North America

DOJ’s Recent Telehealth Enforcement Action Highlights Increased Abuse of COVID-19 Waivers

On May 26, 2021, the Department of Justice (“DOJ”) announced a coordinated law enforcement action against 14 telehealth executives, physicians, marketers, and healthcare business owners for their alleged fraudulent COVID-19 related Medicare claims resulting in over $143 million in false billing.[1] This coordinated effort highlights the increased scrutiny telehealth providers are facing as rapid expansion efforts due to COVID-19 shape industry standards.

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EXTENSION OF THE CANADA EMERGENCY RENT SUBSIDY AND RELATED MORATORIUM

The Canada Emergency Commercial Rent Assistance (“CECRA“) program expired on January 31, 2021,1 and the moratorium on eviction and distress rights of landlords against commercial tenants under the program along with it. However, the Canada Emergency Rent Subsidy (“CERS“) program, enacted under Bill 229 on December 17, 2020, O Reg 763/202 also includes such a moratorium. A summary of CERS and the current moratorium is contained below:

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NLRB’s Division of Advice Concludes That Employee’s COVID-19 Policy Complaints Are Not Protected Concerted Activity

On June 15, 2021, the Office of General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released an Advice Memorandum, explaining that an Illinois pub did not commit an unfair labor practice when it fired an employee who had previously complained about the pub’s COVID-19 safety policies, because the employee’s complaints did not constitute “protected concerted activity,” as defined under the National Labor Relations Act (“NLRA”). The NLRA protects employees engaged in concerted activity, including participating in union activities and union organizing and other activities that the Board considers to be for their mutual aid and protection. Peter Sung Ohr, since his appointment as the NLRB’s Acting General Counsel following the discharge of his predecessor, Peter Robb, by President Joseph Biden, has taken a far broader view than his predecessors as to the types of subjects to which Section 7 of the NLRA’s protections apply. In the light of the COVID-19 pandemic, however, what constitutes concerted activity remains uncertain. The Advice Memorandum sheds light on how the Board may define concerted activity moving forward in the context of employee responses to COVID-19 workplace policies.

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Federal Court Affirms Hospital’s Mandatory COVID-19 Vaccination Policy

On June 12, 2021, a federal District Court in Texas soundly rejected an attempt by Houston medical workers to challenge the legality of their employer’s decision to require that all employees receive a COVID-19 vaccine. In the lawsuit, Bridges, et al. v. Houston Methodist Hospital et al., 117 hospital workers sued for an injunction to block the hospital’s mandatory vaccination policy as well as the termination of any employee unwilling to comply with the employer’s mandate that all employees be vaccinated against COVID-19. More specifically, the employees asserted that the vaccine mandate would result in wrongful termination in violation of the public policy of the state of Texas and federal law.

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Interoperability and Its Impact on Payors

Only a few days remain before the enforcement delay that the Centers for Medicare & Medicaid Services (CMS) exercised due to COVID-19 will end and the agency will require certain payors to publish a Patient Access application programming interface (“API”) and a Provider Directory API under the requirements of the CMS Interoperability and Patient Access Final Rule. Starting on July 1, 2021, all health plans that offer Medicare Advantage, Medicaid and Children’s Health Insurance Program (CHIP) and most Qualified Health Plans offered through the Federally-facilitated Exchange will be required to make enrollee electronic health information held by the payor and the health plan’s Provider Directory (QHP Issuers on the FFEs are required to make a Provider Directory under a different CMS rule, not under this rule) available through application programming interfaces (“Open APIs”). CMS is also hopeful that when these payors see the benefit of offering easy access for their federally subsidized health care program enrollees to use and exchange their electronic protected health information, the payors will offer the same opportunity for enrollees in their commercial and Employer Sponsored plans.

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Health Cos. Must Prepare For Growing Ransomware Threat

Our colleagues Alaap Shah and Stuart Gerson of Epstein Becker Green have written an Expert Analysis on Law360 that will be of interest to our readers: “Health Cos. Must Prepare for Growing Ransomware Threat.”

The following is an excerpt (see below to download the full version in PDF format):

Ransomware attacks have become big business, and they are on the rise. And entities in the health care and life sciences space have become primary targets of opportunity for attackers.

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Information Blocking – How Did I Become an “Actor”?

The roll out of the Office of the National Coordinator’s (ONC) 21st Century Cures Act Interoperability and Information Blocking Rules is reminiscent of the way HIPAA has rolled out over the course of the past 25 years. As of May 1, 2021, Actors have been required to comply with the Information Blocking rules. However, it will take some time before all Actors know who they are and for complaints of Information Blocking to be determined to be actual instances of Information Blocking, by which time the penalties that have not yet been finalized may also need to be adjusted.

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Case dismissed: Employees lose challenge to mandatory vaccine policy

The issue of mandatory vaccines has been a sensitive one for employers. Although the EEOC cleared the way for employers to mandate vaccines in its Technical Assistance guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, most employers have taken the route of strongly encouraging rather than mandating vaccines.  Now, with the rate of vaccines leveling off, employers are re-thinking that approach.  A Texas federal court’s recent decision dismissing a challenge to an employer’s vaccine requirement may provide just the legal support some employers need to implement a vaccine mandate. Read more…

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OSHA issues emergency temporary standard applicable to healthcare providers

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has announced it will issue an emergency temporary standard (ETS) to protect healthcare workers from contracting coronavirus. Read more…

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U.S. Department of Justice Announces Interagency Task Force to Combat COVID-19 Relief Fraud

On May 17, 2021, the U.S. Department of Justice (“DOJ”) announced the establishment of a COVID-19 Fraud Enforcement Task Force (“Task Force”) to ramp up enforcement efforts against COVID-19-related fraud.[1]

Organized and led by Deputy Attorney General Lisa Monaco, the Task Force convened its first meeting on May 28 and aims to “marshal the resources of the [DOJ] in partnership with agencies across government to enhance enforcement efforts against COVID-19 related fraud.”[2]  The Task Force will involve coordination among several DOJ components, including the Criminal and Civil Divisions, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation.  “Key interagency partners” have also been invited to join the Task Force, including the Department of Labor, the Department of the Treasury, the Department of Homeland Security, the Social Security Administration, the Department of Veterans Affairs, the Food and Drug Administration’s Office of Criminal Investigations, the U.S. Postal Inspection Service, the Small Business Administration, the Special Inspector General for Pandemic Relief, and Pandemic Response Accountability Committee, among others.

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