The Sun is Rising on COVID Liability Protection for Florida Healthcare Providers

Posted in Government Affairs, Licensure & Regulatory, Health Care Providers, Healthcare Law, Hospitals & Health Systems

Good news is here for healthcare providers worried about being left out of COVID-19-related liability protections during the 2021 Florida Legislative Session! The Republican-led Legislature, supported by Governor Ron DeSantis, is upholding its commitment to protect businesses, including healthcare providers, from frivolous lawsuits filed because of exposure to COVID-19. While only a Senate-version of legislation for healthcare providers has been filed, the chair of the House Health & Human Services committee, Representative Colleen Burton (R-Lakeland), has unveiled a committee bill (PCB HHS 21-1) that has garnered early support from House Speaker Chris Sprowls (R-Palm Harbor).

In the meantime, Senate measure SB 74, recently-filed by Senator Jeff Brandes (R-St. Petersburg), was heard last week in its first committee of reference – Senate Judiciary, which is chaired by Senator Brandes. As filed, SB 74 provides immunity from civil liability for healthcare providers (including, but not limited to, hospitals, nursing homes, assisted living facilities, home health providers, and doctors) if supplies or personnel were not available to comply with government health standards or guidance related to the pandemic. Continue Reading

Valentine’s Day: Listen to Your Heart, But Not On a Cell Phone

Posted in Healthcare Law, Healthcare Litigation, Hospitals & Health Systems, Physicians

Physicians at Henry Ford Hospital in Detroit made a “stunning” heart-altering discovery. New and improved magnets in the iPhone 12 (“12”) may cause heart defibrillators and pacemakers to malfunction, particularly when carried in a breast pocket (See publication).

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Klobuchar Antitrust Bill Could Have Significant Impact on Healthcare Industry

Posted in Antitrust, Government Affairs, Licensure & Regulatory, Hospitals & Health Systems

In early February, Senator Amy Klobuchar, new Chair of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, introduced the “Competition and Antitrust Law Enforcement Reform Act of 2021″(S225). While the legislation is widely understood to be intended to address perceived shortcomings in the ability of federal authorities to regulate the largest and most dominant companies in the information technology industry (Big Tech) under the antitrust laws, the legislation is not limited to that industry, and if enacted, the legislation could have a significant impact on larger health systems and health insurers as well. Continue Reading

CMS Tells States and Providers: Value-Based Care is the Answer

Posted in Healthcare Law, Healthcare Litigation, Hospitals & Health Systems, Physicians

The Centers for Medicare & Medicaid Services (CMS) has sent a clear message to states and providers: they already have the tools to improve healthcare. Through a combination of value-based arrangements and already existing services and supports, states and providers can address the social determinants of health (SDOH). This will lead to an improvement in health outcomes, a reduction in health disparities, and lowered healthcare costs. Continue Reading

New Supreme Court Ruling Affirms State Regulation of PBM Reimbursement Pricing

Posted in Healthcare Law, Hospitals & Health Systems, Pharmacy, Drugs, Medical Devices & Equipment, Physicians

The U.S. Supreme Court ruled against pharmacy benefit managers (“PBMs”) last month, in a decision that marks a major win for state regulators. (See Rutledge v. Pharmaceutical Care Management Association, 2020 WL 7250098 (U.S. 2020)). On December 10, 2020, the U.S. Supreme Court held that Arkansas’s Act 900, which “effectively requires PBMs to reimburse Arkansas pharmacies at a price equal to or higher than the pharmacy’s wholesale cost,” is not preempted by the Employee Retirement Income Security Act of 1974 (ERISA). Continue Reading

Florida Pharmacy Collaborative Practice Agreements: Defining the Scope of Practice

Posted in Healthcare Law, Pharmacy, Drugs, Medical Devices & Equipment, Physicians

While the COVID-19 pandemic made 2020 a trying year, one unintended benefit was that the Florida legislature allowed pharmacists to further expand their scope of practice to help patients with certain chronic conditions through collaborative practice agreements. Though, as discussed below, they did not make it easy. Continue Reading

Physicians: Beware of FTC Rules for Product Endorsements

Posted in Pharmacy, Drugs, Medical Devices & Equipment, Physicians

It has become increasingly common for physicians and other healthcare professionals to share medical information with the public via video platforms, blogs, and social media sites. That can be a great public service, especially during the pandemic, but when public communications include a positive review or other favorable mention of medical products or services, such statements can unwittingly come within the purview of the Federal Trade Commission (“FTC”).

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Healthcare Antitrust – What to Expect in 2021

Posted in Antitrust, Government Affairs, Licensure & Regulatory

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:

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Second Circuit Sends PBM “Clawback” Litigation Plaintiffs Back to the Drawing Board

Posted in Healthcare Law, Healthcare Litigation, Hospitals & Health Systems, Physicians

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)).

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