Client Alert: HHS Releases Results of HIPAA Industry Audit

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.

Wise Carter Announces Renewed Commitment to Heritage Building and Downtown Jackson

Wise Carter is pleased to announce its continuing commitment to downtown Jackson and the Heritage Building on Capitol Street and the completion of major office renovations.   Wise Carter has resided in the Heritage Building since 1983.  After extensive research and analysis, Wise Carter entered a new lease with LeFleur’s Bluff Properties, LLC, and will remain in downtown Jackson.

Shortly after signing the new lease, Wise Carter like the entire country was hit with the COVID-19 pandemic.  Despite this tragedy and its many challenges, major renovations to the Wise Carter offices and the entire Heritage Building, designed by architect Steven Davis of Canizaro Cauthen Davis and interior designer Lorrie Driver of Interior Design, LLC, have now been completed. 

The remodeled space features a new first floor conference center with an attorney lounge and a newly remodeled reception entrance to the building’s showpiece—the atrium and grand stairwell between the fifth and sixth floors. 

The first floor lounge, known as the ’83 Lounge in memory of Wise Carter’s first year in the Heritage Building (1983) and conference center, open to an adjacent New Orleans style brick courtyard that will be used for firm and community events.  All attorney offices and interior spaces have been updated and upgraded.  Guests will now enter through the Capitol Street entrance through the new Grand Hallway.

Kip Gibert of LeFleur’s Bluff Properties, LLC said, “We are truly excited Wise Carter has reaffirmed its commitment to Downtown and the Heritage building.  Both Downtown and the Heritage building, with their rich history and architecture, remain outstanding values and include walkable access to a variety of services and amenities. Downtown Jackson is a great place to live, work and play.”

The Heritage Building, formerly the McRae’s Department Store, overlooks the Governor’s Mansion and has commanding views of the Old Capitol and Capitol St.  The Building was originally constructed in 1906.

Steve Davis, AIA, Principal, Canizaro Cawthon Davis, remarked “We are honored to work with Wise Carter and Speed Commercial Real Estate to create an office environment that reflects the nature of the Wise Carter firm. While they remain in the historic Heritage Building, the new office reflects the needs and operations of a 21st century law firm. Wise Carter’s commitment to the Heritage Building and downtown Jackson is exciting to see.“

Charlie Ross, President of Wise Carter, said, “Wise Carter has always been a downtown Jackson law firm, and we are pleased to continue as a downtown Jackson law firm in our home since 1983.”

Wise Carter Sponsors MIND Center Event

Wise Carter recently sponsored the virtual benefit MAGIC of the MIND presented by The MIND Center on November 12, 2020. Wise Carter shareholder, Charlie Ross, is an advisory board member of The MIND Center.

The MIND Center at the University of Mississippi Medical Center is a national leader in Alzheimer’s research and clinical care backed by the state’s only academic medical center.

Wise Carter Attorneys Named in The Best Lawyers in America® for 2021

Wise Carter is pleased to announce the attorneys selected for The Best Lawyers in America® (2021 Edition).  Congratulations to the attorneys listed below. 

The “Lawyer of the Year” award is awarded to individual lawyers with the highest overall per-feedback for a specific practice area and geographic region.  Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location.  Congratulations to John Sneed and Mike Wallace on this award.

Four Wise Carter associates were recognized as “Ones to Watch” for 2021. Congratulations to Charles Cowan, Grafton Bragg, Mallory Street, and Victoria Bradshaw.

  • Gulfport, MS
    • Lynda C. Carter
      • Litigation – Health Care
      • Medical Malpractice Law – Defendants
      • Personal Injury Litigation – Defendants
    • David C. Goff
      • Litigation – Labor and Employment
      • Personal Injury Litigation – Defendants
    • Frederick T. Hoff, Jr.
      • Litigation and Controversy – Tax
      • Real Estate Law
      • Tax Law
    • Henry F. Laird, Jr.
      • Commercial Litigation
      • Litigation – First Amendment
    • James C. Simpson, Jr.
      • Commercial Litigation
      • Corporate Law
      • Government Relations Practice
  • Hattiesburg, MS
    • Joe D. Stevens
      • Banking and Finance Law
  • Jackson, MS
    • Mark P. Caraway
      • Litigation – Health Care
      • Medical Malpractice Law – Defendants
      • Personal Injury Litigation – Defendants
    • Betty Toon Collins
      • Commercial Transactions / UCC Law
      • Corporate Compliance Law
      • Corporate Governance Law
      • Corporate Law
      • Health Care Law
    • Linda F. Cooper
      • Insurance Law
    • Gaye Nell Currie
      • Litigation – Health Care
      • Product Liability Litigation – Defendants
    • Virginia S. Gautier
      • Workers’ Compensation Law – Employers
    • D. Colllier Graham, Jr.
      • Corporate Law
      • Health Care Law
      • Litigation – Health Care
    • James E. Graves III
      • Railroad Law
    • R. Mark Hodges
      • Health Care Law
      • Litigation – Health Care
      • Medical Malpractice Law – Defendants
    • Elizabeth G. Hooper
      • Health Care Law
    • Kimberly N. Howland
      • Medical Malpractice Law – Defendants
    • Crane D. Kipp
      • Eminent Domain and Condemnation Law
      • Health Care Law
      • Land Use and Zoning Law
      • Litigation – Land Use and Zoning
      • Real Estate Law
    • William H. Leech, Sr.
      • Banking and Finance Law
      • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
      • Financial Services Regulation Law
      • Litigation – Bankruptcy
      • Litigation – Real Estate
    • Douglas E. Levanway
      • Energy Law
      • Energy Regulatory Law
      • Litigation – Labor and Employment
      • Litigation – Regulatory Enforcement (SEC, Telecom, Energy)
    • Eugene R. Naylor
      • Health Care Law
      • Insurance Law
      • Medical Malpractice Law – Defendants
      • Personal Injury Litigation – Defendants
    • W. McDonald Nichols
      • Eminent Domain and Condemnation Law
      • Litigation – Trusts and Estates
      • Real Estate Law
      • Trusts and Estates
    • George H. Ritter
      • Health Care Law
      • Litigation – Health Care
      • Personal Injury Litigation – Defendants
      • Railroad Law
    • James L. Robertson
      • Admiralty and Maritime Law
      • Appellate Practice
      • Civil Rights Law
      • Commercial Litigation
      • Environmental Law
      • Insurance Law
      • Litigation – Antitrust
      • Litigation – Environmental
      • Litigation – First Amendment
      • Litigation – Intellectual Property
    • Charles E. Ross
      • Insurance Law
      • Railroad Law
    • John P. Sneed
      • Appellate Practice
      • Commercial Litigation
      • Corporate Law
      • Litigation – First Amendment
      • Mass Tort Litigation / Class Actions – Defendants
    • Andrew D. Sweat
      • Workers’ Compensation Law – Employers
    • Barbara Childs Wallace
      • Employment Law – Management
      • Litigation – Labor and Employment
    • Michael B. Wallace
      • Appellate Practice
      • Bet-the-Company Litigation
      • Commercial Litigation
      • Government Relations Practice
    • Margaret H. Williams
      • Corporate Governance Law
      • Corporate Law
      • Energy Law
      • Government Contracts
      • Health Care Law
      • Mergers and Acquisitions Law

Lawyer of the Year” Awards

  • Jackson, MS
    • John P. Sneed – Litigation – First Amendment
    • Michael B. Wallace – Appellate Practice

Ones to Watch: Awards

  • Jackson, MS
    • Charles E. Cowan – Appellate Practice
    • Grafton E. Bragg – Commercial Litigation, Construction Law
    • Mallory M. Street – Insurance Law
    • Victoria R. Bradshaw – Commercial Litigation

Gaye Nell Currie and D. Jason Childress Win Appeal in Smith v. Hardy Wilson Memorial Hospital

Wise Carter attorneys Gaye Nell Currie and D. Jason Childress prevailed in an appeal before the Mississippi Supreme Court in a unanimous decision handed down on August 20, 2020. Wise Carter represented Hardy Wilson Memorial Hospital (“Hardy Wilson”) in a wrongful death case in the Copiah County Circuit Court (the “trial court”). The trial court granted Hardy Wilson’s motion for summary judgment in its favor on the grounds that plaintiffs failed to prove that anything Hardy Wilson allegedly did or failed to do caused the decedent’s death. The plaintiffs appealed that decision, and Wise Carter attorneys Gaye Nell and Jason also represented Hardy Wilson on appeal.

After briefing by the parties, the Mississippi Supreme Court unanimously affirmed the decision of the trial court.

New York District Court Vacates Key FFCRA Regulations

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When the Final Rule for the Family First Coronavirus Response Act (FFRCA) was issued on April 6, 2020, the Department of Labor (DOL) included one notable surprise: its expansive definition of the “health care provider” employees who could be excluded from receiving paid leave benefits under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA), the paid leave components of the new law. Under the Final Rule’s definition, “a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity.” 29 C.F.R. § 826.30(c). By focusing this definition on where the individual worked and not what work tasks the individual performed, the Final Rule allowed certain employers to be wholly exempt from providing the newly enacted paid leave benefits.

For healthcare industry employers, this result seemed almost too good to be true. And if a decision from a U.S. District Court in the Southern District of New York stands, the too-good-to-be-true result will no longer be true.

On August 3, 2020, a federal district court in New York vacated several key provisions of the DOL’s Final Rule implementing the EPSLA and the EFMLEA, in a cases styled New York v. U.S. Dept. of Labor, No. 20-CV-3020 (JPO), (S.D.N.Y.). One provision vacated was the DOL’s expansive definition of “health care provider” for purposes of identifying employees that could be excluded from receiving paid leave. The New York district court took issue with definition’s focus on the identity of the employer rather than the employee, The court found the statutory text required an employee-focused definition—a determination that the employee subject to exclusion was capable of furnishing healthcare services. The district court noted that the Final Rule’s definition encompassed all employees of certain employers, without regard to the job duties of the employees. For example, under the Final Rule, all individuals employed at a hospital were subject to exclusion from paid leave benefits, including administrative, clerical, facility maintenance, and other non-clinical workers. The district court found the DOL exceeded its authority in issuing an employer-focused definition, which “includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except for the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system’s vitality.”

The New York district court also vacated the “work-availability” requirement included in the DOL’s Final Rule, which interpreted the statute to impose “but for” causation relative to an employee’s need for leave. The EPSLA and EFMLEA grant leave to employees who are “unable to work (or telework) due to a need for leave” for certain COVID-19 qualifying reasons. Soon after the FFRCA was enacted, FAQs published by the DOL clarified that employees would not be eligible for the statute’s paid leave benefits if the employees were furloughed or temporarily laid off due to a shutdown of their employers’ businesses. Likewise, under the DOL’s Final Rule, employees are not eligible for paid leave benefits where the employers do not have work for the employees; in that situation, the “need for leave” would not be due to a COVID-19 qualifying reason under the statute. Applying rules of statutory construction, the New York district court vacated this “work-availability” requirement of the Final Rule, reasoning that the statutory text was ambiguous as to whether it requires “but-for” causation in all cases for leave eligibility and that the Final Rule did not sufficiently state the DOL’s basis for interpreting the statute to require “but-for” causation.  

The New York district court vacated two other Final Rule provisions. Those vacated provisions relate to an employer’s consent to intermittent leave and the timeframe for an employee to submit required documentation to support the need for leave.

The New York district court did not address whether its decision applied outside of its jurisdiction. The DOL will most likely appeal this decision, which should stay the district court’s order and maintain the status quo relative to the four Final Rule provisions at issue. However, the decision could lead to other states bringing similar actions.

Most healthcare employers have elected to exclude all employees under the current Final Rule definition of “health care provider.” If that definition is invalidated, there will be a significant impact on those employers, particularly on community hospitals and other public entities that are not eligible for the payroll tax credits for benefits paid under the EPSLA and the EFMLEA. For those public employers, these paid leave benefits will not be “zero cost” as they are designed to be for private employers who can take advantage of the tax credits.

If the “work-availability” provisions of the current Final Rule are invalidated altogether, employers will likely face tough decisions in the event there are new “safer-at-home” orders in the fall that require businesses to shut down. Faced with this situation in the spring, many employers sent their employees home for lack of work but did not terminate the employees and continued to provide health insurance benefits. Those employers may be forced to terminate the employment relationship in this situation going forward, based on the potential costs of providing EPSLA and EFMLEA paid leave to the furloughed employees.

For now, Mississippi employers may continue to rely on the provisions of the DOL’s Final Rule in complying with the FFCRA. We will be tracking the decision from the New York district court, so we can help employers take quick action if needed to comply with any changes in the law.   

Jennifer H. Scott, Shareholder

2020 Super Lawyers

Congratulations to the following attorneys for being selected to 2020 Mid-South Super Lawyers and Mid-South Rising Stars. 

2020 Mid-South Super Lawyers

Gaye Nell Currie

Henry F. Laird. Jr.

Eugene R. Naylor

James L. Robertson

Michael B. Wallace

2020 Mid-South Rising Stars

Ashley W. Gunn

D. Jason Childress

James E. Graves, III

Please continue to view this page frequently for updated COVID-19 information. 

Wise Carter is open for business to serve you. We are considered an essential professional service in Mississippi per City of Jackson Mayor Lumumba’s Stay-at-Home order and Governor Reeves’s Shelter-in-Place order.

Whether from our offices or our homes, our goal is to stay focused on delivering quality legal services. Our attorneys and staff working from home are closely monitoring emails and voicemails.

Within 24 hours after the FFCRA and the CARES Act were signed by the President, Wise Carter’s healthcare lawyers had read those laws and had outlined the provisions likely to have an impact on the Firm’s clients.  On the Monday following passage of the Cares Act on Friday March 27, the firm had pushed out to client groups an outline of the provisions of the CARES Act that offered financial assistance for businesses in the current pandemic.  This proactive approach allowed clients the opportunity to assemble and prepare the documentation for their Paycheck Protection Program loan applications 4 days before the Small Business Administration released the PPP application form and began accepting applications. Interested clients who availed themselves of this opportunity were able to get their PPP loans approved well before the initial congressional appropriation was depleted.  Wise Carter lawyers continue to monitor developments under the CARES Act in light of expected additional  funding for PPP loans and other stimulus relief, as well as regulatory guidance for handling PPP loan forgiveness structuring, Medicare Relief Payments, and emergency EIDL disaster grants and relief loans.

Federal and state agencies have waived or modified many regulatory requirements for hospitals and healthcare providers to facilitate testing and treatment for COVID-19 and reduce regulatory burdens. Our attorneys are continuously monitoring these regulatory changes to assist healthcare providers as they battle COVID-19 and continue to treat patients. Please contact our attorneys in the Healthcare practice group if you have a question about how these changes affect your practice.

Webinars Related to COVID-19:

Please click on the topic below and register to be able to view the webinar.

HR Issues Emerging During Hospital Response (Jennifer Scott)

Families First: What You Need to Know (Jennifer Scott)

Telehealth & COVID-19 Update (Matt Harrell)

EMTALA, HIPAA & COVID-19 (Elizabeth Hooper)

4/14/20 – Effectively Navigating Human Resources During COVID-19 (Jennifer Scott)

4/15/20 – Disaster & Emergency Medical Staff Privileges (George Ritter)

Other Links:

OPENING UP AMERICA AGAIN – CMS Recommendations

CDC COVID-19

MSDH COVID-19

HHS – OIG

HHS – OCR

Stay at Home Order for City of Jackson – Extended Until May 25, 2020

Shelter-in-Place Order for State of Mississippi

Safer at Home Order for State of Mississippi – Issued April 27, 2020

Stay Safe Jackson Executive Order for City of Jackson – Effective May 16, 2020

Mississippi Telehealth Association

The CARES Act Works for All Americans

The Small Business Owner’s Guide to the CARES Act

National Workers’ Compensation Defense Network (NWCDN) Updates

Wise Carter Attorneys Prevail in Appeal

Wise Carter attorneys Charles Cowan, Doug Levanway, and Cory Radicioni prevailed in an appeal before the Mississippi Court of Appeals in a fiercely contested 5 to 4 decision handed down on July 30, 2019.  Milam v. Kelly, 282 So.3d 682 (Miss. Ct. App. 2019)

Wise Carter attorneys represented homeowners who had been sued by their neighbor for allegedly causing their Northeast Jackson home to flood repeatedly over a series of years.  Wise Carter obtained summary judgment in their clients’ favor before the Hinds County Chancery Court after the Chancery Court found that the plaintiff homeowner’s claims were barred by the applicable statute of limitations.

Five judges of the Mississippi Court of Appeals wrote a majority opinion affirming the entry of summary judgment in the Wise Carter’s clients’ favor.  The Mississippi Supreme Court recently denied the plaintiff homeowner’s petition for writ of certiorari.