Seyfarth Synopsis: Senior providers who submit claims for Medicare and other federally funded programs should take note that the DOJ reaffirmed its commitment to aggressively pursue those who submit false claims to unlawfully gain funds from federal healthcare programs.

The Department of Justice announced that it reached a $145 million settlement with Life Care Centers of America Inc., which owns or operates over 200 nursing facilities, and its owner in resolution of lawsuits alleging that Life Care violated the False Claims Act.  The lawsuits and investigation began after two former Life Care employees filed suit against Life Care under the qui tam, or whistleblower, provisions of the False Claims Act.  The United States government subsequently intervened in both the suits and brought its own action against Life Care’s owner.

Continue Reading DOJ Finalizes Largest Settlement in History Against Nursing Facility

Seyfarth Synopsis: If Donald Trump makes good on his plans to deregulate industry, then some states may assume the regulatory mantle.  To understand the practical implications for the home care industry, one need only look to the expanding list of states to enact domestic workers’ bills of rights. 

For decades, home care agencies classified their care workers as exempt from federal minimum wage and/or overtime requirements under the companionship and live-in domestic service worker exemptions to the Fair Labor Standards Act. Under the Obama administration, the U.S. Department of Labor’s Wage and Hour Division scrutinized the home care industry and, in October 2013, issued its Home Care Final Rule.  That rule, intended to go into effect on January 1, 2015, provides that workers employed by third-party agencies no longer qualify for either exemption.  The Wage and Hour Division began enforcing the new regulations in late 2015, after an unsuccessful challenge to the rule in federal court, and has been in the process of reshaping the industry.

Continue Reading While Trump Administration May Ease Regulatory Burden on Home Care Industry at the National Level, Potential Grows for Accelerated State and Local Activity

Seyfarth Synopsis: The U.S. Department of Labor has filed a lawsuit against several residential group homes seeking more than $2,000,000 in damages for the homes’ alleged failure to properly compensate employees for their on-site sleep time.  The lawsuit is another sign of the agency’s ongoing focus on employers’ compliance with sleep time laws.

The U.S. Department of Labor filed a lawsuit in Texas federal court against the operator of three residential group homes alleging that the employer unlawfully deducted wages from workers’ pay for sleep time.

The DOL is seeking over $1,100,000 in back wages and an equal amount in liquidated damages for scores of direct care workers who allegedly were not paid properly for their sleep time at the residences. The agency has also requested an injunction requiring the group homes to change their practices to comply with the Fair Labor Standards Act in the future. 

Continue Reading Alleged Sleep Time Violations Result in $2.2M DOL Lawsuit Against Residential Group Homes

On September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), an agency under the U.S. Department of Health and Human Services, issued a rule that barred long-term care facilities that receive federal funding from requiring that its residents resolve any dispute in arbitration, rather than in a court of law.  Specifically, this rule required that long-term care facilities must not enter into an agreement for binding arbitration with a resident (or their representative) until after a dispute arises between the parties. Thus, the rule prohibits the use of pre-dispute binding arbitration agreements.  However, on November 7, 2016, U.S. District Judge Michael Mills of the Northern District of Mississippi issued a preliminary injunction blocking enforcement of the CMS rule. The court did not definitively hold the rule unlawful, but found it likely enough that he will ultimately do so that the rule should be blocked pending final adjudication of the challenge to its legality.

Continue Reading Federal Judge Blocks Rule that Barred Arbitration for Long-Term Care Facilities that Receive Federal Funds

Seyfarth Synopsis: Looking for ways to help seniors exercise their right to vote?  Here are a few suggestions.

With the presidential election right around the corner, many people living in nursing homes, assisted living facilities, long-term care facilities, or retirement communities may be wondering exactly how they can have their voices heard at the polls. Many senior citizens do not have the ability to drive to the polls and may find it difficult to participate in the political process because of various registration and identification requirements. Even though turnout rates for seniors have risen over the last decade, there is still much that senior facilities can do to ensure that their residents’ votes are counted.

Continue Reading Rock the Senior Vote

Seyfarth Synopsis: When the time comes for adult children to explore senior living options for their aging parents who may be living abroad, dealing with the immigration system may seem daunting. Senior care providers can offer assistance in reuniting families by providing information and access to resources to help families and residents navigate the immigration process.

Becoming a Lawful Permanent Resident (“Green Card” Holder) Through a U.S. Citizen Child

One of the most common ways people immigrate to the U.S. is through family.  However, there are some family-based green card categories that come with lengthy processing times due to significant backlogs in visa availability–some wait times reach 23 years!

Fortunately, for U.S. citizens who are at least 21 years of age or older, sponsorship for a parent is one of the most streamlined visa processes, as this category does not have a visa backlog or a “wait list” to slow down the application process.

This post is an introduction to the basics of green card processing for a parent of a U.S. citizen through two different paths: Consular Processing (for parents residing abroad) and Adjustment of Status (for parents residing in the U.S.).

Continue Reading Senior Care Providers Can Help Aging Parents of U.S. Citizens Immigrate to the U.S.

Seyfarth Synopsis: An attractive source of lower cost financing, the EB-5 Immigrant Investor program can help fill the capital stack for many senior living projects.  Investors and their families receive green card status in two stages in return for at least a $500,000 investment and the creation of at least 10 direct or indirect jobs per investor.  Two EB-5 programs — the direct and the regional center investment — offer alternative business and investment structures through debt or equity deals.  Although the regional center program is up for reauthorization by September, revival of the program with added integrity measures is probable.

Senior housing construction and development are booming, mostly due to an aging baby boomer generation and increasing life-spans.  Senior housing developers seeking to fund their new projects are increasingly turning to a less-costly alternative to traditional loans — EB-5 financing.  The EB-5 program — administered by U.S. Citizenship and Immigration Services, a component of Department of Homeland Security, allows  for the grant of green cards to foreign citizens who invest at least $500,000 in a qualifying project that is likely to create 10 or more jobs in the United States. Green cards are also issued to the investor’s spouse and unmarried children under age 21.  Permanent residency is granted in two stages — a conditional residency period and, two years later, the grant of unconditional green card status as long as the investment has been sustained and treated as “at-risk,” and the required jobs have been created.

EB-5 capital can serve as part of the initial capital stack for a new venture (often as mezzanine financing) or be used to take out and repay higher-interest bridge or construction loans.

Continue Reading Funding the Development of New Senior Living Facilities – The Immigration Connection

Seyfarth Synopsis:  Certain senior care providers like nursing homes and home health agencies will need to ensure compliance with new regulations issued by the Department of Health and Human Services (HHS), which prohibit discrimination in the operation of health benefits and require technology that is accessible.

On July 18, 2016, the final Department of Health and Human Services (HHS) regulations under Section 1557 of the Affordable Care Act (ACA) officially went into effect. Covered entities may include hospitals, health clinics, health insurance issuers, state Medicaid agencies, community health centers, physician’s practices and home health care agencies.  The rules also apply to employee health benefits of certain employers that receive federal financial assistance and are principally engaged in health care, like nursing homes.  Only the employees who work for these health programs would be covered by the rule.  Covered entities may not discriminate in the operation of their employee health benefit programs.  The nondiscrimination provision applies to all health insurance issuers that are recipients of Federal financial assistance, which includes premium tax credits and cost sharing reductions associated with coverage offered through the Health Insurance Marketplaces or Medicare Parts A, C and D payments.  Despite the fact that these rules are final, many uncertainties remain.

Continue Reading HHS Issues Final ACA Nondiscrimination Rules, Affecting Several Industries Including Senior Care Providers

Seyfarth Synopsis: Board panel found that long-term care facility acted unlawfully when it permanently replaced striking workers in order to allegedly teach the union and strikers a lesson and to avoid future strikes.

In a recent decision, a 2-1 Board panel (Pearce, Hirozawa) ordered a long-term care facility, Piedmont Gardens, to offer to rehire union workers it replaced during a strike, finding that Piedmont Gardens replaced the striking workers out of an unlawful desire to retaliate and to discourage future protected activity.  American Baptist Homes of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (May 31, 2016). The long-term care facility provides independent living, assisted living, and skilled nursing services.  The dispute at issue followed a strike in 2010 by eighty non-professional workers over collective bargaining disputes.  The striking workers made unconditional offers to return to work after five days but the employer had permanently replaced approximately twenty of the strikers.

Continue Reading Board Scrutinizes Long-Term Care Facility’s Motives Behind Hiring of Permanent Replacements

Seyfarth Synopsis: Compliance with the EEOC’s position that employers must consider granting job protected leave to employees who have exhausted FMLA (or who are not eligible for FMLA) on a case-by-case basis under the ADA may have an additional unintended consequence. Where an employee who has exhausted FMLA has not been terminated and is receiving disability benefits paid for, at least in part, by the employer, such hours are considered “hours of service” under the Patient Protection and Affordable Care Act  (“ACA”) and can trigger obligations to continue group health benefits.

The EEOC has been taking the position for many years that employers who have hard and fast “leave cutoffs” violate the Americans with Disabilities Act (“ADA”).  The EEOC has aggressively sought to enforce this position even though the ADA was not considered a “leave law” when it was passed in 1990 (effective in 1992), prior to the passage of the Family and Medical Leave Act (effective in August 1993).  The EEOC believes employers must consider requests for additional job protected leave on a case-by-case basis for employees with ADA disabilities. This position was recently solidified by the issuance of a document from EEOC on May 9, 2016 called:  “Employer-Provided Leave and the Americans with Disabilities Act.”

Continue Reading Granting Job Protected Leave Under the ADA May Lead to ACA Obligations to Continue Group Health Benefits for Those Receiving Disability Benefits