Author Archives: Finney Law Firm

As you may have heard, there was some kind of election on November 8th.  Some students at America’s premier colleges were so dismayed by what happened at the Electoral College that they plunged into a deep despair.  Snapping into action, the universities created “safe havens” where these leaders-of-tomorrow could gather to share their anguish.  To help the students cope, the safe havens were equipped with puppies.  Little dogs with floppy ears and wagging tails.  This is where the landlords in the audience need to stop laughing.

The Fair Housing Amendments Act of 1988 prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of a handicap.”  Laws in Ohio and Kentucky generally conform to the federal standards on this topic.  Discrimination can include a refusal to make reasonable accommodations in rules, policies, or practices that would enable that person to use and enjoy a dwelling.

Enter the “emotional support animal.”  An emotional support animal is an animal that alleviates one or more symptoms of a disabled person.  These are not “service animals” such as a guide dog for the visually impaired.  An emotional support animal needs no special training and need not possess any skills.  Sounds like my Westie.  The emotional support animal essentially helps the disabled person just by being there.  Unlike “service animals,” which must be a dog or miniature horse under the Americans with Disabilities Act, an emotional support animal can be any kind of critter.  That said, one might question the ability of a snake to offer emotional support and wellbeing.  (Don’t be sending me hate mail, you ophiophilists out there).

As a landlord, you may get a request for a waiver from your “no pet” policy from an existing tenant or as part of a new rental application.  To be entitled to that reasonable accommodation, the tenant must demonstrate that they suffer from a disability.  Generally speaking, a disability is a physical or mental impairment that substantially limits one or more of such person’s major life activities.  A “physical or mental impairment” includes the usual suspects such as visual, speech and hearing impairments.  Some landlords are surprised to learn that impairments can also include cancer, heart disease, diabetes, HIV+, and alcoholism.  “Major life activities” are typically those activities of central importance to daily life, e.g., seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, and reproducing.  The impairment must limit the major life activity to a “significant” or “large” degree.

Landlords are entitled to seek information from an allegedly disabled person to the extent necessary to establish the existence of the disability.  If the disability is readily apparent, you don’t get to ask about it.  Landlords are also entitled to ask for information that shows the relationship between the person’s disability and the need for the requested accommodation.  An accommodation is only “necessary” if there is a connection between the requested accommodation and the individual’s disability.  The disabled person must demonstrate a disability-related need for the animal.  You are entitled to information that shows how the reasonable accommodation will enhance a disabled tenant’s quality of life.

The kind of information provided depends on the circumstances.  In most cases, the tenant with a legitimate disability can provide a statement from a doctor.  On the other hand, a tenant might fully satisfy the obligation to demonstrate a disability by showing paperwork that they receive Supplemental Security Income or Social Security Disability Insurance benefits before reaching age 65, i.e., the federal government has made the disability determination for you and you don’t need any additional information.   This inquiry need not be highly intrusive.   The law balances the landlord’s need for information to evaluate the request with the tenant’s right to privacy.  Accordingly, it would likely be foolish to deny a request for a reasonable accommodation on the grounds the tenant didn’t release all their medical records.  Whatever information you get, keep it confidential.

The landlord must act promptly.  If you delay making a decision, that delay may be deemed a denial.  Likewise, not making a decision constitutes a denial.  There is no particular formula for making a request for a reasonable accommodation.  Don’t deny the request on some technicality.  The request doesn’t have to be in writing.  The tenant doesn’t have to fill out a particular form the landlord drew up.  The tenant doesn’t have to apply on Fridays between 3 and 5 o’clock.  The tenant doesn’t have to say the magic words “reasonable accommodation” or “Fair Housing Act.”  Denials on a technicality won’t hold water.

Theoretically, you can deny a requested accommodation if it constitutes an undue financial or administrative burden.  This is a tough sell in the context of an emotional support animal.  If you have rental property, letting a tenant have a dog is unlikely to put you in the red.  You can, however, deny a request for reasonable accommodation if the animal poses a danger to other tenants.  Just because your tenant, a rabid Bengals fan, is distraught over his team’s loss to the Giants, you don’t have to grant his request to keep a tiger cub in his apartment.

If the request for a reasonable accommodation is legitimate, be aware that you can’t require an additional “pet deposit” or impose any other charge or fee for granting the request.  The tenant, however, remains responsible for any damage caused.  The emotional support animal is not given cart blanche to tear up your unit.  You can’t require the animal to wear anything to identify it as an emotional support animal.  And be careful about what you say to others.  The tenant next door may come up to you saying “Mr. Smith has a dog.  Why can’t I have a cat?”  Do not disclose Mr. Smith’s disability to the other tenant.  Coach your employees to say something neutral: “Your lease says ‘no pets.’  If you have grounds for a request under the Fair Housing Act, submit it to me in writing.”

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to work with you.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

• posted: Sep. 28, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Janie Ratliff-Sweeney

Those practitioners who are approved to treat up to 275 patients addicted to opioids with suboxone must take heed of the new reporting rule that goes into effect October 27, 2016.  The new reporting rule requires doctors who are authorized to treat the higher patient limit of over 100 (but not in excess of 275 patients) with suboxone to submit to the Substance Abuse and Mental Health Services Administration (“SAMHSA”) on an annual basis certain information related to being approved to treat the higher number of patients.

A summary of the annual reporting requirements is as follows:

• The annual report must be submitted within 30 days following the anniversary date of the practitioner’s request for patient limit increase approval.
• The annual report must contain the following information:
• The annual caseload of patients by month;
• Number of patients provided behavioral health services and referred to behavioral health services; and,
• Features of the practitioner’s diversion control plan.

The rule also permits SAMHSA to check reports it receives from the practitioners prescribing under the higher patient limit against other data sources to determine whether discrepancies exist and, if discrepancies are found, the practitioner may be required to submit additional documentation.

Lastly, failure to submit the reports (or deficiencies in the reports submitted) may be deemed a failure to satisfy the requirements for the patient limit increase and may subsequently result in SAMHSA’s approval for that practitioner to treat an increased number of patients to be withdrawn.

Janie is a member at Hemmer DeFrank Wessels. She has helped numerous health care providers in Kentucky and Ohio stay compliant with new and existing laws and regulations. You can reach Janie at [email protected].

 

When I was a little kid on vacation in Virginia Beach in 1961.  I saw a public fountain marked “Colored Water.”  I ran up to use it, expecting a rainbow to flow out of the faucet.  But it was just regular water, cool and clear.  I thought it was false advertising.  My mother had to explain to me what it really was.  Didn’t understand it then.   Don’t understand it now.

Racism isn’t out in the open now the way it was in my youth.  The hate is more subtle.  Since the events in Ferguson, Missouri, much has been written about encounters between black people and white police officers.  Determining a person’s motivation and intent is difficult in a factually complex setting involving decisions affecting life and death that have to be made in split-seconds.  But what about decisions that are made over a period of weeks or months at your local zoning board?

Naturally, your local zoning board is not promulgating ordinances that openly discriminate against people of color.  Some zoning boards have tried to achieve that objective by enacting zoning which targets the poor.  Statistically, people of color make up a greater portion of low-income groups, as compared with their percentage representation in the public at large.  For the modern discriminator then, attacking the poor where they live and shop seems an attractive way to achieve an unlawful goal.  A zoning board with discriminatory intent might, for example, place limits on the number of apartments or multi-family dwellings in its jurisdiction or create zones where the kinds of retail business that serve the low-income community would be prohibited.

Zoning boards who engage in this kind of discrimination know that the deck is stacked in their favor.  Typically, an ordinance enjoys a presumption of validity.  The person contesting the ordinance has the heavy burden of showing “beyond fair debate,” that the zoning classification denies them an economically viable use of their land without substantially advancing a legitimate interest in the health, safety or welfare of the community.  Columbia Oldsmobile, Inc.  v. Montgomery (1990), 56 Ohio St. 3d 60, 62, 564 N.E.2d 455, 457, certiorari denied (1991), 501 U.S. 1231, 111 S. Ct. 2854, 115 L. Ed. 2d 1022.  The zoning board also knows that the legal battle is expensive.  The people adversely affected by the ordinance are unlikely to have the resources necessary to bring that fight.

When affected property owners, whether aggrieved individuals or a business, do mount that fight, they often find a sympathetic ear at the courthouse.  Regardless of the presumption, a zoning ordinance must still bear a real and substantial relation to the public health, safety, morals or general welfare to advance a legitimate governmental interest.  Westlake v. Given (May 12, 1983), Cuyahoga App. No. 45407.  A zoning official may find it awkward trying to explain to a judge how keeping poor people from residing and shopping in the community advances the public welfare.  A judge in New Jersey noted the cruel irony of these discriminatory efforts, i.e., that the communities have courted industries to move there yet enact laws making it impossible for the lower paid employees of those industries to live in the community where they work.

The fact that an ordinance does not expressly target the poor or people of color will not save it from judicial scrutiny.  Judges have developed a nose for discrimination and will sniff it out.  When they find it, they strike it down as repugnant.  In July, for example, a federal court struck down a North Carolina law, saying its facially-neutral provisions deliberately “target African-Americans with almost surgical precision” in an effort to depress black turnout at the polls.  A Wisconsin law that sharply restricted the locations and times at which municipal voters could cast their ballots was struck down as an obvious effort to hamper voting in neighborhoods whose residents were predominantly black.  Courts are willing to look behind the words of the ordinance to find the real intent.

Nor can zoning boards take refuge in the defense that they are implementing the will of the people of the community.  In many situations, the zoning board may be relying on sentiments expressed by residents in a survey used to develop a “master plan.”  Americans are entitled to have opinions, even discriminatory ones.  Unlike the man in the street, however, the zoning board is an arm of the government and must adhere to a higher standard, a constitutional standard.  The zoning board, as a steward of the community and its future, cannot pander to the sentiments of residents who would exclude people they consider “low class” or “undesirable.”  If zoning boards shirk their duty and adopt the prejudices of some residents, that racially-motivated ingredient will stain the ordinance and remain there for a court to wring it out.

In Warth v. Seldin, Supreme Court Justice Douglas wrote that “the American dream teaches that if one reaches high enough, and persists, there is a forum where justice is dispensed.”  Fortunately, courts are available in Ohio and Kentucky where the light of day can expose thinly-veiled efforts to discriminate against the poor and people of color.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

Dean Wormer thought probation made sense for the Delta Tau Chi fraternity.  Many companies think a probationary period also makes sense in the employment context.  Employers who share that philosophy will create a probationary period—30 days, 6 months or a year, depending on the kind of business, the employer’s needs, etc.  During that period, a new employee is “on probation.”  Some employers will also create a probationary period in a special instance later in the employment.  This special period might arise, for example, as part of a disciplinary process, allowing the company to send a message that the employee is on thin ice.  In other circumstances, an employer might establish a probationary period when an employee embarks on a new career path, perhaps shifting from the engineering department to marketing, or being assigned supervisory responsibilities.

For all the good you can say about probationary periods, I don’t like ’em.

When you ask an employer why they like a probationary period, the typical response you get is along the lines of: “Well, if the employee is not working out or is just not a good fit for us, we can just let the employee go and there’s no big headache about it because it’s done during the probationary period.”  There’s two big problems with this, right off the bat.

First, the odds are the employer and employee may have opposite impressions of the probationary period.  The employer thinks he can fire the employee with no questions asked.  The employee, on the other hand, is apt to think “Hey, I’m a probationary employee because I’m new.  I’m going to be getting lots of coaching and training in this six month period.  Because the company knows I’m new, they know I’m going to make some mistakes in the beginning as I learn the ropes.  I’m not going to be punished for making mistakes, as long as I learn from them and improve.”

Both points of view are reasonable.  Hopefully, the company has set out its probation program in detail in the Employee Handbook or some other formal, written policy.  Frequently, the necessary guidance is not there in black and white.

Second, and perhaps more important, the company that uses a probationary period puts its “at-will” employment policy at risk.  The “at-will” employment doctrine reflects the concept prevailing in Ohio and Kentucky that an employee can be discharged—or quit—for any legally permissible reason without liability.  When a company makes an implied promise that is inconsistent with the “at-will” concept, that defense may be lost.  Here, the argument is “I could be fired during the probationary period without any cause.  Therefore, once I complete the probationary period, the employer can only fire me ‘for cause.’”

With that in mind, the employer who wants to discharge an employee with “no big headache” simply needs to understand that she can do that right now!  Naturally, we’re not talking about discharging someone for an impermissible reason, e.g., race, creed, etc.  But if John is a slow learner, or Mary is not a self-starter, the company is not legally obliged to carry them on the payroll.

When a company has a 90-day probationary period and discharges an employee on Day 145, the employee may argue: “There was no basis for firing me.  If the company wanted to fire me without cause, they should have done it while I was on probation.  Since they didn’t, and they have no reason now, I can only infer that my employment was terminated because of my [insert your favorite constitutionally-protected class here].”  If you want to know if your company is vulnerable to this kind of attack, ask yourself “What is the difference between an employee on Day 89 and Day 91?”  If you don’t know the answer—and the answer isn’t clearly written down somewhere—you may be at the mercy of an employee claiming their discharge was pretextual.  At a minimum, you may have to spend a lot of money convincing someone that the discharge was lawful.

On the flip side, a company that discharges an employee during a probationary period is not immune from claims that the discharge was discriminatory.   The fact that the discharge occurred during probation is no shield against claims of unlawful discrimination or retaliation for the exercise of a statutory right.  Given that there is no real “he-was-on-probation” defense, the value of having a class of probationary employees in the workforce is dubious.

Some employers will object to these ideas.  These folks will say: “You need to see how a person performs in the workplace before you can make a judgment as to whether they can be a valuable, long-term employee.”  To them, I say that your probationary employee is on his best behavior.  That behavior is going to change on Day 91.  Once probation is over, the employee will feel “I’m in!”  That’s when some employees will start to let things slide.  Probation doesn’t help you identify undesirable employees, it merely postpones the date when that behavior will become manifest.

Instead of establishing a probationary period, take more time in the hiring process.  If a reference doesn’t return your five phone calls, there’s a message there.  If you can’t verify key facts on a resume, take it as a sign.  If the applicant leaves important questions blank, consider it an omen.  Instead of putting the company’s at-will shield at risk, invest some more time in screening the applicants up front.

The probationary period’s utility in a disciplinary context does not justify the risks.  Consider the employer who says: “Pete, you’ve been late four times in the last two weeks.  I’m not going to stand for it anymore.  You’re on probation for 30 days.  If you’re late again, you’re out the door.”  Of course, Pete shows up on time every day during the probation period.  And just as predictably, Pete shows up half an hour late on Day 35.  You drop the boom.  What does Pete say?  “Oh, no you don’t.  I completed my probation.  That wiped the slate clean.  You have to start over again and put me on probation again or give me some kind of progressive discipline.”

I’m not saying Pete will win that argument but who wants to waste the time and money fighting about it?  The sad part is that probation is not a required part of the solution.  No employment law anywhere requires any employer to put someone on probation.  The empowered employer need merely tell Pete “You’ve been late four times in the last two weeks.  You’re on notice, buddy.  Be late again at your peril.”  Then, if Pete is late seven days later—or 37 days later—the employer can make a decision without worrying about whether it’s a probation violation.  Besides, who wants to create the paperwork to establish a probation calendar, and then monitor that calendar?

If despite these points, you feel that a probationary employment period meets your organizational needs, take precautions to ensure it can be defended.  Carefully review your Employee Handbook to confirm that it spells out the details of your program with precision.  Underscore that the existence of the probationary period does not alter the at-will character of the post-probation employment.  You may also want to create a form for your supervisors to use when imposing probation so that your process will be consistently applied.  Periodic supervisor training will also enable you to set consistent ground rules, e.g., the duration of probation, the frequency of probation, the kinds of undesired behaviors suitable for correction through probation, etc.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these and other employment law waters.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

• posted: Aug. 16, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Kyle M. Winslow

In the context of a subcontractor contract for a construction project, pay-if-paid clauses allow a general contractor to not pay a subcontractor if the owner did not pay the general contractor. While the pay-if-paid clause has not been adopted by the AIA, the typical clause will look something like this:

Subcontractor acknowledges that all payments to Subcontractor are absolutely contingent on Contractor’s receiving payment from Owner. Subcontractor expressly agrees to accept the risk that Subcontractor will not be paid for work performed by Subcontractor if Contractor, for whatever reason, is not paid by Owner for such work.

Pay-if-paid clauses are common and many states permit their enforcement. Other states deem them invalid. With the exception of 2015 unpublished Court of Appeals opinion, Kentucky law offers very little guidance on their enforceability. In Dugan & Meyers Construction Company v. Superior Steel, Inc., et al., 2015 Ky. App. Unpub. LEXIS 3 (Ky. Ct. App. Jan. 9, 2015), the Court of Appeals vacated a trial court judgment and remanded the matter for a new trial due to the trial court’s failure to explicitly instruct the jury with regard to the pay-if-paid clause in a construction contract. While the Court did not provide a detailed analysis, it stated that pay-if-paid clauses are “essentially conditions precedent to performance under the contract.” Thus, the Court of Appeals implicitly recognized the validity of these clauses.

Pay-if-paid clauses are obviously dangerous to subcontractors because they require them to assume all of the risk of owner non-payment. The existence of the clause, however, does not have to end payment discussions. A not well-known law of contracts offers subcontractors a sword in the event that a general contractor invokes the shield of a pay-if-paid clause.

The prevention doctrine is a generally recognized principle of contract law which says that if a party prevents or hinders fulfilment of a condition to his performance, the condition may be waived or excused. Stated another way, the prevention doctrine operates to void pay-if-paid clauses if the subcontractor can show that the general contractor’s actions contributed to the owner’s nonpayment.

For example, in Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717 (4th Cir. 2000, the Court found that the general contractor misled lenders regarding the cost of design changes. By misleading the lenders, the general contractor made it less likely that the lenders would arrange additional financing to cover the cost of the design changes. Thus, the general contractor hindered the fulfillment of the condition precedent (payment by owner), and the Court voided the pay-when-paid clause. While the Moore Court considered a pay-when-paid clause, the same analysis could apply to a pay-if-paid clause.

The moral to the story is that a pay-if-paid clause is not the be all and end all of a payment dispute. While Kentucky implicitly approved the clauses, they’re generally disfavored and the prevention doctrine can allow the Court an opportunity to avoid enforcement of the often unfair clauses.

Kyle M. Winslow is a trial attorney with Hemmer DeFrank Wessels PLLC. He represents construction professionals on many aspects of public and private projects, including the preparation and enforcement of mechanic’s liens and bond claims, contract negotiation, arbitration, and the litigation of contract disputes. He is licensed to practice law in Kentucky, Ohio, and Indiana.

 

Progressive discipline is the concept that an employer should impose increasingly severe consequences in response to repeated employee infractions, despite counseling and time to correct the misbehavior.  Judges and the Equal Employment Opportunity Commission (“EEOC”) love progressive discipline.  For them, it indicates efforts by the company to fit the punishment to the crime.  Progressive discipline enables the manager to take into consideration not only the offense but also the offender.

Of course, I shouldn’t use the word “punishment.”  In these politically-correct times, employees are not “punished” for misbehavior.  Rather, they are “coached” about “opportunities for improvement.”  Managers are forced to drop productive activity and stop to create a written “personal improvement plan” because employees in the modern workplace apparently need to be told, for example, about the benefits of showing up to work on time.

Some proponents of progressive discipline espouse that employers use a graduated scale in imposing discipline.  This starts off with the “oral warning,” as in “Hey, Bob, work starts at 9:00.  That doesn’t mean you walk in the door at 9, take off your coat, get a cup of coffee, chat up the receptionist, and start working at 9:20.  I need you at your desk ready to go when the clock strikes nine. Any questions?” Actually, “oral” is a misnomer because progressive discipline adherents still want the supervisor to document in writing that the employee was orally counseled.  This must be memorialized in thorough fashion: you recite the facts of the event, spell out what you said to the employee, and what the employee said in response.  This document must be dated and maintained, all because the employee can’t get up out of bed in the morning like everybody else.

Then when the employee’s misbehavior continues, you escalate to the “written warning.”  The difference between the written warning and the oral warning is merely that you give the employee a piece of paper that repeats what you said to the person.  Progressive discipline advocates want you to give a few written warnings.  When those don’t work, you are supposed to expand the written warnings to include a “Corrective Action Plan” with steps to be taken by the employee and perhaps a timetable for their completion.  We might envision “1.)  Bob buys alarm clock.  2.)  Bob sets alarm clock for an hour that will enable him to be at his desk by 9.  3.)  Bob sets alarm clock in far corner of bedroom to avoid hitting snooze button in slumberous stupor. Etc.”

When that doesn’t work because there was a traffic delay or a power failure, the manager meets with the employee to tweak the plan: “4.)  Set alarm for earlier time to allow for traffic contingencies.  5.)  Buy wind-up alarm clock as back up measure.  6.)  DVR Colbert instead of staying up to watch it; Etc.”

When that doesn’t work, progressive discipline shills will tell you to suspend the employee.  The first suspension might be with pay (a paid vacation for the misbehaving employee?!?), the second suspension without pay.  When those measures fail, progressive discipline pundits say the employer may then and only then reluctantly consider terminating the employment.

Courts and the EEOC like seeing this escalating discipline because it is a powerful rebuttal to an employee’s claim that he got fired because of skin color, land or date of birth, or the God he prays to.  At the end of the day, however, you still have a “he said, she said” kind of battle between the employee and the employer.  That factual dispute may be enough to deny the employer summary judgment on a bogus claim, even if the employer’s documentation is perfect.  And all of this comes at significant cost.  Engaging in a progressive discipline dance with the employee reduces the productivity of both the superior and subordinate.

Devotees of progressive discipline also contend it helps put employees on notice of what conduct is and isn’t permitted.  In my view, that’s the job of a comprehensive Employee Handbook.  To be sure, the Handbook can’t think of everything.  Employees will often display surprising ingenuity in devising misbehavior not expressly forbidden in the company policy.  We only have to remember George Costanza who admitted having sex on his desk with the cleaning lady but said: “Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon… you know, cause I’ve worked in a lot of offices, and I tell you, people do that all the time.”

The supposed benefits of progressive discipline also have to be weighed against its disadvantages.  For one, progressive discipline is a very subjective game.  When you impose discipline in this structure, you are obliging yourself to give the employee a reasonable time to correct the behavior.  How much time is “reasonable” is open to debate.  For another, progressive discipline is hindered by its singular focus.   Giving Peter an oral and then a written warning about his absenteeism does the employer no good when Peter fails to turn his TPS report in on time, despite getting “the memo.”  The employer then has to start over with progressive discipline on that conduct because corrective coaching about absenteeism is unrelated to shortcomings in performing assigned tasks.

Progressive discipline is simply ill-equipped to cope with the fact that every situation is unique.  The very strength of progressive discipline—that it can be tailored to the specific needs of an employee and his misbehavior—is also a potential liability.  If one employee is given a verbal warning for an unexcused absence and another employee is given a written warning, you can expect the latter to infer that a more severe consequence was imposed for an impermissible reason.

The concept of progressive discipline has become so engrained in recent years that many employers are under the misguided belief that progressive discipline is a requirement.  It is not.  I’m not talking about the line in the Employee Handbook that says “Although the company favors progressive discipline, the company reserves the right to impose the level of disciplinary action appropriate to the situation, including immediate termination.”  Everyone knows that if Peter Gibbons embezzles $300,000, the company need not issue warnings before firing him.  That said, many employers feel enslaved by progressive discipline.

Two take-aways:  First, progressive discipline is your tool.  You are the master.  The tool serves you, not the other way around.  Second, the “at will” employment doctrine always trumps progressive discipline.  You can terminate the employment of an “at will” employee at any time for no reason at all.  What you can’t do is terminate an employee for a legally impermissible reason.  So don’t lament when a supervisor comes to you and says: “I’ve counseled Tyler Durden three times about his absences and personal appearance and I want to let him go but I forgot to document the counseling.”  No legal requirement for either the counseling or the documentation exists.  You may be theoretically more vulnerable to a claim because of the absence of documentation but your ability to discharge Tyler is unimpaired.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these and other employment law waters.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

 

Figliozzi and Company is the designated contractor performing audits on behalf of the Centers for Medicare & Medicaid Services.  If you sought or obtained an incentive payment for either the Medicare or Medicaid EHR Incentive Program, you are subject to being audited.  A November 2012 report from the Office of Inspector General stung CMS with the conclusion that it was not doing enough to validate attestations.  This spurred CMS to ramp up its program to the point where it’s not really a question of whether you will be audited; it’s only a matter of when.

If the recipient can’t back up the attestations, CMS will recoup the incentive payment.  CMS doesn’t do partial recoupment.  Fail in one respect and they claw back all the money.  CMS may also pursue additional remedies if they smell fraud.  But don’t panic just because your number came up.  While some recipients are targeted for an audit because their numbers seem out of whack, CMS also does random audits.   The key is to acknowledge the fact you will ultimately be audited and start preparing now.

Advance preparation is critical because you typically have only two weeks to respond once you are notified of the audit.  That’s just not enough time if you wait for the mail to arrive.  Asking the auditor for an extension of the deadline implies that you don’t have your stuff in one sack.  And don’t think you can simply rely on your EHR vendor’s certification.  You are the provider and you are responsible for assuring and documenting Meaningful Use within your practice.  The good news is that there’s plenty you can get a head start on.

The first thing to do is to decide who is going to respond.  You may want to set up a team.  This is not something you want to dump on your already over-worked practice manager and forget about it.  The stakes are too high.  The doctors must be involved.  One person should be in charge so the ball doesn’t get dropped in the middle.  The Team Leader should be the sole liaison to the auditor.

The Team Leader should be the only person to have telephone conversations with the auditor.  This will minimize miscommunications.  When the phone call is over, that person should immediately email the auditor and summarize the call, e.g., “Thanks for giving us until Friday, July 15th, to get you the 2015 screen shot you requested and the documentation supporting the SRA corrective actions taken.”  Always add a catch-all such as, “Please let me know if there is anything else you need me to do that I haven’t mentioned.”  That way, you put the burden on them to tell you what they want and avoid any dispute about unfulfilled promises.  Save all the email communications related to the audit.

Put the deadline for getting the documentation into the auditor’s hands on your calendar or tickler system so it doesn’t get missed.

Then gather all your documentation to support attestation data for meaningful use objectives and clinical quality measures.  For most practices, your primary document is the report generated by your certified EHR; that generally provides the data Meaningful Use attestation.  Make sure the report on its face shows that it’s your report by reflecting your provider number, etc.  All this information has to be kept for six years so make sure it’s maintained appropriately and people know where it is.  Mark it conspicuously so no one inadvertently throws it out.   Don’t forget the electronic documentation that supports your attestation.  Store that information together.  Consider saving the data in multiple locations.  Get an external hard drive and keep a copy there as insurance against a system meltdown.

Sit down with your Certified EHR vendor.  Pull out the license agreement.  A contract with the Certified EHR vendor may suffice to prove the use of a Certified EHR.  Some vendors, however, include confidentiality requirements in their contract which may prohibit you from sharing the document with the auditors.  If your agreement has such a term, brainstorm with the vendor about how to give the auditors what they need while still honoring the agreement.

One of the best ways to prepare is to do a self-audit.  Better to iron out all the wrinkles in the tranquility of a dry run before the stress of the real event.  Put yourself in the hot seat and ask the tough questions:

• Do you have reports from the Certified EHR vendor that validate the clinical quality measures you reported?

• Are there any red flags at the 50,000-foot level? Do all of the percentage-based measures have the same denominator? Do the numerators and denominators match the figures you put on the CMS attestation form?  Are the figures inappropriately uniform?  For example, do all of the doctors attest with the same percentage figures?  Sniff out discrepancies and get your math right.

• If your certified EHR doesn’t enable you to do “look backs” and show the values at any past point in time, do you have a paper or electronic screen shot of the report used for attestation purposes? Do you have screen shots from the Certified EHR during the reporting period? Do your screen shots show the level of detail needed (e.g., date, provider, name, etc.)?

• Do you have proof of performing an adequate Security Risk Analysis per the HIPAA security rule? Did you complete it before the end of the reporting period? Do you have the documentation to memorialize the actions you took to mitigate the risks you identified?

• If asked (for the purpose of further validating implementation), could you produce evidence of the costs incurred to train staff on the Certified EHR?

• Is your vendor using the most up-to-date version of a Certified EHR product? Is the product you are using on the list at the Office of the National Coordinator’s website? Is there an upgrade that you haven’t obtained yet?

• Do you have documentations to support any exclusions you claimed? This may be tricky, as you’re essentially proving a negative.

• If necessary, would you be able to show the auditor when a particular functionality became operational?

• The audit is likely to be done remotely but the auditor can request a site visit. The auditor can ask you to give a demonstration of your system. Do you know how you would handle that request?

Whenever you send hard-copy documents to the auditor, send them either by FedEx or by certified mail, return receipt requested.  That way, you will have proof of delivery.  Include a cover letter and make sure the contents are labeled.  Keep a complete copy of every document you provide.

The word is that one out of four recipients fails the CMS audit.  Don’t be one of them.  Sure, you have a right to appeal.  But better to get right from the beginning.  Start getting ready now.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these waters.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.