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emPower eLearning: February 2012

emPower eLearning

Monday, February 27, 2012

Federal government helps keep workers safe

For years, so-called "conservative" politicians and their boosters have advocated the wanton abolition of federal regulatory agencies, as if it were a cure-all that will return the nation to prosperity and well-being for all. I'm reminded that the hero of most politicians who self-identify as conservative is Ronald Reagan, who often expressed a desire to abolish OSHA Training, the Occupational Safety and Health Administration, as if that somehow would be good for working people.

I wonder whether the survivors and loved ones of the 29 miners killed in the explosion and collapse of the Massey Coal Corporation's Upper Big Branch mine in West Virginia two years ago, whatever their politics, would agree. After all, it was the federal Mine Safety and Health Administration (MSHA) that sought justice for the survivors of those killed by that avoidable disaster, which has been proved to be the result of Massey's systematic negligence and disregard for mining safety laws and refusal to follow best-industry practices. The $209.5 million settlement secured by the hard work of federal employees of the MSHA, and the upcoming criminal prosecution of at least one of the Massey executives responsible for the deaths of 29 honest, hard-working employees, should give pause to anyone who would like to believe that all federal agencies and employees are ineffective and redundant. Does anyone really think that local or state officials in West Virginia would have had the wherewithal to take up the case for providing justice to the widows, orphans and other loved ones of those killed in Massey's mine?

How amazingly silent conservative politicians, their boosters and right-wing media outlets have been on this issue! I wonder why. Anyone espousing anti-federal government rhetoric (many of the strident voices of the so-called Tea Party come to mind) might well want to consider how many more would be killed or maimed in dangerous industries nationwide were it not for highly competent federal inspectors in sufficient numbers in our mines, meat packing plants and other dangerous workplaces.

Such vital inspection is in constant danger of being gutted by politicians who look first at the bottom line and not at the human toll of their flailing budget axes. I'm willing to bet that in West Virginia these days, thousands and thousands of people are glad to pay federal taxes that are dedicated to the MSHA and to the federal attorneys whose actions are the best hope of preventing needless deaths in the nation's mines and guaranteeing that there will be no impunity for those who place a corporation's profits above the lives and safety of their employees. Robust protection of the health and safety of any household's breadwinners is a vital federal responsibility to all in this nation and a family value. Just ask anybody who knows a coal miner.

Mark Trafton

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Hospital incident deserves investigation, disclosure

It’s called the Health Insurance Portability and Accountability Act. Most who have a passing familiarity with it simply use the acronym, HIPAA Training.

And like anything created by government, it has multiple sides, angles and provisions. It also comes with reams of confounding, jargon-filled paperwork.

People from all walks of life encounter it every day for a variety of reasons but many are unaware of precisely what it is or does. The most common instances, though, involve privacy for patients of doctors, in hospitals or myriad medical facilities.

Citing a government website, the HIPAA Privacy Rule “provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. At the same time, the Privacy Rule is balanced so that it permits the disclosure of personal health information needed for patient care and other important purposes. The Security Rule specifies a series of administrative, physical, and technical safeguards for covered entities to use to assure the confidentiality, integrity, and availability of electronic protected health information.”

That’s a long way of saying that HIPAA keeps information about patients from being released to people or entities patients don’t wish to receive it. The regulation was created as a way to protect the privacy of the public on a case-by-case basis. As a result, it changed the way hospitals and other organizations release conditions of injured patients for example. It also altered the way newspapers or other media outlets — and even police or other investigating agencies — do their jobs.

All of this is prelude to a larger point concerning a troubling incident that allegedly occurred last week at Alamance Regional Medical Center. According to Burlington police and hospital officials, a Greensboro man was taken into custody on an allegation that he raped a woman while both were patients at the hospital. Such events are exceedingly rare. Police and those with ARMC could not think of another similar case at the hospital.

At the moment, largely because of HIPAA privacy regulations, there are more questions than answers about an alleged crime that potentially occurred at a place most would logically consider and reasonably expect to be a secure environment. How and why really only constitute a beginning.

The matter first came to public attention Monday night after Dennis Patrick Cronin, 29, was arrested earlier in the day on a warrant charging him with second-degree rape. Authorities say the alleged rape occurred in the 27-year-old woman’s room Thursday. She reported it to hospital personnel on Friday after Cronin was discharged.

Citing HIPAA regulations, neither police nor hospital representatives can say why either patient required hospitalization or what unit their rooms were in. Hospital spokeswoman Tracey Grayzer could only say that patients receive frequent visits by staff members and that nurses are available by call buttons in individual rooms.

“Under federal law, we are obligated to protect patient privacy — both the privacy of the patient and the suspect — and are unable to comment further,” Grayzer said.

For the moment that leaves people in the community with only sketchy information about an incident of concern. Patients in hospitals are often incapacitated and in a vulnerable position. Where and how the alleged attack occurred leads to questions about whether security measures at ARMC are tight enough or what could or should have been done to prevent this or future incidents?

Officials at ARMC are cooperating with the police investigation and we applaud them for doing so. It’s also our hope that an outside agency will look into how things were handled in this particular case and issue a report that will be available to the public.

HIPAA was enacted to protect the privacy of individuals, not shield the public at-large from important information it has a right to know.

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Thursday, February 23, 2012

Jeb Bush’s Rally For Education Reform

Last year the Florida legislature passed CS/CS/HB 7197, the Digital Learning Now Act. The bill, which passed with support from both sides of the aisle and was signed by Governor Rick Scott on June 12, 2011, expands school choice by increasing digital learning options for students.

Specifically, the legislation authorizes establishment of virtual charter schools, authorizes blended learning courses, and allows K-12 students from anywhere in the state to enroll in Florida Virtual School Full Time (FLVS FT). Previously, students could only enroll in the school if they lived in approved school districts. Also, students used to be required to attend a brick-and-mortar public school before enrolling in FLVS FT – but, the Act removes that restriction.

Now, students in kindergarten, 1st grade, and grades 6-12 can directly enroll in the comprehensive program. Students in grades 2-5 must still meet the “prior public school enrollment” requirement, however.

Parents, students, teachers, supporters of last year’s measure were initially ecstatic about the prospects of the 2012 school year, especially with regard to virtual charter schools. Unfortunately, the promise of expanded education options has not panned out for all Floridians.

Last week the Florida Chapter of the National Coalition for Public School Options (NCPSO) called for the Florida School Boards to follow the law and provide parents with more school choice options. The group, which is made up of parents that support and defend parental access to the best public school options, is calling the Florida School Boards out on the lack of virtual charter school applications that have been approved. In a statement, the Florida Chapter of NCPSO said:

“Since the passage of this law, 33% of all charter school applications have been approved; while in contract only 3 of the 53 applications for virtual charter schools have been approved.”

According to some parents, there are boards which are not even providing a public forum for applications to be considered.

To raise awareness and to move Florida School Boards to make good on what the legislation promises, NCPSO is holding a rally tomorrow, February 22 in Tallahassee.

In a pre-rally teleconference last week Governor Jeb Bush, founder and chairman of the Board of the Foundation for Excellence in Education, spoke to teleconference attendees about education reform.

“In monopolies you’re told where you go and how you’re child is going to learn,” said Bush. “And historically we’ve accepted that. But, in Florida and all across the country there are many more options available… Passing laws that make it easier and more transparent for schools to start or expand charter programs is critical.”

The Foundation for Excellence in Education, whose mission is to ignite a movement of education reform state by state, believes in three main principles:

All children can learn;
All children should learn at least a year’s worth of knowledge in a year’s time;
All children will achieve when education is organized around the singular goal of student success


Bush travels the nation advocating broad base reform including each child’s right to learn at his or her own pace and that they achieve maximize learning potential. He noted that digital classrooms are really the way to accomplish the task at hand.

“We should create great learning opportunities recognizing the uniqueness of each child,” the former Governor argued. “Children learn at different paces and in different ways. The beauty of digital learning is that it can be combined with all sorts of software and learning/teaching techniques where you move to a customized learning experience.”

He said that despite Florida being a leader in education reform he said,

“You have to stay engaged. I hope you’ll be able to go to Tallahassee to put a human face and human context around these laws to provide support for the sponsors of these bills that mediate some of the problems that exist and open the system up a bit more… People sometimes in frustration think that their voice cannot be heard, but I respectfully disagree. There are great things you can do to get involved.”

Registration for School Choice Day at the Capitol rally begins at 10:00am. The rally begins at 12:15pm and is free to participate.

For more information on the rally, click here.

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Tuesday, February 21, 2012

Perception, Work-Life Balance Key Factors in Workplace Safety, Study Says

Companies that run in a smooth and effective manner and have minimal constraints on worker performance can decrease injuries by 38 percent as worker opinions improve, according to survey results.

According to a recent University of Georgia study, a worker’s perception of safety in the workplace and the work-life balance established by businesses has a significant effect on on-the-job injury.

“We’ve known for some time that certain occupations are more dangerous than others due to a variety of physical and other hazards,” said Dave DeJoy, UGA professor of health promotion and behavior. “But in the last 20 years, there has been growing evidence that management and organizational factors also play a critical role. That is, actions taken or not taken at the organizational level can either set the stage for injuries or help prevent them.”

DeJoy and Todd Smith, a recent graduate of the Health Promotion and Behavior doctoral program in the UGA College of Public Health, authored a study to examine U.S. safety climate perceptions among a diverse sample of occupations and worker groups—from offices to factories—and to highlight the factors linked to injury. The results will appear in the March issue of the Journal of Safety Research.

Companies that run in a smooth and effective manner and have minimal constraints on worker performance can decrease injuries by 38 percent as worker opinions improve, according to survey results. A worker’s perception of a positive safety climate can decrease injuries by 32 percent. The safety climate category assessed worker perceptions on the importance of their safety in their work organization.

“We can design the best safety controls, but they must be maintained, and that falls on management,” Smith said. “Enacted policies and procedures—not formalized ones but those acted upon—define a climate of safety.”

In addition to factors identified by the study to decrease injuries, work-family interference was established as a significant risk for occupational injury.

“We used to think work was one thing and family was another, but now there is a realization that work-life balance affects performance and productivity,” DeJoy said.

The study looked at the mutual interference between job and family demands. In situations where work interferes with family life or family demands affect job performance, they found that the risk for injury increased 37 percent.

Consistent with previous studies performed by the Department of Labor Statistics, they found whites had higher injury rates than blacks, but both had lower rates than the “other” category, which is predominately made up of Hispanics.

“These results provide guidance for targeting interventions and protective measures to curtail occupational injury in the U.S.,” Smith said.

DeJoy was part of a team of researchers that worked with NIOSH to put together a quality of work life survey module that featured a number of scales and measures assessing different job and organizational factors. This module was included as part of the General Social Survey and administered to a national representative sample of American adults.

In their study, DeJoy and Smith assessed occupational injury risk in terms of socio-demographic factors, employment characteristics, and organizational factors for 1,525 respondents using data from the quality of work life module. The study identified race, occupational category, and work-family interferences as risk factors for occupational injury and safety climate and organizational effectiveness as protective factors.

“The data suggests effects are pronounced and generalized across all occupations,” Smith said.

“Most prior research on organizational factors has focused on single occupations or single organizations,” DeJoy said. “There has been a clear need to examine these factors across a diverse array of occupations and employment circumstances to see how generalizable or pervasive these factors are.”

The nine factors they examined were participation, work-family interference, management-employee relations, organizational effectiveness, safety climate, job content, advancement potential, resource adequacy, and supervisor support.

This Article Originally Posted here 

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Efforts to Reduce Injuries and Fatalities in Residential Construction Extended by OSHA

OSHA has added another 6 months to its temporary enforcement measures in residential construction. The temporary enforcement measures, now extended through Sept. 15, include priority, free, on-site compliance assistance; penalty reductions; extended abatement dates; measures to assure consistency; and increased outreach.

Over the past year, OSHA has worked closely with the residential construction industry, conducting over 1,000 outreach sessions nationwide to assist employers in complying with the new directive. OSHA Training will continue to work with employers to ensure a clear understanding of, and to facilitate compliance with, the new policy.

Falls are the leading cause of death for residential construction workers.

Falls are the leading cause of death for residential construction workers.

Falls are the leading cause of death for workers engaged in residential construction. Under 29 CFR 1926.501(b)(13), workers engaged in residential construction six (6) feet or more above lower levels must be protected by conventional fall protection (in other words, guardrail systems, safety net systems, or personal fall arrest systems) or other fall protection measures allowed elsewhere in 1926.501(b).
(Although the standard does not mention personal fall restraint systems, OSHA will accept a properly utilized fall restraint system in lieu of a personal fall arrest system when the restraint system is rigged in such a way that the worker cannot get to the fall hazard.)

If an employer can demonstrate that the fall protection required under 1926.501(b)(13) is infeasible or presents a greater hazard, it must instead implement a written fall protection plan meeting the requirements of 1926.502(k).

OSHA's Web page also has a wide variety of educational and training materials to assist employers with compliance. Multiple easy-to-read fact sheets, PowerPoint and slide presentations, as well as other educational materials are available on the Fall Protection in Residential Construction page.

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Wednesday, February 15, 2012

Worker Survives 80-Foot Fall: OSHA Cites Employer for Hazards

Luck was with a worker on Sept. 28, 2011, when he fell 80 feet to a lower level from the top of a 118-foot-high scaffold and survived. The same can’t be said of masonry contractor Navillus Contracting Tile Inc., which was cited by OSHA for alleged repeat and serious violations of safety standards at the Brooklyn, N.Y. worksite.

“This employee is fortunate to have escaped death, but what is unfortunate is that this fall occurred in the first place,” said Kay Gee, OSHA's area director for Brooklyn, Manhattan and Queens. “It is effective scaffold maintenance, work practices and fall protection – not luck – that are essential to protecting workers against life-threatening falls.”

An inspection by OSHA’s Manhattan Area Office found that the scaffold platform was not fully planked and lacked guardrails, an aluminum access platform was not secured against displacement, another worker was not tied off to a safe anchorage point and employees accessed work areas by climbing up and down the scaffold frames. These conditions resulted in citations for six serious violations, with $36,000 in proposed fines. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

One repeat violation with a proposed fine of $38,500 involves a lack of guardrails. A repeat violation exists when an employer previously was cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last 5 years. OSHA cited Navillus in September 2008 for a similar hazard at a Bronx worksite.

“To prevent hazards such as these, employers should implement effective illness and injury prevention programs in which they work continuously with their employees to identify and eliminate hazards,” said Robert Kulick, OSHA's regional administrator in New York OSHA Training.

Detailed information on scaffolding hazards and safeguards is available at http://www.osha.gov/SLTC/scaffolding/index.html.

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Monday, February 13, 2012

Blended learning as future of education

Much like everything else that worries the enhancement of world and development of lifestyle and understanding, the area of education has certainly seen several advancements and improvements with regards to how to better train a student, make better the deliverance of the correct knowledge, and assist in better conception and understanding of knowledge application. There have been many attempts into new methods like the digital learning and online learning and incorporation of these new techniques with the traditional techniques in order to come up with a better way to enlighten the education of the students. Various research and tests have been done in different educational institutes around the world on these new techniques, which is now known among all the people as "blended learning".

Blended learning is a combination of classroom training along with online learning. Training that takes place in the classroom is done with the help of a teacher. In this type of learning the student –teacher interaction is direct and face to face and the teacher handles the content and the speed of the class going on. In spite of many misunderstandings, online learning can also be directed by the teacher.  Through the online learning or digital learning the teacher can instruct her students through the webcast where they can see and interact with their teacher through the projector screen or the computer screen. Teachers can also post classes and make projects that learners complete on their own. The trainer still handles the content of the lessons and sets up the final time limit, but in online learning students are independent to choose how, when and where they want to learn.

Through blended learning, students get the opportunity to benefit from the type of learning i.e. classroom learning and as well as online learning. In classroom learning student gets direct training, he/she participates in various activities and learns to socialize with other peers in the class.  At the same time in online learning, students have the opportunity to work in relaxed surroundings of their choice, they can learn at their own speed, and they even learn the importance of managing their own time. Thus Blended learning allows students to get personal attention through eLearning or digital learning and learns the importance of discipline in classroom training along with this they become independent through online learning.

The most reported benefit of online learning is that it allows learners to learn place. It has helped many universities rise who are offering online learning solely.  There are many more traditional universities that are offering their health science classes and management training through the online learning strategy. As a result, online learning or digital learning courses help save money   by avoiding travelling for the classes unnecessarily. The best part of online learning is that students have the freedom to study the material provided as per their convenience. The students can schedule his class as per his personal, academic or professional planning for the day, week or month.

Thus Blended learning gives students the exposure to work online and allowing them to enhance their computer skills. With the help of the syllabus, students are able to use the computer on regular basis to be a active part of the class, quiz, exams and be able to communicate with their teacher and other students of the online learning class. With the help of such tools students learn the course book but also the computer skills that is very important part in building their future.

About emPower 


emPower  is a leading provider of comprehensive Healthcare Compliance Solutions through Learning Management System (LMS). Its mission is to provide innovative security solutions to enable compliance with applicable laws and regulations and maximize business performance. empower provides range of courses to manage compliance required by regulatory bodies such as OSHA, HIPAA, Joint commission and Red Flag Rule etc. Apart from this emPower also offers custom demos and tutorials for your website, business process management and software implementation.

Its Learning Management system (LMS) allows students to retrieve all the courses 24/7/365 by accessing the portal. emPower e-learning training program is an interactive mode of learning that guides students to progress at their own pace.

For additional information, please visit http://www.empowerbpo.com.

Media Contact (emPower)
Jason Gaya
marketing@empowerbpo.com

emPower
12806 Townepark Way
Louisville, KY 40243-2311
Ph: 502 -400-9374
http://www.empowerbpo.com
http://www.empowerlms.com

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Wednesday, February 8, 2012

Health attorney: Google's new privacy policy does not violate HIPAA

Could Google's new privacy policy violate of the Health Insurance Portability and Accountability Act? That's the concern of several members of Congress, who late last week discussed their worries with Google Director of Public Policy Pablo Chavez and Michael Yang, the company's attorney, according to an article on Search Engine Land.

In a nutshell, the new policy combines all of Google's privacy policies, ultimately enabling it to share user information across services. Rep. Mary Bono Mack (R-Calf.), one of the meetings attendees, said in an interview with USA Today's Technology Live blog that such sharing could create a Hipaa Compliance violation under certain circumstances.

Bono Mack talks about a hypothetical situation in which a user performs a search for cervical cancer using Google, but forget to log out, causing him or her to be tracked across other products.

"That's a violation of HIPAA," she says. "We've gone to great lengths in our society to protect people's medical information."

Healthcare attorney and consultant David Harlow, author of HealthBlawg, disagrees with Bono Mack's assessment on a number of different levels.

"I don't see the change in Google's privacy policy as leading to the erosion of protected health information under HIPAA," Harlow said in an interview with FierceHealthIT. "If you search for cervical cancer and Google shares that information across platforms, that doesn't violate HIPAA; all you've done is type in a search on a public platform."

What's more, Harlow says that by searching for such information on a platform like Google, a user is releasing the information themselves.

"Some may say that people wouldn't understand that they're releasing information by typing it into a search box," he says. But in this day and age, people are smarter than some assume, he adds.

Harlow says he understands some concerns associated with elderly patients using Google to search for health terms, but ultimately says the privacy policy is sound.
"From a strict legal constructionist's standpoint, the policy is sufficient," he says.

To learn more:
- read this Search Engine Land article
- here's Bono Mack's interview with USA Today

Read more here.

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mHealth Challenges Around Privacy and HIPAA

Emerging technologies are beginning to blur the traditional, clear distinctions around privacy and health data – this is especially true with mobile health (mHealth) solutions. Those involved in regulatory circles are trying to develop a cohesive framework that will encourage innovation, while at the same time protect consumer privacy.

A little background…
General consumer privacy around Personally Identifiable Information (PII) is addressed by a set of rules that affect everyone. At the federal level, PII is defined in certain standards (NIST SP 800-122), and protects confidentiality of PII in information systems from inappropriate access and disclosure. Some types of personal identification numbers, such as social security numbers or bank account numbers, are particularly sensitive (can be used to commit identity theft and steal money from bank accounts). Best-practices, particularly using Internet banking products, focus on protecting this kind of information.

Health information has an additional layer of regulation – HIPAA protects Personal Health Information (PHI) from being disclosed without a patient’s consent. HIPAA privacy and security was initially defined in the Health Insurance Portability and Accountability Act of 1996, and revised in the 2009 HITECH portion of ARRA (the same legislation that enacted the federal EHR Incentive Program, or “meaningful use”).

HIPAA defines “covered entities” (CEs) – health care providers (including doctors, hospitals and laboratories), insurers, and certain kinds of intermediaries. It also covers “business associates,” who manage PHI on behalf of CEs, and requires that Business Associate Agreements be in place to codify that the PHI is managed in a way that maintains security and privacy.

Consumer-generated health information vs. PHI
We are seeing an explosion of consumer-generated health data on the Internet, as well as in the mobile app space. A myriad of sites offer tools to help individuals track various health-related statistics, and perhaps share them socially with their friends. Things like pedometers or FitBit devices help track healthy walking and activity. Self-entered calorie counters help manage eating habits. In fact, a whole Quantified Self movement is emerging where self-tracking tools are believed to be an important feedback loop that helps enthusiasts improve their health status.

Such consumer-originated data, even though it is “health data,” is not PHI as covered by HIPAA. No HIPAA-defined CE holds this data. It is PII, and is covered by general privacy rules about that, but it is not PHI.

Now when that health data is shared with a CE – with a doctor, hospital, insurance plan, or other HIPAA-defined CE – then it becomes PHI. From the consumer side, the self-created data can be shred with anyone that individual wants – even posted on Facebook, if desired. However, the data that is shared with the doctor is PHI, and the doctor cannot share it with anyone else without the patient’s consent.

This kind of distinction makes the security requirements around data sharing a little asymmetrical. If a consumer wishes to disclose data to someone else, it can be done in a less-secured way – a regular email (which is not secure enough to meet HIPAA requirements) can state “my blood sugar this morning was 103!” and can be sent to a friend, or whomever. Sending such an email to one’s doctor, however, is a little more dicey – the doctor is a HIPAA-defined CE, and receipt of such an email would need to be protected once it is received (it becomes PHI on the doctor’s end). Better to use a secure way, such as a secure web-mail portal requiring login and password, for sending that kind of information – that way the doctor won’t need to secure the received message manually and destroy the original unsecured message.

Communication from a doctor to a patient is PHI, given that the context of the communication implies a therapeutic relationship – it thus needs to be secured. If a doctor wants to tell a patient “your blood sugar this morning was 103,” then that message needs to be protected in a way consistent with HIPAA security (a secure message, not an unencrypted email).

Where it gets fuzzy
A number of mHealth applications are emerging that bridge the gap between consumer-generated simple health data and PHI. For example, let’s consider a potential application that prompts people on maintenance medications dose-taking – it will create an alert that says “take your medication.” For the sake of example, let’s say that this smartphone app also collects some information from the patient – questions are asked like “did you take your med?” and “if not, why not?”. Or even, “would you like to see some information on alternatives?” (and render ads if answered “yes”) – or maybe not even ask for permission and offer ads for alternatives anyway.

If such a postulated app were generally available directly to the consumer, downloaded by the consumer, and used to collect one’s own health data, then it would simply be consumer-based health data – even if the data is associated with a specific cell phone number (not technically PII).

However, if that same app were “prescribed” by a HIPAA-defined CE (such as a doctor, an insurance company, or an independent pharmacy drugstore), then a therapeutic relationship is implied. If the app were designed to send that data back to its originator – back to the insurance company, or the doctor, or the retail pharmacy – then the sent-back data is PHI, and needs to be protected at HIPAA-security levels. Further, the patient needs to be able to opt-in about whether the data can/should be sent back to the CE – keeping the data oneself maintains it as simple “consumer health data” but sending it back to a CE makes it PHI.

Conclusions
Emerging technology dances the line between consumer health data and PHI. The HIPAA implications of such technology should not be feared – only taken into account when designing such systems.

When the distinction between consumer health data and PHI is clear, then the levels of security and permission that are appropriate can be built into these new products. Innovation in the mHealth space should be encouraged – after all, dramatic advances in the health of the country can emerge from such new technology. It needs to be done right, however. This is an area where early consultation around HIPAA and data privacy and security would certainly be worthwhile. We will likely see the emergence of such consultative services more and more as this new field of technology evolves.

Read more here.

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Litigating Workplace Safety and Health Disputes

Attorney Michael Taylor offers a tutorial to help you understand the litigation process required when your employer contests an OSHA citation before the Occupational Safety and Health Review Commission.

Despite the fact that the Occupational Safety and Health Review Commission (OSHRC) recently celebrated its 40th anniversary, many employers still do not fully understand the make-up of the OSHRC, the process for litigating OSHA citations and the reasons why they might want to litigate citations, proposed penalties and proposed abatements. Without this knowledge, employers cannot effectively evaluate their decision to litigate.

The OSHRC is the independent federal agency that adjudicates workplace safety and health disputes between OSHA and private industry. In the early 1970s, members of Congress feared that allowing one federal agency to set standards and regulations, conduct inspections and enforce the standards and regulations would be unfair to the regulated community, so the OSHRC was created.

As Senator Jacob Javits, R-N.Y., the author of the amendment to create OSHRC, artfully stated: “I feel very strongly that a great element of confidence will be restored in how this very new and very wide-ranging piece of legislation [the Occupational Safety and Health Act]will be administered if the power to adjudicate violations is in the hands of an autonomous body, more than one man, and more than in the Department of Labor itself. … We have a difficult piece of legislation reaching the whole of American business, involving millions of employees and tens of thousands of employers. This will give them a greater measure of confidence.”


Staffing for the OSHRC

The administrative law judges of the OSHRC perform, among other things, the duties of ruling on motions, making findings of fact and conclusions of law. Currently, there are offices in Washington, D.C. (headquarters),
Atlanta and Denver.

In addition to the judges, the OSHRC has a chairman and two commissioners who are located in the Washington office and are otherwise known as the supreme court of workplace safety and health law. They are confirmed by the United States Senate, and they serve a 6-year interval term at the pleasure of the president of the United States.

The Office of the General Counsel provides legal support to the chairman and the two commissioners. This office provides, among other things, legal advice to the members of the OSHRC regarding Petitions for Interlocutory Review and Petitions for Discretionary Review. In general, a Petition for Interlocutory Review is a request to rule on an issue before a trial has ended. A Petition for Discretionary Review is a request to rule on an issue after a trial has ended.

Why Litigiate?

There are many reasons why an employer may litigate citations, proposed penalties and proposed abatements.

First, an employer may litigate in response to administrative liability. Under the OSH Act, 29 C.F.R. § 651 et seq., a citation may be characterized as serious, willful, repeat or failure to abate. Case law also dictates that OSHA may issue a per instance or per employee penalty if the language in the standard or regulation authorizes such penalty. This is otherwise known as an “egregious violation.”

A serious violation has a maximum penalty of $7,000, a willful or repeat violation has a maximum penalty of $70,000 and a failure-to-abate violation has a maximum penalty of $7,000 per day. An egregious violation may be characterized as willful and could carry the maximum penalty of $70,000. An employer may receive, for example, 10 proposed willful violations for allegedly failing to train 10 employees. Each proposed willful violation may carry the maximum penalty of $70,000 for a total proposed penalty of $700,000.

An employer may litigate in response to the existing proposed characterizations and penalties because they are grave. If the existing proposed characterizations and penalties are not grave, an employer still might want to litigate to minimize the risk of receiving grave characterizations and penalties in the future.

An employer does not have to carry the case to trial in order to minimize the risk. In fact, a substantial portion of the contested cases settle and do not make it to a trial. An employer can minimize the risk through settlement negotiations before, during and after discovery.

Second, an employer may litigate to minimize the risk of civil liability. Approximately 32 states authorize the use of OSHA standards and citations as evidence of negligence at trial, and approximately 14 states authorize the use of OSHA standards and citations as negligence per se at trial.

Regarding the former, an employer would still be allowed to argue that it did not owe the plaintiff a duty of care nor did it breach a duty of care, the first two elements needed to establish a negligence cause of action. Regarding the latter, an employer would be prohibited from presenting a defense that it did not owe the plaintiff a duty of care nor did it breach a duty of care. In essence, an employer would only be able to present a defense regarding causation and damages, the last two elements needed to establish a negligence cause of action. These issues may arise only if an employee can get out of the state workers’ compensation exclusivity provisions, or the employee is not an employee of the employer. Many experienced plaintiff counsel will allow OSHA to do a significant portion of the legwork, and then use the OSHA case in the civil case.

Third, an employer may litigate in order to avoid criminal liability in the future. Section 17(e) of the OSH Act states that if an employer willfully violated the law and the violation caused the death to an employee, that employer shall be guilty of a misdemeanor with a maximum of 6 months in prison. Under the Criminal Fine Enforcement Act, an individual can receive a maximum criminal penalty of $250,000, and the organization can receive a maximum criminal penalty of $500,000. The United States Department of Justice handles the criminal prosecution. There may be state criminal prosecution as well. Typically, administrative litigation is stayed pending the criminal prosecution.

Fourth, an employer may litigate in order to avoid abatement. Abatement can be extremely expensive and have minimal or no safety or health benefit. When evaluating the potential cost, employers should analyze the initial and ongoing capital and labor costs needed in order to implement the abatement. When evaluating the potential safety or health benefit, employers should consult with internal or external experts. Abatement costs often are a key factor in deciding whether to proceed with administrative litigation.

Fifth, an employer may litigate because OSHA has issued a negative press release. Currently, OSHA has been issuing negative press releases with very harsh language shortly after issuing citations and proposed penalties, but prior to employers defending themselves during litigation. Dr. David Michaels, assistant secretary of labor for OSHA, calls such press releases “regulation by shaming” and asserts that press releases can be “very effective.”

OSHA Administrator Dr. David Michaels calls the agency’s negative press releases “regulation by shaming.”

A negative press release can damage an employer’s relationships with current customers and employees as well as the employer’s ability to obtain relationships with potential customers. Negative press also can damage an employer’s reputation within the local community. During settlement negotiations, an employer may want to request that any negative press releases be removed from the Internet; otherwise, the press release will live forever.

Sixth, an employer may litigate to minimize the risk of OSHA conducting a follow-up inspection. In general, history and experience indicate that employers who tend to roll over after receiving significant citations and notifications of proposed penalties often receive more follow-up inspections (and therefore more citations and notifications of proposed penalties) than employers who politely push-back. It is a misperception in the regulated community that if an employer accepts the citations and pays the penalties as proposed, OSHA will not come back to the worksite for a follow-up inspection. History and experience indicate that employers who tend to fight everything at no cost often find themselves having repeated visits from OSHA.

Seventh, an employer may litigate to get out of the Severe Violator Enforcement Program. Certain criteria must be met before an employer can be put in the program. Once an employer is in the program, OSHA may conduct nationwide inspections of the employer at the same time or over a certain period of time. This can pose a significant risk to an employer and cause major business interruptions. There is no way to get out of the program unless an employer litigates.

Eighth, an employer may litigate to eliminate an increase in workers’ compensation costs. Several states have statutes or regulations that authorize the increase in workers’ compensation payments based on safety or health violations. The commonwealth of Massachusetts, for example, requires workers’ compensation payments to be doubled when an employee “is injured by reason of serious and willful misconduct of an employer.”

Ninth, an employer may litigate to eliminate the use of citations as leverage in collective bargaining process. Many unions use citations and penalties as leverage in the collective bargaining process in attempt to force an employer to agree to develop and implement other things related to safety or health in the workplace. Ignoring the fact that an employer has already abated the citation item, unions nevertheless try to use the citations as an indication that the worksite is dangerous and therefore in need of serious safety or health improvements.

Finally, an employer may want to litigate because it has pride in its workplace safety and health program. In this regard, many employers will litigate because the cited standard or regulation does not apply to them, they did not violate the terms of the cited standard or regulation, no employee was exposed to alleged violation or no one in management knew of the alleged violation. They take pride in the fact that their written program contains safety and health rules beyond what is required in a standard or regulation; they effectively communicate those rules to employees; they take affirmative steps to discover violations of the rules through internal and external auditing; and they discipline employees accordingly when they discover violations of the rules.

Reasons to Litigate
➤The existing proposed characterizations and penalties are grave and characterized as willful, repeat or egregious.
➤To minimize the risk of civil liability.
➤To avoid criminal liability in the future.
➤To avoid the costs and/or business disruption associated with abatement.
➤To force OSHA to recall a negative press release.
➤To minimize the risk of follow-up OSHA inspections.
➤To avoid being placed in the Severe Violator Enforcement Program.
➤To eliminate an increase in workers’ compensation premiums.
➤To eliminate the use of citations as leverage in the collective bargaining process.
➤The cited standard or regulation does not apply, the employer did not violate the terms of the cited standard or regulation, no employee was exposed to alleged violation or no one in management knew of the alleged violation.

The Litigation Process

Pursuant to section 9(a) of the OSH Act, an employer has 15 working days from the receipt of the citations and notification of proposed penalties to file a notice of contest with OSHA. In general, an employer loses its rights to challenge the validity of the citations and notification of proposed penalty if the notice of contest is not filed within the 15-day period. The 15-day period does not give an employer a significant amount of time to evaluate the impact of the citations and notification of proposed penalty. That is why it is very important for an employer to understand in advance why it may want to litigate.

During the 15-day period, an employer has the right to schedule an informal conference with OSHA Training. During the informal conference, OSHA may reduce the total proposed penalty by a few dollars and re-characterize a citation item from serious to an other-than-serious violation. In general, OSHA does not make significant concessions at this stage in the process. After receipt of the notice of contest, OSHA has 15 working days to forward the notice of contest to the OSHRC for docketing. The OSHRC assigns a docket number to the notice of contest. This starts the formal litigation process.

There are two types of trial proceedings, simplified and conventional. A case qualifies for simplified proceedings if:
➤ There are relatively few citation items;
➤ The aggregate penalty is not more than $20,000;
➤ There are no allegations of willful or repeat violation;
➤ There are no fatalities;
➤ A hearing is expected to take less than 2 days; or
➤ The case involves a small employer.

A motion to remove the case from simplified proceedings must show good cause for removal. A joint motion, however, does not require a showing of good cause. In general, simplified proceedings involve the waiver of pleadings, minimal discovery and a less formal trial. Very few cases in Simplified Proceedings go to trial.

A conventional proceeding involves pleadings, discovery and a formal trial. If the proposed penalty is $100,000 or greater, the chief administrative law judge must assign a settlement judge (not the trial judge), and the parties are required to attend a settlement conference. Typically, the settlement conference is held after discovery is complete. Some settlement judges require the parties to submit a position paper that explains the strengths and weaknesses of their case and what it will take to actually settle the case and will use the information to try to persuade each party to reach a middle ground. Other settlement judges do not require a position paper and take a more hands-off approach. Experience indicates that the latter type of settlement judge tends to be less successful in resolving the case.

Very few cases actually proceed to trial. When a case actually settles depends, for the most part, on the attorney representing OSHA. Some attorneys for OSHA attempt to initiate settlement discussions early in the case after receiving the inspection file. Some attorneys for OSHA only will talk settlement after discovery is complete because it is not until after discovery is complete that counsel on both sides fully can evaluate the strengths and weaknesses of their case and advise their clients where a middle ground might be reached. Some attorneys for OSHA will only talk settlement at the eve of trial. This is designed, for the most part, to gain the most leverage as possible.

Employers must be prepared in the event that the case does not settle. This includes drafting a pre-hearing statement, preparing fact and expert witnesses for examination and assembling exhibits to be used at trial.

After the trial is completed, the administrative law judge will issue a written decision with findings of fact and conclusions of law. The administrative law judge either will affirm, modify or vacate the citations, characterizations or proposed penalties. The written decision becomes a final order 30 days from the date of docketing unless one of the parties files a Petition for Discretionary Review and the petition is granted.

If the Petition for Discretionary Review is granted, the parties will be asked to file briefs and will be given time to respond. Oral arguments may be requested, but that is rare and takes place only when there is a significant issue that affects the regulated community as a whole.

After reviewing the briefs, and oral argument if heard, the chairman and commissioners will issue a written decision. A party has 60 days from the date of the final order to file an appeal with the appropriate U.S. Court of Appeals. An employer is authorized to file an appeal in the circuit in which the violation is alleged to have occurred, where the employer has its principle office or in the Court of Appeals for the District of Columbia Circuit. OSHA is authorized to file an appeal in the circuit in which the violation is alleged to have occurred or where the employer has its principle office, but not in the Court of Appeals for the District of Columbia Circuit.

If the appeals court reverses an OSHRC decision, the administrative law judges are bound to follow the legal precedent in the OSHRC decision, not the legal precedent in the U.S. Court of Appeals decision.

Michael T. Taylor, Esq., is counsel in the Washington, D.C., office of Pillsbury Winthrop Shaw Pittman LLP. He focuses on all aspects of occupational safety and health law. He represents employers and trade associations during federal and state OSHA enforcement litigation and rulemaking proceedings. He also provides OSHA inspection counseling, safety and health compliance counseling, catastrophe management, safety and health audits, safety and health due diligence reviews and whistleblower representation for clients. In addition, he represents employers and trade associations in a wide range of industries. He previously served as acting general counsel of the OSHRC. He can be reached at michael.taylor@pillsburylaw.com or 202-663-8041.


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HIPAA Compliance: 6 Audit Questions (and Answers) for Covered Entities

Late last year, members of the Senate Judiciary Committee challenged regulators to step up enforcement of the Health Insurance Portability and Accountability Act:

“… the Subcommittee made clear that the [Office for Civil Rights’] efforts fell far short of its expectations, pointing out that, of tens of thousands of Hipaa Compliance received by OCR since 2003, the agency has levied only one formal civil monetary penalty and has settled only six other cases for monetary amounts…

The Director of OCR, Leon Rodriguez, responded … that the agency intends to put its fining authority to good use, stating ‘the real frontier is in our leveraging these new, stiff penalties that we have under the HITECH statute and expanding our utilization of those penalties’ to promote compliance.” (OCR Begins HIPAA Audits Under the Watchful Eye of Congress by Poyner Spruill LLP)
Accordingly, the OCR has begun to audit organizations that are required to comply with HIPAA Rules. For your reference, here are six questions and answers regarding the 150 audits they are planning for 2012:

1. What are regulators looking for?

“OCR has presented the audit pilot program as a ‘compliance improvement activity’ aimed at enabling OCR to better understand compliance efforts, additional types of technical assistance that would be useful, and the effectiveness of various corrective actions. However, covered entities should be mindful that if an audit reveals a serious compliance issue, OCR may initiate a compliance review to address the problem.” (HIPAA Privacy and Security Audit Program Begins This Month by Morgan Lewis)

2. Who will be audited?

“OCR has indicated that covered entities will be the focus of the initial round of audits. ‘Covered entities’ include: (1) health care providers such as doctors, clinics, nursing homes, pharmacies, etc., that transmit any information in electronic form in connection with transactions for which DHHS has adopted a standard; (2) health plans such as health insurance companies, HMOs and company-sponsored group health plans (e.g., major medical, dental, vision and health flexible spending accounts); and (3) health care clearinghouses.” (Office of Civil Rights to Conduct HIPAA Compliance Audits by Snell & Wilmer L.L.P.)

3. How are the audits structured?

“Each audit … will consist of interviews with leadership and key personnel (e.g., Privacy Officer, CIO, medical records department director), an inspection of operations with respect to privacy and security, and an assessment of compliance with HIPAA privacy and security regulations and the organization’s HIPAA policies.” (Audits for Compliance with HIPAA Privacy and Security Requirements Are on the Way - Are You Ready? by Thompson Coburn LLP)

4. How long will the audits take?

“OCR expects that an audit will typically last about 30 days. OCR’s contract auditor, KPMG, will typically be on site for 3 to 10 days of the audit, depending on the complexity of the systems involved.” (OCR Launches HIPAA Audit Program by Warner Norcross & Judd)

5. How likely is an audit?

“Given the large number of potential targets and the small sample size, it is unlikely that any particular HIPAA covered entity would be subject to this round of audits. However, the fact that OCR is commencing these audits with such fanfare is a strong indicator that HIPAA compliance is clearly on the radar of the regulatory agency. (HITECH’s Much-Anticipated HIPAA Audits Announced; 150 Unlucky Entities Will Soon Learn Their Fate by Jackson Walker)

6. How can covered entities prepare?

- Step up employee training:

“Keep in mind that HIPAA mandates training of individuals who have access to protected health information. Failure to train (and to properly document training) could result in significant liability.” (HHS Announces Immediate HIPAA Audit Initiative by Constangy, Brooks & Smith, LLP)

- Complete and compile the necessary paperwork:

“OCR expects covered entities and business associates who are the subject of the audit to provide requested information within 10 business days of the request for information. Such information will include, at minimum, documentation of their privacy and security compliance efforts (e.g. policies, forms, notices, training materials, etc.).” (OCR Publishes its HIPAA Audit Protocol: Focus to be on Data Gathering and Best Practices by Ober|Kaler)

- Conduct a security risk assessment to identify weaknesses in their procedures:

“Accordingly, it would be prudent for covered entities to revisit their policies and procedures for compliance with the Standards and ensure that they have completed and documented at least one security risk assessment consistent with the HIPAA security standards.” (OCR Rolls Out HIPAA Audit Program by McDermott Will & Emery)

- Be prepared to respond promptly to information requests:

“When a covered entity is selected for an audit, HHS will notify the covered entity in writing. The notification letter will introduce KPMG as the auditor, explain the audit process and set out the auditor’s initial document and information requests. It will also specify how and when to return the requested information to the auditor. HHS expects covered entities to provide requested information within 10 business days of the request.” (U.S. Department of Health and Human Services Announces Details of New HIPAA Audit Program by Manatt, Phelps & Phillips, LLP)

- Prepare employees who will speak to auditors:

“OCR will expect you to know which individuals in your organization can speak to each aspect of HIPAA implementation. You should make a list of these people now and ask them the kinds of questions OCR might pose.” (Audits Heat Up HIPAA Liability by Poyner Spruill LLP)

- Identify “high-impact” vulnerabilities before the audit:

“’High impact’ vulnerabilities are vulnerabilities that may (1) result in the highly costly loss of major tangible assets or resources; (2) significantly violate, harm, or impede an organization’s mission, reputation, or interest; or (3) result in human death or serious injury.” (The HIPAA Auditors Are Coming. Are You Ready? by Ropes & Gray LLP)

This article was originally posted at http://corporatelaw.jdsupra.com/post/16981839892/hipaa-compliance

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Thursday, February 2, 2012

Lighten that backpack: Obama administration challenges schools to embrace digital textbooks

dAre hardbound textbooks going the way of slide rules and typewriters in schools?
Education Secretary Arne Duncan and Federal Communications Commission chairman Julius Genachowski on Wednesday challenged schools and companies to get digital textbooks in students’ hands within five years. The Obama administration’s push comes two weeks after Apple Inc. announced it would start to sell electronic versions of a few standard high-school books for use on its iPad tablet.


Digital books are viewed as a way to provide interactive learning, potentially save money and get updated material faster to students.

Digital learning environments have been embraced in Florida, Idaho, Utah, and California, as well as in individual schools and districts such as Joplin, Mo., where laptops replaced textbooks destroyed in a tornado. But many schools lack the broadband capacity or the computers or tablets to adopt the technology, and finding the money to go completely digital is difficult for many schools in tough economic times. And, in some places, adopting new textbooks is an arduous process.

At a time when technology has transformed how people interact and even led to social uprisings in the Middle East, education has too often lagged, Duncan said.

“Do we want kids walking around with 50-pound backpacks and every book in those backpacks costing 50, 60, 70 dollars and many of them being out of date? Or, do we want students walking around with a mobile device that has much more content than was even imaginable a couple years ago and can be constantly updated? I think it’s a very simple choice,” Duncan said in an interview.

Tied to Wednesday’s announcement at a digital town hall was the government’s release of a 67-page “playbook” to schools that promotes the use of digital textbooks and offers guidance. The administration hopes that dollars spent on traditional textbooks can instead go toward making digital learning more feasible.
Going digital improves the learning process, and it’s being rolled out at a faster pace in other countries, such as South Korea, Genachowski said in an interview. Genachowski said he’s hopeful it can be cost effective in the long run, especially as the price of digital tablets drops.

“When a student reads a textbook and gets to something they don’t know, they are stuck,” Genachowski said. “Working with the same material on a digital textbook, when they get to something they don’t know, the device can let them explore: It can show them what a word means, how to solve a math problem that they couldn’t figure out how to solve.”

Students can use the textbooks for video explanations to help with homework, they can interact with molecules, and they can manipulate a digital globe to see stories and data about countries, said Karen Cator, director of the Education Department’s office of education technology.

“We’re not talking about the print-based textbook now being digital. We’re talking about a much more robust and interactive and engaging environment to support learning,” Cator said.

About $8 billion is spent annually in the U.S. on textbooks for children in kindergarten through 12th grade, said Jay Diskey, the executive director of the school division of the Association of American Publishers. Diskey said textbook companies have been working on the technology for the past five to eight years to transform the industry, but that in many cases, schools simply aren’t ready.

“It’s not only the future, it’s the now. The industry has embraced this, but the difficulty does lie in the fact that schools are not yet fully equipped with the hardware. We hope that they get there soon,” Diskey said.
After the tornado last May destroyed several schools in Joplin, the decision was made essentially to go textbook free at three sites hosting high school kids from Joplin High School and the Franklin Technology Center. The United Arab Emirates donated money to buy each student a laptop.

The response from students has been mixed, said Angie Besendorfer, the district’s assistant superintendent. She said the transition has proved difficult for some kids accustomed to a standard routine of answering questions at the end of a chapter, but administrators are pleased with the online learning and hope 8th-graders also will go essentially textbook free.

“It’s a little bit more work on the side of the students in that they are having to think and problem solve and do things differently, and some of our kids are not so fond of that, whereas other kids like it a lot,” Besendorfer said.

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Follow Kimberly Hefling on Twitter at http://twitter.com/khefling

Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

This article was originally posted at  http://www.washingtonpost.com/politics/lighten-that-backpack-obama-administration-challenges-schools-to-embrace-digital-textbooks/2012/02/01/gIQA0dKNiQ_story.html

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