Health Law Advisor

Recent federal and state legislative efforts signal an increased focus on a significant and largely underappreciated public health threat – antimicrobial resistance (i.e., when a microorganism (such as a bacteria or virus) is able to resist the effects of medications such as antibiotics and antivirals, causing such medications to be ineffective). The results of a 2014 study underscore the magnitude of the threat of so-called "superbugs," estimating that the number of deaths worldwide attributable to antimicrobial resistance will reach 10 million by 2050.  By comparison, the ...

Our colleagues Adam C. Abrahms and Christina C. Rentz, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Rings In the New Year by Signaling It Will Continue Its Pro-Union Rulings.”

Following is an excerpt:

In yet another decision that exhibits the current Board’s overreaching and expansive view of its jurisdiction, the Board recently ruled that nurses who supervise and assign other hospital staff are not statutory supervisors.

A Position Expressly Created to be ...

The federal government continues to secure significant recoveries through settlements and court awards related to its enforcement of the False Claims Act (FCA), particularly resulting from actions brought by qui tam relators. In fiscal year (FY) 2016, the federal government reported that it recovered $2.5 billion from the health care industry. Of that $2.5 billion, $1.2 billion was recovered from the drug and medical device industry.  Another $360 million was recovered from hospitals and outpatient clinics.

Government Intervention Drives Recoveries

The FY 2016 FCA statistics ...

With flu season quickly approaching, health care employers may be considering mandatory influenza vaccinations for their workforce. Mandatory vaccination policies may dramatically increase patient safety, but they may also cause friction within the workforce when employees object on religious grounds to being vaccinated.

While no federal and few state statutes address the legality of enforcing mandatory vaccination policies, the EEOC and private litigants recently have moved this issue forward in the courts. Under Title VII of the Civil Rights Act of 1964 (“Title ...

The increased use of portable electronic devices in the workplace and the popularity of social media pose unique challenges for health care employers, particularly when the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) conflict with the NLRB’s position on policies that could infringe upon an employee’s right to engage in concerted activity under the NLRA.

HIPAA governs the use and disclosure of protected health information (“PHI”) by health care providers. HIPAA violations may occur when health care employees post ...

In recent years, unions representing employees in health care facilities have engaged in activities during contract negotiations to pressure employers into settling, while limiting the cost of engaging in strike activity in the form of lost wages to union employees. The two most common forms of such activity used by unions are informational picketing, and short, sometimes intermittent, strikes, usually lasting only a day or two.

Informational Picketing

Informational picketing is yet another issue on which the NLRB has recently overturned precedent, in this case favoring union ...

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

• Impact of the Defend Trade Secrets Act
• States Called to Ban Non-Compete Agreements
• Paid Sick Leave Laws Expand
• Transgender Employment Law
• Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
• NLRB Addresses Joint Employment
• NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, "Top Five Employment, Labor & Workforce Management Issues of 2016."

The Medicare Payment Advisory Commission ("MedPAC") met in Washington, DC, on December 8-9, 2016. The purpose of this and other public meetings of MedPAC is for the commissioners to review the issues and challenges facing the Medicare program and then make policy recommendations to Congress. MedPAC issues these recommendations in two annual reports, one in March and another in June. MedPAC's meetings can provide valuable insight into the state of Medicare, the direction of the program moving forward, and the content of MedPAC's next report to Congress. At the annual December ...

In 2016, the populist trend in American politics was an undeniable factor behind Trump's election victory as well as the ascendancy of Bernie Sanders and Elizabeth Warren within the Democratic Party.  During upcoming months, industry observers will be looking for signs as to whether drug pricing is an area in which both parties can agree on instituting significant legislative action at the state and federal levels.  The nature and shape of any such reforms will be highly consequential for the U.S. pharmaceutical industry, which has served as a prime source of innovation in medicine.  ...

While Section 1557 imposes significant nondiscrimination requirements on “Covered Entities” (as discussed in the article above), most employers are not “Covered Entities” as defined under the final rule (“non-covered employers”). The impact of Section 1557 on non-covered employers depends on whether their respective group health plans are insured or self-insured and the level of involvement in the plans by insurance issuers that are “Covered Entities” under the final rule.

Non-Covered Employers with Fully Insured Group Health Plans

Nearly all health ...