0000020767 00000 n 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. Department of Insurance HiCap MRMIP California life and health guarantee association Department of Insurance Insurance agents and brokers must make their insurance records available to the commissioner Only during the first month of the year only during the last month of the year Holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount will be subject to requirements under one or more of the laws enforced by OFCCP. /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. Which entity has jurisdiction over health care coverage providers? Compliance Checkup: Affirmative Action: Is your health care entity subject to affirmative action laws. 2. Section 2 of the Sherman Act makes it illegal for an entity to monopolize, attempt to monopolize, or conspire to monopolize any market. Colorado is another state that is taking merger control into its own hands. 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. Stat. 0000008002 00000 n 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. Federal government work is performed in some other division in another state. 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. 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. Hospital, physician, and private equity industry groups, however, opposed the legislation. Press Release from the California Office of the Attorney General, SB 977, at 1190.25(a). 14-168(c) (2014). 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. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} 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 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. On March 20, 2020, Governor Jared Polis of Colorado signed SB20-064 into law.30 The legislation repealed Colo. Rev. lock 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. My company has contracts with the U.S. Department of Veterans Affairs to provide non-medical services. 18. Under the federal merger control regime, both the FTC and DOJ Antitrust Division have the authority to investigate and challenge mergers. Official websites use .govA On July 2, 2020, the Office of Federal Contract Compliance Programs (OFCCP) issued a final rule1 amending its regulations to confirm the agency lacks jurisdiction over health care providers whose sole government contract is based on the providers' participation in TRICARE, ending 13 years of controversy and uncertainty over this issue.BackgroundOFCCP is the agency within the U.S. [Your company] shall abide by the equal employment opportunity and affirmative action requirements set forth in 41 C.F.R. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} 0000004738 00000 n 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. https:// 4212 (VEVRAA). According to the California Insurance Code, who is responsible for submitting a life agent's appointment? The .gov means its official. 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. Similarly, consumers will continue to contact the state for inquiries and complaints relating to the health insurance market reform requirements. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} 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? @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} These states can then use the information gathered from these notifications for their investigative and enforcement functions possibly challenging the transactions. Health Care Market Participants, RCW 19.390, et seq.. Which entity has jurisdiction over health care coverage providers? Which of the following actions is NOT allowed by Health Insurance Counseling and Advocacy Program (HiCAP) counselors? TRICARE OFCCP believes it has jurisdiction over health care providers that participate as TRICARE network providers. We dont do any government work here. Heres how you know. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. 0000002187 00000 n We use cookies on our website. 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. P.A. 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. 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. c^J\o$GP%O4KI/7u51 d .bv Gq KA7P0:Bb:l8!'rY)%n&ecPA\Ma!1Wh%HiQ#dIs|?#Cy@ ,t].mTj 4Z4F tJ 'E4ijO)- qv,x ` ^~S.z7s]X',i,F`+'*ms/(:~G/*)3=@D$v.bLh`CEd-hl2c&QicBIRFj!/lyTTb9%1k+~K@PAnb 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. 0000012163 00000 n ol{list-style-type: decimal;} 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 These three programs enforced by the Office of Federal Contract Compliance Programs (OFCCP) require equal employment opportunity by government contractors. Per SB 977, substantial market power can be shown by either (1) the conduct having a substantial anticompetitive effect, or (2) the health care system having substantial market share in one or more markets (with a system presumed to have substantial market power if it has greater than a 60% share). .usa-footer .grid-container {padding-left: 30px!important;} The vast majority of states are enforcing the Affordable Care Act health insurance market reforms. According to PPACA, what is a health benefits exchange? If a State or local government has Government contracts, is it subject to the requirements of Executive Order 11246? Share sensitive information only on official, secure websites. The implementing regulations for Executive Order at 41 CFR 60-1.3 have consistently defined 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. 0000035664 00000 n Notice of appointment must be submitted to the Commissioner. ( 0000004716 00000 n Washington State Office of the Attorney General Past Cases (last visited Nov. 19, 2020), https://www.atg.wa.gov/past-cases. Is CMS a regulatory agency? 0000002545 00000 n According to the California Insurance Code, how is the word "may" interpreted? Employment-related group health plans may be either "insured" (purchasing insurance from an issuer in the group market) or "self-funded." . 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? This blog is intended to provide information generally and to identify general legal requirements. What is Medicaid? It is unclear what would constitute a dominant position under the proposed statute. Holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000.00; Has federal contract or subcontracts that combined total in excess of $10,000.00 in any 12month period; or. .manual-search-block #edit-actions--2 {order:2;} 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. An in-network provider is a physician, hospital, or other health care provider with whom a health plan has negotiated a payment rate. %PDF-1.4 % .h1 {font-family:'Merriweather';font-weight:700;} For questions and concerns regarding non-Federal governmental plans, please e-mail NonFed@cms.hhs.gov. Specifically, the amendments would add a provision virtually identical to Section 2 of the Sherman Act. This strategy must be considered carefully, but can be beneficial depending on the acquiring providers risk tolerance, market concentration, and the extent and number of competitive overlaps between the affiliating providers. The provider agreements, pursuant to which hospitals and other health care providers receive reimbursement for services covered under Medicare Parts A and B, and the provider agreements that hospitals and other health care facilities have entered into with State Medicaid agencies, are not covered government contracts under the laws enforced by OFCCP. Secure .gov websites use HTTPSA necessary rule applies to. Under 45 CFR 146.145(a), a group health plan means an employee welfare benefit plan to the extent that the plan provides medical care (including items and services paid for as medical care) to employees (including both current and former employees) or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise. Non-Federal governmental plans can operate as self-funded plans, purchase a fully insured group insurance product, or consist of a mixture of self-funded and fully insured options. Such advice should always come from in-house or retained counsel. If a contractor performs work outside of the United States, is it subject to OFCCPs jurisdiction under the authorities it enforces? The Office for Civil Rights (OCR) enforces Section 1557 of the Affordable Care Act (Section 1557), which prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. lock The legislation only applies to mergers commenced on or after the applicable effective date of this act.31 #block-googletagmanagerheader .field { padding-bottom:0 !important; } 0000002523 00000 n 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. 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. Barbara Sicalides is a Partner in the Business Litigation practice group at Troutman Pepper. Instead, the Antitrust Division typically seeks criminal penalties only for agreements between or among competitors to fix prices or allocate customers or markets. 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. Yes. An agency within the U.S. Department of Labor, 200 Constitution Ave NW SB 977, at 1190.25(d). 6-4-107(1). 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. 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. Is an insurance company that supplies workers compensation insurance to a federal contractor subject to the requirements of Executive Order 11246? 0000035742 00000 n A health care entity becomes a federal contractor when it performs services that are used by the federal government, either through a direct contract with a federal government agency or an indirect arrangement with another entity that has a federal contract. An entity to which individuals and small businesses can have access to affordable health coverage. An Act Concerning Notice of Acquisitions, Joint Ventures, Affiliations of Group Medical Practices and Hospital Admissions, Medical Foundations, and Certificates of Need, P.A. https://www.dol.gov/agencies/ofccp/faqs/single-entity-test, Scheduling Moratorium for VAHBP Providers. 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. Pete is a life agent who has misappropriated fiduciary funds to his own use. 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 federal government website managed and paid for by the U.S. Centers for Medicare & Medicaid Services. OFCCP v. Safeco Insurance Co. of America, Secretary of Labors Decision, July 31, 1984. Is a health care provider covered under laws enforced by OFCCP because of reimbursements for services to federal employees, retirees, or their dependents from an insurance carrier that participates in the federal Employee Health Benefits Program (FEHB)? However, in 2015, the FAR implemented an inflationary adjustment for VEVRAA, increasing the threshold amount from $100,000 to $150,000. 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 Which entity has jurisdiction over health care coverage providers? Pre-ERISA Legislation Initially, the IRS was the primary regulator of private pension plans. 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. If your entity is a federal contractor or subcontractor, you must be sure to maintain affirmative action program compliance. lock Daniel Anziksais a Partner in the Business Litigation practice group at Troutman Pepper. 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. He can be reached atdaniel.anziska@troutman.com. 0000016504 00000 n 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. means youve safely connected to the .gov website. Long-term care is covered by Medicare Part C. 0000006386 00000 n 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. According to the California Insurance Code, what is the maximum penalty per violation for anyone who unwillfully commits an unfair method of competition? Likewise, a teaching hospital doing research for a university that has a contract with the federal government may be a covered federal contractor. 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 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. 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. 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. As a reinsurer for the Federal Employees Group Life Insurance (FEGLI) program, are we a federal government subcontractor? 0000007980 00000 n How do I know if my health care entity falls under the jurisdiction of OFCCP? The Affordable Care Act has given Americans new rights and benefits, by helping more children get health coverage, ending lifetime and most annual limits on care, allowing young adults under 26 to stay on their parents' health insurance, and giving patients access to recommended preventive services without cost. 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. 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. The term "nonpersonal services" as used in this section includes fund depository. At any time, a state that is willing and able may assume enforcement authority of the Affordable Care Act market reform standards. 0000015627 00000 n States and CMS have worked closely to ensure compliance with the health insurance accountability and consumer protections in federal law. 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. or Have you ever seen a section in a contract that reads something like this? Stat. Even if states do not have premerger notification requirements, they still can challenge transactions. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. 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. 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. You can decide how often to receive updates. A Member of TAGLaw a Worldwide Alliance of Independent Law Firms. 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. 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. Notably, unlike the federal premerger notification system under the Hart-Scott-Rodino Antitrust Improvements Act (HSR),1 neither the Connecticut nor the Washington statute has a minimum size-of-transaction threshold. Generally speaking, any business or organization that: Yes, if the contracts meet the threshold for coverage. 0000018799 00000 n Part 60-1.4(a), 41 C.F.R. 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. This was the subject of ongoing litigation against a Florida hospital, but in 2014, OFCCP dismissed this case and announced a five-year moratorium for affirmative action enforcement. 15 U.S.C. Californias proposed bill recently died in the legislature, but a new or similar version is likely to be introduced next year. 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. Oklahoma 0000018480 00000 n He represents clients in antitrust class action, consumer protection, and breach of contract litigations in federal and state court. .manual-search ul.usa-list li {max-width:100%;} Under this collaborative approach, if the state finds a potential violation and is unable to obtain voluntary compliance from an issuer, it will refer the matter to CMS for possible enforcement action. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} p.usa-alert__text {margin-bottom:0!important;} Region. The basics: All contractors and subcontractors of the federal government must comply with legal requirements regarding affirmative action and non-discrimination. 0000013829 00000 n Yes. 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. You can decide how often to receive updates. What if my health care entity does fall under the jurisdiction of OFCCP? 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. A. Since the effective date of a transaction can have a myriad of implications (financing, tax, contractual, regulatory, etc. All rights reserved. 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).
