‘WELLNESS’ PROGRAM CHALLENGE

Some company ‘wellness’ programs are being challenged by the EEOC and other government agencies and may violate other federal labor laws, such as the Americans with Disability Act, or Genetic Information Nondiscrimination Act.  Some of these wellness programs do biometric testing, and there is no indication that this testing complies with ADA or GINA.  In addition, the programs effectively penalize those who refuse to participate because of fears about violations of the Disability Act or GINA.

Originally, wellness programs were encouraged to provide incentives for employees to adopt “healthy” life habits.  Critics indicate that companies such as Honeywell and others are using the wellness programs to penalize those that do not comply rather than reward certain behaviors.

One of the hopefully positive results of the wellness program challenges will be some definition, for example: can a wellness program promote and reward a program of vegan eating and penalize those who eat meat? How much can someone be rewarded, or in the alternative, penalized for what one company believes is healthy behavior when another company punishes such behavior?  The answers are out there, hopefully.

OOPS!

We had reported that a number of companies planned in 2015 to use the large employer insurance provisions to provide a plan to their employees that did not cover hospital stays.  The use of the “Essential Health Benefit” provision in a way that the rule makers had not intended has been caught, and the rule makers indicate that they will change the essential benefit rule so that providing hospitalization benefits is required under all plans.  The shape of this oops correction remains to be seen.  Will there be a requirement for hospital coverage, but still allow a visit limit?  Will it allow these plans to require employees to choose between preventative care and acute care?  Time will tell.

RAPE VICTIM DISTRESS CLAIM

A patient admitted to a hospital, apparently unconscious and under the influence of a date rape drug, was treated by hospital staff members.  While the hospital’s employees noted vaginal trauma, the physician did not complete a rape kit, or preserve possible evidence of rape.  Unfortunately, the hospital staff members treating the patient, apparently made a number of derogatory remarks about the patient.

The patient later filed suit against the hospital for intentional infliction of emotional distress, and a breach of care duty.  The breach of care duty was dismissed, and the question arose as to whether the remarks made during the treatment were entitled to review under medical malpractice laws, or whether the separate tort of intentional infliction of emotional distress for those remarks existed.  The Indiana appellate court found that the derogatory remarks were unrelated to the medical treatment, and were simply made to disparage the patient.  The court ruled that the statements made to the patient were not caused or necessitated by patient healthcare provider relationships, and were not necessary to diagnosis or treatment.  In essence, the court found that the statements by the staff members were not made with the purpose or intent to promote the patient’s health or provide curative or salutary treatment.

While the facts of this case are hopefully rare, hospital employees should be reminded to avoid any disparagement of patients at any time.

ANTHEM FINANCIAL RESULTS

Anthem, the overwhelmingly dominate health insurance provider in Indiana, reported operating revenue of over $18 billion in the latest quarter.  For the first 9 months of 2014, this means that Anthem’s operating revenue was over $54 billion, and that their operating gains exceeded $3.5 billion.

Also included in Anthem’s press release is information indicating that medical enrolment increased by nearly two million members over one year earlier.  Anthem also reports regularly on its days and claims payable, an interesting view of their payment strategy.  The current days/claims payable is reported as 44.8.  However, there are no definitions attached, so it is impossible to determine whether that includes or excludes disputed claims by payees.

MEDICAL IDENTIFY THEFT UP, UP AND UP

Reports indicate that the number of data breaches in the medical sector quadrupled over the last five years.  In the last reporting year (2013), the medical industry experienced more breaches than any other.  What is behind this?  Many factors, but they include the increasing digitization of health information (think EHR), the formation of large groups of patient health data in one location (due to health exchanges), and perhaps a growing lack of respect for other people’s privacy.  This information is useful to criminals, and may fetch a higher price on the black market than some financial information.  It also makes sense when you consider the sheer number of targets out there with this information.  Many of these targets are not hardened electronic fortresses.  When even large companies and government units suffer from hackers, relatively smaller hospitals, practice clinics and EMR healthcare data centers appear to be relatively easy prey.

Reports indicate that the thieves are breaking down the information in these files by perhaps selling the social security number to one person or group for filing social security claims, using other information to fraudulently obtain healthcare for persons who do not have insurance, using information to apply for visa’s and passports and eventually, taking what is left over, and selling to data brokers who might then market it to pharmacy companies or others who may want to target those with particular illnesses, and who can’t or won’t obtain such information lawfully.

The direct threat to patients is very real.  If someone else assumes your healthcare identity and changes your medical record, blood type, susceptibility to allergies and other information, your immediate treatment, particularly in a trauma situation, may be incorrect and harm the patient.

What to do?  Drastically ramp up security, have all records encrypted and install a practice and hospital wide culture of protecting your patients’ information and have a real, ongoing compliance and review program.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.