Category: Blog

The Family and Medical Leave Act (FMLA) guarantees eligible employees up to 12 weeks of unpaid leave each year to care for a newborn, newly adopted child, and/or a seriously ill immediate family member, or to recover from their serious health condition. FMLA also provides up to 26 weeks of leave to care for a covered service member with a serious injury or illness. Signed into law by President Bill Clinton in 1993, the FMLA has since allowed millions of American workers to take time off without the risk of losing their jobs or health insurance.

While FMLA offers job-protected leave to many American workers, over 40 percent of the workforce remains ineligible. The FMLA applies only to employers with 50 or more employees, public agencies, and public schools. Employers must also provide group health insurance to meet the requirements of the Act. In general, eligible employees must have worked for the covered employer for at least 12 months, accrued at least 1,250 hours of service during the previous 12 months, and report physically to a worksite where at least 50 employees work within 75 miles.

The United States Department of Labor (DOL) Wage and Hour Division released guidance to address concerns regarding the physical worksite requirement. Before COVID-19, remote work was less common, but with digital jobs expected to increase by 25% globally over the next six years, concerns about FMLA eligibility for remote workers have grown. For FMLA eligibility purposes, an employee’s residence is not considered a worksite. Whether or not to include remote employees in FMLA coverage has raised questions for employers. In the 2023 Field Assistance Bulletin, the DOL clarified that an employee’s worksite for FMLA eligibility is the office to which they report or from which their assignments are made. This effectively limits remote workers’ access to protected leave under FMLA.

Another key concern regarding FMLA is whether certain health conditions, including mental health issues, qualify as “serious health conditions” under the Act. Generally, to meet the criteria, a health condition must involve inpatient care at a hospital or medical facility, incapacitating conditions requiring ongoing medical treatment, or childbirth. As of November 2024, the DOL Wage and Hour Division has concluded 349 FMLA compliance actions, with violations resulting in the recovery of more than $1.48 million in back wages for 344 affected employees. The most common FMLA violations include denial of leave, failure to reinstate employees to their same position or benefits, termination, and discrimination.

Access to FMLA is not equally distributed across the workforce. Many workers report returning from leave only to find their benefits have been canceled, or that their job or performance evaluations have changed. Racial, ethnic, and class disparities in access to and use of FMLA are increasingly being documented across the job market. Data from the National Compensation Survey shows that low-paid workers are less likely to have access to paid leave than higher-paid workers. Research by the United States Bureau of Labor Statistics also reveals that Hispanic workers have lower rates of paid leave access than their White non-Hispanic counterparts and that disparities in paid leave access also exist based on factors such as education and employment status. These disparities highlight key issues and opportunities for reform in the nation’s policy on unpaid leave for serious health conditions.

Health insurance is a legal entitlement to payment or reimbursement for health care costs. At its core, health insurance is supposed to provide important financial protection for health care costs in case of accident or sickness in exchange for a monthly premium. It can also help people when they are not sick by covering routine check-ups and many preventative services.

Health insurance is especially important for society since health is a universal experience that all people will be impacted by. While some insurance plans, like car or homeowners, are there in case an accident or natural disaster occurs, health insurance is different because there aren’t rare occurrences that trigger the need for insurance. Instead, health insurance covers not just accidents or emergencies but also routine care that is meant to maintain health, enhance one’s quality of life, reduce the risk of developing serious diseases, and address any existing or new conditions. 

When health insurance falls short the consequences are tragic. Those who have suffered an accident, injury, emergency, sickness, or disease are at risk of life-long financial debt. While health insurance is a business and it is expected for businesses to mitigate costs to be successful, certain strategies are causing significant consequences to those who have received medical care. For instance, health insurance companies will typically use an in-network and out-of-network plan for costs to be reduced. As long as a patient has access to the care they need, this strategy does not inherently create an unreasonable burden on the health insurance’s beneficiaries. Additionally, beneficiaries will receive descriptions of what the health insurance covers and what is excluded which depends on the plan. However, beneficiaries are at unnecessary risk of medical debt because health insurance holds all of the power in this relationship and abuses this power by deciding whether or not care is “medically necessary” after the patient has received the care which allows the company to refuse to cover any costs that it is designed to provide for. 

Imagine someone who had a heart attack and to resuscitate them, the health care providers use a defibrillator, and then after they realize that the health insurance company has decided that the defibrillator was not medically necessary and will not be pay for it. A beneficiary should not have to decide upon whether or not to receive a life-saving measure nor should the beneficiary be stuck with medical bills that put them in life-long death just for surviving. Unfortunately, one wouldn’t have to use their imagination for this scenario as a survey showed “one in five Americans said their health insurance company had denied a claim over the past 12 months”. Health insurance companies have increasingly been using artificial intelligence (AI) to reduce costs by accelerating claims, coverage, and prior authorization decisions. However, the consequences are grave, an investigation found that in 2022, Cigna (a health insurance company) used an AI technology to deny or reject more than 300,000 claims for services or care that clinicians considered medically necessary. “Between 2022 and 2023, denials rose more than 20 percent for private, commercial claims and nearly 56 percent for MA [Medicare Advantage] claims.” The American Medical Association has called for regulatory guardrails against health insurance companies using AI in this way. However, without strict government regulations, health insurance companies will be continually motivated to deny claims by labeling them medically unnecessary so the company does not have to pay.

Until there are laws or government regulations to protect patients from these inappropriate denials of health care claims, patients must protect themselves. AI is not just for health care providers or health insurance companies but patients can use AI to help them fight the health insurance companies. While AI is contributing to an increased number of claim denials, a high number get overturned but that requires the beneficiary to go through an appeal process. Data suggests that more than half of the claims initially denied can eventually be overturned by appeals. However, this process is purposefully difficult. A new tool uses AI to help patients draft a letter for the appeal process using the letter of denial from the insurance company and the individual’s review. This tool helps people know how to appeal, what to include, and quickly draft the document. The company is hopeful this helps insurance companies change practices by increasing the amount of successful appeals but until the health insurance companies change, people who have suffered can fight back.

Health is the way a person interacts with their environment. A person’s environment includes where they live, the quality of the home, the air, and access to nutritious food. These all influence a person’s opportunities to achieve health and affect the rates of life expectancy, infant mortality, and rates of chronic disease. 

One of the most influential public health factors for a person’s environment is where they live. An individual’s access to housing and the conditions of that housing can be a direct determinant of their health. Health and Housing are deeply intertwined. Having no housing options as well as housing that exposes occupants to unsanitary and hazardous living conditions can directly impact an individual’s susceptibility to illness.  

Previously allowing Medicaid funds to be used towards paying The Centers for Medicare & Medicaid Services (CMS) for housing expenses was prohibited but recently, issued new guidance on Medicaid Waivers giving states the flexibility to use Medicaid dollars to support housing expenses including rent and temporary housing. CMS approved section 1115 which allows states to choose to use some of their Medicaid funds towards time-limited housing and nutrition services.  

In November 2023, CMS reiterated its HRSN waiver policy outlining that the program includes coverage for “Housing” and “Nutrition”. The program included things such as short-term and post-transition housing for up to six months, people at risk of homelessness, and youth transitioning out of the welfare system. Other housing assistance in the waiver includes pre-tenancy and tenancy sustaining services, tenant rights education, and eviction prevention costs including security deposit, utility fees, moving, relocation, application expenses, and inspection fees. 

As well as obtaining housing, the funds can also be used to improve housing. The quality of a home can directly impact an occupant’s health. Things such as mold, inadequate plumbing, heat, and air conditioning can cause health issues for those living in these conditions. Additionally, fixing these issues can be expensive. The Section 1115 Waiver also allows funds to be used towards modifications to one’s home environment including air conditioners, heaters, air filtration devices, generators, carpet replacement, ventilation improvements, and mold and pest removal. These improvements would lead to improved health conditions and mitigate the need for hospital visits and medications related to illnesses caused by unhealthy living conditions. 

As of March 2024, at least 18 states had approved Section 1115 Medicaid demonstration waivers for housing-related services with eight states recently approved under the housing-related social needs waiver framework. Hopefully, more states will choose to use their Medicaid funds towards housing assistance for their citizens. This will directly improve the health conditions of its beneficiaries, contributing to the stability of the healthcare system overall.  

In 2022, JUUL, an e-cigarette company originally founded to help cigarette smokers quit, settled a lawsuit that alleged that Plaintiffs paid more for JUUL products than they would have if accurate information regarding the product’s addictiveness and safety had been provided. The lawsuit further alleged that JUUL products were unlawfully marketed to minors. The complaint, filed in the Northern District of California, noted that JUUL’s advertising techniques were specifically employed to garner interest from a younger consumer population and used long-banned cigarette advertising techniques. The $300 million settlement was paid out to consumers in the middle of October 2024, with some purchasers receiving thousands of dollars in return. 

In avoiding the risk of going to trial, JUUL’s settlement sets the stage for future claims against substance producers potentially marketing to children or concealing the risks associated with consuming their product. As research emerges regarding alcohol consumption’s link to increased cancer risk, companies that produce sweet liquors with fun colors could be at risk for marketing to children. Per the National Institute of Health, nearly 5.8% of cancer deaths worldwide are attributable to alcohol consumption. As of October 22, 2024, the United States does not require that alcohol bottles bolster a warning of cancer risk. Ireland recently became the first country to require cancer warning labels on alcohol bottles. Many liquors also appear to be marketed towards children in many of the same ways that JUUL products were; they are colorful, with sleek designs, and often fruity or exotic flavors. At what point do the same legal principles apply to alcohol litigation?

Arguably, JUUL’s massive settlement set the stage for future substance complaints and litigation, particularly as it concerns public health and concern for minors. The alcohol industry finds itself at a crossroads: how can it continue to innovate its product and increase its revenue while treading carefully to avoid bankruptcy-inducing settlement payouts? The question might actually be one of abandoning some long-held, capitalistic business practices, pivoting from seemingly marketing to a younger audience, and bolstering the existing market. Instead of creating fun designs with exotic flavors, perhaps leaning into a “sophisticated” type of marketing that emphasizes the exclusivity of being of age to consume alcohol. By moving away from the youth-targeted marketing, companies can instead generate excitement for a new consumer base by advertising anticipation of reaching the drinking age. Perhaps they can also shift marketing to reflect a slower, less volume-induced type of consumption. By elevating the experience and shifting marketing strategy to reflect a sophisticated, adult activity, alcohol companies can avoid potential marketing litigation as it pertains to childish advertising. In looking towards the future, alcohol companies should be prepared to comply with all warning regulations and potentially shift marketing materials to target an older audience. 

Chaos ensued in the nursing home industry after the federal Centers for Medicare and Medicaid Services (CMS) issued its final rule mandating minimum nurse staffing in every nursing home that accepts Medicaid and/or Medicare funds. This means virtually all U.S. nursing homes will be subject to the new rules as of April 22, 2024. The reaction has been swift, with 20 states joining together to sue the U.S. federal government over the requirements, representing a significant pushback against the Biden administration’s attempt to upgrade the quality of care in long-term care facilities (“LTCs”). The new rules require that nursing facilities have a registered nurse on campus twenty-four hours a day, seven days a week as well as additional specified staffing levels for all other nursing staff (e.g., licensed practical nurses and certified nursing assistants).

Staffing minimums in nursing homes are not new by any means; since 1987, with the passing of the Nursing Home Reform Law, facilities have been required to ensure sufficient staffing at all times so that residents can “attain and maintain her highest practicable physical, mental, and psycho-social well-being.” However, the law was rarely enforced, leading to a less-than-optimal standard of care. This new law adds a quantitative requirement to improve enforcement of the purely qualitative 1987 Nursing Home Reform Law. 

The real question is, how will this new law impact nursing homes now? The benefits of increased staffing are clear: more staff means more efficient care. But why would 20 states be suing over it? The slow implementation of the new rule puts current residents at risk; CMS is allowing years for facilities to comply with the rule, and facilities that have trouble staffing to the new minimum will likely have to stop admitting new residents. Additionally, the new rule gives so-called “hardship exemptions,” giving any facility that meets the requirement for hardship to skirt the rules, allowing for less than stellar care for residents. 

Furthermore, paying for the increase in staff is likely a non-issue for the majority of facilities as most nursing homes are run as for-profit businesses, with regular investments by Private Equity, Real Estate Investment Trusts, and other highly polished investors. In fact, nursing homes had total net revenues of $126 billion and a profit of $730 million in 2019. Additionally, spending for residents’ direct care comprised only 66% of net revenues, including 27% on nursing, in contrast to 34% spent on administration, capital, and others. 

Despite most nursing homes seeing large net profits, attorneys general from the twenty states participating in that lawsuit contend that the new requirements are not feasible in rural communities that don’t have the same venture capital presence. Moreover, traditionally, nursing home care has been regulated at the state level, arguing that this mandate “represents an overreach of federal power and fails to account for the diverse needs and resources of different states and communities.” States further assert that the new rule represents a one-size-fits-all model that fails to account for the unique needs of different patient populations. 

As the lawsuit proceeds through the legal system, it will likely have notable implications for nursing home care policy throughout the United States. The outcome of the case will likely set important precedents regarding state and federal authority over healthcare regulation.

On June 16, 2021, Erica Russell died while undergoing cosmetic surgery for a “Brazilian Butt Lift (BBL),” a procedure that has grown in popularity in recent years. Last March, her family filed suit in Miami-Dade County Court for wrongful death against Seduction Cosmetic Center, the facility where the operation was performed, and Dr. John Sampson, the operating surgeon. The complaint’s allegations echo findings by the Florida Department of Health in disciplinary action against Sampson regarding Russell’s death. There, the Department of Health found that, by puncturing several of Russell’s organs and injecting fat below her gluteal muscles, which caused the pulmonary fat embolism that led to her death, Sampson had violated the standard of care for a cosmetic surgeon.

Although butt augmentation as a cosmetic procedure has been around for decades, in recent years, its popularity has spread like wildfire across the United States, likely due to shifting beauty standards which now favor a shapely posterior compared to the turn of the century, in part due to celebrity endorsements. Only around five hundred procedures were performed nationwide in 2005, whereas in 2020, that number jumped to over twenty thousand.

The standard procedure for a BBL is comprised of two parts: an initial liposuction procedure, which removes fat from elsewhere in the patient’s body, followed by the fat’s insertion and grafting into the fatty tissue on the patient’s buttocks. The American Society of Plastic Surgeons (ASPS) recognizes that while outcomes have improved over the past few years, the procedure inherently involves the risk of death. Complications are rare but usually manifest immediately; fat embolism, the cause of Russell’s death, was found to be the most severe identified complication, prompting the ASPS to recommend that surgeons modify their technique to avoid placing fat near the patient’s gluteal muscles. In response to these recommendations, the Florida Board of Medicine passed a regulation banning fat grafting techniques that inject fat below the gluteal muscles in 2019, two years before Russell’s demise.

Russell’s unfortunate case is an example of how the standard of care and its breach are defined during the two stages of the BBL procedure. Because the initial perforation of her organs occurred during the liposuction while the introduction of fat—which caused the embolism that ultimately killed her—happened during the grafting portion, Sampson is alleged to have breached the standard of care in at least two instances. Russell’s case is also an example of how medical regulatory bodies revise how the standard of care is defined to adapt to current events. In response to Russell’s case and other similar deaths, the Board of Medicine passed an emergency rule in 2022 limiting surgeons to three BBL procedures a day. Sampson and other doctors were found to have performed around double that amount at the time of their patients’ deaths.

Florida’s approach to the regulation of BBL surgeries should serve as a lesson to cosmetic surgeons who wish to avoid patient deaths and malpractice liability while providing an increasingly popular service. While there are no federal regulations on the practice, Florida’s regulatory law represents the sentiments held by the ASPS and other national cosmetic surgeon organizations. Florida is one of the most popular destinations in the country for these procedures; it was estimated in 2019 that practitioners in Miami-Dade County alone accounted for fifteen to eighteen thousand procedures. Should this trend in popular ideals of beauty and self-image continue to grow and other states seek to further their regulations on the practice, their measures will likely be in accord with Florida’s for the reasons held by the Board of Medicine. As a result, these actions will help clearly define the “national” standard of care for BBL surgeries and ultimately help hold malpractitioners accountable wherever they may be.

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