Health Law Advisor

The U.S. Supreme Court recently denied two certiorari petitions relating to the willfulness standard of the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b (AKS), an issue with profound implications for health care companies and providers defending against AKS allegations.    

On October 7, 2024, the Supreme Court denied the petition for certiorari in U.S. ex rel. Hart v. McKesson Corporation, and on October 15, 2024, denied the cert petition in Sayeed v. Stop Illinois Health Care Fraud, LLC.^[1]

“Knowingly and Willfully”

 The AKS prohibits persons from, among other things, “knowingly and willfully” soliciting or receiving “any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind—

A. in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a federal health care program, or

B. in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program[.]”

2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 municipalities will increase wages for the lowest-paid workers.

Perhaps as a reaction to the steadily growing Fight for $15 movement or in response to the COVID-19 pandemic, 40 cities and counties will have met or exceeded a $15 minimum wage by the end of 2021. Eight states — ...

With 2019 nearly rolled up, it is time to exhale and recap the latest dose of marijuana laws affecting the workplace.  In the last twelve months, Illinois became the eleventh state to legalize recreational marijuana use by adults[1] and several other jurisdictions passed or modified their existing laws governing marijuana and the workplace.  Below is a summary of this year’s developments and some thoughts about what 2020 might bring.

Illinois Legalizes Recreational Marijuana Use

On June 25, 2019, Governor Pritzker signed the Illinois’ Cannabis Regulation and Tax Act into law ...

On August 9, 2019, Illinois Governor Pritzker signed legislation amending the state’s current medical marijuana pilot program. The Compassionate Use of Medical Cannabis Program Act (the “Medical Cannabis Act”) makes the medical marijuana program, which was initially enacted as a pilot program in 2013, permanent and expands the qualifying medical conditions for a medical marijuana card to include at least 12 new conditions, including chronic pain, irritable bowel syndrome, migraines, osteoarthritis, and ulcerative colitis. The Medical Cannabis Act also provides ...

This Employment Law This Week^® Monthly Rundown discusses the most important developments for employers in August 2019.

This episode includes:

• Increased Employee Protections for Cannabis Users
• First Opinion Letters Released Under New Wage and Hour Leadership
• New Jersey and Illinois Enact Salary History Inquiry Bans
• Deadline for New York State Anti-Harassment Training Approaches
• Tip of the Week

See below to watch the full episode – click here for story details and video.

We invite you to view Employment Law This Week^® – tracking the latest developments that could ...

On July 2, 2019, New Jersey joined Illinois, Nevada, New Mexico, New York City, and Oklahoma in enacting employment protections for authorized users of medical cannabis. New Jersey’s new medical cannabis law (“Law”), which became effective upon signing by Governor Phil Murphy, amends the state’s Compassionate Use Medical Cannabis Act (“CUMCA”),[1] N.J.S.A. 24:61-2, et seq. Among other measures, the Law prohibits employers from taking an adverse employment action against a current or prospective employee based on the individual’s status as a registered ...

On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act (the “Cannabis Act”).  Under the Cannabis Act, Illinois residents over 21 years of age may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate for their personal use, starting January 1, 2020.  The 610-page Cannabis Act also provides the most extensive workplace protections for employers of any marijuana legalization statute around the country. Indeed, the Illinois General Assembly declares at the beginning of the Cannabis Act that “employee workplace ...

Despite recent welcome news to the home health agency (“HHA”) industry in Florida, Illinois, Michigan, and Texas following an end to Centers for Medicare & Medicaid Services’ ("CMS’s") long-standing HHA provider enrollment moratoria, CMS subsequently announced that it would place some newly enrolled HHAs in a provisional period of enhanced oversight. The purpose of the enhanced oversight period and the corresponding additional restrictions placed on certain HHAs is to help CMS address and closely monitor fraud, waste, and abuse concerns in the HHA industry, thus ...

Health care providers and custodial agencies operating in Illinois are now subject to new obligations under the Health Care Violence Prevention Act (210 ILCS 160/1 et seq.)(“HCVPA”), which went into effect on January 1, 2019. The HCVPA, which was enacted in response to two 2017 incidents involving inmates who assaulted hospital nurses, seeks to reduce the growing rates of violence against health care workers.

The HCVPA establishes both preventive and curative measures to protect health care workers. Health care providers are required to create an OSHA-compliant workplace ...

In a major decision sure to provoke controversy and legislative attempts to overrule it, the en banc Seventh Circuit, by a vote of 8 to 4, has held in Kleber v. CareFusion Corp., (No. 17-1206, Jan 23, 2019), that Section 4(a)(2) of the federal Age Discrimination In Employment Act ("ADEA") does not provide rejected external applicants with a cause of action.

The case was brought by Dale Kleber, a 58 year old applicant who applied for a position at CareFusion. The job description allegedly “required applicants to have ‘3 to 7 years (no more than 7 years)’” of relevant experience.

The ...

The Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("Antitrust Division") released their respective year-end reviews highlighted by aggressive enforcement in the health care industry. The FTC, in particular, indicated that 47% of its enforcement actions during calendar year 2016 took place in the health care industry (including pharmaceuticals and medical devices). Of note were successful challenges to hospital mergers in Pennsylvania (Penn State Hershey Medical Center and Pinnacle Health System), and Illinois (Advocate Health ...