SEXUAL HARASSMENT CLAIMS IN TEXAS NOW ATTACH TO SMALL EMPLOYERS AS WELL AS LARGE AND BRING SIGNIFICANT COMPLIANCE
Sexual harassment claims in Texas are likely to be significantly impacted by two new Texas laws, Senate Bill 45 and House Bill 21, that went into effect on September 1, 2021. First, employees used to have 180 days (from the date of the alleged harassment) to file a charge of sexual harassment in Texas. Now employees have 300 days to file a charge of sexual harassment with the Texas Workforce Commission.
Also, under the new law, Texas expanded the definition of “employer” in the context of sexual harassment claims, to “a person who (a) employs one or more employees; or (b) acts directly in the interests of an employer in relation to an employee.” The change from 15 to “one or more employees” means small businesses in Texas can now be held liable for sexual harassment.
Expanding the definition of an employer to include more than the employing entity itself has significant implications. Supervisors and managers, as well as other individuals acting “directly in the interests of an employer” may now be named individually in a sexual harassment complaint and be held individually liable for damages for sexual harassment.
Employers should review their sexual harassment policies and their complaint and investigation procedures and make sure these are consistent with their policies and reflective of the current laws to ensure they are consistent with the new Texas laws.
Also, under the new law, Texas expanded the definition of “employer” in the context of sexual harassment claims, to “a person who (a) employs one or more employees; or (b) acts directly in the interests of an employer in relation to an employee.” The change from 15 to “one or more employees” means small businesses in Texas can now be held liable for sexual harassment.
Expanding the definition of an employer to include more than the employing entity itself has significant implications. Supervisors and managers, as well as other individuals acting “directly in the interests of an employer” may now be named individually in a sexual harassment complaint and be held individually liable for damages for sexual harassment.
Employers should review their sexual harassment policies and their complaint and investigation procedures and make sure these are consistent with their policies and reflective of the current laws to ensure they are consistent with the new Texas laws.
Texas Governor Abbott Issues Executive Order
Texas Governor Abbott issues executive order requiring:
- Every person in Texas shall avoid social gatherings in groups of more than 10 people.
- People shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors.
- People shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance.
- Schools shall temporarily close.
CMS has Issued Revised Guidance to Nursing Facilities
CMS has now issued revised guidance to nursing facilities. Of main importance CMS recommends:
- Canceling communal dining and all group activities, such as internal and external group activities.
- Implementing active screening of residents and staff for fever and respiratory symptoms.
- Screening all staff at the beginning of their shift for fever and respiratory symptoms.
Texas Governor signs proclamation declaring a state of disaster.
Texas Governor signs proclamation declaring a state of disaster. All non-essential visitors are prohibited from certain facilities, including nursing facilities. If you need more direction or have questions on how your facility should respond, please contact us.
Infection Control and Prevention of Coronavirus Disease 2019 in nursing homes
CMS recently issued guidance concerning Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in nursing homes. In its guidance, CMS has directed that survey activity in nursing facilities be limited to the following in priority order:
• All immediate jeopardy complaints (cases that represents a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death or harm) and allegations of abuse and neglect;
• Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses;
• Statutorily required recertification surveys (Nursing Home, Home Health, Hospice, and ICF/IID facilities);
• Any re-visits necessary to resolve current enforcement actions;
• Initial certifications;
• Surveys of facilities/hospitals that have a history of infection control deficiencies at the immediate jeopardy level in the last three years;
• Surveys of facilities/hospitals/dialysis centers that have a history of infection control deficiencies at lower levels than immediate jeopardy
If your facility has been cited with an infection control deficiency in the last 3 years, then expect (and be prepared) for a survey visit soon! For further information read here.
For guidance on what to do if someone in your facility is suspected of having the Coronavirus, or for additional tips on how to prevent the Coronavirus at your facility, read CMS’s memo here
Monitor the CDC website at https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html for up to date information and resources. If you think you may have a case of the Coronavirus, contact your local health department for specific guidance on how to proceed.
• All immediate jeopardy complaints (cases that represents a situation in which entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death or harm) and allegations of abuse and neglect;
• Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses;
• Statutorily required recertification surveys (Nursing Home, Home Health, Hospice, and ICF/IID facilities);
• Any re-visits necessary to resolve current enforcement actions;
• Initial certifications;
• Surveys of facilities/hospitals that have a history of infection control deficiencies at the immediate jeopardy level in the last three years;
• Surveys of facilities/hospitals/dialysis centers that have a history of infection control deficiencies at lower levels than immediate jeopardy
If your facility has been cited with an infection control deficiency in the last 3 years, then expect (and be prepared) for a survey visit soon! For further information read here.
For guidance on what to do if someone in your facility is suspected of having the Coronavirus, or for additional tips on how to prevent the Coronavirus at your facility, read CMS’s memo here
Monitor the CDC website at https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/index.html for up to date information and resources. If you think you may have a case of the Coronavirus, contact your local health department for specific guidance on how to proceed.
New Law Affecting Texas Long-Term Care Providers and the IDR ProcessTexas legislators signed a new law, which will be effective June 10, 2019. Key provisions of the law that affect Texas long-term care providers include:
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Post Acute Medical Agrees to Pay More Than $13 Million to Settle Allegations of Kickbacks and Improper Physician RelationshipsPost Acute Medical, LLC (“PAM”) agreed to pay the U.S., Texas, and Louisiana a total of $13,168,000 for purported violations of false claim statutes, which resulted in Anti‑Kickback Statute and Stark law violations. The settlement resolves allegations initiated by a whistleblower lawsuit. The DOJ alleged that PAM entered into contracts with physicians to induce referrals to PAM’s facilities. PAM also allegedly entered into “reciprocal referral relationships” with unaffiliated healthcare providers, including home health companies.
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Puerto Rican Physician Indicted with 18 Counts of Health Care FraudJuly 19, 2018, Dr. Miguel Rivera-Sanabria was charged with 18 counts of health care fraud, 3 counts of aggravated identity theft, 3 counts of false statements, and 8 counts for attempted distribution of controlled substances. Dr. Rivera-Sanabria allegedly submitted false claims for services that were never performed, causing Medicare to pay $225,250. He faces up to ten years of imprisonment for the health care fraud charges, and two years for the aggravated identity theft charges.
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Medicare Improperly Paid Providers For Nonemergency Ambulance Transports To Destinations Not Covered By MedicareOIG found Medicare improperly paid $8.7 million for nonemergency ambulance transports. Medicare only covers ambulance transports to certain destinations, such as to skilled nursing facilities (SNFs), and
from a SNF to the nearest supplier of medically necessary services. OIG recommends CMS directs contractors to (1) recover payments and identify recent improper payments; (2) send providers notice of improper payments made outside of the Medicare recovery periods; and (3) require contractors to implement prepayment edits. |
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Are you compliant with CMS' texting policy?December 28, 2017, CMS published policy memorandum, S&C 18-10- ALL and provided renewed guidance on texting to clarify health care providers' oblication to protect patients' protected health information ("PHI"). The memorandum makes it clear that texting is a common and valuable communication tool for providers as well as the entire health care team; however, texting is only permissible when providers and other members of the health care team utilize secure and encrypted systems/platforms in order to comply with Health Insurance Portability and Accountability Act (“HIPAA”) and the Medicare conditions of participation (“CoPs”). Nonetheless, texting orders is not permissible and is not compliant with the
CoPs. Orders must only be transmitted as a hand-written order or a computerized provider order entry. Because this may be evaluated and investigated by a surveyor coming to your facility, it is important to maintain a robust and updated policy regarding texting among physicians and other members of the health care team. |
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Will nursing facilities get reprieve in 2018?Civil monetary penalties have been painful in 2017 for long-term care providers throughout Texas. On October 27, 2017, CMS published policy memorandum S&C: 18-01- NH that could bring a wave of change to the long-term care industry and some relief for nursing facility owners, in particular for the smaller, family-owned facilities across Texas. This memorandum affects Skilled Nursing Facilities, Nursing Facilities and dually participating facilities, which are always required to be in substantial compliance with Medicare and Medicaid requirements. One critical change concerns immediate jeopardy violations. According to the memorandum, it will no longer be CMS’ policy to impose a civil monetary policy for the entire duration that immediate jeopardy was cited if there is serious injury, harm, impairment or death. This means instead of a per day penalty, a facility could only be cited a per instance penalty. CMS penalties can add up and affect the reputation and operation of your facility.
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