Health Care Law Blog

In a 3-2 vote along party lines on April 23, 2024, the U.S. Federal Trade Commission (FTC) approved and issued a final rule to take effect in 120 days prohibiting most noncompete agreements between employers and workers. The Commission says the new regulations will ensure that American workers have the freedom to pursue a new job, start a new business or introduce a new product or service to the market.

See the full, original article here: FTC Prohibits Most Noncompete Agreements | U.S. Workers | Legal Challenges Expected: Foster Swift

The Current Context

The novel Coronavirus (“COVID-19”), now classified as a full blown pandemic by the World Health Organization, is projected to continue spreading across Michigan and the United States over the next few months. In less than a month, the global number of confirmed COVID-19 cases has tripled from about 75,000 cases on February 20, 2020, to more than a quarter million cases as of Friday, March 20. 

The U.S. Department of Labor (DOL) recently issued final regulations that expanded the availability of association health plans ("AHPs").

Late in the afternoon on March 6, two committees of the U.S. House of Representatives introduced legislation that would replace and repeal significant portions of the Patient Protection and Affordable Care Act, also known as the ACA or Obamacare. The new legislation, titled the American Health Care Act, addresses a number of key complaints that have been raised by employers since the ACA's implementation. Several provisions of the new legislation that are of particular interest to employers are described briefly below.

Michigan legislators Gretchen Whitmer (D- East Lansing) and Gretchen Driskell (D-Saline) plan to introduce a bill in the Senate and House this week entitled the "Reproductive Health Coverage Information Act," which would require employers to provide both prospective and current employees with information about health insurance coverage relating to reproductive health.

A recent decision by the Michigan Court of Appeals holds that a health facility or agency can be sued for taking or threatening disciplinary action against an employee for reporting or intending to report malpractice by a health professional. Employers should carefully review existing policies and practices, or if necessary, adopt appropriate policies, to protect against potential wrongful termination lawsuits.

Is it the end of the Michigan Marriage Amendment?

In the court case Deboer v Snyder, a federal court judge ruled that the voter-approved Michigan Marriage Amendment prohibiting same-sex couples from marrying in Michigan was unconstitutional. However, the Sixth Circuit Court of Appeals stayed the federal trial court ruling in Deboer v Snyder as the State of Michigan prepares to appeal the decision.

So, what does this mean for health care insurers? This means that the Michigan Marriage Amendment banning same-sex marriage remains the law in Michigan until the Sixth Circuit decides the State of Michigan's appeal of the Deboer ruling.  However, insurers will want to keep an eye on this case to determine if they should offer same-sex health insurance benefits or change their definitions of spouse under their plans.

While originally scheduled to start in 2014, now beginning in 2015, "large employers" will be required to provide adequate health care coverage to their full time employees or pay a penalty. This requirement is known as health care reform’s Employer Mandate. In order to assess whether your company is subject to the Employer Mandate, you must first determine whether your company is a "large employer."

On July 2, 2013, the Obama administration declared that it was delaying the effective date of the Patient Protection and Affordable Care Act’s Employer Mandate until January 1, 2015. The Employer Mandate, which was scheduled to become effective on January 1, 2014, required all large employers to offer health care coverage to their full-time employees or pay a penalty. Most importantly, this delay means that the penalties to large employers for failure to provide health insurance coverage will not be enforced for another year. You may read the full statement issued by the U.S. Department of Treasury here.

California is the only state in the country that has mandated nurse-to-patient ratio requirements for hospitals. If the Michigan Nurses Association and Democratic lawmakers are successful in their current legislative efforts, Michigan will be the second.

House Bill 4311 and Senate Bill 228 are identical bills recently introduced in each chamber by Representative Jon Switalski and Senator Rebekah Warren, respectively. The proposed legislation would require hospitals, including state-owned hospitals and state-owned facilities, to develop staffing plans that provide “sufficient, appropriately qualified nursing staff…in order to meet the individualized needs” of patients.

Significant provisions of the legislation include the following:

Michigan’s Right to Work legislation (“Legislation”) was signed into law by Governor Synder on December 12, 2012.  The Legislation will become effective on the 91^st day following the final adjournment of the 2012 regular session of the Michigan legislature (December 27, 2012). Unions are attempting to either renew or extend current collective bargaining agreements (“CBAs”) prior to the Legislation becoming effective, in an effort to avoid impact that the Legislation would have on union dues and participation.

In 2008, the Michigan Supreme Court concluded that domestic partnership policies intended to provide health care benefits to same sex couples violated Michigan law.  Specifically, National Pride at Work v Governor held that such policies violated the Michigan Marriage Amendment (“Marriage Amendment”) by recognizing same sex domestic partnerships as analogous to a marriage or similar union.  (The Marriage Amendment recognizes the union of one man and one woman as the only agreement recognized as a marriage and also prohibits public employers from providing health insurance benefits to their employees' same-sex domestic partners.)

As President Obama moves into his second term, health care reform moves forward with him. Wholesale repeal of the Patient Protection and Affordable Care Act (PPACA) now seems highly unlikely. With the majority of the PPACA provisions slated to go into effect in 2014, employers need to be ready.

Foster Swift has developed guides to aid employers with their preparation efforts. Click the links below to download these guides.

Documents updated 07-12-2013

If you have any questions regarding health care reform, please contact a member of the Foster Swift Health Care Law Group.

On October 11, 2012, the Lansing Regional Chamber of Commerce hosted its annual Healthcare Forum.  A half-day event, the Healthcare Forum brings together mid-Michigan leaders in the health care industry to provide updates on the latest issues.  This year’s forum, titled “Countdown to 2014 – The Tools to Conform to Healthcare Reform,” drew nearly 100 attendees and featured topics including:

Curiously, traditional registered nurses ("RNs"), excepting Canadian and Mexican RNs under NAFTA, lack a general temporary visa category to work in the United States. While there are favorable provisions for an RN to obtain permanent resident status (a “Green Card”) based upon employment, the lengthy eligibility wait time for the permanent visa category limits the practical usefulness of these provisions in many cases. Currently, temporary visa options for nurses are limited to the following.

With the United States Supreme Court having ruled that nearly all of the provisions in the Patient Protection and Affordable Care Act (“PPACA”) are constitutional, employers are legally obligated to comply with PPACA's requirements. One such requirement of particular interest to employers is the employee health insurance exchange notice requirement.

For health care managers, there are a number of available options and strategies to consider when planning for retirement.  In addition to traditional employer plans, an exempt health care provider may also offer supplemental plan options to its managers and highly compensated employees.  Taking advantage of such benefits may prove to be a wise investment decision for health care managers.

Foster Swift health care law attorney, Johanna Novak, was recently interviewed on Michigan Business Network radio concerning the United States Supreme Court's long-anticipated decision on the Patient Protection and Affordable Care Act (the "Act").  The interview aired on July 6, 2012, and was separated into two parts.  Podcasts for both parts of Johanna's interview can be accessed here.

Today, the United States Supreme Court released its highly anticipated opinion regarding the constitutional challenges to the Patient Protection and Affordable Care Act (the "Act"). The Court ultimately concluded that the Act was constitutional, but it did not grant a complete victory to the government.  The Court also held that the federal government may not withhold all Medicaid funds from States that fail to comply with the expansion of Medicaid provisions of the Act.  Instead, the federal government may only withhold new Medicaid funds from States that do not comply.

Previously, the Foster Swift Health Care Law Blog notified you of an NLRB requirement for employers to display notices about employees' rights to organize a union.  The notice requirement was delayed, and employers were not required to post the notice until April 30, 2012.  On April 17, 2012, the United States Court of Appeals for the District of Columbia granted an emergency motion for injunction pending appeal and for expedited consideration related to the notice requirement.  This was discussed in Foster Swift’s recent Employment, Labor & Benefits E-News.  In particular, it is important to note that this court's decision means that employers are not required to post the notice until the court rules on the NLRB's authority to promulgate such a requirement.  Oral arguments on this issue are expected to occur in September, 2012.  Foster Swift's Employment, Labor & Benefits E-News and Health Care Law Blog will keep you posted on this issue.

Recently, health care organizations have been inquiring about employment tax issues, and more specifically, the proper tax classification of their workers.  Questions include whether to classify medical directors, such as hospice medical directors, as employees versus independent contractors.

The Departments of the Treasury, Labor and Health and Human Services (collectively, the "Departments") recently published the final regulation (the "Regulation") with regard to the Summary of Benefits and Coverage ("SBC") requirements under the Patient Protection and Affordable Care Act ("PPACA").  The Regulation implements certain disclosure requirements in order to help individuals and health plans better understand their medical coverage as well as other coverage options.  Many liken the SBC to the summary plan description for retirement plans.

The Office of Inspector General ("OIG") for the Department of Health and Human Services recently issued an alert, which warned that “physicians who reassign their right to bill the Medicare program and receive Medicare payments by executing the CMS-855R application may be liable for false claims submitted by entities to which they reassigned their Medicare benefits.”  The OIG stressed that physicians remain liable for claims submitted using their provider numbers, even when the claims for services are submitted by another party under a contractual arrangement.  The potential for liability also exists for other types of practitioners who enter into reassignment agreements.

In our November 22, 2011 post entitled "Health Facilities Must Display Notice About Employees' Organizing Rights", we conveyed the National Labor Relations Board's ("NLRB") requirement that health facilities, among others, must post a notice advising those on payroll of their rights to negotiate as a group and join a union.  At that time, the notice was required to be posted by January 31, 2012.  However, the NLRB has further delayed the effective date of the required posting until April 30, 2012.  The NLRB agreed to this postponement because of a request by a federal court in Washington D.C. that is currently reviewing a legal challenge to this requirement.  While the implementation date may have been delayed, employers should prepare for the April 30^th deadline.  For more information on the mandatory contents of the required posting, please review our November 22 post.

A recent case highlights why a plan sponsor must use caution when agreeing to provide COBRA coverage that extends beyond the maximum COBRA coverage period.  The court in Bekaert Corporation v. Standard Security Life Insurance Company of New York, 2011 WL 3568028 (N.D. Ohio) recently held that an employer who offered extended COBRA coverage pursuant to a separation agreement with a particular employee was not entitled to stop-loss coverage.  In Bekaert,a retiree received extended COBRA continuation health coverage pursuant to a separation agreement with the employer.  The retiree's medical claims were paid under the employer's self-funded health plan and then were submitted for reimbursement under the employer's stop-loss policy as excess loss claims.  The stop-loss carrier denied the claims, stating the retiree was not a covered person under the stop-loss policy.

The NLRB has decreed that, starting on January 31, 2012, health facilities must post a notice informing those on payroll of their rights to negotiate as a group and join a union…but stay tuned.

Currently, the notice is required to list:

• the rights that an employee has under the National Labor Relations Act ("NLRA");
• what is illegal for an employer to do under the NLRA;
• what is illegal for a union to do under the NLRA; and
• what to do if there has been a violation of rights under the NLRA.

The NLRB has copies of a sample notice available.  The notice may be printed on multiple pieces of paper, but it must be 11-by-17-inches in size and placed in a conspicuous location. The National Labor Relations Board (the "NLRB") finalized its rule requiring this notice in the August 30, 2011 federal register.

The 4^th Circuit Court of Appeals has issued two opinions related to the Patient Protection and Affordable Care Act ("PPACA"), also commonly referred to as Health Care Reform.  What is interesting in these two decisions is that the appellate court refrains from ruling on the constitutionality of PPACA.  Instead, it does not even address the issue because it found adequate grounds to dismiss both cases based on lack of jurisdiction.

Small employers may soon expect to see provisions in their health plan policies requiring them to make minimum contributions to their employees' premiums as a result of a recent Michigan Supreme Court decision. On May 17, 2011, the Supreme Court of Michigan rendered a decision interpreting a provision in the Small Group Health Coverage Act (the "Act"), a law that requires every insurance carrier wishing to provide health care benefits to small employers in Michigan to offer all of its small-employer health plans to all small employers. MCL 500.3701 et. seq.

A recent decision by the Michigan Court of Appeals imposes a substantial obstacle to enforcing contracts that prohibit physicians from soliciting or servicing patients after leaving employment or separating from a practice. Steiner v Bonanni (decided April 7, 2011).