The push for hospitals and medical practices to implement electronic medical records systems (EMRS) went into high gear with the passage of the American Recovery and Reinvestment Act of 2009. Tucked into that Act was The Health Information Technology for Economic and Clinical Health Act, known as the HITECH Act. The HITECH Act offered financial incentives to health care providers to replace their paper medical records with EMRS, and was intended to achieve three objectives: to stimulate the economy through the economic activities associated with acquiring and implementing EMRS; to reduce health care costs through efficiency gains resulting from the use of EMRS; and to improve the quality of health care through provider access to patients medical records. To help realize those goals, EMRS have been designed to capture data from many encounters over long time periods, and to track and report outcomes and trends, not simply to serve as a replacement repository of events related to the condition and treatment of individual patients. Lawmakers recognized that the expected increase in digitization of medical records and their sharing across communication networks among covered entities and their business associates could result in dramatically more incidents of unauthorized disclosures of protected health information (PHI), potentially affecting hundreds or thousands of patients in any one incident. The HITECH Act, therefore, included a suite of related provisions addressing the obligations of covered entities and business associates if breaches of patients’ privacy rights occurred, which were then added to the HIPAA rules. Many in the health care field are under the impression that the laws addressing digital records are different from those affecting paper records. Aside from certain parts of the HIPAA rules, the laws affecting medical records as practitioners have historically understood them are unchanged. There is no question that EMRS have advantages. Records are easier to read as, for the most part, handwritten notes are a thing of the past. Subspecialty notes are grouped together. With appropriate authentication of users and access controls, confidentiality of records is enhanced. Electronic prompts help assure that medications and care are rendered on time. EMRS can be accessed from more than one location and by more than one person simultaneously, and the entire record is always available. Real-time charting through laptops and mobile devices is possible. EMRS also have significant disadvantages. Due to the typing function or the use of drop-down menus, often not as much detail is recorded. Similarly, when there is nothing new to record, the temptation not to record anything is hard to resist. Entries can look repetitive – and indeed, they may be, due to the ease of cutting and pasting prior entries. Digital entries do not trigger memory of events as well as personal handwriting. Finally, if access controls are too restrictive, modules containing relevant information will not be available to staff who may be faced with patient situations requiring intervention, especially in acute and long term care settings. It has been said that 35% - 40% of medical malpractice cases become indefensible because of problems with documentation. If it is not charted, plaintiffs’ lawyers will argue that required care did not happen. Documentation is scrutinized by families and their lawyers. If a case gets to trial, a jury will assume that sloppy documentation means sloppy care. This applies equally to paper and digital records. There are also statutes that are implicated when charting is insufficient or erroneous. Notice that these laws do not distinguish between paper and digital records. Under Penal Law Section 175.05, a person is guilty of falsifying a business record in the second degree with the intent to defraud if that person makes or causes a false entry in a business record; fails to make a true entry in a business record in violation of duty to do so; prevents a true entry; causes the omission of a true entry; or alters, erases, obliterates, removes or destroys a true entry in a business record. Medical records are business records. The Legal Implications of Medical Records in the Digital Age Public Health Law Section 12 provides for civil penalties up to $2,000 per violation for anyone who violates, disobeys or disregards any term or provision of the Public Health Law. There are numerous sections of the Public Health Law that require practitioners to keep accurate, timely and complete medical records. In addition, a practitioner may be subject to the revocation of his or her license for unprofessional conduct for failing to maintain accurate records reflecting evaluation and treatment of a patient; failing to comply with federal, state, or local law, rules or regulations governing his or her practice; filing a false report; or failing to file or impeding or obstructing the filing of a report required by law. The biggest reason that EMRS have different legal implications from paper records is that EMRS dramatically change business processes within medical practices, hospitals and nursing homes, and these changes may result in increased legal risks of successful claims of malpractice and criminal and civil liability. To further efficiencies, many EMRS include checkboxes for “within defined limits”. So long as everyone using the EMRS has the same understanding in each clinical setting of what “defined limits” are, this function poses no problems. However, because of the potential for individual interpretation of that term, the consequences (in terms of patient harm and potential legal liability) of what in hindsight may turn out to be the wrong selection of the checkbox are significant. Many EMRS also have checkboxes for “Not Relevant” or the equivalent. Users may think these can be ignored, and EMRS that do not require completion of every possible field may allow this. However, a “Not Relevant” selection may turn out to be quite relevant in the overall accuracy and usefulness of the record. In creating a paper record, a provider is likely to indicate the date and time of the event covered by the record, and the identity of the person who delivered the care or interacted with the patient. EMRS automatically capture the time of an entry and the identity of the person under whose log-in the entry was made. Unless the entry is made contemporaneously with the event by the person who delivered the care, the entry must clearly and carefully record the actual time and date of the event being charted and the caregiver’s identity if that person is not the person making the entry. Those uncomfortable or impatient with, or unskilled at typing entries into text fields may avoid making entries or keep them extremely short. The loss of extensive narrative in records can result in decreased quality of care. A provider who finds use of the EMRS burdensome and has his/her assistant, who was not present during an event, make the entry about it into the EMRS has arguably committed an act of professional misconduct. The technology that enables real-time charting may carry some of the biggest risks of EMRS. If the person making the entries is also the provider, the provider may be more focused on navigating the screens and making entries than listening to the patient – or being perceived by the patient as not listening, because the provider is unable to make eye contact with the patient. In a hospital or long term care setting, bedside charting carries the potential of unauthorized disclosure of PHI to nosy visitors. The small screen size of tablets and smart phones may discourage detailed charting and increase the risk of error in entry selections. Also, it is much easier to lose or misplace a small device, significantly increasing the risk of unauthorized disclosure of PHI. The increasing use of scribes to record the real-time interaction between patients and providers indicates a recognition of the legal risks arising from changes in business process occasioned by EMRS and a means of mitigating those risks. To reduce potential legal liability, managers of medical practices, hospitals and nursing homes that have implemented EMRS need to move beyond training staff in their use and focus more intently on how their business processes have changed as a result. Download the Reprint from Monroe County Medical Society As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP has been named a 2018 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s corporate, municipal law and real estate practices were included in the top tier rankings of Rochester law firms.  The “Best Law Firms” are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Employment laws might get tougher for employers in businesses that call workers in at the last minute. Around the holidays, it is especially difficult for certain types of employers, like retail establishments, to predict how much traffic they will get on any given day. Many have traditionally had employees “at the ready” to report to work if needed. Last week, the NYDOL proposed regulations that would require employees who report to work for a shift not scheduled at least 14 days in advance to be paid an extra two hours of call in pay.  Moreover, employees whose shifts are cancelled within 72 hours of the scheduled start time must be paid at least four hours of call in pay.  Likewise, those who are required to be available to report to work or who must contact the employer to confirm whether to report must be paid four hours of call in pay. While these regulations are not set in stone yet, employers must be ready as this is a change that has been a long time coming.  The new regulations do come with some exceptions and will not apply to restaurant or hotel workers.  We will keep you up to date on these proposals. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Leah Tarantino Cintineo and David M. Tang have been elected partners in the law firm of Underberg & Kessler LLP, effective January 1, 2018. Leah is a partner in the firm’s Litigation practice group.  She focuses her practice on matrimonial and family law, representing individual clients in litigated and collaborative divorce, child custody, child support, and family offense proceedings. She also drafts separation and prenuptial agreements, and qualified domestic relations orders. Leah earned a B.A. from State University of New York at Geneseo, and is a graduate of Albany Law School.  She is a member of the Board of Directors of Society for the Protection and Care of Children, and also a member of the Association of Collaborative Family Law Attorneys. Leah was named a 2016-2017 Upstate New York Super Lawyer “Rising Star”, a Daily Record 2015 Up & Coming Attorney, and a finalist for the Rochester Business Journal’s 2016 Athena Young Professional Award. David is a partner in the firm’s Litigation, Health Care and Creditor’s Rights practice groups. He represents business and individual clients in state and federal courts, and in arbitrations. He also represents health care entities, creditors and equity holders in a variety of litigated and administrative proceedings.  David holds a B.A. from Cornell University, and is a graduate of Syracuse University College of Law.  He is a member of the Board of Directors for the Center for Dispute Settlement and St. John’s Foundation, and a member of the Board of Trustees of WXXI Public Broadcasting and The Little Theatre.  David was named a 2015-2017 Upstate New York Super Lawyer “Rising Star”, and is a past recipient of the Rochester Business Journal’s Forty Under 40 award. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On February 26, 2018, the United States Court of Appeals for the Second Circuit overruled its own precedent and became only the second Court of Appeals in the nation to extend Title VII protection to gay workers. Zarda v. Altitude Express, Inc., was argued before a rare en banc (before the entire panel of judges) session last year. This is the second time in less than a year that a federal appeals court ruled that Title VII forbids sexual orientation discrimination because it is a form of sex discrimination. Donald Zarda, a gay man, was a tandem skydiving instructor for defendant Altitude Express. A female customer claimed Zarda inappropriately touched her and “disclosed his sexual orientation to excuse his behavior.” The customer’s boyfriend complained to Zarda’s supervisor, and Zarda was terminated. Zarda denied inappropriately touching the customer and claimed he was fired for failing to conform to male sex stereotypes by referring to his sexual orientation. Altitude said it was his behavior, not his sexual orientation that led to Zarda’s dismissal. The Second Circuit had previously held that sexual orientation discrimination claims, including claims that being gay or lesbian constitutes non-conformity with a gender stereotype, are not cognizable under Title VII.[1] The lower court in Zarda, following precedent, rejected Zarda’s Title VII claims because they were based on sexual orientation. In deciding to take the case en banc (the only way to overrule its’ own precedent), the Second Circuit took note of the evolution of legal doctrine, including a 2015 EEOC decision[2] finding that sexual orientation is inherently a “sex based consideration” and that accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. The en banc majority overruled prior decisions rejecting Title VII protection on the basis of sexual orientation. The court set forth three justifications for its ruling. First, the court concluded that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor….Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” By way of example, the court asked whether “a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” If the answer is yes, then this constitutes discrimination because of sex. Next, the court noted that sexual orientation discrimination is also invariably based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. The court cited to Price Waterhouse v. Hopkins,[3] which paved the way for gender stereotyping claims, where an employee alleged discrimination because of her nonconformity with stereotypes about how a woman should act. The United States Supreme Court in Price determined that gender must be irrelevant to employment decisions and employers may not discriminate against women or men who do not conform to conventional gender norms. The Second Circuit thus concluded that discriminating based upon assumptions about the gender to which an individual should be attracted is prohibited discrimination. Finally, the court found that sexual orientation discrimination is” associational discrimination” because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex. In other words, an employee has been subjected to associational discrimination where the employee’s protected characteristic (i.e., sex), becomes a motivating factor for an adverse employment action. The Court noted that at the time that Congress passed Title VII, it likely did not intend that the law would apply to sexual orientation discrimination, but that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils” (internal citations omitted). Although there is a clear split between the circuits, it is likely that other circuit courts will soon follow suit and that the issue will ultimately be decided by the United States Supreme Court. New York State already includes sexual orientation as a protected class under its Human Rights Law, so company policies and handbooks should already prohibit sexual orientation discrimination. However, many courts in other jurisdictions have found that Title VII does not prohibit discrimination based on sexual orientation. As with every type of workplace sexual harassment, there continues to be an increase in the number of claims since the #metoo movement has continued to take this country by storm. [1] Simonton v. Runyon, 232 F.3d 33, 35 (2d. Cir. 2000). [2] Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641. [3] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

A jury awarded Underberg & Kessler client, Pamela S. Small, $7 million against the State of New York, NYS Department of Corrections and Community Supervision, and three individual defendants for psychological and financial damages resulting from a co-worker’s harassment and misconduct while Ms. Small was employed as a teacher at the Attica Correctional Facility. Jennifer Shoemaker, an Underberg & Kessler partner, was retained by Ms. Small nearly seven years ago, after she was subjected to a hostile work environment, including obsessive stalking and harassment for two years at the hands of her co-worker, Carl Cuer. While Ms. Small reported Mr. Cuer’s misconduct to her superiors on several occasions, the jury found that the state Department of Corrections employees did not follow proper reporting protocols or provide a safe working environment for Ms. Small during the time in question. “At any point over the last six years, the State of New York and DOCCS could have done the right thing and put an end to years of needless litigation,” Shoemaker said. “Ms. Small not only suffered because of the actions of her harasser and DOCCS, but also because the case dragged on for so many years, further victimizing her.” The jury awarded Ms. Small $2.17 million in financial damages, $2.4 million for violation of her civil rights, and $1.7 million for Cuer’s misconduct. “This jury sent a clear warning to employers,” Shoemaker said. “This behavior and inaction will not be tolerated any longer. Employers need to take allegations of harassment seriously, promptly investigate, and remedy any wrongdoing.” As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Serena Compitello has joined Underberg & Kessler LLP as an associate in our Rochester, New York office. Serena will focus her practice in business and corporate transactions, commercial lending and municipal law.  She earned her B.A. from St. Bonaventure University, and her J.D. from Albany Law School. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP has been named a 2019 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s corporate, municipal law, real estate and mass tort litigation/class actions-defendant practices were included in the top tier rankings of Rochester law firms.  The “Best Law Firms” are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

We all remember the planned 2016 changes to federal overtime laws.  Employers put a lot of time into ensuring they were prepared and their employees were properly classified before the changes were halted by a judge in late 2016. This fall, the Trump Administration announced its intention to issue its proposed changes to the federal overtime laws in March 2019.  The changes likely would not go into effect until 2020.  The expectation is that the minimum salary threshold for exempt status will be increased to the low to mid $30,000s level.  This is lower than the level included in the Obama Administration’s 2016 rules.  Other changes are certainly expected, but are unknown at this point. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #LaborLaw #EmploymentLaw

Good news!  On 2/27/19, the New York State Department of Labor issued a statement that it would not pursue implementing the proposed call-in pay regulations we wrote about previously (click here for that blog post). This issue is likely headed to the New York State Legislature. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters. Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave.  As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses. A few years ago, the 9th Circuit held that workers could defer FMLA time and take paid time off or other sick time instead, and essentially tack on the extra unpaid leave time thereafter.  The DOL clarified that the FMLA regulations directing employers to count leaves of absence under the act within five days of finding out they qualify means workers cannot delay their FMLA leave.  Moreover, if a worker who has accrued paid leave opts to use it at the outset, it counts toward their 12 week leave. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #LaborLaw #EmploymentLaw

New York State Governor Cuomo is expected to sign a bill granting employees and former employees the power to lien real and personal property owned by their (broadly defined) employers based on their mere allegation of a wage claim. Entity and individual business owners, as well as managers, executives, supervisors and human resources professionals who control the terms and conditions of employment, and thus also considered employers, could face these liens under the law which will be effective 30 days after signed by the Governor. Employees also have the right under the new law to access employer information on the names of shareholders, members, owners etc., and the personal liability of the 10 largest shareholders of New York corporations for unpaid wages if the corporation cannot pay is expanded by the new law to include liquidated damages, penalties, interest, attorneys’ fees, and costs. Employers subject to these liens will be forced to purchase a bond or seek court intervention to remove the lien. Given that personal property like cars, boats etc. is also subject to this new law, employers may well have more reason to bond the lien than is typical in the real-property-only mechanics’ liens. Remarkably, there is no salary maximum for employees seeking to file a lien under the new law, so executives are as eligible to do so as minimum wage employees. The definition of “wage claim” under the new law is also broad. It encompasses claims under the New York Labor Law and the federal Fair Labor Standards Act for unpaid wages, overtime, spread of hours, call-in pay, uniform maintenance pay, withheld gratuities, unlawful deductions from wages, unpaid charges that purport to be gratuities, improper meal and tip credits, employment contract breaches and Commissioner of Labor Wage Order violations. The New York State Department of Labor (“DOL”) or Attorney General (“AG”) could file the lien or liens on the employee’s (or class of employees’) behalf if there has been a complaint filed with either of them. Procedurally, the filed lien may include any liquidated damages and must be filed within three years of the end of employment. It must be served on the employer within five days before or 30 days after filing with the County Clerk, and proof of service of the lien must be filed within 35 or the lien will expire automatically. The lien lasts one year and can be extended by court order or automatically until the end of any proceeding brought by the employee in court, arbitration, or before the DOL or AG. Otherwise, the lien will expire at the end of the one year unless an action is brought to foreclose on the lien within that time. A small consolation for employers in the new law is that if the employee willfully exaggerates the lien, the lien is discharged, and the employee cannot file another. However, it is not known if the employer, in that instance, would have a claim for its costs, fees, and damages in such a situation as owners do in similar mechanics’ lien instances and thus the deterrence against exaggerated liens is minimal. More than ever, employers must audit their employee compensation practices ensuring compliance as best they can to avoid liens on their personal and/or real property. For any uncertainty as to the applicable law governing the compensation practices, experienced employment counsel should be consulted. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. #ExpectedLaw #NYSLaw #LaborLaw #EmploymentLaw