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emPower eLearning: May 2011

emPower eLearning

Tuesday, May 31, 2011

Compliance Considerations for Accredited Office-Based Surgery Practices When Hiring Employees and Contractors

For New York State accredited office-based surgery practices (“OBS”), the terms of continued accreditation (varying with an OBS’ specific accrediting agency) often come with strict requirements and guidelines concerning the hiring and retention of employees and independent contractors.  Most unexpected (and often overlooked by OBS employers) are the requirements and guidelines that reach far beyond the customary licensure and/or certification requirements and expand into areas that an OBS employer might consider (understandably) to be “private business decisions” or “matters of professional judgment.” It is in these outlying areas that OBS employers must be well versed in order to avoid inadvertent compliance breaches.

When hiring new employees and/or independent contractors, OBS employers must review their accreditation manuals with a specific focus on the following categories of employees and/or contractors:

(a)          Registered Nurses: when hiring Registered Nurses, OBS employers must confirm, among other things, (i) instances of treatment requiring the presence of a Registered Nurse(s) (including pre and post operative care), (ii) licensure, continuing education and liability insurance requirements, (iii) requirements concerning maintenance of medical records and supporting documentation and (iv) reporting requirements concerning adverse events; 

(b)          Physicians’ Assistants and/or Specialists’ Assistants: with regard to Physicians’ Assistants and/or Specialists’ Assistants, special attention must be give to rules and regulations concerning (i) the presence and/or supervision of a physician at the OBS facility, (ii) availability of and/or access to a physicians upon request of the patient, (iii) maintenance of medical record, auditing and quality control initiatives, (iv) licensure, continuing education and liability insurance and (v) reporting requirements concerning adverse events;

(c)           Anesthesiologists: in addition to the state and federal laws concerning and/or affecting financial and work relationships among physicians (i.e., Stark Laws, Anti-Kickback Statutes, False Claims Act), OBS employers must review all rules and regulations concerning: (i) the Anesthesiologist’s access and availability to patients, (ii) pre and post operative care directives, (iii) directives concerning maintenance and support of Anesthesia equipment, medication and/or supplies, (iv) maintenance of medical records, auditing and quality control initiatives, (v) board certification, licensure, continuing education, and liability insurance and (vi) reporting requirements concerning adverse events;

It is important to note that most of these “employment requirements” can be outlined as conditions of employment in an employment contract or independent contractor agreement between the OBS employer and the employee/contractor.  Documenting and outlining relevant accreditation-mandated employment requirements, in addition to clarifying the potential employee/contractor’s responsibilities and obligations, demonstrates a good faith effort to comply with all applicable accreditation mandates and delegates applicable accountability.


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Saturday, May 28, 2011

Education Department Clarifies E-Reader Accessibility Rules

The U.S. Department of Education today released a new guide to laws and rules colleges must follow to ensure e-reading devices and other emerging technologies are accessible to all students. It focuses on students with vision problems, a group whose access issues have triggered official complaints against colleges. The document, in the form of “Frequently Asked Questions,” was published in response to the department’s “Dear Colleague” letter to college presidents on the subject last June.

If colleges use e-readers, or other emerging technologies, blind students “must be afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students,” according to the department.

The department doesn’t discourage the use of emerging technologies but indicates that colleges should assess whether a new technology is accessible, or could be modified to be accessible, before using it.

Colleges can offer alternative versions of a text or technology to students with disabilities, as long as the alternative is “equally effective and equally integrated.”

This means that offering an e-text on a tablet device, such as the iPad, that has more options for the visually impaired, could be an effective alternative to an e-reader version.

An audio book might not do the trick, though.

Christopher Danielsen, a spokesman for the National Federation of the Blind, explains that the requirements of equal effectiveness and integration mean that an alternative text needs to offer all the capabilities of a traditional or e-text. This includes the ability to navigate to a particular section or page, an audio explanation or larger-font version of tables and charts, and, for e-textbooks, equivalent alternatives to interactive features, such as quizzes and note-taking tools.

“The blind student needs to be able to do all the other things that students do,” he says.
He says it is important that the department’s document makes clear that the requirements apply to all new technologies, not just e-readers.

His organization filed a federal complaint last year against Penn State University for its “pervasive and ongoing discrimination” against blind students through its use of a course-management system, library catalog, and departmental Web sites that were not accessible.

The Dear Colleague letter last June came in part because of a lawsuit filed in 2009 by the Federation and the American Council of the Blind against Arizona State University, which was planning to offer a pilot program using Amazon’s Kindle e-reader device. Arizona State settled, promising to use only accessible e-reading devices.

This article was originally posted at  http://chronicle.com/blogs/wiredcampus/education-deptartment-clarifies-e-reader-accessibility-rules/31507

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Tuesday, May 10, 2011

Considering Social Media, Mindful of HIPAA


Social Media is the latest fad to sweep the world and has ignited debate about issues of privacy that are similar to the concerns that resulted in the passage of HIPAA. Some feel that privacy is irrelevant and that the benefits (whatever they may be) of free access to everything about everyone outweighs any harm that could be done by allowing such access. Others think that everything should be absolutely protected and private unless the individual authorizes its release (and maybe not even then).

These are the polar positions. Reality is swimming around somewhere in the middle. The fact is that no matter how hard one tries to “hide” from electronic view, it is virtually impossible unless you are a recluse, living off the land and completely shunning society and the economy. Otherwise, there are so many records available online that any notion of being anonymous or private is illusory. Of course, the fact that information is unavoidably available is not a good reason to reveal everything else, as the permissive pole advocates.


In healthcare, there are HIPAA “Hawks” and “Doves.” The regulations state that a covered entity is permitted to use or disclose protected health information for the purpose of treatment, payment, or healthcare operations. The Hawks, often administrators or IT people, appear to be concerned more by the legal consequences of violating the regulations required and less about the negative impact on care if information cannot be accessed. To them, virtually any access or transfer of information constitutes a release or disclosure and is forbidden unless specifically authorized by the patient. The Doves tend to take a broad view of treatment and healthcare operations and fall somewhere in the middle of the poles described above. Privacy is desirable but when someone’s care depends on communication with others (whether family members or other practitioners), the Doves believe that these are a legitimate part of treatment and healthcare operations and are allowable without explicit consent.

Communications that fall into the allowable category are easy to accomplish over the phone or in writing but become very challenging if attempted electronically due to HIPAA security regulations that require levels of security that are incompatible with the public Internet. The requirements for encryption and the like virtually necessitate the creation of private networks, but the very presence of private networks makes much of the necessary communication impossible. Almost by definition, if everyone that might need to participate in the communication was part of the private network, it wouldn’t be private any more.

There are two keys to making sense of all this. One is to look at actual behavior; the other is to take a different approach to patient consent regarding privacy matters.


It appears that most people will allow the use of specific pieces of otherwise private data if they get something of value in exchange, such as convenience, access to information or the chance to shop. In other settings, such as Facebook, many people happily (apparently) post all sorts of information that you or I might consider too private to reveal. The conclusion is that while many people are concerned about privacy (and their concerns should be respected) not everyone who claims to value privacy acts in accordance with their stated beliefs. If you have something valuable to offer them, most will agree to take the slight increased risk to their privacy in order to take advantage of what you have to offer.

My conclusion, and it’s only my opinion, is that the way to deal with this is to develop an informed consent policy relating to your data practices that tells patients what you intend to do regarding unencrypted e-mails, faxes, and social media sites. If you believe that these sorts of communication opportunities, which have the potential to violate strict privacy standards, would in fact benefit your patients and your practice, then the best thing to do is to tell your patients. Give them an opportunity to opt in (if you have a way to respect the wishes of those who don’t) or give them a chance to choose a different doctor that does not use social media and electronic communications. You may end up attracting more patients than you lose. I’m not a lawyer but it seems to me that any “disclosure” to which the patient has given their explicit, fully informed consent would be defensible against a claim of it being a HIPAA violation.



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Wednesday, May 4, 2011

MassCOSH: 47 Massachusetts Workers Died on the Job in 2010; Improved Safety Oversight Needed


The report, which is produced by the Massachusetts AFL-CIO, the Massachusetts Coalition for Occupational Safety and Health (MassCOSH) and the Western Massachusetts Coalition for Occupational Safety and Health (Western MassCOSH), stressed that workplace fatalities are preventable.

“Of the 47 families who suffered the pain of losing a loved one at work this year, many have to struggle with the fact that an existing safety regulation could have saved their loved one’s life,” said Robert Haynes, president of the Massachusetts AFL-CIO. “All an employer had to do was care enough to properly implement it.”

The report called for strengthened OSHA regulations and enforcement; increased immigrant worker protections, such as additional bilingual investigators and stronger whistleblower protections; work schedules and staffing arrangements that do not promote workplace injuries or illnesses; comprehensive workplace safety programs; and more.

“OSHA lacks funding, staff and tools to deter violations,” the report stated. “Fatal and serious workplace injuries in 2010 continued to occur because Massachusetts employers ignored OSHA regulations and failed to institute basic safety measures. Strong government regulations and enforcement – including criminal prosecution – is essential, but often lacking.”

Report Highlights:
  • Ten worker fatalities, or 21 percent, occurred in the construction industry;
  • Transportation (12 fatalities), falls (9 fatalities), commercial fishing (four fatalities) and workplace violence (three fatalities) otherwise accounted for the majority of worker deaths in Massachusetts;
  • Fatally injured workers ranged in age from 18-77, with an average age of 50;
  • Just over half of workers who died on the job were age 50 or older;
  • Temporary workers and Latino employees may face an increased risk for workplace injury, illness or death;
  • Approximately 440 additional workers in Massachusetts died from occupational diseases in 2010.
The 47 fatalities showed a decline compared to the 62 on-the-job deaths that occurred in the commonwealth in 2009. Even so, the report explained that worker deaths in Massachusetts have fluctuated in recent years, and declines in worker deaths typically have been followed by an increase the following year.

“Dying for Work in Massachusetts” was released in conjunction with Workers’ Memorial Day on April 28. Download a copy of the report here.

This article was originally posted at  http://ehstoday.com/safety/management/masscosh-workers-died-safety-oversight-needed-0502/

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Repeat, Fall Hazards Add Up to $125,818 Fine for Aluminum Finishing Firm

OSHA has issued Aluminum Finishing LLC in Adel, Ga., 18 safety citations for a variety of hazards, including a lack of fall protection and dangers from the corroded components of the facility's structural integrity. Proposed penalties total $125,818. OSHA opened an inspection in October 2010 as a follow-up to an April 2010 inspection and a complaint alleging the hazards.

Aluminum Finishing, which anodizes aluminum products, was issued one willful citation with a penalty of $53,900 for exposing employees to fall hazards while walking on top of a steel beam without proper fall protection.

The company was issued six repeat citations with $43,120 in penalties for failing to have employees use fall protection while working above dip tanks, ensure emergency lighting is operational, guard live electrical equipment, cover open troughs to prevent tripping, and provide sanitary conditions for workers. The company was cited for similar violations in October 2008 and April 2010.

Eight serious citations with $28,798 in penalties were issued for allowing employees to work near a dip tank without the proper eye or face protection; exposing workers to shock, electrocution and burn injuries; not properly adjusting the work rest on the floor grinder; and having an emergency eye wash unit with inadequate water pressure. The inspection also revealed that workers were exposed to struck-by hazards from corroded ceiling objects, including sprinkler system pipes, metal wall sheathing, and light fixtures.


The company received three other-than-serious citations with no proposed penalties for failing to establish or implement a written respiratory protection program, anchor the floor grinder to the floor, and mount a portable fire extinguisher.

"This company has disregarded the safety of its employees and repeatedly allowed them to be exposed to struck-by hazards from structural failure, electrocution hazards and falls," said Robert Vazzi, OSHA's area director in Savannah. "Immediate action needs to be taken to protect employees from these workplace hazards."

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