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FOIL Requests for Fiscal Intermediary Applications
Over the last several days, many providers received letters from the Records Access Officer for the New York Department of Health, notifying them that a request has been submitted to the DOH for “all offers submitted in response to RFO #20039.” Every letter is identical, therefore, to the extent a provider has not yet received this letter, they will. We have received many questions about this letter and, in this alert, we explain what this letter means and how providers should proceed.
In essence, the Freedom of Information Law (“FOIL”) allows individuals to request documents and information from the government that relates to the operation or work of government agencies. Thus, individuals will frequently submit FOIL requests to federal and state government agencies, to obtain documentation or information that has been generated by the government in the course of performing its work. Here, one or more parties has requested from the DOH information regarding the RFO. Specifically, they have requested to receive all offers that were submitted to the DOH in response to the RFO. The identity of the requesting party is unknown, but it is assumed that the request was made by a non-winning fiscal intermediary that is interested in obtaining this information in order to evaluate and potentially bring a claim against the State regarding the RFO results.
Unless an exception to disclosure under FOIL applies, the government is required to provide the information requested. One of the exceptions to the requirement to disclose FOILed information applies to documents or information that is proprietary, that is a trade secret or that, if disclosed, would cause “injury to the competitive position of a business.” In other words, if a provider has submitted any information in their RFO application that is a trade secret, or that could be helpful to a competitor fiscal intermediary, then such information will not be disclosed by the DOH to the party who requested “all offers.” Because some of the RFO application information may be protected from disclosure, the DOH has now reached out to all providers, to give them an opportunity to specify what information, in if any, in the provider’s RFO application itself is confidential, proprietary, or otherwise can be withheld from disclosure under FOIL. The RFO applicants will have 10 days to respond to the DOH Records Officer and, if they fail to do so, the full application, without any redacted material, will be disclosed.
Applicants who have proprietary and confidential information in their applications should take time to review the application and specify to the FOIL Records Officer which, if any, sections of the RFO application should be withheld from disclosure to the public. Applicants that are LHCSAs and who may be considering utilizing the same or similar application sections of the RFO for their LHCSA RFO application also have a strong interest in not having their application disclosed, because it could provide a competitive advantage to another LHCSA that will be applying for the LHCSA RFO.
Please let us know if we can help in this process. Our attorneys regularly handle FOIL matters.
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NY Legislature Passes Bill Requiring Employers to Adopt Strict Safety Protocols | |
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The New York State has legislature passed the Hero Act, which would require all employers in New York to implement certain safety standards and adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. This Bill is not yet a law, and it cannot become a law until Governor Cuomo signs it. He has expressed support for the Hero Act, but that support has waned in the last few days as business leaders decried the Hero Act requirements. In this article, we summarize the Hero Act requirements should this bill become a law.
The Key Requirements
The Hero Act would require the state Department of Labor, in consultation with the Department of Health, to create an airborne infectious disease safety standard, as well as a model airborne infectious disease exposure prevention plan. The safety standard (which ultimately will differ between industries) would establish minimum requirements on procedures and methods for the following:
- Employee health screenings;
- Face coverings;
- Required PPE that must be maintained in a sanitary and reliable condition at the employer’s expense;
- Accessible workplace hand hygiene stations and maintaining healthy hand hygiene (including providing adequate break times for employees to wash their hands);
- Regular cleaning and disinfecting of shared equipment and frequently touched surfaces;
- Effective social distancing for employee, consumers and customers;
- Compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees;
- Compliance with applicable engineering controls such as proper air flow, exhaust ventilation or other special design requirements;
- Designation of one or more supervisory employees to enforce compliance with the plan and any other federal, state or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties (i.e., customers, contractors and members of the public within the workplace);
- Compliance with any applicable laws, rules, regulations, standards or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the worksite; and
- Verbal review of infectious disease standard, employer policies and employee rights.
Employers would be required to adopt the state model or implement their own written plan that meets or exceeds the standards set forth in the state model.
Providing Notice of the Safety Plan
Such plans must be provided to all employees upon the Act’s effective date (or upon reopening after a period of closure due to airborne infectious disease) and upon hire, in English and in the language identified by each employee as their primary language. If an employee identifies as their primary language a language for which a model document is not available from the state, the employer would be permitted to provide an English-language notice.
Employers would also be required to post the plan in a “visible and prominent location” within the worksite and include a copy in the employee handbook. Further, employers would be required to make the plan available, upon request, to all employees, independent contractors, employee representatives, collective bargaining representatives, and the state commissioner and commissioner of public health.
No Retaliation or Discrimination
The Act would prohibit discrimination and retaliation if employees (i) report violations of the Act or an employer’s plan to any state, local, or federal government entity, public officer or elected official; (ii) report airborne infectious disease exposure concerns; and/or (iii) refuse to work if the employee reasonably believes, in good faith, that such work exposes the employee or other employees or the public to an unreasonable risk of exposure to an airborne infectious disease, provided that the employee notified the employer of their concerns regarding the employer’s failure to comply with the Act and the employer failed to cure or otherwise address those concerns.
Penalties
Penalties for non-compliance with the Act’s requirements may include a fine of $50 per day for failure to implement a compliant plan or between $1,000 and $10,000 for failure to abide by an adopted plan. If it is determined by the State that an employer previously violated the Act in the preceding six (6) years, such penalties may increase to $200 per day for failure to implement a compliant plan or between $1,000 and $20,000 for failure to abide by an adopted plan. Further, employees may bring a civil action against an employer and seek injunctive relief, costs, attorneys’ fees and liquidated damages. If, however, an action is brought by an employee and a court finds that such action is “completely without merit in law and undertaken primarily to harass or maliciously injure another,” the employer may seek sanctions against the party who brought such action.
Safety Committee
In addition, the bill would require employers with at least 10 employees to allow employees to “establish and administer a joint labor-management workplace safety committee.” Each committee would be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Committees would be authorized to, among other things, (i) raise health and safety concerns; (ii) review any policy put in place in the workplace required by this law and provide feedback; (iii) review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive; (iv) participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law; (v) review and report filed by the employer related to the health and safety of the workplace; and (vi) regularly schedule a meeting during work hours at least once a quarter.
Next Steps
The Hero Act bill now heads to Governor Andrew Cuomo who has previously announced his intention to sign it. If signed, the Hero Act would take effect on the 30th day after it becomes law; however, section two of the bill (permitting the creation of a joint employer-employee workplace health and safety committee) would take effect on the 180th day after it becomes law.
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Brief CDPAP Update and FAQs | |
Last week, the New York State DOH issued a notice to fiscal intermediaries, advising them that the State will soon be issuing a survey, as required by the NYS 2021-2022 FY budget. As readers of our alert will recall, the final State budget establishes the process by which additional fiscal intermediaries may be added to the list of FI awardees. The DOH will soon begin the process of collecting information from fiscal intermediaries in order to decide which additional FIs will be added to that FI awardee list.
Although the DOH notice stated that the survey would be issued soon, there is no indication of when that will be. It is also not clear if the winning fiscal intermediaries will be required to respond to the survey, since the intent of the survey is to add additional and new fiscal intermediaries. There is no indication that this survey will be used to somehow remove selected winning FIs from the list of awardees.
The budget authorizes the DOH Commissioner to add additional fiscal intermediaries, depending on their main business address, certain nonprofit status, and businesses that are certified by New York State as minority women owned businesses. Given the expansiveness of the budget language, at a minimum, at least 24 additional FIs could be added to the list of awardees. On the other end of the spectrum, if the Commissioner elects more FIs based on geographic factors, at least 42 additional FIs could be added to the list of awardees.
Presumably, the newly added fiscal intermediaries would be authorized to operate in all of the counties that they selected in their RFO application process. In other words, these newly added FIs would not be limited to operating in the counties where they are headquartered. For successful fiscal intermediaries that are on the current list of awardees, the newly added FIs would dilute their competitive advantage in the market.
It is unlikely that the New York State Comptroller will begin reviewing and certifying any winning fiscal intermediaries until this new survey for additional FIs is conducted and decisions are made. Similarly, it is unlikely that the protests that have been filed by non winning fiscal intermediaries with the Comptroller’s office will be reviewed and decided until the survey process for additional FIs is complete.
Lastly, the DOH’s notice reminded providers that the patient transition process is not required to commence at this time, and that providers should refer to an updated transition policy for fiscal intermediaries, available HERE.
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Recording Adverse COVID Vaccine Reactions as an OSHA Work-Related Illness | |
On April 20, 2021, the U.S. Occupational Safety and Health Administration (OSHA) updated its FAQs with Guidance stating that employers who require their employees to get vaccinated as a condition of employment may need to record employees’ adverse reactions to the COVID-19 vaccine on OSHA work-related illness logs.
OSHA generally requires most employers to keep records of certain work-related injuries and illnesses in OSHA 300 and OSHA 300A forms. Employers must submit these logs to OSHA periodically and upon request.
The recent guidance on adverse vaccine reactions states that when employers require employers to be vaccinated, such adverse reactions are considered “work-related” for the purposes of OSHA recordkeeping requirements. Thus, employers who require employees to vaccinate must record any adverse vaccine reactions they learn the employee experienced if the reaction meets one of the standard criteria that triggers an obligation to record under 29 CFR 1904.7 (i.e., the employee: missed days away from work, required medical treatment beyond first aid, had his or her work restricted or was transferred to another job, experienced a loss of consciousness, or died).
Importantly, the guidance also clarifies that, at this time, OSHA will not to require employers to record adverse vaccine reactions if the employer recommends but does not require vaccination. OSHA will consider the vaccine to be required if employees would suffer repercussions (such as affecting an employee’s performance rating or professional advancement) due to their choice to not receive the vaccine.
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No Surprise, Biden NLRB Promises to be Employee-Friendly | |
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The National Labor Relations Board (NLRB) Acting General Counsel Peter Sung Ohr issued a memorandum announcing that his office will return to “vigorous enforcement” of employee rights under Section 7 rights of the National Labor Relations Act (NLRA). Employers may remember that, during the Obama administration, the NLBR issued memo and decisions protecting various employee conduct, all under the guise of Section 7. Blatant employee insubordination and vulgar speech gained protections that were, in many respects, unprecedent. Ohr's memorandum foreshadows a similarly employee-protective NLRB is coming.
In his memo, Ohr encouraged the Board to adopt a broad view of Section 7 of the NLRA, to cover a wide range of conduct, including “employees’ political and social justice advocacy when the subject matter has a direct nexus to employees’ ‘interests as employees.’” Ohr also provided examples of conduct he believes fall within this protected area of workplace “political or social justice advocacy,” such as media interviews regarding living on minimum wage, an employee’s “solo” strike to join a demonstration advocating for a $15-per-hour minimum wage, and protests over workplace immigration raids by the government. Ohr said, “[E]mployee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protections under Section 7 of the Act.”
As a reminder, private sector employees generally do not have free speech protections in the workplace. However, the NLRA may provide private sector employees freedoms to engage in speech, and other forms of expression, during work time and on the employer's premises. This employee speech could be deemed disruptive to the operations of the business, or the employer's image and reputation. Biden has promised to be a strong labor President. Thus, employers are likely to see strong employee protections being rolled out at the National Labor Relations Board over the next few months.
This week, President Biden announced a "White House Task Force on Worker Organizing and Empowerment," which was directed to issue a report within 180 days regarding policies, programs and practices that can be used to promote worker union organizing and collective bargaining in the federal government. It is expected that the recommendations of this Task Force could have broader implications for private sector employers.
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On April 26, 2021, the Equal Employment Opportunity Commission (EEOC) announced the opening of the 2019 and 2020 EEO-1 Component 1 Data Collection. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data, including data by race/ethnicity, sex and job categories. The deadline for submitting both the 2019 and 2020 EEO-1 Component 1 data is Monday, July 19, 2021. The announcement is available HERE.
The latest filing updates and additional information regarding submission of EEO-1 Component 1 Data are available at HERE.
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Did you Know? We have a Podcast. | |
Sasha Guillaume, the CEO of Mrs. G's Home Care, and I are the co-hosts of a weekly podcast, the Home Care Forum. Every week, we discuss the newest developments in home care and provide the legal and business news that concerns (and should concern) home care providers. While I discuss the legal developments, Mr. Guillaume shares insights from the provider standpoint on the newest issues of the day. Subscribe to the Home Care Forum podcast HERE, on Apple Podcasts, or wherever you get your podcasts. | | | | |
