A person compensated for transacting insurance on behalf of another person with an insurer. Non-Federal governmental plans are not regulated the same way as insurance companies or private employer health plans. 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. The basics: All contractors and subcontractors of the federal government must comply with legal requirements regarding affirmative action and non-discrimination. 2. If a business or organization has a Federal contract, subcontract, or federally assisted construction contract it may be subject to the requirements of Executive Order 11246. 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. 0000024410 00000 n Similarly, consumers will continue to contact the state for inquiries and complaints relating to the health insurance market reform requirements. 1980). Even if states do not have premerger notification requirements, they still can challenge transactions. 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. In California, the elderly can receive information about health related issues from? Long-term care is covered by Medicare Part C. 15 U.S.C. 20-115.Department jurisdiction over certain health care providers; exception; examination; disclosure. What if my health care entity does fall under the jurisdiction of OFCCP? 0000048160 00000 n .usa-footer .grid-container {padding-left: 30px!important;} https:// 2023 Brouse McDowell. 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. Pre-ERISA Legislation Initially, the IRS was the primary regulator of private pension plans. 0000017602 00000 n .gov Colorado is another state that is taking merger control into its own hands. 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. Evidently not satisfied with the way in which the courts and federal enforcement agencies have applied Section 2 of the Sherman Act and seeking more expansive enforcement power over unilateral conduct, the proposed amendments include an ambiguous prohibition against activities of dominant firms that might be considered abus[ive]. Specifically, the amendments would make it unlawful under state law: for any person or persons with a dominant position in the conduct of any business, trade or commerce or in the furnishing of any service in this state to abuse that dominant position.34. 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 /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. {{currentYear}} American Bar Association, all rights reserved. 0000018777 00000 n 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 Even if the parties carry their burden of demonstrating such benefits, the attorney general would still have the discretion to deny his or her consent if he or she finds there is a substantial likelihood of anticompetitive effects that outweigh the benefits of anticipated clinical integration and/or increased services to an underserved population. My company has contracts with the U.S. Department of Veterans Affairs to provide non-medical services. An agency within the U.S. Department of Labor, 200 Constitution Ave NW .manual-search-block #edit-actions--2 {order:2;} This antitrust safety zone will not apply if that hospital is less than 5 years old. Statements of Antitrust Enforcement Policy in Health Care. Health Insurance Counseling and Advocacy Program (HiCAP). P.A. 1-888-4LA-CARE (1-888-452-2273)Provider Information. When selling a long term care insurance rider to an applicant, a life agent must take into consideration all of these factors, EXCEPT. 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. 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. State Flexibility Cycle I and II Grants will provide States with the opportunity to ensure their laws, regulations, and procedures are in line with Federal requirements, and enhance the States ability to effectively regulate their respective health insurance markets through innovative measures that support the pre-selected market reforms and consumer protections under Part A of Title XXVII of the Public Health Service (PHS Act). Financial institutions with federal share and deposit insurance are considered to be government contractors within the meaning of the regulations implementing Executive Order 11246, as amended (Executive Order); Section 503 of the Rehabilitation Act of 1973, as amended (Section 503); and the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, 38 U.S.C. Dennie Zastrowis an Associate in the Business Litigation practice group at Troutman Pepper. He represents clients in antitrust class action, consumer protection, and breach of contract litigations in federal and state court. He also counsels clients on the HSR Act. He can be reached atdennie.zastrow@troutman.com. Press Release from the California Office of the Attorney General, SB 977, at 1190.25(a). 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. 41 CFR 60-741.40(a). 12 The healthcare material change notice requirement applies when (1) both parties are Washington entities or (2) one party is a Washington entity and the other is an out-of-state entity that generates $10 million or more in revenue from healthcare services for patients residing in Washington.13 Transactions meeting these criteria must be reported regardless of size. Which entity has jurisdiction over health care coverage providers? .paragraph--type--html-table .ts-cell-content {max-width: 100%;} Those entities involved in healthcare-related deals not only need to understand their obligations and risks under the federal antitrust laws but also how involvement by state enforcers may affect their transactions. Dennie Zastrow is an Associate in the Business Litigation practice group at Troutman Pepper. Stat. Local Coverage Determinations are administered by whom? 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 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)? What is required after a life agent sells an insurance policy to an applicant without being appointed by the insurer? As part of its contract with the plan and typically required by state law, the in-network provider agrees not to charge the plan or enrollee more than the negotiated rate. Generally speaking, any business or organization that: Yes, if the contracts meet the threshold for coverage. Is a hospital or other health care provider covered under the laws enforced by OFCCP as a result of the reimbursements it receives for medical care and services provided to Medicare or Medicaid patients? If your entity is not subject to affirmative action requirements, make sure you dont inadvertently agree to comply in any contract you may have with a federal contractor. The website for the Connecticut attorney general provides an Excel form and instructions for the submission. The term "nonpersonal services" includes, but is not limited to, the following services: This definition thus explicitly includes agreements for insurance. 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. #block-googletagmanagerfooter .field { padding-bottom:0 !important; } For example, a hospital may be a covered contractor as a result of a contract with the Department of Veterans Affairs or the Department of Defense requiring the provision of medical services to active or retired military personnel. 42 U.S.C. 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. 0000017052 00000 n Official websites use .govA 14-168(d). .h1 {font-family:'Merriweather';font-weight:700;} Covered entities taking reasonable steps to limit use or disclosure of PHI . This election was authorized under section 2721(b)(2) of the PHS Act, which is now designated as section 2722(a)(2) of the PHS Act (42 USC 300gg-21(a)(2)). Section 2 of the Sherman Act makes it illegal for an entity to monopolize, attempt to monopolize, or conspire to monopolize any market. 0000013829 00000 n When that happens, CMS will work with the state to ensure an effective transition. Under the federal merger control regime, both the FTC and DOJ Antitrust Division have the authority to investigate and challenge mergers. -Medicare is primarily funded by Federal payroll and self-employment taxes. 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. 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. HlW$5|y~8N3|-oOU93-.?G9b?w]vg,TTTu_>z#:HOTH%SO>cavF^OvK>R$l]aSbgu?sVdYpv|C}`,Z#MH#}-^U"} $sF'tq7i!G?>:835^27LX p.usa-alert__text {margin-bottom:0!important;} 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. /*-->*/. 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. 18116. How is an agent's first year commission calculated for a replacement long-term policy? The .gov means its official. Is an insurance company that supplies workers compensation insurance to a federal contractor subject to the requirements of Executive Order 11246? 0000018799 00000 n Accordingly, if your business or organization became a fund depository or an issuing and paying agent for savings bonds and notes on or after December 1, 2003, it would also be subject to the written AAP requirement under VEVRAA if the contract is for $150,000 or more. %PDF-1.4 % 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. The Affordable Care Act made a number of changes, with the result that sponsors of self-funded, non-Federal governmental plans can no longer opt out of as many requirements of Title XXVII. Insurer What type of license is required for an individual who charges a fee to review an insured's existing life insurance policy? 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. We dont do any government work here. which entity has jurisdiction over health care coverage providers 131E-176 (13) that has an electronic health Covered Entities for purposes of HIPAA include health care providers who submit claims using electronic "standard transactions" as well as health plans and health care clearinghouses. .table thead th {background-color:#f1f1f1;color:#222;} 00-234, (January 31, 2003), which involved the question of whether the hospital was covered under the laws enforced by OFCCP by virtue of its agreement with an insurance carrier that had contracted with the U.S. Office of Personnel Management (OPM) to provide federal employees a fee-for-services health benefits insurance policy. What is reinsurance example? 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. Whether to voluntarily notify state enforcers. Given the importance and rising costs of healthcare as well as a concern about whether federal authorities have the same interests and incentives to enforce the antitrust laws, recently states have taken actions to be better informed about, challenge, or prevent healthcare affiliations. Importantly, however, even if a merger is not reportable under the HSR Act, the federal antitrust regulators still can become aware of (via customer complaints, news reports, trade publications, and the like), investigate, and challenge the transaction. ERISA. As such, these entities may qualify for these two exceptions to OFCCP coverage for specific types of health care providers. Although self-funded, non-Federal governmental plans may still opt out of certain provisions of the PHS Act, they are not exempt from other requirements of the law including the restrictions on annual limits and other provisions of the Patients Bill of Rights. Part 60-1.4(a), 41 C.F.R. 0000035742 00000 n Washington alleged that the transactions combined the largest primary care and orthopedic service providers, resulting in reduced choice and higher prices for consumers. On March 20, 2020, Governor Jared Polis of Colorado signed SB20-064 into law.30 The legislation repealed Colo. Rev. Is my company covered by the Scheduling Moratorium for Veterans Affairs Health Benefits Program (VAHBP) Providers? Overseeing the insurance industry and protecting the state's insurance consumers is the responsibility of the California Department of Insurance (CDI). Therefore, federal contractors in the State of California must comply with the Executive Order and its affirmative action requirements. The implementing regulations for Executive Order 11246 at 41 CFR 60-1.3, for VEVRAA at 41 CFR 60-300.2 and for Section 503 at 41 CFR 60-741.2, consistently 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. 62 0 obj << /Linearized 1 /O 64 /H [ 1401 579 ] /L 114966 /E 50989 /N 8 /T 113608 >> endobj xref 62 48 0000000016 00000 n 0000017659 00000 n Currently, the size-of-transaction threshold is $94 million. 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 lock Overseeing the insurance industry and protecting the state's insurance consumers is the responsibility of the California Department of Insurance (CDI). 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. 0000045440 00000 n The same regulations generally define a government subcontract as any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee) for the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts; or under which any portion of the contractors obligation under any one or more contracts is performed, undertaken or assumed. 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. 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. What is Medi? 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 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. 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. He can be reached at dennie.zastrow@troutman.com. Currently, the Donnelly Act prohibits only anticompetitive activities from agreements or conspiracies, like federal laws Section 1 of the Sherman Act. It is unclear what would constitute a dominant position under the proposed statute. As such, these entities may qualify for these two exceptions to OFCCP coverage for specific types of health care providers. 0000008002 00000 n 0000035585 00000 n Before sharing sensitive information, make sure youre on a federal government site. Nonetheless, OFCCP has not conceded jurisdiction over healthcare providers that participate in TRICARE and FEHBP networks. A federal government website managed and paid for by the U.S. Centers for Medicare & Medicaid Services. 0000001308 00000 n The legislation only applies to mergers commenced on or after the applicable effective date of this act.31 No, as a federal contractor in the State of California you will still need to meet the requirements of Executive Order 11246. Employment-related group health plans may be either "insured" (purchasing insurance from an issuer in the group market) or "self-funded." lock Brouse McDowell, A Legal Professional Association. For questions and concerns regarding non-Federal governmental plans, please e-mail NonFed@cms.hhs.gov.