PPACA Impact and Opportunities : Health Care Lawyer & Attorney : Epstein Becker Green Law Firm : Insurance & Costs : Health Reform Musings Blog

By Greta Ravitsky

I wrote the January 2013 edition of Take 5: Views You Can Use, a newsletter published by the Labor and Employment practice of Epstein Becker Green.

In it, I summarize five actions that employers should consider taking in 2013 as the DOL steps up its audit efforts under the leadership of the reenergized Obama administration:

1. Assess the Workforce
2. Choose Whether to “Pay” or to “Play”
3. Evaluate Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac Tax”
4. Understand and Be Ready to Comply with New Tax-Related Changes and Requirements
5. Conduct Self-Audits to Ensure Compliance

The following is an excerpt:

With the U.S. presidential election behind us, it is clear that the Patient Protection and Affordable Care Act (“Affordable Care Act”) is likely here to stay, having survived a U.S. Supreme Court case challenge last June. While affected employers can avoid facing penalties until 2014 for not making health care coverage available to their workforce, the U.S. Department of Labor (“DOL”) has begun auditing employers’ group health plans for compliance with other requirements of the law that are already in effect. As the DOL steps up its audit efforts under the leadership of the reenergized Obama administration, below are five actions that employers should consider taking in 2013.

Read the full version on EBGlaw.com.

by Jackie Selby and Jane L. Kuesel

As enacted in the Patient Protection and Affordable Care Act, states are required to have established operational health benefit exchanges by January 1, 2014, or the federal government will implement one for them. These exchanges will allow individuals and small businesses to buy health care coverage and are expected to add approximately 30 million currently uninsured persons to the health insurance market. Most of the health plans that will be offered on such exchanges will be managed care plans with networks of participating providers. Thus, the resulting new business will be covered by hospital, physician, and other provider participation agreements with such managed care plans.

Read the full alert here

Stuart Gerson, a Member of the Firm in the Litigation and Health Care and Life Sciences practices at Epstein Becker Green, authored an article titled "The Supreme Court Has Decided, but Can America Afford the Affordable Care Act?"

Following is an excerpt:

By now, every American who pays any attention to the news is aware that on the last day of its now concluded term, the U.S. Supreme Court, with its June 28 decision in National Federation of Independent Business v. Sebelius, U.S., No. 11-393, 6/28/12, has upheld essentially all of the Obama Administration's Affordable Care Act (ACA), and did so through an unusual series of opinions, with Chief Justice John G. Roberts Jr. acting essentially as a majority of one. The two controlling holdings are neither unprecedented nor difficult to understand. How these holdings came to control, however, while sensible, was largely unpredicted and leaves interesting ramifications both for the Supreme Court and for the state of health care in the United States.

By a 5-4 majority, led by the chief justice (with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan concurring separately), the court upheld the most controversial and essential provision of the Affordable Care Act—the ‘‘individual mandate''—not under the Commerce Clause, as its proponents primarily urged, but under the tax power—not as a requirement to buy health insurance, but as a tax if they don't.

Download the Full Article (PDF Format)

by Dale C. Van Demark

Not by much – but perhaps in a unique way.

The increased pace of hospital and health system merger activity we’ve seen in the marketplace has had little to do with the Patient Protection and Affordable Care Act (the “ACA”). Rather, broader market conditions, some of which are affected by the ACA, have been driving hospital market consolidation. The financial crisis, which negatively impacted many hospitals’ ability to raise capital or maintain their credit ratings, and the downturn in the broader economy, which resulted in fewer people seeking care, have created the primary incentive for hospital consolidation.

In addition, just as capital has become scarce and business has slowed, infrastructure upgrades are becoming critical. The push for “meaningful use” of information technology and increased emphasis on quality reporting are creating more and more budget demands. Further, staffing shortages and increasing government investigations have created more financial pressure.

Read the full post on the Hospital Deal Blog

On Monday, July 2, 2012, Epstein Becker Green conducted a webinar titled "Decision 2012: What's In, What's Out, and What's Next?" examining the monumental decision (PDF) issued by the Supreme Court of the United States on the Patient Protection and Affordable Care Act.

This webinar analyzed the decision and its implications for the states, the health care and life sciences industry, and employers. It also addressed potential congressional activity and the decision's impact on the presidential election.

Click here to view the recording of this webinar (WMV file)

by Jay Gerzog, Dale Van Demark, Tamar Rosenberg, and Dawn Welch

Is it possible that the U.S. Department of the Treasury (“Treasury”) knows something we do not about the pending U.S. Supreme Court decision on PPACA?

Probably not, but that has not stopped the Treasury and Internal Revenue Service (“IRS”) from issuing proposed regulations on June 26, 2012, with respect to three of the four new requirements for tax exemption of hospitals imposed by PPACA.

With the adoption of PPACA, Congress took its first concrete step toward toughening the standard for tax exemption in decades. For many years, members of Congress have questioned the justification for the tax exemption of hospitals, decrying the lack of a charity care mandate and pointing to commensurate levels of charity care provided by proprietary hospitals.

In PPACA, Congress vented its concerns with new requirements for tax exemption . . . which do not include a charity care mandate.

Instead, Congress created a number of operational requirements designed to protect against perceived abuses related to billing and collections, and designed to focus hospitals more intently on the health needs of the communities served. With respect to the latter, Congress mandated that hospitals conduct periodic community health needs assessments and adopt strategies to address those needs. In July 2011, the Treasury and IRS issued Notice 2011-52 (2011-30 IRB 60) (July 8, 2011), identifying approaches to the community health needs assessment requirement and seeking comments.

Now, the Treasury and IRS have addressed the remaining three new requirements with proposed regulations. The three new requirements are that hospitals must:

• establish written financial assistance policies and emergency medical care policies;
• limit the amounts charged for emergency and other medically necessary care provided to individuals eligible for assistance under financial assistance policies to no more than the amounts generally billed to individuals who have insurance coverage for such care; and
• make reasonable efforts to determine whether an individual is eligible for financial assistance before engaging in “extraordinary collection actions.”

The proposed regulations provide some useful insight into the direction that the government is headed with respect to these requirements. In particular, the proposed regulations provide definitions for “extraordinary collection actions” and suggest solutions to some interesting questions, such as the application of the requirements to multi-hospital systems.

The proposed regulations also request comments or reserve judgment in a number of areas, including the consequences of failing to comply with the requirements and whether certain actions should be considered “extraordinary collection actions.”

Let's wait to see what happens with the Supreme Court's ruling on whether these regulations will even be applicable.

by Jesse M. Caplan and Serra J. Schlanger

Since November 2011 the Center for Consumer Information & Insurance Oversight (“CCIIO”) in the Centers for Medicare & Medicaid Services has completed 22 reviews of health insurance premium rate increase filings in the individual and small group markets. Under the new federal rate review regulations, CCIIO has determined that six of the reviewed premium rate increases represented “unreasonable” increases while 16 of the rate increases were deemed “not unreasonable.”

This Implementing Health and Insurance Reform alert provides a summary and analysis of the completed federal rate review determinations to date. It also provides a link to Epstein Becker Green’s interactive National Health Insurance Rate Review Scorecard, which offers insurance carriers, lawyers, and other stakeholders an up-to-date resource on federal and state health insurance rate review programs, standards, and initiatives.

Read the full alert here

Kara Maciel, Member of the Epstein Becker Green Labor and Employment, Litigation, and Health Care and Life Sciences Practices, was recently interviewed by Employment Law360 concerning employer wellness programs. 

According to the article, businesses are turning to wellness programs to curb health care expenses, but programs that aren't carefully crafted can open employers up to costly privacy and discrimination litigation, attorneys say.  Wellness programs can lead to big savings for employers by targeting behaviors that can cause conditions that drive up their health care expenditures. But programs that give employers too much  information about their employees can leave employers vulnerable to claims that they have violated the  Health Insurance Portability and Accountability Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and state privacy and nondiscrimination laws, experts say. 

“Employers really can open themselves up to a litigation minefield if they do not properly craft their programs in a legally compliant way, with a particular focus on discrimination and privacy issues,” said Maciel. 

Click here to download the Employment Law360 article in its entirety (PDF).

by Gretchen Harders, Daly D.E. Temchine, and Joseph J. Kempf, Jr.

On December 7, 2011, final rules on the medical loss ratio (“MLR”) requirements for insured health plans (and an interim final rule for non-federal governmental plans) were issued by the U.S. Department of Health and Human Services and the Centers for Medicare & Medicaid Services under the Patient Protection and Affordable Care Act. The MLR requirements are effective January 1, 2012, and any issuer who does not meet the MLR requirements for the 2011 MLR reporting year must pay rebates by August 1, 2012. This alert will address who should get a rebate and what we should expect to see under the MLR rules.

Read the full alert here