News

"Mercer CEO and President Pat Tomlinson ... focused on two legislative priorities for employers: preserving ERISA's long-standing preemption and protecting current tax incentives for employer-sponsored healthcare and retirement plans. He talked about studies that have shown that for every $1.00 of tax expenditure, multiples of that amount are paid by employers to finance health and retirement benefits. He also discussed the importance of pharmacy data transparency to employers."

"If some health care-related items that are already in the law and not considered 'new policy' are likely going to move during this upcoming Lame Duck, maybe, just maybe some 'new policy' will ride along with them.... [In the author's] opinion, the provisions included in the House-passed Lower Costs, More Transparency Act like codifying the Hospital Transparency, TiC, and Prescription Drug File Rules and the Data-Sharing provisions, plus any of the PBM reforms ... are all considered 'new policy.' "

"[The authors] recommend that the agencies collect and make available systematic, high-quality data on the ownership structures of health care entities, with a particular focus on improving the data available on physician practices.... [CMS] should collect systematic data on physician practice ownership as part of the Medicare enrollment process, as it does for institutional providers.... CMS should take steps to improve the quality of entity-reported data."

"The court ... noted that while Section 502(a)(2) claims may be asserted by an individual, they are brought in a representative capacity on behalf of the plan and seek plan-wide relief. Thus, with his Section 502(a)(2) claim, Cedeno was not simply seeking a remedy for losses in his particular account; he was seeking a remedy on behalf of the plan that would affect the accounts of others as well and perhaps lead to non-monetary equitable relief." [ Cedeno v. Sasson , No. 21-2891 (2d Cir. May 1, 2024)]

"Recent revelations about a data analytics firm's role in determining medical payments have heightened concerns about possible price fixing in health care and led to a call for a federal investigation.... Senator Amy Klobuchar asked federal regulators to examine whether algorithms used by the firm, MultiPlan, have helped major health insurers conspire to cut payments to doctors and leave patients with large bills."

"DOL notes that it is unaware of any AHPs that exist today in reliance on the 2018 regulations, limiting the impact of their rescission. The agency's decision to rescind the full 2018 AHP rule is intended to resolve any lingering uncertainty over that rule and ensure that the agency's guidance to the regulated community aligns with federal law."

"The 400-page final rule provides an expansive, employee-friendly interpretation of the PWFA and clarifies who is covered, the types of limitations and medical conditions covered, and how to request reasonable accommodations.... The final rule includes examples of limitations and medical conditions for which employees can seek reasonable accommodations ... The final rule emphasizes that informing employers of limitations and requesting reasonable accommodations should not be complicated or difficult."

Video of Apr. 16 hearing. Opening statement, Rep. Bob Good (R-VA); testimony from [1]  Mr. Russell DuBose , Phifer Inc.; [2]  Ms. Mairin Mancino , Peterson Center on Healthcare; [3]  Ms. Karen L. Handorf , Berger Montague; and [4]  Mr. Scott Behrens , Lockton Companies.

"The growing tension between state law and federal preemption over regulating drug benefits will be high on lawmakers' agenda at an upcoming House hearing on strengthening [ERISA] as the law turns 50.... States see the new laws as an effort to help community pharmacists who may be harmed by PBM practices, but employer groups say the laws could block them from designing their health plan benefits in ways that reduce pharmacy costs."

"Prescription drug spending by private health plans climbed to nearly $152 billion in 2021, an 18 percent increase from 2016. Health plans generally rely on PBMs to process claims, develop pharmacy networks, and negotiate rebates from drug manufacturers.... GAO was asked to review states' regulation of PBMs serving private health plans. Among other things, this report describes actions selected states have taken to regulate PBMs, and lessons learned that state regulators identified for PBM regulation." [ AO-24-106898 pub. Mar 18, 2024, rel. Apr 15, 2024]

"The Fourth Circuit's decision in Rose is significant. The opinion contains one of the most detailed analyses of the types of relief that were typically available in equity courts of any circuit or district court decision since Mertens . It is certainly the most detailed analysis since Montanile .... Ultimately, Rose provides a strong basis for pushing back on claims for monetary relief that do not include situations where there is an identifiable fund. " [ Rose v. PSA Airlines, Inc. , No. 21-2207 (4th Cir. Sep. 11, 2023; cert. pet. denied Apr. 15, 2024)]

"Federal legislators and regulators have increasingly expressed concern that PE investors and other for-profit operators of health care companies strip their investments down to bare bones, recapitalize them with debt and make distributions to themselves and other investors with the proceeds of the indebtedness, pay themselves handsome management fees and engage in expensive real estate sale-leaseback transactions. These practices, they argue, are designed to enrich the owners of these organizations at the expense of patient care and safety and the livelihoods of health care workers."

Video of April 11 hearing. Opening statement by Chair Kevin Kiley (R-CA); testimony from [1]  Ms. Kristin Sharp , Flex Association; [2]  Ms. Gabriella Hoffman , Independent Women"s Forum Center for Economic Opportunity; [3]  Dr. Katie Wells , Georgetown University; and [4]  Dr. Liya Palagashvili , Mercatus Center at George Mason University.

20 pages. "The PBM regulatory landscape continues to evolve rapidly at both federal and state levels ... This Winter 2024 update builds on prior issues and highlights federal and state activity from October, November, and December 2023."

"The out-of-network or RBP without caps savings scheme is akin to a leaky roof repair service that charges based on potential rather than actual damage. They bill you on how much water could have gotten in. In a more just system, such practices would be unthinkable. Yet, in healthcare, they are not only accepted but normalized. While some players in the out-of-network negotiation or RBP sphere do place a per-claim cap on their fees, others operate with virtually no limits, raising questions about ethics and fairness in healthcare billing."

19 pages. "This paper describes policy concepts for consideration, including collaboration with the private sector to develop and implement a Manufacturer Resiliency Assessment Program (MRAP) and a Hospital Resilient Supply Program (HRSP). As described, the combination of these programs would bring transparency into the market, link purchasing and payment decisions to supply chain resilience practices, and incentivize investments in supply chain resilience and diversification in the supply chain -- including domestic manufacturing -- at a scale that would drive impactful change in the market."

"[T]he 221st open meeting of the [ERISA Advisory Council] will be held on Tuesday, May 14, 2024.... The meeting will take place at the [DOL offices in Washington DC]. The meeting will also be accessible via teleconference and some participants, as well as members of the public, may elect to attend virtually.  ... The purpose of the open meeting is to set the topics to be addressed by the Council in 2024. Also, the ERISA Advisory Council members will receive an update from leadership of the Employee Benefits Security Administration (EBSA)."

"Mercer recommends the committee direct the Congressional Research Service to publish an extensive report on ERISA preemption. Copies of the report should be sent to every state's insurance commissioners and legislators, as well as the leadership of the National Association of Insurance Commissioners  ... Mercer recommends building on recent transparency improvements to ensure that group health plan fiduciaries have access to the information they need to better fulfill existing fiduciary duties, including selecting and monitoring service providers that administer plan benefits."

30 pages. "The Committee may want to act relatively quickly to shore up the strength of ERISA's preemptive standard before any potential SCOTUS action on Mulready .... [NABIP] strongly suggest[s] that Congress adjust the definitions of fiduciary and service provider within ERISA to create specific definitions for health and welfare plans.... Congress should ensure that the entity holding the information or the entity responsible for its determination should be the one responsible for any federal reporting or data compilation requirement.... It is unfair and unreasonable to hold the employer responsible and liable for reporting information they cannot control."

"ERISA is turning 50 this year and lawmakers are curious to hear about how the law could be updated to increase coverage affordability and care access. Payers and providers, it turns out, have very different ideas on where Congress should focus its efforts."

"Core themes of these pieces of legislation are increasing transparency of PBM operations and prohibitions or limitations on the use of spread pricing, a technique where PBMs could profit from the margin between what health plans are charged and what is paid to pharmacies, potentially incentivizing formularies to favor more costly drugs.... A deep dive into these significant bills will help us understand the potential landscape of PBM regulation and its far-reaching implications for the health care system."

"Many of the FY 2025 budget proposals track those made in prior Biden Administration budgets.... [This article outlines] key health, retirement, and benefits-related provisions in the budget."

"[With] positive momentum from policy makers in both chambers of Congress and on both sides of the aisle, the likelihood of a final price transparency bill getting passed and signed into law seems high. [Two current] proposals include many of the same provisions but differ in other ways. So, what would these price transparency provisions do? Which provisions could have the most significant impact on the cost of health care for consumers and employers? And what more still needs to be done to fully achieve the cost-containment objectives of requiring price transparency in health care?"

"CAHC believes Congress should instead strengthen ERISA by [1] expanding options for employers and their employees; [2] providing financial incentives to ensure employer coverage remains viable; and [3] enacting policies to lower the cost of health services and drugs to reduce premiums and out-of-pocket costs."

"While employers have made significant progress responding to the mental health challenges faced by their workforce, Congress and the Administration should take meaningful steps to break down obstacles that are critical to enhancing mental health services across the nation. Through expanding access to telehealth, strengthening the provider workforce, and better integrating care, ... barriers to quality care will be reduced, patient outcomes will be better, and costs will be lowered."