Month: February 2020

By: Rachel Tunney

Dickinson Law’s Operational Issues class students, taught by Professor Prince, had the pleasure of hearing from our February Entrepreneur of the Month, Matt Fiedler, during one of their classes. Matt Fiedler is the CEO and Co-Founder of Vinyl Me, Please. More information about Matt Fiedler and his entrepreneurial journey can be found by viewing our previous post here.

Law students who desire careers that involve businesses and entrepreneurs benefit from hearing voices like Matt’s; the voices of actual entrepreneurs who lack legal training and live in an entrepreneurial world. Matt’s presentation allowed the students to understand operational issues from the viewpoint of the entrepreneur and included lessons that any entrepreneur may want to hear as well.

growth is not linear

Matt told the students that if anyone were to hear about Vinyl Me, Please for the first time, now almost seven years since its formation, they would believe that Matt was an overnight success. Matt reminded us, and it’s worth entrepreneurs taking note, that any outsider to a company has no idea about, what he calls, the “in-between.” To demonstrate Matt’s point, he asked the class to look at where he was standing and to close their eyes. A few moments later, Matt asked everyone to open their eyes once more. And, as the students did, they noticed Matt was standing in a different place in the room. He says that outsiders only see the new position of the company. But that only those intimate with the company understand the turns and twists, the ups and downs, that were “in-between” those two positions. Matt refers to this crucial part of company growth as the “in-between.”

Most people, Matt said, believe that growth should be up and to the right. A company is supposed to be born, sell a product, and generate money. Over time, the company sells more and creates even more revenue. But, Matt says, the truth is that growth is not linear; It is not up and to the right, and there is no perfect mathematical equation for any business to fit in. He calls this delusion of how a company should operate over time the “fictional belief of growth.”

almost anything (and everything) happens in the in-between 

Matt presented a visual to the class that drove home his point. On the screen, was a typical up-and-to-the-right thought of growth. But then Matt clicked a button, and suddenly that perfect line turned into what looked like a three-year-old’s craft drawing: loops and turns and ups and downs replaced the perfectly straight line that had been there just seconds before. (See above.) Matt pointed to different parts of the loop. He indicated that different points represented different moments of the business. One moment was the launch of the website. Another was a forced employee firing. Another was the attainment of a revenue goal. Another was an influx of cash from raising capital. The next was a data breach. Matt said this pattern repeats itself throughout the business’s life. It can occur over a year or take place in as little as one day. Up and down. An entrepreneur must be comfortable with waking up every day and heading to work despite not knowing what might happen.

“The mark of an entrepreneur is someone that is willing to go through that adversity and force the reflection, learn from it, and grow.”

To further explain Matt’s point, Matt shared an operational issue that recently impacted Vinyl Me, Please:

Back in November, Vinyl Me, Please was undergoing a technology migration for its platform. The team was trying to work with its current system, which had been custom-built by a CTOO who resigned. The work was undocumented, and the team did not understand how to handle the system. At the time, the goal was to maintain the design of the system even though there was only one developer at the time who could attempt to do that. Matt wanted to take on more customers to drive up business. He understood that the membership platform system needed to be upgraded. But, he said, the “architect” behind the system, who had all the system’s detailed workings in his head, had already left the company. The team then decided to migrate to a new system at the best (worst?) time of the year: Black Friday and Thanksgiving. Typically Vinyl Me, Please, like most businesses, receive an upsurge in sales during this time. But, unfortunately, during system migration, a ton of things went wrong. The team had decided to, in addition to the membership system, upgrade the warehouse system as well. Now, information that had been stored concerning customer accounts and the system in charge of receiving and shipping orders were compromised. Everything that could have gone wrong did.

Matt Fiedler, in addition to his CEO and Co-Founder hat, possessed a third one: Manager of the Customer Service Team. Matt told the class that at one time, his company of about twenty employees was facing thousands of emails.

“And it was just like, how are we ever going to get through this?”

Matt said that willingness to fight is what marks an entrepreneur, makes them different from the average individual.

“There’s some inevitability with failure. There’s obviously an inevitability with adversity, and the only way to get through it is to continue to fight the fight. But at the same time, it forces the process of reflection.”

Matt said to succeed in the world of entrepreneurship, you have to understand what went wrong, why it went wrong, and what you are going to do to make the situation better. He says inevitability, in your journey, you are going to take another downswing. He says the only hope you have is that you will have learned well enough that you don’t make the same mistake twice.

This post was authored on February 24, 2020.

Rachel Tunney, at the time of this post, is a 2L at Penn State Dickinson Law. Formerly a professional New York City dancer/singer, Rachel is now interested in pursuing a career in corporate litigation. Rachel currently serves as the Dickinson Law Student Representative for the Pennsylvania Bar Association and is an Associate Editor of the Dickinson Law Review.

By: Ashli Lyric Jones

As the world becomes more diverse, employers are now responsible for providing employees with a fair and safe work environment. In today’s society, diversity can have multiple meanings.  However, workplace diversity is commonly composed of employees with varying characteristics, such as different sex, gender, race, ethnicity, and sexual orientation. Employers need to have the proper training and management for a diverse workplace. Without diversity in the workplace, there can be grounds for actions and behavior that rise to unlawful and unfair employment practices. Employers have the responsibility to promote and enforce diversity in the workplace. The following should serve as a guide for employers trying to comply with diversity in the workplace.

check state and federal law

Both state and federal governments have passed legislation to prevent unlawful and unfair employment practices.  Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Typically it applies to employers with 15 or more employees, including federal, state, and local governments. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment.

This law is just one of the many laws enacted to prevent unfair employment practices. Some of the other laws in place are the Equal Pay Act (1963), Age Discrimination in Employment Act (1969), Rehabilitation Act (1973),  Americans with Disabilities Act (1990), Civil Rights Act (1991), Pregnancy Discrimination Act, Genetic Information Nondiscrimination Act of 2008, and the ADA Amendments Act. Employers must also check the state laws where their company is located. It is important to always stay up to date on legislation passed that enforces diversity in the workplace. Employers must comply with these laws, and failure to do so could lead to lawsuits, fines, or other civil and criminal causes of action for unfair and unlawful employment practices.

implement a strong equal employment policy

Employers should implement a strong equal employment opportunity policy enforced throughout all levels of the company. A strong equal employment opportunity policy should include a clear explanation of the prohibited conduct. Additionally, it should include transparent and credible assurances that if employees make complaints or provide information related to those complaints, the employer will protect employees from retaliation. The employee must have the confidence that the employer will take immediate and appropriate corrective action when it determines that discrimination has occurred. Once this policy is in place, employers should train managers, supervisors, and employees on its contents to enforce the policy. Having a strong policy in place will set the standard and expectations that employers have for their employees.

make sure to train managers and employees

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of that person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. The EEOC recommends that Human Resources managers and all employees are trained on equal employment opportunity laws.  Training and mentoring programs provide workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well and increases diversity in the workplace. During the diversity training for all employees, it is important to remind employees of the company’s policies that are in place. All employees must be held accountable for their actions, and immediate and appropriate corrective action should be taken if there are any violations of the company policy.

promote an inclusive culture

Employers have a responsibility to practice inclusivity in the workplace. A diverse staff represents a variety of life experiences and unique skill sets. All of these people need to be valued and welcomed into the company. Inclusion doesn’t happen solely because diverse individuals are present, but it requires an effort to create an inclusive workplace. Inclusivity can be achieved by interacting with different people, creating employee resource groups, placing importance on inclusion, and appropriately connecting with employees.

conclusion

As the world is constantly changing, workplace diversity is something that employers should take seriously. There are many benefits of having a diverse workplace, such as:

• Higher innovation
• Better decision making
• Variety of different prospectives
• Increased profits
• Faster problem solving
• Increased creativity

Employers need to check the state and federal laws to make sure they are complying with all equal employment opportunity legislation. After checking the legislation, employers must implement a strong policy that explains the standards of the company and the actions that will be taken if there is a violation of company policy. All employees and managers must be trained on the diversity policy and must be held accountable. Finally, employers must promote an inclusive environment that also allows employees to feel safe and valued. By promoting an inclusive culture in the workplace, employers will foster an environment of professionalism and respect for personal differences.

This post was originally posted here on February 9, 2020 and has been reprinted with the author’s permission.

Ashli Jones, at the time of this post, is a second-year law student at Penn State Dickinson Law. She is from Long Island, New York and is a graduate of Spelman College in Atlanta, Georgia. Ashli is pursuing a certificate in Entrepreneurship with an Intellectual Property and Technology concentration. She interested in intellectual property within the entertainment law field. Ashli is the President of the Sports & Entertainment Law Society, Mentorship Chair for the Women’s Law Caucus, and Social Chair for the Black Law Students Association.

Sources:

https://www.eeoc.gov/eeoc/

https://www.eeoc.gov//eeoc/initiatives/e-race/bestpractices-employers.cfm

https://www.fcc.gov/general/office-workplace-diversity-functions

https://www.eeoc.gov/laws/statutes/index.cfm

By: Anahita Anvari

Changes are underway for the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Following a recent court ruling in Ciox Health, LLC v. Alex Azar, et al. (the “Ciox Case”) and a subsequent Department of Health and Human Services (HHS) notice, the Patient Rate fee limitation no longer applies when patients request the delivery of their medical records to third parties.

This post provides an overview of the past and present legal framework and discusses how HIPAA covered entities and business associates should move forward.

Overview of the Pre-CIOX Case Legal Framework

HIPAA governs the privacy and security of protected health information (“PHI”). Specifically, the Privacy Rule establishes the patient’s right to access their PHI. Pursuant to the Privacy Rule, a covered entity may only charge a “reasonable, cost-based fee” (the “Patient Rate”) for providing a copy of PHI to a patient. The Privacy Rule defines what costs the Patient Rate may include and how it may be calculated.

 It is necessary to understand the Patient Rate in three circumstances:

1 – When a patient requests PHI for their own use,

2 – When a patient requests the delivery of PHI to a third party, and

3 – When a third party requests PHI at the direction of the patient.

Originally, the Privacy Rule only applied the Patient Rate to PHI requested by the patient for their own use. A 2016 Guidance by HHS changed this rule to apply the Patient Rate to any patient request to deliver PHI. Therefore, the Patient Rate also applied where the patient requested the delivery of PHI to a third party. The patient rate did not apply where a third party directly requested the PHI at the direction of the patient.

For example, consider a situation where a law firm needs a patient’s medical records to represent the patient in a lawsuit. The fee for the request for PHI would be limited to the Patient Rate if the patient requested the PHI for their own use or for delivery to the law firm. The Patient Rate did not apply if the law firm itself requested the PHI at the patient’s direction.

The Ciox Case and the Patient Rate Rule

The Ciox Case challenged the legality of the Patient Rate.[1]Ciox Health LLC is a medical record company (a business associate) that contracts with health care providers (covered entities) to maintain and produce PHI. Ciox sued HHS after patients complained that Ciox was overcharging for PHI considering the Patient Rate. Ciox argued that the Patient Rate fee limitation harmed business operations and caused the loss of millions of dollars in potential revenue.

The United States District Court for the District of Columbia sided with Ciox. The Court ruled that HHS overreached its authority regarding the extension of the Patient Rate, because this was essentially a legislative act that should have gone through notice and comment. After the ruling, HHS announced the Patient Rate will apply only to patient requests for medical records for their own use. The Patient Rate will not apply when a patient requests the delivery of PHI to a third party or when a third-party requests PHI at the patient’s direction.

Consider again law firm example. Under the new rules, a covered entity or business associate may charge a fee higher than the Patient Rate if the patient requests the records for delivery to the law firm or if the law firm requests the records at the direction of the patient. The Patient Rate will apply when the patient requests the records for their own use.

The chart below summarizes the past and present state of the Patient Rate rule:

Next Steps for HIPAA Covered Entities and Business Associates

Covered entities and business associates should take steps to reevaluate their compliance with HIPAA following the Ciox Case. Click here to determine if your business qualifies as a covered entity or a business associate.

To reiterate, the Patient Rate fee limitations no longer apply when a patient requests the delivery of their medical records to a third party. Therefore, you should reexamine what fee you charge for these requests. Consult with an attorney to determine whether your state law imposes any fee limitations and assess whether you need to renegotiate any existing contracts to accommodate for the change.

For more information about HIPAA in general, click here.

[1]This post does not address the portions of the Ciox Case concerning Third-Party Directives, what costs may be included in the Patient Rate or the possible methods for calculating the Patient Rate.

This post was originally posted here on February 9, 2020 and has been reprinted with the author’s permission.

Anahita (Ana) Anvari, at the time of this post, is a third-year law student at Penn State’s Dickinson Law. She is from Southern California and is interested in health care and business law. Ana founded the Health Law and Policy Society and is currently serving as a Senior Editor of the Dickinson Law Review.

Sources

45 C.F.R. §164.524

HIPAA: Combined Regulation Text of All Rules

Ciox Health, LLC v. Azar, et al., No. 18-cv-0040 (D.D.C. January 23, 2020)

Individuals’ Right under HIPAA to Access their Health Information 45 CFR § 164.524

Important Notice Regarding Individuals’ Right of Access to Health Records

How can covered entities calculate the limited fee that can be charged to individuals to provide them with a copy of their PHI?

Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82, 462 (Dec. 28, 2000) (codified at 45 C.F.R. § 164.599 et seq.)

The Health Care Entrepreneur’s Quick Guide to Important Laws: Part 2

Gov: Covered Entities

Photo Sources

https://www.jotform.com/what-is-hipaa-compliance/

https://students-residents.aamc.org/applying-medical-school/article/8-tips-completing-fee-assistance/

https://compliancy-group.com/hipaa/