State Regulatory Scheme Offering Antitrust Immunity to Healthcare Collaborations Creates Tension Between Federal and State Antitrust Enforcement

On April 22, 2015, the Federal Trade Commission submitted a public letter to the New York State Department of Health (DOH) expressing “strong concerns” over state regulations offering to provide antitrust immunity to certain healthcare collaborations undertaken with DOH’s approval and supervision.  This letter is consistent with the FTC’s continued opposition to grants of immunity from federal antitrust laws based on state action.  The letter also presents a meaningful opportunity to re-evaluate the interplay between state and federal antitrust enforcement authority, and the related doctrine of state action immunity, particularly in the healthcare arena which has seen an unprecedented spike in collaborative arrangements following passage of the Affordable Care Act. Continue Reading

State Oversight of Anticompetitive Activity in Healthcare: Is a New Wave Ahead?

The Massachusetts Attorney General and others are currently advocating for legislation that would accord greater legal weight to the findings of an independent state agency, the Health Policy Commission, on the effects of proposed mergers and acquisitions.[1]  Currently, a “Cost and Market Impact Review” report is referred to the Attorney General’s Office if the Health Policy Commission determines that a transaction will likely result in a provider gaining a dominant market share, higher prices for services and increased medical spending. Under the legislation, such a report would be prima facie evidence that a transaction violates the Massachusetts Consumer Protection Act and could be used in an action brought by the Attorney General to block the transaction pending the outcome of litigation. Continue Reading

Congress Repeals Sustainable Growth Rate Formula and Advances Medicare Payment for Quality

On April 14, 2015, Congress ended over a decade of repeated “doc fixes” which temporarily suspended scheduled Medicare provider reimbursement cuts, by passing the Medicare Access and CHIP Reauthorization Act (the “Act”).  If signed by President Obama, the Act would permanently end the Centers for Medicare & Medicaid Services’ (“CMS”) use of the physician payment formula known as the “Sustainable Growth Rate” (“SGR”). Without the approval of the Act, or the passage of a doc fix, providers would have seen Medicare reimbursement rates drop by 21 percent starting on April 15, 2015. Continue Reading

Full Speed Ahead for Meaningful Use

On Friday, March 20, 2015, the Centers for Medicare and Medicaid Services (“CMS”) issued a proposed rule (available here) which would make significant changes to the federal Medicare and Medicaid Electronic Health Records (“EHR”) Incentive Programs (collectively the “Meaningful Use Program”).  Continue Reading

More Risk for All and “Free” Care?

While the Supreme Court continues to debate the outcome of King v. Burwell in their chambers, stakeholders must be prepared for the potential fallout the nine justices’ ruling may have.  Two weeks ago, we summarized the underpinnings of the case (read about it here) and last week, we reviewed the impact of a ruling against the government on individuals (read about it here).  Today, we will take aim at two other groups of stakeholders who are sure to be impacted by a ruling against the government: (i) healthcare providers; and (ii) third party payors.  These two groups have seen a significant benefit in the form of new patients/enrollees from the exchanges and are likely to take the most significant hit to their businesses if the Supreme Court rules against the government and limits tax subsidies under the Affordable Care Act (“ACA”) currently available to consumers on both federal exchanges and state run exchanges to only those consumers on the state run exchanges. Continue Reading

Stripping the ACA of Both the Carrot and the Stick: Sticking it to Consumers On and Off the Federal Exchange

Even as we write and you read, the Supreme Court in King v. Burwell is considering whether qualifying (often low income) individuals and families who have an opportunity to purchase healthcare coverage through the Affordable Care Act’s (“ACA’s”) federal exchange also have the right to federal premium subsidies/tax credits when determining the premium costs associated with the actual purchase of such coverage.  While it is obvious that the King decision will be of great importance to those who need the discounts created by the subsidies/credits to make the cost of purchasing coverage on the federal exchange affordable, the King decision could also have a significant impact on those individuals and families who purchase insurance coverage outside of the federal exchange. Continue Reading

Medicare ACO v. 3.0—More Risk, More Money?

The Centers for Medicare and Medicaid (CMS) announced on March 10, 2015 that it is adding a new Accountable Care Organization (ACO) model to its cadre of innovative models.[1] Titled the “Next Generation ACO Model,” CMS’ new ACO model allows provider groups to assume higher levels of financial risk and reward than currently available under its Pioneer Model and Shared Savings Program model. CMS noted that the goal of the Next Generation ACO Model (Next Generation) is to “test whether strong financial incentives for ACOs can improve health outcomes and lower expenditures for Original Medicare fee-for-service (FFS) beneficiaries.”[2] Continue Reading

Time is Running Out to Avoid the Negative Effects of 2016 Value-Based Physician Payment Modifiers: CMS Releases Results of Medicare’s Value-Based Payment Modifier for 2015 as Final PQRS Participation Deadlines for 2016 Adjustments Approach

CMS recently released results of Medicare’s value-based payment modifier for 2015.[1]  This is the first year in which physicians are subject to adjustments under the payment system and, in this first phase of implementation, only affects practices with 100 or more eligible professionals.   Continue Reading

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