DOL’s Increased Salary Test: What Health Care Employers Need to Know

As detailed here in our Labor & Employment blog, the Department of Labor recently announced significant increases to its minimum salary threshold to be considered exempt from the overtime requirements under the Fair Labor Standards Act (FLSA).  Health care employers — both in the non-profit and for-profit sector — will be impacted profoundly because many managers in the industry receive less than the new $47,476 salary required to be exempt.  As detailed in our post, unless significant changes are made to the terms and conditions of employment for these individuals, health care employers will be on the hook for additional overtime expenses. Fortunately, health care employers may continue to take advantage of the FLSA’s “8 and 80” option to limit overtime expenses by paying time and one-half for all hours worked over 8 hours in any work day and over 80 hours in a 14 day period.  We recommend contacting counsel for assistance with complying with the new rule.

For More Information

Foley will be holding a webinar titled, “Overtime Exemptions: What’s New and How It Affects You,” on June 2, 2016 to further discuss this topic. For more information and to register, visit

Employee Assistance Programs and State Insurance Regulation Structuring EAPs to Ensure Compliance


Employee Assistance Programs (or EAPs) have served employers and their employees for decades, providing a variety of benefits to address issues that might otherwise adversely affect the overall health and work of employees. A National Study of Employers conducted in 2008 found that 65 percent of employers in the United States provided EAP benefits, an increase of 9 percent from the same study conducted in 1998, with 97 percent of employers with over 5,000 employees and 80 percent of employers with 1,001 to 5,000 employees having EAPs. Continue reading this entry

Finance Committee Report Place Medical Device Arrangements under Increasing Scrutiny


Hospitals and providers participating in physician-owned distributorships, or “PODs” may be at increased risk for government investigation or enforcement. A Senate Finance Committee (SFC) Report issued this month highlights the SFC’s concerns that certain POD structures may violate fraud and abuse statutes, including the Anti-Kickback Statute, Stark Law, as well as the Sunshine Act.

According to the SFC Report, PODs are “physician-owned entities that derive revenue from selling, or arranging for the sale of, implantable devices ordered by their physician-owners for use in procedures the physician-owners perform on their own patients in hospitals or ambulatory surgery centers (ASCs).” Continue reading this entry

House of Representatives v. Burwell: Another Blow to Obamacare

Obama Announces Affordable Care Act Enrollment Crosses the 8 Million Mark

Federal Judge Rosemary Collyer’s May 12, 2016 ruling in House of Representatives v. Burwell, found that the Obama administration (the “Administration”) has been improperly funding an Obamacare subsidy program.

House of Representatives v. Burwell involves two sections of The Patient Protection and Affordable Care Act (the “ACA”): Sections 1401 and 1402. Section 1401 provides tax credits to certain individuals to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of cost-sharing by insurers. The ACA tax credits outlined in Section 1401 were permanently funded through appropriations; however, neither the House of Representatives (the “House”) nor the Senate ever passed an appropriation for funding under Section 1402. The Administration recognized this in 2013, and requested such an appropriation from the House. The House refused, but the Administration proceeded to start paying cost-sharing subsidies to insurers in January 2014. Continue reading this entry

Federal Judge Refuses FTC Request to Block Hershey/Pinnacle Deal; FTC to Appeal


Hospitals and other providers who have been tracking Federal Trade Commission (FTC) and Department of Justice Antitrust Division hospital merger challenges over the last several years will want to take note of the federal district court opinion issued earlier this week denying the FTC’s motion for an injunction to prevent 551-bed Penn State Milton S. Hershey Medical Center and the three-campus, 646-bed PinnacleHealth from coming together in Pennsylvania’s midstate region—as well as the FTC’s decision to appeal. The pointed opinion by Judge John E. Jones III of the Middle District of Pennsylvania effectively brings the enforcement agencies’ winning streak to an end for the time being, and pushes back on the framework they have recently used to analyze the competitive effects of hospital transactions. Two other FTC challenges to hospital mergers currently awaiting resolution involve many of the same key issues in the Hershey/Pinnacle case and have also been closely watched by providers contemplating affiliations in the face of a recent string of successful challenges by antitrust enforcers.  

For more information, please visit our official update page.