Managed Care Disputes and Litigation

Registration Opens and Continental Breakfast Served

Co-Chairs’ Opening Remarks

Joanna Allen
Senior Legal Counsel
Elevance Health

Tim McMichael
Deputy General Counsel - Director of Litigation
Premera Blue Cross

Adam Petitt
Partner
Robinson & Cole LLP

15-Years of Managed Care: Reflections and Perspectives on How the Industry has Changed and Key Drivers in the Litigation Landscape

Marguerita Brunson Sims
Vice President, Deputy General Counsel
AmeriHealth Caritas

Gregory Russo
Managing Director
BRG

Lou Patalano
Chief Legal Officer, Senior Vice President & Corporate Secretary
Blue Cross and Blue Shield of Louisiana

Moderator:

Tim McMichael
Deputy General Counsel - Director of Litigation
Premera Blue Cross

Join renown litigators and thought-leaders from the managed care industry for an interactive discussion examining the most notable cases and developments of the last 15 years. Perhaps more importantly, panelists will discuss current forces shaping the landscape and what MCO’s and their counsel should be on the lookout for in the years ahead.

Examining the Latest Legal Challenges to the No Surprises Act and Key Takeaways for Payors from the IDR Process

Alexandra M. Lucas
Partner
Reed Smith LLP

Matthew S. Rozen
Partner
Gibson, Dunn & Crutcher LLP

Ray Walker
Managing Counsel – Litigation
Blue Cross Blue Shield of Illinois, Montana, New Mexico, Oklahoma & Texas

The No Surprises Act came into effect in January of 2022. Two years later, it remains a moving target. The Texas Medical Association (TMA) successfully challenged several provisions in the regulations implementing the NSA. Most recently, and notably, they secured the TMA III decision that the QPA calculation requirements unfairly favored insurers. The Departments of Labor, and Health and Human Services have issued new proposed rules in response. This session will provide plans with insights on the impact of these decisions, how future rulemaking is shaping up, and trends in IDR provider strategies.

• Examining Texas Medical Association challenges to provisions in the NSA and the implications for the IDR process moving forward
  • Examining changes to fees, batching restrictions, QPA calculations
• Reviewing federal and state enforcement of surprise billing laws
  • How CMS is approaching QPA audits
• Analyzing IDR outcomes for payors since the implementation of the process
  • Tracking how the process is performing to date in different states
  • Examining emerging plaintiff side strategies
  • Air ambulance litigation update on actions challenging IDR awards

Morning Coffee & Networking Break

Special Focus on AI

MCOs on the Cutting Edge: How to Limit Exposure Leveraging Artificial Intelligence, Algorithms and Emerging Technology

Archana Rajendra
Vice President and Deputy General Counsel, Health Alliance Plan
Henry Ford Health

Chris Petelle
Vice President and Associate General Counsel
Humana

Kevin Feder
Partner
O’Melveny & Myers LLP (Washington, DC)

Moderator:

Lindsay Fetzer
Partner
Bass, Berry & Sims

Artificial Intelligence holds the potential to generate critical insights and drive efficiencies across the healthcare system. As AI tools and related technologies become increasingly sophisticated, the MCOs and downstream entities that use them will need to develop a deep understanding of how to harness the power and the promise of these inventions—as well as the risks.

Litigation is already starting to bubble up, making it important to examine the current regulatory environment, and exposure created by AI use.

• Monitoring how regulatory frameworks for the use of AI in healthcare are developing and the potential requirements and implications for payors
• Identifying risks stemming from payors using AI and algorithms and resulting litigation to date
  • Analyzing claims of AI or AI assisted technology being used to ‘wrongfully’ deny coverage of health services
  • Assessing plaintiff claims of fraud and bad faith against insurers using AI
  • Addressing risks related to bias in AI models
  • Cyber security and privacy considerations
• Conducting due diligence when selecting AI vendors
  • How plans should vet companies that use AI models to perform critical tasks like prior authorization
• Exploring the potential for AI to be used in formulating legal arguments and predicting case outcomes

Special Focus on AI

Antitrust Risks in an AI World: A Conversation with the DOJ and FTC

Bindi R. Bhagat
Antitrust Division
Department of Justice

Timothy Slattery
Attorney
Technology Enforcement Division, Federal Trade Commission (FTC)

Moderator:

Barbara Reeves
Arbitrator and Mediator

The FTC and DOJ recently shared concerns about the anticompetitive potential of AI. More specifically, the use of AI to aggregate data in a way that could result in collusion. This moderated discussion with enforcement agencies will flag areas of concern as it pertains to the use of AI/ML in managed care and the potential for anticompetitive outcomes.

Networking Lunch

Preparing for a Surge in Health Plan Fee Litigation

Kara Petteway Wheatley
Principal
Groom Law Group, Chartered

Excessive fee claims are on the rise, targeting plans both big and small. It’s critical time to analyze causes of action and what plans/plan sponsors can do to protect themselves as they devise winning defense strategies.

• Examining litigation trends in excessive fee claim disputes target defendants
  • Review of three recent cases
  • Lessons from retirement fee litigation
  • Dissecting typical excessive fee litigation claims and common elements
• Exploring disclosure requirements
• Navigating service arrangements—litigation against health plan brokers and consultants
• Anticipating excessive fee litigation: key considerations in preparation for the lawsuit before its filed

How to Strategically Manage Data and Analytics in Payor-Provider Disputes

Elizabeth Hutchins
Senior Managing Director, Disputes & Economics
Ankura

Adam Petitt
Partner
Robinson & Cole LLP

Afternoon Refreshment Break

Bid Protests: Takeaways from the Medicaid Managed Care Procurement Litigation

Benjamin McCoy
Partner
Fox Rothschild LLP

The stakes are high when it comes to locking in a Medicaid managed care contract. For plans, a winning bid, can mean billions in state dollars. This has resulted in an increased emphasis on developing a winning bid strategy, and examining the procurement process and opportunities to challenge awards.

• Reviewing how many RFPs are active
• Determining the average value of contracts
• Tracking trends in contract awards and bid protests
• Gaining insights from litigation challenging the procurement process

Unpacking AHA V. Becerra and CMS Final Rule on 340B: Implications for MA Plans

Melissa Wong
Partner
Holland & Knight LLP

• Overview of Supreme Court ruling on AHA v. Becerra that invalidated CMS adjustments to Medicare Part B payment rates for drugs purchased by some hospitals under the 340B program
• Examining how the CMS 340B Payment Policy Final Rule will impact hospital reimbursement under Medicare Part C
• Determining repayment requirements for contracted and non-contracted 340B hospitals
• Anticipating and preparing for ongoing disputes

Navigating A New Risk Adjustment Landscape: Key Regulatory and Legal Considerations for Plans in 2024

Tyler Marshall
Associate Director
BRG

For MA plans, missteps when navigating the complexities of risk adjustment can be costly, making data accuracy and compliance of the utmost importance. In 2023 CMS introduced a new RA model and released the RADV final rule.

This session will delve into these developments, compliance best practices and the implications for the legal landscape.

Cocktail Reception
Sponsored by

Registration Opens and Continental Breakfast Served

Co-Chairs’ Opening Remarks

Joanna Allen
Senior Legal Counsel
Elevance Health

Tim McMichael
Deputy General Counsel - Director of Litigation
Premera Blue Cross

Adam Petitt
Partner
Robinson & Cole LLP

Fraud and Abuse: MCO Takeaways from Recent Investigations and Enforcement Activity in the Healthcare Industry

Kelly Hightower Hibbert
Partner
Crowell & Moring LLP

Jared R. Ginsberg
Counsel
O’Melveny & Myers

Nate Moore
Partner
Robins Kaplan LLP

• Analyzing how the U.S. ex rel. Schutte v. SuperValu Inc. decision will impact the FCA defense landscape for MCOs
• Examining the latest kickback schemes involving providers and labs and how they are impacting MCOs
  • Assessing the AKS enforcement landscape involving government programs and commercial plans
  • Implications of the circuit split on FCA based on AKS
• Identifying trends in fraudulent billing that MCOs need to watch
  • Telehealth, genetic testing
• Exploring lessons learned for MCOs from notable criminal and civil actions taken by the DOJ
• Spotlight on investigations into mental health and addictions services
  • Uncovering schemes involving sober living homes

A New Era of MHPAEA Enforcement: Litigation Risks and Compliance Considerations for MCOs

MHPAEA enforcement is ramping up and the Biden administration has proposed new rules that would strengthen federal laws on mental health parity requirements. The proposal would require health plans to collect data to assess the impact of “nonquantitative treatment limits” (NQTLs) on mental and behavioral health benefits and medical and surgical services. It’s a critical time for MCOs to examine what’s being proposed by regulators, as well as recent enforcement actions so that they can remove problematic provisions and ensure future compliance.

• Identifying EBSA enforcement priorities including prior authorization requirements, network adequacy and reimbursement rates
• Overview of recent, notable EBSA actions protecting mental health and substance use disorder benefits
• Analyzing deficiencies in NQTL analyses and examples of corrections by plans to come into compliance under the Consolidated Appropriations Act

Morning Coffee and Networking Break

GC Perspectives on the Future of Payor-Provider Relationships

Tim McMichael
Deputy General Counsel - Director of Litigation
Premera Blue Cross

Jon Rose
Senior Litigation Counsel
HCA

Moderator:

Jonathan Herman
Managing Member
Herman Law

Hear from both sides of the aisle during this interactive discussion exploring payor provider perspectives. Panelists will offer insights on trends in the type of disputes that are arising in the MCO arena and best practices for building better relationships in an effort to avoid or at the very least efficiently manage what can often be protracted, costly matters for all involved.

Interactive Panel & Q&A

Ask an Arbitrator About Managed Care Disputes: Everything You Ever Wanted to Know but Have Been Afraid to Ask

Kirstin Ives
Co-Founder
Falkenberg Ives LLP

Christopher Keele, Esq.
Mediator, Arbitrator
JAMS

Moderator:

Michelle Skipper
Vice President
American Arbitration Association

• Examining emerging challenges in arbitration and trends in payor-provider disputes
  • Determining the type of disputes best handled in arbitration
  • To what extent is arbitration final and binding
• Identifying what makes a persuasive claim or defense from the perspective of experienced arbitrators
• Avoiding lesser-known pitfalls in the process in order to maximize your chances of obtaining a favorable decision
• Exploring how best to structure arbitration for an efficient resolution

Networking Lunch

An MCO Guide to Navigating Mergers and Acquisitions Amid Heightened Antitrust Enforcement

Mike Cowie
Partner
Dechert LLP

Dan Howley
Partner
Rule, Garza, Howley LLP

The Biden Administration is hyper focused on antitrust in healthcare. In the past few years the DOJ and have challenged several significant deals, with mixed success. New merger guidelines reflect a willingness to investigate or challenge more deals.

• Tracking the antitrust impact of expansion into new areas, such as physician services, hospital related services, and home healthcare in the healthcare industry
• Understand what regulators look for in assessing a proposed health plan merger and how to prepare for and respond to antitrust scrutiny
  • Developing an effective internal and external communication strategy to avoid problematic language that could impact the deal
  • Examples of documents in proposed plan mergers that impacted decision making by government authorities
• Examining what’s new in the HSR process
• Anticipating the impact of federal draft merger guidelines on future deals involving MCOs
• Analyzing recent deals that received scrutiny, including DOJ challenges to MCO deals that were unsuccessful
  • CVS acquisition of Oak Street, Signify Health
  • UnitedHealth and Change Healthcare case
• Explore how payors manage concerns about channel conflict in the context of vertical integration

Afternoon Break

Limiting Liability When a Data Breach Occurs: Lessons Learned from Recent Incidents Impacting Plans and Downstream Partners

Adam A. Cooke
Partner
Hogan Lovells LLP

• Monitoring class action activity for data privacy breaches
  • Examining trends in the type of claims coming out of data breaches against plans and vendors
• Improving breach responsiveness and limiting liability with lessons learned from recent cases
  • Identifying plan counsel and outside counsel remediation action points
• Assessing and managing future risks arising from data trackers on websites and other emerging areas of risk for consideration including artificial intelligence

Top 5 Legal Considerations for MCOs when Dealing with Financially Distressed Providers

There has been an uptick in healthcare provider bankruptcies in the last couple year. Providers claim the roll back of COVID-19 funding and implementation of the No Surprises Act have contributed to the financial strain, and ultimately the decision to file for Chapter 11 bankruptcy.

For payors, it’s a critical time to assess the impact on current business with providers and strategically approach ongoing legal matters.

• Examining key lessons coming out of the Envision bankruptcy and lawsuits
• Conducting business with a provider in bankruptcy – when do you need bankruptcy court approval
  • Assessing how your provider agreement is impacted under such circumstances
• Recognizing a debtor’s rights to assume, assume and assign or reject an executory contract
• Identifying key provisions in plans of reorganization and sales motions and how they may impact your contractual rights

Conference Concludes