Health Care Law Blog

The IRS recently began enforcing the employer mandate provision of the Affordable Care Act (“ACA”) by assessing penalties on noncompliant employers for the 2015 calendar year.

The Internal Revenue Service recently released the 2018 cost-of-living adjusted amounts related to health savings account (“HSA”) contribution limits, out-of-pocket maximums and high deductible health plan (“HDHP”) deductibles. Each of the cost-of-living adjusted amounts is set forth below.

Late in the afternoon on March 6, two committees of the U.S. House of Representatives introduced legislation that would replace and repeal significant portions of the Patient Protection and Affordable Care Act, also known as the ACA or Obamacare. The new legislation, titled the American Health Care Act, addresses a number of key complaints that have been raised by employers since the ACA's implementation. Several provisions of the new legislation that are of particular interest to employers are described briefly below.

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) recently announced that it has begun Phase 2 of its HIPAA audit program. This audit phase will impact covered entities and their business associates.

In the last few days of 2015, the Internal Revenue Service ("IRS") published welcomed relief for employers who are struggling to understand their reporting obligations under the Affordable Care Act ("ACA"): extended deadlines. 

In a first-of-its-kind and closely followed case, a U.S. district court denied a New York health system's (Healthfirst’s) motion to dismiss the U.S. government's and State of New York's complaints in intervention under the federal False Claims Act (FCA) and New York state counterpart. This case represents the first time that the government has intervened in an FCA case based upon an allegation that a party violated the "60 day rule." The 60 day rule came into existence with the passage of the Affordable Care Act (ACA) in 2010 and subjects parties to FCA liability for failing to report and refund an overpayment within 60 days of identification, even if the defendant received the payment through no fault of its own.

The case, Kane ex rel. United States et al. v. Healthfirst et al., involves three hospitals that were part of the Healthfirst health system network and provided care to patients that were part of Healthfirst's Medicaid managed care plan. Healthfirst received payments from the New York State Department of Health (DOH) in return for services provided to Medicaid eligible enrollees.

The government's allegations stem from overpayments to Healthfirst as a result of a software glitch. Healthfirst was first questioned about the possible overpayments by the New York State Comptroller's office in 2010. The health system tasked Kane, an employee and the eventual whistleblower in the case, to look into the payments. Five months later Kane emailed Healthfirst management a spreadsheet listing over 900 claims totaling more than $1 million that contained an erroneous billing code that may have led to the overpayments.

On June 25, 2015, the Supreme Court of the United States issued a ruling related to the Patient Protection and Affordable Care Act (the "Act") in the case of King v Burwell. The issue that the Court addressed was whether tax credits were available to individuals who purchased health insurance coverage through a Health Insurance Exchange ("Exchange") that was established by the Federal government.

An Exchange serves as a marketplace where individuals can compare various health insurance plans and ultimately purchase health insurance coverage. The Act requires an Exchange to be established in each State. If a State fails to establish its own Exchange, the Federal government is required to step in and establish the Exchange for that State. The Court's decision had the potential to preclude tax credits for individuals purchasing insurance through the Federal Exchanges in 34 States, including Michigan.

This issue was of significant importance because of its implications for the Act's Employer Mandate, which generally requires large employers to offer health insurance coverage to their full-time employees. The tax credits provided under the Act serve as the lynchpin for liability under the Employer Mandate. Despite the fact that a large employer may fail to offer health insurance coverage to its full-time employees, it will not be penalized if those employees do not obtain coverage through the Exchange and receive a tax credit. Therefore, large employers located in States that have a Federal Exchange could arguably avoid penalties for their failure to offer coverage to their full-time employees; such employees would not receive a tax credit when purchasing health insurance coverage on the Exchange and would not trigger the penalty.

On February 18, 2015, the Internal Revenue Service (“IRS”) provided further guidance related to the issue of how certain employer health insurance reimbursement arrangements are treated under the Affordable Care Act (“ACA”).

As we explained in a previous post, after the Health Insurance Marketplace opened for business, many employers recommended that their employees use it to purchase individual health insurance policies, with the promise that the premium costs would be reimbursed by the employer. In fact, such employee reimbursement strategies were aggressively marketed to employers as a solution to reduce costs and comply with the requirements of the ACA. Little did these employers (and marketers) know, such arrangements exposed the employers to significant penalties under the ACA. 

Prior guidance made clear that such arrangements – whether funded on a pre- or post-tax basis – may be subject to the ACA’s market reforms. Employers that offer reimbursement arrangements that violate the ACA are subject to a $100 per day per affected employee penalty.

Notice 2015-17 clarifies previous guidance and provides transition relief to certain small employers from ACA penalties. Key aspects of the new guidance are noted below.

Employers, including municipal employers, have historically struggled to develop a health insurance benefit program for their employees that provides quality benefits and is cost-effective. After the Health Insurance Marketplace opened for business, many employers recommended that their employees use it to purchase individual health insurance policies, with the promise that the premium costs would be reimbursed by the employer. In fact, such employee reimbursement strategies were aggressively marketed to employers as a solution to reduce costs and comply with the requirements of the Patient Protection and Affordable Care Act (“ACA”). Little did these employers (and marketers) know, such arrangements exposed the employers to significant penalties under the ACA.

In September 2013, the IRS issued Notice 2013-54 that made clear that an employer arrangement that paid for employees’ individual health insurance policy premiums on a pre-tax basis violated the ACA. An employer that offered such an arrangement would be subject to a $100 per day per affected employee penalty ($36,500 per year, per employee).

On Nov. 7, the U.S. Supreme Court decided it would hear a case concerning the health insurance subsidies provided to millions of Americans under the Patient Protection and Affordable Care Act. A June 2015 decision is expected in the case of King v. Burwell, which challenges the Internal Revenue Service’s authority to regulate tax-credit subsidies for coverage purchased through health insurance marketplaces established by the federal government (such as the Michigan health insurance marketplace). Nationwide, more than four out of five people who have received coverage through a federal marketplace are getting a tax credit.

As is well known by now, transitional relief from the Patient Protection and Affordable Care Act's Employer Mandate in 2015 is available for certain applicable large employers that sponsor non-calendar year health plans. This transitional relief allows the employer to avoid penalties for those months of 2015 that predate the first day of the non-calendar plan year. What is not so well-known, however, are the requirements that must be met in order for the employer to be entitled to receive the transitional relief.

In a recently released 26 page report the Department of Health and Human Services revealed that federal subsidies cover 76 percent of premiums for those who have signed up for coverage under the Affordable Care Act in the 36 federally administered markets. According to the Los Angeles Times, the total cost of subsidies could exceed $16.5 billion this year, which is significantly higher than the $10 billion cost that the Congressional Budget Office projected earlier this year.

On Thursday, April 3, 2014, the Obama administration announced that it was taking steps to bring its Medicare rules in line with the United States Supreme Court's ruling in US v. Windsor. Specifically, the Department of Health and Human Services (“HHS”) announced that same-sex marriages would be recognized for determining Medicare entitlement and eligibility.

The Patient Protection and Affordable Care Act requires that certain health insurance providers pay an annual fee based on the net premiums they wrote during the preceding calendar year. The providers required to pay this fee include health insurance issuers; health maintenance organizations; certain insurance companies; insurers providing Medicare Advantage, Medicare Part D, or Medicaid coverage; and multiple employer welfare arrangements.

In order to calculate the fees, the Internal Revenue Service (“IRS”) must obtain information related to the amount of net premiums written by each health insurance provider. This is accomplished through IRS Form 8963 (Report of Health Insurance Provider Information). Health insurance providers are required to submit Form 8963 to the IRS by April 15 of each year.

Is it the end of the Michigan Marriage Amendment?

In the court case Deboer v Snyder, a federal court judge ruled that the voter-approved Michigan Marriage Amendment prohibiting same-sex couples from marrying in Michigan was unconstitutional. However, the Sixth Circuit Court of Appeals stayed the federal trial court ruling in Deboer v Snyder as the State of Michigan prepares to appeal the decision.

So, what does this mean for health care insurers? This means that the Michigan Marriage Amendment banning same-sex marriage remains the law in Michigan until the Sixth Circuit decides the State of Michigan's appeal of the Deboer ruling.  However, insurers will want to keep an eye on this case to determine if they should offer same-sex health insurance benefits or change their definitions of spouse under their plans.

Foster Swift health care attorneys are getting ready to attend the 20^th Annual Health Law Institute March 6 and 7. The Institute provides attorneys with the opportunity to learn about the most recent statutory, regulatory, and case law developments in the health care industry. Co-sponsored by the Health Care Law Section of the State Bar of Michigan, this educational opportunity offers a range of presentations from numerous leaders in the health care legal community.

On Feb. 12, 2014, the U.S. Department of Treasury and the Internal Revenue Service published final rules (the “Final Rules”) related to the Employer Shared Responsibility provisions of the Patient Protection and Affordable Care Act (“PPACA”). The Employer Shared Responsibility provisions, referred to as the “Employer Mandate,” generally require certain employers to offer minimum essential health care coverage to their full-time employees or face penalties. The Employer Mandate was originally scheduled to become effective on Jan. 1, 2014 but was delayed until Jan. 1, 2015.

The Final Rules include a second delay of the Employer Mandate. They provide that employers who employ 50 – 99 full time equivalent employees will not be required to comply with the Employer Mandate until Jan. 1, 2016. Additionally, those employers who employ 100 or more full time equivalent employees must offer minimum essential coverage to only 70 percent of those full time employees by Jan. 1, 2015 (as opposed to the 95 percent coverage requirement under the previous regulations). Those employers employing 100 or more full time employees will be required to offer coverage to 95 percent of all full time employees by Jan. 1, 2016. The chart below summarizes the basic details concerning this delay.

On Jan. 2, 2014, the Department of Health and Human Services (“HHS”) issued a proposed rule related to the Administrative Simplification requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).  Specifically, it delayed the date by which health plans must certify compliance with certain operating rules imposed by the Affordable Care Act (“ACA”).   

The ACA required the Secretary of HHS to adopt operating rules related to claims status, eligibility, electronic funds transfers ("EFT") and health care payment and remittance advice transactions ("ERA").  Health plans (and other covered entities) were required to comply with the claims status and eligibility operating rules by Jan. 1, 2013 and the EFT and ERA operating rules by Jan. 1, 2014.  Additionally, health plans were required to file a statement with HHS certifying that the health plan is in compliance with the operating rules.  This certification statement was due by Dec. 31, 2013. 

While originally scheduled to start in 2014, now beginning in 2015, "large employers" will be required to provide adequate health care coverage to their full time employees or pay a penalty. This requirement is known as health care reform’s Employer Mandate. In order to assess whether your company is subject to the Employer Mandate, you must first determine whether your company is a "large employer."

Technical glitches. Partisan rancor. Breathless media coverage. The rollout of the online Health Insurance Marketplaces (also known as Exchanges) did not lack for drama or controversy. The unveiling of the Marketplaces, one of the key elements of the Patient Protection and Affordable Care Act, was perhaps the most anticipated and controversial website launch in history. The website www.healthcare.gov was flooded with traffic from the moment it opened on October 1, 2013 and many interested consumers ran into trouble. While most of the extensive media coverage of the Marketplaces focused on problems nationally, we wanted to take a look at how Michigan’s Marketplace (and consumers) fared.

An October 1, 2013 deadline is looming for many employers to give employees written notices under the Patient Protection and Affordable Care Act (PPACA, commonly known as the health care reform act.)

On July 2, 2013, the Obama administration declared that it was delaying the effective date of the Patient Protection and Affordable Care Act’s Employer Mandate until January 1, 2015. The Employer Mandate, which was scheduled to become effective on January 1, 2014, required all large employers to offer health care coverage to their full-time employees or pay a penalty. Most importantly, this delay means that the penalties to large employers for failure to provide health insurance coverage will not be enforced for another year. You may read the full statement issued by the U.S. Department of Treasury here.

On March 7 and 8, 2013, the members of Foster Swift’s Health Care Law Group attended the 19^th Annual Health Law Institute. This two-day institute, which is co-sponsored by the Institute for Continuing Legal Education and the Health Care Law Section of the State Bar of Michigan, focused on recent legal developments in health care law. Specific topics addressed at this year’s Health Law Institute included:

Under the Patient Protection and Affordable Care Act, companies that provide drugs, medical devices, biologicals or other medical supplies covered by certain government programs (Medicare, Medicaid or the Children's Health Insurance Program) are required to annually report certain payments they make to physicians. According to a recently issued final rule, payment categories will include:

On January 30, 2013, the Departments of Treasury, Labor, and Health and Human Services (collectively, the “Departments”) jointly released proposed rules related to the coverage of preventive services under the Patient Protection and Affordable Care Act (“PPACA”).  When initially enacted, PPACA required certain health plans to provide benefits for particular preventive health services, including coverage of contraceptives, without the imposition of cost sharing measures (i.e., individuals covered by the plan would not be required to pay anything for the services).  This coverage requirement became effective on the first day of the plan year that followed August 1, 2012.  For calendar year plans, the effective date was January 1, 2013.

Governor Rick Snyder announced that his 2014 budget includes support for the expansion of Medicaid eligibility to Michigan residents without insurance. Speaking at a press conference in Lansing on Wednesday, February 6^th, Governor Snyder said expansion would save costs, increase care, and help businesses.

As previously discussed, the Patient Protection and Affordable Care Act requires employers to provide notice to their employees related to Health Insurance Exchanges (the “Notice”). The specifics concerning the Notice may be found here. The Notice was required to be given to each current employee not later than March 1, 2013.

In 2008, the Michigan Supreme Court concluded that domestic partnership policies intended to provide health care benefits to same sex couples violated Michigan law.  Specifically, National Pride at Work v Governor held that such policies violated the Michigan Marriage Amendment (“Marriage Amendment”) by recognizing same sex domestic partnerships as analogous to a marriage or similar union.  (The Marriage Amendment recognizes the union of one man and one woman as the only agreement recognized as a marriage and also prohibits public employers from providing health insurance benefits to their employees' same-sex domestic partners.)

Employers with 50 or more full time equivalent employees (“FTEs”) will be subject to a penalty tax for: (1) failing to offer health care coverage to all full time employees; ( 2) offering minimum essential coverage that is unaffordable; or (3) offering minimum essential coverage where the Plan pays less than 60% of cost.   This is often referred to as the Employer Mandate of PPACA.

Changes to the health insurance market in Michigan may soon be changing due to the Michigan House of Representatives’ approval of Senate Bills 1293 and 1294 (the “Senate Bills”) on December 6, 2012.  The introduction of the Senate Bills follow Governor Snyder’s proposed overhaul of BCBSM discussed here and directly address the corporate organization and continued operation of Blue Cross Blue Shield of Michigan (“BCBSM”) in our state.  In brief, the Senate Bills authorize BCBSM to establish, own, operate and merge with a nonprofit mutual disability insurer.  They also generally prohibit BCBSM from using “Most Favored Nation Clauses” in provider contracts beginning February 1, 2013.  While the Senate Bills are not final until Governor Snyder signs them into law, given his previous support it is likely he will give his approval. A more detailed analysis of the Senate Bills will be provided if the Governor does indeed sign them into law.

At the end of August, Governor Rick Snyder announced that Michigan will be pursuing a federal-state partnership for its health insurance exchange.  Health insurance exchanges are a requirement of the federal Health Care Reform law.  Health insurance exchanges are designed to  facilitate the purchase of health insurance by consumers through an online, cost-competitive forum.  Each state has the option to: (1) operate its own health insurance exchange; (2) partner with the federal government; or (3) allow the federal government to manage its health insurance exchange.

It is now widely accepted that planning for retirement is vitally important.  However, many business owners, including physicians, fail to properly plan for the transition of their businesses upon the owner’s or primary physician's retirement.  In fact, lack of succession planning is one of the most common reasons small medical practices fail.  In order to avoid such a result in your practice, please consider the following succession planning tips:

The Health Information Technology for Economic and Clinical Health Act ("HITECH Act"), passed in 2009, imposed new requirements on health care providers (among others) related to the privacy and security of Protected Health Information ("PHI").  Included in the HITECH Act's requirements was a mandate that the Department of Health and Human Services’ ("HHS") Office for Civil Rights ("OCR") conduct audits to analyze the processes, controls and policies of certain covered entities.  The pilot program for such audits began in 2011 and will conclude in December, 2012.

Foster Swift health care law attorney, Johanna Novak, was recently interviewed on Michigan Business Network radio concerning the United States Supreme Court's long-anticipated decision on the Patient Protection and Affordable Care Act (the "Act").  The interview aired on July 6, 2012, and was separated into two parts.  Podcasts for both parts of Johanna's interview can be accessed here.

Today, the United States Supreme Court released its highly anticipated opinion regarding the constitutional challenges to the Patient Protection and Affordable Care Act (the "Act"). The Court ultimately concluded that the Act was constitutional, but it did not grant a complete victory to the government.  The Court also held that the federal government may not withhold all Medicaid funds from States that fail to comply with the expansion of Medicaid provisions of the Act.  Instead, the federal government may only withhold new Medicaid funds from States that do not comply.

On April 16, 2012, the Office of Regulatory Reinvention (“ORR”) issued a report to Governor Snyder proposing the deregulation of 18 occupations and the elimination of 9 occupational boards.  Of particular interest to Michigan health care providers are the recommendations for deregulation of dieticians and nutritionists; ocularists; respiratory care providers; and speech pathologists.  The report also recommended elimination of the following, health-care relevant occupational boards: Board of Dietetics and Nutrition, Board of Occupational Therapy, Board of Respiratory Care, Board of Speech Language Pathology, and Osteopathic Medicine Advisory Board.

On March 8 and 9, 2012, the members of Foster Swift's Health Care Law Group attended the 18^th Annual Health Law Institute.  This two-day institute, which is co-sponsored by the Institute for Continuing Legal Education and the Health Care Law Section of the Michigan State Bar, focused on recent legal developments in health care law.  Specific topics addressed at this year's Health Law Institute included:

Licensure of Massage Therapists will become mandatory in Michigan in the near future. Proposed rules related to the requirements of such licensure were recently published in the Michigan Register.  The actual licensure requirement will become effective two years from the effective date of the final rules (which will likely be published later in 2012).

In the age of instant access to online information, it is essential for a business to know what others are saying about it - both good and bad.  For example, a physician will want to confirm the glowing review of a recent article is properly acknowledged on the Internet but also that a negative patient comment is immediately refuted or deleted.

On December 7, 2011, the final rules for Speech-Language Pathology were filed with the Michigan Secretary of State.  Among other things, the final rules require that any person who intends to practice speech-language pathology in Michigan must be licensed by December 7, 2013.  The rules also detail the requirements for licensure and give deference to individuals who have been certified by the American Speech-Language-Hearing Association.

For more information about the licensure requirements for speech language pathologists and to obtain a copy of the current licensure application packet, please contact one of the health care law attorneys at Foster Swift.

Many questions surround the creation and implementation of accountable care organizations ("ACOs").  Included in these questions were concerns about the tax implications of an exempt non-profit organization in joining an ACO.  In 2011, the Internal Revenue Service ("IRS") was active in providing guidance on that issue.  Specifically, the IRS addressed issues related to inurement or impermissible private benefit that arise from a tax-exempt organization's participation with an ACO.  It also considered the unrelated business income tax implications for the receipt of shared savings by an exempt organization.

On November 29, 2011, the State Bar of Michigan's Health Care Law Section presented a webinar entitled "Making Sense of 'Meaningful Use' Incentives for Electronic Health Record Adoption," which was attended by a number of Foster Swift health care attorneys.  This program gave a wonderful overview of the procedural requirements in obtaining incentive payments for the use of electronic health records ("EHR").

Not surprising given the circuit court split on the issue, the United States Supreme Court has agreed to hear arguments regarding the constitutionally of the Patient Protection and Affordable Care Act ("PPACA").  The constitutionality battle revolves around PPACA's "individual mandate."  The individual mandate financially penalizes individual taxpayers who fail to maintain certain levels of health insurance coverage starting in the year 2014.

Mindi Johnson and Nicole Stratton, two members of the Foster Swift Health Care Practice Group, recently presented a seminar on Health Reform - Impact and Compliance at the Public Law Employment Seminar for the Michigan Municipal League.  The seminar was part of an all day event at the Michigan Municipal League's Lansing office on topics that ranged from "Do's and Don'ts for Independent Contractors" to "Social Media and New Technology Use," the latter of which was presented by Foster Swift's Melissa Jackson and Samuel Frederick.

The U.S. Department of Health and Human Services released the final rules for Accountable Care Organizations ("ACOs") on October 20, 2011.  (The final rules will be officially published in the November 2, 2011 issue of the federal register.)  The Centers for Medicare and Medicaid Services issued a press release that contains an overview of the ACO initiative as well as relevant links to related documents.

On Thursday, October 6, 2011, Foster Swift sponsored the Lansing Regional Chamber 2011 Health Care Forum.  Many of the Foster Swift Health Care Group attorneys were in attendance.  The event included speakers such as Alisa Bennett from Blue Cross Blue Shield of Michigan; Greg Rhodes from Mercer Health and Benefits, LLC; Margo Johnson from Mercer Health and Benefits, LLC; Nancy McKeague from Michigan Health and Hospital Association (MHA); and Julie Mann from JMann Consulting Group.  Additionally, the Health Care Forum led into the October Economic Club Luncheon where Dennis Swan, President and CEO of Sparrow Health System, gave the keynote presentation.

It is time for hospitals and physicians to start using electronic health records ("EHR").  It is particularly important if hospitals or physicians want to take advantage of the 2011 Medicare incentive payments, since important deadlines are quickly approaching.

The latest edition of the Foster Swift Health Care Law Newsletter has just been released.  Topics include Electronic Health Records, Medicare Reimbursement for Resident Research and Hospital Community Needs Assessments.  In order to whet your appetite, below is a brief summary of the articles:

The 4^th Circuit Court of Appeals has issued two opinions related to the Patient Protection and Affordable Care Act ("PPACA"), also commonly referred to as Health Care Reform.  What is interesting in these two decisions is that the appellate court refrains from ruling on the constitutionality of PPACA.  Instead, it does not even address the issue because it found adequate grounds to dismiss both cases based on lack of jurisdiction.

The 11^th Circuit Court of Appeals recently issued a decision declaring that the "individual mandate" provisions of the Patient Protection and Affordable Care Act ("PPACA") are unconstitutional.  This decision directly conflicts with the decision issued by the 6^th Circuit Court of Appeals earlier this summer.

In the race to the top, the 6^th Circuit decision upholding the constitutionality of the Patient Protection and Affordable Care Act ("PPACA") is the first to come before the United States Supreme Court.  In response to the 6^th Circuit's adverse ruling against it (discussed here), the Thomas More Law Center, et. al., recently petitioned the Supreme Court for review.

The Petition specifically presents two questions for consideration by the Supreme Court:

The US Supreme Court recently delivered a victory to data miners and pharmaceutical manufacturers in a June 23, 2011 decision, which held that a Vermont statute was an unconstitutional restriction of free speech rights.  In William Sorrell v IMS Health, Inc., 564 US --- (2011), the Court reviewed a Vermont statute that prohibited the use of prescriber-identifiable information (details of a physician's prescription practices) for marketing or promoting a prescription drug.   The statute was intended to target the practice of "detailing" a pharmaceutical representative's use of a particular physician's prescribing history to tailor a sales pitch to that physician in an effort to persuade him or her to prescribe certain (high profit or brand name) drugs.  Because various Circuit Courts of Appeal had reached opposite conclusions on the constitutionality of similar statutes, the United States Supreme Court agreed to hear the case.

On June 29, 2011, the 6^th Circuit Court of Appeals issued the first appellate decision with regard to the constitutionality of the Patient Protection and Affordable Care Act ("PPACA").  In a split decision (2-1), the court upheld the minimum coverage provision of PPACA (also know as the 'individual mandate') as constitutional.  The individual mandate essentially fines non-exempt persons for not securing minimum essential health insurance coverage. The court noted that this provision was effectively a regulation on the practice of self-insuring (an individual's actions in arranging his or her own financial affairs to compensate for future health care needs).

The Medicare Data Access for Transparency and Accountability Act ("DATA Act") was introduced in the United States Senate on April 7, 2011.  The DATA Act seeks to make public the Department of Health and Human Services' claims and payment data, which would include data on payments made to medical providers pursuant to the Social Security Act (i.e., Medicare).  Specifically, the data made available to the public would include the following:

The Michigan House of Representatives and Senate have both recently approved versions of what's been termed the "I'm Sorry Bill."  The Bill provides that certain statements expressing sympathy, compassion, commiseration, or a general sense of benevolence relating to pain, suffering, or death of an individual are inadmissible as evidence of an admission of liability in a medical malpractice action.  However, statements of fault, negligence or culpable conduct would remain admissible. 

The Centers for Medicare and Medicaid Service's (CMS) recently published Final Rule related to Civil Money Penalties for Nursing Homes implements provisions of the Patient Protection and Affordable Care Act related to the nursing home enforcement process. 

The Centers for Medicare & Medicaid Services ("CMS") has recently proposed the much anticipated Long Term Care regulations related to Hospice Services.  These proposed rules mirror the hospice regulations that went into effect on December 2, 2008, and establish requirements that facilities must meet in order to qualify to participate in the Medicare and Medicaid programs.  Specifically, the proposed rules obligate Long Term Care facilities to (1) enter into an agreement with a Medicare-certified hospice to arrange for the provision of hospice services to residents, or (2) assist in transferring residents to a facility that will arrange for the provision of hospice services when requested by the residents.  If an arrangement between a Long Term Care facility and Hospice is established, CMS has also strictly regulated the content of the agreements between the two.  Traditionally, the content of such agreements receives significant attention and scrutiny from surveyors.

If you would like assistance in drafting new agreements or reviewing your current contracts to ensure compliance with the proposed rules, please contact one of the experts in Foster Swift's Health Care Practice Group. 

On January 21, 2011, the City of Pontiac filed a class action lawsuit against Blue Cross Blue Shield of Michigan ("Blue Cross") and 21 hospitals and health systems (collectively, the "Hospital Defendants").  The complaint alleged that Blue Cross unlawfully restrained trade in violation of the Sherman Act and Michigan Antitrust Reform Act by including 'most favored nation' ("MFN") clauses in its contracts with hospitals.  (The effect of these clauses was to allegedly raise the minimum prices that hospitals could charge to Blue Cross' competitors.)