Managed Care Disputes and Litigation

Continental Breakfast

Co-Chairs’ Welcoming Remarks

Townhall on New Developments in the Managed Care Industry

Having a holistic view of the industry is crucial in determining litigation strategies. This session will provide a review of current cutting-edge developments and policies impacting the managed care industry. Topics of discussion will include:

• Navigating the new playing field: new CMS directives with respect to social determinants
  • Exploring the renewed focus on adding benefits for GED, housing, and other long-term support services under Medicaid
  • DNA of a zip code
• Developing strategies for mitigating the medical director exposure
  • Best practices for risk management in terms of D&O and E&O policies
• Analyzing effective ways of addressing medical necessity treatments

IN-HOUSE COUNSEL THINK-TANK

The Challenges of Being a Managed Care Entity in Today’s Healthcare Environment

• Addressing coverage and cost challenges in the current environment
  • How to expand coverage and keep premiums low
• Examining the Medicare/Medicaid expansion in various states and potential impact on payors
• Exploring the impact of new entrants (e.g., Amazon, Berkshire) on payors
• Analyzing HHS’ guidance on how to implement its blueprint for drug pricing
  • How do MCOs anticipate the drug pricing developments will impact existing contractual arrangements? What types of risk will MCOs potentially be exposed to?
• Exploring the recent trend of moving discovery in-house
  • Do in-house counsel feel they are equipped to handle the bulk of the discovery matters in-house?

Morning Coffee Break

Developing Successful Strategies for Handling Payor vs. Non-Par Provider Reimbursement Disputes

Disputes with non-par providers in both the emergency and nonemergency context are perhaps one of the greatest challenges that the managed care industry is presently facing. This session will help you address these disputes in both the emergency and nonemergency context.   Emergency context

• Exploring the “greater of three” and typical disputes in this arena
• Devising best practices for handling claims brought by out of network providers indicating that they were promised a particular preauthorization rate Developing defense strategies for disputes with non-contracted hospital(s) or medical group
  • What comes up in these cases?
  • What is the focus when determining reasonable value?
  • What expert testimony is needed?
  • What evidence is necessary?
• Exploring defenses against arguments put forth by providers including:
  • The provider had to treat because it was an emergency situation
  • Various state statutes and ACA demand that a provider treats in emergency situations

• Addressing customer service representations regarding coverages
  • Developing best practices for handling communications with providers during preauthorization process
  • Suggested ways for MCOs to train and monitor how their customer service addresses pre-authorizations and reimbursement discussions

Addressing Disputes among Contracted Providers and Payors

• As payment methodology moves toward “pay-for-performance” type of an arrangement, how can payments to providers be determined without it turning into a litigation issue?
  • How to reimburse individual providers and have enough transparency where providers believe that it is fair and complying with the contract
  • If there can be no transparency, what are the strategies for most efficient resolution of these disputes?
• Best strategies for handling disputes in an arbitration context

Networking Luncheon

Coverage Considerations for New Trends in Behavioral Therapy

• Addressing disputes between payors and providers involving behavioral therapies for various conditions (e.g., autism, substance use disorder (SUD), and various psychiatric conditions)
  • Developing best strategies for resolving reimbursement disputes where provider continued treatment beyond what was necessary
• Exploring the new trend involving “wilderness therapy” and the controversy over its coverage
• Analyzing litigation trends and best practices relative to these new therapies

Assessing the Impact of the Medicaid Work Requirement on Managed Care Organizations

• Examining individual state work requirements
• What are the operational challenges for MCOs under the work requirement?
  • Tracking eligibility
  • Documentation
• Exploring the status of any current litigation

Afternoon Networking Break

Medicare Risk Adjustment: Understanding the Implications of the Latest Enforcement and Litigation Developments

• Exploring the latest evolution of the regulatory and enforcement landscape in Medicare Risk Adjustment
• Developing best practices and proactive strategies for Medicare Advantage plans to protect against litigation in light of shifting government positions and lack of guidance
• Discussing methods for conducting thoughtful and effective internal investigations protected by attorney-client privilege

Understanding How Future Developments with the Affordable Care Act Will Impact Managed Care Organizations

• Examining the latest lawsuits and decisions challenging the Act’s constitutionality
• Assessing the potential consequences of the repeal or defunding of the Act by Congress
• Developing strategies for moving forward in the face of legislative uncertainty

Conference Adjourns to Day Two

Continental Breakfast

Co-Chairs’ Remarks and Recap of Day One

FOCUS ON FCA/QUI TAM AND CLASS ACTION ACTIVITY

What Lies Ahead for Managed Care Organizations with Respect to Opioid Litigation

• Addressing theories of liability implicating managed care organizations in the current opiod litigation
• Risk management perspective: how are MCOs handling opioid procedures internally?
• Addressing treatment for addiction not typically covered: How have plans evolved, if at all, as a result of the epidemic?
  • What changes are plans seeing in their policies in relation to opioid therapies and treatments?
• Exploring the interest in recouping funds from prescribers who are overprescribing
• Examining the possibility and probability of suing opioid manufacturers
  • Examining potential affirmative claims health plans would be bringing against manufacturers, distributors, and providers

FOCUS ON FCA/QUI TAM AND CLASS ACTION ACTIVITY

False Claims Act and Enforcement Activity Affecting MCOs

• Exploring recent FCA/qui tam activity in the managed care realm
• What are the new areas of enforcement?
• What are the key theories as to how to defeat these claims?
• Examining the anticipated trend of plans suing as plaintiffs under FCA
  • Determining when to pursue affirmative cost recovery litigation against third parties
  • Examining successful claims against pharmaceutical and medical device manufacturers

Morning Coffee Break

Examining New Class Action Activity in the Managed Care Space

• Overview of the recent class action activity and its impact on the industry in the last year
• Exploring recent theories of liability being asserted by the plaintiffs’ attorneys
• Best strategies employed by the MCOs to defend these cases

A Practical Guide for Assessing and Responding to Potential Data Breach

• Assessing whether and when a company has to disclose that there is inadvertent release of protected health information – what are the disclosure requirements?
• Once the risk has become apparent, what are the best strategies for assessing potential data breach?
• What are the steps in-house counsel at a managed care organization should follow to ensure an adequate response to the data breach?

Networking Luncheon

Spotlight on Antitrust: Disputes and Investigations Involving Contracting Practices Between Providers and Payors in Managed Care

Contracting practices with hospital systems and other healthcare providers often raise significant antitrust issues. These issues arise both in government investigations and in private litigation. Antitrust issues arise from provider steering and transparency restrictions, use of narrow or tiered networks, referenced based pricing most-favored-nation terms, and from other contracting practices. This session will explore best practices for managed care companies to minimize antitrust risks and for potential offensive use of antitrust to achieve commercial objectives.

What Do Payors Need to Be Aware of with Respect to PBM Litigation

• Current developments with the PBM litigation and how they are impacting payors; How can MCOs potentially be pulled into this litigation?
• Based on the case developments thus far, how can payors generate revenue or offset fees through PBM practices?
• Examining the current regulatory discussions about potentially eliminating rebates all together

Conference Ends