Thursday, August 6, 2020

What if Schools Don't Reopen or Partially Open?

What if Schools Don't Reopen or Partially Open?

What leave will employees be entitled to receive?

In the early months of 2020, everyone assumed that we would just need to take care of our children at home for a few weeks, maybe through spring break, and we would be fine. Then it was "just make it to summer." Now summer is winding down, and many kids are not going back to school full-time (at least not in person) any time soon. This creates tremendous challenges for families as well as employers.
It's not pretty out there right now

The United States averaged more than 1,000 new coronavirus-related deaths for the tenth day in a row on Wednesday, August 5th, as fatalities remain high following a peak in new cases. States are scrambling to find a way to open schools – and the temptation is to model our school openings after European and other countries. This is impractical because, as of August 8, 2020, the US has failed to curb the virus substantially. Contrary to some overly positive "cherry-picked" reports, we all need to understand that 180 countries are doing better than the US in terms of what counts most; the death rate caused by COVID-19. The U.S. rate is currently 485 deaths per 1 million citizens. For instance, Canada stands at 237 per million citizens; Germany 110 per million, Russia 99 per million, Norway 47 per million, Japan 8 per million, and South Korea has only 6 Coronavirus deaths for every million citizens.  This is not political—if we're not aware of this information, we can't properly prepare.
Let's hope our death rate gets better. Still, with the continued rise in U.S. coronavirus cases and uncertainty regarding whether and in what manner schools will reopen in the fall, it is critical for providers, clinics, hospitals, and other businesses to understand the developing leave rights under federal, state and local law.
The Emergency Paid Sick Leave Act (EPSLA)

Who is eligible - generally:
  1. Generally, if you employ fewer than 500 employees, you are a covered employer that must provide paid sick leave and expanded family and medical leave 
  2. Certain employers with fewer than 50 employees may be exempt from the Act's requirements to provide specific paid sick leave and expanded family and medical leave.
  3. Certain public employers are also covered under the Act and must provide paid sick leave and expanded family and medical leave.
Be sure to know your situation, check first

For Specific additional information, you can determine your FFCRA Eligibility as an Employer or Employee here:

A few highlights:

Under the federal Families First Coronavirus Response Act [FFCRA]: there are two major provisions: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).

Under the EPSLA, employers with fewer than 500 employees and certain public employers must pay sick leave of up to 80 hours, or roughly 10 days, to full-time employees who are:
  • Subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • Advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Caring for an individual subject to a quarantine or isolation order by the government or a health care provider.
  • Caring for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19. This may not sound like sick leave, but it's one of the EPSLA's six grounds for such leave.
  • Experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
The Emergency Family and Medical Leave Expansion Act (EFMLEA)

For employers of fewer than 500 employees, an additional 10 weeks of family leave at two-thirds of regular wages is potentially available under the EFMLEA to care for a child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19. The FFCRA does not have requirements for private-sector employers with 500 or more employees. 

There are two other options available for school or place-of-care closures or child care unavailability related to COVID-19: emergency paid sick leave and expanded family and medical leave. An employee can use both buckets for this type of leave, but only for up to a total of 12 weeks of leave. To be eligible for this leave, another "suitable individual," such as a co-parent, co-guardian, or the "usual child care provider," must not be available to provide the care the child needs.

Last Spring vs. Now

The U.S. Department of Labor (DOL) has indicated that an employee's ability to use FFCRA leave last spring will not necessarily affect whether the employee can use FFCRA leave this fall. For example, an employee may be able to use leave under the FFCRA in the coming months, even if the employee was able to work (in person or remotely) when schools were closed last spring. An employer should not assume that the same schedule/arrangement would work for an employee moving forward. The DOL has acknowledged that circumstances may change, including employees realizing they are not able to provide childcare and work remotely at the same time effectively. Parents may also conclude that because remote learning may be here to stay indefinitely, they need to devote more time and attention to it this fall. Similarly, some employees may need to use leave because a co-parent, who may have used FFCRA leave in the spring to care for the child, has now exhausted the maximum 12 weeks of leave.
New questions and issues with school reopening

Some school reopening plans are generating new questions. For example, if a school opens for in-person instruction, but an employee voluntarily chooses the remote learning option for his or her child, is FFCRA leave available? Generally speaking, the answer is no. To be eligible for FFCRA leave, the physical location where the child receives instruction or care must be closed. If, however, the school is operating at reduced capacity to comply with social-distancing guidelines, such that the employee's child has no choice but to receive remote learning, or if the school uses a hybrid model where in-person instruction is only provided on certain days of the week, FFCRA may be available.

The DOL also clarified that if a childcare provider or school is open to some students, but not to the employee's student (due to capacity or other COVID-related limitations), the school or childcare provider is still considered "closed" to that student who is unable to attend. This means that employees may be eligible to use FFCRA leave when needed to care for children at home due to a "hybrid" model under which students physically go to school a few days each week and attend virtual school the other days.

State and Local Laws

While employers with 500 or more employees are not governed by a federal law that would require them to provide leave to employees to care for children out of school, some states and municipalities have passed paid sick leave laws that are triggered by a COVID-19-related event or absence and do not have a maximum employee threshold.
For example, several cities in California, as well as Colorado, New Jersey, Oregon (currently expiring on September 13, 2020), and the District of Colombia have extended some or all of the benefits of the FFCRA to employers with 500 or more employees. Other states and municipalities have more limited leave laws that apply to school closures and/or public health emergencies. As with the FFCRA, if employees have not already exhausted these leave benefits; they may be entitled to job-protected leave to care for a child whose school is closed.
Again, employers might need to consult with their attorneys and plan ahead—have discussions with employees to learn how school reopening plans may impact their work schedules, whether remote work is or remains an option; and whether any added flexibility to their schedules. For instance, working around the school day or taking intermittent leave may provide adequate solutions. Good communication before deadlines can go a long way toward reducing anxiety and finding creative solutions that enable employees to remain productive while taking on the added role of at-home educator. 

And keep on keeping up on these things because:

A New York Court Order Struck down Portions of DOL's FFCRA Regulations just this week.
However, the district court's decision does not make clear whether its decision to vacate portions of the final rule applies only to the state of New York or on a broader, nationwide basis. Given this, employers should consult legal counsel before making any decision as to whether or not to provide paid FFCRA leave.

Yes, this is changing daily and it is a challenge. Keep on checking with your HR organizations, your State Laws and Google the latest once in a while. 
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Thursday, July 30, 2020

Medical Records Retention Time-frames

Medical Records Retention Time-frames

If you Google “Medical Records Retention,” it says to keep records 4, 6, 7, up to 10 years or forever. That is why our call center at HCSI receives many questions about how long medical records need to be retained. Medical Records Retention (MRR) is a challenging issue. There are many variables. This entire newsletter is dedicated to helping explain a few of these variables.

The idea that records, either in paper or electronic form, should be saved for around ten years to comply with all requirements is an oft-touted rule of thumb. And it is often a good one. But, of course, there are exceptions. It is confusing!  Unfortunately, there is no single "exact line" that describes federal, state, and other statutory laws that establish how long medical records must be maintained in every case. But we have assembled Ten MRR Rules to help you understand how long to keep your patient records. This list is not exhaustive, but it covers the majority of situations.

Why is it so important to properly maintain medical records?

Beyond the laws and regulations, at its core, your medical records retention policy should be based primarily on two principles: 

1. Medical Considerations 
2. Continuity of Care for your practice and with other providers who care for your patients

Additional reasons for retaining medical records 

1. Providing Patients with Information should they wish to access their records 
2. Protecting the Provider in case a legal claim is made in the future
a. Relying on the practitioner’s testimony of general habit and practice to show that the standard of care was met—without supporting documentation to establish the treatment that was rendered—often fails to convince a jury that the treatment the patient received was consistent with community standards.
3. Complying with Federal and State Laws for such things as billing audits
4. MRR establishes the quality of care rendered in the event of a medical board or peer review inquiry. 
a.  Patient complaints are often based on an individual’s mistaken recollection of events or on a failure to understand the course of treatment or adverse consequences involved in the dispute. With complete charting, frivolous allegations are readily resolved, frequently well before a formal administrative process is even initiate

MMR Rule #1: Is it practical to keep all your records?

Should we begin thinking about keeping all records for 30 years or more?

With the advent of inexpensive high-speed storage, HCSI would like to suggest the idea that if all your medical records are electronic, they may be kept permanently. This would be helpful should access to patient information becomes necessary, as has been evidenced by litigation cases involving exposure to chemicals, drugs, or substances such as asbestos. 

We realize that the storage of hard copy records makes permanent retention impractical; however,

Sound too expensive. It used to be. One estimate states that 2000 patient over 30 years could take up 4000 gigabytes of computer storage, or about 30 Terabytes. At today’s prices, a 30 TB hard drive can be purchased for under $1,000.

Another side of the coin

There’s another side of this that is sometimes suggested by law firms. Here’s the argument:

Destroying records, digital or otherwise, once their retention deadlines arrive lessens the volume of Protected Health Information (PHI) theft that is possible. Even if your backroom is locked and your health IT system offers top-notch encryption, security breaches and HIPAA violations can still occur.

There’s no reason to leave any patient information – especially data that’s unnecessary to retain – vulnerable to being compromised. As long as you keep documented records of all destructions, proper disposal of old data is the best way to ensure patient confidentiality is upheld. If you’ve got plenty of space at your practice for stowing old paper records, you may be tempted to hang on to them forever, if only to avoid the hassle of electronic archiving or digging through them to determine what you can pitch.

So comb through your old charts, dig through your electronic data and destroy what no longer needs to be retained.

MRR Rule #2: Coordinate State and Federal laws

Whichever law instructs you to keep medical records the longest prevails

Know your State Laws:
  • Providers must comply with individual state regulations on Medical Record Retention (which often differ from the national standards) and their states’ statutes of limitations on malpractice lawsuits.
  • If Federal laws require individual medical records to be kept 10 years and your state law says 12 years, keep them 12 years – and vice versa. This rule applies to all other retention laws. 
  • You can find the state laws on retention periods for your state and practice type at: (PDF) 

MRR Rule #3: Maintain a policy for retaining your medical records 

Share it with your staff and patients

Share your medical record retention rules with your entire staff and new employees

Even a simple practice such as holding a meeting (and making a record of it) to go through the rules in this newsletter will help your staff understand the importance of medical records. You can customize your policies based on your specialty and needs.

Some practices provide a summary MMR policy to new patients as part of their "introduction to the practice" materials.

When new patients are informed in advance about how their medical records will be handled, there is substantially less likelihood of a complaint to the Medical Board if/when a practice is closed. Be sure current and future patients at some point receive assurance about their medical records. This may be as simple as a paragraph at the top or bottom of an intake form that says something like. “At ABC Medical, we carefully maintain and protect your private medical records according to all federal and state laws. Should you at any time desire access to these records, please consult with your physician or our staff.”

Have your MMR policy reviewed

It is a wise idea to check with your medical liability insurance carrier and legal representative before finalizing your policy. They have experience defending other practice policies. 

MRR Rule #4: MINORS: Typically 3 Years after they reach majority 

Consult State/Federal/Hospital/etc. laws and retaining them for whichever is longest 

  • Typically Age of Majority is 18-20. 
  • A typical exception for minors is hospitals usually require age of majority plus 6 years.
  • Once a minor reaches majority, the adult retention recommendation applies, e.g., 10 years from the last medical service for which a medical entry is required.
  • If a lawsuit is filed, it is essential to note that the statute of limitations may not begin to run until the plaintiff (patient) learns of the causal relationship between an injury and the care received.
  • The American Academy of Pediatrics recommends that, at a minimum, pediatric records should be retained for 10 years or the age of majority plus the applicable state statute of limitations (time to file a lawsuit), whichever is longer.

MRR Rule #5: Adults: 7-10 years

Measured from the date of the last medical service for which a medical entry is required. 
  • In some instances Federal law mandates that a provider keep and retain each record for a minimum of 7-10 years from the date of last service to the patient, we recommend keeping them for a minimum of 10 years.
  • For Medicare Advantage patients, 10 years.
  • Deceased adult patients: 10 years from the time of death. State exceptions may apply.
MRR Rule #6: Legal matters: Keep accruing’ ‘till they’re all done suin’ 

In other words, maintain medical records as long as they might be used to defend against a malpractice allegation.
  • Should you ever discover or suspect that legal action is pending from a patient, be sure to save his relevant records, even if you’ve already kept them past their other retention deadlines.
  • No destruction is allowed once you have knowledge of the litigation. 
MRR Rule #7:  OSHA: 30 years

For workplace injuries, if OSHA was involved, keep them for 30 years after the last date of service.

MRR Rule #8:  Veterans: 70 years - Indefinitely
  • Be prepared to store vet charts for a long time – 75 years.
  • If a patient was not mentally competent at the time of treatment, retain the records indefinitely.
MRR Rule #9: HIPAA: 6 Years

Six years from when the document was created, or – for policies – from when it was last in effect
  • According to the Department of Health and Human Services, the HIPAA Privacy Rule has no requirements for medical record retention at a doctor's office. Only HIPAA Related documents. How long a doctor is required to keep a chart is based on what each state's legislation decides. So, Tennessee's medical record retention rules may completely differ from Georgia's and so forth.
  • Although there are no HIPAA retention requirements for medical records, there is a requirement covering how long HIPAA-related documents should be retained. This is covered in
  • CFR §164.316(b)
  • While the HIPAA Privacy Rule does not determine how long a chart must be kept at a doctor's office, it does; however, require that any covered entities apply all safety guidelines necessary to protect the privacy of all patients,
  • As with all these rules, states requiring less than six years, health organizations must still retain HIPAA information for six years – the longer of the two rules.
The list of documents subject to the HIPAA retention requirements, and depends on the nature of business conducted by the Covered Entity or Business Associate. The following list is an example of the most common types of HIPAA documents beyond patient files.
  • Notices of Privacy Practices.
  • Authorizations for the Disclosure of PHI.
  • Risk Assessments and Risk Analyses.
  • Business Associate Agreements.
  • Employee Sanction Policies.
  • Incident and Breach Notification Documentation.
  • Complaint and Resolution Documentation.
  • IT Security System Reviews (including new procedures or technologies implemented).
MRR Rule #10: Rule of Thumb Rule: 10 years and 28 years

When all else fails
Where no statutory requirement exists, and no legal threat is imminent, HCSI makes the following 
  • Adult patients, 10 years from the date the patient was last seen.
  • Minor patients, 28 years from the date of birth. 

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