News and Insights

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Written By: Kylie E. Mote

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.

Written by: Chelsea Gulinson

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:

  • What does the IFC change for physician and practitioner billing?

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.

  • What are the changes to supervision?

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.

  • When do the changes on supervision take effect and for how long?

The supervision changes are effective March 1, 2020 and last for the duration of the national COVID-19 Public Health Emergency (PHE).

  • Can residents furnish telehealth services?

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.

  • Does Medicare pay for a doctor or NPP to furnish care in a beneficiary’s home?

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.

  • Can a “distant site practitioner” furnish Medicare telehealth services from their home?  Or do they have to be in a medical facility?

There are no payment restrictions on distant site practitioners furnishing Medicare telehealth services from their home during the PHE.

  • The ambulatory surgical center (ASC) in my community has recently converted to a hospital under unique provisions available during the PHE and my medical group has been contracted to provide care there.  If clinicians from our medical group furnish covered professional services to Medicare beneficiaries at the ASC-turned-Hospital, can we bill Medicare for non-surgical services?

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.

  • My medical group is contracted to provide care at a local hospital.  The hospital has built a tent, transitioned a gymnasium, or converted another non-clinical location into a space to provide patient care.  If clinicians from our medical group furnish covered professional services to Medicare beneficiaries at those new patient care locations, can we bill Medicare?

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.

  • The state, Army Corps of Engineers, or other governmental entity established a new care location in our area by repurposing and retrofitting a convention center, gymnasium, or other site for patient care.  My medical group has been asked to provide patient care in one of these locations.  Can we bill Medicare for covered professional services furnished in these locations?  If so, are there reporting or billing rules that determine how this is done?

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.

Written by: Bryan S. Bailey and Robert J. Milligan

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:

  • Extends the term of PPP loans from 2 years to at least 5 years, for loans made after the effective date of the Bill; as to loans made prior to the effective date, the Bill permits lenders and borrowers to agree to modify the maturity terms of their loans;
  • Extends the maximum “covered period” during which a borrower can use its PPP loan for forgivable purposes from 8 weeks to the earlier of 24 weeks from the loan origination date, or December 31, 2020; for loans originated prior to the effective date of the Bill, borrowers who wish to retain the original 8 week covered period are free to do so;
  • Provides that loan forgiveness will be available to borrowers who use at least 60% of the loan proceeds for payroll (down from 75%) and use at least 40% for rent, utilities and mortgage interest payments (up from 25%);
  • Extends the period in which a borrower may rehire employees or reverse a reduction in employment, salary, or wages in order to avoid a reduction in the forgivable amount of the loan, from June 30, 2020 to December 31, 2020;
  • Provides that the forgivable amount of the loan will not be reduced as a result in a reduction in the number of a borrower’s employees if the borrower is (1) unable to rehire former employees and is unable to hire similarly qualified employees, or (2) unable to return to the same level of business activity, as existed prior to February 15, 2020, due to compliance with federal requirements or guidance related to COVID-19;
  • Extends the payment deferral period, from 6 months to the date on which the applicable borrower’s amount of forgiveness is determined; this means that each borrower’s deferral period will be based on the date on which the borrower applies for forgiveness.  However, if a borrower does not apply for forgiveness, the borrower’s payment obligation will start 10 months after the borrower’s “covered period” (the 24-week period beginning on the origination date of the loan) expires; and
  • Eliminates a provision that made borrowers ineligible for payroll tax payment deferrals if the borrowers’ PPP loans are subject to forgiveness.

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:
https://milliganlawless.com/cares-act-paycheckprotectionprogram

https://milliganlawless.com/update-cares-act-provider-relief-fund/

https://milliganlawless.com/cms-offers-financial-relief

https://milliganlawless.com/cares-act-provider-relief-fund-distributions

https://milliganlawless.com/update-cares-act-provider-relief-fund