Schedule

Our panelists will provide an overview of key recent developments and what to look for over the next year in the ever-changing landscape of health care policy. Panelists will address key themes and areas of focus at both the federal and state level, and across commercial and governmental lines of business, including:

• Implications of the end of the PHE
• Affordability and access
• Top issues for ACA marketplaces, Medicare Advantage, and employer markets

This panel will examine antitrust enforcement under the Biden Administration, including:

• An update from DC, including investigation and litigation trends
• The DOJ Antitrust Division’s case against the UnitedHealth/Change transaction
• President Biden’s Executive Order on Competition
• The FTC’s PBM study
• An update on the Blue Cross MDL, and much more

This session will cover three essential topics for both in-house and outside counsel to help you avoid landmines in your practice. First, the speakers will cover your ethical obligations if you find yourself working with a client that is not being truthful with you or third parties or otherwise engaging in wrongdoing. The presentation will cover issues including:

• Do in-house and outside counsel have differing remedies in that event? Withdrawal may be possible for outside counsel, but in-house attorneys don’t have that luxury. What can an in-house lawyer do that an outside lawyer can’t? Advising the client decision-makers of an employee’s misconduct, and how and when to escalate. What risks are there for the lawyer in keeping silent?
• What are your duties of inquiry in the first place? Can/should you fact-check everything your client says?
• What’s an in-house lawyer to do if the GC or outside counsel disagrees with you on strategy? Including a reminder about Rules 5.1 and 5.2
• Are there different obligations of candor in litigation versus contract negotiation? Comparing and contrasting Rule 3.3 and Rule 4.1
• How does the art of negotiating, which sometimes includes bluffing or concealing facts, collide with ethical rules? What is the line between puffery and fraud? How do you harmonize the rules of candor, zealous advocacy and loyalty to the client?

The speakers will also cover the crime/fraud exception to the attorney client privilege, which will include exploring trends in this area of jurisprudence, including how courts have analyzed whether a party claiming the exception met its burden of proof to vitiate the privilege. They will identify triggers for the unwary, and offer tips on how to keep your client from inadvertently walking itself into the exception.

Finally, the speakers will provide an update about the upcoming, significant US Supreme Court case, In re Grand Jury, which deals with the issue of dual purpose attorney-client communications. They will provide insight and analysis on the privilege issues involved, and tips to guide counsel and client in fashioning communications to avoid mischaracterization of the communications and advice, and preserve the privilege.

• How did the April 2022 report of DHHS’s Office of Inspector General shine a light on prior authorization in Medicare Advantage and beyond?
• How have CMS and other DHHS units responded with proposals for evolving prior authorization regulation in Medicare Advantage and beyond?
• How has Congress responded with proposals for prior authorization legislation in Medicare Advantage and beyond?
• What are underlying themes and trends in all this prior authorization regulatory and legislative activity?
• What might these evolving prior authorization requirements and expectations mean for payers, providers and their vendors?

• Transparency in Coverage Rule (“TiC”):
  • Coverage of recent TiC developments, including statutory requirements impacting commercial health plans, OIG enforcement action patterns, and good faith compliance efforts health plans may implement to avoid substantial civil money penalties
• Notice of Benefit and Payment Parameters for 2023 Proposed Rule:
  • Dissecting the nuances of the CMS final rule as it affects commercial health plans, and suggest measures health plans can take to ensure compliance
• Enforcement of Information Blocking:
  • Covering the relevant impact that information blocking regulations have on commercial health plans
• Mental Health Parity and Addiction Equity Act (“MHPAEA”):
  • What commercial payors need to do to get ahead of enforcement efforts and ensure they are in adherence with MHPAEA requirements

• The Independent Dispute Resolution (IDR) process established by the No Surprises Act (NSA) for resolving reimbursement disputes between health plans and out-of-network providers, including the factors considered by the IDR entities (IDREs) and related litigation challenges
• Advice for plans and their counsel that handle IDR disputes, with a focus on the provider perspective and defending plan reimbursement offers
• Enforcement mechanisms available to regulators, both routine and as a result of provider and IDRE complaints
• Considerations and counsel on how to best prepare for, and respond to, audits of compliance with the NSA

This session will provide Plaintiff’s, Defense counsel, and Compliance expert perspectives on the following topics:

• The status of FCA cases involving Medicare Advantage risk adjustment and DOJ enforcement trends more generally
• Recent changes to the Medicare Advantage risk adjustment payment model and how they reflect and might impact litigation and oversight
• Announced changes to CMS and OIG RADV Audits and recent trends in focus and approach
• Challenges and opportunities for Plans, Providers, and Third Parties in the MA ecosystem

• Relationships with FQHCs, RHCs and Indian health centers
• Legal obligations to contract with other safety net providers
• Mandatory coverage of sensitive/family planning services and issues arising from abortion coverage
• Coordinating with providers to meet specified objectives, e.g., language access and other equity goals
• Partnering with providers for non-traditional healthcare models targeting social determinants of health

• Overview of the MA marketing rules
• Recent major changes to the MA marketing rules and guidance
• Highly scrutinized areas for MA marketing and latest guidance
• Proposed MA marketing rules and their likely impact on MA plans and Medicare beneficiaries
• Beyond MA–the complex regulatory framework also governing MA and other payor marketing initiatives

• How did the April 2022 report of DHHS’s Office of Inspector General shine a light on prior authorization in Medicare Advantage and beyond?
• How have CMS and other DHHS units responded with proposals for evolving prior authorization regulation in Medicare Advantage and beyond?
• How has Congress responded with proposals for prior authorization legislation in Medicare Advantage and beyond?
• What are underlying themes and trends in all this prior authorization regulatory and legislative activity?
• What might these evolving prior authorization requirements and expectations mean for payers, providers and their vendors?

A presentation covering the rapidly evolving field of Behavioral Health and Substance Abuse litigation, with a specific focus on the following issues:

• The pleading standards being applied to Parity Act claims
• The Ninth Circuit’s decision in Wit v. United Behavioral Health, and its ramifications for cases around the country
• Notable issues currently being litigated under the Parity Act, including comparative treatments, licensing requirements, exclusions, wilderness therapy, guidelines, and damages
• Hurdles that payors and health plans may face in complying with the Parity Act
• Fraudulent schemes carried out by Behavioral Health and Substance Abuse providers
• Policy developments and what to look for in the near term

This session will consider how data governance impacts cybersecurity and governance tools aimed at preserving privacy, protecting data, increasing trust, and ultimately driving value to an organization. Topics covered will include:

• Cyber risk, ransomware, and other bad actors as applied to Health Plans
• How regulatory bodies are responding to such risk, including through the Privacy, Security, and Breach Notification Rules
• The rising need for risk-based data governance, including:
  • The “who, what, when, where, and why”
  • Data collection, use, and leverage
  • Data grouping and mapping
  • Data hygiene
  • How to monitor and evaluate impact of controls

• Current state of Alternative Payment Model (APM) adoption by health plans and exploring various types of value-based payment (VBP) models
• Considering the risks and benefits of value-based arrangement
• Regulatory considerations for APM at the federal and state levels (e.g., Medicare and Medicaid, insurance/risk regulation, antitrust, fraud & abuse)
• Commonly negotiated provisions of value-based care arrangements from payors’ and providers’ perspective
• Anticipating hot button areas for disputes between payors and providers

• Medicare Drug Price Negotiation Program
• Medicare Part B and Part D Prescription Drug Inflation Rebate Programs
• Part D Benefit Design
• Medicaid Reforms
• New CMMI Models
• Drug Reporting Requirements

• The Independent Dispute Resolution (IDR) process established by the No Surprises Act (NSA) for resolving reimbursement disputes between health plans and out-of-network providers, including the factors considered by the IDR entities (IDREs) and related litigation challenges
• Advice for plans and their counsel that handle IDR disputes, with a focus on the provider perspective and defending plan reimbursement offers
• Enforcement mechanisms available to regulators, both routine and as a result of provider and IDRE complaints
• Considerations and counsel on how to best prepare for, and respond to, audits of compliance with the NSA

This session will provide Plaintiff’s, Defense counsel, and Compliance expert perspectives on the following topics:

• The status of FCA cases involving Medicare Advantage risk adjustment and DOJ enforcement trends more generally
• Recent changes to the Medicare Advantage risk adjustment payment model and how they reflect and might impact litigation and oversight
• Announced changes to CMS and OIG RADV Audits and recent trends in focus and approach
• Challenges and opportunities for Plans, Providers, and Third Parties in the MA ecosystem

As markets continue to tighten, many mid and large-scale health plans are exploring third-party partnerships, including joint ventures, value-based contractual commitments, sales, and acquisitions. In order to maximize the value of strategic alignment opportunities, well-positioned health plans are accelerating both internal and third-party diligence review of core regulatory and transactional compliance risks. This discussion will focus on emerging health plan risk areas to consider, as well as risk mitigation tactics, for these diligence exercises, including:

• Risk sharing and vertical integration considerations
• Emerging fraud and abuse trends in risk adjustment, MLR/bidding, telehealth, and in-home care, including recently finalized and proposed Medicare Advantage rules
• State RBO and licensure requirements for potential partners
• Participation in emerging CMMI and value-based care models
• Formal compliance apparatus structure and oversight

• Overview of the MA marketing rules
• Recent major changes to the MA marketing rules and guidance
• Highly scrutinized areas for MA marketing and latest guidance
• Proposed MA marketing rules and their likely impact on MA plans and Medicare beneficiaries
• Beyond MA–the complex regulatory framework also governing MA and other payor marketing initiatives

• Current state of Alternative Payment Model (APM) adoption by health plans and exploring various types of value-based payment (VBP) models
• Considering the risks and benefits of value-based arrangement
• Regulatory considerations for APM at the federal and state levels (e.g., Medicare and Medicaid, insurance/risk regulation, antitrust, fraud & abuse)
• Commonly negotiated provisions of value-based care arrangements from payors’ and providers’ perspective
• Anticipating hot button areas for disputes between payors and providers