Author: Courtney Patterson

May 8, 2025

Posted on by Courtney Patterson

QUESTION:
What are some ADA-specific considerations for allowing patients to bring service animals to the hospital?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Under the American with Disabilities Act (“ADA”), patients who require the services of a service animal are generally permitted to bring their service animal with them to a hospital.  However, the ADA protections granted to service animals do not apply to emotional support animals; therefore, hospitals may prohibit patients from bringing emotional support animals to the hospital.  Hospitals may impose rules and restrictions for managing service animals in their facilities.

Title III of the ADA requires hospitals and other places of public accommodation to modify policies, practices, and procedures to permit individuals with a disability to use a service animal.  Service animals must be under the handler’s control.  The ADA regulations require handlers control their service animals with a harness, leash, or other tether, unless the handler is unable to use said harness leash or tether because of a disability or said harness, leash, or tether would interfere with the service animal’s safe and effective performance of work or tasks.  The hospital may request that the service animal be removed if (1) the animal is out of control and the animal’s handler does not take effective action to control it, or (2) the animal is not housebroken.

Under the ADA, a “service animal” means any dog that is individually trained to do work or perform tasks for the benefits of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.  The “works performed” by a service animal must be directly related the individual’s disability.  For example, a dog who assists an individual who is blind or has low vision by navigating the person throughout a facility, or a dog who helps a person with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors performs works or tasks that meet the service animal requirement.

Importantly, other species of animals are not considered service animals (however, the ADA does require accommodations for people who use miniature horses similarly to service animals in specific circumstances).  Additionally, an animal’s presence or the provision of emotional support, well-being, comfort, or companionship does not constitute works or tasks for the purposes of identifying an animal as a “service animal.” Why? According to the Department of Justice, the difference between a service animal and an emotional support animal is determined by the work or task that the animal performs.  A service animal, unlike an emotional support animal, is trained to respond to an individual’s need.  For example, if a service animal senses a person is about to have a psychiatric episode and it is trained to respond by nudging, barking, or moving the individual to a safe location until an episode subsides, the animal “performs a task” or has “done work” on behalf of the individual with a disability rather than simply sensing that an event has occurred.  Thus, an emotional support animal, which typically is not trained to recognize and respond to an episode, but rather comforts or provides companionship as a result of a person’s episode, does not perform works or tasks and is therefore excluded from the “service animal” definition.

If it is unclear whether someone’s dog is a service animal, a place of public accommodation may only ask two questions pertaining the service animal:  (1) Is the service animal required because of a disability? (2) What work or task has the dog been trained to perform?  Under the ADA, it is unlawful to (1) ask about the nature and extent of the person’s disability, (2) request any documentation that the service animal is registered, licensed, or certified as a service animal, or (3) ask the handler to pay a surcharge where a surcharge would otherwise be appropriate.  The U.S. Department of Justice Civil Rights Division has no shortage of information, including its Service Animals ADA Requirements:  Service Animals, and Frequently Asked Questions about Service Animals and the ADA webpages.

If you have a quick question about this, e-mail Moises A. Tonoc Bonilla at mtonocbonilla@hortyspringer.com.

May 1, 2025

Posted on by Courtney Patterson

QUESTION:
Should we be using specialty-specific triggers as a part of our professional practice evaluation/peer review process?

ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Yes.  Specialty-specific triggers give a measure of predictability and transparency to the professional practice evaluation/peer review process (“peer review process”).  These triggers are pre-determined events, organized by specialty or department, that identify a case for review through your peer review process.  Moreover, accreditation entities require the inclusion of these triggers as a part of the review process.  By way of example, The Joint Commission, in MS.08.01.01, instructs that the Medical Staff must “define the circumstances requiring monitoring and evaluation of a physician’s or other licensed practitioner’s professional performance” and requires that “[t]he triggers that indicate the need for performance monitoring are clearly defined.”  The DNV standards have similar language and define, in MS.8, “areas required to be measured [as a part of the peer review process],” including “[s]pecific department indicators that have been defined by the medical staff.”  The triggers should be communicated to members of the specialty or department so that they understand that if a certain event occurs, it is ripe for review, and they will most likely be notified about the case.

Often, the department chairs take the lead in identifying the specialty-specific triggers and the peer review committee is responsible for approving and periodically reviewing them.   For surgery, the triggers could include events such as an unplanned injury or removal of an organ, a retained foreign body, a wrong-site surgery, and a laceration or puncture of a body part.  For medicine, the triggers could include an unplanned transfer to a special care unit, an adverse outcome that is unrelated to the natural course of an illness, the death of a patient in a low mortality DRG, or a critical/abnormal lab result that is unaddressed or misinterpreted.

In addition to specialty-specific triggers, there are numerous other ways that clinical issues may be entered into the peer review process, including through reported concerns, patient complaints, referrals from the serious safety event process, OPPE data that reflects a concerning practice pattern or concern, and utilization issues.  These should also be defined in your peer review policy and will establish a broad net to catch issues for review.

If you have a quick question about this, e-mail Charlie Chulack at cchulack@hortyspringer.com.

April 24, 2025

Posted on by Courtney Patterson

QUESTION:
I was recently appointed as the chair of the Credentials Committee.  The first meeting took a long time, came off the rails sometimes and was extremely frustrating.  How can I make these meetings better?

ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Please don’t despair!  It takes a lot of hard work, so here are some tips that will help you run an efficient meeting, because running an efficient meeting is the key to making it an effective meeting.

Tip #1.  Start on time.  This is one of the most important tips.  If a meeting isn’t started on time, chances are it won’t end on time, and not ending on time has consequences!  Starting on time shows that the chair has expectations for his or her meeting.  If the chair is taking the meeting seriously, the participants will more than likely take it seriously, and not treat it as a weekly, monthly, etc., casual get together.

Also, if a meeting always starts on time, the participants will more than likely be there on time.  No one likes to walk into a meeting late.  But, if the meeting never starts on time, the participants will start thinking “Well, it’s 15 minutes past the start time, so it probably didn’t start, but if it did, I’m not going to be that late.”  Or, being late becomes a joke “I can’t believe you started already – it’s only 15 minutes past the start time!”

Also, being late to a meeting disrupts the meeting.  The participant who is late may not pick up on the discussion, or if the chair summarizes what has already been discussed for the late-comer, the chair may “lose” those who were there on time.

Finally, introduce visitors, or participants who are attending their first meeting and may not know everyone in the room.

Tip #2.  Encourage participation.  The chair should get every attendee involved.  Some attendees may not speak because they may be shy, or feel intimidated, but the chair should draw those attendees in to get multiple points of view.  The chair could use direct questions, such as “Didn’t you face this situation in your practice?  What was your experience?”

Tip #3.  Limit the conversation.  This doesn’t mean that the chair should not hear from everyone who wants to contribute their point of view.  The purpose of a meeting is to get different points of view, then make a decision.  What “limit the conversation” means is that if a couple of people in the room are making the same point, over and over again, that’s unproductive, so the chair should step in and say “Ok, any other points of view that we haven’t discussed yet?”  Also, if a discussion “drifts,” the chair should step in and restate the purpose of the discussion.  This can be hard to do, because chairs don’t want to be seen as dictators, but it is a skill that needs to be developed.  Otherwise, the participants start thinking the meeting is a waste of time, and the downward spiral begins.

Tip #4.  Take an issue off-line.  There are times when a meeting is getting bogged down because no one has the information needed to make a decision.  For example, is the bylaws revision being discussed a Joint Commission Standard?  A Medicare Condition of Participation?  A best practice?  If no one knows for sure, further discussion will not help the committee make a decision, so that issue should be taken off the agenda until the next meeting, to research the issue.

Another reason to take an issue off the agenda is because there are so many conflicting points of view that won’t be able to be resolved at the meeting.  The chair knows that no matter how much more discussion there is, the issue won’t be resolved.  So, the chair should stop the discussion, and maybe appoint a small group to investigate or research the issue, then bring the results back to the committee.

Tip #5.  End on time.  I think this is the most important tip.  If a meeting is to end at 8:30 a.m., end the meeting.  Although some attendees don’t mind going over, the majority will start thinking about work that needs to be done, or another meeting to go to, or an appointment to make.  A meeting that runs on and on and on isn’t efficient and becomes much less effective as time goes on.  The chair must remember that he or she is dealing with attendees who have volunteered their time to participate on this committee and be at this meeting, so respect their time.

Also, not ending on time affects meeting attendance.  If an attendee knows that the meeting always goes over, he or she is less likely to attend the meeting.

It’s just a fact that sometimes agendas are just too full, or there may have been too much discussion on one issue, etc. – that happens.  But, instead of plowing on through with more and more disinterested attendees as each minute ticks by, just end the meeting, and hold those agenda items over for the next meeting.  The exception is if the issue is of critical importance, but that will be few and far between.

Bonus Tips!

Post-meeting tasks.  The meeting attendees should have clear goals and assigned tasks after leaving the meeting.

Order.  How does a chair keep order at a meeting?  By strict adherence to Robert’s Rules of Order?  No!  We recommend that Robert’s Rules be looked to for guidance, but are not binding, and that the chair reserves the power to make all definitive procedural rulings.  Why?  Because if there is a parliamentarian on the committee, he or she can dominate the discussion just because he or she knows Robert’s Rule inside and out.  Also, it’s impractical to expect everyone on the committee to know all of the rules, and we don’t want to put them at a disadvantage during meetings.

That’s it for the tips.  Please remember these tips, because a poorly run meeting that starts late, wanders all over the place, and doesn’t end on time, creates a belief that spreads through the hospital that meetings are a waste of time.

If you have a quick question about this, e‑mail Nick at ncalabrese@hortyspringer.com.

April 17, 2025

Posted on by Courtney Patterson

QUESTION:
Does haiku need to be in a 5-7-5 syllable format?

ANSWER FROM HORTYSPRINGER ATTORNEY
DAN MULHOLLAND:
Not necessarily.  According to the definitive 1999 Matsuyama Declaration from the International Haiku Convention:

“A common issue that always comes up in discussions of international haiku, is how to deal with the fixed form of 5-7-5 syllables and kigo in other languages and cultures.  First of all, the 5-7-5 rhythm is unique to the Japanese language, and even if other languages were to use this rhythm, it is obvious that it would not guarantee the same effect.  Teikei is not about the matter of syllable count or accent, but the matter of the way poetic expression could be heightened through tension when the writer wants it.  In the case of Japanese poetry, the best method to increase poetic tension was the 5-7-5 syllable form.”

“Therefore, when haiku spreads to the rest of the world, it is important to treat it as a short-formed poem and to take methods suitable to each language.  For a poem to be recognized worldwide as haiku, it must be short-formed and have an essential spirit of haiku.”

The Health Law Express
Offers Best Wishes and Thoughts.
To all our readers.

April 10, 2025

Posted on by Courtney Patterson

QUESTION:
We recently had a patient suicide reviewed through our sentinel event/root cause analysis process.  The process did not identify any aspect of the matter that should be attributed to the attending physician’s provision of care.  Is that the end of the matter?  Do we also need to refer this matter to the medical staff’s peer review process for consideration?  Would it have any authority to reach a different conclusion?  How do these processes intersect?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
We get many questions like this.  There are many quality review processes in health systems and hospitals that intersect with the medical staff’s peer review process and it is not uncommon for there to be questions about which process applies and which takes priority/has authority.  This holds true not only for sentinel event root cause analysis, but also processes to manage utilization review, infection control, antibiotic stewardship, patient grievances, and even workplace investigations (e.g., HR investigations of sexual harassment complaints).

These processes are generally conducted without regard to whether the involved subjects are physicians or other hospital personnel.  So, facts are being gathered, records reviewed, witnesses interviewed, documentation created, and factual conclusions made, often without the involvement of a medical staff peer review committee.  This is normal and customary.

In the end, any of these processes might eventually identify an issue that requires referring to the medical staff.  That’s because, in addition to identifying issues with facilities and equipment, procedures and systems, and hospital personnel – sometimes, these hospital‑based processes also identify with the performance or conduct of physicians or other privileged practitioners.  And how to further review and address those practitioner‑specific issues falls within the sole jurisdiction of the medical staff credentialing and peer review processes.

Those processes allow you to take the initial concern referred by the hospital process (for example, a conclusion from a sentinel event root cause analysis, that the physician’s failure to fully comply with the time-out procedure was partially responsible for a wrong-site incision) and consider it, along with the practitioner’s other peer review information (for example, the practitioner’s history of behavior issues, carelessness, inattention to detail), to determine whether this new issue raises any concern about the practitioner’s ability to practice safely.  If so, it is the medical staff peer review process that would also determine whether any collegial, progressive steps would be reasonable and might help the practitioner to improve and address the concern or, alternatively, whether more formal disciplinary action should be taken.

To provide clarity regarding this intersection between hospital and medical staff processes, it can be helpful to include in the medical staff peer review policies a list of indicators that, when identified, results in a matter being referred to the medical staff’s peer review support specialist (to be funneled into the medical staff’s peer review process).  In addition to listing the more common indicators for review (e.g., specialty-specific FPPE indicators, OPPE outliers, areas where legal risk has been identified, patient complaints, reported concerns), you might also consider specifically listing referrals from personnel/committees reviewing broader aspects of hospital functions (e.g., referrals from a utilization review committee or case manager, representative of the Human Resources department, the quality director, the compliance department, the risk management department).

We are sometimes asked by physician leaders whether it is necessary for medical staff committees to conduct their own witness interviews and gather their own facts, rather than relying on witness summaries, written reports, and other documentation compiled by others, sometimes outside of the peer review process.  It is not necessary to do this.  You can review, and rely on, information generated or compiled by others.  Of course, if you believe that it would be helpful to ask additional questions of a witness or an individual who previously submitted written comments – or if your medical staff committee believes it is necessary or helpful to meet with any of those individuals to better assess their credibility – you may do so (and nothing in the medical staff or hospital policies should prohibit it).  In our observation, medical staff committees do not feel the need to do this in most cases.  But, you do want to leave your options open.

Finally, you asked whether it would ever be appropriate for a medical staff committee to reach a different conclusion than the individual/committee that referred the matter to the committee (e.g., a sentinel event root cause analysis, a utilization review committee).  In the end, each medical staff committee is charged with reviewing the matters in front of it and using the collective professional judgment of its members to reach a conclusion – even if that conclusion differs from those reached by other individuals or bodies that have reviewed the matter.

Whenever a committee reaches a conclusion that differs from the other individuals/bodies that have reviewed the matter (even if it’s a difference of opinion from another medical staff committee that has reviewed the matter at a prior level of review – such as when the MEC is reviewing a credentialing recommendation from the Credentials Committee), it is a wise practice to take a bit of extra time to consider, articulate, and document (for example, in the meeting minutes) the reasons that the committee is reaching a different conclusion.  This is not only a good risk management strategy (bolstering your defense in the event that your actions are later challenged as unfair or as negligent), but also provides greater protections for medical staff members and other privileged professionals who are subject to review processes, by ensuring that when opinions differ, a bit of extra consideration is given to the matter prior to moving full steam ahead.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.

April 3, 2025

Posted on by Courtney Patterson

QUESTION:
As a part of our routine peer review process, our multi-specialty peer review committee recently requested a meeting with a physician whose case was under review.  The physician said he would only attend if he was allowed to bring his attorney.  Do we have to allow his attorney to attend this meeting?

ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
You do not, but make sure your peer review policy supports you in making this determination!

We are strong proponents of using “collegial” discussions to address performance concerns.  However, that collegiality can quickly go out the window when attorneys are introduced into the process.  If the physician is allowed to bring their attorney, then an attorney from the hospital side is also likely going to be in attendance.  When this happens, the attorneys end up doing all the talking, instead of having a constructive, peer-to-peer discussion.  Even when the physicians at the meeting find a way to get a word in, the presence of attorneys is likely to cause the committee members to speak less candidly, as they will be worried about whether their comments might be used against them by the adverse attorney.

How can your policies help with this dilemma?  We always recommend including language that makes it clear that any collegial meetings will be held in a “no lawyer zone.”  This gives you something to put your finger on to show it is not permitted, should the question ever come up.  More importantly, this allows the invited physician and applicable committee members to have an open and frank “peer‑to‑peer” discussion about whatever issue is on the agenda.

If you have a quick question about this, e-mail Ian Donaldson at idonaldson@hortyspringer.com.

March 27, 2025

Posted on by Courtney Patterson

QUESTION:
A member of our Medical Staff recently had a significant skiing accident which included a concussion.   When he returned to the hospital, staff noticed a change in his behavior and in his clinical performance.  Last week, he had two significant surgical complications and there are concerns that he might not be safe to practice.  The President of the Medical Staff and the Chief Medical Officer want to summarily suspend his privileges and then mandate a health evaluation – not as a punitive measure but to keep patients safe.  Does that sound like a good plan?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
Health concerns can be particularly challenging.  There are several reasons why we don’t recommend the imposition of a summary suspension in a situation like this, except as a last resort.  First, the standard for imposing a summary suspension is pretty high and typically requires a finding that “failure to take such an action may result in an imminent danger to the health of any individual.”  (This is the standard built into the federal Health Care Quality Improvement Act.)

Second, most bylaws require that there be significant process after the imposition of a summary suspension.  This process typically includes a meeting with the Medical Executive Committee and, if the Medical Executive Committee continues the suspension, the commencement of an investigation, which might lead to a recommendation for disciplinary action.

Third, just calling the action a suspension changes how it is perceived.  A suspension sounds punitive even if you say it’s for patient safety concerns.  Furthermore, the imposition of a suspension creates reporting obligations.  A summary suspension that is in effect for more than 30 days must be reported to the National Practitioner Data Bank and the State Board.  In fact, some state reporting statutes require any suspension to be reported regardless of the duration.

In our experience, in situations where there might be an injury leading to an impairment, the preferred approach, and the approach that is consistent with accreditation standards, is a more collegial one.  For example, as a first step, the President of the Medical Staff and the Chief Medical Officer could meet with the physician, share their concerns, and discuss next steps and options.  This discussion could include a request that the physician voluntarily refrain from exercising surgical privileges until the fitness for practice evaluation can be completed and reviewed by the Practitioner Health Committee.

A physician in this situation will almost always agree to get the evaluation even if they don’t necessarily think it’s needed.  You can use this approach even if it is not expressly spelled out in your bylaws.

Better yet, build this approach into your Medical Staff bylaws documents.  That way, Medical Staff leaders have the authority to require a fitness for practice evaluation by a physician approved by them and can get the necessary authorizations to share information with, and receive information from, the physician who performs the evaluation.  It also helps to have bylaws language which states that if a physician refuses to get the fitness for practice evaluation that the result would be an automatic relinquishment of clinical privileges, not a suspension.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

March 20, 2025

Posted on by Courtney Patterson

QUESTION:
We just discovered that a Licensed Practical Nurse was excluded from participation in all federal health programs.  We have never had a problem with this LPN and since she is an LPN, she does not refer patients to the hospital.  Should we do anything?

ANSWER FROM HORTYSPRINGER ATTORNEY HENRY CASALE:
Yes.  First, remove this person from any contact with patients whose care is paid for in whole or in part by a federal health care program such as Medicare or Medicaid.  Next, review your employment-related credentialing process.  All employees should be screened against the OIG’s List of Excluded Individuals/Entities before they are hired.  Find out how and why this did not occur before this person was hired and institute the processes necessary to prevent a similar situation from occurring in the future.

Now for the difficult and painful part.  You need to make a voluntary disclosure to the OIG.  The information described above will help to structure that self‑disclosure.  The fact that the excluded individual was an LPN, and that an LPN does not refer patients to the hospital or other facility, is irrelevant to the OIG.  Their position is that this person should never have provided any care, items, or services to a federal health care program patient.  As a result, the OIG will demand a refund for all federal health care reimbursement received by the hospital for each patient cared for in any way by the excluded person.

As you can imagine, the penalty will add up.  For example, in January 2025, an Ohio Skilled Nursing Facility entered into a $243,000.90 settlement agreement with the OIG in order to resolve allegations that the SNF employed an LPN who was excluded from participating in any federal health care programs and who provided items or services that were billed to federal health care programs.

If you have a quick question about this, e-mail Henry Casale at hcasale@hortyspringer.com.

March 13, 2025

Posted on by Courtney Patterson

QUESTION:
We have a physician who was granted a leave of absence (LOA) last October.  Before she went on leave, there were some concerns raised about her practice, and she signed a performance improvement plan that included extensive CME and simulation training.  When the physician asked to go on leave, she was told that before she would be reinstated, she would have to complete both the CME and the simulation training outlined in her performance improvement plan.

The problem is her current appointment term expires at the end of April.  We don’t want to reappoint her now and give her a stamp of approval especially if she hasn’t completed the CME or training. Is there a way to align the decision on her reappointment with her return from the LOA?

ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
We share your concern about reappointing a physician who is on an LOA.  This case is further complicated by the fact that when the physician took the LOA there was an incomplete performance improvement plan.

Additionally, we would be reluctant to reappoint a physician about whom you had clinical concerns at least without first reviewing the most up to date information about her clinical performance.  If you reappoint this physician now, you won’t have any clinical information for at least the last six months.  And then, she won’t return from the LOA for an additional six months, at least potentially.

One suggestion would be to inform the physician that final action on her reappointment application will be held in abeyance until she seeks reinstatement from the LOA.  When she is ready to return from the LOA, she will have to update her reappointment application before any action is taken.  You will also want to make sure that your primary source verifications are current.

Simultaneously, she will have to demonstrate that she has satisfied the elements of the performance improvement plan.  Furthermore, it is not unusual, when a physician has been on an LOA for an extended period of time, for leadership to develop a focused professional practice evaluation plan to confirm competence as part of the physician’s reinstatement.

If you have a quick question about this, e-mail Susan Lapenta at slapenta@hortyspringer.com.

March 6, 2025

Posted on by Courtney Patterson

QUESTION:
Our hospital received a threatening letter from a lawyer, claiming that our website uses Google Analytics and, in doing so, has violated wiretapping laws.  Is this legitimate or a scam? What should we do?

ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
Some might believe the letter you received is both legitimate and a scam, wrapped up in the same package.  Specifically, as you likely know, the U.S. legal system acknowledges/permits class action lawsuits – essentially, lawsuits filed by one or more “class representatives” who litigate the claim on behalf of all similarly situated class members (the aggrieved individuals).  In concept, class actions permit litigation of claims where the damage to any one litigant may be too small to warrant a single individual shouldering the expenditure of fees/costs on complex litigation.  By grouping the claims of the entire class together, the lawyers who manage class action lawsuits make their money (since they collect their legal fees/costs first, out of any settlement or award), making it possible for these claims – that may otherwise go unaddressed – to be brought.

With that said, many of the class action lawsuits threatened/brought in recent years seem to originate with lawyers looking for a hook to justify a claim.  Often these firms run advertisements looking for individuals willing to serve as a “class representative” plaintiff, giving assurances that those volunteers won’t have to pay any upfront fees and, for their time, will be awarded a greater share of any settlement/award that results from the suit.  One begins to wonder if, for many of these suits, anyone was ever “aggrieved” to begin with.  Some of these firms even sell an interest in the lawsuits to private equity investors.  If the suit eventually results in a settlement or award, the firms/investors win big.  Class members usually receive paltry payouts.  Sometimes, they are a few cents or dollars.  Sometimes, there is no payout for the class members, just promises by a company to do better in the future.  Either way, the law firm walks away with its fees/costs recouped.

So, the letter you received is probably a legitimate letter from a lawyer or law firm.  If it alleges that some class of individuals is aggrieved, it remains to be seen whether any individual actually believed they were aggrieved or knew anything about the alleged wiretapping violation described in the letter.  A quick search of the internet will reveal for you that these types of letters/claims are rampant, and not just with respect to health care organizations.  They are just one of the many ways that firms/plaintiffs have been pursuing class action claims in recent years.  Remember several years ago, when a spate of lawsuits alleged that health care entities were violating HIPAA and state healthcare privacy laws through tracking that occurred on their websites?  We have also seen some firms/plaintiffs taking a new angle, alleging that websites that show videos and track users are violating the federal Video Privacy Protection Act (VPPA).

The good news for you is that (1) you are not alone in being targeted in this way, and (2) a number of courts around the country have already rejected these types of claims under various state’s wiretapping laws.  But, that doesn’t mean that you should simply throw the letter in the trash and ignore it.  Any time you receive any correspondence alleging a legal violation or threatening to sue, you should notify risk management and legal counsel, so that they can help the organization decide the most appropriate response.  In most cases, the next step will be to promptly notify your insurance carrier (who may decide whether to appoint specific counsel to manage the response, put a litigation hold in place, etc.).

Finally, receipt of a letter like this can be a good time for the organization to review its current practices to ensure that there are not gaps in compliance/areas of risk.  The Department of Health and Human Services put out a guidance document, “Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates” that may be helpful to review, if website tracking concerns are new to you.  As the HHS website makes clear, some of the guidance has been limited by court action.  But, if you are looking for more information about why website tracking is of concern and some steps that might be taken to address privacy concerns, it is a good place to get started.

If you have a quick question about this, e-mail Rachel Remaley at rremaley@hortyspringer.com.