The Employer “Pay-or-Play” Mandate Approaches

As we approach the end of the 2014 calendar year and turn toward 2015, the “pay-or-play” penalties of the Patient Protection and Affordable Care Act (“PPACA”) will quickly approach.  Many employers are looking once again at whether they must provide health care coverage to employees in order to avoid the penalties and, if so, to which employees.  The pay-or-play rules, just like the entire PPACA, contain many subtleties and distinctions, but here are the basics. Continue Reading →

CMS Reiterates Need for Discharge Assessment to Non-Certified Beds

On August 25, 2014, CMS issued a survey transmittal regarding the need for nursing homes to complete a discharge assessment when a resident transfers from a SNF and/or NF certified bed to a non-certified bed in the same facility.  CMS issued this transmittal to reinforce to facilities that discharge assessments are critical to ensure the accuracy of CMS mandated quality measures. Continue Reading →

OIG Scrutinizes Specialty Pharmacy Arrangement in Unfavorable Advisory Opinion

OIG recently issued Advisory Opinion 14-06, determining that a proposed arrangement for patient referrals to a specialty pharmacy had the potential to generate prohibited remuneration under the Anti-Kickback Statute.  The proposed arrangement involved a specialty pharmacy paying a support services fee to local retail pharmacies when the local pharmacies referred patients to the specialty pharmacy.  As such, OIG concluded that it could potentially impose administrative sanctions against the parties involved in the Advisory Opinion request.  Continue Reading →

NLRB’s “Solidarity Principle” Opens the Door to More Charges

Protected Rights Expanded in Solidarity

We have all become familiar with the protected rights of employees under the National Labor Relations Act. To be protected under Section 7 of the NLRA, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.” The question that the NLRB was presented with in a very recent case was whether an employee was engaged in “concerted activity” for the purpose of “mutual aid or protection” when she sought assistance from her coworkers in raising a sexual harassment complaint to her employer. The NLRB held that her conduct was protected even though it only involved her personal complaint. In so doing, the NLRB invoked what it called the “Solidarity Principle,” reasoning that in enacting Section 7, Congress created a framework for employees to “band together” in solidarity to address their terms and conditions of employment with their employer. Continue Reading →

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 →

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