As the world emerges from the COVID-19 pandemic, healthcare fraud enforcement remains a top priority for the US Department of Justice (DOJ) and other government agencies with enforcement authority. In this Westlaw Today article, McDermott Partners Laura McLane, Tony Maida and Dana M. McSherry describe some of the areas that have assumed particularly high enforcement priority, including private equity, telehealth and pandemic relief funds.
The monumental decision by the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade presents significant challenges for employers and health plans. According to this Law360 article, employers should begin reviewing state laws, evaluating internal company policies, gauging employee reactions and preparing for legal challenges. McDermott’s Sarah Raaii called the Supreme Court’s decision “an administrative and potentially employee relations nightmare for employers.”
“It creates a lot of challenges for employers who just want to do right by their employees and continue offering these abortion benefits that they have historically done in the past,” Raaii said.
On June 24, 2022, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women’s Health Organization (Dobbs), overturning Roe v. Wade (Roe) and upending 50 years of precedent protecting a woman’s right to privacy in choosing to abort a pregnancy prior to the point of viability.
The effect of this decision on US companies cannot be understated. Any organization whose operations touch family planning services in any way (e.g., providers, those that facilitate operations, investors, payors, employers that provide family planning benefits and health plan service providers) should immediately examine their precise services, geographic footprint, corporate structure and organizational priorities.
To determine the best steps to take for you and your business, we invite you to join us for the second program in our new webinar series on Wednesday, June 29, at 2:00-3:00 pm EDT with McDermott Partners Stacey Callaghan, David Gacioch and Caroline Reignley and Associate Sarah Raaii, who will analyze and share the latest developments around the reversal of Roe and its likely impacts on US companies.
The 340B program landscape is constantly shifting. Wednesday’s US Supreme Court American Hospital Association v. Becerra decision is of critical importance to hospitals that participate in the 340B program. The Court held that the US Department of Health and Human Services (HHS) improperly imposed a payment cut of almost 30% on 340B drugs paid by Medicare. Yet, while this decision is significant, it is not the end of the litigation surrounding the payment cut. The case has been remanded for further deliberation, which will include a determination of the remedies.
McDermott+Consulting has launched the 340B Litigation Tracking Tool, an up-to-date resource following the 30+ state and federal 340B program legal challenges. No more searching online or sorting through your newsfeed for updates on important case developments. This tracker, available 24/7 and routinely monitored by our team, delivers concise updates to help you make informed risk analyses on what’s next for your business in the evolving 340B landscape.
Sometime in the next several weeks, the Supreme Court of the United States will issue its decision in Dobbs v. Jackson Women’s Health Organization (Dobbs). Based on the draft majority opinion authored by Justice Samuel Alito that was leaked to Politico in early May, there is a significant chance that the Court will overrule Roe v. Wade (Roe) and Planned Parenthood v. Casey (Casey) by holding that there is no federal constitutional right to obtain an abortion and leaving individual states free to substantially restrict abortion or prohibit abortion altogether.
The effect of this likely decision on US companies would be substantial. Every US healthcare provider whose services include any aspect of family planning should give serious thought to how this likely new post-Roe reality will affect its offerings and operations. This includes not only those that provide pregnancy termination services (via surgical or pharmaceutical means, whether brick-and-mortar or telehealth/virtual), but also potentially those providing in vitro fertilization services, and conceivably even some contraceptive providers at some point down the line.
According to this Politico article, the US Centers for Medicare and Medicaid Services (CMS) has had difficulty enforcing its own COVID-19-related hospital rules. The agency often lacks the necessary resources to make sure its regulations are followed. McDermott Partner Sandra M. DiVarco said small changes—like allowing patients to wear highly protective N95 face masks—that CMS publicizes are “not always very coordinated.”
While the United States awaits the Supreme Court’s ruling in Dobbs v. Jackson, which may overturn Roe v. Wade and eliminate the federal standard for abortion access, some states are considering setting their own standards that would ban or protect the medical procedure. This state-by-state rulemaking will cause some difficulty for employer plans, and employers are increasingly exploring ways to continue providing abortion coverage.
Between March 9, 2022, and June 9, 2022, the US Occupational Safety and Health Administration (OSHA) will “expand its presence” in hospitals and skilled nursing facilities that treat COVID-19 patients and that were previously cited or issued Hazard Alert Letters for alleged COVID-19 violations. OSHA’s stated purpose is to “target[] high-hazard healthcare facilities” to “verify and assess . . . compliance actions taken” by employers to rectify prior allegations related to COVID-19 safety violations. The initiative is focusing on employers’ “readiness to address any ongoing or future COVID-19 surges.”
The US Departments of Labor, Health and Human Services, and the Treasury recently released Frequently Asked Questions (FAQs) regarding the implementation of certain reporting provisions of the Affordable Care Act (ACA). The FAQs were released to provide clarity on the required drug price disclosures identified in the Transparency in Coverage final rule (the Rule) issued on October 29, 2020. As described in this SHRM article, employers are responsible for making sure that these disclosures are ready and available.
McDermott Will & Emery’s Michael B. Kimberly, Sarah P. Hogarth and Andrew C. Liazos, are co-counsel on a petition for certiorari before the Supreme Court of the United States on behalf of the ERISA Industry Committee (ERIC). The petition calls for review of ERIC’s legal challenge to the City of Seattle’s hotel healthcare “play or pay” ordinance. The ordinance mandates hospitality employers make specified monthly healthcare expenditures for their covered local employees if their healthcare plans do not meet certain requirements. The petition demonstrates that Seattle’s ordinance is a clear attempt to control the benefits provided under medical plans in violation of the preemption provision under the Employee Retirement Income Security Act of 1974, as amended (ERISA). This case is of significant national importance. Several other cities have proposed making similar changes, and complying with these types of ordinances will substantially constrain the ability of employers to control the terms of their medical plans on a uniform basis. ERIC’s petition is joined by several trade associations, including the US Chamber of Commerce, the American Benefits Council and the Retail Industry Leaders Association.
Subscribe
