Author Archives: Kimber Riley

Stay Blocking CMS Vaccine Mandate Remains Effective for Mississippi Facilities

Posted on by

On December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld a district court’s preliminary injunction blocking the CMS vaccine mandate from going into effect in 14 states, including Mississippi. The Fifth Circuit determined that the federal government had failed to demonstrate a strong likelihood of success in overcoming challenges under the “major-questions” doctrine, one of the primary bases for issuing the preliminary injunction. Under this doctrine, federal agencies must show clear Congressional authority to support their “novel assertions of authority.” The Fifth Circuit also cited its recent decision enforcing a preliminary injunction blocking the OSHA vaccine mandate, based in part on a finding that OSHA similarly did not have a strong likelihood of successfully establishing clear Congressional authority for that mandate as required by the “major questions” doctrine. 

The Fifth Circuit did disagree with the district court on one key point: the scope of the preliminary injunction staying the CMS mandate. Finding “little justification” had been given by the district court to support a nationwide injunction and noting the value of “the airing of competing views” from other circuits, the Fifth Circuit limited the preliminary injunction to the 14 plaintiff states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio). 

The federal government reacted quickly, asking the U.S. Supreme Court on December 17th to stay the Fifth Circuit’s preliminary injunction. The federal government argued, in part, that public interest favored allowing the CMS mandate to become effective while the appellate court decides the underlying issues. The states challenging the mandate must respond to the federal government’s application to stay the preliminary injunction by December 30th.  

December 30th will be a busy day for those following developments in the vaccine mandate saga. In pending challenges to the OSHA vaccination or testing mandate, the Supreme Court has also set December 30th as the deadline for the federal government to respond to the challenging states’ request to reinstate the preliminary injunction, which was lifted by the Sixth Circuit Court of Appeals.  

What do these developments mean for Mississippi facilities covered by the CMS mandate? For now, you can continue to pause any work to implement and enforce the mandatory vaccination policies under the CMS rules published on November 5, 2021. Although you may be required to hit the play button again on that work, the Supreme Court’s briefing schedule indicates that the current pause will continue for at least the remainder of 2021.

Jennifer H. Scott, Shareholder 

Sixth Circuit Lifts Injunction to Allow OSHA Vaccine and Testing Mandate for Large Employers

Posted on by

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the injunction that had prevented the Occupational Safety and Health Administration (OSHA) from enforcing its vaccine and testing mandate for employers with 100 or more employees. The Court, which has been assigned the authority to decide on a consolidated appeal brought by multiple parties, including the Mississippi Attorney General, found that the vaccine and testing mandate was likely within OSHA’s authority. Several applications have already been filed with the Supreme Court seeking to reinstate the injunction.

In light of the new ruling, OSHA has indicated that it plans to begin enforcing the mandate’s requirements on January 10 and will enforce the testing requirement within the mandate on February 9. OSHA may change these dates following any future Supreme Court decision. For now, employers with more than 100 employees should evaluate whether the OSHA mandate applies to them and plan for the possible need to comply with the mandate by January 10.

C. Matthew Harrell, Associate

Wise Carter Participates at National Workers’ Compensation Defense Network 2021 Virtual Annual Conference

Posted on by

Wise Carter attorneys will lead panel discussions for the National Workers’ Compensation Defense Network’s Annual Conference which will be held virtually on Wednesday, November 10, 2021 from 10:00 a.m. to 2:00 p.m. CST.   

Register for the Conference

There is no cost to register and attend the conference and the speakers are always excellent. Click the link below to sign up today!

Register

Grafton Bragg Unpacks Last Week’s Change to Deference Rules for Mississippi Agencies

Posted on by

What are the rights of individuals and businesses that are on the receiving end of a damaging decision by one of Mississippi’s many state agencies? For a long time, pretty limited. Under the agency “deference” doctrines, the courts would usually let the agencies interpret and define their own laws, rules, and regulations. This usually meant that in a challenge to an agency decision, the agency was presumed to be right, and the individual or business was presumed to be wrong.

A few years ago, Mississippi courts did away with “deference” for purposes of the statutes (passed by the legislature) that governed state agencies. This was certainly a shift, but oftentimes the “guts” of what an agency does are not through statutes but through the internal rules and regulations that the agency has passed. And on those types of questions, the courts continued to defer to the agencies.

This changed last Thursday, when the Mississippi Supreme Court “overrule[d] past precedent” and decided that it would no longer give agencies the benefit of the doubt on questions about the meaning of agency rules and regulations. This doesn’t mean the aggrieved individual business will necessarily win; in last week’s case (linked below), the Division of Medicaid prevailed. But it does mean that going forward Mississippi citizens will be on more equal footing going forward in challenges to agency decisions.   Click to view the opinion.

Favorable Jury Verdict

Posted on by

Mallory M. Street and Grafton E. Bragg obtained a favorable jury verdict in the County Court of Bolivar County. The Plaintiff claimed he suffered significant injury to his neck and back, and asked for damages of more than $300,000 for past and future medical expenses, past lost wages, and pain and suffering. Wise Carter argued that Plaintiff was not seriously injured and that much of his medical treatment was caused, not by the Defendant, but from a second motor vehicle accident just three months later. The jury awarded Plaintiff nominal lost wages, less than his claimed medical expenses, and $0 for pain and suffering.

Wise Carter to Speak at Medical Records Law Conference

Posted on by

Several Wise Carter attorneys will be speaking at the upcoming Medical Records Law Conference on May 13-14, 2021. Join us virtually as we share insights and examples of what you must do and what you should never do when handling medical records. For more information and to register for the virtual conference, click here – INFO

Favorable Ruling for Client

Posted on by

On February 19, 2021 Wise Carter Attorneys Charles Cowan, Cory Radicioni, and Danielle Burks obtained a favorable ruling from the United States Court of Appeals for the Fifth Circuit affirming the dismissal of federal RICO claims and state law fraud claims by a federal district court in the Northern District of Mississippi against their client, Allstate Insurance Company.

Client Alert: HHS Releases Results of HIPAA Industry Audit

Posted on by

The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) recently released the results of an audit evaluating the state of HIPAA compliance in health care. The audit reviewed the privacy and security practices of covered entities and their business associates to determine how effectively health care providers are complying with the HIPAA rules. The report reveals several areas where providers are commonly not meeting HIPAA requirements. These include:

1.            Notices of Privacy Practices (“NPPs”) frequently do not include all of the elements required by the regulations. Only 2% of audited covered entities fully met the requirements specifying what information NPPs must contain and OCR found that over two thirds of covered entities failed to or made only minimal efforts to comply with the NPP requirements.

2.            Many covered entities are not consistently ensuring that patients are able to access their protected health information within the HIPAA-specified time limits. Many of the audited covered entities failed to sufficiently document request for access to information or had inadequate policies for ensuring that information was provided within the deadlines set by the HIPAA regulations. Many covered entities also had policies that were incorrect or inconsistent with HIPAA right of access requirements such as those restricting the fees that can be charged for providing health information.

3.            Most of the covered entities audited (67%) failed to include one or more required elements when notifying individuals of a breach of protected health information. When breaches occur, covered entities are required to provide affected individuals with a notice that conforms to the regulatory requirements. Many of these breach notification letters failed to include sufficient descriptions of the PHI involved, enough detail about the covered entity’s investigation and mitigation activities, or other important information mandated by the HIPAA regulations.

4.            A very large percentage of covered entities and business associates are not conducting the mandatory risk analysis and risk management activities that are needed to protect electronically stored health information. Only 14% of covered entities and 17% of business associates audited were substantially fulfilling their obligations to safeguard electronic protected health information through risk analysis activities. Many entities failed to conduct regular or sufficient risk analyses and failed to maintain and update their policies and procedures. The audit also revealed that many entities only used third party template policies that did not show any entity-specific review or revision of those policies.

Wise Carter wishes to remind its covered entity and business associate clients of the importance of complying with the HIPAA regulations. Failure to comply with HIPAA requirements can result in civil monetary penalties and other consequences, including the reputational harm associated with the public notices issued by OCR when penalties for noncompliance are announced. Further, not complying with HIPAA requirements can result in loss of certain incentive payments for eligible providers (e.g. MIPS). We urge our clients to conduct regular reviews of their HIPAA compliance.

Wise Carter routinely reviews Notices of Privacy Practices and HIPAA policies and procedures to ensure they are up-to-date and consistent with HIPAA requirements. We can also assist providers in conducting security risk analyses and ongoing risk management. Further, for providers that experience a potential security incident or breach, we provide advice on whether a breach has occurred and what actions must be taken as a result of a breach.