College of Imaging Administrators
Legal Update
May 1, 2014
Tom H. Luetkemeyer
New Developments in Physician and
Staff Contracting
Fifield v. Premier Dealer Services, Inc.
(Illinois Appellate Court, 1st District; 2013)
Essential Holding:
 To the extent an employer relies upon initial employment or
continuing employment as consideration for a restrictive
covenant, the employment must last two years or more to
support a finding of adequate consideration for the restrictive
covenant.
Risk:
 Existing covenants might not be enforceable to the extent
that, aside from initial or continuing employment, no other
independent consideration was provided at the time of the
execution of the agreement. This means that physicians could
solicit referral sources or compete in violation of the express
terms of the written agreement.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Fifield v. Premier Dealer Services, Inc.
(Illinois Appellate Court, 1st District; 2013)
 What to do for existing agreements:
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Re-execute with additional consideration
Reaffirmation and Ratification Agreements with Cash
Consideration
Evaluate risk and usage
 What to do for new agreements:
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Do not rely on initial employment
Use of signing bonuses
Set off consideration in separate provision
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Equal Employment Opportunity Commission v. CVS
(United States District Court, Northern District of Illinois; 2014)
EEOC sued CVS in federal court seeking to enjoin the use by
CVS of its standard separation agreement.
 What the EEOC found problematic:
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The separation agreement discouraged individuals from participating
in the EEOC's investigative process
The cooperation clause requiring notification of contacts from
agencies
The non-disparagement clause
The confidentiality clause
The covenant not to sue
The "deficient" disclaimer
Breach consequences
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Equal Employment Opportunity Commission v. CVS
(United States District Court, Northern District of Illinois; 2014)
The fix:
 Protected Rights. Notwithstanding the terms of the release set forth
above in Section __, nothing in this Agreement or in the release shall
prohibit Employee from filing a charge with any government agency or
from participating in the investigation of any such charge. Employee
retains the right to file charges and participate in investigations with the
Equal Employment Opportunity Commission (EEOC) with respect to its
enforcement of Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act and the Age Discrimination in Employment Act; the
National Labor Relation Board with respect to Section 7 and other rights
under the National Labor Relations Act; or any other federal, state or
local administrative agency charged with enforcing laws governing the
employment relationship. Employee does, however, waive the right to
seek reinstatement, damages, remedies or other individual relief as to
any claims that he has released under this Agreement. This release
also does not prohibit Employee from enforcing the obligations of this
Agreement and does not include within the scope of the release any
claim that Employee cannot waive as a matter of law.
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Hamilton Memorial Hospital v. April Toelle and
Deaconess Hospital
(United States District Court, Southern District of Illinois; 2014)
The case raises a question of contract interpretation, and
provides helpful reminders to health care providers.
Basic Facts:
 Physician signs a three-year-deal and becomes dissatisfied
midway through year two
 Physician resigns, claiming breach by hospital
 Breach is based on the method of compensation for
supervision of PAs
 Method of supervision did not match the terms of the contract
 Method of compensation was agreed upon prior to the
execution of the agreement
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Hamilton Memorial Hospital v. April Toelle and
Deaconess Hospital
(United States District Court, Southern District of Illinois; 2014)
 Physician prevails on the compensation claim for one of the
PAs because:
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She was the primary supervisor
The contract contained an "entirety" clause
The agreed upon prior arrangement never made it into the
agreement
 Was she entitled to quit over the allocation of the $500 per
month?
 Question of fact, based upon whether the breach was
material and would defeat the bargained-for objective of the
parties or caused disproportionate prejudice to the nonbreaching party, or whether non-performance by the nonbreaching party will result in unfairness
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Helpful HIPAA Hints
HIPAA and Audits
 Health Insurance Portability and Accountability Act
(HIPAA) and the Health Information Technology for
Economical Clinical Health Act (HITECH) include
standards for the privacy of PHI, the security of
electronic PHI and breach notification.
 HITECH also requires HHS to perform periodic audits of
CE and BA compliance with the above.
 OCR enforces the above standards.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
HIPAA Environment
 Fines continue to increase – several million dollar fines –
Massachusetts Eye and Ear Infirmary $1.5 million
settlement for lost laptop
 OCR’s new director is a former prosecutor
 HHS authorized to use fines to fund further enforcement
activities
 The world is changing
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Audits are necessary tools
Increased enforcement is the rule
Non-compliance may be expensive
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HIPAA Audit Program
 January 2012, OCR initiated a pilot program of proactive
audits to assess compliance with HIPAA
 OCR HIPAA Audit Program contains the requirements to
be assessed through performed audits
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Audit Protocol
 Audit Protocol covers Privacy Rule requirements for:
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Notice of Privacy Practices
Rights to Request Privacy Protection for PHI
Access of individuals to PHI
Uses and Disclosures of PHI
Amendment of PHI
Accounting of Disclosures
 Audit Protocol covers Security Requirements involving
administrative, physical and technical safeguards
 Audit Protocol covers requirements for the Breach Notification
Rule
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Risk Assessments for CEs and BAs
 CEs and BAs must conduct regular risk assessments of
the safeguards they have in place to protect the security
of PHI.
 Such assessments can uncover potential weakness and
anticipate and prevent health data breaches.
 Risk assessment is also a core requirement for providers
seeking payment through the Medicare EHR Incentive
Program (Meaningful Use Program).
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
HIPAA Final Omnibus Rule
 Final Omnibus Rule issued January 2013, Effective
March 26, 2013 and compliance with most provisions
must be by September 13, 2013
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Significant Revisions to Business Associate rules and
agreements
Revisions to Notice of Privacy
New Standards for Breach Notification
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Review and Revise Policies, Procedures
and Practices (Mock Audits)
 What to review:
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Role of Privacy and Security Officers
Access Control
Receiving, Sending and Disposing of PHI
Physical Controls for Visitor Access
Computer Workstations
Entity Authentication
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Review and Revise Policies, Procedures
and Practices (Mock Audits)
 What to review:
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Amendment of Health Information
Accounting for Disclosures
Patients’ Rights Policy
Uses and Disclosure – Compliance with Minimum Necessary
Standards
Business Associate Agreements
Breach Notification
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Review and Revise Policies, Procedures
and Practices (Mock Audits)
 What to review:
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Training
Reporting Suspected Violations
Investigation of Potential Violation
Complaint Process
Documentation
Marketing
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Employee Benefit Issues in
the ACA World
Dealing with Health Care Reform
 What are the rules for employers offering health
coverage to employees?
 What should employers be doing now?
 What are other employers doing?
 What will employees want or demand?
 How much is it going to cost?
 How are unions responding to the ACA?
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A Roadmap to the Employer Mandate
 Step One: Which Employers Are Subject to the
Mandate?
 Step Two: Which Employees Must Be Offered
Coverage?
 Step Three: What Type of Coverage Must Be Offered?
 Step Four: Is the Coverage Affordable?
 Step Five: What are the Penalties for Noncompliance?
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Nondiscrimination in Benefits
 Nondiscrimination Rules
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Benefits provided under a group health plan are eligible for
favorable tax treatment only if they do not discriminate in favor of
participants who are "highly compensated individuals."
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Generally speaking, top 25% of earners.
ALL benefits provided for participants who are highly
compensated individuals must be provided for ALL other
participants if this test is to be satisfied.
 Discrimination as to Eligibility vs. Discrimination as to
Benefits
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Nondiscrimination in Benefits
 Clear Test for Discrimination as to Eligibility
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Health plan benefits provided to at least 70% of all employees, or
if less than all employees are eligible, then at least 80% of
eligible employees.
 Not as Clear for Discrimination as to Benefits
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Same coverage: OK.
Different coverage for different class of employees: Maybe not,
but check the testing method.
Employer contribution percentage for payment of premiums?
Likely yes.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Nondiscrimination in Benefits
 Potential penalties
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Self-insured: Merely lose the tax benefit.
Insured: $100 per day excise tax for each employee
discriminated against.
 Example
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Employer has 300 employees, pays 100% coverage only for
President and four other top officers, other employees pay 20%
with Company paying 80%.
Does not change this policy for one month after new guidance is
first effective.
Penalty: $100/day x 295 employees x 30 days = $885,000 (!)
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Same-Sex Spouses Under the ACA
 United States v. Windsor Supreme Court decision
 What does it do?
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Strikes down Section 3 of the federal Defense of Marriage Act
("DOMA") as unconstitutional.
Federal government now required to recognize valid same-sex
marriages from the States for federal purposes.
Does not extend to Civil Union Partners or domestic partners.
 What does it NOT do?
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No federal requirement for same-sex marriage.
No new nondiscrimination provisions based on sexual
orientation.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Same-Sex Spouses Under the ACA
 How does it affect group health plans?
 Coverage of spouses
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Employer mandate does not require spousal coverage
 Always have been permitted to offer coverage to samesex spouses (self-insured or insured, if policy allows)
 Tax issues
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Now may exclude from income all coverage provided to samesex spouses
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Must be spouse, not Civil Union Partner or domestic partner.
Refunds going back to any open tax year (three years….hurry for
2010)
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Trends in Cost-Sharing
 Premiums
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Have increased since 2010.
Even HHS now admitting that premiums will continue to rise;
claims at a "slower rate" than in the past.
 Cost-sharing
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Much larger share of premium burden being shifted to
employees.
Much higher deductibles / maximum out-of-pocket costs / copays.
 Similar trends for employer coverage and the individual
market.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Continued Uncertainty
 Very long list of provisions that were to be effective by
now, but are not.
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Employer mandate.
Nondiscrimination rules.
Automatic enrollment.
Individual mandate penalties for those with cancelled policies.
 Simply do not know what it will look like in five years.
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To the extent possible, include reopener provisions in contractual
language.
Triggered based on changes in the law or on significant cost or
coverage changes.
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Medical Marijuana in Illinois
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
The Compassionate Use of Medical
Cannabis Pilot Program Act
 The Act took effect on January 1, and will sunset in four
years at the end of 2017
 The Act will not allow for the recreational use and
purchase of marijuana
 Dispensaries will be set up by the Illinois Department of
Financial and Professional Regulation and those will be
the only legal retailers
 The Department of Public Health will issue regulations
which are due on May 1, and they will, among other
things, define the medical conditions which will benefit
medically from the use of cannabis
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The Compassionate Use of Medical
Cannabis Pilot Program Act
 The expected list of medical conditions includes:
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Cancer
Crohn's Disease
Alzheimer's
Multiple Sclerosis
 Conditions such as pain, anxiety or PTSD, are not on the
list
 Physicians will be the gatekeepers
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
The Compassionate Use of Medical
Cannabis Pilot Program Act
 Very little guidance for employers and managers must
tread lightly
 How does the new law impact drug-free workplace
policies?
 What does it actually mean that employers cannot
discriminate against medical cannabis patients?
 Can employees legally medicate at work?
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Ethical and Legal Implications of
Implicit Bias
What is Implicit Bias?
Implicit bias is the bias in judgment and/or behavior that
results from subtle cognitive processes that often operate
at a level below conscious awareness and without
intentional control.
Source: National Center for State Courts
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
What is Implicit Bias?
 One way to think of implicit bias is to look at it as the
process of mental shortcuts.
 Given the barrage of sensory detail we confront every
day, the mind does so by processing through "schemas",
which are templates of knowledge that help us organize
specific examples in the broader categories.
 Schemas allow individuals to operate without expending
valuable mental resources. In this way, most cognitions
are implicit.
Source: Jerry Kang, Professor of Law at UCLA School of Law
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What is Implicit Bias?
Also known as implicit social cognition, implicit bias refers
to the attitudes or stereotypes that affect our
understanding, actions and decisions in an unconscious
manner. These biases which encompass both favorable
and unfavorable assessments, are activated involuntarily or
without an individual's awareness or intentional control.
Source: The Kirwan Institute
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Characteristics of Implicit Biases
 Implicit biases are pervasive. Everyone possesses them, even
people with avowed commitments to impartiality, such as judges.
 Implicit and explicit biases are related but distinct mental constructs.
They are not mutually exclusive and may even reinforce each other.
 The implicit associations we hold do not necessarily align with our
declared beliefs or even reflect stances we would explicitly endorse.
 We generally tend to hold implicit biases that favor our ingroup,
though research has shown that we can still hold implicit biases
against our ingroup.
 Implicit biases are malleable. Our brains are incredibly complex and
the implicit associations that we have formed can be gradually
unlearned through a variety of de-biasing techniques.
Source: The Kirwan Institute
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Implicit Bias – Example
A 2012 study used identical case vignettes to examine how
pediatricians' implicit racial attitudes affect treatment
recommendations for four common pediatric conditions.
Results indicated that as pediatricians' pro-white implicit
biases increased, they were more likely to prescribe pain
killers for vignette patients who are white as opposed to
black.
Source: The Kirwan Institute
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Implicit Bias – Example
Another example concerned an implicit bias study in
Sweden where the testing predicted the rate of call-back
interviews for Arab applicants for employment.
Source: Dan-Olof Rooth, Implicit Discrimination in Hiring: Real World
Evidence (2007)
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Testing for Implicit Bias
 Numerous psychological studies have been conducted
to assess the impact of implicit bias on our decisionmaking processes. Those studies have included:
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Interviews and polling
Physiological exams
The Implicit Association Test (IAT)
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The Implicit Association Test (IAT)
 The IAT was first introduced in scientific literature in 1998 by
Anthony Greenwald, Debbie McGhee and Jordan Schwartz.
 The IAT utilizes reaction times to measure how a mind
associates and sorts concepts.
 For example, a typical racial attitude test will require the testtaker to sort both pictures of white and black faces and good
words and bad words in front of a computer.
 The test measures the speed at which the test-taker makes
the proper association.
 The average time differential is the measure of implicit bias.
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RED
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GREEN
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The Implicit Association Test (IAT)
 A test-taker may be asked to pair "women" with "math"
or "women" with "liberal arts". The scoring of the IAT
generally assumes that the more closely the test-taker
associates concepts in his or her mind, the faster the test
taker will be able to pair them together on the test.
 The IAT is available on-line, and since 1998, over 4.5
million have taken the test. The data strongly suggests
that many people hold implicit biases toward members in
particulate groups. For example, over 80% of people
who completed an IAT on age bias demonstrated a
negative implicit bias against the elderly.
Source: Stanford School of Medicine (2013)
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What Does This Tell Us?
 Many of our day-to-day decisions are affected
substantially by subconscious processes.
 Bias may manifest itself in the absence of bad intent.
 We are not fully aware of the operation of implicit bias on
our decision-making.
 Implicit bias is a subtle but potent form of race
discrimination.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
The Law and Implicit Bias
 Title VII of the Civil Rights Act of 1964 makes it an
unlawful employment practice to fail or refuse to hire, or
to discharge any individual, or otherwise discriminate
against any individual…because of such individual's
race, color, religion, sex or national origin.
 The law also makes unlawful limiting, segregating or
classifying employees based upon those same
categories.
42 U.S.C. Section 2000e-2
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The Law and Implicit Bias
 The law has long recognized that intentional
discrimination is prohibited.
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Disparate treatment
Retaliation
Harassment
 Where does implicit bias fit in?
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The Law and Implicit Bias
 Title VII also has been construed to prohibit those
practices which are fair in form but have a discriminatory
impact. This theory was first recognized in Griggs v.
Duke Power Co. 401 US 424 (1971). The disparate
impact theory has been utilized to make unlawful facially
neutral requirements which have no substantial
relationship to job performance.
 For example, the requirement of a college degree may
be unrelated to the work performed by a maintenance
worker, and the degree requirement could substantially
limit the availability of workers from certain racial groups.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
The Law and Implicit Bias
 Where does implicit bias fit in?
 Implicit bias is not intentional discrimination.
 Implicit bias also does not involve the application of neutral
criteria.
 The existing legal framework for resolution of discrimination
disputes does not necessarily fit a claim based on implicit
bias. In one Law Review article, Linda Krieger and Susan
Fiske concluded that behavioral realism stands for the
proposition that judicial models regarding discrimination
should be revisited periodically so as to remain current with
psychological science.
Source: Behavioral Realism and Employment Discrimination Law:
Implicit Bias and Disparate Treatment (California Law Review – 2006)
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The Law and Implicit Bias
 Developments in psychological studies have influenced
developments in the law. Examples:
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Collaboration between the NAACP Legal Defense and Education
Fund and the social scientist who authored the Social Science
Statement submitted to the Supreme Court in Brown v. Board of
Education, 347 U.S. 483 (1954).
The American Psychological Association's Amicus Participation
in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case
which concerned the role of stereotypes in employment
discrimination jurisprudence.
Source: Krieger and Fiske
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The Law and Implicit Bias
 30 years of empirical research and social psychology
have clarified the relative roles of controlled and
automatic processes in human judgment and choice.
 "Far more appears to go on in the cognitive background,
beyond the perceiver's conscious additional focus, then
naïve theories of human behavior suggest. In other
words, much of what we do is mindless, proceeding on
automatic pilot."
Source: Krieger and Fiske
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The Law and Implicit Bias
The Krieger and Fiske Law Review article ends with a
prediction that at some day, a court will be confronted with
a disparate treatment case in which the fact-finder has
concluded that implicit stereotypes, operating outside of the
decision-makers' conscious awareness, was the factor
causing the discriminatory effect.
Source: Krieger and Fiske
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The Law and Implicit Bias
 That case now has been filed.
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Pippen v. The State of Iowa is currently pending before the Iowa
Supreme Court, and oral argument was heard in September of
this year. The plaintiffs in that case allege that up to 6,000 African
Americans were passed over for jobs or promotions since 2003.
The plaintiff's theory is that implicit bias resulted in fewer African
Americans being called for interviews. Approximately 11% of
qualified African Americans were called back for interviews, while
approximately 20% of qualified white applicants were called for
interviews.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
The Law and Implicit Bias
 The judge dismissed the class action lawsuit, claiming
that plaintiffs failed to prove their "unique legal theory"
which is based on research concerning implicit bias.
 The plaintiffs did not allege that they faced overt race
discrimination; rather, they said managers throughout
state government "subconsciously" favored whites with
respect to employment decisions.
 The NAACP filed an amicus brief on behalf of the
plaintiffs.
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Debiasing Techniques
 The process of debiasing begins with an awareness of
how our subconscious affects our conscious decisionmaking.
 Just as we are influenced by subliminal stimuli, our own
past life experiences, upbringing and education affects
us more on a subconscious level than we all realize.
 Debiasing techniques have been widely discussed in the
literature and essentially break down into lawful
compensation techniques and unlawful
overcompensation on an individual or organizational
basis.
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Debiasing Techniques
 One noted researcher and commentator on the topic of
implied bias has stated that he attempts to
"overcompensate" for his own implicit (subconscious)
bias by giving preference to those outside of his
"ingroup".
 However, this tactic admittedly involves taking race,
gender, national origin or religion into consideration, and
likely would be expressly prohibited by Title VII of the
Civil Rights Act of 1964.
 Selected criterion, such as race or gender, may not be a
motivating factor in an employment decision except in
very limited circumstances.
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Debiasing Techniques
 Most debiasing techniques that are lawful incorporate
one or more of the following components:
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Increasing diversity within an organization.
Slowing down the deliberative process or the decision-making
process.
Providing for layers of review of decision-making in hiring,
promotion and evaluation.
Implementing and training on EEO and anti-discrimination
policies.
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Debiasing Techniques
 Most experts agree that individuals first must accept that
implicit bias plays a role in decision-making and
acceptance of the fact that implicit bias impacts
negatively those not part of the "ingroup".
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To this end, internal organizational education becomes a key
component.
Fostering an attitude that implicit bias is a factor that affects most
if not all of us to some extent, and that understanding is not an
admission of a character flaw.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Debiasing Techniques
 Simple procedural mechanisms can mitigate the effects
of implicit bias.
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In one example, orchestras started using a blind screen in
auditioning new musicians, and afterwards women had much
greater success in hires and promotions.
Another exercise is to maintain a list of assignments broken down
by gender among various employees in the office. This allows
managers to identify patterns and deal with outliers.
Source: The Law of Implicit Bias; Yale Law School Legal Scholarship
Repository; Christine Jolls and Cass Sunstein (2006)
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Debiasing Techniques
 Many commentators have pushed for the expanded use
of affirmative action plans; however, their use in private
employment in the absence of historical pattern of
discrimination could prove problematic.
 Managers must be careful because affirmative action
plans often promote a "bottom line" mentality which
places too much emphasis on "express" considerations
of race, gender, and other classes identified in Title VII.
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Debiasing Techniques
 Multiple approaches to debiasing are warranted,
including:
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Employee and manager education
Historical review of employee staffing
Historical review of employee evaluation
Establishing diversity initiatives
Implementation of EEO and anti-discrimination policies
Implementation of procedural steps where subjective decisionmaking is a primary factor in promotion or hiring
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.
Tom H. Luetkemeyer
Hinshaw & Culbertson LLP
Chicago | 312-704-3056
tluetkemeyer@hinshawlaw.com
www.hinshawlaw.com
© 2014 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.