November 2022

Employers Should Review Workplace Violence Plans and Training In Response To Recent Workplace Violence Tragedies

November 29, 2022

Two mass shootings of workers at Walmarts in Virginia in less than a month and a series of other recent workplace shootings around the country should prompt other employers to evaluate the adequacy of their own workplace violence safeguards under and other laws.

As demonstrated by the already filed state lawsuit filed by an employee of the Chesapeake, Virginia Walmart where a supervisor fatally shot six people in October, 2022, see here, businesses experiencing workplace violence events typically face OSHA and other investigations, lawsuits and critical media and public scrutiny. A well-documented and administered workplace violence safety plan can help mitigate legal and other risks.

The Occupational Safety & Health Administration (“OSHA”) generally considers protecting workers against workplace violence part of an employer’s general duty to make the workplace safe under the Occupational Safety and Health Act (“(OSH Act”).

OSHA defines “workplace violence” as including any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

Many business leaders underestimate their organization’s workplace violence risk. Workplace violence is a much more common problem than most American business leaders realize. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), reported workplace injury data reflects there were 392 workplace homicides in 2020, the most recent year for which BLS has published data. There were also 37,060 nonfatal injuries in the workplace resulting from an intentional injury by another person. The five occupational groups with the most workplace homicides in 2020 were sales and related, transportation and material moving, management, construction and extraction, and production. Homicides in sales and related occupations accounted for 23.5 percent of all workplace homicides in 2020. See here.

Research has identified factors that may increase the risk of violence for some workers at certain worksites, such as exchanging money with the public, working with volatile, unstable people, working alone or in isolated areas, providing services and care, working where alcohol is served, time of day and location of work, Among those with higher-risk are workers who exchange money with the public, delivery drivers, healthcare professionals, public service workers, customer service agents, law enforcement personnel, and those who work alone or in small groups.

In most workplaces where risk factors can be identified, the risk of assault can be prevented or minimized if employers take appropriate precautions.

OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces. Therefore, OSHA expects employers to assess their worksites to identify methods for reducing the likelihood of incidents occurring and adopt and implement an appropriate plan.

There are currently no specific OSHA standards for workplace violence. Rather the guidance contemplates each business will tailor an appropriate plan to fit its operations. OSHA provides various resources to aid employers ti DD slop their organization’s plan. The employer is responsible for tailoring an appropriate policy; the guidance strongly suggests including a zero-tolerance policy toward workplace violence covering all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

OSHA has developed Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, which provides guidance and procedures to be followed when conducting inspections and issuing citations related to the occupational exposure to workplace violence. These procedures also provide insight for employers to tailor their plans and practices. Including policies for emergency response, investigation and remediation also is advisable.

The plan can be a separate workplace violence prevention program or can be incorporated into a safety and health program, employee handbook, or manual of standard operating procedures. Employers are responsible for ensuring all workers know the policy and understand that all claims of workplace violence will be investigated and remedied promptly. In addition, OSHA encourages employers to develop additional methods as necessary to protect employees in high risk industries.

In developing and administering their workplace violence policies, employers should seek both to prevent workplace violence and build a record that can help the employer defend against or mitigate legal and other business risks in the event of an incident. Employers also should reevaluate and update their policies and practices in response to events within their own or other workplaces as necessary. Working with qualified legal counsel within the scope of attorney-client privilege may help strengthen the risk assessment and policy design, while insulating sensitive discussions and analysis with the attorney-client communication or work product privileges.

More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

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About the Author

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefits Counsel repeatedly recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” by LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law and among the “Best Lawyers In Dallas” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for 30+ years of advising, representing and defending domestic and international public, closely held and government organizations on workforce, employee benefits, internal controls and governance, and other risk management, compliance and government relations concerns as well as her coaching, scholarship, training and legislative and public affairs advocacy on these and related areas.

Ms. Stamer helps health industry and other organizations and their management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 35 year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns. She also represents and defends clients in investigations, audits, enforcement actions and other dealings with the the Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and a multitude of federal, state, and locate agencies, state attorneys’ general and other federal and state agencies, public and private credentialing, licensing and accreditation bodies, as well as conducts and counsels clients on private litigation, employment and other services disputes, regulatory and public policy advocacy, training and discipline, enforcement and other strategic and operational concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence workforce, health care, pension, social security, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also shares her leadership through her extensive involvement in many professional, community and civic organizations. Currently, she serves as Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR and a representative for its Annual Agency Meeting with the EEOC, Chair of the ABA Intellectual Property Section Law Practice Management Committee, Vice Chair of the ABA International Section Life Sciences Committee, Chair-Elect of the ABA Tort & Insurance Section (TIPS) Medicine and Law Committee, RPTE Section Employee Benefits Committee Welfare Plan Chair, and in various other projects and capacities. She also previously has served as an ABA Joint Committee on Employee Benefits Council Representative, Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the ABA RPTE Employee Benefits & Other Compensation Group, the Society for Human Resources Management Region IV Board Chair and National Consultant’s Board Member; am Editorial Advisory Board Member and author for HR.com, Insurance ThoughtLeaders, BNA CD-Rolm, and Employee Benefits News; the Alliance for Healthcare Excellence Board President, Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, on the North Texas United Way Long Range Planning Committee Member, as a Board Member and Compliance Chair of the National Kidney Foundation of North Texas and many others.

Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. These include hundreds of highly regarded articles and workshops on health and other benefits, workforce, health care and insurance concerns.

For more information about these requirements, Ms. Stamer or her experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission. The author and Solutions Law Press, Inc.™ reserve the right to qualify or retract any of these statements at any time. Likewise, the content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion. The author and Solutions Law Press, Inc.™ disclaim, and have no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

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Posted by Cynthia Marcotte Stamer

Attorney Filer of ADA Lawsuits Pleads Guilty to Filing False Tax Returns For Not Reporting Disability Lawsuit Settlement Income

November 29, 2022

A California attorney known for his filing of thousands of disability discrimination lawsuits under the Americans with Disabilities Act of 1990 (“ADA”) with himself as the plaintiff plead guilty November 29 to filing a false tax return on which he underreported the income he earned from many of those lawsuits. Aside from the enjoyment many businesses victimized by the defendant’s or other similar disability lawsuits may experience over seeing the defendant get his own comeuppance, the prosecution and the plea also provide important reminders for businesses paying ADA or other settlements to applicants or former employees.

According to court documents and statements made in court, Scott Norris Johnson owned and operated Disabled Access Prevents Injury Inc (DAPI), a legal services corporation. A quadriplegic and an attorney, Johnson filed more than 4,000 lawsuits in the Eastern District of California and elsewhere under the ADA and related California statutes, naming himself as the plaintiff against businesses he claimed were not in compliance with state and federal disability access laws first using DAPI, and later a law firm,

Under the Small Business Job Protection Act of 1996, payments related to lawsuit settlements or awards are taxable unless paid on account of personal physical injury or physical sickness. Johnson, who worked as an attorney at the Internal Revenue Service (“IRS”) earlier in his career, was required to report the taxable portion of the lawsuit settlements and awards he received. He nonetheless intentionally underreported this income on his 2012, 2013, and 2014 tax returns. By understating the lawsuit settlements and awards, Johnson and DAPI paid little to no income tax for tax years 2012, 2013 and 2014. Johnson caused a loss to the IRS of more than $250,000.

Johnson is scheduled to be sentenced on March 7, 2023, and faces a maximum penalty of three years in prison for filing a false tax return. He also faces also faces a period of supervised release, restitution, and monetary penalties. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

The prosecution and subsequent plea highlight the taxability of disability and certain other settlements and the willingness of the Justice Department and IRS to prosecute individuals and businesses failing to fulfill obligations to recognize and report those payments as income for federal tax purposes.

Businesses and their legal counsel entering into settlements or otherwise making payments to employees or applicants under the ADA or other taxable settlements generally should use care to properly report taxable amounts as income to the recipient. For payments made pursuant to a settlement agreement, the settlement agreement generally should provide both that the employer is authorized to deduct and withhold amounts the employer believes may be due from the employee for taxes as well as obligate the employee to report and pay any additional taxes due on the payment.

Obviously, the business also needs to ensure it properly reports and pays its required share of any employment taxes on the payments. Employees should confirm the current tax rules prior to making any agreement or payment to avoid mistakes.

Businesses also should keep in mind many other developments could impact the interpretation and enforcement of settlements and their resulting responsibilities. Changes to trade secret, noncompete, arbitration, voluntariness and other requirements for release of claims, arbitration, scope of release and other developments could materially affect the effectiveness of previously used settlement language. Wise business leaders will seek qualified legal advice and assistance with their settlements.

For Help With Comments, Investigations Or Other Needs

If your organization would like to learn more about the concerns discussed in this update or seeks assistance auditing, updating, administering or defending its human resources, compensation, benefits, corporate ethics and compliance practices, or other performance related concerns, please contact management attorney and consultant Cynthia Marcotte Stamer.

An attorney Board Certified in Labor & Employment Law by Texas Board of Legal Specialization, Ms. Stamer is recognized for work helping organizations management people, operations and risk as a Fellow in the American College of Employee Benefit Counsel, a “Top Woman Lawyer,” “Top Rated Lawyer,” and “LEGAL LEADER™” in Labor and Employment Law and Health Care Law; a “Best Lawyers” in “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law.”

For 35 years, Ms. Stamer’s work has focused on advising and assisting businesses and business leaders with these and other employment and other staffing, employee benefit, compensation, risk, performance and compliance management and other operational solutions and concerns. Her experience includes helping management both manage performance and manage legal risk and compliance. While helping businesses define and manage the conduct and performance of their employees, contractors and vendors, she also assists employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, leave, and other labor and employment laws, advises and defends businesses against labor and employment, employee benefit, compensation, fraud and other regulatory compliance and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor, Department of Justice, SEC, Federal Trade Commission, HUD, HHS, DOD, Departments of Insurance, and other federal and state regulators. Ms. Stamer also speaks, coaches management and publishes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see hereor contact Ms. Stamer directly.

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NOTICE: These materials are for general informational and educational purposes only. They do not establish an attorney-client relationship, are not legal advice, a substitute for legal advice, an offer or commitment to provide legal advice or an admission. The information and statements in these materials may not address all relevant issues or apply to any situation or circumstances. The author reserves the right to qualify or retract any of these statements at any time. and does not necessarily address all relevant issues. Because the law evolves and in ways that subsequent developments could impact the currency and completeness of this discussion. The author disclaims and has no responsibility to provide any update or otherwise notify anyone any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers are urged to engage competent legal counsel for consultation and representation considering the specific facts and circumstances presented in their unique circumstance at any time. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication. Readers acknowledge and agree to the conditions of this Notice as a condition of their access of this publication. Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein. ©2022 Cynthia Marcotte Stamer. Nonexclusive right to republish granted to Solutions Law Press, Inc. All rights reserved.

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Posted by Cynthia Marcotte Stamer

Proposed Changes To Substance Abuse Confidentiality Rules Could Create New Burdens For Employers & Health Plans

November 28, 2022

January 30 Deadline To Comment On HHS’ Proposed Changes To Substance Use Confidentiality Rules

Employers, their health plans and issuers, substance abuse, mental health and other healthcare providers, health care professional associations, consumer advocates, community organizations, state and local government entities, patients and caregivers and others concerned with mental health and substance abuse treatment and management should review and comment by January 30, 2023 on proposed changes to rules on unauthorized disclosures the Confidentiality of Substance Use Disorder (SUD) Patient Records under 42 CFR part 2 (“Part 2”) proposed by the U.S. Health and Human Services Department Office for Civil Rights (OCR) and the Substance Abuse and Mental Health Services Administration (SAMHSA) in a Notice of Proposed Rulemaking (NPRM) made public November 28, 2022 here and scheduled for publication in the December 2, 2022 Federal Register. In addition to obvious implications for health care providers and health plans, the proposed changes are likely to impact both the confidentiality requirements for employer-sponsored and other health benefit programs, as well as the ability and responsibilities of businesses seeking to access or use information about prior substance use and abuse in their workplaces or for other legitimate purposes.

Proposed Changes To Substance Abuse Confidentiality Rules

On November 28, 2022, OCR and SAMHSA issued the NPRM to revise the Confidentiality of Substance Use Disorder Patient Records regulations at 42 CFR part 2 (“Part 2”), which seek to address concerns that concerns about discrimination or prosecution might deter people from entering treatment for SUD by protecting “records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.”(“SUD Records”).

Currently, the Part 2 protections of patient privacy and records concerning treatment related to substance use challenges from unauthorized disclosures differ from the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy, Breach Notification, and Enforcement Rules (“HIPAA”) rules. These distinctions reportedly create barriers to information sharing by patients and among health care providers and create dual obligations and compliance challenges for regulated entities. To address this concern, Congress mandated in Section 3221 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that HHS to bring Part 2 into greater alignment with certain aspects of the HIPAA Privacy rule.

The NPRM seeks to address the CARES Act mandate as Americans and their leaders struggle to continue to provide pathways for victims of substance abuse and other mental health challenges to pursue treatment and maximize their participation and enjoyment in our communities while addressing safety concerns about a growing series of rare but notorious acts of violence committed by certain inadequately diagnosed or managed victims of mental health or substance abuse. See, e.g., Fact Sheet: President Biden To Announce Strategy To Address Our National Mental Health Crisis, As Part Of Unity Agenda In His First State Of The Union; President Biden Releases National Drug Control Strategy to Save Lives, Expand Treatment, and Disrupt Trafficking; Actions Taken by the Biden-⁠Harris Administration to Address Addiction and the Overdose Epidemic; Colorado Springs LGBT Nightclub Shooting Leaves Five Dead and 25 Injured; Virginia Walmart Shooting Gunman “Was Picking People Out,” Witness Says; Opinion: Leaders Blamed the Uvalde Shooting on a Mental Health Crisis. Gun Violence Is Making That Crisis Worse; Nancy Pelosi Husband Attack Suspect David Depape Pleads Not Guilty To Federal Charges.

Amid these challenges, the NPRM proposes to implement this CARES Act mandate through the following changes to Part 2 that HHS says will help safeguard the health and outcomes of individuals with SUD while creating greater flexibility for information sharing envisioned by Congress in its passage of Section 3221 of the CARES Act:

Permit Part 2 programs to use and disclose Part 2 records based on a single prior consent signed by the patient for all future uses and disclosures for treatment, payment, and health care operations;
Permit the redisclosure of Part 2 records as permitted by the HIPAA Privacy Rule by recipients that are Part 2 programs, HIPAA covered entities, and business associates, with certain exceptions;
Expand prohibitions on the use and disclosure of Part 2 records in civil, criminal, administrative, or legislative proceedings conducted by a federal, state, or local authority against a patient, absent a court order or the consent of the patient;
Create two patient rights under Part 2 that align with individual rights under the HIPAA Privacy Rule:
- Right to an accounting of disclosures; and
- Right to request restrictions on disclosures for treatment, payment, and health care operations;
Require disclosures to the Secretary for enforcement;
Apply HIPAA and HITECH Act civil and criminal penalties to Part 2 violations;
Require Part 2 programs to establish a process to receive complaints of Part 2 violations;
Prohibit Part 2 programs from taking adverse action against patients who file complaints;
Prohibit Part 2 programs from requiring patients to waive the right to file a complaint as a condition of providing treatment, enrollment, payment, or eligibility for services;
Apply the standards in the HITECH Act and the HIPAA Breach Notification Rule to breaches of Part 2 records by Part 2 programs;
Modify the Part 2 confidentiality notice requirements (“Patient Notice”) to align with the HIPAA Notice of Privacy Practices;
Modify the HIPAA Notice of Privacy Practices requirements for covered entities who receive or maintain Part 2 records to include a provision limiting redisclosure of Part 2 records for legal proceedings according to the Part 2 standards; and
Permit investigative agencies to apply for a court order to use or disclose Part 2 records after they unknowingly receive Part 2 records while investigating or prosecuting a Part 2 program, when certain preconditions are met.

While the Department is undertaking this rulemaking, the current Part 2 regulations remain in effect. However, once the comment period ends, the Biden Administration-led HHS is expected to finalize the proposed changes quickly. Consequently, in addition to sharing any concerns or other input about the proposed changes during the comment period, health care providers, health plans, health care clearinghouses, employers, community agencies, state and local governments, patients and other caregivers and other concerned parties also should begin planning and preparing to respond to the anticipated changes in the requirements.

Implications For Businesses & Their Health Plans

Businesses should carefully assess the potential implications of the proposed changes on their worker and vendor credentialing and workplace safety practices as well as their health and other benefit programs. Assuming the changes are adopted in their current form, businesses sponsoring health benefit programs generally, and health care organizations and providers specifically should prepare to modify their HIPAA required notices of privacy practices and associated practices to comply with the proposed updates.

Businesses required to comply with Department of Transportation Drug Free Workplace or other alcohol and substance abuse requirements also should consider the potential implications of the proposed changes on their ability to secure relevant substance abuse treatment and related history. In assessing these implications, businesses also should be cognizant of a new proactivity on behalf of certain uses of drugs by workers in the workplace under the Americans With Disabilities Act (“ADA”). For instance, the EEOC recently has sued Eagle Marine Services Electrical & Refrigeration, LLC for allegedly violating the ADA by refusing to hire or accommodate a worker because he used medication prescribed by his doctor to treat attention deficit hyperactivity disorder (“ADHD”) without making any individual assessment of the worker’s medication use or whether it would affect his ability to safely perform the marine electrician position, and instead relied on general stereotypes about disability and medication use to justify its decision not to hire him. Businesses seeking to investigate or deny employment opportunities to workers based on the worker’s past or current medication use will want to use care to ensure that their practices are tailored to defend against similar challenges.

Health plan sponsors and insurers also should assure their mental health and substance abuse treatment coverage documents and practices are defensible under the latest mental health and substance abuse parity mandates of the Mental Health Parity and Addiction Equity Act (MHPAEA) and coverage requirements of the Patient Protection and Affordable Care Act (“ACA”). Along with a host of statutory changes since the original parity mandates took effect, implementing regulations and guidance about non-qualitative limitations and exclusions and heightened agency enforcement are ramping up enforcement and liability risks. In addition to exposing the health plan administrators and other fiduciaries to potential claims denial or fiduciary responsibility claims brought by participants or beneficiaries, the Department of Labor or both, administrative penalties by the EBSA, or both, the MHPAEA mental health and substance abuse parity rules are among 40 federal mandates that when violated can trigger the automatic $100 per violation per day employer excise tax penalty under Internal Revenue Code Section 6039D. As a consequence, violations of the MHPAEA are particularly risky and potentially expensive for private employers, their health plans and the plan administrators and fiduciaries that administer it.

For Help With Comments, Investigations Or Other Needs

Other Helpful Resources & Information

If you found this article of interest, you also may be interested in reviewing other Breaking News, articles and other resources available including:

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Posted by Cynthia Marcotte Stamer

Dollar General Stores Assessed Added $1.6 Million in OSHA Penalties For Safety Violations

November 28, 2022

More than $9.6 million in penalties imposed by the Occupational Safety and Health Administration (“OSHA”) against Dollar General Corp. and Dolgencorp LLC – operator of more than 18,000 Dollar General discount stores in 47 states (“Dollar General”) send a clear warning to other businesses to both ensure their safety processes and resources can withstand a safety event or audit under the Occupational Safety and Health Act (“OSH Act”) and to effectively address any safety issues identified by OSHA in audits or other enforcement actions.

Last month, OSHA announced Dollar General faces $1,680,216 in proposed OSHA penalties for OSH Act safety deficiencies identified during inspections at four locations in Alabama, Florida and Georgia. The newly announced penalties would bring the OSH Act penalties paid by Dollar General Stores to more than $9.6 million in total initial penalties the company has received since 2017.Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s workers by setting and enforcing standards, and providing training, education and assistance.

According to OSHA, OSHA has conducted 182 inspections since 2017 at Dollar General locations nationwide where agency inspectors often find unsafe conditions that put workers’ safety at risk if they need to exit quickly in an emergency. In keeping with this historical pattern, OSHA says inspections conducted in April 2022 in Mobile and Grove Hill, Alabama; Tampa, Florida; and Dewy Rose, Georgia revealed four willful and 10 repeat violations for failing to keep receiving and storage areas clean and orderly, and stacking materials in an unsafe manner. These violations exposed workers to hazards associated with slips, trips and being struck-by objects. OSHA citations also included those for exposing workers to fire and entrapment hazards by failing to keep exit routes and electrical panels clear and unobstructed. Finally, the company received citations for failing to mount and label fire extinguishers, and having a locked exit door that required a key to open. These violations mirrored violations OSHA previously at Dollar General locations across the nation, and those identified in the last 11 months at five other stores in the Southeast.

In December 2021, an inspection in Mobile led OSHA to propose $321,827 in penalties for exposing workers to slip and trip hazards, and not keeping the main storeroom orderly to allow a safe exit in an emergency. In February 2022, OSHA proposed $1,048,309 in penaltiesafter inspections at three other Mobile locations and one in Dalton, Georgia, found similar hazards. In August 2022, after inspections at three other Georgia locations, OSHA proposed $1,292,783 in penalties for exposing workers to fire and entrapment hazards by failing to keep exit routes and electrical panels clear and unobstructed.

The most recently proposed penalties, alone or in conjunction with previous citations demonstrate the substantial liability businesses can face for failing properly to manage their OSH Act responsibilities and the heightened scrutiny that a business failing to address safety deficiency is likely to face by OSHA. The magnitude of these exposures could be further heightened by judgements or penalties resulting from private actions, state occupational safety act enforcement, worker’s compensation benefits, and other related legal risks. Other employers should heed the lessons being imposed upon Dollar General and take the necessary steps to establish and maintain their OSH Act compliance defenses.