Category Archives: Employers and Healthcare


Law Firm publishes “The Week in Weed”

State ballot measures and state legislatures have slowly but steadily legalized the use of marijuana.   The specifics of the law have specific ramifications for people and businesses even if they never roll a joint.

As one example, Federal law still prohibits the use and sale and marketing of marijuana.  Professionals advising employers, banks, and health care providers have unique issues in determining reactions to events.  For example, should a bank do business with an organization marketing and selling marijuana?  Can an accountant provide an appropriate audit?  Can a lawyer help create a corporation for a weed based business?

Can a physician work for one?  Most medical marijuana clinics fail to utilize doctor ownership, thus potentially violating the corporate practice of medicine doctrine in California.

The Week in Weed provides an on-going discussion of the ethical and legal issues of a weed business.  In a recent report that independent investment is slow to embrace the business but:

“Overall funding to cannabis-centered startups has ballooned in the past two years, up over 90% since 2014 despite a slight decrease in 2016′s investment levels.

While private investment to the industry remains siloed among a select group of cannabis-focused investors, institutional investors such as Founders Fund, Y Combinator, and 500 Startups are slowly taking notice.”

Keeping up to date in marijuana laws will be a state by state job.   The rules will be complex because of the intersection of state and federal law.

By Matt Kinley, Esq.  See his profile at




The Occupational Safety and Health Act of 1970 requires employers to provide their employees with working conditions that are free from known dangers.  There are thousands of pages interpreting the meaning of that simple statement, including primarily what is a “known danger.”

For medical facilities, OSHA has attempted to provide guidelines for protecting healthcare workers from violence in the work place.  In OSHA: Guidelines for Preventing Workplace Violence for Healthcare Workers (2015) OSHA explores its expectations for organizations in complying with the obligation to provide a safe workplace and to prevent violence.  Many of the obligations are structural, that is, they provide for a system to protect against violence:  polices, training, work place evaluation, and documentation of an organizations efforts to complete these tasks.  Like HIPAA and Compliance, the solution to medical office problems are a new policy, a committee and training.

Along with this new resource comes a new obligation.  In an OSHA Instruction, OSHA reviews the inherent dangers in the healthcare setting and the higher rates of violence and injury in the healthcare setting.  It instructs it’s investigators to pay more attention to the healthcare setting utilizing its 2015 guidelines.

If you are a healthcare company, it makes sense to pay attention to these OSHA materials.  Even if you are not investigated by OSHA itself, it does set up a standard for behavior and a potential negligence suit should your facility suffer violence.

By Matt Kinley,Esq., LLM, CHC


Fraud Alert Issued by OIG Puts Medical Directorships Under Suspicion

Make Sure Your Medical Directorship is Legal

HHS’s Office of Inspector General’s Fraud Alert issued in June of this year  puts an often-used tool for compensating physicians in the regulatory cross hairs. “Medical directorships,” or the payment of a physician for overseeing clinics or other medical services, will violate the Federal and state Anti-Kickback statutes if “even one purpose of the arrangement is to compensate a physician for his or her past or future referrals.”

Compensation arrangements between hospitals, physician groups and other medical providers that contemplate management or directorships by a physician should be carefully evaluated by competent counsel. OIG has said that it will be reviewing such arrangements with particular interest. If a violation is found, the result could include criminal, civil and regulatory fines, and exclusion from federal health care payment systems.

Some of the elements of an appropriate directorship or management position for a physician might include a written contract for at least a year with a salary that constitutes a fair market value for services actually provided. Such an agreement should be backed up by salary surveys or other documentation that the compensation is based on similar positions within the community.

By Matt Kinley,Esq., LLM, CHC



New Emphasis on Patient Safety Will Cause Greater Scrutiny of Home Care Providers

While In Home Care Organizations (“HCOs”) have been relatively free of laws and regulation, such companies are coming under increasing scrutiny in California. There have been concerns about patient safety and security, which has caused the state to enact laws and regulations that impose safety checks and training. There are also concerns about abuse of HCO workers, causing minimums standards for companies employing such workers. While many of these reforms appear to be appropriate, they also make the utilization of in home services more expensive, which will make such services unaffordable for a large segment of the population.


The most significant reform is the Home Care Services Consumer Protection Act of 2013 (AB 1217), signed into law on October 13, 2013. It covers “home care services,” which are formally defined as nonmedical services and assistance provided by a registered home care assistant (“HCA”) to a client who, because of advanced age or physical or mental disability needs assistance in activities of daily living, allowing the client to stay in their residence. Such services include assistance in the following areas:
• Dressing
• bathing
• exercising
• personal hygiene and grooming
• transferring
• ambulating
• positioning
• toileting and incontinence care
• housekeeping
• meal planning and preparation
• laundry
• transportation
• correspondence
• making telephone calls
• shopping for personal care items or groceries
• companionship


This legislation requires agencies to: List aides in an online registry, conduct background checks on workers, obtain finger prints of all aides, provide five hours of training for new hires, and obtain a license from the state certifying their compliance with basic standards.

The commencement date of the law was extended to January 1, 2016. It provides that the California Department of Social Services (CDSS) will regulate HCOs and provide background checks of affiliated Home Care Aides (HCAs) and independent HCAs who wish to be listed on the Home Care Services (HCS) Registry. Currently CDSS is implementing regulations, including the formation of newly formed Home Care Services Bureau (HCSB)  in partnership with the Caregiver Background Check Bureau (CBCB). HCSB will oversee the licensing and oversight of the HCOs and CBCB will oversee the background checks for the HCAs and will maintain the HCS Registry.

Some of the penalties found in the Act include:
• $900 fine per day for each day if not licensed by Department of Social Services

• Potential cease and desist order, which shall remain in effect until the individual or entity has obtained a license pursuant to this chapter.

Potential imposition of a civil penalty; or

Potential civil action against the individual or entity.
If CDSS finds that an individual has been convicted of a crime other than a minor traffic violation, the individual cannot work for or be present in any community care facility unless they receive a criminal record exemption from the Community Care Licensing Division, Caregiver Background Check Bureau.


California has established the In Home Supportive Services (IHSS)  program, which is a Medi-Cal program providing payment to providers who are serving aged and/or disabled patients who are without the means to pay for such services Persons wanting to become a IHSS provider must provide a U.S. government issued picture identification and an original Social Security card and the provider must complete the Provider Enrollment Form (SOC 426) and obtain finger prints. The California Department of Justice (DOJ) will obtain a criminal background check on the individual.


On January 1, 2015, the Domestic Worker Bill of Rights (AB 241), took effect. It regulates the number of consecutive hours for home health care workers and requires overtime pay for long work shifts.
California now is one of 16 states with some type of overtime requirement for home health workers. Personal attendants covered by this law are now entitled to overtime pay at 1.5 times their regular rate of pay for any hours worked in excess of nine (9) hours in a day or in excess of 45 hours in a week.

The new law, due to sunset in 2017, calls for formation of an evaluation committee to review and analyze the effectiveness of the overtime provision over the next three years. The California Department of Industrial Relations is charged with reviewing the law.
One of the areas the committee will monitor is whether the law prompts more underground caregiving, as Janz said is happening.

Domestic workers are entitled to the minimum wage, with the exception of babysitters under the age of 18 and the employer’s parent, spouse, or child. The Labor Commissioner enforces the California minimum wage. The Labor Commissioner may enforce local minimum wage laws if the work is performed in a city and/or county that has a higher minimum wage ordinance.

If your employer discriminates or retaliates against you in any manner whatsoever (for example by terminating you or giving you fewer hours), you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. Alternatively, you can file a lawsuit against your employer in court.


Institute security check program with all home aides working for your organization, including back ground check and finger printing.

Obtain an exemption or terminate those home aides that fail the background check.

Institute a training program for all home aides working for your organization
Review wage and hour polices and ensure that your organization has all employee manuals with the proper overtime and minimum wage rules.

By Matt Kinley, Esq. 

TLD Partner Matthew Kinley Speaks with Healthcare Risk Management on Corporate Negligence

As my firms healthcare practice chair,  I had the chance to share my insights with American Society for Healthcare Risk Management on the role of corporate negligence in medical malpractice cases.

You can read the full article posted by Healthcare Risk Management here:  TLD – Healthcare Risk Management 11-2014

Source: Healthcare Risk Management, published by AHC Media, Atlanta. Phone: (800) 688-2421. Email: Web


Human Resources is for Physician Offices, too


TUESDAY  •  JANUARY 21, 2014

Matt Kinley, Tredway, Lumsdaine & Doyle
Audrianne Adams Lee, HR NETwork, Inc.

Location/Sponsored by:

Long Beach City College
4901 Carson St, Long Beach, CA 90808
Room # – TBA upon Registration

No cost to attend this event.
A box lunch is included.

8:30         Registration
9:00-12:00     2014 Workplace Compliance – New Laws and Trends
12:00-12:30    Box Lunch – Presentation by
10,000 Small Businesses
12:30-2:30     Health Care Reform – What Now?
2:30-3:00     Health Care/Vendor Panel for Q&A

To register, call 714.799.1115 or email to
2014 Workplace Compliance –
New Laws and Trends
A wave of new employment legislation, case law developments, and other employment law trends stand to significantly impact the California workplace in 2014. With many of these new laws taking effect on January 1, employers with California operations must take prompt action to ensure compliance and to mitigate workplace law risk.

We discuss the critical changes in law, the impact of the new regulations, and recommendations for employers. Topics covered will include:

•     Legislative developments
•     Trends and significant decisions in California employment law
•     Cases to watch for 2014

Health Care Reform –
What Employers Need to Know

In this portion of the seminar, we will respond to these and many other questions you have surrounding Health Care Reform:

•    Meeting the threshold in 2015
•    What are my options to offer/not offer coverage (Under/over 50 employees)?
•    Calculating my FTE count
•    HIPAA Compliance – What I am responsible for?
•    Reporting requirements for Employers
•    How to assist and communicate the ACA to your employees



There is a tremendous amount of information about the Patient Protection and Affordable Care Act (ACA) and it is difficult to understand what the tax implications are.  Essentially under the ACA, health insurance is now tied to taxes.  There are two important tax implications of the ACA to individuals: 1) there is a tax credit to help pay for insurance premiums if one qualifies and 2) there are tax penalties if one does not have health insurance. For employers, the same basic principal applies and the tax implications vary depending upon whether the employer is small or large.


Beginning in 2014, ACA provides a Premium Tax Credit, which is a refundable credit to help offset the cost of health insurance premiums for qualifying taxpayers.  A qualified taxpayer can take an advance payment of the advanced credit based upon his/her estimated income and family size for the year.  An equal portion of the estimated credit is paid directly to the insurance company each month during the tax year.

When filing his/her tax return, the taxpayer must compare the prepaid credit against the actual credit allowed.  If there is a difference in the prepayments and the actual credit, the taxpayer could be owed more Premium Tax Credit or alternatively, the taxpayer could be required to repay the IRS the amount of any excess prepaid credit.  A qualified individual could also choose to pay premiums out-of-pocket each month and collect the full credit when he/she files taxes.

The amount of credit available for prepayment is calculated by the Health Insurance Marketplaces, known as the Exchanges.  During enrollment through the Marketplace, using information that the taxpayer provides about his/her projected income and family composition for 2014, the Marketplace will estimate the amount of the Premium Tax Credit he/she will be able to claim for the 2014 tax year that he/she will file in 2015.  It is important to report changes and income to the Marketplace through the year.  Reporting changes will help assure a taxpayer that they will have the accurate amount of credit.  Changes in family size can include the birth or adoption of a child, a child moving out of the household, parents moving into the household, marriage or divorce.

The Premium Tax Credit is not allowed if the taxpayer files using the Married Filing Separately status, if they are eligible for coverage under their state’s Medicaid program (which is free), or if they are enrolled in an insurance plan through their employer.

If a taxpayer does not have insurance after February 15, 2014, he/she may be assessed a tax penalty under the Shared Responsibility Provision, which allows a penalty assessment on certain taxpayers and qualified employers who do not offer insurance.  In 2014, the penalty is either $95 for adults and $47.50 for children or one percent of taxable income, whichever is greater.  The penalty will increase annually and by 2016, it will be the greater of $695 or 2.5 percent of the total household’s taxable income, whichever is greater. The penalty will show up as tax owed when the taxpayer files his/her income tax return.

For tax year 2013, contributions to flexible spending accounts are limited to $2,500, which previously had no cap.  However, employers can offer employees a choice between rolling over up to $500 to use in the next year or a 2.5 month grace period to spend it.  In 2014 and after, the contribution cap will increase with inflation.

For those who itemize deductions for out-of-pocket medical expenses, the expenses must total 10 percent of their adjusted gross income, which is up from 7.5 percent in prior years.  There is an exception until 2016 for taxpayers age 65 and older or if one spouse reaches age 65 for married couples filing jointly.

Furthermore, there is an additional 0.9 percent Medicare tax for married couples filing jointly earning above $250,000, $200,000 for single filers, and $125,000 for married couples filing separately. This applies to wages, compensation and self-employment income.

For high income taxpayers, there is an additional 3.8 percent net investment income tax, which includes interest, dividends, and rental income.  Tax is owed if the taxpayer has net investment income and modified adjusted gross income over $250,000 (married filing jointly); $125,000 (married filing separately); $200,000 (single); $200,000 (head of household with a qualifying person); and $250,000 (qualifying widow or widower with a dependent child).  It applies only to net profits that exceed $500,000 for married couples filing jointly and $250,000 for single filers.

Small Employers

Small employers are defined as fewer than 50 full-time employees or equivalents.  Fewer than 25 full-time equivalent employees may be eligible for a Small Business Health Care Tax Credit to help cover the cost of providing coverage.  Generally, employers with 50 or fewer employees may be eligible to buy coverage through the Small Business Health Options Program (SHOP).  Small businesses may be eligible for tax credits up to 50 percent of their cost of employee premiums through the SHOP.

Large Employers

For large employers, who are generally defined as those with 50 or more full-time time equivalent employees, effective for calendar year 2015, they may be subject to a non-deductible excise tax under Internal Revenue Code §4980H.  Full-time employee is defined as an employee who is employed on average 30 hours of service per week, per month.

Although the ACA does not require an employer to offer coverage to its employees, a large employer can be subject to the excise tax if at least one full-time employee receives a premium tax credit for Exchange coverage, and the employer:

•    Fails to offer coverage to full-time employees and their dependents (tax equals $2,000 times the total number of full-time employees)


•    Offers coverage to full-time employees that does not meet the law’s affordability or minimum value standards (tax equals $3,000 times the number of full-time employees receiving tax credits for Exchange coverage) To be considered affordable, an employee’s share of the self-only premium for the employer’s lowest-cost plan that provides minimum value cannot exceed 9.5 percent of household income, or the employee may be eligible for a premium tax credit to purchase health insurance exchange coverage. The Treasury Department has proposed a safe harbor based on the employee’s current W-2 wage.
Employers also will face a host of new reporting requirements to the IRS under the ACA in order to demonstrate the value of coverage offered to employees, communicate to employees’ their coverage options, and certify compliance with the employer coverage provisions. Large employers will need to file an annual return reporting whether and what health insurance they offered employees. In addition, they are subject to the Employer Shared Responsibility provisions.  Many employers are undertaking compliance reviews to have their health plan offerings audited and certified to mitigate the potential risk for tax penalties.

 By Pamela Tahim of Tredway, Lumsdaine & Doyle




This is the first in a series of posts about new laws for 2014 affecting healthcare.

AB 460: Non-Discrimination for Homosexuals and Lesbians


This law requires coverage under the Knox-Keene Health Care Service Plan Act and a under a policy of health insurance that provides for coverage for the treatment of infertility.   If such coverage is offered and purchased, it must be provided without discrimination on the basis of age, ancestry, color, disability, domestic partner status, gender, gender expression, gender identity, genetic information, marital status, national origin, race, religion, sex or sexual orientation.

AB 460 extended the idea of “non-discrimination” in this context to homosexuals and lesbians regarding fertility. If a health insurance plan is purchased that contains coverage for infertility, then the plan must not discriminate.  This statute is meant to help all people access to treatment of infertility.

Insurance plans are not required to carry such coverage.  There will be a violation of the statute only if the plan does offer such coverage and they attempt discrimination in the utilization of the coverage.

The law makes homosexuals and lesbians eligible for insurance coverage for “treatment of infertility, except in vitro fertilization, under those terms and conditions as may be agreed upon between the group subscriber or the group policyholder and the plan or the insurer.”

An interesting issue arises when the definition of infertility is considered. Under the new law, homosexuals and lesbians will be classified as “infertile” if they are unable “to conceive a pregnancy or to carry a pregnancy to a live birth after a year or more of regular sexual relations without contraception.” Since most sexual relations in a homosexual and lesbian relationship do not result in pregnancy, the law effectively defines all homosexuals and lesbians as “infertile.” Surely this is an unintended result and new legislation will need to be considered in the near future.




By: Pamela Tahim, Esq.  and Matt Kinley, Esq.

On October 1, 2013, the new Health Insurance Exchanges under the Affordable Care Act will be open for enrollment.  Many businesses are still worried and have concerns about what this means for them.  There are two immediate steps that a business should take: 1) Provide notice to its employees by tomorrow of the Exchange; and 2) Contact your insurance broker. Your broker should be able to guide you through the issues posed by the Affordable Care Act.

Employer Exchange Notice Due to Employees by October 1, 2013

Fair Labor Standards Act (FLSA) § 18B requires that employers subject to the FLSA provide a notice to employees by October 1, 2013 and new hires thereafter. Most firms under $500,000 in annual dollars received from “sales made or business done” are exempt from the FLSA and thus exempt from the notice requirement other than those specifically included regardless of annual income, which are hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies.

 The model DOL Exchange Notice for employers with a health plan is located at

 For employers with no health plan, the model notice is at Part B on the notice for employers with health plans is optional and complicated and many employers with health plans will not use it, preferring instead to customize the information on the Part B notice for employers with no health plans.

 If your company is covered by the Fair Labor Standards Act, it should provide a written notice to its employees about the Health Insurance Marketplace by October 1, 2013, but there is no fine or penalty under the law for failing to provide the notice. The notice should inform employees:

  1.   About the Health Insurance Marketplace;
  2.   That, depending on their income and what coverage may be offered  by the employer, they may be able to get lower cost private insurance in the Marketplace; and
  3. That if they buy insurance through the Marketplace, they may lose the employer contribution (if any) to their health benefits

For more information, feel free to contact us at 877.923.0971.