The Mental Health Parity and Addiction Equity Act (MHPAEA) Potential covered contracts or subcontracts may include contracts related to Medicare Advantage (Part C) or Part D programs. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. These three programs enforced by the Office of Federal Contract Compliance Programs (OFCCP) require equal employment opportunity by government contractors. 0000018480 00000 n State Enforcers Expanding Premerger and Antitrust Jurisdiction Over The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans. which entity has jurisdiction over health care coverage providers 1980). The provisions of title XXVII of the PHS Act that apply to group health plans that are non-Federal governmental plans are enforced by the Centers for Medicare & Medicaid Services (CMS) under PHS Act section 2723(b)(1)(B) using the procedures described in 150.301 et seq. 2. Although only a few states currently require certain transactions be notified, this list will likely continue to grow. In California, the elderly can receive information about health related issues from? In addition, pursuant to Section 7 of the Clayton Act, the federal antitrust laws prohibit acquisitions that may substantially lessen competition or tend to create a monopoly. It is unclear what would constitute a dominant position under the proposed statute. Have you ever seen a section in a contract that reads something like this? /content/aba-cms-dotorg/en/groups/health_law/publications/aba_health_esource/2020-2021/december-2020/sta-enf, http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB977, https://leg.colorado.gov/sites/default/files/2020a_064_signed.pdf, https://www.nysenate.gov/legislation/bills/2019/s8700/amendment/a, https://www.cga.ct.gov/2014/ACT/pa/pdf/2014PA-00168-R00SB-00035-PA.pdf, https://portal.ct.gov/AG/General/Notice-of-Physician-Acquisition, https://app.leg.wa.gov/RCW/default.aspx?cite=19.390&full=true, https://oag.ca.gov/sites/all/files/agweb/pdfs/charities/publications/nonprofithosp/new_statutes.pdf, https://oag.ca.gov/news/press-releases/attorney-general-becerra-and-senator-monning-announce-legislation-reduce, https://www.justice.gov/atr/statements-antitrust-enforcement-policyin-health-care. 0000014828 00000 n /*-->*/. ) Dennie Zastrow is an Associate in the Business Litigation practice group at Troutman Pepper. The term nonpersonal services includes, but is not limited to, the following services: utilities, construction, transportation, research, insurance, and fund depository. The Public Health Service Act (PHS Act) section 2791(d)(8)(C) defines the term Non-Federal governmental plan as a governmental plan that is not a Federal governmental plan. .gov Free Flashcards about Financial Test - StudyStack Both the Federal and State Governments Jointly Finance Which Health Similarly, under federal antitrust policy, rural hospital transactions would often, if applied, fall within the FTC and DOJ Antitrust Divisions small hospital safety zone criteria: The Agencies will not challenge any merger between two general acute-care hospitals where one of the hospitals (1) has an average of fewer than 100 licensed beds over the three most recent years, and (2) has an average daily inpatient census of fewer than 40 patients over the three most recent years, absent extraordinary circumstances. 0000011315 00000 n 15 U.S.C. All of these statements concerning Medicare are true EXCEPT. Before sharing sensitive information, make sure youre on a federal government site. ERISA | U.S. Department of Labor - DOL Although the proposed amendments to New Yorks Donnelly Act are not limited in application to the healthcare industry, the contemplated abuse of dominance provision could present significant increased enforcement risk for healthcare providers. Once it has been determined that a contractor or subcontractor is subject to OFCCP jurisdiction, the regulations implementing the civil rights requirements enforced by OFCCP apply to all of the contractors or subcontractors employees who are engaged in onsite construction, including those construction employees who work on a nonfederal or nonfederally assisted construction site. How state reporting obligations affect deal timing. Section 2707 - Non-discrimination under Comprehensive Health Insurance Coverage (Essential Health Benefits Package) Section 2713 - Coverage of Preventive Health Services Section 2718 - Bringing down the Cost of Health Care Coverage (MLR) Section 2719 - Appeals Process Section 2726 - Parity in Mental Health and Substance Use Disorder Benefits This blog is intended to provide information generally and to identify general legal requirements. For your additional information, there is an interactive electronic tool called the Federal Contract Compliance Advisor, also referred to as elaws Advisor, to assist federal contractors and subcontractors in understanding basic coverage and the requirements for compliance with the laws administered by OFCCP. At any time, a state that is willing and able may assume enforcement authority of the Affordable Care Act market reform standards. 20-115 - Department jurisdiction over certain health care providers Generally speaking, once it has been determined that a business or organization is subject to the equal employment opportunity requirements enforced by OFCCP, all of the businesss or organizations establishments or facilities will be subject to the same regulatory requirements, regardless of where the federal contract is to be performed. lock Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Which entity has jurisdiction over health care coverage providers? Your practice or facility may not be subject to affirmative action laws, so read on to understand whether you should accept this provision in an agreement or not. Part 60-1.4(a), 41 C.F.R. SB 977, at 1191(a)-(b). My company has contracts with the U.S. Department of Veterans Affairs to provide non-medical services. Our business operates as a fund depository, and an issuing and paying agent for U.S. There are circumstances where explaining the benefits of and reasons for a transaction before an agency formulates its independent view can streamline and shorten the timeline of a likely inevitable investigation as well as providing greater certainty to the parties. Nonetheless, OFCCP has not conceded jurisdiction over healthcare providers that participate in TRICARE and FEHBP networks. You may wish to consult the elaws Advisor if you have additional questions about coverage. If the transaction also triggers the HSR filing requirements, the parties can satisfy Washingtons premerger notification requirement by submitting a copy of the HSR filing to the Washington attorney general. Like the Executive Order regulations, these regulations also state that the term "nonpersonal services" includes, but is not limited to the following services: Therefore, financial institutions with federal share and deposit insurance are considered to be government contractors. Texas The Scheduling Moratorium for VAHBP Providers only applies to providers of health care and does not extend to contractors that hold a separate, independent non-health-care-related contract. With respect to Washington, since January 1, 2020, provider transactions that constitute a material change must be reported to the state attorney general no less than 60 days prior to consummation.11 Under the statute, a material change includes an acquisition, merger, or contracting affiliation. How is an agent's first year commission calculated for a replacement long-term policy? What is Pete guilty of? Question: Are Private Health Insurance Companies Rate Or Return Heres how you know. 0000036317 00000 n What is Medi? CMS will form a collaborative arrangement with any state that is willing and able to perform regulatory functions but lacks enforcement authority. 0000017659 00000 n @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} See 41 CFR 60-1.5(a)(3), 60-300.4(a)(3), 60-741.4(a)(3). Colorado is another state that is taking merger control into its own hands. Federal contracts and subcontracts are exempt from the requirements of the equal opportunity clause with regard to work performed outside the United States by employees who were not recruited within the United States. In addition to identifying the parties, the notice must include the locations where healthcare services are provided by each party, the anticipated effective date, and a brief description of the nature and purpose of the material change.14 Washingtons attorney general can also request additional information (including documents, interrogatory responses, and oral testimony) within 30 days of the notice being submitted.15 Any party that fails to submit the requisite notice faces penalties of up to $200 per day.16, Californias proposed SB 977 would have required healthcare systems, private equity firms, and hedge funds to provide notice to and receive approval from the states attorney general before closing acquisitions or changes of control with other healthcare facilities and providers.17 The proposed bill covered a wide range of healthcare affiliations, including: (1) the direct or indirect purchases through leases, transfers, exchanges, options to acquire assets, or creation of a joint venture by a healthcare system, private equity group, or hedge fund of a material amount of the assets of a healthcare facility or provider; or (2) any agreement, association, partnership, joint venture, or other arrangement that results in a change of governance or control at a provider or facility by a healthcare system.18 The legislation would have expanded the existing notification requirements, which apply only to transactions with nonprofit health providers.19 The California attorney general announced that the legislation was needed to combat anticompetitive behavior in the healthcare sector, which he claimed is a growing concern and responsible for higher rates and decreased quality of care in California.20 OFCCP will use the insurance premium to determine if the covered insurance contract meets the $50,000 threshold requirement necessary to obligate the federal contractor to develop and maintain an Executive Order 11246 AAP, not the face value of the policy. . 1974). Barbara Sicalides is a Partner in the Business Litigation practice group at Troutman Pepper. Policy form review is one of the compliance tools used to confirm health insurance issuers' compliance with the provisions of the health insurance market reforms of the Affordable Care Act. OFCCP v. Safeco Insurance Co. of America, Secretary of Labors Decision, July 31, 1984. .table thead th {background-color:#f1f1f1;color:#222;} It would make it unlawful under state law: for any person or persons to monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize any business, trade or commerce or the furnishing of any service in this state.33. In addition, business associates of covered entities must follow parts of the HIPAA regulations. Megan Morley is a Senior Attorney in the Business Litigation practice group at Troutman Pepper. If a conflict develops for a contractor who is subject to both Executive Order 11246 and Proposition 209, the requirements of Executive Order 11246 should prevail under the U.S. Constitutions Supremacy Clause the Executive Order is federal law and Proposition 209 is state law. P.A. RCW 19.390.040. All contractors and subcontractors who hold a federal or federally-assisted construction contract in excess of $10,000 will be subject to regulatory requirements under one or more of the laws enforced by OFCCP depending upon the amount of the contract. Which of the following is NOT a primary objective of insurance regulation? Regardless of how small a deal is, the parties need to understand the competitive implications. In the event that a state notifies the Centers for Medicare & Medicaid Services (CMS) that it does not have statutory authority to enforce or that it is not otherwise enforcing one or more of the provisions of title XXVII, or if CMS determines that the state is not substantially enforcing the requirements, CMS has the responsibility to enforce these provisions in the state. If a state informs CMS that it does not have authority to enforce one or more of the provisions of the Affordable Care Act, and the state has not entered into a collaborative arrangement, CMS has the responsibility to directly enforce the relevant provisions in the state with respect to health insurance issuers in the group and individual markets. He counsels clients on antitrust issues with respect to mergers and acquisitions; litigates boycott, monopolization, and patent misuse cases; and advises clients on distribution, joint venture, and licensing strategies. 15 U.S.C. The term "health care providers," as used in the TRICARE Exemption and VAHBP Moratorium, is easily interpreted to include providers like blood banks, diagnostic labs, or ambulance services. Any person or other entity, including a provider sponsored organization that operates under the Medicare-plus-choice program established under the balanced budget act of 1997 (42 United States Code sections 1395w-21 through 1395w-28 and title XVIII, part C of the social security act . Although the extent of the states future role in antitrust and healthcare affiliations, and, whether a change in the federal administration will affect that role, remains unclear, there is no doubt that a number of states have added or are considering adding to their available enforcement tools, giving them more opportunities to intervene. 0000013829 00000 n Watch out for this language! By continuing to use this site you consent to our use of cookies in accordance with our, Business Restructuring, Bankruptcy & Commercial Law, Business Reorganization and Restructuring, Commercial Contract Preparation and Disputes, Business Transactions & Corporate Counseling, Commercial Transactions and Property Acquisition, Compliance Counseling and Risk Management, Site Remediation and Brownfield Development, Nurse Practitioners and Registered Nurses, Corporate Governance & Compliance Investigations, Real Estate and Title Insurance Litigation, Tax Controversy, Criminal, White Collar Crimes. . For guidance on this topic, please consult OFCCPs FAQs on the Single Entity Test at https://www.dol.gov/agencies/ofccp/faqs/single-entity-test. Stat. Some examples of non-Federal governmental plans are plans that are sponsored by states, counties, school districts, and municipalities. Please note that a hospital or other health care provider may be a covered contractor because of other contractual arrangements, such as providing health care to active or retired military under a contract with the Department of Veterans Affairs or the Department of Defense. ol{list-style-type: decimal;} No. Official websites use .govA The decision in Bridgeport Hospital concerned only the contractual obligations assumed by an insurance carrier that has contracted to provide a fee-for-service health benefits plan to federal employees; it does not address the contractual obligations assumed by providers of other types of plans under the FEHB Program, (e.g., a Health Maintenance Organization). 4212 (VEVRAA). Section 2 of the Sherman Act makes it illegal for an entity to monopolize, attempt to monopolize, or conspire to monopolize any market. Therefore, if you serve as a depository for federal funds of $50,000 or more, or have an agreement valued at $50,000 or more to be an issuing and paying agent for savings bonds and notes, you would be obligated to develop and maintain a Section 503 AAP. To the extent that CMS and a state agree on a collaborative approach, the state will perform the same regulatory functions with respect to the Affordable Care Act market reform provisions as it does to ensure compliance with state law, and will seek to achieve voluntary compliance from issuers if the state finds a potential violation. In the past, the U.S. Department of Labors Office of Federal Contract Compliance Programs (OFCCP) has aggressively argued that health care providers that participate in one of three federal health care programs Medicare, TRICARE, and the Federal Employee Health Benefits Program are federal subcontractors. Yes. Some states lack the authority, the ability to enforce these provisions, or both. A person compensated for transacting insurance on behalf of another person with an insurer. Pursuant to this authority, CMS may investigate and implement corrective action or impose civil monetary penalties for any non-Federal governmental plan that fails to comply with applicable PHS Act requirements. Although the legislative session ended without the State Assembly taking action, it is likely that the same or a similar bill could be reintroduced in 2021.29. Even if states do not have premerger notification requirements, they still can challenge transactions. Which entity has jurisdiction over health care coverage providers? If a request for additional information was issued, then the attorney general had 45 days from substantial compliance with the request to grant or deny approval of the transaction. 0000001958 00000 n 0000015627 00000 n What is the purpose of the Pre-Existing Condition Insurance Plan (PCIP)? Balance Billing by Health Care Providers: Assessing Consumer It's time to renew your membership and keep access to free CLE, valuable publications and more. 6-4-107(3), which provided that the attorney general shall not challenge any merger or acquisition under the provisions of this section which has been reviewed by any federal department, agency, or commission under section 7A of the federal Clayton Act and for which all applicable waiting periods have expired or have been terminated without a challenge to such merger or acquisition by that department, agency, or commission. The Act took effect on August 5, 2020 (90 days after final adjournment of the general assembly). 0000035742 00000 n Xcel CHAPTER 20 Flashcards | Quizlet Hospital, physician, and private equity industry groups, however, opposed the legislation. Based on the difference between the new and original policy annual premiums, The California Insurance Code defines "policy" as a(n). 0000017602 00000 n A TRICARE provider that holds another covered contract, such as a prime contract or a subcontract apart from the TRICARE provider contract, would still need to comply with OFCCPs requirements. For questions and concerns regarding non-Federal governmental plans, please e-mail NonFed@cms.hhs.gov. While Proposition 209 is enforceable in California, it does not affect the application of Executive Order 11246. and Dennie Zastrow, Esq., Troutman Pepper Hamilton Sanders, LLP, Philadelphia, PA means youve safely connected to the .gov website. CMS will work cooperatively with the state to address any concerns. PCIP was created by the PPACA for people rejected by private health insurers due to pre-existing conditions, The cost of services charged by the Health Insurance Counseling Advocacy Program (HiCap) is, Any changes in background information that occur after a producer application has been submitted or a license has been issued MUST be reported to the Insurance Commissioner within. -Doctors' services are covered by Medicare Part B. 15 U.S.C. LCDs only have jurisdiction . Generally, whether a deal is reviewed by the FTC or DOJ depends on the industry and the agencys history of investigations in that industry. Such advice should always come from in-house or retained counsel. Stat. Sign up to get the latest information about your choice of CMS topics. What is required after a life agent sells an insurance policy to an applicant without being appointed by the insurer? 0000001980 00000 n The parties settled prior to trial with CHI Franciscan agreeing to have separate payor contracting for primary care and orthopedic services and to pay $2.5 million to the state. The Patient Protection and Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act of 2010, enacted on March 30, 2010, (collectively known as the Affordable Care Act)(ACA) reorganized, amended, and added to the provisions of Part A of title XXVII of the PHS Act. Saving Bonds and savings notes; therefore, are we required to comply with Affirmative Action Program (AAP) obligations under Executive Order 11246, VEVRAA, and Section 503? website belongs to an official government organization in the United States. In such instances, OFCCP uses a "single entity" test to determine whether the businesses or organizations are so closely related that they constitute a single entity for purposes of OFCCP jurisdiction. Megan Morleyis a Senior Attorney in the Business Litigation practice group at Troutman Pepper. She advises healthcare clients on the antitrust implications of transactions, defends hospital systems against allegations of antitrust wrongdoing, and prepares pre-merger notification filings for healthcare deals. She can be reached atmegan.morley@troutman.com. Notice of Material Change Form. To learn more about how we use cookies and how to change your cookies settings if you do not want cookies on your computer, please see our updated Privacy Statement. ( If my company is a federal contractor in the State of California, does Californias Proposition 209 mean that I do not need to meet the requirements of Executive Order 11246? The South Carolina Lifeand Accident and Health Insurance Guaranty Association(SCLAHIGA) may cover certain direct life insurance policies, accident and health insurance policies, annuity contracts, and contracts supplemental to life, accident, and health insurance policiesand contracts under South Carolina law. 0000006386 00000 n The vast majority of states are enforcing the Affordable Care Act health insurance market reforms. An in-network provider is a physician, hospital, or other health care provider with whom a health plan has negotiated a payment rate. Notwithstanding any other provision of law to the contrary, and except as provided herein, any person or other entity which provides coverage in this state for medical, surgical, chiropractic, physical therapy, speech pathology, audiology, professional mental health, dental, hospital, or optometric expenses, whether such coverage is by direct The proposed statute defines clinical integration as a reduction in costs to the benefit of consumer care and outcomes or an increase in the quality of care.. 15 U.S.C. In Colorado, legislators recently expanded the states ability to challenge all mergers, not only healthcare transactions, by repealing a statutory provision that curbed its enforcement power.3 Although Colorado did not create a system for premerger notification, it did give the Colorado attorney general the ability to challenge transactions regardless of whether the federal antitrust authorities object to those deals. For covered insurance contracts, does OFCCP use the insurance premium or the face value of the policy to determine whether a federal contractor is required to develop and maintain an Executive Order 11246 affirmative action plan (AAP)? How the proposed transaction affects competition. According to the California Insurance Code, who is responsible for submitting a life agent's appointment? 0000035664 00000 n ERISA. Perhaps equally concerning, the proposed amendments appear to permit criminal penalties for violations of the abuse of dominance prohibition.35 This is puzzling given that federal law technically provides for criminal penalties for monopolization claims, but as a matter of policy, the Department of Justice Antitrust Division does not seek criminal penalties for monopolizing conduct. 0000018777 00000 n Liberty Mutual Insurance Co. v. Friedman, 639 F. 2d 164 (4th Cir. Brouse McDowell, A Legal Professional Association. OFCCPs policy is that the receipt of reimbursements from a health insurance carrier that provides a health benefits plan under the FEHB Program, for the medical services provided to federal employees or their dependents, will not provide a basis for coverage of the hospital or other health care provider under the laws enforced by OFCCP. Local Coverage Determinations are administered by whom? Under Section 503 of the Rehabilitation Act of 1973, as amended (Section 503), a government contractor with 50 or more employees and a Government contract of $50,000 or more must develop a Section 503 AAP. All rights reserved. What is an "insurance broker" according to California Insurance Code? Recent Changes to the Definition of Sex Discrimination Under Section 1557 of the Patient Protection and Affordable Care Act, Eleventh Circuit Holds that the Government Need Not Prove a Payees Motivation for Accepting a Payment Under the Anti-Kickback Statute, Representations and Warranties Insurance: An Essential Component of Healthcare Mergers and Acquisitions, American Bar Association
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