The year 2020 was an eventful one in the world of healthcare antitrust. The year began with the announcement of the precedent-setting settlement of the California Attorney General’s action against Sutter Health and ended with the settlement of multi-district antitrust litigation against the Blue Cross Blue Shield Association (and its member Blues). Along the way, Congress passed legislation repealing the antitrust protections that health insurers had enjoyed for 75 years under the McCarran Ferguson Act, the Federal Trade Commission lost its first hospital merger challenge in many years, and the Department of Justice Antitrust Division made good on its threats to bring criminal antitrust actions in healthcare. After such an eventful year, what is 2021 likely to bring in the way of further developments? Look for these issues to dominate the healthcare antitrust headlines in 2021:
Hospitals that are not ready for the Centers for Medicare & Medicaid Services (CMS) new transparency requirement must act quickly. CMS has advised that the new year will begin with new auditing and monitoring of these requirements.
Anthem, Inc., (Anthem) and Express Scripts, Inc., (Express Scripts) had a big win this week, creating another setback for plaintiffs filing ERISA lawsuits against pharmacy benefits managers (PBMs). On December 7, 2020, the Second Circuit Court of Appeals upheld U.S. District Judge Edgardo Ramos’s decision that Anthem and Express Scripts did not violate fiduciary obligations under the Employer Retirement Income Security Act (ERISA) because neither party acted as an ERISA fiduciary with regard to decisions that allegedly led to higher prescription drug prices for patients and plans. (See Doe v. Express Scripts, Inc., 2020 WL 7133860, (C.A.2 (N.Y.), 2020)).
There has been a longstanding and regrettable practice in the healthcare industry of pharmaceutical and medical device companies giving physicians gifts as illegal inducements. Concerned about this continued trend, the U.S. Department of Justice (DOJ) and the Department of Health and Human Services’ Office of Inspector General (OIG) issued important warnings regarding providing inducements to healthcare providers (HCPs) – just in time for the holiday season! On October 29, 2020, the DOJ announced its first-ever enforcement action for a violation of the Open Payments Program reporting requirements. On November 16, 2020, the OIG issued a Special Fraud Alert regarding the potential Anti-Kickback Statute implications inherent in speaker programs. Pharmaceutical manufacturers, medical device companies, and HCPs should read the guidance carefully and be extremely cautious before accepting or offering any remuneration this holiday season and beyond. Continue Reading
The Federal Trade Commission (“FTC”) has failed – at least for now – in its efforts to derail a merger between Thomas Jefferson University Health System and Albert Einstein Health System, two Philadelphia-area health systems. In a decision announced on December 8, Judge Pappert, District Judge for the Eastern District of Pennsylvania, ruled that the FTC, which was joined in the action by the Pennsylvania Office of the Attorney General (“PA AG”), had failed to demonstrate that the merger should be enjoined. In reaching this decision, the Court held that the FTC had failed to show that there would be an insufficient number of alternative providers of hospital services in the region to limit the ability of the merged entity to increase prices post-merger. Accordingly, absent an appeal by the FTC and/or the PA AG to the Third Circuit, and a successful request for a stay of the lower Court’s ruling, the merging parties will likely complete their merger in the coming weeks. Continue Reading
Anyone who interacts with third party payors encounter acronyms on a regular basis. While acronyms are intended to facilitate efficient communication, their use often instead leads to confusion. This blog is intended to provide a brief overview of some commonly used acronyms in managed care. Please note that, although some of the acronyms are specifically applicable to Florida, most are used throughout the country. Also note that the following are general descriptions intended to provide a high-level understanding of the acronyms. Please refer to your specific jurisdiction for more detailed definitions. For ease of reference, we have included links to the 2020 Florida statutory definitions where applicable. Continue Reading
As the world continues to grapple with the COVID-19 pandemic that has taken the lives of over 250,000 Americans, and worldwide over 1 million people, this year, an effective vaccine has emerged as our silver bullet – a way for the nation, and the world, to fight back and, in time, begin to return to some semblance of normalcy. There is some encouraging news on that front, as there are two promising separate clinical trials that have produced potentially viable vaccine candidates in the pipeline for potential emergency approval by the US Food and Drug Administration (FDA), with others possibly coming soon as well. Continue Reading
During the COVID-19 pandemic, telehealth usage has dramatically increased, as discussed in a recent Health Law Rx post. Telehealth makes it easier for individuals who cannot drive, including many minors, to seek necessary care, leading to many questions regarding when “minors” (individuals under 18 years of age) can consent to treatment – when the “disability of nonage” has been removed. Read more here and here. The following overview of the relevant Florida laws is meant to help healthcare providers determine when minors can and cannot consent to their own treatment.
After over 8 years of hard-fought litigation, the Blue Cross and Blue Shield Association, together with its 36 Blue Cross/Blue Shield members (“the Blues”), recently announced a proposed settlement of class action antitrust litigation (In re Blue Cross Blue Shield Antitrust Litigation) brought against them by a nationwide class of subscriber members. The settlement terms, summarized in the plaintiffs’ motion seeking the Court’s approval of the settlement, includes both the payment of substantial monies to the plaintiff class ($2.67 billion) and significant agreed-to changes to the way in which the Blues operate. Continue Reading
COVID-19 has made healthcare organizations acutely aware of the need to fine-tune their internal safety systems. The National Steering Committee for Patient Safety (NSC), comprised of 27 organizations, has come to the rescue. NSC recently released guidance entitled, “Safer Together: A National Action Plan to Advance Patient Safety” (the Plan). The Plan provides a methodology for improving safety and reducing harm by outlining 17 recommendations within 4 foundational areas throughout healthcare.