Current Topics in Health Care Law

Abstract

Continuing Professional Education (CPE) InformationThe Continuing Professional Education (CPE) quiz for this article is available for free to Academy members through the MyCDRGo app (available for iOS and Android devices) and through www.jandonline.org (click on “CPE” in the menu and then “Academy Journal CPE Articles”). Log in with your Academy of Nutrition and Dietetics or Commission on Dietetic Registration username and password, click “Journal Article Quiz” on the next page, then click the “Additional Journal CPE quizzes” button to view a list of available quizzes. Non-members may take CPE quizzes by sending a request to [email protected] . There is a $45 fee per quiz (includes quiz and copy of article) for non-members.Nutrition and dietetics practitioners operate by a core set of ethical principles, including beneficence (“taking positive steps to benefit others”) and nonmaleficence (do no harm), as outlined by the Code of Ethics for the Nutrition and Dietetics Profession, which was developed by the Academy of Nutrition and Dietetics (Academy) and its credentialing agency, the Commission on Dietetic Registration.1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar Although adherence to ethical principles strengthens the bonds of trust between credentialed nutrition and dietetics practitioners and their patients and clients, so does rigorous compliance with federal and state laws. Although the Code of Ethics can aid Academy members and Commission on Dietetic Registration–credentialed practitioners in assessing the right thing to do in a particular situation, ensuring legal compliance means nutrition and dietetics practitioners should actively determine what the law requires of them. The Continuing Professional Education (CPE) quiz for this article is available for free to Academy members through the MyCDRGo app (available for iOS and Android devices) and through www.jandonline.org (click on “CPE” in the menu and then “Academy Journal CPE Articles”). Log in with your Academy of Nutrition and Dietetics or Commission on Dietetic Registration username and password, click “Journal Article Quiz” on the next page, then click the “Additional Journal CPE quizzes” button to view a list of available quizzes. Non-members may take CPE quizzes by sending a request to [email protected] . There is a $45 fee per quiz (includes quiz and copy of article) for non-members. Laws exist at the local, state, and federal levels.2Derelian D. Dietetics: Legalities, ethics, and eccentricities.J Acad Nutr Diet. 2000; 100: 519-523Google Scholar Generally speaking, federal laws are applicable to all people in the United States. State laws are applicable within that state, although local laws govern specific cities, towns, and counties. Federal laws supersede or preempt state and local laws, and most cases involving individual citizens are handled in the state courts. The following is an overview of legal topic areas that may be applicable to nutrition and dietetics practitioners. Although this article provides insights into laws that are germane to health care providers, it is not intended to provide legal guidance. Members of the Academy are encouraged to be aware of the evolving nature of law and to seek professional counsel when appropriate. The Americans with Disabilities Act (ADA), which was passed in 1990 and amended in 2008, prohibits employers from discriminating against qualified individuals with disabilities in a variety of areas, including employment.3Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.https://www.govinfo.gov/content/pkg/USCODE-2009-title42/html/USCODE-2009-title42-chap126.htmDate accessed: April 25, 2022Google Scholar The ADA does not protect all individuals with disabilities—it only protects “qualified individuals with disabilities,” which the ADA defines as an “individual, who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”4Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq.https://www.govinfo.gov/content/pkg/USCODE-2009-title42/html/USCODE-2009-title42-chap126.htmDate accessed: April 25, 2022Google Scholar It is important to note that an employer need not make every conceivable accommodation for employees, nor must the employer provide the employee’s desired accommodation. Instead, an employer must make “reasonable accommodations,” which typically include such things as job restructuring, modifying work schedules, and reassignment to an open position.4Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq.https://www.govinfo.gov/content/pkg/USCODE-2009-title42/html/USCODE-2009-title42-chap126.htmDate accessed: April 25, 2022Google Scholar At this point in the COVID-19 pandemic, many employers are requiring or encouraging their employees to return to work in the office, either on a part-time or full-time basis. Generally speaking, employers can mandate when and how often employees must work in the office, with the understanding that employees may simply refuse to return to the office. An employer may terminate any employee who refuses to return to work in the office unless, perhaps, the employee has a disability and requests a remote work accommodation. If that occurs, and if the employer is covered by the ADA or an applicable state or local disability discrimination law, the employer has a legal obligation to consider and respond to the request. It is important to note that the ADA does not apply to all employers—it only applies to entities that employ 15 or more employees for each working day in 20 or more calendar weeks in the current year or preceding year.4Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq.https://www.govinfo.gov/content/pkg/USCODE-2009-title42/html/USCODE-2009-title42-chap126.htmDate accessed: April 25, 2022Google Scholar However, many state and local governments have civil rights laws that prohibit disability discrimination, and many of those apply to smaller employers. In the context of remote work, before the COVID-19 pandemic, employers routinely and successfully argued that it was an essential function of most employees’ positions to work in the office. For example, in Bilinsky v. American Airlines, the court explained that “[t] here is a general consensus among courts . . . that regular work-site attendance is an essential function of most jobs.”5Bilinsky v. American Airlines, Inc., 928 F.3d 565 (7th Cir. 2019).Google Scholar,6Credeur v. Louisiana, 860 F.3d 785, 793 (5th Cir. 2017).Google Scholar That general consensus, however, will almost certainly be challenged by employees, their lawyers, and enforcement agencies in the post-COVID 19 world. For example, in webinars and elsewhere, attorneys for the Equal Employment Opportunity Commission, which is the federal agency that enforces the ADA, have warned that employers should not rely on pre–COVID-19 pandemic job descriptions and other evidence as the basis to reject remote work accommodation requests from individuals with disabilities. After all, according to the Equal Employment Opportunity Commission, many employees have been working remotely for the past 2 years, which the agency says renders prepandemic evidence somewhat unreliable. Given this messaging, coupled with the advances and widespread use of technology that makes remote work possible for many positions, employers would be well advised to articulate in return to office communications the reasons why it is essential that employees return to work in the office. In addition, employers should consider updating job descriptions to identify essential in-office job functions, if any, for each of their positions. When faced with a request for a remote work accommodation from an employee who reports a disability, it is important to consider the particular facts and circumstances of the individual employee’s situation before deciding how to respond to the request. Moreover, given the Equal Employment Opportunity Commission’s position on this matter, employers would be well-advised to seek help from experienced employment counsel before deciding that a remote work request for an individual with a disability is unreasonable. Generally, the US legal system consists of common law and statutory laws. Common law develops over time and is presented in opinions written by courts. State and federal legislators enact statutory laws. In addition, the United States has a wide range of regulations and local laws, sometimes called ordinances. It is likely that on the occasion when a nutrition and dietetics practitioner interacts with the law it qualifies as a civil matter rather than a criminal legal matter, which focuses on punishment for breaking a particular law or laws. Civil matters could include “landlord/tenant disputes, contract breaches, negligence suits, or other civil actions.”2Derelian D. Dietetics: Legalities, ethics, and eccentricities.J Acad Nutr Diet. 2000; 100: 519-523Google Scholar Many states now require the credentialed nutrition and dietetics practitioner to secure a license to practice in the state. The Academy maintains a database of current licensure requirements.7Licensure statutes and information by state. Academy of Nutrition and Dietetics.https://www.eatrightpro.org/advocacy/licensure/licensure-mapDate accessed: May 4, 2022Google Scholar Each state has different requirements, and you must comply with all requirements for your state. (Principle 2b: “Comply with all applicable laws and regulations, including obtaining/maintaining a state license or certification if engaged in practice governed by nutrition and dietetics statutes.”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) At the time of the writing of this article, 48 states, the District of Columbia, Puerto Rico, and Guam regulate the practice of dietetics or medical nutrition therapy—although there may be exemptions enabling practice for a short duration or for a small subset of dietetics and nutrition services. These states usually also regulate use of certain titles through a title protection provision.8Licensure and professional regulation of dietitians. Academy of Nutrition and Dietetics.https://www.eatrightpro.org/advocacy/licensure/professional-regulation-of-dietitiansDate accessed: May 4, 2022Google Scholar Note that the legal status of cross-border practice is determined by the location of the client. For licensure purposes, the registered dietitian nutritionist’s location is not relevant. For example, if services are provided via telehealth to a resident of Pennsylvania, then Pennsylvania law applies. If that Pennsylvania client travels across the border to see a Maryland registered dietitian nutritionist, then Maryland law applies. If the Pennsylvania client temporarily relocates to Florida, then Florida law applies. The nutrition and dietetics practitioner likely engages in actions that are related to civil laws and regulations on a daily basis, including, for example, requesting clients sign paperwork acknowledging privacy practices or entering into a written lease for an office space for their practice. If you are an employee, your employer likely provides training to educate staff members on compliance with applicable laws. If you are self-employed, consider participating in a local business organization or Chamber of Commerce, which frequently provides resources to ensure compliance with state and federal laws. More than 3.6 billion people were using social media worldwide in 2020, a number projected to increase to almost 4.41 billion in 2025.9Number of social network users worldwide from 2017 to 2025. Statista, July 2020https://www.statista.com/statistics/278414/number-of-worldwide-social-network-users/Date accessed: April 25, 2022Google Scholar With this continued growth, particularly regarding the information- and image-sharing platforms, nutrition and dietetics practitioners have a professional obligation to ensure accuracy and transparency, citing photographs, figures, tables, and videos to their source of origin, and to clearly label content that functions as an advertisement or promotion.10Klemm S. Guidance for professional use of social media in nutrition and dietetics practice.J Acad Nutr Diet. 2022; 122: 403-409Abstract Full Text Full Text PDF PubMed Scopus (1) Google Scholar (Principle 2d: “Respect intellectual property rights, including citation and recognition of the ideas and work of others, regardless of the medium (e.g. written, oral, electronic.”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) In fact, health care professionals that engage on social media are bound by copyright restrictions and all federal, state, and local advertising laws. As noted in an Ethics in Practice article published previously, under Federal Trade Commission guidelines, nutrition and dietetics practitioners on social media are considered advertisers when they are endorsing a product in exchange for any payment or compensation, including free or discounted products.10Klemm S. Guidance for professional use of social media in nutrition and dietetics practice.J Acad Nutr Diet. 2022; 122: 403-409Abstract Full Text Full Text PDF PubMed Scopus (1) Google Scholar (Principle 2a: “Disclose any conflicts of interest, including any financial interests in products or services that are recommended. Refrain from accepting gifts or services which potentially influence or which may give the appearance of influencing professional judgment.”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) Therefore, they are required to disclose this relationship in a clear and conspicuous manner.11Helm J. Miller Jones R. Practice Paper of the Academy of Nutrition and Dietetics: Social media and the dietetics practitioner: Opportunities, challenges, and best practices.J Acad Nutr Diet. 2016; 116: 1825-1835Abstract Full Text Full Text PDF PubMed Scopus (43) Google Scholar Using keywords, such as #ad, #sponsored, or #paidpartner, is recommended at the start of a post to help promote transparency.10Klemm S. Guidance for professional use of social media in nutrition and dietetics practice.J Acad Nutr Diet. 2022; 122: 403-409Abstract Full Text Full Text PDF PubMed Scopus (1) Google Scholar,12The FTC’s endorsement guides: What people are asking. Federal Trade Commission.https://www.ftc.gov/business-guidance/resources/ftcs-endorsement-guides-what-people-are-askingDate accessed: August 30, 2021Google Scholar,13.com Disclosures: How to make effective disclosures in digital advertising.Federal Trade Commission. March 2013; https://www.ftc.gov/business-guidance/resources/com-disclosures-how-make-effective-disclosures-digital-advertisingDate accessed: August 30, 2021Google Scholar Nutrition and dietetics practitioners are also compelled to ensure that all social media content is consistent with current Health Insurance Portability and Accountability Act (HIPAA) regulations.14Health Insurance Portability and Accountability Act of 1996 (HIPAA). Centers for Disease Control and Prevention, September 14, 2018https://www.cdc.gov/phlp/publications/topic/hipaa.htmlDate accessed: April 25, 2022Google Scholar (Principle 2h: “Respect patient/client’s autonomy. Safeguard patient/client confidentiality according to current regulations and laws.”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) HIPAA, enacted in 1996, is a federal law that mandated the creation of national standards to protect individually identifiable health information communicated through e-mails, phone conversations, voicemail records, and so on from being disclosed without the patient’s consent or knowledge.14Health Insurance Portability and Accountability Act of 1996 (HIPAA). Centers for Disease Control and Prevention, September 14, 2018https://www.cdc.gov/phlp/publications/topic/hipaa.htmlDate accessed: April 25, 2022Google Scholar (Principle 2i: “Implement appropriate measures to protect personal health information using appropriate techniques [e.g., encryption].”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) The US Department of Health and Human Services issued the HIPAA Privacy Rule to implement the requirements outlined by HIPAA. In addition, the HIPAA Breach Notification Rule requires covered entities and business associates to provide notification after a breach of unsecured protected health information.14Health Insurance Portability and Accountability Act of 1996 (HIPAA). Centers for Disease Control and Prevention, September 14, 2018https://www.cdc.gov/phlp/publications/topic/hipaa.htmlDate accessed: April 25, 2022Google Scholar It is also advised that nutrition and dietetics practitioners who engage in social media adhere to employer policies, as well as the guidelines developed by the social media platforms themselves. (Principle 3c: “Demonstrate respect, constructive dialogue, civility and professionalism in all communications, including social media.”1Code of Ethics for the Nutrition and Dietetics Profession. Academy of Nutrition and Dietetics. Published June 2018https://www.eatrightpro.org/-/media/eatrightpro-files/career/code-of-ethics/coeforthenutritionanddieteticsprofession.pdf?la=en& hash=0C9D1622C51782F12A0D6004A28CDAC0CE99A032en& hash1/40C9D1622C51782F12A0D6004A28CDAC0CE99A032Date accessed: April 25, 2022Google Scholar) There are also important considerations for nutrition and dietetics practitioners who are employed by, operate, or are considering starting a nonprofit organization. The term nonprofit is a state law term. Most states have nonprofit corporate statutes that permit entities to be organized for public or mutual benefit purposes without shareholders. But the term nonprofit is a misnomer because it does not put a limitation on profits. In fact, many large nonprofits, such as universities, make substantial profits annually. The profits of a nonprofit organization, however, are not distributed to stockholders; they remain within the organization to help it accomplish its mission. Since the beginning of the federal income tax, the US Congress has permitted some nonprofit organizations to qualify for tax-exempt status because of the importance of their work. Today, charities, trade associations, professional societies, and 2 dozen other types of organizations are deemed tax-exempt by the US Internal Revenue Service. In a legal context, the term tax-exempt means that the entity does not need to pay income tax on some revenue streams, such as donations, educational revenue, and dues, and must pay income tax on other revenue streams, such as advertising income. Each type of tax-exempt organization is subject to different federal rules. For example, trade associations and professional societies can engage in political activities through political action committees and other limited means. Charities, trade associations, and professional societies may all engage in lobbying, that is, the furtherance of, or opposition to, legislation, but they are subject to different limitations. One of the most important rules that govern charities, trade associations, and professional societies is the rule against inurement. Inurement occurs when an insider gets more from a tax-exempt organization than they gave. In United Cancer Council v. Commissioner, the court stated that a tax-exempt organization “is not to siphon its earnings to . . . the members of its Board . . . or anyone else fairly to be described as an insider, that is, the equivalent of an owner or manager.”15United Cancer Council, Inc. v. Commissioner, 165 F.3d 1173 (7th Cir. 1999).Google Scholar The concept of inurement remains the core differential between tax-exempt and taxable corporations. Tax-exempt organizations may operate like businesses. They have strategic plans and make a profit. They sell products and often compete with for-profit entities. They may not, however, distribute the profits from these activities to insiders, beyond the payment of reasonable compensation for services rendered. The expansion of telehealth services during the COVID-19 public health emergency (PHE) has transformed how the general public views access to care. Before the pandemic, telehealth services coverage under traditional Medicare was limited to beneficiaries living in rural areas, with restrictions on which providers would be compensated for delivering virtual care.16O’Reilly K.B. Telehealth flexibilities assured for the bulk of 2022. American Medical Association, March 15, 2022https://www.ama-assn.org/practice-management/digital/telehealth-flexibilities-assured-bulk-2022Date accessed: April 25, 2022Google Scholar Many of the temporary flexibilities regarding Medicare’s telehealth coverage that were initiated at the onset of the PHE would require an act of Congress to become permanent.17Telehealth provisions in the Consolidated Appropriations Act of 2022. Academy of Nutrition and Dietetics, March 17, 2022https://www.eatrightpro.org/news-center/on-the-pulse-of-public-policy/from-the-hill/telehealth-provisions-in-the-consolidated-appropriations-act-of-2022Date accessed: April 25, 2022Google Scholar A first step toward that goal occurred under the Consolidated Appropriations Act of 2022, which President Biden signed into law on March 15, 2022.17Telehealth provisions in the Consolidated Appropriations Act of 2022. Academy of Nutrition and Dietetics, March 17, 2022https://www.eatrightpro.org/news-center/on-the-pulse-of-public-policy/from-the-hill/telehealth-provisions-in-the-consolidated-appropriations-act-of-2022Date accessed: April 25, 2022Google Scholar “Specifically, Congress has amended the Social Security Act to include new language that extends several telehealth flexibilities for 151 days (five months) after the end of a public health emergency declared by the Secretary of the Department of Health and Human Services.” “If the public health emergency is renewed (and every time it is renewed), it would push back the end date of these flexibilities by another 90 days. In the absence of a public health emergency, MNT [medical nutrition therapy] and DSMT [diabetes self-management training] remain approved telehealth services and RDNs remain eligible telehealth providers under Medicare Part B.”17Telehealth provisions in the Consolidated Appropriations Act of 2022. Academy of Nutrition and Dietetics, March 17, 2022https://www.eatrightpro.org/news-center/on-the-pulse-of-public-policy/from-the-hill/telehealth-provisions-in-the-consolidated-appropriations-act-of-2022Date accessed: April 25, 2022Google Scholar Nutrition and dietetics practitioners should be aware of the following legal considerations when providing telehealth services18TelehealthLegal considerations. Health Resources and Services Administration.https://telehealth.hhs.gov/providers/legal-considerations/Date accessed: April 25, 2022Google Scholar:•Protecting patient health information: Take the necessary precautions to protect electronic health records from malware and hackers.•At the end of the PHE, all telehealth services will need to comply with HIPAA rules. According to the Health Resources and Services Administration, “while the U.S. Department of Health and Human Services Office for Civil Rights has issued a notice of enforcement discretion to waive HIPAA penalties [during the PHE], the State Attorney Generals have not issued the same notices. Under Sec. 13410(e) of the HITECH [Health Information Technology for Economic and Clinical Health] Act, State Attorney Generals are permitted to obtain civil money penalties on behalf of state residents for HIPAA violations.”18TelehealthLegal considerations. Health Resources and Services Administration.https://telehealth.hhs.gov/providers/legal-considerations/Date accessed: April 25, 2022Google Scholar Health care providers are urged to “check with any applicable states to see if they have also waived these penalties.”18TelehealthLegal considerations. Health Resources and Services Administration.https://telehealth.hhs.gov/providers/legal-considerations/Date accessed: April 25, 2022Google Scholar•Telehealth experts also advise health care practitioners to verify that their professional liability insurance coverage includes telehealth, and to confirm their policy is applicable in more than 1 state if they plan to provide virtual care in multiple states. The nonmaleficence principle in the Academy/Commission on Dietetic Registration Code of Ethics is intended to safeguard patient and client safety to prevent injury or harm. Adherence to local, state, and federal laws also ensures the provision of safe care. Compliance with both ethical standards and legal policy is a multifaceted approach that is intended to inform and empower the nutrition and dietetics practitioner before making business and care-related decisions.