469.767.8872.You also can review other helpful resources and register to receive other updates at CynthiaStamer.com.


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