Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 11 ADVERTISEMENT November 2015

In This Issue

The EEOC Goes Digital: Could This Mean An End To Those "Failure to Timely Respond" Notices?

Schedule Your Overpayment Refunds

David Barmak, Esq.

Gerald V. Burke, M.D., Esq.

Jo Ann Halberstadter, Esq.

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The EEOC Goes Digital: Could This Mean An End To Those "Failure to Timely Respond" Notices?

By: Jo Ann Halberstadter, Esq.

Does the following scenario sound familiar? You, as employer, receive a letter from the Equal Employment Opportunity Commission ("EEOC"), with a case caption naming you and/or your company as Respondent, informing you that you failed to respond to the Charge of Discrimination ("Complaint") filed by one of your current or former employees. As a result, you have 10 days from the date of the letter to respond and it is already 3 days into the 10 day time period.

Unfortunately, this is not an uncommon scenario. Under the current EEOC "Charge Handling Process", the complaint is mailed to an employer via regular mail. Often times the complaint is not read or forwarded on to the appropriate office in a timely manner. Hopefully, this longstanding problem will be resolved by the EEOC pilot program for a new digital system called Action Council for Transformation to a Digital Charge System ("ACT Digital"). ACT Digital is an online charge system that will provide online communication, through a secure portal, between the EEOC and employers regarding discrimination charges. The system is intended to streamline the submission of documents, notices and communications in the EEOC's charge system. The first phase of the pilot program began in May, 2015 and is currently implemented in the EEOC's Charlotte, San Francisco, Denver, Detroit, Indianapolis, Phoenix, and Cleveland district offices with implementation in all offices expected by the end of 2015. See 5-16-15 and 11-6-15 EEOC Press Releases at http://www.eeoc.gov/eeoc/newsroom/release/5-6-15.cfm and http://www.eeoc.gov/eeoc/newsroom/release/11-6-15.cfm.

Under ACT Digital, employers will be able to designate and provide the EEOC with an email address for a specific person to receive notification of any EEOC charges that have been filed against the employer. When a Charge of Discrimination is filed against the employer, the EEOC will generate an email that will provide the employer with a unique password that will permit access to information regarding that specific charge. With that password, an employer will be able to view, download, respond to, and communicate with the EEOC about that specific complaint. However, it is important to note that if the EEOC does not have a designated email address on file for the respondent employer, a paper notice containing the online password will be mailed to the employer's address of record thereby once again leaving the employer open to the risk of not receiving timely notice. The EEOC has issued FAQs and a Portal User Guide for Employers which can be found at: http://www.eeoc.gov/employers/act-digital-qanda.cfm and http://www.eeoc.gov/employers/respondent_portal_users_guide.cfm, respectively.

An employee who believes that he/she has been discriminated against at work because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information must file a Charge of Discrimination with the EEOC or with a state Fair Employment Practices Agency (FEPA) before filing a job discrimination lawsuit. Within 10 days of the filing of a Charge of Discrimination, the EEOC will notify and provide the employer with a copy of the Charge of Discrimination ("Complaint") and the contact information of the investigator assigned to the case. The investigator can request additional information from the employer, including a position statement and possible investigative conferences, document/policy requests, designation of employees for witness interviews, and on-site visits which will be used by the investigator to evaluate whether unlawful discrimination occurred. At the conclusion of the investigative process, the EEOC will decide whether or not there is reasonable cause to believe that discrimination occurred. If there is no reasonable cause, the EEOC will issue a letter to the charging party, with a copy forwarded to the employer, dismissing the action and notifying him/her of the right to file a lawsuit in federal court within 90 days from the date of receipt of this letter. If the EEOC determines that reasonable cause exists, both parties will be issued a Letter of Determination stating that there is reasonable cause to believe that discrimination occurred and inviting both parties to participate in a process of conciliation to resolve the Charge allegations. If conciliation fails, the EEOC has the authority to file and pursue a lawsuit in federal court on behalf of the charging party. If the EEOC decides not to litigate, it will issue a Notice of Right to Sue to the charging party informing of the right to file a lawsuit in federal court within 90 days of receipt of the Notice of Right to Sue.

Phase I of ACT Digital effects online communication between the EEOC and an employer in terms of transmission and receipt of the Charge of Discrimination and submission of the employer's responsive Position Statement. In later implementation phases of ACT Digital, the EEOC expects to expand the capabilities of the system to handle all aspects of the Charge of Discrimination process including the electronic submission of employer responses to Requests for Information and a secure portal for individuals who file a charge of employment discrimination. Unfortunately, the ACT Digital program applies only to EEOC charges and, to date, does not apply to a Charge of Discrimination that has been filed with a state or local Fair Employment Practices Agency.

An effective Employment Risk Management Program needs to: 1) have a Policy & Procedure on receiving and responding to EEOC notices; 2) provide training to staff on the Policy & Procedure; and 3) perform audits to determine if the Policy & Procedure are being implemented.

If you have any questions regarding this article or for more information about Employment Risk Management Programs, please contact Jo Ann Halberstadter, Esq. at jhalberstadter@barmak.com or call (609)-454-5351.

Schedule Your Overpayment Refunds

By: Gerald V. Burke, M.D., Esq.

During the normal course of business in healthcare, it is not unusual for a service provider, nursing home, physician's office, outpatient facility, or an equipment provider, to accidently receive overpayments for goods or services from a payor. Repayment of these overpayments is legally mandatory.

Ideally, the service provider should be actively monitoring and auditing the payments received for his goods or services proactively and will be the first to notice that there has either been an under or overpayment. The payor should be contacted immediately and the discrepancy questioned. While a discrepancy may reflect a legitimate change in the reimbursement value of the product or service, it may also reflect an error on the part of the payor that will eventually require correction. The sooner that an error is detected, the smaller will be the discrepancy and the easier the resolution of the matter. Remember, errors of overpayment can be just as serious as underpayment to the viability of your business.

If the overpayment is small, a repayment may be easily accomplished. Either a single reimbursement check to the payor or a minor off-set from future payments to the provider will suffice. Significant financial stress is not placed on the provider by the repayment.

On occasion the overpayments can be large, either as a single payment or small overpayments occurring for a prolonged period of time before the mistake is recognized. Occasionally, a year or more elapses before the overpayments are recognized and the payor seeks reimbursement. By that time, the total may be significant. In this situation, a proactive approach on the part of the payee is warranted to avoid or minimize the financial stress of the payment process.

Again, the first guiding principle is that the overpayment must be repaid. It is not a gift. "Finders keepers, losers weepers" does not apply when one is dealing with CMS, a healthcare insurance company or any other payor. The payor is legally entitles to repayment and can dictate the terms if it so chooses.

The Patient Protection and Affordable Care Act also deems an overpayment as a false claim sixty days after becoming aware of said overpayment.

If you recognize that an erroneous overpayment has occurred, notify the payor at once. The sooner you proactively address the error, the easier it will be to rectify.

Once you either recognize that an overpayment has occurred or are notified of an overpayment, confirm the validity and accuracy of the overpayment. If there is legitimate dispute, raise it immediately. However, if there is legitimate discrepancy in the amount of refund due, act proactively to structure a payment schedule that you can live with.

Evaluate your budget and determine a monthly sum for repayment that is compatible with your cash flow. Recognize that this must be a fiscally reasonable sum to the payor such that debt will be repaid within a reasonable length of time. These determinations should be as complete and accurate as possible. Prolonging or delaying these calculations may cost you the opportunity to proactively present your reimbursement/repayment plan to the payor and adversely affect a decision to accept your proposal.

The next step is to reach out to the payor and present your position and proposal. Be prepared to present factual information to the payor that supports the need for the proposed repayment schedule. This may even include financial information regarding your business if you need a prolonged payoff schedule with lower rates. Simply presenting your proposal without the ability to provide supporting information to justify the proposal may result in the payor rejecting your proposal.

If you find that are not able to arrive at a suitable repayment schedule , then it may be time to engage the aid of an attorney, Attorneys generally have access to channels of negotiation that the average proprietor does not.

The take-home message is to be proactive when overpayment situations arise. Make sure you confirm that the total refund requested is accurate. Determine how this repayment affects your operating budget and your ability to continue your business. Look to craft a repayment arrangement that is fair to both parties and permits you to continue to operate with as little disruption in your business as possible. Inactivity when an overpayment is recognized will result in others dictating to you a repayment schedule that may be extremely detrimental to your business.

If you have questions regarding this article, please contact Gerald V. Burke, M.D., Esq. at gburke@barmak.com or by telephone at (609) 454-5351.

Barmak and Associates, LLC

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to skilled nursing facilities and other healthcare providers.

Representative Clients:

Entities: Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

Providers: Physicians; Therapists; Orthotists and Prosthetists

Suppliers: Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

Businesses: Billing; Management service organizations; Independent provider associations

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

Transaction Issues: General Counsel Services; Contracts.

Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.

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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com

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