I was struck on the first day of the 41st Annual J.P. Morgan Healthcare Conference by Sanjay Doddamani (CEO of UpStream Healthcare) saying that “Health is a state of independence.” A simple statement, but a very profound and interesting lens through which to view the Day One Medicare Advantage-focused company presentations. Perhaps it struck a chord in me because, in a flurry of presentations today touting patient net promoter scores (NPS), that simple statement brings to mind the feelings associated with dignity, respect, self-reliance and, perhaps most importantly, choice – concepts that are hard to quantify into a neat NPS number but which we all recognize and understand. Good health indeed does allow us the chance to be independent, while poor health, economic insufficiency and/or aging can force us into dependence, burden and obligation. I don’t have to take a scientific poll to determine which you personally would prefer.…

Continue Reading Day 1 Notes from the 41st Annual J.P. Morgan Healthcare Conference

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a broad proposed rule that would ban employers from imposing noncompete clauses on their workers. The FTC press release announcing the proposed rule states that noncompete clauses—which apply to about one in five American workers—suppress wages, hamper innovation, block entrepreneurs from starting new businesses and reduce American workers’ earnings between $250 billion and $296 billion per year.[1] The proposed rule would prohibit employers from: (1) entering into or attempting to enter into a noncompete with a worker; (2) maintaining a noncompete with a worker; or (3) representing to a worker, under certain circumstances, that the worker is subject to a noncompete. The term “worker” covers paid staff in addition to independent contractors and unpaid staff. The proposed rule does not apply to noncompete provisions imposed upon 25% owners of a business in transaction documents related to the sale of the business. The proposal is subject to a 60-day public comment period commencing when the Federal Register publishes the proposed rule.…

Continue Reading FTC Seeks to Ban Noncompete Agreements in Employment Contracts

Introduction

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 (the “Act”). The Act provides for nearly $1.7 trillion in funding across a range of domestic…

Continue Reading Key Healthcare Provisions of the Consolidated Appropriations Act, 2023

Just in time for the holidays, the Centers for Medicare and Medicaid Services (“CMS”) issued the Contract Year 2024 Proposed Rule for Medicare Advantage organizations (“MAOs”) and Part D sponsors (the “Proposed Rule”). The Proposed Rule includes changes on an array of topics including: Star Ratings, medication therapy management, marketing and communications, health equity, provider directories, coverage criteria, prior authorization, behavioral health services, identification of overpayments, requirements for valid contract applications, and formulary changes. …

Continue Reading CMS Issues CY2024 Proposed Rule for Medicare Advantage Organizations and Part D Sponsors

The New Year energizes us to plan for success in the coming months. To increase the odds of meeting your business goals, we suggest taking a quick inventory of legal risks and brainstorming corrective actions for 2023. While important, legal risks may not seem urgent until a related problem impacts your business (i.e., you are subject to litigation, a business dispute erupts over unclear contract terms, an insurer or Medicare Administrative Contractor notifies you of billing/coding problems, or an employee makes a claim). Once present, legal risks can take a significant amount of time, expense, and energy to resolve that could be spent elsewhere in your business. We recommend taking a few minutes today to ask yourself the following questions:…

Continue Reading Are You Ready for 2023? Here’s a Quick Checklist to Reduce Legal Risks in the New Year

On December 21, 2022, the Department of Health and Human Services (“HHS”) issued a proposed rule aimed at advancing health equity and mitigating health disparities while minimizing administrative burden. The HHS Notice of Benefit and Payment Parameters for 2024 (“Proposed Rule”) would streamline ACA health plan selection, simplify marketplace enrollment, and expand access to care for low-income and medically underserved consumers through revision of network adequacy and essential community provider (“ECP”) standards. These proposed changes came in the midst of a record-breaking ACA Marketplace enrollment period, highlighting the increased demand for affordable health care coverage.…

Continue Reading HHS Proposes Health Insurance Market Reforms for 2024

The Centers for Medicare and Medicaid Services (“CMS”) has issued a proposed rule which would amend the existing regulations for reporting and returning identified overpayments (the “Proposed Rule”). Specifically, with respect to the meaning of “identification” of overpayment, CMS proposes to eliminate the “reasonable diligence” (or traditional negligence) standard and replace it with the False Claims Act’s (“FCA’s”) standard of “knowing” and “knowingly” (i.e., reckless disregard or deliberate ignorance of a potential overpayment).…

Continue Reading CMS Proposes to Amend Overpayment Rule, Remove Potential Overpayment and False Claims Act Liability for Mere Negligence

As surges in various respiratory illnesses – including COVID-19 – loom over holiday gatherings, the Centers for Medicare & Medicaid Services (“CMS”) held an Open Door Forum for skilled nursing facility (“SNF”) providers addressing their obligations to offer/provide COVID-19 vaccinations, vaccination education and COVID-19 treatments, and gave providers the opportunity to bring up questions about obstacles they are facing in achieving compliance with the federal requirements.…

Continue Reading Long Term Care Update: As Winter Arrives, CMS Renews its Emphasis on COVID-19 Vaccinations, Bivalent Boosters and Timely Therapeutic Treatments

In a recent blog post, we described general registration and application considerations for employers seeking to enroll in California’s new Hospital and Skilled Nursing Facility COVID-19 Retention Payment Program (the “WRP”) on behalf of their employees, including details on eligibility, qualifying periods, and defined legal terms. Readers have asked how to analyze whether physicians and other employees who perform at least some “management” or “supervisory” duties qualify for the WRP, which we address here.…

Continue Reading Who is a Manager or Supervisor Excluded from California’s Healthcare Worker Retention Payment Program?

It is widely reported that healthcare is a top antitrust enforcement priority in the U.S. The healthcare industry has undergone a transformation over the over the last twenty years and now comprises 17.7% of the U.S. gross domestic product and over $3.795 trillion of the U.S. government budget. Mega-deals among national payors and household names have grabbed headlines and been targets of enforcement by the U.S. Department of Justice, Antitrust Division (the “DOJ”) and Federal Trade Commission (“FTC”) (collectively, “the Agencies”). …

Continue Reading Private Equity & Healthcare: Antitrust Enforcement in 2023–PE Roll-Ups in the Cross Hairs