Liability in False Claims Act (FCA) suits depends on whether a defendant subjectively believed its claims were false, not on whether it can offer an objectively reasonable basis for its claims, the U.S. Supreme Court has held in a unanimous decision authored by Justice Clarence Thomas. U.S. ex. rel. Schutte v. SuperValu Inc., No. 21-1326, together with U.S. ex rel. Proctor v. Safeway, Inc., No. 22-111 (June 1, 2023). Following the Court’s decision, Medicare and Medicaid providers and other federal contractors should practice caution when submitting claims to the U.S. government. Read more.

A bill to amend the state physician non-compete statute (Conn. Gen. Stat. § 20-14p) and to add non-compete protections for advanced practice registered nurses (APRNs) and physician assistants (PAs) has passed the Connecticut legislature. Governor Ned Lamont is expected to sign the bill soon. For physicians, the new law will go into effect July 1, 2023. For APRNs and PAs, the new law will go into effect October 1, 2023. Read more.

The Biden-Harris Administration announced on May 1, 2023, that the Centers for Medicare and Medicaid Services (CMS) would soon be eliminating COVID-19 vaccination requirements for healthcare providers. On May 31, 2023, CMS issued the awaited Final Rule. The Final Rule contains two key changes:

  • Removes testing requirements issued in the September 2, 2020, Interim Final Rule (IFR); and
  • Removes vaccination requirements for healthcare staff as defined in the IFR.

The Final Rule includes ongoing education initiatives, including requiring certain covered providers to provide education around COVID-19 vaccination and offer COVID-19 vaccinations. Read more.

Budgeting remains a critical issue as more hospitals and medical groups merge or become acquired in 2023. Budgeting questions commonly require a comprehensive review of physician compensation agreements.

Ideally, these agreements should be easy to understand. After all, doctors are generally paid by how many wRVUs (or relative work units) they produce. A wRVU is calculated by multiplying the Medicare CPT code assigned to a particular procedure by the number of such procedures to be performed in a specific period. Under one common compensation arrangement, the employer sets a production goal where doctors must generate a certain number of wRVUs each year, which are measured through transaction reports. If a physician exceeds the annual threshold, the employer commonly awards a bonus; who doesn’t like bonuses?

Unfortunately, not every contract is so simple, and unaddressed confusion may lead to strained business relationships and even legal action. Doctors who feel slighted or unappreciated may look for other places to work. Others may believe that they are discriminated against and may seek legal remedies. These issues can largely be avoided by having detailed conversations about compensation and productivity expectations. Here are three ways providers can avoid misunderstandings.

Be clear about how wRVUs are credited – As noted; physicians are commonly evaluated by wRVUs produced. However, the agreement should be clear on whether productivity is measured on CPT codes submitted or codes actually paid. This can make a significant difference because billing delays and reimbursement challenges could lead to inaccurate reflections of productivity. The same could be said if charts are only entered on certain days of the month or times of the year.

Be consistent with reports – Like any industry that relies upon performance metrics, transaction reports are critical in ensuring that physicians are performing to established standards and are compensated accordingly. The compensation agreement should specify when production reports will be provided and also articulate a procedure for challenging inaccuracies.

Promptly notify physicians of coding changes – Most physicians will personally assign the CPT codes for services performed. However, if a coding or documentation issue requires a change, incorporate a prompt notification system. After all, coding directly impacts physician compensation, and discussing this sooner rather than later reduces the chances of additional pay issues.

If you have additional questions about how to avoid or mitigate issues surrounding physician compensation, a Jackson Lewis attorney will be happy to discuss them with you.

The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day. In addition, the Administration announced that the Department of Health and Human Services (HHS) and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border. Read more.

Health data privacy, including in the context of reproductive health, was strengthened last week when Washington Governor Jay Inslee signed the “My Health, My Data Act” on April 27, 2023. Set to take effect on March 31, 2024, the new law aims to address health data collected by entities not covered by the federal Health Insurance Portability and Accountability Act (HIPAA). Read more.

Just three years after passing a statute significantly restricting the enforceability of physician non-compete agreements, Indiana’s legislature has passed an amendment, Senate Enrolled Act No. 7. Senate Enrolled Act No. 7 would invalidate a significantly broader category of physician non-compete agreements on or after July 1, 2023. Governor Eric Holcomb is expected to sign the bill into law. Read more.

Under two amendments to its law regulating consecutive hours of work for nurses (Labor Law Section 167), New York has established monetary penalties for violations of the law and placed reporting requirements and other restrictions on healthcare employers that require nurses to work beyond their regularly scheduled hours. Read more.

With 2023 underway, healthcare organizations continue to prioritize employee retention and recruitment in the face of economic trends impacting the healthcare industry, such as significant staff shortages, employee turnover, a marked increase in healthcare professionals leaving the industry, and rising inflation.

Several healthcare employers throughout the country are increasing employee wages, organization-wide, either of their own accord or to comply with state or local pay laws.

As previously reported, in June 2022, the City of Los Angeles approved an ordinance to raise the minimum wage for certain healthcare workers at privately-owned healthcare facilities within the city to $25 per hour. Several other cities in California followed suit with similar ordinances.

In late fall last year, New York announced significant pay increases and upgraded nursing titles for nurses employed by 15 state agencies. The wage increases vary dependent upon the nurses’ titles and what shifts the nurses work (with night shift employees receiving a larger wage increase), but the changes impacted approximately 6,500 nurses employed by New York state. Such changes were in addition to the geographic pay increases implemented for nurses earlier in the year.

Baltimore-based Life Bridge Health raised the minimum wage from $15 to $16 per hour, effective November 2022. The wage increase will apply to approximately 2,500 positions across the hospital system.

Winston-Salem, North Carolina-based Novant Health raised its minimum wage from $15 to $17 per hour, effective March 3, 2023. The wage increase will apply to more than 4,400 employees across Novant’s 15-hospital system.

Healthcare industry employers who have yet to consider any organization-wide wage increases but who are also experiencing staff shortages, employee turnover, and rising concerns relating to employee retention should be aware of what other organizations are offering to remain competitive in the already-strained healthcare market. Wages are only one important factor impacting employee wellbeing. As workplace trends are also shifting with a renewed focus on mental and behavioral health, healthcare employers may also want to consider offering creative benefits to address employee welfare, retention, and burnout, such as providing employees with access to onsite clinics, population health management services, and/or other wellness programs with an emphasis on mental, financial, and behavioral health. Adopting benefits like this may provide healthcare employers a competitive edge in this dynamic market for talent.

Stay tuned for further updates regarding healthcare workplace trends, and please do not hesitate to contact the Healthcare Group at Jackson Lewis if you wish to discuss these topics.

A significant concern for managers of remote workers is the ability to engage, manage and monitor performance and productivity – and some healthcare employers have turned to technologies like tracking employee keystrokes, capturing screenshots, and on-camera requirements for employees during work hours.

This has caught the attention of the National Labor Relations Board’s General Counsel Jennifer Abruzzo, who recently issued a memorandum seeking to broaden of the National Labor Relations Act (the “Act”) and limit the electronic surveillance of employees.

“An issue of particular concern to [her] is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.” Memorandum GC 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights” (released Oct. 31, 2022).

Under well-established law, an employer can be found to violate Section 8(a)(1) of the Act if it implements new monitoring technologies in response to union and other protected activity, uses existing technologies to discover such protected activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things.

In the memo, GC Abruzzo requests the Board adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts. GC Abruzzo urged the Board to find that employers presumptively violate the Act if their surveillance technology and management practices, as a whole, tend to interfere with or prevent employees from engaging in protected concerted activity. The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the Board would weigh the employer’s interests against its employees’ interests. Even in cases where the employer’s interests outweigh the employees’ interests, the GC would require employers to disclose how employees are being monitored, absent special circumstances. Notably, the scrutiny called for in the memo applies to all employers subject to the Act, not just employers with union-represented workforces.

In addition to the flurry of labor activity in healthcare, this is one more area to keep an eye on as healthcare employers focus on growing and managing remote workforces. Please contact the Jackson Lewis attorney with whom you usually work or a member of our Healthcare Group if you have questions or need additional guidance.