ADA and Title VI of the Civil Rights Act
Employers with more than 15 employees are prohibited by Title 1 of the Americans with Disabilities Act of 1990 from discriminating against qualified individuals in hiring, firing, and other conditions of employ- ment. A disabled person is defined as having a mental or physical impairment that substantially limits one or more major life activities.
ADA also applies to hearing-impaired patients. Health care providers are required to provide and pay for auxiliary aids and services to ensure effective communication with patients who have disabilities affecting hearing, vision, or speech, so long as the cost does not impose undue hardship. Undue hardship is defined as an action that is excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. An auxiliary aid or service, which exceeds the fee for treating the patient, is not by itself considered an undue hardship. Patients with limited English proficiency must be accommodated under Title VI of the Civil Rights Act. Written policies should exist on how to obtain interpreter services.
It is important to know how to write a fair job description, which will protect you from charges of discrimination in hiring or retaining a
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disabled worker. Identify the essential functions of each job. An essen- tial function is a truly fundamental job duty. For example, a typist must be able to type, a receptionist must be able to deal with the public in person and on the telephone, and a phlebotomist must be able to draw blood. A function may also be essential if it is essential in your opin- ion. For instance, not all nurse practitioners may perform colposcopy or endometrial biopsy, but the APN may choose to identify it as an essen- tial job function. It is important to identify minimum productivity stan- dards, such as, in the case of the typist, the ability to type 60 words per minute. This helps prevent the APN from being forced to hire or con- tinue employment for someone who is disabled and can now type only 3 words per minute.
The Fair Labor Standards Act (FLSA)
The FLSA exists to ensure fair compensation under the wage/hour law to employees. The FLSA requires employees be paid at least minimum wage for all hours worked and time and a half for all hours worked over 40 in a work week. An executive, administrative, or professional employee is classified as exempt from overtime requirements if paid on a predetermined salary basis, which is not subject to reduction due to variations in the quality or quantity of work performed. However, the employee does not need to be paid for a week in which the em- ployee did no work. Overtime compensation may be paid to exempt employees without destroying their exempt status. If a worker files a complaint with the Department of Labor and an investigation by the Wage and Hour Division ensues, the employee is protected against retaliation.
Worker's Compensation
The worker's compensation system was established to provide an expe- ditious administrative program to provide benefits to an injured worker as a result of an industrial accident or occupational exposure. The benefits are to be awarded with minimum delay and regardless of fault.
The system provides a direct remedy to the worker and limits litigation and exposure to the employer. Recovery for the injured employee is
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based upon a statutory scheme enacted by the legislature, which limits the employer's liability. The injured worker is limited to a percentage of his or her weekly earnings for temporary disability benefits and to a statutory schedule for permanent disability benefits. Under the worker's compensation system, the injured worker is not permitted to recover against the employer for negligence, pain and suffering awards, or puni- tive damages.
Drug Enforcement Administration (DEA) Regulations
The DEA is a federal agency whose mission is to enforce controlled sub- stances laws and regulations and bring to justice anyone involved in the growth, manufacture, or distribution of controlled substances. You may obtain the Mid-Level Practitioner's Manual: An Informational Outline of the Controlled Substances Act of 1970 from the DEA. It addresses reg- istration requirements and guidelines for prescribers of controlled sub- stances. There is also a listing of mid-level practitioner authorizations by state on the DEA Diversion Web site: www.deadiversion.usdoj.gov Patient Confidentiality
Federal law requires health care providers to protect patient confiden- tiality. Special provisions are made for patients with mental health or substance abuse problems and nursing home residents. Patients should only be discussed in private areas, and their records should be kept out of view of other patients. Written documents should only be sent if the patient has signed a release form.
The Stark Acts
The Stark Acts prohibit physician referral of a patient covered by Medicare to designated health services when the physician or an imme- diate family member has a financial relationship with the facility pro- viding those health services. There is an exemption that allows a physician to refer a patient to another physician in the same group prac- tice without it being deemed a violation of the self-referral law. How- ever, it is unclear whether this is intended to cover services by a nurse practitioner.
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The Clinical Laboratories Improvement Act (CLIA)
CLIA has federal jurisdiction over clinical laboratories, including small office laboratories. Practices may file for a letter of exemption from CLIA if the laboratory tests performed are limited to fecal occult blood, urine pregnancy tests, blood glucose, urinalysis by dipstick, and office microscopy, such as wet mounts.
Occupational Safety and Health Administration (OSHA) and Health and Safety Management
Occupational safety and health may be administered by either a state agency or the federal OSHA agency. In addition, you will want to develop a health and safety policy and procedures manual for your prac- tice that covers the following areas:
• Infection control
• Needle sticks and other sharps injuries
• The OSHA Bloodborne Pathogen Standard
• Occupational exposure to tuberculosis
• Occupational exposure to chemicals used in medical practice
• The OSHA Hazard Communication Standard
• Pharmaceuticals and controlled substances
• Medical gas handling and storage
• Medical equipment safety
• Servicing machines and equipment
• Personal protective equipment
• Latex glove allergy
• Hazardous and medical waste management
• Employee safety and health training
• Ergonomics
• Workplace violence
• Indoor air quality
• Patient safety program and emergency management
• Injury and illness reporting and investigating
• Worker's compensation and reporting requirements
• Program evaluation
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Avoiding Medicare Billing Errors
The Department of Justice enforces the Center for Medicare and Med- icaid Services (CMS) rules on billing for Medicare patients. The Amer- ican Medical Association (AMA) jointly developed the office visit coding with CMS. If a visit has been up-coded from the appropriate coding and it is discovered through an audit, nurse practitioners can be charged with Medicare fraud and/or abuse. For specific questions on Medicare billing, download the Medicare Carriers Manual at www.cms.gov.