Admonition To Members Of The Healthcare Industry: Don’t Give Trade Secret Protection The Short Shrift!

While traditionally healthcare businesses have tended to look to patent protection, it would behoove them to also think about trade secret protection to protect their valuable inventions.  Given the financial strains on businesses from the COVID-19 pandemic, some businesses may find trade secret protection a cost-efficient alternative to the patent process. Trade secret enforcement also potentially can yield hundreds of millions, sometimes even over a billion, dollars for the trade secret holder.[1] Further, patent protection is not always available.[2] Continue Reading

The Decision is in: Hospitals Will be Required to Disclose Rates in 2021

In a June 23, 2020 decision, Judge Nichol of the United States District Court for the District of Columbia ruled in favor of the Center for Medicare and Medicaid Services (“CMS”) and against the plaintiff hospital associations challenging CMS’s transparency rule. As a result,  hospitals will (pending any appeals) have to post private negotiated rates with payors effective January 1, 2021.  We discussed the lawsuit brought by the American Hospital Association (“AHA”), the Federation of American Hospitals, the Children’s Hospital Association and the Association of American Medical Colleges against CMS in our previous article. Continue Reading

The Post COVID-19 World: Continued Focus on Relaxing Telehealth Barriers

This week, Senators Marsha Blackburn (R-TN) and Ted Cruz (R-TX) proposed the Equal Access to Care Act (the “EACA”), which would allow licensed providers to provide services via telehealth in any state, in any location for up to 180 days after the end of the public health emergency period. Continue Reading

House Democrats Propose New Legislation to Bolster the ACA

On June 24, 2020, House Democrats proposed the Patient Protection and Affordable Care Enhancement Act (H.R. 1425) (the “Proposed Act”), legislation aimed at reinforcing the Affordable Care Act (the “ACA”) by: (i) lowering American’s health coverage costs; (ii) allowing Medicare to negotiate lower prescription drug prices; (iii) expanding coverage by incentivizing 14 holdout states to accept the ACA’s Medicaid expansion; (iv) expanding affordable coverage to vulnerable populations; (v) honing in on “junk” health plans that provide inadequate coverage; and (vi) strengthening protections for people with pre-existing health conditions. A fact sheet on the provisions of the Proposed Act is available here. Continue Reading

Opening Up America: Recent COVID-19 Data And Congressional Hearings Show That Nursing Homes May Be The Last To See “Business As Usual”

On Thursday, June 11, 2020, the U.S. House Select Subcommittee on the Coronavirus Crisis,[1] chaired by Rep. James E. Clyburn, held a video briefing (the “SCC Briefing”) with experts and affected individuals to examine the impact of the COVID-19 pandemic on nursing home residents and workers. Continue Reading

More Help is on the Way For Accountable Care Organizations: CMS Announces New Relief For ACOS Struggling With The Covid-19 Crisis

According to an April 13, 2020 Press Release issued by the National Association of ACOs (“NAACOS”),  a recent NAACOS survey shows that 56% of the survey-participating at-risk accountable care organizations (“ACOs”) – i.e., ACOs participating in a Center for Medicare and Medicaid Innovation (“CMMI”) alternative payment model (“APM”) and assuming financial risk thereunder – said that they were likely to drop out of their APM because of their fear of having to cover massive losses resulting from the COVID-19 pandemic.  In addition, the survey revealed that, as a result of swings in unpredictability and spikes in expensive hospitalizations, 21% of at-risk ACOs were “very likely” to leave the Medicare ACO program, 14% said they were “likely,” and another 21% said they were “somewhat likely” to leave.  Almost 80% of responding at-risk ACOs said they were “very concerned” about their 2020 financial performance in general and how their financial performance compared to their applicable annual APM benchmarks. Continue Reading

Introducing the HEALTH ACT: Expanding Medicare Reimbursement

Last week, new legislation was introduced in the U.S. House of Representatives that would require Medicare to reimburse certain telehealth services post the public health emergency period.  If passed, the bipartisan  Helping Ensure Access to Local TeleHealth Act of 2020 or HEALTH Act of 2020 (the “HEALTH Act of 2020”) would codify Medicare reimbursement and allow reimbursement for telehealth services provided by federally qualified health centers (“FQHCs”) and rural health clinics (“RHCs”). Continue Reading

Balancing Provider Pricing Transparency and Anti-Competitive Behavior

On November 15, 2019, CMS issued a final rule that requires hospitals to disclose to patients the hospital’s “standard charges,” which include the reimbursement rates the hospitals negotiate privately with insurers.  This rule is in line with President Trump’s Executive Order, dated June 24, 2019, which focused on increasing price and quality transparency for American healthcare consumers.  The Final Rule goes into effect as of January 1, 2021, at which time hospitals will have to post their standard charges online.  Any hospital that refuses to do so will be subject to a fine of up to $300 per day.  While CMS believes that the Final Rule will lower healthcare costs by allowing customers to compare prices and proactively shop for care, the Final Rule has been met with strong resistance from hospitals that claim that it is beyond the scope of CMS’ power to promulgate. Continue Reading

Going Virtual: Clinical Trials, Telemedicine, Electronic Medical Records, And All That.

According to a recent study (Study) published in Nature Reviews Drug Discovery on May 10, 2020 regarding the impact that the COVID-19 pandemic has had on the conduct of oncology clinical trials,[i]  the COVID-19 pandemic has materially disrupted the conduct of clinical research and trials in much of the world.  The observed disruptors include an observed decrease in patient enrollment in clinical trials and the operational challenges arising from the need to protect patient safety and comply with the social distancing, shelter-in-place and other rules and regulations that have become key elements of the public health response to the pandemic.  As a result of these and other disrupters, investigators who participated in the Study reported that they are, “adopting or planning to adopt technology-based interventions aimed at reducing on-site monitoring visits and in-person patient visits to minimize potential viral exposure and spread, including telemedicine, remote electronic medical record access for monitors and virtual monitoring of data and study documentation.” Continue Reading

Release of Second Webcast Video Focused on Telehealth Revenue Cycle Considerations

Sheppard Mullin and Citrin Cooperman have released the second video of their series of recordings focused on guiding healthcare organizations and providers through the different components of their Telehealth Maturity Model. Continue Reading

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