Reporting health care professionals to state licensing boards--VA. Final rule

It continues to be the policy of the Department of Veterans Affairs (VA) to report to State Licensing Boards any separated physician, dentist, or other licensed health care professional whose clinical practice so significantly failed to meet generally accepted standards of clinical practice as to raise reasonable concern for the safety of patients. This document provides that, in addition, VA will report to State Licensing Boards any currently employed physician, dentist, or other licensed health care professional (one who is on VA rolls) whose clinical practice so significantly failed to meet generally accepted standards of clinical practice during VA employment as to raise reasonable concern for the safety of patients. Some health care professionals who are VA employees also provide health care outside VA's jurisdiction. Accordingly, the reporting of currently employed licensed health care professionals who meet the standard for reporting is necessary so that State Licensing Boards can take action as appropriate to protect the public. Examples of actions that meet the criteria for reporting are set forth in the text portion of this rulemaking. Also, nonsubstantive changes are made for purposes of clarity.     

Limitations on an employer's right to discipline and discharge employees

An employer's prerogative to discipline and discharge its employees has been substantially infringed by the courts, state legislatures, Congress, and governmental agencies. In its recent Materials Research decision, the National Labor Relations Board has expanded the Weingarten principle by limiting the employer's ability to conduct investigatory and disciplinary interviews of nonunion employees. In addition, state courts and legislatures have begun to scrutinize the grounds for an employer's discharge of an employee, and Congress has statutorily prohibited the discipline or discharge of employees who "blow the whistle" on their employers under certain circumstances. This article will evaluate recent developments in this area of law and explore their impact on an employer's right to discipline and discharge its employees.     

"No-hire" clauses in healthcare sector contracts: their use and enforceability

In today's healthcare industry, many hospitals utilize outside agencies for both business and clinical functions. This Article acknowledges the prevalence of outsourcing contract labor in the healthcare arena and focuses on the restrictive provisions included in these employment contracts, particularly "no-hire" clauses. No-hire clauses are often included in contracts between healthcare providers and professional groups that provide clinical service employees to the provider, such as a medical practice group providing physicians to a hospital or an agency providing nurses to a nursing home. These clauses usually provide that the healthcare provider may not directly hire an employee provided by the professional group, nor may it contract with another professional group that later hires the employee. The purpose of a no-hire clause is two-fold: to protect the professional group's investment of time and moneyfor recruiting, training, and establishing the employee's clinical practice, and to give the professional group leverage to retain its employees. While noncompete clauses in employment contracts have traditionally been the subject of litigation, no-hire clauses raise distinct legal issues. Case law provides conflicting views as to the enforceability of these provisions. Some courts find no-hire clauses to be per se illegal restrictions on trade, while others will permit them when they are reasonable within a specific context. The author proposes that a multifactor test be applied on a case-by-case basis to determine the reasonableness of the no-hire provision in a given employment contract and suggests drafting improvements to facilitate enforcement.     

Supplemental standards of ethical conduct and financial disclosure requirements for employees of the Department of Health and Human Services. Interim final rule with request for comments

The Department of Health and Human Services, with the concurrence of the Office of Government Ethics (OGE), is amending the HHS regulation that supplements the OGE Standards of Ethical Conduct. This interim final rule specifies additional procedural and substantive requirements that are necessary to address ethical issues at the National Institutes of Health (NIH) and updates nomenclature, definitions, and procedures applicable to other components of the Department. The rule: Revises the definition of a significantly regulated organization for the Food and Drug Administration (FDA); Updates the organization titles of designated separate agencies; Amends the gift exception for native artwork and craft items received from Indian tribes or Alaska Native organizations; Aligns the FDA prohibited holdings limit with the de minimis holdings exemption in OGE regulations; Revises prior approval procedures for outside activities; and, subject to certain exceptions: Prohibits NIH employees from engaging in certain outside activities with supported research institutions, health care providers or insurers, health-related trade or professional associations, and biotechnology, pharmaceutical, medical device, and other companies substantially affected by the programs, policies, or operations of the NIH; Bars NIH employees who file a public or confidential financial disclosure report from holding financial interests in substantially affected organizations; Subjects NIH non-filer employees to a monetary cap on holdings in such organizations; Specifies for NIH employees prior approval procedures for and limitations on the receipt of certain awards from outside sources; and Imposes a one-year disqualification period during which NIH employees are precluded from official actions involving an award donor. In addition, the Department is adding a new supplemental part to expand financial disclosure reporting requirements for certain outside activities and to ensure that prohibited financial interests are identified.     

Nurse practitioner challenges to the orthodox structure of health care delivery: regulation and restraints on trade

Until recently, physicians have been the primary health care providers in the United States. In response to the rising health care costs and public demand of the past decade, allied health care providers have challenged this orthodox structure of health care delivery. Among these allied health care providers are nurse practitioners, who have attempted to expand traditional roles of the registered nurse. This article focuses on the legal issues raised by several major obstacles to the expansion of nurse practitioner services: licensing restrictions, third party reimbursement policies, and denial of access to medical facilities and physician back-up services. The successful judicial challenges to discriminatory practices against other allied health care providers will be explored as a solution to the nurse practitioners' dilemma.     

Can an employer-based health insurance system be just?

It is America's distinctive practice to tie private health insurance to employment, and recent proposals have tried to retain this link through mandating that all employers provide health insurance to their employees. My primary approach to these issues is neither economic, nor historical, nor political but ethical. After a brief historical overview, I outline a general approach to evaluating the ethical significance of linking the distributions of distinct goods. I examine whether an unjust distribution of jobs spoils justice in the distribution of health insurance, taking as a central example gender inequities in employment and exploring their impact on job-based health insurance. Second, I explore the possibility that justly awarding jobs guarantees justice in employment-sponsored insurance. However, linking the distributions of different goods remains problematic, because such links inevitably undermine equality by enabling the same individuals to enjoy advantages in many different distributive areas. Finally, I examine recent proposals to reform America's health care system by requiring all employers to provide health insurance to their employees. I argue that such proposals lend themselves to the same ethical problems that the current system does and urge greater attention to alternative reform options.     

《著作权法》修改:关键条款的解读与分析(下)

修改后的《著作权法》将视听作品分为"电影作品、电视剧作品及其他视听作品",并分别规定了不同的著作权归属规则,但两类视听作品分类标准不明,且对其他视听作品采用约定优先的著作权归属规则,不利于此类视听作品的许可与传播。当一名合作作者无正当理由反对对合作作品的特定利用时,其他合作作者不能发放专有许可,这可能给合作创作的学术论文和专著的出版带来负面影响。修改后的著作权法将电台、电视台和报刊通讯社员工的职务作品定为特殊职务作品,可能产生其员工离职后无法获得出版其职务作品文集所须授权的问题。新增的有关职务表演的规定合理地解决了长期以来将"演出单位"作为"表演者"的问题。对传播录音制品获酬权的规定并不是法定许可,因为《著作权法》并没有为录音制作者规定除信息网络传播权之外的传播权专有权利。修改后的《著作权法》的一大亮点是将广播组织的转播权以技术中立的方式拓展至网络环境。有关用作者的署名推定权利存在的规定,被诉侵权人应证明其使用涉案作品已获许可的规定,以及法院有权没收和销毁侵权复制品的规定,均直接来源于《中美经济贸易协定》,其中有些仅具有形式意义。修改后的《著作权法》为摄影作品享受新的保护期(作者有生之年加50年)所设定的条件与《世界知识产权组织版权条约》不一致,可能需要再次修改。     

The use of medical examinations for employment purposes

This article examines a number of legal issues which arise where medical examinations or tests are used in the employment context, either to test the suitability of a prospective employee in pre-employment situations or to ascertain the fitness of existing employees. Employer justifications for seeking medical information usually relate to attempts to comply with health and safety legislation and to reduce workers compensation costs. This article discusses the legal obligations involved in pre-employment medical testing and, in particular, employee obligations to provide correct information in relation to their health to a prospective employer. It also notes the consequences for employees of providing false information in relation to workers compensation claims and dismissal cases. The article notes the growing trend of requiring drug and alcohol testing for existing employees, particularly in the mining industry. The article concludes by noting that employers need to take care in seeking medical information, and that it should not simply be done as a mechanical, matter-of-course exercise. Failure to observe anti-discrimination laws may result in the employer facing allegations of misuse of medical information and claims for damages for discrimination.     

The legal status of clinical and ethics policies, codes, and guidelines in medical practice and research

This article examines the legal status of "soft law" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called "soft law"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these "soft law" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.     

National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners: amendments to data bank regulations to comply with court order and technical correction--HRSA. Final regulations

This final rule amends the existing regulations governing the National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners (the Data Bank), codified at 45 CFR part 60, authorizing the reporting and release of information concerning: Payments made for the benefit of physicians, dentists, and other health care practitioners as a result of medical malpractice actions or claims; and certain adverse actions taken regarding the licenses and clinical privileges of physicians and dentists. This final rule revises sections 60.2 and 60.7 to require reporting only by entities which make medical malpractice payments, deleting the reference to reporting by persons (individuals). It also clarifies the reference to "professional society" in section 60.9.     

Nurse home visitors' perceptions of mandatory reporting of intimate partner violence to law enforcement agencies

In the United States, there is an ongoing debate about requiring health care professionals to report intimate partner violence (IPV) to law enforcement agencies. A comprehensive examination of the perspectives of those required to report abuse is critical, as their roles as mandated reporters often pose legal, practical, moral, and ethical questions. Even so, the perspective of health care professionals who are required to report is often overlooked and research is scarce on mandated reporters who work outside of clinical settings, such as nurses who engage in home visitation with clients. The purpose of this study was to examine nurse home visitors' perspectives regarding the mandatory reporting of IPV, specifically focusing on their attitudes toward reporting, perceived awareness of reporting requirements, and intended reporting behaviors. A web-based survey was administered to nurses in the Nurse-Family Partnership home visitation program across the United States. A total of 532 completed surveys were returned (response rate = 49%). In terms of support for reporting IPV, 40% of nurses indicated that they should "always" be required to report. Almost half of the sample indicated that they would report a case of IPV, yet less than one-third of participants were aware of a legal mandate. Attitudes and support toward reporting as well as the perception of a reporting requirement significantly predicted intention to report. Furthermore, 29% of participants did not know if they were required to report IPV perpetrated against their clients. Comprehensive information about mandatory reporting duties is needed for health care professionals in home visitation settings. The findings of the current study highlight the need to reduce variation among practitioners and establish consistent program practices that are grounded in the program's principals, supported by existing research, and compliant with existing state policies.     

Psychological Injury from Licensing Complaints Against Mental Health Practitioners

Today's mental health practitioners are subject to governmental (e.g., licensing boards) and legal (e.g., professional liability or malpractice) monitoring and regulation. Regrettably, the governmental and legal oversight of health care has proven to be tilted in favor of the service user, with frequent unfair processing and unjustifiably harsh penalties imposed on mental health practitioners—which often result in psychological injury. Stress and anxiety caused by a licensing complaint is common; and in this article, the psychological effects are set forth. It is concluded that there is no reason to expect relief from the risks of practice in the future, that is, typical licensing complaints plus added ethical issues are likely as the mental health professions evolve. This means that, whenever there is an indication of a possible complaint from a service user, today's mental health practitioner must, as part of the support services essential for practice, be prepared to rely on legal counsel.     

The Family and Medical Leave Act--key provisions and potential problems

The recently enacted Family and Medical Leave Act requires larger employers to provide eligible employees with up to twelve weeks of unpaid leave for certain medical and family-related reasons. This article addresses who the law applies to; the circumstances when leave must be granted; how the leave period is supposed to be scheduled; various notice, scheduling, medical certification, and reporting requirements; reinstatement and continuation-of-benefits requirements; and other key provisions of the Act. The basic requirements of the Act are not complicated, but certain issues that are not addressed by the Act or its legislative history--such as what qualifies as a serious health condition justifying a leave, when an intermittent or reduced schedule leave may be taken and how such schedules are determined, and how differences with state family and medical leave laws are to be reconciled--will have to be resolved by administrative regulation or litigation.     

Use of registry employees can pose legal problems

In view of the potential legal liability to which a recipient entity can be exposed when using registry employees, some care must be taken in drafting registry contract services and in modulating the recipient entity's behavior towards the registry personnel. The following steps should generally be taken by health care establishments purchasing registry services to minimize such exposure: (1) Ensure that the registry treats its personnel as employees and complies with all applicable employment law obligations, including state and federal employment tax requirements, workers' compensation laws, and any state law wage and hour requirements in the recipient's state. (2) If using an out-of-state registry, make sure that the registry also has workers' compensation insurance in the recipient's state and complies with that state workers' compensation laws. (3) Make sure that termination decisions regarding registry employees are not made for reasons that violate any federal anti-discrimination laws. (4) Provide in the registry agreement for full indemnification by the registry to the recipient. (5) Ensure that the registry is solvent and has adequate insurance to honor its indemnification obligation. (6) Obtain a warranty from the registry that it carefully screens all of its employees before hiring them. (7) Expressly state in the registry agreement that the registry has the right to discipline and supervise the personnel it refers. (8) Do not reject registry personnel for reasons that would be improper with respect to the facility's own employees, e.g., race, sex, age, religion, disability, etc.     

Self‐reported Mental Health Issues Among Arrestees in the Paris,France Area

We studied (May–September 2014) all arrestees who reported mental health issues during the medical examination performed by a forensic physician for the assessment of fitness for detention. Among 4814 arrestees, 420 (9%) reported a current mental health issue. The suspected crimes among arrestees reporting a current mental health issue were more often related to violent behaviors (physical assault, 23% vs. 16%, p < 0.001, sexual assault, 3% vs. 1%, p = 0.01) and less often drug offenses (18% vs. 29%, p < 0.001). Among arrestees reporting mental health issues, 80% reported psychiatric or psychological care, of whom 33% reported previous mental health care. Decisions of unfitness for detention were more frequent among arrestees reporting mental health issues than in other detainees (3% vs. 1%, p < 0.001). The high proportion of patients with interrupted mental health care among those reporting mental disorders suggests that the medical examination during custody could be a significant opportunity to restore psychiatric care.     

Practice of the statutory disciplinary system for health care psychologists in the Netherlands

A statutory disciplinary system for health care psychologists in the Netherlands was introduced in 1998. To provide an indication of the contribution of this system to monitoring the quality of health care psychology all complaints dealt with in the period 1999-2002 were studied. Questionnaires were sent to all 388 members of the disciplinary boards (response 89%) and 43 practicing lawyers (response 65%). The regional disciplinary boards dealt with 68 complaints about health care psychologists. A sanction was imposed 16 times (25%), mainly for sexual intimacies or a sexual relationship, violation of professional secrecy or incorrect statement or reporting. The statutory disciplinary system appears to be an important corrective instrument for serious forms of professional misconduct for health care psychologists.     

Reporting by multiple employer welfare arrangements and certain other entities that offer or provide coverage for medical care to the employees of two or more employers. Final rule

This document contains a final rule governing certain reporting requirements under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) for multiple employer welfare arrangements (MEWAs) and certain other entities that offer or provide coverage for medical care to the employees of two or more employers. The final rule generally requires the administrator of a MEWA, and certain other entities, to file a form with the Secretary of Labor for the purpose of determining whether the requirements of certain recent health care laws are being met.     

Health care report cards: implications for vulnerable patient groups and the organizations providing them care

Standardized public reporting on the quality of health care (report cards) offers an opportunity to empower purchasers and consumers so that they can make choices that can result in better health care for less money. However, not all population subgroups are equally well served by the publication of such data. In particular, vulnerable patient groups such as the poor, the less educated, the chronically sick, and members of ethnic or linguistic minorities may find issues of importance to them largely neglected. In addition, the way that report card data are collected, analyzed, and presented may further marginalize the experiences of these groups who in any case are already underserved by the health system. This observation also has important implications for health care providers who serve primarily large numbers of vulnerable patients. The differential impacts of report card data on vulnerable patient groups (and their providers) need to be addressed by researchers and policy makers if access issues are not to be damaged further by the providers' pursuit of quality and value.     

National health insurance and the new health occupations: nurse practitioners and physicians' assistants

This article considers a number of issues which might arise in formulating policy for new health occupations. Its particular focus is on nurse practitioners and physicians' assistants and their treatment under potential national health insurance arrangements. The development and expansion of these occupations are described, as is the evidence on their performance with respect to the quality of medical care provided, the impact on the cost of such care, and changes in access to care. We then discuss several issues which might arise in the context of national health insurance legislation, including reimbursement rates and methods, certification and licensure, training subsidies, deployment incentives, and compatibility with an increased supply of physicians.     

Reasonable charges for medical care or services. Department of Veterans Affairs. Interim final rule

This document amends the Department of Veterans Affairs (VA) medical regulations concerning "reasonable charges" for medical care or services provided or furnished by VA to a veteran: (1) For a nonservice-connected disability for which the veteran is entitled to care (or the payment of expenses of care) under a health plan contract; (2) For a nonservice-connected disability incurred incident to the veteran's employment and covered under a worker's compensation law or plan that provides reimbursement or indemnification for such care and services; or (3) For a nonservice-connected disability incurred as a result of a motor vehicle accident in a State that requires automobile accident reparations insurance. This document amends the regulations to update databases and other provisions for the purpose of providing more precise charges.