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As individuals continue to live longer beyond retirement and the U.S. population size of those 65 years and older continues to increase, the demand for long-term services and supports (“LTSS”) is also expected to increase.[1] LTSS represents the wide-ranging health and social services that individuals require over an extended period of time, including assistive services.[2] The increasing demand for these services will also likely proportionally increase health care expenditures of LTSS. According to the Congressional Research Service, which analyzed data from the Centers for Medicare & Medicaid Services (“CMS”) National Health Expenditure Accounts (“NHEA”) on the personal health expenditures for LTSS by payer, in 2021, an estimated $467.4 billion was spent on LTSS. This represents 13.2% of the $3.6 trillion spent on personal health care.[3] Notably, the first and second largest payers of LTSS are Medicaid and Medicare, respectively, accounting for 64.1% of all LTSS spending nationwide in 2021.[4] Absent public LTSS funding, individuals must rely on private funding, and in 2021, private sources accounted for just 28.6% of LTSS spending.[5]

Continue Reading The PACE Solution to Increasing Demands for Long-Term Services and Supports in the U.S.
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Social determinants of health (“SDOH”) consider the non-clinical factors that can profoundly impact an individual’s well-being. They are extensive and often overlap, including housing instability, food insecurity, the inability to afford and obtain medications and more. Research has indicated that healthcare systems that connect patients to basic resources have observed improvements in population health metrics, fostered trust with their patient base, and experienced reduced hospitalization costs.

Continue Reading CMS Augments “In Lieu Of Services” Medicaid Guidance to Support State Medicaid Managed Care Efforts to Address Social Determinants of Health
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*This article was originally posted in Law360 on November 4, 2019

With the rise of artificial intelligence and machine learning, clinical decision support, or CDS, software presents a novel opportunity to analyze immensely large amounts of data for patterns or other information that may be relevant to a particular patient’s diagnosis or health care options. Continue Reading Adapting To FDA’s Proposal For Diagnosis Support Software

On May 1, 2019, the Department of Justice (“DOJ”) filed an initial brief (the “Brief”) with the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) on behalf of the United States, in favor of upholding the lower court’s decision that found the entire Patient Protection and Affordable Care Act (the “ACA”) unconstitutional.

As we discussed previously in our December 2018 blog post, a federal district court judge in Texas struck down the entire ACA by ruling that the “individual mandate,” which was reduced to $0 as part of the 2017 Tax Cuts and Jobs Act, no longer raises revenue and thus is no longer a constitutional exercise of Congress’s taxing power. The judge went on to determine that the unconstitutional individual mandate was inseverable from the rest of the ACA and therefore, the entire ACA was unconstitutional. The decision was then appealed to the Fifth Circuit. Continue Reading Update to Texas v. United States: DOJ Files a Brief in Support of Eliminating the ACA

In a September 14, 2018 Proclamation, President Donald Trump announced that the week of September 16 through September 22, 2018 would be Prescription Opioid and Heroin Epidemic Awareness Week (“Awareness Week”). As described in the Proclamation, the goal of Awareness Week is to “raise awareness about the prescription opioid and heroin epidemic and to consider concrete follow up activities.” Continue Reading Congress Passes “SUPPORT for Patients and Communities Act” — A Rare Example of Bi-Partisanship

The Texas Medical Association (TMA) and Blue Cross Blue Shield of Texas are launching a new services company, TMA PracticeEdge, to facilitate bringing the benefits of value-based reimbursements to the state’s independent physicians.

Independent practitioners face challenges to participating in (and benefitting from) alternatives to fee-for-service payment, such as having the funds necessary to invest upfront in resources for improved care management. TMA PracticeEdge aims to help providers address the barriers. The company, for example, will offer consultations on basic practice management and administrative simplification, assistance with the implementation of health information technology infrastructure, and experience with risk-based contracts. Additional services will be available for practices interested in creating care teams or developing an Accountable Care Organization.

Continue Reading New Venture Seeks to Support Independent Physicians in Texas

Approximately one-third of Medicaid spending, $136 billion, is on long-term services and supports (LTSS).  While the majority of Medicaid LTSS takes place in institutional settings, such as nursing facilities and mental health facilities, there is an ongoing emphasis on the role of non-institutional facilities. A growing number of states, from 8 in 2004 to 16 in 2012 and an expected 26 through 2014, are adopting a managed care approach to expanding home-and community-based services. This transition is commonly referred to as a “rebalancing” of LTSS systems.

Continue Reading New Approaches – and Increasing Oversight – for Medicaid Managed Long Term Services and Support

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On July 3, District Judge Ada Brown of the Northern District of Texas issued an order enjoining the Federal Trade Commission (“FTC”) from enforcing its “Final Rule” against plaintiffs Ryan, LLC (“Ryan”) and the U.S. Chamber of Commerce (the “Chamber”). If implemented, the Final Rule would effectively render nearly all non-compete agreements unlawful. Accordingly, this opinion was one of the most highly anticipated judicial decisions in antitrust and labor and employment law in recent memory.

Continue Reading Not So “Final”? Texas Federal Court Enjoins Enforcement of FTC’s Noncompete Ban, Leaving Future of Commission’s Rule in Doubt
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On Wednesday, a federal court in Texas stayed provisions of the Centers for Medicare & Medicaid Services’ (“CMS”) contract year 2025 Final Rule that amended the longstanding Medicare Advantage (“MA”) and Part D agent and broker compensation methodology and prohibited certain terms in contracts with third party marketing organizations (“TPMOs”). This decision follows two lawsuits filed against CMS and the Department of Health and Human Services (“HHS”) arguing that the Final Rule exceeds CMS’s statutory authority, is arbitrary and capricious, and was promulgated without complying with procedural requirements.[1] The Texas federal judge stayed the effective date of the “Fixed Fee” and “Contract-Terms Restriction” (i.e., 42 C.F.R. § 422.2274(a), (c), (d), (e) and § 423.2274(a), (c), (d), (e)) of the Final Rule during the pendency of the lawsuits, and chose not to remand to the agency, instead promising an expeditious ruling on the merits at the parties’ request.

Continue Reading Texas Court Stays CMS CY2025 Final Rule on Agent and Broker Compensation and Contract Term Restrictions
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On June 10, 2024, the U.S. Supreme Court granted certiorari in Advocate Christ Medical Center v. Becerra[1] for the October 2024 – 2025 term to review a D.C. Circuit Court of Appeals ruling potentially affecting up to $4 billion in federal funding for hospitals.[2] The Supreme Court will determine whether the federal Department of Health and Human Services (“HHS”) properly reimbursed hospitals for providing care to patients receiving financial aid from the Supplemental Security Income Program (the “SSI Program”).[3] Hospitals benefiting from Medicare reimbursement adjustments for treating low-income patients should closely monitor this case, as a favorable ruling for the plaintiffs may impact how hospitals are reimbursed for similar claims in the future.

Continue Reading SCOTUS to Review Case Impacting Medicare Reimbursement for Hospitals Treating Low-Income Patients