Hospital that accepts TRICARE is subject to affirmative action obligations imposed on federal contractors

Posted on October 28, 2010 by Daniel Burnick

On October 18, 2010, a Department of Labor Administrative Law Judge (ALJ)issued his opinion in the case of OFCCP v. Florida Hospital of Orlando.  The Administrative Law Judge found that the hospital was a subcontractor of a managed care services provider's contract between TRICARE and Humana Military Healthcare Services, Inc., and was subject to the affirmative action obligations imposed on federal contractors.  The DOL's Office of Federal Contract Compliance Programs (OFCCP) affirmative action regulations require the preparation of annual affirmative action plans for women and minorities, certain veteran categories, and individuals with disabilities, imposes extensive and complicated record-keeping obligations for applicants and hires, and requires all non-executive vacancies being filled with external candidates to be listed with state workforce agencies.  TRICARE is the Department of Defense's (DOD) program that pays for the medical benefits for active duty and retired military personnel and their families.  OFCCP attempted to initiate an audit of the Florida Hospital of Orlando, and the hospital resisted, claiming it was not a covered government contractor.  The ALJ found that since the hospital participated in the TRICARE program, it was a federal subcontractor since they assumed the performance of the TRICARE administrator, Humana Military Healthcare Services, Inc.  In doing so, the ALJ rejected the DOD's argument that its program was one of federal financial assistance, and not a contract to provide actual medical services. 

Practice pointer.  This decision may have wide-reaching implications for health care providers who bill to TRICARE if they do not have an affirmative action plan in place to comply with OFCCP's requirements.  In today's economic situation, this decision may also result in increasing the cost of providing health care services, in a time when the federal government is attempting to emphasize making health care more affordable. 

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Courts Are Beginning to Allow discovery into Social Media Sites

Posted on October 12, 2010 by Daniel Burnick

Recently, a trial court in New York found that the Facebook and MySpace sites of a plaintiff in a personal injury case were discoverable.  In Romano v. Steelcase, Ms. Romano fell off her chair at work and filed a lawsuit claiming that she was severely injured and had multiple surgeries on her neck and back.  She sued Steelcase, alleging that the chair she was sitting in was defective.  Romano had profiles on both Facebook and MySpace that were not publicly available and were set up as "private" pursuant to the sites' privacy settings.  Steelcase subpoenaed the information from these sites, Facebook objected, and Romano refused to consent to the release of the information.  Steelcase argued that what was publicly available on Facebook and MySpace was inconsistent with her claims in the lawsuit, and sought access to her current and past pages, including any deleted pages, even if limited to her "friends" or "connections".  The trial court relied on a decision from Canada, that held that "To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial."  The Judge in the Romano case examined the language in the privacy policies of both Facebook and MySpace, which state "this information may become publicly available."  The court wrote that:

     "Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.  Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.  Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.  As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, "in this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."

Practice pointer.  As expected, there is often useful information available on social networking sites, such as Facebook, MySpace, Linkedin, etc, for all parties involved.  Individuals should not post anything on their sites that they expect to maintain as private: it may not happen. 

 

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