CMS Withdraws its Medicare Advantage and Part D Call Letter

On January 23, 2009, CMS announced that it is withdrawing the draft 2010 Medicare Advantage (MA) and Part D call letter, which was released January 8, 2009, “pending an opportunity for further review of the document.”  CMS said the document will be reposted on its Web site after the letter has been reviewed and any revisions are made.

 

In a prepared statement, CMS said that “[w]e recognize that MA organizations and PDP [i.e., stand-alone Prescription Drug Plan] sponsors need to have 2010 guidance available in order to prepare their bids by the statutory deadline, and therefore will post a draft reflecting any changes resulting from a review of the current draft as soon as possible.”

 

The call letter, which gives instructions to the private insurance companies that want to contract with Medicare to provide drug and health coverage in 2010, was released two weeks earlier than last year and two months earlier than the previous year.  Some groups criticized the early release. For instance, the Center for Medicare Advocacy (CMA) called the call letter “an attempt by CMS to assure continued leniency in the oversight of private plans for at least another year as a last-ditch effort to promote private MA plans.”

 

CMS will likely be reviewing the Medicare Advantage and Part D cal letter for an opportunity to increase beneficiary protections, transparency, reporting requirements, and other areas in need of oversight.

 

© 2009 Parsonage Vandenack Williams LLC

 For more information, contact info@pvwlaw.com

HHS Mandates Replacement of ICD-9 with ICD-10 Code Sets

On January 15, 2009, HHS released final rules that require the replacement of ICD-9-CM code sets with the ICD-10 code sets and implement version 5010 of the HIPAA transaction standards, which facilitate the adoption of electronic health records. The two rules work together. ICD-9 has 17,000 codes and is rapidly running out of new codes. ICD-10 is much more expansive and has 155,000 codes. The codes were scheduled to take effect in 2011, but the final rule delays the deadline for compliance until Oct. 1, 2013.

© 2009 Parsonage Vandenack Williams LLC

 For more information, contact info@pvwlaw.com

Employees Have No Absolute Right To Return To Work Following FMLA Leave

The Family and Medical Leave Act (“FMLA”) is federal legislation that gives certain covered employees the right to take unpaid leaves of absence in certain circumstances, including leave for an employee’s own serious health condition. Employees who qualify for FMLA leave may take up to twelve (12) weeks of unpaid leave during any designated 12-month period. Additionally, the FMLA is intended to provide certain return to work protection for an employee who needs to take FMLA leave. However, there are limits to this protection and it is now clear that the protection is not guaranteed.

On April 27, 2006, the federal Fourth Circuit Court of Appeals ruled in the case of Yashenko v. Harrah’s NC Casino Company LLC (“Yashenko”), that an employee desiring to return to work after completing FMLA leave has no absolute right to do so. The Court went on to determine that the decision of the employer to deny reinstatement to the complaining employee was proper under the specific circumstances presented.

In Yashenko, the Defendant managed the gaming enterprise for the Eastern Band of the Cherokee Indians. Mr. Yashenko was employed by Defendant as Manager of Employee Relations. During each of the years 2000, 2001 and 2002, Mr. Yashenko took medical leaves of absence, most of which were taken as FMLA leave. In May 2003, he requested medical leave again due to a serious health condition resulting from problems related to heart surgery. Defendant approved his request for FMLA leave.

While Mr. Yashenko was on his FMLA leave in 2003, Defendant underwent a reorganization, which had the effect of eliminating Mr. Yashenko’s position. Defendant informed Mr. Yashenko of the job elimination and encouraged him to apply for other available positions. Mr. Yashenko declined, saying that he did not feel up to it due to the medication he was taking and his doctors’ recommendations against it.

On July 21, 2003, Mr. Yashenko completed his FMLA leave and sought to return to work. But upon his return, Defendant fired him. Mr. Yashenko then filed suit against his employer in federal court claiming a violation of his right to reinstatement under the FMLA. He also claimed that he was retaliated against for engaging in the protected activity of taking FMLA leave.

First, the court discussed Mr. Yashenko’s claim that the FMLA establishes an automatic right to job reinstatement following leave. The language in one part of the FMLA says that on return from FMLA leave, an employee is “(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” Mr. Yashenko argued that the words “to be restored” from this section of the FMLA is plain language sending a clear message that mandates job restoration.

Addressing Mr. Yashenko’s argument, the court examined another provision of the FMLA and the regulations established by the Secretary of Labor interpreting the Act. For instance, the court noted that 29 USC § 2614(a)(3)(B) provides that “nothing in this section shall be construed to entitle any restored employee to. . .any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave.” The court found that the regulation interpreting this provision makes clear that an employee has “no greater right to reinstatement” than if the employee had been continuously employed during the FMLA leave period.

Furthermore, the court determined that “an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration of employment.” As such, the court concluded that notwithstanding Mr. Yashenko’s assertions otherwise, the right of reinstatement is not automatic following FMLA leave. The court’s decision is in line with the decisions of four other federal Circuit Courts of Appeal (i.e., the 3rd, 6th, 8th and 11th Circuits).

Mr. Yashenko also challenged Defendant’s decision to reorganize and deny him re-employment. He claimed that the alleged reasons for Defendant’s action was not legitimate and interfered with his FMLA rights, and that Defendant retaliated against him for exercising his protected right to take such leave. In regard to this claim, the court noted three main facts: (1) It was undisputed by the parties that before Mr. Yashenko’s most recent FMLA leave, the finance department had suggested a reorganization that would eliminate Mr. Yashenko’s position; (2) There had already been three restructurings involving the elimination of at least 12 other positions; and (3) Defendant continued to provide Mr. Yashenko with continued benefits until his FMLA leave was completed and offered him the chance to interview for other positions. Based on the foregoing facts, the court held that Defendant did not interfere with Mr. Yashenko’s FMLA rights and that, with respect to the retaliation claim, Mr. Yashenko did not carry his burden of proof to overcome the legitimate non-discriminatory reasons offered by defendant for its action.

The Yashenko decision provides some cover to employers in cases where the employer legitimately would have fired the employee had the employee not taken FMLA leave. One example the court gave is where an employer is planning to fire a poor performing employee but before it can do so, the employee takes FMLA leave. Another example is when the employer eliminates an entire branch of a business, which includes the position of the employee on FMLA leave.

It is very important to note that each case will be judged on its facts. If an employer is simply refusing reinstatement to an employee returning from FMLA leave for a fabricated reason, or worse yet, because the employer is upset that the employee has taken FMLA leave, the Yashenko decision will be no help to the employer. Therefore, employers must be certain that their decision to terminate an employee is the same decision they would have made had the employee not taken FMLA leave. They must also examine any documents or other records that could support (or undermine) that assertion, with specific emphasis on the timing of such records/action vs. when the employee first requested or went out on FMLA leave. Finally, employers must consider all surrounding circumstances to be sure that the decision is not misperceived and thereby ruled to be a violation of the employee’s FMLA rights.

© 2009 Parsonage Vandenack Williams LLC 

 For more information, contact info@pvwlaw.com

HHS Releases Guidance on Sharing Patient Information With Family and Friends

On September 16, 2008, the HHS Office for Civil Rights (“OCR”) released new guidance on how to interact with a patient’s family or friends without violating the HIPAA privacy regulations.  OCR released two separate guides on this issue: one for patients and one for providers.

The guides are in a question-and-answer format and address common and sometimes confusing situations about when a physician or other medical staff member can share information on a patient’s condition with his or her family members.  For instance, the provider’s guide asks, “If the patient is present and has the capacity to make health care decisions, when does HIPAA allow a health care provider to discuss the patient’s health information with the patient’s family, friends, or others involved in the patient’s care or payment for care?”  The guide states that the provider may have such discussions if the patient agrees.  “A health care provider also may share information with these persons if, using professional judgment, he or she decides that the patient does not object. In either case, the health care provider may share or discuss only the information that the person involved needs to know about the patient’s care or payment for care,” OCR says.

Another question addresses sharing information when the patient is not present or is incapacitated. “[A] health care provider may share the patient’s information with family, friends, or others as long as the health care provider determines, based on professional judgment, that it is in the best interest of the patient. When someone other than a friend or family member is involved, the health care provider must be reasonably sure that the patient asked the person to be involved in his or her care or payment for care,” it says.  ”The health care provider may discuss only the information that the person involved needs to know about the patient’s care or payment.”  Still, providers should not reveal past medical problems that are unrelated to the patient’s current condition.

The provider and patient guides are available at www.hhs.gov/ocr/hipaa/privacy.html.

 

 © 2009 Parsonage Vandenack Williams LLC

 For more information, contact info@pvwlaw.com