Physicians and Teaching Hospitals Should Register and Review Reporting of Payments Made and Interests Held Before They are Released to the Public

On September 30, 2014, the Centers for Medicare and Medicaid Services (“CMS”) will release information to the public relating to certain payments to physicians and teaching hospitals (collectively “Covered Providers”) from drug/device manufacturers and group purchasing organizations, as well as information on physician ownership and investment interests in certain drug/device manufacturers (“Manufacturers”) and group purchasing organizations (“GPOs”). The information being released was acquired by  CMS from the Manufacturers and GPOs pursuant to Section 6002 of the Patient Protection and Affordable Care Act, which requires the Manufacturers and GPOs to report on an ongoing annual basis any payments or transfers of value to any Covered Provider. Further, the Manufacturers and GPOs are required to report any ownership or investment interest held in the Manufacturer or GPO by a physician (where the definition of a “physician” includes dentists, optometrists and other health care providers), or the physician’s immediate family member. 
Covered Providers who believe information relating to them may have been reported to CMS by a Manufacturer or GPO should exercise their right to review, and if necessary dispute, that information. In order to exercise the right to review and dispute any information provided to CMS, a Covered Provider must first register with CMS. CMS is advising Covered Providers to register as soon as possible because the registration process, which includes verifying the physician’s identity, may take some time. A Covered Provider has until AUGUST 27, 2014 to review the information provided to CMS and dispute any inaccurate information with the Manufacturer or GPO. If the Covered Provider and Manufacturer/GPO are unable to resolve a dispute as to the accuracy of information provided to CMS by September 11, 2014, the disputed information will be posted to CMS’ website, along with all undisputed information, on September 30, 2014, with a notation that the information is currently under dispute.

A link to CMS’ registration page is provided below:


EEOC Issues New Guidance on Pregnancy Discrimination

On Monday July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination. The guidance was issued by the EEOC on a 3-2 vote.

This guidance updates and replaces the Commission’s 1983 guidance. The guidance focuses on one of the priorities outlined in the EEOC’s Strategic Enforcement Plan—addressing the interaction between the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), as amended in 2008. The biggest change in the guidance is an interpretation of the PDA that would require employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.

The issue of accommodation under the PDA is the subject of a case currently before the U.S. Supreme Court, Young v. UPS, brought by a pregnant UPS worker who was denied light duty work and let go.

The guidelines have some new provisions:

• Routine pregnancy-related conditions that did not previously rise to the level of disability, such as back pain, increased water intake and lifting restrictions, can now be considered disabilities covered by the Americans with Disabilities Act, which entitles workers to accommodations at work.

• Lactation is now considered a medical condition.

• Employers can no longer deny reasonable accommodations to pregnant workers who are unable to lift heavy objects or need more bathroom breaks.

The guidelines also affirm some preexisting law:

• Medical conditions related to pregnancy that are otherwise considered disabilities, such as gestational diabetes and preeclampsia, must be reasonably accommodated.

• Employers are still prohibited from demoting or firing employees when they announce their pregnancies, intent to become pregnant or pregnancy-related medical conditions.

• Equal access to benefits including light duty, leave, health care, and various other benefits. The EEOC included a statement that “Employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.” This provision may need to be clarified in light of the Supreme Court’s decision in the Hobby Lobby case.

In addition, the EEOC is calling for equal parental leaves for both mothers and fathers for bonding, although the guidelines suggest giving mothers additional "child birth" leave to recover physically. (At present, both mothers and fathers qualify for unpaid leave under the Family and Medical Leave Act if they have worked full time for at least one year for a large company, but fathers tend to have little if any paid parental leave compared to mothers, which the EEOC says is discriminatory.)

The EEOC has issued a fact sheet for small businesses, as well as a Q-and-A page in conjunction with the guidelines. The links are:



The EEOC guidelines mark a growing trend toward protections for pregnant workers, as seen in recent state and local legislation. The impact for employers at this point, however, is unknown until the Supreme Court hears Young v. UPS during the 2014–2015 term.

Nonetheless, employers should consider whether revising and updating their pregnancy accommodation policies to comply with the EEOC guidance is a best business practice apropos of the newly issued guidance.

Contact: Anne Prenner Schmidt


Tedesco to Speak at Meeting of the Ohio State Bar Association Corporate Counsel Section

Roetzel attorney Klodiana Tedesco is speaking on Friday, July 11, 2014, at the monthly teleconference meeting of the Ohio State Bar Association's Corporate Counsel Section.  Ms. Tedesco will address the OSBA's Corporate Counsel membership on the topic of  "Employment Eligibility Verification," including a discussion of the new Form I-9, trends and new issues in immigration law, what to expect during an I-9 audit and comments on the E-verify program.

Klodiana B. Tedesco


Unions Not Dealt the Blow Feared by Many

The Supreme Court dealt a limited blow to organized labor on June 30, 2014 by holding in Harris v. Quinn that home health care workers in Illinois cannot be compelled to financially support a union they don’t wish to join. But the court declined to strike down a decades-old precedent that required many public sector workers to pay union fees. Writing for the 5-to-4 majority, Justice Alito sharply criticized a 1977 precedent, known as Abood, which granted states the right to compel union dues. Alito called that ruling “questionable” and “anomalous,” all but inviting a further challenge in the future. He was joined in his opinion by Chief Justice John Roberts and Justices Thomas, Scalia and Kennedy.

The case was initially brought by eight Illinois workers who provided home care to Medicaid recipients. Several plaintiffs were mothers who, helped by Medicaid, were personal assistants to their disabled children and opposed joining the union and paying union fees.

The plaintiffs asked the court to overrule a 1977 decision (Abood) that declared that government employees could be required to pay fees to unions for representing them and administering their contracts even if they disagreed with the unions’ positions.

Illinois and more than 20 other states require government employees, whether or not they opt to join the union at their workplace, to pay “fair share” fees to finance the union’s activities, like collective bargaining, to prevent freeloading and ensure “labor peace.” But the court in Abood held that workers could not be required to help pay for activities that were purely political, like campaigning for particular candidates.

The National Right to Work Legal Defense Foundation represented the plaintiffs and argued that Illinois was violating the First Amendment by requiring that home-care aides pay compulsory fees to unions even when they disagreed with the unions’ positions. The foundation argued that most of what public-sector unions did was inherently political, partly because they rely on the government to pay their members’ wages and benefits — and they often lobby the government to increase compensation.

Justice Alito wrote that home-care aides who typically work for an ill or disabled person, with Medicaid paying their wages, should be classified as partial public employees and should not be treated the same way as public schoolteachers or police officers who work directly for the government.

Union leaders had feared that the justices might strike down those state laws as unconstitutional. The justices did not go that far. They issued a more narrow ruling that the home health care workers at issue in the case are not “full-fledged public employees” because they are hired and fired by individual patients and work in private homes, though they are paid in part by the state, via Medicaid.

Because they are not truly state employees, the justices decided these workers did not have to pay union dues.

Still, the fairly narrow ruling is a blow to the Service Employees International Union, the American Federation of Teachers and other unions that have organized hundreds of thousands of home health workers in states including Illinois, California and Connecticut. Those workers can now decide whether they want to support the union financially. This can cause discord and schisms in work forces as Labor leaders regard workers who do not pay the fees as freeloaders, since they benefit from the union’s work negotiating contracts but do not pay their fair share to cover the expenses.

Justice Alito rebuffed the argument by the State of Illinois that the Abood decision should be controlling in this case, saying it should apply only in cases involving full-fledged public employees like teachers or firefighters.

The majority opinion showed uneasiness with decades of laws and judicial rulings that required government workers who choose not to join unions to nonetheless pay union fees on the ground that unions’ efforts on collective bargaining and grievances benefit members and nonmembers alike.

In the dissenting opinion, Justice Kagan attacked the majority’s concept of partial public employees, saying that Illinois has sole authority over much of the home-care aides’ terms and conditions of employment.

“Today’s opinion takes the tack of throwing everything against the wall in the hope that something might stick,” she wrote. “A vain hope, as it turns out.”

Anticipating a future attack on Abood, Justice Kagan devoted much of her dissent to defending Abood and its upholding government efforts to prevent free-riding. Saying that the majority underestimated that problem, she wrote, “Union supporters (no less than union detractors) have an economic incentive to free ride.”

The Harris decision seems consistent with a broader trend in American labor: independent contractors and temp agencies are just a few examples of how non-traditional employees tend to be harder to unionize and have fewer rights. In designating home care workers "quasi public" another category of employees who don't “deserve” the same bargaining powers as "full-fledged" ones are created, Alito has furthered the idea that employee rights depend not on the kind of work one does, but rather on who pays the salary.