Employers Should Avoid Common Errors While “Doing Their Homework”

Essentially all of our clients conduct pre-employment background checks on their employees. These background checks generally include a criminal history and license, certification and/or registration records. Sometimes these checks also include driving and/or credit records. All of these reports are considered “consumer reports” under the Fair Credit Reporting Act (“FCRA”) and, accordingly, clients who use a third-party vendor to conduct such searches are subject to the FCRA. Continue Reading →

A Reminder to Kentucky Estheticians: No Doctor, No Laser Treatment

Estheticians wishing to offer laser tattoo removal should remember that the procedure requires more than just a new machine; it also requires the presence of a physician. Kentucky law expressly prohibits estheticians practicing in the state from performing laser treatments unless practicing under the immediate supervision of a licensed physician. The term immediate supervision in this context means that the doctor is in the same room overseeing these activities at all times. Continue Reading →

CMS Extends HHA Moratoria in Select Metro Areas

Since July 2013, CMS has instituted a moratorium on new home health agencies (“HHAs”) enrollments in Miami and Chicago areas.  Earlier this year in February, CMS added Fort Lauderdale, Detroit, Dallas and Houston to the moratorium.  This month, CMS has renewed the moratoria for all six locations for an additional six-month period, with the option to continue further renewals.   Continue Reading →

DOJ Enters into $98.15 Million Settlement Agreement with Large Operator of Acute Care Hospitals

Executive Summary

On August 4, 2014, the United States Department of Justice (“DOJ”) announced a settlement of a staggering $98.15 million with the nation’s largest operator of acute care hospitals (“Health System”).  The settlement resolves multiple lawsuits filed under the qui tam (whistleblower) provisions of the federal False Claims Act that prohibits a person from knowingly presenting, or causing to be presented, a false or fraudulent claim to the United States government seeking payment from the federal treasury. The settlement also requires the Health System to enter into a five-year corporate integrity agreement (“CIA”) with the Department of Health and Human Services Office of the Inspector General (“OIG”) under which the Health System must undertake significant compliance efforts including engaging independent review organizations to review the accuracy of the Health System’s governmental health care program claims for inpatient services.  The settlement announcement can be found here. Continue Reading →

New Executive Order Will Require Contractors to Report Labor Violations

President Obama’s latest Executive Order  (“EO”) is entitled “Fair Pay and Safe Workplaces,” but its requirements on federal contractors go beyond compensation and safety.  The good news is that implementation of these new requirements is not expected to be begin until 2016.  By then, we hope to have new regulations that better explain the EO’s specific requirements.  Continue Reading →

Medicare’s Shifting Landscape: New Labor Market Areas May Jeopardize Special Rural Status for Certain Hospitals and Create New Opportunities for Others

On August 5, 2014, the Centers for Medicare & Medicaid Services (“CMS”) released the 2015 Inpatient Prospective Payment System (“IPPS”) Final Rule (“Final Rule”).  Among other changes in the Final Rule, CMS is adopting updated labor market area delineations based on the 2010 census to take effect on October 1, 2014.  Hospitals should review whether they are in a county that is affected by the updated delineations and what effect, if any, it will have on their Medicare reimbursement, especially if the provider is required to be located in a rural area.  Continue Reading →

OIG Releases Advisory Opinion on Pharmaceutical Direct-to-Patient Sales Program

Executive Summary

On July 28, 2014, the Department of Health and Human Services Office of Inspector General (“OIG”) released Advisory Opinion No. 14-05 (“AO 14-05″), addressing one of OIG’s favorite foci, federal health care program “carve out” arrangements.  AO 14-05 was issued in response to a pharmaceutical manufacturer’s (“Company”) request for review of its direct-to-patient product sales program (“Arrangement”) that allows patients to purchase the Company’s brand name prescription drug (“Product”) at a significantly reduced price from an online retail pharmacy (“Pharmacy”) outside any applicable prescription drug insurance benefit program. The Company specifically requested guidance concerning whether it would be subject to sanctions under the civil monetary penalty provision prohibiting inducements to Medicare beneficiaries (“CMPL”) or under the civil monetary penalty provisions applicable to violations of the Federal Anti-Kickback Statute (“AKS”). OIG found that although the Arrangement potentially generates prohibited remuneration under the AKS if the requisite intent to induce or reward referrals payable by a federal health care program were present, it would not impose sanctions.  Likewise, OIG would not impose sanctions under the CMPL.  A description of the Arrangement and a detailed analysis is set forth below. Continue Reading →

CMS Did Not Finalize Proposed Changes to Cost Reporting Requirements and PRRB Appeals

Executive Summary

In the FY 2015 Inpatient PPS Final Rule, CMS did not finalize problematic changes to the cost reporting requirements that the agency introduced in the proposed rule.  On behalf of clients of Hall Render and Baker Healthcare Consulting, Hall Render previously opposed the proposed rule in comments to CMS and consultations with members of Congress.  CMS heard these concerns and chose not to finalize the proposed regulations. Continue Reading →

EEOC’s Conciliation “Efforts” Called into Question

Whether the Equal Employment Opportunity Commission (“EEOC”) is engaging in proper conciliation efforts, prior to bringing a lawsuit, is an issue that many employers have grappled with when forced to the brink during pre-lawsuit negotiations. After the Seventh Circuit Court of Appeals (including Indiana, Illinois and Wisconsin) held, for the first time, that the EEOC’s pre-lawsuit conciliation efforts were not reviewable, the U.S. Supreme Court agreed to chime in on the issue. Continue Reading →

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