AOA Legal Frequently Asked Questions

Main Sections

• ADA Accessibility
• Business of Optometry
• Employment
• Marketing Your Optometric Practice

ADA Accessibilty

• Patients who speak a foreign language?
• Hearing Impaired Patients
• Rest Room Accessibility
• Website Accessibility

What accommodations are optometrists required to provide for patients who speak a foreign language?

All providers who receive federal funds from the U.S. Department of Health and Human Services (HHS) for the provision of Medicaid/CHIP services are obligated to make language services available to those with Limited English Proficiency (LEP) under Title VI of the Civil Rights Act and Section 504 of the Rehab Act of 1973 (source: www.medicaid.gov ). State laws may also require a doctor to provide translation services. If the doctor does not participate in Medicaid and does not practice in a state with laws that address the subject, the doctor would not be required by law to provide translation services. However, most providers would like to be able to care for all patients, and there is a range of possible approaches that would allow you to provide such care.

Remember that where required by law (i.e., state law or federal law applicable to Medicaid providers), a doctor is required to provide an effective means of communication with the patient. As is the case with providing care to hearing impaired patients, there is no bright line rule that defines what constitutes an effective means of communication.

For a foreign language speaker, using written means of communication is helpful only if the text has been translated in advance and the optometrist can understand the answers to questions. Effective communication between the patient and the doctor or staff may require a method of real-time communication, in which case commercially-available conference telephone and video language interpretation services are a possible solution. There may also be low cost interpreters available through local social services agencies. A doctor is not required to pay for an interpreter brought by the patient; however, if there is an unresolvable disagreement between the patient and the doctor as to what it takes to facilitate effective communication between the patient and the doctor, the safest approach may be to agree to the patient’s request, in particular for Medicaid providers or doctors who live in states with laws requiring the provision of translation services.

It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, in many cases a patient may prefer to have a family member interpret. If the patient requests it, this an acceptable solution.

HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient’s family present when the care is delivered. While a translator hired by a doctor’s practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliance with 45 C.F.R. 164.504(e). See Title 45 C.F.R. 164.506(c) for more information.

What accommodations are optometrists required to provide for hearing-impaired patients?

As a place of public accommodation, optometrists are required to provide reasonable accommodations to someone with a hearing related disability. The law does not define exactly what is reasonable, but in practice it means something that allows you to provide the same service that you would otherwise provide to a non-disabled person.

For a hearing impaired person, specially prepared written materials describing the test procedure, plus a notepad and laptop (for writing or typing questions), may reasonably accommodate a hearing-impaired person's disability and allow an optometrist to provide the same service. However, if a sign language interpreter is the only way for an optometrist to provide the same service to a patient with hearing disabilities, then the doctor would be required to provide one and bear the cost. Because of the nature of sign-language interpretation, that would mean an in-person interpreter or real time video-interpretation service.  

It is not permissible to require a patient to bring his or her own interpreter, whether a family member or professional interpreter; however, if a patient prefers to have a family member interpret, that is an acceptable solution.   Information addressing the issue of reasonable accommodations and a list of auxiliary aids for the deaf are available at www.ada.gov, a website maintained by the U.S. Department of Justice Civil Rights Division.  

HIPAA rules do not require a doctor to obtain authorization from the patient in order to share patient information with a professional translator, or a member of the patient's family present when the care is delivered. While a translator hired by a doctor's practice as an independent contractor is not a workforce member, a doctor is permitted to disclose patient information to the translator so long as a business associate contract is in place in compliance with 45 C.F.R. 164.504(e). See Title 45 Code of Federal Regulations, Section 164.506(c) for more information.

Do rest rooms in doctor's offices have to be ADA accessible?

The U.S. Department of Justice and Department of Health and Human Services take the position that bathrooms in doctor’s offices must be ADA accessible. However, exact requirements depend on the characteristics of the building, such as the date it was build or last renovated. The ADA Standards for Accessible Design available on the ADA website ( www.ada.gov) provide more detailed information.

For a definitive answer based on your building’s characteristics, it would be best to consult an architect or an attorney who specializes in ADA law. Doctors who lease space should ensure that the issue of ADA accessibility is addressed in their lease and ideally make the Landlord responsible for providing accessible facilities either in the leased space or building common areas.

What are guidelines for ADA accessibility for a practice's website?

The ADA requires that the goods, services, privileges, or activities provided by places of public accommodation must be equally available to people with disabilities. The U.S. Department of Justice takes the position that this requirement extends to business websites, which can be difficult to navigate for those with low vision or physical disabilities. However, there are no regulations that provide specific guidance about how to make websites accessible. In response to a letter from members of Congress, the U.S. Department of Justice wrote in October 2018 that given the lack of any specific regulatory requirements, businesses have flexibility in deciding how to make their websites accessible. In the past, some individuals had successfully brought suit against businesses for failure to meet the voluntary Web Content Accessibility Guidelines (WCAG). The October 2018 DOJ letter specifically refuted the idea that lack of compliance with the WCAG guidelines automatically indicates noncompliance with the ADA. However, the WCAG guidelines should be viewed as a best practice, and business owners who comply with those guidelines can feel certain that their websites would be considered accessible to those with disabilities. The best time to adopt accessibility features for a website is when a new website is being built, substantially overhauled, or moved to a new platform. However, it is possible to incorporate basic accessibility features in an existing page. The WCAG guidelines are available here: https://www.w3.org/TR/WCAG20/. The letter from DOJ may be seen here: https://tinyurl.com/y26t3ntp.

Business of Optometry

What are my obligations regarding patient records and patient notification when closing a practice?

When closing a practice, it is best to make plans well in advance of the planned closing date to allow time to notify patients and find a repository for patient records.

Usually, the easiest method of securing patient records is to find another doctor to agree to take custody. It is imperative that there be a written agreement with the new records custodian (in this case, the doctor) requiring the custodian to maintain records in conformance with all state and federal laws regarding patient records and privacy. The doctor taking over the records should also agree to indemnify the original doctor in the event a claim is brought against the original doctor because of the new custodian's failure to properly maintain the records and make them available to patients.

The agreement with the new custodian should also include a provision allowing the original doctor to obtain access to a patient file if necessary in case a need arises in the future, for example to respond to an insurance audit or a lawsuit. Laws regarding how patients must be notified of a practice closure vary from state to state, so always check with your state association and/or state board of optometry for guidance.

Some states permit physicians to publish a notice in a local newspaper announcing the sale or closing of a practice in lieu of particularized notice to each patient. Other states put a time limit on the patient notification obligation, i.e. the doctor must notify only those patients seen within the past two years (the precise number of years may vary). If a closure is anticipated well in advance, and a plan for securing patient records is in place, a practice might consider providing written notice to patients during patient visits, thereby reducing the number of notices that must be mailed.

Finally, the notification to patients should contain information about where patients may obtain care in the future. Special care should be taken to ensure that patients being treated for ongoing conditions receive referral information about doctors of optometry who can continue to treat their condition.

How should I go about hiring Prospective Counsel?

Just as your patients went through a series of steps to determine which optometrist they wanted to select, so too will you have to consult several resources to determine what outside counsel you wish to use and when. The AOA does not give lawyer referrals. Referrals services however are available through some AOA affiliate associations as well as local and state bar associations. Attached is a comprehensive chart that identifies lawyer referral websites available in each of the fifty states. You should also ask friends, relatives, coworkers, or other members of your community to recommend lawyers with which they have worked especially if they were seeking help for legal issues like those you are facing. Remember, you want to select an attorney who is familiar with and practices in the area of law you are dealing with. Before you retain your lawyer, you should meet with the lawyer to determine if he/she is the best attorney for the job. Many attorneys will meet with you initially at no cost but make sure this is the case before you meet with the attorney.

What questions should I ask prospective counsel in an interview?

Make sure you find the answers to the following questions when interviewing outside counsel

1. Am I being charged for this initial interview?
2. How will the attorney fee be assessed? Will it be a flat fee (a set fee for the job-for example, $500.00 for a simple will), an hourly rate or a contingent fee (for example, 1/3 of the judgment amount)? If the attorney will charge via an hourly rate, what will that rate be?
3. Does the attorney require a retainer? What is the nature of the retainer? A retainer fee is an amount of money paid upfront to secure the services of a lawyer. Once all fees have been paid, then the retainer is returned to the client.
4. Before your meeting with the lawyer check to see if the attorney has had any complaints against him or her with the State Bar and what they were about. If you see something that concerns you, you may wish to discuss it with the attorney.
5. Ask the attorney about their experience dealing with your type of legal matter.
6. How responsive is the attorney? You may want to follow up your meeting with the attorney with a short email asking a question or two that requires an answer. The attorneys’ response to the email or lack thereof will give you a good indication of how responsive the attorney may be to your case.
7. Will the attorney be handling the matter, or will it be referred to an associate? An associate is typically a junior attorney who works under the direction of a partner. Associates bill at a lower hourly rate than partners.
8. How long do you estimate it will take to complete this matter?
9. How much do you estimate your services will cost me?

What expectations should you have of an attorney once you have hired him or her?

When you go to the meeting with the attorney, you may want to bring:

1. A written summary of the issues.
2. The names, addresses, and phone numbers of all people or entities involved.
3. All documents related to the matter.

Remember many times attorneys charge by the hour. The more organized you are in presenting your case, the more time you will save your attorney and the more money you will save yourself!

What things can I do to prepare for an interview with this attorney?

You should expect your attorney to:

1. Prepare a written fee agreement that outlines everything you must pay and the reason for those charges.
2. Tell you the strengths and weaknesses of your case.
3. Keep you informed as to the status of your case and what he or she is doing to advance your case.
4. Follow your instructions (so long as they are reasonable, legal, and ethical);
5. Protect your interests and keep you informed when he or she is making important decisions about your case
6. Not represent any client whose interests are adverse to your interest
7. Provide you with copies of all the documents and letters that relate to your matter
8. Send you monthly bills that outline all the work that he/she has done in your case and the fee for the work as well as any expenses incurred.

What expectations will the attorney have of you as his/her client?

1. Be present and on time for your appointments.
2. Give her/him your contact information and make sure to update that information if it changes.
3. Be completely honest. Except in special circumstances, the lawyer must keep what you or he tells you completely confidential.

State Bar Lawyer Referral Services

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

An important consideration for any optometrist who decides to open his/her practice is what form of business organization he/she should chose. There are a variety of different types of business organizations and there are advantages and disadvantages associated with all of them.

What business structure options do I have?

1. Sole proprietorship
2. Parnership
3. C Corporation
4. S Corporation
5. Limited Liability Corporation

There are several advantages and disadvantages associated with each of these forms of business organizations.

What are some of the advantages and disadvantages associated with a sole proprietorship?

In a sole proprietorship, the business is owned by one person, usually the individual who has the responsibility of running the business on a day-to-day basis. There are no special requirements to create a sole proprietorship. Basically, a person just starts their business. It is not necessary to register as a sole proprietorship. In some states, if a fictitious name is used, a fictious name registration must be made.

Advantages associated with a sole proprietorship is the ease of formation as noted above. In this form of business organization, the owner retains all the profits, and those profits are taxed only once. The owner can make all the decisions concerning the business and is in complete control of their company. Tax forms are not complicated for this form of business. Assets are easy to liquidate upon the death of the owner.

A huge disadvantage with a sole proprietorship is that the owner faces unlimited liability if anything happens in the business. The owner’s personal assets are at risk. If someone sues a sole proprietor and secures a judgment, business and personal assets can be seized to satisfy that judgment. A sole proprietor is also much more limited in their ability to raise capital. The sole proprietor may have to take consumer loans to finance their business expansion.

What are some of the advantages and disadvantages associated with a partnership?

A partnership is when two or more people share ownership of a single business. A partnership can arise by operation of law. In other words, if two people work together on their business and share profits, the courts will find that a partnership exists. It is much better though if the partners have a legal agreement that sets forth how decisions will be made, profits will be shared, disputes will be resolved, how future partners will be admitted to the partnership, how partners can be bought out or what steps will be taken to dissolve the partnership when needed.

One advantage to a partnership is that it is easy to establish and can arise simply by the actions of the parties. However, a partnership agreement is well worth the effort to prevent problems in the future. Profits are taxed only once as the income passes through the partnership to the individual partners. Successful partnerships often bring together people with different skills sets to enhance the business.

There are also disadvantages associated with a partnership. First, partners are jointly and severably liable for the actions of the other partners. So, if your partner decides to lease the pricy downtown office space, the other partner will be bound by that business decision. This divided decision making inherently can cause problems. Profits made in the partnerships need to be shared with the other partners. Additionally, as noted above, the business can suffer if a detailed partnership agreement is not in place.

Most partnerships are general partnerships. However, there is a form of partnership known as a limited partnership. In a limited partnership, there must be at least one general partner and one limited partner. A limited partner does not participate in the day-to-day management of the business. A limited partner’s risk is limited to the amount of money they have invested in the partnership. The general partner’s risk is unlimited.

What are some advantages and disadvantages associated with a C Corporation?

A C corporation is taxed separately from its owners. It gives the owners limited liability which tends to encourage more risk taking and potential investment.

One of the advantages associated with a C corporation is the limited liability. If the corporation is sued and the corporation is adequately capitalized and has pursued all the corporate formalities, liability is limited to the corporation. Personal shareholders of the corporation are not personally liable for the debts of the corporation. It is also easier to transfer an ownership interest in the corporation. Shareholder need only sell their shares of the corporation. Capital is easier to raise through the sale of stock.

A disadvantage with a C Corporation is double taxation. The company’s earnings will be taxed at the relevant corporate tax rate, and dividends paid to the owner shareholder will be taxed separately as personal income. A corporation can be costly to form as there are specific documents that must be filed with the Secretary of State’s office. There are also more administrative duties associated with operating a corporation vs. a sole proprietorship, partnership, or LLC. You will be required by law to have annual meetings, notify stockholders of the meetings, and keep minutes of the meetings in a specific location. Typically, corporate taxes are paid at a different time frame than personal taxes, which adds another layer of operational complexity.

What are some of the advantages and disadvantages associated with a S Corporation?

An S corporation is a tax classification. An S corporation provides limited liability protection but also offers corporations with 100 shareholders or fewer to be taxed as a partnership. An S corporation is also known as an S subchapter. The shareholders must report their income on their individual income tax returns. The advantages associated with the S corporation are limited liability and an avoidance of double taxation by having profits taxed only once. Capital is also easier to raise through the sale of stock.

Disadvantages associated with S Corporation is that they can be more complicated and costly to form. Stockholders are limited to individuals, estates or trustees.

What are some of the advantages and disadvantages associated with a Limited Liability Company?

A limited liability company is a legal designation that can protect small-business owners from personal liability in business obligations. Owners of LLCs are known as members. LLCs can have one owner (single member LLC) or more than one owner (multi-member LLC). Owner-employees of LLCs are self-employed. LLCs offer a formal business structure, while they can also be taxed similarly to sole proprietorships or partnerships. An LLC is more flexible than a corporation in organization and profit distribution, and does not come with the same annual meeting requirements of a corporation. An LLC canchoose taxation as a corporation, and owners can save money by electing S corp. tax status. A limited liability company is a hybrid business structure that provides the limited legal liability of a corporation and the operational flexibility of a partnership or sole proprietorship.

State by State Links on Business Organizations

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

Employment

• Contracts
• Guide to the Law-Employment Law

A doctor of optometry is hiring another optometrist and needs an employment contract. What should be included in the contract?

Subjects that typically must get considered when drafting employment contracts are the following:

1. Noncompete agreements (distance and duration restrictions for where a former employee can practice)
2. Payment of expenses such as malpractice insurance and professional society memberships.

Nos. 1 and 2 are highly state specific. A practice that employs a doctor of optometry would want to make sure that it keeps all the patient files and that a physician who leaves cannot set up shop across the street right away. The law mostly lets the employer do this, but there are limits.

Guidance for physician employment contracts are included in these links:

https://www.verondi.com/uploadedFiles/Harris_County_Medical_Society/Practice_Resources/Practice_Operations/Practice_and_Payment_Models/AMAemployment_agreement.pdf
https://www.acponline.org/system/files/documents/running_practice/practice_management/human_resources/employment_contracts.pdf

Can an independent contractor agreement include a noncompete provisions?

While independent contractor agreements and non-compete provisions do not logically seem to go together, there have been instances when courts have upheld non-compete provisions for contractors. Do not necessarily count on such provisions being unenforceable. One potential issue combining the two matters in the question is the contractor getting labeled as an employee by the Department of Labor, which creates liability. A different option is to enter into a contractor agreement with confidentiality provisions prohibiting the use of patient lists, but that type of arrangement is not ideal for the company. If a company is uncomfortable with utilizing a more watered-down noncompete provision, the business may hire the physician as an employee under some type of noncompete provision. You would need an attorney from the state in which employment took place to look at any agreement you wanted to sign.

What are the major considerations as it relates to the form of relationship selected between a business and a doctor of optometry (employee or independent contractor)?

This important decision is a personal one for someone’s business. A major consideration is compliance with the law / IRS / Department of Labor. Three macro factors to help in deciding whether a worker is an employee or independent contractor are behavioral control, financial control, and relationship. A worker should be labeled as an employee if they are working under supervision, are provided detailed instructions, formally evaluated, directed/controlled financially by the business, the hours are strictly controlled, provided employee-type benefits, and/or the relationship is labeled as an employee-employer relationship.

A worker should be labeled as a contractor if the hours are not specially dictated by the business, the worker does not need supervision, there isn’t training, the individual is generally free to look for other business opportunities, there is not the expectation that the relationship will continue indefinitely, there isn’t an evaluation system, and the written contract describes the relationship as a contractor relationship.

Here are the factors from the IRS to help decide: https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation.

A Doctor of Optometry’s Guide to the Law-Employment Law

What employment law issues can arise in a Doctor of Optometry’s office?

There are a variety of statutes and legal doctrines that apply in the Employment law area.  It is important that you are familiar with these concepts and statutes:

• Age Discrimination in Employment Act
• Americans with Disabilities Act
• At-will Employment
• COBRA benefits
• Employee Retirement and Income Security Act
• Equal Pay Act
• Fair Credit Reporting Act
• Fair Labor Standards Act
• Family and Medical Leave Act
• Federal Insurance Contribution Act
• Federal Unemployment Tax
• HIPAA and HITECH Amendments
• Independent Contractor versus An Employee
• National Labor Relations Act
• Negligent Hiring and Retention
• OSHA
• Pregnancy Discrimination Act
• Title VII of the Civil Rights Act of 1964, as amended
• Uniformed Services Employment and Reemployment Rights Act
• State Unemployment Compensation Laws
• State Worker’s Compensation Laws
• Worker Adjustment and Retraining Notice.
• Noncompliance Risk

These laws and legal doctrines are extremely complex and require that you consult your local attorney when seeking to confirm that your firm’s policies follow these various statutes and legal doctrines.  Most of the statutes profiled here are federal statutes.  In addition, many of the statutes profiled here may also have a state equivalent.  So, for example, most states have a parallel antidiscrimination statute.  Sometimes these state statutes will provide greater rights than the federal statute.  It is imperative that the Doctor of Optometry consult local counsel when working in this complicated area of the law.  Following this discussion, the Doctor of Optometry can find two drop down menus.  One drop-down menu will bring you to a copy of the referenced law.  The other drop-down menu will provide access to advice concerning the law from the regulatory agency tasked with enforcing the law.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) protects certain applicants and employees forty (40) years of age or older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. This law also sets out specific requirements when an employer seeks to have his employee release any claim against the employer as a condition of the employee receiving his severance check.

Statute

Regulatory Agency Guidance

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas including employment, transportation, public accommodation, communications, and access to state and local government programs and services. Concerns respecting public accommodation are addressed in a different section of the legal questions and answers section. For purposes of this discussion, we will focus on Title 1 of the Act which is enforced by the Equal Employment Opportunity Commission. Employers must provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions. There are several issues that typically arise in the application of this law. The first question is what is a disabling condition? Secondly, how does that disabling condition impact the applicant’s ability to participate in the job application process or to perform the essential functions of his or her job? Next, what are the essential functions of an employee’s jobs? (This is why having employment descriptions for all positions within your practice is so vitally important) Then, what steps need to be taken to allow the applicant to participate in the job application process or allow the employee to perform the essential functions? Finally, are these steps reasonable and do not place an undue burden on the employer?

Statute

Regulatory Agency Guidance

Employment at Will doctrine

Next, we will consider the doctrine of employment at will. Basically, the doctrine of employment at will means that an employer can terminate an employee at any time for any reason, except for an illegal one (i.e.: discrimination based on race, age, sex, national origin, or religion). Similarly, an employee has the right to quit a job and is not legally required to provide a notice period. Though, customarily most employees give a two week notice period. Employment will not be at will if the employment is pursuant to an employment contract. It is not unusual for highly paid executives to be working under an employment contract. In addition, union laborers typically work under a union contract. In both situations, employment is subject to the terms of the contract not the doctrine of employment at will.

Consolidated Omnibus Reconciliation Act

The Consolidated Omnibus Reconciliation Act (COBRA) “gives workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan for limited period under certain circumstances, such as voluntary and involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events. Qualified individuals may be required to pay the entire premium for coverage up to 102% of the cost of the plan.” ¹ “COBRA generally applies to all private-sector group health plans maintained by employers that have at least 20 employees on more than 50 percent of its typical business days in the previous calendar year. Both full- and part-time employees are counted to determine whether a plan is subject to COBRA.” ²

Statute

Regulatory Agency Guidance

Employee Retirement Income Security Act of 1974

The Employment Retirement Income Security Act of 1974 (ERISA) is a “federal law that sets minimum standards for most voluntarily established retirement and health plans. ERISA requires plans to provide participants with plan information including important information about plan features and funding, provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeal process for participants to get benefits from their plans; gives participants the right to sue for benefits and breaches of fiduciary duty; and if a defined benefit plan is terminated, guarantees certain payment through a federal chartered corporation, known as the Pension Benefit Guarantee Company (PBGC).” ³

Statute

Regulatory Agency Guidance

Equal Pay Act

The Equal Pay Act (EPA) provides that men and women in the same workplace be given equal pay for equal work. Job content determines whether jobs are substantially equal. All forms of pay are covered so in addition to salaries; overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits will be reviewed and considered. If a determination has been made that there is a disparity in pay for substantially equal jobs, the person with the lower pay should be brought up to the higher pay level. A company can not make a determination of a disparity in pay rates for equal work and then proceed to lower the salary of the person who was making more money.

Statute

Regulatory Agency Guidance

Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is an important piece of consumer protection legislation. For purposes of this posting, we will examine the FCRA as it impacts the employment process. If an employer plans to use a credit report or an investigative credit report to assess the qualifications of an applicant, they must inform the applicant. Note dependent upon what state you operate in, it may violate state law to refuse to hire a qualified applicant because of his or her credit score. As always consult your local attorney before you decide not to hire someone based on their credit report.

Statute

Regulatory Agency Guidance

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wag of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.” ⁴ Note many states have set a minimum wage higher than the federal minimum wage.

Statute

Regulatory Agency Guidance

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a seminal piece of legislation that entitles eligible employees of covered employers to take unpaid, job protected leave for specified family and medical reasons with continuation of group health coverage under the same terms and conditions as if the employee had not taken leave. The FMLA applies to employers who have fifty (50) or more employees. Leave can be taken in the designated amounts for the enumerated reasons:

“Twelve workweeks of leave in a 12-month period for:

• the birth of a child and to care for the newborn child within one year of birth;
• the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement.
• to care for the employee’s spouse, child, or parent who has a serious health condition.
• a serious health condition that makes the employee unable to perform the essential functions of his or her job.
• any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

Twenty-six workweeks of leave during a single 12-month period

• to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).” ⁵

Statute

Regulatory Agency Guidance

Federal Insurance Contribution Act & Federal Unemployment Tax

The Federal Insurance Contributions Act (FICA) outlines the money that needs to be withheld from an employee’s paycheck to fund his or her social security. “For the past couple of decades, however, FICA tax rates have remained consistent. Employers and employees split the tax. For both, the current Social Security and Medicare tax rates are 6.2% and 1.45%, respectively. So, each party pays 7.65% of their income, for a total FICA contribution of 15.3%. To calculate your FICA tax burden, you can multiply your gross pay by 7.65%.

Statute

Regulatory Agency Guidance

Self-employed workers get stuck paying the entire FICA tax on their own. For these individuals, there’s a 12.4% Social Security tax, plus a 2.9% Medicare tax. You can pay this tax when you pay estimated taxes on a quarterly basis.’ Federal unemployment tax (FUT) is a payroll tax paid by employers on employee’s wages. The tax is 6% on the first $7000 an employee earns.

Statute

Regulatory Agency Guidance

Health Insurance Portability and Accountability Act & Health Information Technology for Economic and Clinical Health Act

The Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH) will obviously impact the patient data you have in your practice and this will be the subject of a stand alone posting to be submitted in the future. From an employment perspective, you will need to make sure that your employees are complying with HIPAA requirements. In addition, if you process any employee health information you would be recognized as a business associate under the law and required to abide by HIPAA regulations especially with regard to privacy and security of protected health information.

HIPAA Statute

HIPAA Regulatory Agency Guidance

HITECH Statute

HITECH Regulatory Agency Guidance

Independent Contractor versus an Employee

Whether an individual is classified as an employee, or an independent contractor is extremely important. Generally, an employee performs work under the direction and control of their employer on an on-going basis. The employer determines the hours, work location, and how work is done. Independent contractors run their own businesses and provide agreed services under a contract for those specific services. If an employer misclassifies an employee as an independent contractor, the employer will have failed to withhold the required tax deductions. An employer is also going to be responsible for the acts of an employer.

National Labor Relations Act

The National Labor Relations Act (NLRA) is another very important piece of legislation. “The NLRA is a federal law that grants employees the right to form or join unions; engage in protected concerted activities to address or improve working conditions; or refrain from engaging in these activities.” ⁷ “The National Labor Relations Act states and defines the rights of employees to organize and to bargain collectively with their employers through representatives of their own choosing or not to do so. To ensure that employees can freely choose their own representatives for the purpose of collective bargaining, or choose not be represented, the Act establishes a procedure by which they can exercise their choice at a secret-ballot election conducted by the National Labor Relations Board. Further to protect the rights of employees and employers, and to prevent labor disputes that would adversely affect the rights of the public Congress had defined certain practices of employers and unions as unfair labor practices.” ⁸ The National Labor Relations Act also established the National Labor Relations Board which serves as the administrative agency responsible for the enforcement of the Act.

Statute

Regulatory Agency Guidance

Negligent Hiring and Retention

Under the doctrine of negligent hiring, an employer is liable for harm its employees inflict on third parties when the employer knew or should have known of the employee’s potential risk to cause harm, or if the risk would have been discovered by a reasonable investigation. Steps that can be taken to avoid the legal risks attendant to negligent hiring or negligent retention include conducting adequate background investigations on applicants with a focus on convictions for physical or sexual assault. An employer should also keep track of how a new employee is performing and be prepared to take action when the circumstances warrant it.

Occupational Safety and Health Act

The Occupational Safety and Health Act (OSHA) established the Occupational Safety and Health Administration and sets forth a regime for the safety of workers. OSHA’s mission is to ensure that employees work in a safe and healthful by setting and enforcing standards, and by providing training, outreach, education, and assistance.

Statute

Regulatory Agency Guidance

Pregnancy Discrimination Act

The Pregnancy Discrimination Act forbids discrimination based on pregnancy when it comes to hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance and any other terms and conditions of employment.

Statute

Regulatory Agency Guidance

Title VII of the Civil Rights Act of 1964, as amended

Title VII of the Civil Rights Act of 1964, as amended protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin. There are two types of claims that can be brought under the statute. One claim is called disparate treatment. In proving disparate treatment, the following elements must be proven (1) the employee is a member of a protected class (2) the discriminator knew of the employee’s protected class; (3) acts of harm occurred (4) others who were similarly situated were either treated more favorably or not subjected to the same or adverse treatment. The other type of claim rests in a disparate impact theory. In proving a disparate impact case, you need to show that a specific employment practice caused people in your protected class to be treated worse than people not in the protected class. The employer then must show that it had a legitimate business reason for this specific practice. The burden then shifts back to the plaintiff to prove that the proffered reason was merely pretextual.

In a sex discrimination case, the plaintiff will typically assert a quid pro quo theory or a hostile environment claim. Under a quid pro quo theory of sex discrimination, an employee’s supervisor, manager, or other authority figure offers or suggests that an employee will be given something, such as a raise or promotion, in exchange for some sort of sexual favor. Hostile work environment sexual harassment is any conduct directed at an employee because of that employee’s sex that unreasonably interferes with the employee’s work performance or creates an intimidating, hostile or offense work environment. In addition, sex was recently interpreted by the Supreme Court to include protection from discrimination based upon a person’s sexual preference or sexual identity. “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.” ⁹

Statute

Regulatory Agency Guidance

Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits and can seek employment free from discrimination because of their service. USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years.

Statute

Regulatory Agency Guidance

State Unemployment Compensation Laws & State Worker’s Compensation Laws

Unemployment compensation and worker’s compensation are administered at the state level. Unemployment compensation is a benefit paid to people who have recently lost their job through no fault of their own. Worker’s compensation is a form of insurance which provides compensation to cover medical expenses, lost wages, and rehabilitation costs to employees injured in the course and scope of their employment in exchange for the required relinquishment of the employee’s right to sue his or her employer for the tort of negligence.

Worker’s Adjustment and Retraining Notification Act

The Worker’s Adjustment and Retraining Notification Act helps ensure advanced notice in cases of qualified plant closings and mass layoffs. This act will only apply to employer with 100 or more employees so it would have to be a very large practice with multiple offices.

Statute

Regulatory Agency Guidance

What laws do I have to comply with-Federal, State or Local law?

The short answer is that a business needs to comply with all federal, state, and local laws that are applicable to your situation. In our system of government, federal law is supreme, but federal law will preempt state law only where the federal law clearly evinces the intent to supersede state or local law regulating the same area. Many times, state, federal, and local law can all regulate the same area. State or local law can never restrict the rights offered under federal law, but they can grant more extensive rights under state law. So, you must comply with the federal law and state and/or local laws that provide additional or stricter requirements. For this reason, when considering federal law requirements (many of which have been set forth in this posting), realize that there are likely state and/or local laws that provide similar rights or protections. You will need to consult with an attorney in your state when dealing with employment matters because they may be aware of broader rights or restrictions granted or imposed under state or local law.

In addition, many of these laws go into effect dependent on how many employees an employer has so dependent upon the size of your practice not all these laws will be applicable to you. However, a corollary law at the state or local level may have a smaller threshold so those laws need to be checked as well. We recommend that you consult your attorney to stay current with what is required.

What is the risk of noncompliance?

If you violate employment law, you can be sued by your employee or former employee and you can be subject to investigation or suit by the government. Employment laws change through amendment or become clarified through judicial interpretation, so you need a professional who is keeping up with this area of the law. A claim or a suit by a current or former employee or a governmental agency can be very costly both monetarily and in terms of time and angst. Accordingly, it is very important to seek advice from employment counsel in your state who focuses on this area of the law as these laws vary from jurisdiction to jurisdiction and change over time.

Marketing Your Optometric Practice

False and Misleading Advertising is prohibited by the Federal Trade Commission and by Many States in their Trade Practices Acts

What is false and misleading advertising?

False advertising is any published claim that is deceptive or untruthful. The Federal Trade Commission had determined that a representation, omission, or practice is deceptive if it is likely to: a) mislead consumers and b) affect consumer’s behavior or decisions about a product or service.

• A claim can be misleading if important information is missing, or the claim implies something that is false.
• In addition, when determining if that deception is unfair, the FTC will look to see if the injury it causes or is likely to cause is:
  • Substantial
  • Not outweighed by other benefits and
  • Not reasonably avoidable.

What can a doctor of optometry do to prevent a claim of false and misleading advertising?

• Advertising must tell the truth and not mislead consumers.
• Claims especially those that relate to health, safety, or product performance that are made must be substantiated.
• If a disclaimer or disclosure is made about a product it must be clear and conspicuous.
• When a product demonstration is provided, it must show how the product would perform under normal use.
• If you promise a refund to consumers, you must provide it.
• If a product is advertised as buy one get one free, this means that the customer will pay nothing for one item and no more than the regular price for the other item.

Unfair and Deceptive Trade Practices are prohibited both by the Federal Trade Commission and by many states unfair and deceptive trade practices laws.

What are some examples of unfair and deceptive trade practices?

• Bait and switch tactics
• Deceptive demonstrations or prices
• Defamation of the competition
• Fraudulent contests
• Fraudulent testimonials
• Misleading or unsubstantiated claims
• Misuse of the word free

What is a bait and switch tactic?

• Bait and switch is an illegal sales tactic in which a consumer is lured by a low price only to be told that the special offer is no longer available and then the person is steered to a higher priced product or a product that has a basis more advantageous to the advertiser.

Both federal and state law prohibit trade disparagement.

What is trade disparagement?

• Defamation of the competition is sometimes referred to as trade libel or trade disparagement.

What are the elements of trade disparagement or trade libel?

• The elements of trade libel are as follows:
  • A defendant made a false statement about the quality of a plaintiff’s products or services;
  • The statement was published; and
  • The plaintiff suffered monetary loss or harm because of the statement.

Deceptive pricing is prohibited.

What are some forms of deceptive pricing?

• Reduction in the Merchant’s former sales price.

“One of the most commonly used forms of bargain advertising is to offer a reduction from the advertiser’s own former price for an article. If the former price is the actual bona fide price at which the article was offered to the public on a regular basis for a reasonably substantial period of time, it provides a legitimate basis for the advertising of a price comparison. If the former price is genuine, the bargain being advertised is genuine. If the former price is fictious, the bargain being advertised is a false one.”

• Retail Price Comparison

“Another commonly used form of bargain advertising is to offer goods at prices lower than those being charged by others for the same merchandise in the advertiser's trade area (the area in which he does business). This may be done either on a temporary or a permanent basis, but in either case the advertised higher price must be based upon fact, and not be fictitious or misleading. Whenever an advertiser represents that he is selling below the prices being charged in his area for a particular article, he should be reasonably certain that the higher price he advertises do not appreciably exceed the price at which substantial sales of the article are being made in the area - that is, a sufficient number of sales so that a consumer would consider a reduction from the price to represent a genuine bargain or saving”  So long as valid retail comparisons are made in the trade area of the merchant, these pricing mechanism will pass muster with the Federal Trade Commission. 

• Comparison to the Manufacturer’s Suggested Retail Price

“Many members of the purchasing public believe that a manufacturer's list price, or suggested retail price, is the price at which an article is generally sold. Therefore, if a reduction from this price is advertised, many people will believe that they are being offered a genuine bargain. To the extent that list or suggested retail prices do not in fact correspond to prices at which a substantial number of sales of the article in question are made, the advertisement of a reduction may mislead the consumer.”

[i]https://www.ecfr.gov/current/title-16/chapter-I/subchapter-B/part-233

What can I do if a negative rating, review or comment about my practice is posted on a blog or website?

It has become very common for customers to post about their customer experience on various Internet Rating sites such as Yelp, Amazon, Angi, etc. Unfortunately, often it is the customer who feels he has had a bad experience who is most likely to take the time to complete one of these website rankings. In addition, according to the Pew Research Center, “Fully 82% of U.S. adults say they at least sometimes read online customer ratings or reviews before purchasing items for the first time.”

[ii]https://www.pewresearch.org/internet/2016/12/19/online-reviews/

So, what can you do to overcome a negative review?

If most of your other rankings are positive, you may be able to safely ignore the negative review knowing that one negative review among many positive reviews will not get as much credence. If, however, there are limited reviews on your site, and the majority of those are negative, you may decide to make it a practice that when someone compliments you to follow up with a thank you and a request that they reflect what they have told you into a selected review forum. Remember, that these testimonials must be real. Paying for positive testimonials would constitute an unfair and deceptive practice.

Be careful when deciding to respond to a negative review. Often this sort of response serves to escalate the tension and perhaps even bring more attention to the complaint. When formulating your response remember two things:

• Avoid violating HIPAA and state privacy law.
• Recognize that your audience is not the individual comment creator but all the other people who will see your response and make their own judgments based on your response.

A productive response would be “We are sorry that you feel that way. We treat many patients who are very satisfied with our work. Please call our office to let us know what we do to make things right.”

Can I use AOA materials or other existing materials in promoting my practice?

• Using material from other parties may be permissible provided you can obtain consent from the other party. You wish to include a newspaper article which identified your practice as a child friendly practice. This material, the newspaper article, for example is a copyrighted work. As a copyrighted work, it is protected from unauthorized use.
• Copyright laws make it illegal to use or copy any copyright protected work without obtaining the permission of the copyrighted owner unless it falls within one of the legal exceptions. These exceptions are extremely narrow and unlikely to apply in your situation. One exception is for material in the public domain. Material in the public domain is no longer subject to copyright protection. Project Gutenberg is perhaps the best-know destination for public domain books.
• However, if you are looking for more recent material chances are it will be protected by copyright. The other exception to copyright protection is fair use. Fair use permits the use of limited portions of the work, including quotes for such purposes as commentary, criticism, new reporting, and scholarly reports.
• Your best bet is to secure permission from the author to use the copyrighted material before you incorporate it on your website. This can be done via a simple license agreement. Your lawyer can assist you in determining what constitutes “fair use” of third-party materials, whether materials are in the public domain, and how to properly use various materials in connection with marketing your practice.

Are there any restrictions if a Doctor of Optometry sells eyeglasses, contacts, and other items through the internet, mail or over the phone and then ship them to my customer?

• FTC’s Mail, Internet, or Telephone Order Merchandise Trade Regulation Rule will apply to transactions where a Doctor of Optometry sells eyeglasses, contacts, and other items through the internet, mail or over the telephone and then ships them to his/her customer.
• “The Rule requires that when you advertise merchandise, you must have a reasonable basis for stating or implying that you can ship within a certain time. If you make no shipment statement, you must have a reasonable basis for believing that you can ship within 30 days. That is why direct marketers sometimes call this the "30-day Rule.
• If, after taking the customer’s order, you learn that you cannot ship within the time you stated or within 30 days, you must seek the customer’s consent to the delayed shipment.
• If you cannot obtain the customer’s consent to the delay -- either because it is not a situation in which you are permitted to treat the customer’s silence as consent and the customer has not expressly consented to the delay, or because the customer has expressly refused to consent -- you must, without being asked, promptly refund all the money the customer paid you for the unshipped merchandise.”

Does our optometry practice face any restrictions using telephone, email, fax, or text for advertising or other communication purposes?

• Suppose a Doctor of Optometry decides he wants to use a new list to mine for new appointments or to advertise a new line of eyewear he has received. This simple marketing idea could bring into play some federal law requirements.
• The Federal Trade Commission established the Do Not Call Registry (DNC Registry) under the federal telephone sales rule (TSR). Consumers may add their phone numbers to the DNC registry to limit the telemarketing calls they receive. If a customer is on the do not call registry, they should not receive a phone call.
• It's against the law (Telephone Consumer Protection Act) to call (or cause a telemarketer to call) any number on the registry (unless the seller has an established business relationship with the consumer whose number is being called, or the consumer has given written agreement to be called). TSR violations can result in civil penalties of up to $16,000 per violation.
• The Telephone Consumer Protection Act also prohibits unsolicited calls to residential or cell phones using automated dialing or prerecorded messages. It also prohibits unsolicited texts to cell phones.
• The CAN-SPAM Act is a federal law that applies to commercial messages sent via email CAN-SPAM establishes requirements for commercial email messages such as the requirement that each email give the recipient the right to opt out of future emails. The penalties for the CAN-SPAM violation can be severe. Each separate email in violation of the CAN-SPAM act is subject to penalties of up to S16,000.

Does HIPAA impact a health care provider’s marketing effort?

• “The HIPAA Privacy Rule gives individuals important controls over whether and how their protected health information is used and disclosed for marketing purposes. With limited exceptions, the Rule requires an individual’s written authorization before a use or disclosure of his or her protected health information can be made for marketing.”

  [iii]https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/coveredentities/marketing.pdf

• The Privacy Rule utilizes a three-prong approach in the application of the HIPAA privacy rule for health care marketing:
• First, one must determine what constitutes “marketing” under the rule?
• Determine what treatment and health care operations do not constitute “marketing.”
• Requiring individual authorizations for all uses or disclosures of protected health information for marketing purposes with limited exceptions.

What constitutes marketing under the HIPAA rule?

• Marketing is defined as making a communication about a product or service that encourages recipients of the communication to purchase or use the product or service. If a communication is marketing, then the communication can only occur if the covered entity first obtains an individual’s authorization.

What prior authorization is sufficient to condone the marketing effort?

• A covered entity must obtain an authorization for any use or disclosure of protected health information for marketing, except if the communication is in the form of:

(A) A face-to-face communication made by a covered entity to an individual; or

(B) A promotional gift of nominal value provided by the covered entity.

• (ii) If the marketing involves financial remuneration, as defined in paragraph (3) of the definition of marketing at § 164.501, to the covered entity from a third party, the authorization must state that such remuneration is involved.
• “An authorization must specify a number of elements, including
  • a description of the protected health information to be used and disclosed,
  • the person authorized to make the use or disclosure,
  • the person to whom the covered entity may make the disclosure,
  • an expiration date, and,
  • in some cases, the purpose for which the information may be used or disclosed”

    [iv]https://www.hhs.gov/hipaa/for-professionals/faq/264/what-is-the-difference-between-consent-and-authorization/index.html

What treatment or health care operations do not constitute marketing under HIPAA?

• There are three categories of exceptions to the definition of marketing under the act. “A communication is not marketing if it is made to describe a health-related product or service that is provided by or included in a plan of benefits of the covered entity making the communication, including communications about:
  • The entities participating in a health care provider network or health plan network; replacements or enhancements to a health plan; and
  • Health related products or services available only to a health care plan enrollee that add value to, but are not part of, a plan of benefits.
• Secondly, a communication is not marketing if it is made for the treatment of an individual. For example, a pharmacy mails prescription refill reminders to patients or contracts with a mail house to do so.
• Thirdly, a communication is not marketing if it is made for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers or settings of care to an individual.

So what are the main points a Doctor of Optometry needs to remember to limit their liability when marketing their practice?

• Your advertising should not be false or misleading.
• Don’t engage in any unfair or deceptive trade practices such as bait and switch, deceptive demonstrations or prices, defamation of the competition, fraudulent contests, fraudulent testimonials, misleading or unsubstantiated claims or misuse the word free.
• Recognize that these rules also apply to Internet Based Advertisements
• Respect Intellectual Property and seek a license agreement before you use copyrighted material.
• Don’t contact potential clients if they are on the Do Not Call Registry list.
• Don’t market utilizing robocalls if that violates the Telephone Consumer Protection Act
• Be careful in your use of mailing lists and respect emailers opt out rights under the CAN-SPAM Act
• Make sure you understand and avoid those circumstances where a client inquiry could be a prohibited marketing contact under HIPAA.

How should a doctor of optometry respond to a negative online review?

In today’s social media world, in which people seek out information about business online, it makes sense to take affirmative steps to address bad reviews and encourage patients to leave good reviews.  Two great suggestions were made in the recent article How to Handle Bad Reviews and Ratings that appeared in AOA news article on practice management on March 23, 2023.  The first was to “turn lemons into lemonade.”  If you can respond to the negative review in a way that convinces the reader that the reviewer got it wrong, you’ll negate the negative review.  It’s also important to respond to all reviewers including the positive reviews. Just remember in both cases, HIPAA prohibits the disclosure of protected health information – so posting specific information about the patient who left the review is prohibited.  

            Encouraging patients to leave and post reviews is definitely permissible.  Where a doctor of optometry can run into trouble if they engage a so-called “reputation management company” that claims it can boost customer reviews and ratings, is if that strategy is based on the posting of fraudulent reviews.  According to the Federal Trade Commission, you need to make sure that you know what the reputation management company is really doing. The reputation management company) may not say explicitly that they get results by writing fake positive reviews of your business or fake negative reviews of your competitor.  But you can be held responsible for what they do on your behalf and review platforms could suspend or remove your accounts and listings.” (See Federal Trade Commission-Soliciting and Paying for Online Reviews: A Guide for Marketers )

            The other trap which awaits the unwary doctor of optometry is if you disclose patient data inadvertently when responding to a patient review.   In March of 2022, The Department of Health and Human Services (HHS) Office of Civil Rights (OCR) imposed a $50,000 monetary penalty on a North Carolina dental practice that disclosed patient identifying information in response to a negative online review.  This case is a reminder that healthcare providers risk liability for a HIPAA privacy violation if they include patient information in their postings on online platforms.  Similarly, in 2019 another dental practice paid $10,000 pursuant to a resolution agreement with HHS OCR for disclosing a patient’s personal health information (PHI) in its response to a patient’s review.  PHI disclosed included the patient’s last name, details of her dental treatment plan, insurance, and cost information.

            So how should a Doctor of Optometry deal with a negative online review?  As the examples above illustrate, a doctor of optometry’s correct response would be measured and thoughtful.  Under no circumstances should personal health information including a confirmation that the person was a patient or the disclosure of any individually personally identifiable health information including such things as the person’s name or address be disclosed.  Specific treatment plans for that individual should not be discussed.

            Doctors’ practices are advised to have a policy regarding the uses and disclosure of PHI on online platforms.  In the event of a complaint to the HHS Office of Civil Rights, the OCR will also look to see if such a policy exists as part of its investigation.  This policy can be included in the practices overall HIPAA compliance policy.  Failure to have a policy will be considered evidence of a lack of compliance.  The policy should specifically define what constitutes PHI and explain that this information cannot be disclosed. The Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)." “Individually identifiable health information” is information, including demographic data, that relates to:

• the individual’s past, present or future physical or mental health or condition,
• the provision of health care to the individual, or
• the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. and
• individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number). As part of the policy, the doctor of optometry should create a preapproved response to a negative review.

            It is so important to use a preapproved response.  Unfortunately, what happens in some cases is that a practice responds in haste and or in anger without really thinking about what it is doing.  In these cases, liability almost always follows.  For example, in the North Carolina dental case, the patient left a negative review using a pseudonym on a search engine page.  The doctor responded promptly  to rebut the unsubstantiated accusations in the negative review.  The response revealed the patient’s full name and details about the services he received, claiming that the patient never came back for his scheduled appointment.”  The doctor further wrote “From the foregoing, it’s obvious that (the patient)’s level of intelligence is in question, and he should continue with his manual work and not expose himself to ridicule.  Making derogatory statements will not enhance your reputation in this area (name of patient). Get a life.”

            Perhaps a better and significantly cheaper response would have been “ We value feedback about the patient experience with our care providers.  Out of consideration for patient’s privacy rights, we do not disclose any patient information on public forums. However, this description does not comport with our usual practices, and we disagree with the allegations it contains.  We encourage patients who wish to register a complaint to contact our office by phone or email so we can further discuss their experience.”

 Finally, the doctor of optometry may not be without recourse when dealing with an inaccurate review.  A doctor of optometry should consult with his or her attorney to evaluate potential legal options in responding to the review.  For example, a negative review if factually incorrect could constitute defamation.  A cease and desist letter regarding the inaccurate publication could be enough to convince the reviewer to remove the negative review.  In sum, when a doctor of optometry considers how to handle bad reviews and ratings, remember to be mindful of the obligations imposed by the Federal Trade Commission and one’s duties under the Health Insurance Portability and Accountability Act.