By: Kelly Dempsey, Esq.
That’s a pretty big question as we learn more about the Trump Administration’s attempt to reduce drug costs.
We all know drug prices are off the charts and several attempts to control pricing have failed to get up and running. As you may recall, President Trump indicated during his campaigning that he would develop a plan to lower prescription medicine costs. The U.S. health secretary (Azar) is making some moves and has indicated that eliminating drug rebates may help reduce costs.
Cost containment is key to self-funding and high drug costs have caused employers and plans to explore options to keep plan costs down, including utilizing vendor programs that obtain drugs from outside the U.S. and/or build certain rebate programs into the customized plan design. While there’s still a lot that must be worked through before changes are implemented, these four key takeaways may give plans, employers, brokers, PBMs, and other vendors some heart burn:
Plans and vendors that utilize these types of programs should be on the look-out for rule changes to ensure continued health plan compliance.
By: Erin M. Hussey, Esq.
Since the final Association Health Plan (AHP) rules were issued in June, many states have opposed them arguing they would create adverse selection. The argument is that healthy individuals would join AHPs as a cheaper option, because they do not have to cover certain benefits such as essential health benefits (EHBs), while unhealthier individuals would join the individual and small group markets for more robust coverage. As a result, the more people that move from the individual and small group markets, in order to join AHPs, will cause an increase in premiums for those markets making it less affordable for unhealthy individuals who stay on them. In addition, Massachusetts Attorney General Maura Healey argues that the new rules are unlawful as they will create deception, fraud and mismanagement.
The final AHP rules have also left states with more questions than answers. As a result, states have recently been taking their own actions with the continued lack of guidance from the U.S. Department of Labor (DOL). For example, Michael Pieciak, Vermont Commissioner of the Department of Financial Regulation, issued an emergency regulation on August 1st stating, among other things, that fully-insured AHPs must offer EHBs. Additionally, on August 2nd Jessica Altman, the Pennsylvania Insurance Commissioner, sent a letter to the secretaries at the DOL and Health and Human Services (HHS) stating that AHPs must comply with ACA individual and small group market rules and ACA benefits and protections. This is in stark contrast to the AHP final rules which detail that an employer member who is considered a small employer would be able to avoid the small group market rules, such as covering EHBs, by joining an AHP that would constitute as a large employer or by joining a self-funded AHP. The final AHP rules attracted small employers since they would have the opportunity to offer large group market health coverage to their employees, but some states could make it difficult to do so.
With the final AHP rules becoming effective on August 20th, it is expected that states will continue to take matters into their own hands without further guidance from the DOL. As states continue to challenge the ability for AHPs to operate under the new rules, it is likely that lawsuits will be brought by business groups and individuals who seek to operate an AHP under the new rules.
In this episode, Adam Russo and Brady Bizarro speak with Ryan C. Work – Vice President of Government Affairs at the Self-Insurance Institute of America (“SIIA”). They talk politics, D.C., and more importantly, about the efforts of the Government Relations Committee to advocate for the self-insured industry. From stop-loss protections and an updated “ERISA Notebook” to new wellness program rules, Ryan reveals the top issues on SIIA’s political agenda and explains how member engagement can really make a difference.
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By: Brady Bizarro, Esq.
Prescription drugs are some of the most costly benefits for any health plan, especially for those plans that are self-funded. In 2017, total spending on prescription drugs in the U.S. reached $453 billion. Specialty drugs are particularly culpable, accounting for more than one third of all drug expenditures in 2016 despite making up less than one percent of all written prescriptions. In May, the Trump administration released a forty-four-page blueprint for executive action on prescription drug prices, entitled “American Patients First.” The document contained many strategies for combating rising drug costs; but it also focused in on the use of patient assistance programs (“PAPs”) and considered whether they might be driving up list prices by limiting the transparency of the true cost of drugs to patients.
Plan sponsors originally utilized the typical tools available to them to try to offset the cost of specialty drugs: higher copayments, coinsurance, and deductibles. In an effort to mitigate the impact on patients, several pharmaceutical manufacturers developed PAPs to help offset patients’ out-of-pocket drug costs. Some of these programs are very generous. For example, a PAP run by Enbrel offers up to $660 per month toward the cost of a specialty drug for members who would not otherwise qualify for financial assistance.
Assistance programs are marketed as a kind of altruism for patients, which has great public relations benefits. They can also increase the demand for specialty drugs, even when generic alternatives are available. This results in a huge cost to the patient’s health plan. Consider the following scenario: a specialty drug’s list price is $10,000. A generic alternative is available that has a list price of $2,000. The health plan imposes a $500 copay for specialty drugs when generics are available and a $100 copay for generics. In this case, however, the specialty drug manufacturer offers the patient a $450 copay card. For the patient, the out-of-pocket cost for the specialty drug is $50 cheaper than the copay for the generic alternative. The patient chooses the specialty drug, and the health plan pays $9,500. Had the patient selected the generic alternative, the plan would have only paid $1,900.
As the scenario above reveals, PAPs can incentivize patients to choose specialty drugs even when cheaper, generic alternatives are available. For most patients, the only price they are aware of is the amount they pay at the register. The cost to their health plan remains hidden to them, although they eventually feel the effects downstream. In other words, PAPs can save patients money on the front end while driving up the cost to patients on the back end through increased premiums and cost-sharing. With PAPs now in the crosshairs of both plan sponsors and the Trump administration, we should expect new regulations on their use in the coming months.
From drafting the plan document all the way to recovering subrogation claims, health plans (and the TPAs, brokers, stop-loss carriers, and other vendors that service them) need to be creative, diligent, and vigilant. Network contracts, stop-loss claims, and intricate medical claim determinations are just a few of the complications that self-funded health plans and their partners need to be able to successfully navigate. Join The Phia Group’s legal team for an hour as they discuss some common snafus that health plans and TPAs face, and propose some creative solutions for managing them.
Click Here to View Our Full Webinar on YouTube
Click Here to Download Webinar Slides Only
Check out these highlight snippets from our August 14 Webinar:
July 2018 PGC FAQs (11 minutes into Webinar)
Jennifer McCormick: Continuation of coverage versus a leave of absence are completely different concepts. ADA leave, specifically, is granted to an individual as a reasonable accommodation. Employers began adding these provisions to their plans due to the UPS case in which there was an individual who was pregnant and unable to continue delivering packages for UPS and there was no other function that she could perform. Thus, the reasonable accommodation for her was a leave of absence under the ADA. This is separate from short-term disability or long-term disability in that the leave under the ADA is an accommodation, as opposed to a designated leave granted through a specific employer policy.
Network Contracts (28 minutes into Webinar)
Jon Jablon: First, plans can terminate network contracts. Obviously, you should not do this before notifying the parties involved. However, in terminating the contracts, there are many reference-based pricing (RBP) vendors out there that can help you achieve your payment goals. Every RBP vendor has their own style and techniques, so we recommend you vet each one prior to making a decision. RBP also includes carve-out options, and some popular ones associated with high-dollar claims are dialysis carve-outs and air ambulance carve-outs. If are seeing claims that you can carve out of your plan, chances are there is some way to address it. It is also possible to carve out all out-of-network claims – so not just dialysis or air ambulance. This would be anything not covered by the preferred provider organization (PPO) contract.
Brady Bizarro: We have seen a lot more new disputes lately. Many have to do with soft gaps, which may not catch your eye if you are reviewing a stop-loss policy on its own. For example, there may only be four exclusions and it may say that it otherwise mirrors the plan document, but you may not always be good to go. First, the treatment of Pharmacy Benefit Manager (PBM) rebates, which can be an issue if you have a high volume of drug claims. A plan, in theory, gets rebates from drug manufacturers, but in reality, it is the PBM who is getting those rebates. One plan’s stop-loss carrier somehow found out about these rebates through an audit and was then reducing the reimbursement amounts by the rebate figures, even if it was the PBM and not the plan getting money. The key was interpreting the wording, as some carriers may use “refund” instead of “rebate”. Another issue relates to billing protocols, as some stop-loss policies will reimburse claims in accordance with “standardized billing protocols”. Some carriers even cite Centers for Medicare & Medicaid Services (CMS) billing protocols even though CMS is not the payer and this is a private payer. Medicare reimbursement rates are not the issue here, it is the way Medicare itself pays claims.
By: Patrick Ouellette, Esq.
Price transparency has never really been synonymous with health care. In fact, Kelly Dempsey wrote just more than a year ago about how a lack of clear and timely information on hospital billing practices continues to contribute to skyrocketing care costs, and the industry is currently no closer to a resolution. The Centers for Medicare & Medicaid Services (CMS) recently announced that it is attempting to address the issue by revising the pricing disclosure rules currently in place to ensure data is accessible to patients in a consumable format.
CMS responded to cross-industry stakeholders’ calls for greater price transparency by requiring that hospitals post their standard charges in a readable format online. This is not a complete revelation in the sense that hospitals have been required by law to establish and make public a list of their standard charges and individuals had the option to formally request their data in order to gain access. However, effective January 1, 2019, CMS updated its guidelines to specifically require hospitals to make public a list of their standard charges via the Internet in a machine-readable format, and to update this information at least annually, or more often as appropriate.
CMS issued the mandate through its Inpatient Prospective Payment System (IPPS) and the Long-Term Care Hospital (LTCH) Prospective Payment System (PPS) Final Rule:
While CMS previously required hospitals to make publicly available a list of their standard charges or their policies for allowing the public to view this list upon request, CMS has updated its guidelines to specifically require hospitals to post this information on the Internet in a machine-readable format. The agency is considering future actions based on the public feedback it received on ways hospitals can display price information that would be most useful to stakeholders and how to create patient-friendly interfaces that allow consumers to more easily access relevant healthcare data and compare providers.
It remains to be seen (1) how much pushback there will be from providers; and (2) whether having the information provided will be complete enough to ensure better care decisions on the part of individuals. Moreover, this new rule does not change the fact that hospitals may still bill patients based on their respective internal chargemaster rates. However, this news still represents a positive step forward toward transparent pricing, and thus greater competition, in health care.
In this episode, Adam Russo, Brady Bizarro, and Ron Peck (yes - he’s back!), chat with Mark S. Gaunya – Chief Innovation Officer and Principal of Borislow Insurance. As an author, innovator, and passionate industry advocate touting more than 25 years of experience, Mark doesn’t pull punches as he addresses the biggest opportunities and threats facing employers, employees, and their plans. If you want to know what’s wrong with the nation’s healthcare system, what we need to do to fix it, and enjoy it when someone teases Adam – this episode is a must listen.
By: Philip Qualo, J.D.,
New York employers and companies with employees residing in the state may soon have to prepare for an additional leave under the state Paid Family Leave Benefits Law (“PFL”). The New York State Legislature recently passed a bill to amend the PFL to include bereavement leave. If signed into law this bill could allow employees to take up to twelve weeks of bereavement leave in a year… with pay.
The PFL, which has been in effect since January 1, 2018, currently provides for job-protected paid time off so employees can bond with newly born, adopted or fostered child children; care for a family member with a serious health condition; or assist loved ones when a family member is called to active military service abroad.
Currently, NY employees are eligible for PFL for up to eight weeks, with coverage increasing to 10 weeks in 2019 and 2020, and 12 weeks in 2021. Leave can be taken either all at once or in full-day increments. A covered employee may take the maximum time-off benefit in any given 52-week period. PFL is funded through employee payroll contributions that are set each year to match the cost of coverage.
The recently approved bill is brief and simply adds a few sentences to the PFL to cover the death of a family member, which includes a child, parent, grandparent, grandchild, spouse or domestic partner. It would allow for job-protected paid bereavement leave up to the same maximum benefit as other qualifying events under PFL, which is scheduled to reach 10 weeks at 60% of the employee’s average weekly wage, capped at 60% of NY State’s Average Weekly Wage (NYSAWW) in 2020. This leave could be taken any time within the 52-week period from the death of the relative.
As with other leaves mandated under NY PFL, the bill would require employers to continue health insurance coverage for employees on paid bereavement leave as long as the employee continues to contribute to the cost of coverage as before the leave.
The bill is currently under review by Gov. Andrew Cuomo. If signed into law, the bereavement leave amendment will not take effect until January 1, 2020.
By: Chris Aguiar, Esq.
Last week, I teased this blog post on Linkedin with vague commentary about effective cost containment not being just about recovering as much money as possible, but also about being knowledgeable and understanding when its best to cut losses. One of the attorneys in our office is currently working on a file where a benefit plan may be ill-advisedly pushing the limits of the law. You see, in subrogation and reimbursement cases, there is a rule called the “Made Whole Rule”. This rule is one of equity that operates to eliminate a plan’s recovery rights when a plan participant does not recover the full amount of their damages (i.e. they weren’t “made whole”). Now, those of us with private self-funded plans that enjoy the benefit of state law preemption can point to our plan terms and the current state of Federal law which holds that clear and unambiguous language that disclaims application of this rule and others like it will control and allow plans to recover regardless of whether the participant was made whole.
This plan, however, is unfortunately governed by state law as it is not a private self-funded benefit plan; preemption does not operate in its favor. The participant had $800,000.00 in medical damages, alone, and received a $1,000,000.00 settlement. Those numbers alone may indicate to some that the participant was, indeed, made whole. However, the damages discussed above are ONLY the medical damages. We have yet to discuss any other damages, including but not limited to: 1) lost wages (present and future) 2) pain and suffering 3) future care, etc. The list of damages in serious accidents such as this can be extensive, and all of those categories hold considerable value and are compensable in the eyes of the law. The particular jurisdiction in which this plan sits happens to have one of the most aggressive made whole rules in the country, and the judges there tend to be very pro participant. Accordingly, it’s a safe assumption that given the participant will really only receive about $600,000.00 after fees and costs of pursuit – it’s quite easy to see that the participant will not likely be considered to have been “made whole” in the eyes of the court.
Despite that, The Phia Group’s attorney has been able to negotiate for a reimbursement of approximately 20% the Plan’s interest. Should the Plan decide to try to enforce a right of full reimbursement, and the court apply the made whole rule, the Plan will receive no recovery at all and will have endured the extra time, expense, and possibly even media fallout for ‘dragging its participant through this ordeal’, of protracted litigation.
Plans, and we as their advisors, must be cognizant of the rules of the jurisdictions in which we operate and realize when a good outcome is unlikely. Sometimes, even if one has a good case and can win and recover its entire interest, the cost of doing so paired with the inability to obtain reimbursement of the costs of pursuit can render the action moot, because the cost can in many instances outweigh the interest. This is even more true, of course, in situations where the Plan is likely to lose.
Effective cost containment is about looking at the situation and determining the most cost effective approach – winning does not always equate to the best outcome.
In this episode, our Senior Vice President & General Counsel dials in to describe where he's been, what major health issue is impacting his family, and what he hopes we can all learn from their experiences thus far - as members of the industry, potential patients, and human beings.