Healthcare Industry Companies Must Be Wary of Classifying Any Workers As Independent Contractors, In Light of the California Supreme Court’s Dynamex Ruling

As you may have seen in our recent article on the Labor and Employment Law Blog, the California Supreme Court recently issued a landmark decision in the case of Dynamex Operations West, Inc. v. Superior Court. (The full text of the Dynamex decision can be found here.) In its ruling, the Court establishes a standard that makes it extremely difficult for companies (or individuals) in California to properly classify their workers as independent contractors. Continue Reading

California Superior Court Judge Orders Department of Public Health to Make Names and Personal Home Addresses of Approximately 180,000 Health Care Workers Available to SEIU; Union Organizing Activities Likely to Spike

A California Superior Court judge recently issued an order granting the Service Employees International Union’s (“SEIU”) petition for writ of mandate under the California Public Records Act (“CPRA”) and ordered the California Department of Public Health (“CDPH”) to produce the names and personal home addresses of approximately 180,000 healthcare employees who hold licenses or certificates issued by CPDH. The order requires the production of this personal contact information no later than May 22, 2018. Continue Reading

CMS Pushes for Hospital Price Transparency in Proposed Rule

On April 24, 2018, the Centers for Medicare & Medicaid Services (“CMS”) announced a new proposed rule (CMS-1694-P) (“Proposed Rule”). In an attempt to “empower patients through better access to hospital price information,” CMS plans to alter the requirements previously established by Section 2718(e) of the Affordable Care Act.[1]

Under Section 2718(e), “each hospital operating within the United States shall for each year establish (and update) and make public…a list of the hospital’s standard charges for items and services provided by the hospital.” CMS has previously interpreted Section 2718(e) to require hospitals to either make public a list of standard charges or implement policies for allowing the public to view a list of the standard charges by individual request. It was originally believed by CMS that patients could use such information to compare charges for similar services across hospitals, just as someone “shops around” for the best price in plumbing services. However, CMS contends that Section 2718(e), as is currently written, is insufficient to establish the necessary hospital price transparency. Continue Reading

What Have We Learned About False Claims Act Litigation in the Two Years Since Universal Health Services, Inc. v. United States ex rel. Escobar? Quite a Lot, Actually

Summer is almost here. For some, that means planning vacations to the beach, hitting the gym to shed that winter weight, or perhaps hitting the golf course—but for us at the Sheppard Mullin Healthcare Law Blog and the False Claims Act Defense Blog, summer signals the anniversary of the Supreme Court’s seminal decision in Universal Health Services, Inc. v. United States ex rel. EscobarContinue Reading

CMS Rolls Out Provider Appeals Settlement Efforts

(as first posted in the Hospice Log Blog on April 12, 2018)

This year CMS is rolling out two new programs aimed, finally, at helping to settle certain types of pending provider reimbursement appeals. The programs are the Low Volume Appeals Initiative and Settlement Conference Facilitation.

As pointed out on the Hospice Law Blog before, CMS’ longstanding policy of refusing to negotiate overpayment findings has been a significant factor in clogging the appeals system. With no settlement options, each case must be decided on its merits, imposing a huge (indeed unmanageable) burden on the appeals system. Continue Reading

In Case Alleging Nationwide Pharmacy Fraud, Kmart Scores Narrow Settlement

As described in an April 17, 2018 article originally posted on the Sheppard Mullin Richter and Hampton, LLP False Claims Act Defense Blog, Kmart Corporation and the U.S. Department of Justice entered into a False Claims Act settlement agreement dated March 8, 2018, to end an investigation that was conducted jointly by the United States Attorney’s Office for the Eastern District of California and California’s Bureau of Medicaid Fraud and Elder Abuse.

In a March 8, 2018 Press Release issued by the Department of Justice, the Department reported that the settlement was the result of a whistleblower lawsuit against Kmart in which the whistleblower, a Pharmacist-in-Charge at a California Kmart location in Lakeport, California, alleged that Kmart violated the federal False Claims Act by knowingly submitting claims for reimbursement to California’s Medi‑Cal program that were not supported by applicable diagnosis and documentation requirements.  As described in the March 8, 2018 Press Release, Kmart paid $525,000, as required by the Settlement Agreement; of this amount, $96,500 went to the whistleblower. Continue Reading

Medicare Advantage to Address Social Determinants of Health: An Important Step for Value-Based Care

On April 4, 2018, the Centers for Medicare & Medicaid Services (“CMS”) finalized guidance and policies for the Medicare Advantage program that will expand the supplemental benefits afforded to beneficiaries to include items and services that address certain “social determinants of health” (“SDOH”). SDOH refers to a wide range of factors and conditions that are known to have an impact on healthcare, ranging from socioeconomic status, education and employment, to one’s physical environment and access to healthcare. Previously, CMS did not allow an item or service to be eligible as a supplemental benefit if the primary purpose was for daily maintenance. CMS’ reinterpretation of the statute to expand the scope of the primarily health-related supplemental benefit standard is an important step in encouraging value-based care. Continue Reading

Health Plans and Pharmacy Benefit Managers – Past and Future

Historically, health plans and pharmacy benefit managers (“PBMs”) have been uncomfortable neighbors. Plans provide drug coverage, but contract out the provision of such drugs to independent PBMs. PBMs in turn earn market rents by negotiating discounts (and big rebates) with Big Pharma, in turn offering structured medication formularies to plans. Continue Reading

CMS Proposes “Wind Down” Plan for Federal Exchanges

Despite the Trump Administration’s unsuccessful attempts to fully repeal and replace the Affordable Care Act (the “ACA”), the Administration has continued to target the ACA. In the Administration’s latest salvo, the Centers for Medicare & Medicaid Services (“CMS”) announced in its Fiscal Year 2019 Performance Budget (the “Budget”)[1] – as released by the federal Office of Management and Budget on February 12, 2018 and as discussed in greater detail in CMS’s Justification of Estimates for Appropriations Committee released last week – a proposal to “wind down” its financial support for the federal health insurance exchanges. Specifically, the Budget explains that if Congress repeals the ACA, CMS will withdraw its support of the federal exchanges by plan year 2020. Continue Reading

Star Ratings and Future Measurement Concepts in the CY 2019 Final Call Letter

Medicare Part C and Part D Star Ratings are used by CMS to measure the quality of and reflect the experiences of beneficiaries in Medicare Advantage (“MA”) and Prescription Drug Plans (“PDPs”). Below is a summary of CMS’ proposed enhancements to the 2019 Star Ratings set forth in the 2019 Final Call Letter (issued by CMS on April 2, 2018) , as well as possible enhancements to the 2020 Star Ratings.

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