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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:
On April 26, 2020, the Centers for Medicare and Medicaid Services (CMS) suspended Medicare’s Advance Payment Program.
CMS’s Accelerated and Advance Payment Program (AAPP) provides accelerated or advanced payments to Medicare providers and suppliers during national or public health emergencies. These expedited payments help provide funding when circumstances disrupt claim submission and claim processing. Providers and suppliers must meet certain qualifications and submit a request to their Medicare Administrative Contractor to receive accelerated funds. To increase cash flow to medical providers and suppliers amidst the 2019 Novel Coronavirus (COVID-19) pandemic, CMS had expanded the AAPP to a broader category of Medicare Part A providers and Part B suppliers for the duration of the COVID-19 public health emergency.
Congress recently appropriated $100 billion for healthcare providers in the Coronavirus Aid, Relief, and Economic Security (CARES) Act (PL 116-136). Congress also allocated $75 billion for healthcare providers through the Paycheck Protection Program and Health Care Enhancement Act (PL 116-139). The CARES Act Provider Relief Fund, administered by the U.S. Department of Health & Human Services, has released $30 billion to healthcare providers and is actively working to release an additional $20 billion. Additional funding is expected to be released soon after. Congress allocated this funding to help with healthcare-related expenses, lost revenue, and access to healthcare treatment due to the COVID-19 pandemic.
Based on the $175 billion now available for healthcare provider relief payments, and funding available through other programs, CMS announced broad restrictions on AAPP applications and payments. Beginning April 26, 2020, CMS will not accept new applications for AAPP payments and will reevaluate all pending and new applications. In addition, CMS has immediately suspended advanced payments to Part B suppliers.
For more information on the AAPP and other funding options available, please contact Milligan Lawless at 602-792-3500.
Written by James R. Taylor and Andres A. Sanchez
On Friday, April 24, 2020, the United States Department of Health & Human Services (“HHS”) announced the start of the remaining distributions from the $50 Billion General Distribution portion of the Provider Relief Fund. HHS distributed the initial $30 Billion on April 10th and 17th to eligible Medicare providers. Unlike the initial distributions that were sent directly to eligible providers, the remaining $20 Billion will be distributed through an application process, with the goal of a final allocation of all General Distribution funds proportionate to a provider’s share of 2018 net patient revenue.
Although some providers that are subject to cost reporting may automatically receive a second distribution from HHS, most providers will need to apply for the additional funding through the General Distribution Portal, accessible at: https://covid19.linkhealth.com/docusign/#/step/1. The application requires the provider to disclose the following financial information:
Similar to the first distribution, recipients of a second distribution are required to agree to a set of Terms and Conditions. While largely similar to the initial Terms and Conditions, the second batch contains the following additional requirements:
In its announcement, accessible at https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html, HHS issued the following notice to providers:
“The Terms and Conditions also include other measures to help prevent fraud and misuse of the funds. All recipients will be required to submit documents sufficient to ensure that these funds were used for healthcare-related expenses or lost revenue attributable to coronavirus. There will be significant anti-fraud and auditing work done by HHS, including the work of the Office of the Inspector General.”