which entity has jurisdiction over health care coverage providers

The term nonpersonal services includes, but is not limited to, the following services: utilities, construction, transportation, research, insurance, and fund depository. For additional qualifications and requirements, please visit the U.S. Department of Labor Office of Federal Contract Compliance Programs website, at https://www.dol.gov/ofccp/ and ask your attorney to ensure your health care entity is in compliance. It's time to renew your membership and keep access to free CLE, valuable publications and more. 0000001958 00000 n The Colorado attorney general is now authorized to challenge transactions when the effect of such acquisition may be to substantially lessen competition or may tend to create a monopoly regardless of whether the Federal Trade Commission (FTC) or the Department of Justice (DOJ) challenged the transaction within the HSR waiting period.32 Importantly, the legislation merely gives the attorney general the authority to challenge proposed acquisitions it neither imposes any additional filing requirements on parties nor creates a standard that differs from that applied under federal law -- Section 7 of the Clayton Act. Accordingly, a hospital or other health care provider is not covered under the laws enforced by OFCCP if its only relationship with the Federal government is as a participating provider under Medicare Parts A and B and Medicaid. 0000018799 00000 n /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. .gov This article first describes the legislation in Connecticut, Washington, California, Colorado and New York in more detail and then offers guidance for those entities considering entering into healthcare-related deals. Official websites use .govA Generally, whether a deal is reviewed by the FTC or DOJ depends on the industry and the agencys history of investigations in that industry. Is CMS a regulatory agency? Although Washington has not challenged a healthcare transaction since the implementation of the reporting requirement earlier this year, the state has done so in the past. 0000017602 00000 n 0000024410 00000 n OFCCP v. Safeco Insurance Co. of America, Secretary of Labors Decision, July 31, 1984. lock 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. Many of the market reforms and consumer protections in Part A of title XXVII of the PHS Act are new provisions that became effective for plan years beginning in 2014. After collection and review of policy forms for compliance with the respective market reform provisions, CMS will notify issuers of any concerns. As a reinsurer for the Federal Employees Group Life Insurance (FEGLI) program, are we a federal government subcontractor? Given the narrow geographic market definition applied to providers and the fact that high market concentration among specialists or service lines (e.g., Level 1 Trauma) often exists, physician groups and hospitals will need to proceed with caution when taking actions that are likely to harm their actual or potential competitors. In addition to inserting language virtually identical to the Sherman Act Section 2s monopolization, attempt to monopolize and conspiracy to monopolize prohibition,4 the pending proposed legislation seeks to add a vague prohibition of firms with a dominant position abus[ing] that dominant position.5 6-4-107(1). The information in this section will be of interest to state and local governmental employers that provide self-funded group health plan coverage to their employees, administrators of those group health plans, and employees and dependents who are enrolled, or may enroll, in those plans. 0000001308 00000 n lEm 3. Part 60-1.4(a), 41 C.F.R. 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. For example, Connecticut and Washington enacted and California has proposed legislation requiring premerger notification to their respective state attorney general offices of certain healthcare-related deals before consummation. How state reporting obligations affect deal timing. The Health Insurance Enforcement and Consumer Protections Grants will provide States with the opportunity to ensure their laws, regulations, and procedures are in line with Federal requirements and that States are able to effectively oversee and enforce these provisions. If California (or other states) pass the same or similar legislation, then parties will need to be prepared to explain these outcomes or will risk the deal being denied approval. In order to be eligible for the TRICARE Exemption, the entity must hold a TRICARE subcontract (rather than a prime contract) and hold no other covered agreements. In California, the elderly can receive information about health related issues from? Notice of Material Change Form. If your entity is a federal contractor or subcontractor, you must be sure to maintain affirmative action program compliance. SB 977, at 1191(a)-(b). When selling a long term care insurance rider to an applicant, a life agent must take into consideration all of these factors, EXCEPT. No attorney client relationship is created or implied by this Blog. According to PPACA, what is a health benefits exchange? Further, except for universities and medical facilities, a state or local government agency, instrumentality, or subdivision that has a government contract is exempt from the requirement to develop and maintain a written affirmative action program. HHS has jurisdiction over public sector group health plans (referred to as "non-Federal governmental plans"), while the Departments of Labor and the Treasury have jurisdiction over private group health plans. 0000045440 00000 n Like the TRICARE Exemption, a health care provider providing services to beneficiaries of a VAHBP that also holds another covered contract outside the scope of VAHBP would still need to comply with all of OFCCPs requirements. Although specifics regarding the content of the notice were not provided in SB 977, the bill did state that the notice should contain information sufficient for the attorney general to assess the nature of the transaction and whether it will lead to clinical integration or an increase or maintenance of access to underserved populations.23 Once the notice was received, the attorney general would have 60 days to consent to the transaction, grant a waiver, or issue a request for additional information from the parties. He also counsels clients on the HSR Act. Missouri 1974). 0000048160 00000 n This deal analysis should include talking to business personnel, reviewing relevant documents, and potentially, analyzing patient draw data. 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. If a contractor performs work outside of the United States, is it subject to OFCCPs jurisdiction under the authorities it enforces? 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. Washington, DC 202101-866-4-USA-DOL1-866-487-2365www.dol.gov, Office of Federal Contract Compliance Programs, Office of Administrative Law Judges OFCCP Collection, Significant Guidance Documents (formerly "Guidance Documents"), Functional Affirmative Action Programs (FAAP), Notification of Construction Contract Award Portal, Opening Doors of Opportunity for All Workers Poster. 15 U.S.C. On March 20, 2020, Governor Jared Polis of Colorado signed SB20-064 into law.30 The legislation repealed Colo. Rev. .manual-search ul.usa-list li {max-width:100%;} How the proposed transaction affects competition. Non-Federal governmental plans are not regulated the same way as insurance companies or private employer health plans. No, as a federal contractor in the State of California you will still need to meet the requirements of Executive Order 11246. 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. 41 CFR 60-741.2(i)(4). 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. Are Federal Reserve Banks subject to the affirmative action and equal employment opportunity laws OFCCP enforces? 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. 0000016504 00000 n 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. Official websites use .govA A federal government website managed and paid for by the U.S. Centers for Medicare & Medicaid Services. ERISA requires plans to provide participants with plan information including important information . 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. may have jurisdiction over a health care provider receiving Medicare reimbursements if the health care provider also holds a separate covered federal contract or subcontract. A federal government website managed and paid for by the U.S. Centers for Medicare & Medicaid Services. Have you ever seen a section in a contract that reads something like this? 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, some businesses or organizations that do not independently hold Government contracts/subcontracts may still be covered under the laws enforced by OFCCP if they are considered a "single entity" with a related business or organization that holds such contracts. All rights reserved. Colorado is another state that is taking merger control into its own hands. In order to be eligible for the VAHBP Moratorium, the entity must hold an agreement (prime or subcontract) to provide services or supplies to VAHBP beneficiaries and hold no other covered agreements. Executive Order 11246, as amended (Executive Order) implementing regulations at 41 CFR 60-1.40(a) and 41 CFR 60-2.1(b) state, in relevant part, that any nonconstruction (Supply and Service) contractor that serves as a depository of government funds in any amount or a financial institution which is an issuing and paying agent for U.S. saving bonds and saving notes in any amount must develop an affirmative action program. 0000035585 00000 n Which entity has jurisdiction over health care coverage providers? The HSR Act thresholds are adjusted annually and transactions and for which no exemptions apply must file a notification with the antitrust agencies and wait 30 days after making this submission before closing. Generally speaking, any business or organization that: Yes, if the contracts meet the threshold for coverage. 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. 14-168(d). She represents clients in the healthcare industry on a full range of antitrust matters, including provider affiliations and acquisitions, contract negotiations between health systems and payors, litigation against competitors, and advocacy before federal and state enforcement agencies. Understanding these tools and the trend will allow healthcare entities and their counsel to better estimate their deal timelines and better prepare for and predict state intervention. The purpose of the HSR Act is to allow federal authorities an opportunity to review, in advance of closing, transactions exceeding a certain size in order to determine whether they might adversely affect competition. .manual-search ul.usa-list li {max-width:100%;} .table thead th {background-color:#f1f1f1;color:#222;} The following states have notified CMS that they do not have the authority to enforce or are not otherwise enforcing the Affordable Care Act market reform provisions. The Section 503 regulations define a government contract as "any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services." lock 0000004738 00000 n The implementing regulations for VEVRAA and Section 503, found at 41 CFR 60-300.2 and 41 CFR 60-741.2, respectively, also define a government contract as any agreement or agreement modification between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. P.A. See 41 CFR 60-1.5(a)(3), 60-300.4(a)(3), 60-741.4(a)(3). A. Employment-related group health plans may be either "insured" (purchasing insurance from an issuer in the group market) or "self-funded." .h1 {font-family:'Merriweather';font-weight:700;} If you have any doubts about your entitys status, be sure to ask your Brouse attorney for assistance in evaluating whether you need to comply with affirmative action requirements. An entity to which individuals and small businesses can have access to affordable health coverage. Accordingly, non-Federal governmental plans are subject to the provisions of Part A of title XXVII of the PHS Act, including any changes made by the ACA. Moreover, given the countrys focus on access to and the affordability of healthcare, it would not be surprising if other states attempt to enact antitrust legislation targeting healthcare affiliations. Health Care Clearinghousesentities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa. My company has contracts with the U.S. Department of Veterans Affairs to provide non-medical services. 0000012185 00000 n trailer << /Size 110 /Info 60 0 R /Root 63 0 R /Prev 113598 /ID[<316761acfb838f940b729f6e746b7375><0433f655088ef2546be3616a7ff69e33>] >> startxref 0 %%EOF 63 0 obj << /Type /Catalog /Pages 59 0 R /Metadata 61 0 R /PageLabels 58 0 R >> endobj 108 0 obj << /S 360 /L 533 /Filter /FlateDecode /Length 109 0 R >> stream The same holds true under Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA). Prior to enactment of the Affordable Care Act, sponsors of self-funded, non-Federal governmental plans were permitted to elect to exempt those plans from, or opt out of, certain provisions of the Public Health Service (PHS) Act. Potential covered contracts or subcontracts may include contracts related to Medicare Advantage (Part C) or Part D programs. An official website of the United States government. However, these time frames could be extended if the attorney general decided to hold a public meeting about the transaction or if the parties substantially changed the deal.24 Parties could appeal the attorney generals determination to deny approval for a transaction via writ of mandate to a California superior court.25 An agency within the U.S. Department of Labor, 200 Constitution Ave NW An official website of the United States government Which entity has jurisdiction over health care coverage providers? 7500 Security Boulevard, Baltimore, MD 21244, An official website of the United States government, Self-Funded, Non-Federal Governmental Plans, In-Person Assistance in the Health Insurance Marketplaces, The Mental Health Parity and Addiction Equity Act (MHPAEA), Information Related to COVID19 Individual and Small Group Market Insurance Coverage, FAQs on Essential Health Benefits Coverage and the Coronavirus (COVID-19), FAQs on Catastrophic Plan Coverage and the Coronavirus Disease 2019 (COVID-19), FAQs on Availability and Usage of Telehealth Services through Private Health Insurance Coverage in Response to Coronavirus Disease 2019 (COVID-19), Payment and Grace Period Flexibilities Associated with the COVID-19 National Emergency, FAQs on Prescription Drugs and the Coronavirus Disease 2019 (COVID-19) for Issuers Offering Health Insurance Coverage in the Individual and Small Group Markets, FAQs about Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act Implementation, Postponement of 2019 Benefit Year HHS-operated Risk Adjustment Data Validation (HHS-RADV). Notice of appointment must be submitted to the Commissioner. 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. SB 977 required the California attorney general to reject a transaction if the parties failed to show that it will result in a substantial likelihood of clinical integration, a substantial likelihood of increasing or maintaining the availability and access of services to an underserved population, or both.21 Even if the parties demonstrated clinical integration and increased access, the legislation gave the attorney general the discretion to reject a transaction if there was a substantial likelihood that the transaction would lead to anticompetitive effects, such as increased prices, diminished quality or access, and reduced choice, that outweigh any benefits of a substantial likelihood of clinical integration or an increase or maintenance of services to an underserved population. Share sensitive information only on official, secure websites. At any time, a state that is willing and able may assume enforcement authority of the Affordable Care Act market reform standards. The term "nonpersonal services" includes, but is not limited to, the following services: This definition thus explicitly includes agreements for insurance. Oklahoma 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. CMS has responsibility for enforcing these requirements in a state that is not enforcing the health insurance market reforms either through a collaborative arrangement with the state or by direct enforcement to ensure all residents of the state receive the protections of the Affordable Care Act.

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