Pursuant to new Federal Regulations, the U.S. Department of the Treasury has initiated a “Go Direct” program by which all federal benefits are to be paid electronically.  These benefits include social security, supplemental security income, railroad retirement, and civil (non-military) retirement.  All nursing home residents who still receive their federal benefits by paper check are to establish direct deposit accounts to a bank or credit union by March 1, 2013.

Federal benefit funds may be deposited into either a resident’s own bank or credit union account or into a Resident Trust Account established and maintained by the Nursing Home.  Residents may also deposit funds into a Direct Express card, but the Treasury Department recommends the direct deposit option for nursing home residents.

The Treasury Department has provided a form (FMS form 1200) to enroll residents into direct deposit with a bank or credit union.  Residents may also be enrolled online at www.godirect.org.  Information required to complete the form include the resident’s account number, routing number and claim number.  A resident may also choose to have their benefits deposited directly with the nursing home in a Resident Trust Account.

For more information on the “Go Direct” initiative and the move toward direct deposit of federal benefits, please visit www.godirect.org or speak with our attorneys.

On February 12^th, Ohio Governor John Kasich released his budget proposal (HB 59) to foster job creation and enhance Ohio’s economy. HB 59 includes new tax provisions that will affect Ohio businesses. One main provision included in the bill is to reduce the sales tax rate from 5.5% to 5% and to start taxing services including:

• legal
• accounting
• parking lots
• haircuts
• insurance

Take a look at this chart from the Governor’s office to see the full list of taxable services.

Because the sales tax would be expanded, the budget would also reduce local sales tax rates of many Ohio counties and transit authorities, and a three-year moratorium would be place on any local sales tax increases.

Also included in HB 56 are the following tax reforms:

• $2.1 Billion dollar income tax cut, which is a 20% cut over three years.
• $1.9 Billion small business tax cuts over three years. The income tax on nearly all Ohio small business would be reduced by 50% on the first $750,000 of earnings.
• Eliminate severance taxes for small-volume natural gas providers, and the taxes will change from 20 cents-per-barrel to a flat tax of 4%. This increase will help fund the new tax cuts.

To learn more about HB 59, please click here.

On January 1^st, the use of background checks for home-health workers expanded due to new legislative and administrative rules.  The Ohio Attorney General’s Office’s Medicaid Fraud division was concerned with inconsistencies in regulations, so new rules were enacted to strengthen the checks and create consistent standards across different state agencies. Prior to this, a criminal act could be disqualifying in one agency but not in another.

Important changes to the use of background checks include:

• employees must be re-checked every 5 years
• more state and national databases must be searched, including registries that list sex offenders, inmates and abusive caregivers
• the checks now apply for care recipients who are neither elderly nor minor.

Home health agencies are concerned with the cost of these additional background checks.  The cost for the background checks increased to $28 per check, and there is an estimated amount of 23,000 to 24,000 employees in Ohio who have been employed five years or longer.

After issuing two decisions insinuating that traditional at-will employment clauses may violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) Office of the General Counsel released two advice memoranda on October 31, 2012, which retreated slightly from this anti-at-will employment clause stance.

These advice memoranda indicated that in assessing the legality of an at-will employment clause, the NLRB will consider: 1) whether employees could reasonably construe the language of the clause as prohibiting activities potentially protected by the NLRA; 2) whether the clause was written in such a way as to restrict union activity; and 3) whether the language in the clause restricts employees from exercising any of their rights protected by the NLRA.

In the cases decided under each memorandum, the NLRB upheld the respective at-will employment clauses after finding that the language in each clause complied with the three above prongs and that each clause did not, directly or indirectly, require employees to waive their right to change their at-will status.

The Board still noted, however, that the law governing at-will employment clauses “remains unsettled.” As a result, employers are advised to submit their employee handbooks to an attorney for review. The attorneys at DLM Legal have a wide range of experience in employment law and will review your employee handbook to ensure its compliance with federal law. To speak with one, email info@dlmlegal.com or call 216.635.0002.

Based on two recent enforcement actions, the National Labor Relations Board (NLRB) appears to be moving toward the adoption of a policy disfavoring the inclusion of traditional at-will employment clauses in employee handbooks.

In Hyatt Hotels Corporation (28-CA-061114), an NLRB administrative judge held that an at-will employment clause in Hyatt’s employee handbook violated employees’ right to engage in concerted activity under the National Labor Relations Act. The clause at issue in this case stated that a Hyatt employee retains at-will employment status unless otherwise agreed upon in a writing signed by the employee and Hyatt’s COO or President. In this ruling, the judge noted that such a clause interferes with an employee’s right to bargain for employment rights beyond those accompanying his or her at-will employment status. The NLRB successfully challenged a similar at-will clause in the employee handbook for the American Red Cross of Arizona.

Although both of these NLRB enforcement actions arose in Arizona, many attorneys feel that these decisions represent the NLRB’s developing national stance on at-will employment clauses. The experienced attorneys at DLM Legal are available to review your employee handbook to ensure its full compliance with federal law. To speak with one of them, email info@dlmlegal.com or call 216.635.0002.

The U.S. Department of Health and Human Services Office of the Inspector General (OIG) has released its Work Plan for 2013. This report is an overview of the areas in the health care sector which the OIG plans to investigate during its 2013 fiscal year. One of the primary duties of the OIG is to ensure that health care facilities are in full compliance with established Medicare and Medicaid laws.

Here are a few issues from the 2013 OIG Work Plan relevant to hospices and nursing homes receiving Medicare Part A and Part B funding:

Hospices

• In 2013, OIG will review hospices’ marketing materials and their relationships with nursing facilities. Specifically, OIG will investigate situations in which hospices are aggressively marketing their services to nursing facility residents. OIG will target hospices that have a high percentage of Medicare beneficiaries in nursing facilities.

• OIG plans to assess the appropriateness of hospices’ general inpatient Medicare claims. In doing so, OIG will ensure that all hospice Medicare beneficiaries have previously qualified for Medicare Part A and have been properly certified as being “terminally ill.”

Nursing Homes

• OIG will review nursing homes’ use of the Federally required Residential Assessment Instruments (RAIs) to determine whether nursing homes are using RAIs properly to enhance quality of care.

• OIG will follow-up State survey recertification results for nursing homes to ensure that the nursing homes have corrected any previously-identified deficiencies.

• OIG will examine instances in which Medicare beneficiaries in nursing homes have been hospitalized to determine whether these hospitalizations were the result of manageable or preventable conditions.

• OIG will investigate nursing homes’ Medicare Part B billing practices to ensure that they are in compliance with Federal regulations.

For more information on how OIG’s 2013 Work Plan impacts the operation of nursing homes or hospices, contact one of DLM Legal’s attorneys today at info@dlmlegal.com or 216.635.0002.

The Ohio General Assembly and Governor John Kasich have enacted Senate Bill 224, which went into effect on September 28, 2012. This bill reduces the statute of limitations for bringing claims on written contracts from 15 years to 8 years in Ohio Revised Code (ORC) Section 2305.06.

Under the new law, any claim on a written contract that first accrued on September 28, 2012 or later must be filed by September 28, 2020. As a matter of transition, Senate Bill 224 provides that any claim on a written contract that first accrued between September 28, 2005 and September 27, 2012 must be filed by September 28, 2020.

The original 15 years statute of limitations provision was enacted in Ohio in 1803. In passing this new legislation, the Ohio legislature sought to modernize the law while increasing judicial efficiency. The vast majority of states have a statute of limitations for written contracts well below 15 years. Furthermore, the sooner a claim on a written contract is filed, the fresher the parties’ memory will be for any ensuing litigation.