Recent Posts

  • The Stewardship of Hospitals
    May 16, 2024
    By: David Ostrowsky Hospitals, ambulatory surgery centers, long-term care facilities, primary care physician practices, nursing homes, hospice care. They are the most indispensable institutions of any functioning society, but unlike a Fortune 500 company or professional sports franchise, the identity of their respective owners often remains an afterthought. That is, unless you work for or are served by a financially distressed health care system, such as for example Steward Health Care, the massive private-for-profit healthcare conglomerate that recently filed for Chapter 11 bankruptcy protection. Steward’s sad demise, one of the most impactful health care stories this spring, serves as a cautionary ...
  • The End of a (Brief) Era
    May 2, 2024
    By: David Ostrowsky It was a nice feel-good story of corporate America helping the commonfolk. Five years ago, Walmart, the multi-billion-dollar retail behemoth, opened its first-ever health clinic in Georgia. Soon, dozens more Walmart-sponsored clinics started opening their doors across not just Georgia, but also Arkansas, Florida, Illinois, Missouri, and Texas. Most of these pop-up clinics operated in rural communities where chronic diseases were rampant and (affordable) primary care options were scarce. Irrespective of the pandemic soon unfolding, they served their purpose: customers shopping for microwaveable dinners and bath supplies could stop by for a doctor’s appointment, get stitched up, ...
  • IDR: The Confusion Never Ends!
    April 8, 2024
    By: Jon Jablon, Esq. It seems like every day that The Phia Group's consulting team is presented with an IDR-related issue brought up by either a provider in an appeal or simply a TPA trying to iron out or streamline its processes. Sometimes the question centers around the specifics of the IDR process, but sometimes the question instead focuses on the very concept of IDR itself and when it becomes applicable to begin with. By definition, the IDR process, as prescribed by the No Surprises Act, is intended specifically and only to choose between two competing offers. For IDR ...
  • Reimbursing . . . Medicaid?
    April 3, 2024
    By: David Ostrowsky It is the most nightmarish version of a wolf at the door. Imagine that you have recently lost a loved one, are still in the midst of grieving, feeling sleep deprived, dealing with a bevy of uncomfortable logistical issues, and then told . . . that you may have to forfeit your house. Such a dire predicament befalls tens of thousands of Americans whose recently deceased relatives were Medicaid beneficiaries who received long-term care services (i.e., nursing home care or in-home healthcare) and never reimbursed their respective state of residence. (Although it should be noted that ...
  • Lenmeldy: The World’s New Most Expensive Drug
    April 1, 2024
    By: Kendall Jackson, Esq. The U.S. Food and Drug Administration (FDA) stoked the fire that is the ever-present discussion surrounding gene therapy when it approved Lenmeldy on March 18, 2024. Lenmeldy is the first FDA- approved gene therapy to treat metachromatic leukodystrophy (MLD), a rare disease that affects the brains and nervous systems of children in their late infantile and early juvenile years. Lenmeldy is just one of several gene and cell therapies that, due to their high cost, lead plans to consider implementing plan exclusions for these therapies. While a self-funded plan has broad discretion as to what ...
  • Wegovy: Not Just a Weight Loss Drug
    March 20, 2024
    By: David Ostrowsky As if there weren’t enough buzz surrounding Wegovy. Earlier this month, the wildly popular weight loss medication was approved in the US to help prevent life-jeopardizing cardiovascular events in people who are overweight, obese, and/or have a history of cardiovascular disease. The FDA’s stamp of approval for drugmaker Novo Nordisk to include cardiovascular benefits to Wegovy’s label meant it was the first weight loss drug to market itself in this manner. Now the million-dollar question (no pun, intended) becomes, will this label expansion make insurers feel more inclined to provide coverage? For good measure, will Medicare, currently ...
  • The Indirect (But Significant) Impact of a Recent Massive Healthcare Breach on Benefit Plans
    March 11, 2024
    By: Andrew Silverio, Esq. It’s not often we see a healthcare/health benefit story so big that it crosses into the mainstream. The recent cyberattack in the healthcare industry is just that type of story, however, and the American Hospital Association has already called it “the most significant cyberattack on the U.S. health care system in American history.”  At stake were over 14 billion yearly transactions and this attack has seriously disrupted provider billing, interfering with patient care, and even preventing some providers from paying their employees. On top of that, a massive amount of patient information, protected under HIPAA, ...
  • How the Recent Industry Cyberattack Impacts You
    March 7, 2024
    By: David Ostrowsky Late last month, an apparent massive cybersecurity incident involving the potential theft of patient data – this could entail personally identifiable information, sensitive health information, and financial information -- and encrypted company files seemingly paralyzed one of the nation’s largest pipelines for healthcare payments and prior authorization processing. Impacting a substantial percent of Americans’ medical claims (billions of claims totaling over a trillion dollars per year), millions have been affected. But perhaps the worst part is that many don’t even know it – and won’t be aware until they need to visit their physician or refill a ...
  • Millions Saying Good-Bye to Medicaid
    February 22, 2024
    By: David Ostrowsky That millions of Americans have been losing Medicaid coverage over the past year may be unsurprising, but it doesn’t make it any less heartbreaking. Some historical context: Normally, Medicaid recipients who receive federally funded health insurance due to disabilities or low incomes undergo eligibility reviews every year to see if they are eligible for renewed coverage. But, of course, March 2020 was far from a normal time and the feds froze the checks due to it being a public health emergency. Subsequently, Medicaid recipients would retain their enrollment for the following three years . . . until ...
  • Welcome to the Subrogation Sphere
    February 9, 2024
    By: Cindy Merrell, Esq. The Subrogation Sphere Is a Place Where Opponents Become Allies   Las Vegas does not have the only sphere that can provide an extraordinary experience for its participants. Let me introduce you to the subrogation sphere where participants may first appear to have conflicting interests but can become allies. When a health plan member is injured because of a third-party action it sets into motion a dance involving many players, potentially including the plan participant, at-fault party, medical providers, stop loss carrier, and the health plan. Each player is trying to determine which player is the ...
  • Are Measles Making a Comeback?
    January 31, 2024
    By: David Ostrowsky When Dr. Michael Osterholm speaks, people listen – even if many do so begrudgingly. The ever-serious epidemiologist out of Minnesota, who forewarned of a global pandemic years ago and has garnered the not-so-flattering nickname “Bad News Mike,” has a new dire message about the recent measles outbreak, one to which children are most susceptible, that has started to trickle through pockets of Europe and, more recently, the US: “We're going to start seeing more and more of these outbreaks,” Osterholm told USA TODAY last month. “We're going to see more kids seriously ill, hospitalized and even die. And ...
  • A New Year Brings New (Higher) Prescription Drug Prices
    January 18, 2024
    By: David Ostrowsky It must be January. W-2 forms are hitting the mail. Fitness centers are packed to the brim. The NFL playoffs are in full force. And, yes, pharmaceutical companies are hiking prices on their drugs. This time of year, when insurance plans turnover, Big Pharma unveils its list of new (aka elevated) prices for drugs, which, particularly concerning newly launched ones, sparks sticker shock for consumers. Certainly, January 2024 does not appear to be an exception to this unpleasant trend. On December 29 -- as many were making last-minute New Year’s Eve plans – the unsettling news dropped: ...
  • Considerations Regarding the Exclusion of Gender-Affirming Care
    January 16, 2024
    By: Kendall Jackson, Esq. Gender-affirming care was a particularly popular topic throughout 2023. As we enter the new year, the prevalent discussion concerning plan coverage of such care will certainly continue. For self-funded health plans, the decision of whether to cover or exclude gender-affirming care is quite multilayered. Specifically for plans that exclude gender-affirming care within their plan documents, there are several potential discrimination concerns. An important element when evaluating these concerns is what law applies to the plan. For instance, certain state laws may not apply to a self-funded plan governed by the Employee Retirement Income Security Act ...
  • Is the Department of Labor Offsetting a Major Problem?
    January 3, 2024
    By: David Ostrowsky As if Americans on employer-based health plans didn’t face enough obstacles in trying to obtain reasonably priced healthcare. The inconvenient truth is that many participants on ERISA self-funded health plans, ones who are often already paying high premiums and deductibles, have unknowingly fallen victim to the ethically questionable – although not technically outlawed -- practice of cross-plan offsetting over the years. In fact, only very recently, as in the past several months, has there been heightened awareness of the adverse effects of cross-plan offsetting on unsuspecting American plan participants. First, a quick primer on cross-plan offsetting: There ...
  • Time’s Up! It’s Gag Clause Attestation Season
    December 26, 2023
    By: Andrew Silverio, Esq. As the year wraps up and plans and TPAs around the country are scrambling to handle renewals, another challenge looms large in 2023 – the first annual gag clause attestation.  As a reminder, the Consolidated Appropriations Act, 2021 (CAA) prohibits plans from entering into any contracts with providers and certain other entities that contain “gag clauses” – and requires them to attest annually that their contracts are free of them. The first attestation is due at the end of 2023, and it will cover the period of December 27, 2021 through December 31, 2023. The goal ...
  • For Sickle Cell Disease Patients, Hope Has Arrived – but at What Cost?
    December 21, 2023
    By: Kelly E. Dempsey, Esq. For generations of sickle cell disease (SCD) patients, the suffering has been unbearable – with no end in sight. SCD, an inherited genetic red blood cell disorder that affects hemoglobin, the protein that carries oxygen throughout the body, torments nearly 100,000 Americans (20 million people worldwide), a disproportionate number of whom are African-American. Among other symptoms, SCD often triggers chronic bouts of excruciating pain that require regular hospitalization, organ failure, strokes, and shortened life expectancy. Meanwhile, the only known cure for the insidious disease has been a bone marrow transplant. Until last month, that is. ...
  • Is Artificial Intelligence the New Frontier for Healthcare?
    December 12, 2023
    By: David Ostrowsky The ills of the American healthcare system, namely an undue administrative burden on healthcare providers and a labor supply not keeping pace with the demand for services, have been well documented. But now, as we grind through the 2020s, relief may be on the way with the booming popularity (or in some cases, acceptance) of artificial intelligence (AI). Many healthcare experts believe that AI – a mechanism grounded in the simulation of human intelligence by computerized systems and one that has already changed how many humans learn and work – could revolutionize the field. But as enticing ...
  • MAHP 2023 Annual Health Care Conference: Health Care Affordability, Quality and Equity in a Post Pandemic World
    November 28, 2023
    By: David Ostrowsky A year later … and how (relatively) little has changed in the state of Massachusetts healthcare. Last November, the Massachusetts Association of Health Plans (MAHP) Annual Conference focused on healthcare challenges and opportunities – both from a regional and national perspective -- amidst a receding pandemic. The 2022 conference, headlined by then-Governor Charlie Baker, homed in on two topics: a.) healthcare equity and b.) regulation of provider prices. Twelve months later, on November 17, 2023, the MAHP 2023 Annual Conference, held once again at the Seaport Hotel in downtown Boston, had an eerily familiar theme: “Health ...
  • Minor Members and Third Party Settlements
    November 27, 2023
    By: Cindy Merrell, Esq. Does a self-funded ERISA plan have a right of recovery from a minor’s third-party liability claim? The answer is yes. However, there are various factors that can influence the Plan’s recovery in these circumstances. Federal courts across the country have recently considered a few challenges to a health plan’s right of recovery and clarified an ERISA plan’s right of recovery through reimbursement. What is abundantly clear is good plan language is vital to a health plan’s recovery. Who? What? When? Where? Any subrogation professional is aware that good plan language is important to a plan’s successful ...
  • Being Mindful of Telemedicine Access
    November 9, 2023
    By Jen McCormick, Esq. and David Ostrowsky From a healthcare standpoint, two of the most significant byproducts of the COVID-19 pandemic have been the exploding popularity of Telemedicine, the practice of providing medical and mental health services remotely, and a heightened awareness of many Americans’ longstanding mental health issues. Due to a confluence of prolonged extenuating circumstances, it became readily apparent to healthcare providers, politicians, social workers, employers, teachers, and parents on both sides of the Mississippi that a.) the inimitable convenience of virtual healthcare does not compromise quality (at least for some patients and practitioners) and b.) many Americans ...
  • Update on the Federal IDR Process
    October 27, 2023
    By: Kendall Jackson, Esq. Recently there has been significant discussion about the federal IDR process. The IDR process is an important tool of the No Surprises Act (“NSA”) as it resolves claims for payment for out-of-network items and services. It not only provides a procedure for settling disputed claims but is also an integral mechanism for supporting the NSA’s protection for plan members against potentially crippling expenses from balance billing for high-cost out-of-network claims. In Texas Medical Association v. United States Department of Health and Human Services, Case No. 6:23-cv-59-JDK (TMA IV), the U.S. District Court for the Eastern District of ...
  • Empowering the 2023 SIIA National Conference
    October 26, 2023
    By: David Ostrowsky Earlier this month, the self-insurance industry’s most prominent thought-leaders, innovative service providers, and esteemed subject matter experts convened at the 2023 Self-Insurance Institute of America (SIIA) National Conference at the JW Marriott Phoenix Desert Ridge Resort & Spa. The SIIA National Conference, which this year covered such pressing topics as artificial intelligence, surprise billing, emerging trends impacting the employer stop-loss market, and recent legislative and regulatory updates, is widely considered to be the self-insurance industry’s annual marquee event, bringing together hundreds of industry professionals including TPAs, vendors (there were over 950 booths representing industry vendors stationed in ...
  • District Court Strikes a Blow to Copay Accumulator Programs
    October 11, 2023
    By: Andrew Silverio, Esq. Many of our clients are aware of, or even utilize, “copay accumulator” programs – these programs create plan savings by not counting amounts received by patients from manufacturer assistance programs toward annual deductibles and out-of-pocket maximums.  Some programs go a step further by actually increasing the applicable copayment for certain drugs to maximize the amount a patient may be eligible to receive from manufacturers.  The Trump Administration’s Notice of Benefit and Payment Parameters for 2021 (“NBPP”) facilitated these programs by explicitly permitting plans to not count manufacturer assistance amounts toward annual deductibles or out of pocket maximums.  ...
  • Fall Is Here & So Are the Cold-Weather Germs – New CDC Recommendations
    September 26, 2023
    By: Kelly Dempsey, Esq. Fall is officially here as the fall equinox has passed and with fall comes the impending “flu season” which also brings a bunch of other germs – new strains of COVID-19 and a rise in RSV cases. If you have children who have headed back to school (even college kids), you’ve probably noticed an uptick in stuffy noses and tummy aches already. In anticipation of the upcoming turn in weather that brings an increase in viral illnesses, the Centers for Disease Control and Prevention (CDC) has been busy issuing new recommendations related to RSV – formally known ...
  • Three Shots for Autumn
    September 18, 2023
    By: David Ostrowsky It’s a daunting Venn diagram – the interplay of three potentially fatal diseases: Respiratory Syncytial Virus (“RSV”), COVID-19, and influenza. And with summer slipping into fall, this triple-headed monster is (once again) threatening to rear its ugly head. But, thanks to modern medicine, could this cold-weather season have a less devastating toll on humanity than what transpired a year ago? As has been well publicized this past week, there is in fact reason for optimism as updated COVID-19 vaccines from Pfizer and Moderna targeting the devilish Omicron variant XBB.1.5 will soon hit the market. It’s a promising development ...
  • The First Ten: The Initial Round of Drugs Subject to Medicare Price Negotiations
    August 30, 2023
    By: David Ostrowsky Traditionally, August is a slow news month. Congress is on recess; dignitaries have ensconced themselves in their summer homes; many reporters are on vacation. Invariably, the waning days of summer don’t appear conducive to delivering breaking news. Not this year, however. Indeed, August 2023 will go down as a momentous period of time in American history. A month that was dominated by headlines involving criminal charges brought against former President Donald Trump ended with a healthcare development that will surely impact an untold number of Americans for the foreseeable future. On August 29, President Biden unveiled the first ten ...
  • Protecting the Most Vulnerable
    August 24, 2023
    By: Corey Crigger, Esq. In February 2022, we received a balance bill referral that was truly exceptional, but for all the wrong reasons. Our client received a staggering bill of over $675,000.00 after a premature delivery with major complications resulted in a two-month stay in the NICU. It was an unjust financial burden exacerbating an already challenging situation. Our Efforts to Help: We immediately sprang into action, aiming to halt collection efforts while devising a strategy to achieve desired results. While the provider was unwavering in their stance, our #PatientDefenseProgram Partner Firm came to our aid. After over a year ...
  • Wegovy: The Heart of the Matter
    August 18, 2023
    By: David Ostrowsky Obesity adversely impacts upwards of 100 million adults in the US and accounts for nearly $150 billion in annual health care spending, yet health insurers have been reluctant to cover high-priced weight loss drugs, ones they frequently label as “cosmetic” or “lifestyle” medications. But, given what transpired earlier this month, is it possible that there could be an impending sea change in the medical field’s perception of such treatment? On August 8, Novo Nordisk, the Danish pharmaceutical juggernaut, unveiled the intriguing results of a large-scale clinical study documenting the efficacy of its obesity drug called Wegovy: of ...
  • The Power Dynamics of Gag Clauses
    August 14, 2023
    By: Jon Jablon, Esq. In the already-intricate world of health benefits, Congress passed the Consolidated Appropriations Act, 2021, which is notable to the self-funded industry for three main reasons: it expanded the Mental Health Parity and Addiction Equity Act to require health plans to proactively document their compliance via the nonquantitative treatment limitation (NQTL) analysis; it introduced the No Surprises Act, which fundamentally changed how claims disputes are handled; and it prohibited health plans from entering into contracts containing gag clauses. This particular blog post focuses on gag clauses. The implications of this prohibition on transparency and patient rights ...
  • Expanding Protections for Breastfeeding Mothers
    August 3, 2023
    By: Kendall Jackson So far this year, we have seen two notable advancements in protections for breastfeeding mothers in the workplace. The first of which includes the expansion of women’s preventive services under the Affordable Care Act (ACA). Based on new recommendations by the Health Resources and Services Administration (HRSA), breastfeeding mothers will no longer have to pay out-of-pocket costs for particular breast pumps and related supplies. The HRSA specifically noted that access to double electric breast pumps should be prioritized and should not be treated as a secondary step if manual pumps are unsuccessful. In addition to the ...
  • Diapers & Wipes Reflection
    August 3, 2023
    By: Desireé Erskine My name is Desireé Erskine and I have been at The Phia Group for the past 17 years, the last 10 of which I have spent as an Overpayment Recovery Specialist in the Provider Relations Department. As my family and I look forward to celebrating our daughter Kinsley’s first birthday this Sunday, we have revisited some of our fond memories and challenges in our first year as a family of five. In doing so, we have discussed how helpful Phia’s “Diapers and Wipes” program has been to our family. The “Diapers and Wipes” program, per The Phia ...
  • Benefest 2023: Talking Costs and Laws with Carriers
    July 31, 2023
    By: Jessie Boyle and David Ostrowsky By March, amidst the snowbanks contracting and days growing incrementally longer, conference season – at least for the healthcare industry -- is in full bloom. One of the marquee Massachusetts-based healthcare conferences, Benefest 2023, focused on “shaping the future of healthcare” in the commonwealth, was held earlier this summer at Worcester’s Polar Park -- during the peak of conference season. On June 15, the Massachusetts Chapter of the National Association of Benefits and Insurance Professionals (NABIP), which represents over 100,000 licensed health insurance agents, brokers, general agents, consultants, and benefit professionals and has over ...
  • IDR Entities Still Struggling with Volume – Highlights from the Q4 2022 Report
    July 17, 2023
    By: Andrew Silverio IDR Entities Still Struggling with Volume – Highlights from the Q4 2022 Report Under the No Surprises Act (NSA), the Departments of Health and Human Services, Labor, and Treasury are required to post quarterly data on the Federal Independent Dispute Resolution (IDR) process.  In response to the federal court decision in Texas Medical Association, et al. v. United States Department of Health and Human Services, portions of the governing regulations were vacated, resulting in a February 10, 2023 order for IDR entities to cease issuing new payment determinations (see https://www.cms.gov/nosurprises/help-resolve-payment-disputes/payment-disputes-between-providers-and-health-plans).  This was lifted as of February 24, 2023 ...
  • One Year Post-Dobbs Decision
    July 5, 2023
    By: Kelly Dempsey June 27, 2023 marked one year since the Supreme Court of the United States (SCOTUS) overturned the constitutional right to abortion in the case of Dobbs v. Jackson Women’s Health Organization. Over the last 12 months, half of the states have passed some type of abortion restriction or complete ban and many more are in the process of creating legislation. Some of these laws include the possibility for civil or criminal penalties against women who obtain abortions, doctors who perform abortions, or even individuals who, broadly, facilitate abortions. It may be a year old now, ...
  • Merck vs. Biden
    June 23, 2023
    By: David Ostrowsky and Jessie Boyle The globally recognized, multi-billion-dollar pharmaceutical company Merck & Co. sued the U.S. government on June 6th in an effort to halt the Medicare drug price negotiation program contained in the Inflation Reduction Act. The drug negotiation program aims to form agreements with drugmakers to lower costs on their most expensive drugs, which will save billions of dollars for Americans, particularly those on Medicare, while sapping Big Pharma of billions in potential revenue. In the first attempt by a drugmaker to challenge the law, Merck is pushing to be declared exempt from the drug price ...
  • What Happens When Auto and Health Insurance Collide?
    June 20, 2023
    By: Cindy Merrell, Esq.   I remember when I graduated college, I was in the early stages of adulthood and my parents told me that I needed to get my own car insurance. Beyond knowing that my monthly bills were going up, I had little understanding about car insurance other than it was required and it provided protection in the event of an accident. After over a decade of practicing, law I have found that most adults (not just recent college graduates) do not actually know or understand their own auto coverage. Even fewer adults know how auto insurance and ...
  • A Weight Off My Chest
    June 6, 2023
    By: Ron E. Peck, Esq. Insurance is supposed to be something you purchase to protect yourself against unforeseen – but costly – losses.  You don’t “expect” to be involved in a motor-vehicle accident, but you purchase automobile insurance to protect yourself against the costs incurred in an accident.  You don’t expect your home to flood or burn down, but you purchase homeowner’s insurance to protect yourself against the costs incurred in such incidents.  Automobile insurance does not pay to fill your car’s gas tank or change the oil.  These are foreseen, planned costs of automobile ownership and maintenance.  Homeowner’s insurance ...
  • Autism Benefits: DOL Enforcement for Sufficient Coverage
    May 22, 2023
    By: Kaitlyn Malkin, Esq. About 1 in 36 children in the United States has autism spectrum disorder, which is a lifelong condition that can affect a person’s behavior, communication, interactions, and ability to learn. The Department of Labor (DOL) continues strongly advocating for more comprehensive autism coverage under group health plans and Employee Benefits Security Administration (EBSA) has been working to ensure individuals who need treatment are able to access it. The Phia Group is also working hard to ensure plans are offering robust benefits while remaining compliant with mental health parity laws.   The main mechanism that EBSA is ...
  • Digitizing Subrogation
    May 10, 2023
    By: David Ostrowsky When it comes to subrogation, The Phia Group has over 20 years’ experience serving clients nation-wide. Our attorneys are some of the industry’s most well-versed subrogation experts who can relate to a wide swath of health plans – from self-insured to Medicare-based ones. But we know there can be a great deal of attrition and stiff competition in the subrogation space, which is why for the better part of the past decade there has been a company-wide initiative to digitize our products, most notably The Phia System™ and Case Management System. What has our digital transformation ...
  • Unwrapping the Benefits to Your Plan
    May 4, 2023
    By: David Ostrowsky & Brian O'Hara, Esq. On January 1, 2022, the No Surprises Act (NSA) officially went into effect, affording protection to patients against surprise medical bills on certain types of claims, including out-of-network emergency services, ancillary out-of-network professional services rendered at in-network facilities, and air ambulance services.  While the NSA has spared countless patients from potentially devastating balance bills, its complex and ever-evolving dispute resolution process has created headaches for plans and providers alike.  Luckily, Phia Unwrapped includes NSA support services during the Open Negotiation period and, if necessary, Independent Dispute Resolution.  Below are two examples in ...
  • Marty Walsh Goes to Bat for NHL Retirees
    April 11, 2023
    By: David Ostrowsky The National Hockey League’s collective bargaining agreement (“CBA”) is not set to expire until September of 2026, but it was still a hot topic during NHLPA Executive Director Marty Walsh’s introductory media conference last month in Toronto. In particular, there were several questions directed to the erstwhile Boston mayor and US Secretary of Labor about the union’s plans for managing the health benefits of retired players. Judging by his response, he didn’t appear to be blindsided. “I had lunch the other day with Glenn Healey [former NHL goaltender and current Executive Director/President of the NHL Alumni Association] ...
  • Keeping PACE With COVID-19 Developments
    April 5, 2023
    By: David Ostrowsky On January 30, 2023, the Biden administration announced its plan to terminate the national emergency and public health emergency declarations pertaining to the COVID-19 pandemic. Effective May 11, 2023, the phasing out of the public health emergency will mean a change in coverage requirements (i.e., vaccines administered out-of-network can involve cost sharing, no longer will there be free at-home COVID tests), while the end of the national emergency will affect the tolling of various health benefits related deadlines. The latter issue is one that resonates particularly strongly with The Phia Group’s PACE (“Plan Appointed Claim Evaluator”) service, ...
  • Jimmy Carter’s Complicated Healthcare Legacy
    March 21, 2023
    By: David Ostrowsky In the Bicentennial Summer of 1976—during which Jimmy Carter was campaigning for president—there was nonstop pageantry. Patriotism reached fever pitch as parade floats washed in red, white, and blue streamed through smalltown America while Uncle Sam-inspired merchandise flooded the shelves of department stores across the entire union. But overshadowed by the unprecedented amount of hoopla was the sobering reality that the then-two-century-old nation had a broken healthcare system: at this moment in time, 26 million Americans lacked health insurance altogether while another 28 million possessed only minimal coverage. And Carter, who grew up on a backwoods Georgia ...
  • Maximizing Subrogation and Reimbursement in Medical Malpractice Claims
    March 13, 2023
    By: Cindy Merrell, Esq. The idea of healthcare subrogation and reimbursement seems straightforward. A third party causes an injury to a plan member and the Plan seeks recovery for the benefits advanced by the health plan from either the at-fault party or from the proceeds of the settlement. However, it can be much more complicated. Some of the most complex cases occur when a plan member makes a medical malpractice claim. Medical malpractice subrogation and reimbursement typically involve high dollar claims and the member is usually suffering from a permanent condition or has died. These cases can be difficult ...
  • Price Transparency: A Chief Concern at SIIA’s Recent Kanas City Forum
    March 9, 2023
    By: David Ostrowsky KANSAS CITY, MISSOURI – In the opening presentation of the SIIA Price Transparency Forum held at the Kanas City Marriott Downtown last month, SIIA’s Senior Vice President of Government Relations, Ryan Work, made a bold prediction: if healthcare costs remain on this decades-long rising trajectory it could lead to the demise of employer-based healthcare as we know it.   Judging by the ensuing statistics presented, this was no hyperbole. Per the report delivered by Work and his co-presenter, Chris Condeluci, SIIA’s Washington Counsel, from 2016-2020, healthcare prices increased at double the rate of inflation—a trend that was only ...
  • Confusion Over Recent Insulin Cost Capping Discussions
    March 6, 2023
    By: Ron Peck, Esq. I recently drafted an article regarding legislative proposals to “cap” patient out of pocket costs for insulin.  In it, I explained that – while the individual patient’s out of pocket cost may be reduced at the time of purchase – the total cost of the medication is not reduced.  Instead, a greater share is shifted onto the health benefit plan or insurance.  That payer would then – likely – increase the cost of coverage (premiums, contributions, etc.), resulting in the patient ultimately paying the cost of the drug… simply in a different way.  Shifting who pays ...
  • Hospital Prices: Fully Transparent or Still Somewhat Opaque?
    February 23, 2023
    By: David Ostrowsky January 1, 2021. In the throes of the first pandemic winter, still months before coronavirus vaccines would roll out in earnest, the Hospital Price Transparency Rule went into effect. It was a promising development in the world of healthcare cost containment—hospitals were now obligated to provide a single, machine-readable digital file containing standard charges for all services and items provided by the facility. Said charges included gross charges, discounted cash prices, payer-specific negotiated charges, and de-identified minimum and maximum negotiated charges. In order to be fully compliant with the novel legislation, hospitals were also mandated to present a user-friendly list ...
  • The State of Paid FMLA: Thirteen States and Counting
    February 15, 2023
    By: Jen McCormick, Esq. Crucial healthcare and employee benefits issues were addressed during President Biden’s recent State of the Union, including a commitment to expanding paid family and medical leave. Thirty years ago, the Family and Medical Leave Act (FMLA) was passed and created new opportunities for employees faced with the difficult decision of having to choose between work and family. FMLA allows eligible employees to take unpaid, job-protected leave for family and medical reasons and continue their group health coverage. Over the past thirty years, however, the needs of working families have changed and the US remains one ...
  • SPD Payment Limitations Under the No Surprises Act
    February 9, 2023
    By: Jon Jablon, Esq. Ah, the Plan Document! It’s the “supreme law of the land” governing the health plan’s benefits. Would that make ERISA the Declaration of Independence of self-funding, maybe? Freedom from the tyranny of state or federal laws that attempt to make their own rules for the plan rather than letting the plan govern itself? Maybe. I don’t know. That’s the beauty of analogies, though; they don’t need to be perfect. If ERISA is the Declaration, though, we’ve got a serious problem. Back in 1974, Congress passed ERISA and explicitly and intentionally did not place limits on a ...
  • Are Non-Competes Out the Window?
    February 2, 2023
    By: Kaitlyn MacLeod Not just yet. Recently, the Federal Trade Commission (FTC) proposed a new rule that would ban post-employment non-competition agreements for all workers, including independent contractors, in nearly all workplaces. The proposed rule falls under Section 5 of the Federal Trade Commission Act, which bans unfair methods of competition. This proposed rule would greatly impact the entire healthcare industry. Most entities in healthcare utilize some form of non-compete agreements. Health insurance companies, TPAs, and PBMs regularly use non-competes to ensure former employees do not become local competition. Employment agreements for physicians are particularly restrictive, with some 40% containing ...
  • Robotic Lawyers – the Future of Small Claims Courts?
    January 24, 2023
    By: David Ostrowsky A couple months ago, Forbes magazine published a story hypothesizing five professions that could be eliminated by Artificial Intelligence over the next decade: factory workers, couriers, investment analysts, customer service reps, and security guards. It sounds farfetched, but could “small claims attorney” also join the dreaded list in the not-too-distant future? An intrepid startup, DoNotPay, which bills itself as “the world's first robot lawyer,” has designs on such a development—and perhaps even bigger things—coming to fruition. Next month, at an undisclosed court location, this first-ever robot attorney, the brainchild of DoNotPay CEO and founder Joshua Browder, a ...
  • No Matter the Remedy – No Language, No Luck!
    January 23, 2023
    By: Christopher Aguiar, Esq. Recently, the 9th Circuit, a jurisdiction that has historically not been kind to benefit plans engaging in third party recovery activity, issued a decision that gives life to benefit plans whose participants shirk their obligations to reimburse their benefit plans from settlements they obtain in third-party liability cases. In Mull v. Motion Picture Industry Health Plan (“the Plan”), the plan participant suffered significant injuries in an automobile accident in 2010 after the driver of a vehicle in which she was a passenger drove off a 20-foot embankment. Initially the Plan denied the claims due to the third-party ...
  • Accommodating Pregnant Workers: Enhanced Protections Under New Legislation
    January 18, 2023
    By: Nicholas Bonds, Esq. On December 29, 2022, President Biden signed the Consolidated Appropriations Act of 2023 (CAA 2023). Among many, many other things, the CAA included a key law expanding protections for pregnant workers. This law addresses significant limitations in the current regulatory framework for these workers, particularly under the Americans with Disabilities Act (ADA) which does not consider pregnancy a covered disability, and the Pregnancy Discrimination Act (PDA) which does not require accommodation (beyond those afforded to other similarly situated employees). Under the prevailing legal standard, pregnant workers are required to show that someone else in their workplace received ...
  • New Year, New Rules – But Don’t Forget About the Old Ones
    January 3, 2023
    By: Kelly E. Dempsey, Esq. The self-funded health plan industry continues to evolve every year based on new rules, guidance, and medical advancements; however, the Department of Labor (DOL) doesn’t overlook old rules either. In case you missed it, there was a case in mid-2022 that seeks to remind us that the DOL is still considering all Affordable Care Act (ACA) rules when they review complaints and perform audits. In Walsh v. Board of Trustees of Local 272 Welfare Fund and Local 272 Welfare Fund, 22-cv-592 (S.D.N.Y August 2, 2022), the DOL filed suit against a Taft-Hartley welfare plan ...
  • Second Circuit Affirms Private Right of Action for MAO's in Aetna Life Insurance Company v. Big Y Foods Inc.
    December 22, 2022
    By: Lisa Hill, Esq. Increased Popularity in Medicare Advantage Plans The Medicare Advantage program, created in 1997, allowed private health insurance companies (“Medicare Advantage Organizations” or “MAO’s”) to contract with CMS to deliver Medicare benefits for a fixed fee per month per enrollee (“capitated payment’).  Medicare Advantage Organizations have become increasingly popular and in 2022 close to half of all Medicare eligible beneficiaries are enrolled in a Medicare Advantage Plan. While the Medicare Secondary Payor Act and Federal Codes state that MAOs have the same recovery rights as traditional Medicare, the primary cause of action for MAOs to enforce their rights ...
  • Debunking Myths About COVID
    December 21, 2022
    By: David Ostrowsky In sharing his thoughts about the ongoing pandemic at the MAHP (Massachusetts Association of Health Plans) 2022 Annual Health Care Conference held at the Seaport Hotel in Boston on November 17, Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, made it a point to debunk several widely circulated myths while emphasizing that there continues to be an illusion of knowledge about what will transpire next. As has been well-chronicled, the Trump administration largely shouldered the blame for the country being ill-equipped to counter COVID. However, the medical field, according ...
  • How the Adderall Shortage is Affecting Millions of Americans
    December 13, 2022
    By: Olivia Storey Adderall Shortage Across the country, Americans with attention-deficit hyperactivity disorder (ADHD) are struggling to find good alternatives to the highly popular stimulant Adderall, which has been in short supply in recent months and will likely not be sufficiently restocked until early 2023 due to skyrocketing demand and manufacturing delays. Because of the shortage, many patients and their families have been forced to try alternative treatments or to go without their medication altogether. This has led to frustration and concern among patients and advocates alike, who argue that the shortage is putting the health and well-being of those who ...
  • Healthcare Subrogation and Reimbursement and Why it Matters
    December 8, 2022
    By: Cindy Merrell, Esq. This holiday season while I am visiting friends and family, I know that there will be the inevitable question out of pure politeness asking me how my work is going. When I first started in subrogation, I felt it was my mission to tell everyone who asked all about healthcare subrogation and my passion for it. Then I realized that I had lost my audience after the word subrogation. Although I do not anticipate “subrogation” to appear in my child’s sight words this school year, I do think it is important that not only attorneys ...