C&M Health Law

C&M Health Law

Analysis, commentary, and the latest developments in health care law and policy

A. Xavier Baker

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CMS Signals Future Patient Access Requirements for Medicare Advantage Plans

Posted in Health IT, Medicare
Building on momentum from Administrator Seema Verma’s announcement of the MyHealtheData initiative at HIMSS 2018, CMS has published more clues as to future action to liberate health information for patients. In the CY 2019 call letter to Medicare Advantage organizations and Part D programs, CMS describes the Blue Button 2.0 project and its use of… Continue Reading

Iowa Enacts Legislation to Broaden Access to Association Health Plans

Posted in ERISA, Exchanges, Health Care Reform & ACA
Iowa has enacted legislation to permit the offering of certain health benefit plans that would not be subject to the restrictions of the Affordable Care Act (ACA). The bill combined two separate measures, each intended to expand access to association health plans (AHPs) that are exempt from many of the ACA’s protections. First, the new… Continue Reading

States Seek Control over Association Health Plans in Comments on DOL Proposed Rule; Iowa Senate Approves Bill Expanding Availability of Association Health Plans—Potentially to the Detriment of ACA Exchange Plans

Posted in ERISA, Health Care Reform & ACA
The Department of Labor’s proposed rule on association health plans (AHPs), issued in response to an October 12, 2017 Executive Order, has received almost 900 comments, including from several states and the District of Columbia (see, e.g., comments from Alaska, Iowa, Massachusetts, Montana, Pennsylvania, and Wisconsin). States emphasized the need for clarity in the rule… Continue Reading

White House Proposes Language to Congress Eliminating CSR Reimbursement for 2017

Posted in Exchanges, Health Care Reform & ACA
On March 8, the White House encouraged Congress to pass stabilization legislation that would not authorize the reimbursement of cost-sharing reductions (CSRs) made by health plans in 2017, as reported by Modern Healthcare. This move comes almost five months after the Trump Administration’s announcement in October that it would discontinue CSR payments effective immediately. The… Continue Reading

Trump Administration Rejects (Nicely) Idaho’s Attempt to Skirt ACA

Posted in Exchanges, Health Care Reform & ACA
On Thursday, March 8, the Trump Administration rejected Idaho’s plan to sell health plans that do not include the consumer protections required by the Affordable Care Act (ACA). The rejection came in the form of a letter touting adherence to current law, though in many ways the letter was written by an apologetic Centers for… Continue Reading

Supreme Court: FEHBA Preempts State Subrogation Prohibitions

Posted in Federal Employees Health Benefits Program (FEHB)
The U.S. Supreme Court unanimously decided, in Coventry Health Care of Missouri, Inc. v. Nevils, that the Federal Employees Health Benefits Act (FEHBA) preempts state laws that prohibit subrogation recovery by health insurance carriers. FEHBA expressly preempts state law. Specifically, “[t]he terms of any contract under this chapter [5 U.S.C. § 8901, et seq.] which… Continue Reading

HHS Proposes New Regulations Aimed At Stabilizing the Individual Market

Posted in Exchanges, Health Care Reform & ACA
The Centers for Medicare & Medicaid Services (CMS) issued a proposed rule  to stabilize the individual and small group markets to entice issuers to continue participation in the exchanges in 2018 despite continued uncertainty surrounding repeal and replacement proposals for the Affordable Care Act (ACA). The proposed rule, published today, would make the following changes… Continue Reading

CMS Publishes Interim Final Rule to Address Third-Party Payment of Insurance Premiums by Medicare-certified Dialysis Providers

Posted in Exchanges, Fraud, Waste & Abuse, Health Care Reform & ACA, Medicaid, Medicare
On December 14, 2016, CMS issued an interim final rule with comment period to amend Medicare’s dialysis facility conditions for coverage to require certain disclosures to patients and health insurance issuers to address widespread concerns over inappropriate steerage of dialysis patients to individual market plans. After issuing an RFI about “inappropriate steering of people eligible… Continue Reading

Court Delays Action on Appeal of ACA Subsidies Case

Posted in Exchanges, Health Care Reform & ACA
On December 5, 2016, the U.S. Court of Appeals for the D.C. Circuit issued an order to stay  the administration’s appeal of the district court decision in U.S. House of Representatives v. Burwell, a case challenging Cost-Sharing Reduction (“CSR”) payments to health insurance issuers under the Affordable Care Act (“ACA”) Section 1402. The district court… Continue Reading

CMS Renews Focus on Third-Party Payment of Insurance Premiums Steering Medicaid & Medicare Eligibles into Marketplace Plans

Posted in Exchanges, Fraud, Waste & Abuse, Health Care Reform & ACA, Medicaid, Medicare
On August 18, 2016, CMS issued a request for information on “inappropriate steering of people eligible for Medicare or Medicaid into Marketplace plans” by third parties. CMS voiced concern over “anecdotal reports” that Medicaid or Medicare eligibles received premium and cost-sharing assistance from third parties so they could enroll in Marketplace plans, enabling providers to… Continue Reading

CMS Issues Proposed 2017 Benefit and Payment Parameters Rule

Posted in Health Care Reform & ACA
On December 2, 2015, CMS will publish a notice of proposed rulemaking for its Notice of Benefit and Payment Parameters for 2017 (“Proposed Rule”). The Proposed Rule articulates the federal government’s policy for health care coverage under Affordable Care Act programs and would make several notable changes, including stricter network adequacy requirements for qualified health plans offering… Continue Reading

IRS Publishes Final Rule on CO-OP Insurer 501(c)(29) Tax Exempt Status

Posted in Health Care Reform & ACA, Tax
Today the Department of Treasury and the Internal Revenue Service (IRS) published final regulations specifying how Consumer Operated and Oriented Plans (CO-OPs) may obtain tax exempt status under Internal Revenue Code Section 501(c)(29) as “Qualified Nonprofit Health Insurance Issuers” (QNHIIs). The IRS had previously issued guidance in Rev. Proc. 2012-11, which the IRS intends to… Continue Reading

United States Appellate Courts Issue Dueling Opinions on Availability of Tax Credits in Federally Facilitated Exchanges

Posted in Exchanges, Health Care Reform & ACA, Litigation
The Obama Administration received mixed messages yesterday when two federal appellate courts issued contradictory rulings on whether tax credits are available for individuals to purchase health insurance from federally facilitated Exchanges operating in 36 states. The U.S. Court of Appeals for the D.C. Circuit delivered a stiff rebuke to the Obama Administration, issuing a 2-1… Continue Reading

Agent and Broker Costs Trigger Millions in MLR Rebates

Posted in Health Care Reform & ACA
The Government Accountability Office (GAO) agent and broker fees and commissions comprise the largest non-claims cost for insurers in the individual and group markets and, as such, trigger millions of medical loss ratio (MLR) rebates under the MLR rule. GAO published the report, titled Private Health Insurance Early Effects of Medical Loss Ratio Requirements and… Continue Reading

ACA Regulatory Preview: CRS Teases Upcoming ACA Rulemakings

Posted in Health Care Reform & ACA, HIPAA & Privacy, Mental Health Parity
The Congressional Research Service published a report detailing more than a dozen pending ACA-related rulemakings. The report comes on the heels of the Spring 2014 Unified Agenda and identifies 14 proposed rules and 17 final rules regarding the ACA that are expected during the next twelve months. Notable expected proposed rules include: CY 2016 Notice… Continue Reading

Marriage Equality and Medicare: Obama Administration Announces Same-Sex Couples Equally Entitled to Medicare Benefits

Posted in Medicare
Continuing the national trend toward marriage equality, the Obama Administration announced that it will allow same-sex married couples to qualify for Medicare benefits just like opposite-sex married couples. Following last June’s landmark Supreme Court decision in U.S. v. Windsor, which held that Section 3 of the Defense of Marriage Act (DOMA) is an unconstitutional deprivation… Continue Reading

Non-grandfathered Plans Must Make Available Coverage for Same-Sex Spouse to the Same Extent Coverage is Available for Opposite-sex Spouses

Posted in Health Care Reform & ACA
CMS issued an FAQ on coverage of same-sex spouses under PHSA section 2702, which requires health insurance issuers offering non-grandfathered health insurance coverage in the group or individual markets to guarantee the availability of coverage with certain exceptions. The FAQ clarifies that a health insurance issuer in the group or individual market that offers coverage… Continue Reading

Mere Days After Comment Period Closed, CMS Abandons Four Aspects of CY 2015 Medicare Advantage and Part D Rule

Posted in Medicare
In a March 10, 2014 letter to Congress, CMS Administrator Marilyn Tavenner indicated that—based on concerns from Congress and the public—CMS shall not finalize the Proposed Rules’ proposals that would have: Removed the protected class definition for immunosuppressant drugs used in transplant patients, antidepressants, and antipsychotic medicines used to treat schizophrenia and certain related disorders… Continue Reading

CMS Issues Guidance on Internal Revenue Ruling 2013-17 re Same-Sex Marriage

Posted in Exchanges, Health Care Reform & ACA, Litigation, Medicaid
In the wake of United States v. Windsor, the case in which the Supreme Court held the Defense of Marriage’s (DOMA) prohibition on federal recognition of same-sex marriages unconstitutional, the Internal Revenue Service issued Internal Revenue Ruling 2013-17. The Ruling held that same-sex individuals who were married under state law would be considered married for… Continue Reading

CMS Publishes Proposed Rule on Basic Health Program

Posted in Exchanges, Health Care Reform & ACA, Medicaid
On September 25, 2013, the Centers for Medicare and Medicaid Services (CMS) published a proposed rule to establish the Basic Health Program pursuant to Section 1331 of the Affordable Care Act (ACA). The Basic Health Program aims at assisting individuals whose incomes exceed the threshold for Medicaid and similar programs, but who cannot afford to purchase… Continue Reading

CMS Issues Proposed Rule Regarding ACA Exchanges’ Financial Integrity and Oversight

Posted in Exchanges, Health Care Reform & ACA
On September 19, 2013, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule regarding financial integrity and oversight standards with respect to Affordable Care Act Insurance Exchanges. As of January 1, 2014, Affordable Insurance Exchanges (“Exchanges”) can make available private health insurance coverage for qualified individuals and employers. This proposed rule outlines… Continue Reading

Fourth Circuit Upholds Constitutionality of Both Individual and Employer Mandate

Posted in Exchanges, Health Care Reform & ACA, Litigation
On July 11, 2013, the U.S. Court of Appeals for the Fourth Circuit, reconsidering a case in light of National Federal of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (hereinafter NFIB), upheld the constitutionality of both the individual mandate and employer mandate of the Patient Protection and Affordable Care Act (ACA). In Liberty University… Continue Reading

FEHB Program Carrier Letter re Affordable Care Act (ACA) Medical Loss Ratios (MLR) in the Federal Employees Health Benefits (FEHB) Program

Posted in Federal Employees Health Benefits Program (FEHB), Health Care Reform & ACA
On April 10th, 2013, the U.S. Office of Personnel Management (OPM) Director of Healthcare and Insurance released an FEHB Program Carrier Letter outlining the ACA MLR procedures for FEHB insurance carriers and related entities. The Carrier Letter may be found here. Under the ACA, all health insurance issuers—including FEHBP carriers—must submit MLR calculations to the… Continue Reading