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Paul Zimmerman

Showing 12 posts by David D. Johnson.

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Ersler Dmitry ©

CMS Increasingly Turns to Civil Monetary Penalties to Police Federally-Funded Health Programs

The federal government has upped the use of civil monetary penalties to enforce its regulations on subsidized health programs. In 2017, the Centers for Medicare & Medicaid Services (CMS) announced civil monetary penalties totaling $5.7 million against 27 Medicare Advantage and Part D prescription drug plans. CMS has been exceeding this pace in 2018, and through February has already announced $1.7 million in penalties against eight plans, slapping one with a $1.4 million fine. (Read More)

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Evgeny Atamanenko ©

Courts Read Network Adequacy Requirements into Federal Lactation Counseling Mandates

The ACA and federal regulations require health insurers and plans to cover lactation counseling without cost-sharing (deductibles and co-pays). Under the regulations, an insurer or plan can meet this obligation by either including “a provider” in its network who can provide the service, or by permitting its members to use an out-of-network provider free of any cost. In two recent cases, courts appear to be reading some level of network adequacy and disclosure requirements into the mandates for insurers and plans that take the in-network route. (Read More)

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morganka ©

New Essential Health Benefits Rules Give Obamacare Plans More Flexibility As They Face Rising Competition

The Department of Health and Human Services (HHS) just issued its annual revision of the rules for Obamacare plans that are sold on the state Exchanges (Marketplaces). The rules give states and insurers more flexibility in determining what benefits these plans should offer. Likewise, they fix some nonsensical prior guidance from HHS that discouraged plans from providing special benefits to children, elders, women and the disabled. This flexibility is needed as Obamacare plans begin to compete with association and short-term health plans. (Read More)

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belchonock ©

Two Courts Reject § 1557 and Title VII Healthcare Discrimination Claims Against Insurance Companies Acting as Third-Party Administrators

In two recent decisions, courts have refused to hold insurers acting as third-party administrators (TPAs) liable under ACA § 1557 or Title VII for carrying out allegedly discriminatory terms of self-funded employer health plans. In both cases, the TPAs did not appear to have any role in setting the terms of the employer-sponsored plans, but only in approving and denying claims under their terms. (Read More)

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dolgachov ©

The Oral Argument in NIFLA at the Supreme Court and Limits on Freedom of Conscience for Healthcare Providers in the States

Another episode in the never-to-be-ended disputes over freedom of conscience played out in the U.S. Supreme Court last Tuesday. At issue in National Institute of Family and Life Advocates (NIFLA) v. Becerra was whether California’s FACT Act could require licensed, religious pro-life crisis pregnancy centers to publish statements informing pregnant women about state-provided abortion services or unlicensed centers to post prominent notices disclosing their unlicensed status. Despite the religious elements of the dispute, the argument before the Supreme Court ignored almost any discussion of constitutional protections for religious liberty and focused on protections for speech. (Read More)

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issumbosi ©

Authorities Split on whether ACA Section 1557 Requires Hospital Staff to Use Pronouns and Terms Consistent with a Patient’s Gender Identity

Among the most controversial of HHS’s ACA Section 1557 regulations is its requirement that covered healthcare entities treat persons consistent with their gender identity. The regulations distinguish gender identity from biological sex, and define it as a person’s internal sense of gender, which can be male, female, neither or a combination of both. HHS’s regulations do not spell out what it means to treat persons consistent with their gender identity. But a voluntary resolution agreement that its Office for Civil Rights (OCR) reached with a hospital in 2015 required it to let patients register their sex and gender upon admission, and to train staff in “appropriate terminology to use when referring to transgender individuals.” Department of Education guidance issued around the same time was even more direct and stated that public schools must use pronouns consistent with a student’s gender identity. (Read More)

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Katarzyna Białasiewicz ©

Would HHS’s Healthcare Conscience Rules Enable Physicians to Stay Silent About Legal End-of-Life Options?

Physicians who object to direct involvement with a medical procedure such as assisted suicide have differing views on the extent of their ethical duty to provide patients with information about how to obtain it elsewhere. Currently pending healthcare conscience regulations from HHS may give a healthcare provider a remedy against state laws that compel disclosure, regardless of where the provider draws the line. (Read More)

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Alexander Raths ©

When Is Coverage of Residential Care Required under MHPAEA? The Courts Reach Different Conclusions

For years, health plans and insurers have engaged in a tug-o-war with the courts over whether the Mental Health Parity and Addiction Equity Act (MHPAEA) requires them to cover residential care for mental illnesses and substance use disorders (MH/SUD). Recent court decisions indicate that the battle is not over. Not the least because residential care can mean many different things. (Read More)

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Tatiana Popova ©

Will Disparate Impact Claims Be Permitted in ACA Section 1557 Healthcare Cases?

Civil rights act claimants have long sought to use the “disparate impact” theory to prove discrimination. Under this theory, a policy or action that is neutral on its face and is not intentionally discriminatory can still be deemed to violate the law if it has an especially adverse effect on a disability, sex, age or ethnic group. This theory, however, is difficult to apply to healthcare benefits. Unless resources are unlimited, governmental and private sponsors of health plans must make choices on which physical conditions to cover. But any decision not to cover a condition can seemingly be framed as having an adverse impact on a protected group. (Read More)

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New Proposed Regulations for Short-Term Health Insurance Are a Modest Step on the Road to Cheaper Coverage for Individuals

Federal regulators just announced new proposed rules that will make it easier to sell short-term, limited duration individual health insurance. Short-term insurance can be less costly because it is exempt by statute from most Affordable Care Act (ACA) mandates. In late 2016, to curtail its sale, federal regulators changed the rules to require that such insurance have a term of no more than 90 days, and that it not be renewable without the consent of both the insurer and the insured. The new rules alter these restrictions and permit short-term policies with a term of less than 12 months that are renewable with just the insurer’s consent. The net effect: insurers will be able to sell short-term individual policies with terms of up to 364 days that are essentially automatically renewable. (Read More)