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In a landmark decision issued on June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity. Resolving a longstanding split among federal courts as to whether Title VII’s protections extend to LGBTQ employees, the Court ruled 6-3 that Title VII’s prohibition on sex-based employment discrimination encompasses sexual orientation and gender identity discrimination.
The Basics of Title VII
Title VII of the Civil Rights Act of 1964 is a federal law prohibiting employment discrimination based on race, color, religion, sex, or national origin (i.e., protected classes). The law applies to any public or private sector employer with 15 or more employees, employment agencies, labor unions, and training programs.
Title VII makes it unlawful for employers to discriminate in any aspect of employment, including recruiting, hiring, promoting, training, terminating, and providing benefits. Additionally, Title VII prohibits employers from retaliating against employees for complaining about discrimination, filing a charge of discrimination, and/or participating in an investigation of discrimination or legal proceeding.
The Court’s Decision
The Court’s decision is in response to a trio of consolidated cases (captioned Bostock v. Clayton County) alleging employment discrimination: a child welfare coordinator was fired after his employer learned of his participation in a gay softball league; a skydiving instructor was fired after informing a customer that he is gay; a transgender funeral director was fired after telling her boss about her plans to transition.
In all three cases, the employee asserted unlawful sex discrimination in violation of Title VII. Rejecting an argument by the employers that Title VII only prohibits sex discrimination on the basis of an employee’s status as a male or female, the Court declared that it is impossible for employers to discriminate on the basis of sexual orientation or gender identity without impermissibly discriminating based on sex. Writing for the majority, Justice Neil Gorsuch opined, “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.”
The Court’s full opinion can be accessed here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Takeaways for Employers
Employers should review their employment policies and practices to ensure compliance with the Court’s ruling. Specifically, employers should make certain that their anti-discrimination policies include express language prohibiting discrimination and/or harassment based on sexual orientation and gender identity. Employers should also consider conducting employee training addressing anti-discrimination and harassment policies.
For more information regarding the implications of the Court’s decision, please contact attorneys John Conley or Kylie Mote at (602) 792-3500.
On June 2, 2020, the Centers for Medicare and Medicaid Services (CMS) published updated FAQs related to Medicare Fee-for-Service Billing and COVID-19, and the interim final rule with comment period (IFC), CMS-1744-IFC. These updates supplement CMS’ FAQs on Section 1135 Waivers, released March 15, 2019.
In these FAQs, CMS analyzes provisions from the Coronavirus Aid, Relief, and Economic Security (CARES) Act relevant to payment for COVID-19 testing, billing, diagnostic services, hospital services, rural health clinics, opioid treatment programs, drugs, and vaccines, among other topics.
Of particular interest to physicians are the following FAQs and a brief summary of CMS’ response:
The IFC makes temporary changes to certain policies, such as supervision by a physician or non-physician practitioner (NPP), payment for certain services furnished by teaching physicians and moonlighting residents, telehealth, services furnished by Rural Health Clinics and Federally Qualified Health Centers, and payments to labs for specimen collection.
CMS has revised the definition of “direct supervision” and changed the supervision requirements for hospital outpatient non-surgical extended duration therapeutic services from direct supervision to general supervision.
The supervision changes are effective March 1, 2020 and last for the duration of the national COVID-19 Public Health Emergency (PHE).
Through the interim final rule and for the duration of the PHE, Medicare may pay for services billed by teaching physicians when residents furnish telehealth services to beneficiaries under direct supervision of a teaching physician provided by interactive telecommunications technology.
Yes. Medicare pays for care furnished in a beneficiary’s home, including evaluation and management services, telehealth services, and non-face-to-face services to assess and manage a beneficiary’s condition. In addition, Medicare pays physicians for services furnished in a beneficiary’s home by auxiliary personnel, as long as those services are furnished incident to a physician’s service and with the physician’s appropriate supervision.
There are no payment restrictions on distant site practitioners furnishing Medicare telehealth services from their home during the PHE.
Yes. Practitioners are permitted to bill under Medicare can bill Medicare for covered professional hospital services furnished to beneficiaries at an ASC-turned-Hospital during the PHE.
Yes. Practitioners who bill under Medicare may bill Medicare for covered professional services furnished to patients at temporary expansion sites, such as gymnasiums or other non-clinical locations.
Yes. Practitioners who bill under Medicare may bill Medicare for covered professional services furnished to patients at temporary expansion sites, including those established by the state, Army Corps of Engineers, or other governmental entities. To bill for these services, practitioners would bill under the Medicare Physician Fee Schedule and follow existing billing rules for services provided in hospitals. Practitioners should also add the “CR” modifier to professional claims for care provided in temporary expansion sites.
For full answers to these physician-related and other FAQs, please visit this website: https://www.cms.gov/files/document/03092020-covid-19-faqs-508.pdf. For any other questions or comments, please contact Milligan Lawless at 602-792-3500.
The Payroll Protection Program (“PPP”) continues to be revised in ways that are favorable to physician practices and other small businesses. In May, amidst growing uncertainty about whether businesses that took out loans under the PPP would be subject to second-guessing regarding their certification as to their need for the loans, the SBA and Department of the Treasury determined that any borrower that received a PPP loan of less than $2 million would be deemed to have made the certification in good faith.
Yesterday, the Senate passed the ‘‘Paycheck Protection Program Flexibility Act of 2020 (the “Bill”), which the House had passed previously. The Bill includes several additional improvements to the PPP, from the perspective of small businesses. Among other things, the Bill:
Media reports indicate that President Trump intends to sign the Bill.
The full text of the Bill is available here: https://www.congress.gov/bill/116th-congress/house-bill/7010.
Prior Milligan Lawless reports on the PPP are available here: