On May 17, 2018, CMS issued a strongly-worded letter to Part D plan sponsors stating that pharmacy “gag clauses” are unacceptable. “Gag clauses” typically prohibit pharmacies from informing customers that they could pay less money out of pocket by paying cash instead of billing their insurance and incurring the required copay or deductible. “Gag clauses” are often included in pharmacy benefit managers (PBMs) and health plans’ contracts with pharmacies.
In a recent decision, Eden Surgical Center v. Cognizant Technology Solutions Corporation et al., No. 2:15-cv-01633-RGK-E (Apr. 26, 2016), the US Court of Appeals for the Ninth Circuit held that a surgical center lacked standing to bring ERISA claims against a health plan because the plan had a valid anti-assignment provision, even though the plan refused to disclose the provision and mistakenly informed the provider it did not exist.
Following delays and much build up, the White House and the Department of Health and Human Services (HHS) have released their plan to address rising pharmaceutical prices and out-of-pocket costs directly impacting patients. The plan is known as the “American Patients First” program, as outlined in “The Trump Administration Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs” (the Blueprint).
On March 28, 2018, the Governor of Alabama, Kay Ivey, signed SB 318, the Alabama Data Breach Notification Act, which becomes effective June 1, 2018. Alabama is just behind South Dakota, which enacted its data breach notification statute this past March. (Click here for alert on South Dakota’s act).
Medicaid expansion continues to be a hot button issue in the numerous states that have yet to expand the program under the Affordable Care Act of 2010 (“ACA”), and the latest battlefield is a Maine courthouse.
The Health Resources and Services Administration (HRSA) published a notice in the Federal Register on May 7, 2018 (the Proposed Rule) proposing its intention to delay – for the fifth time – the implementation of a January 5, 2017 Final Rule (the Final Rule) regarding calculation of 340B ceiling prices and the imposition of civil monetary penalties on noncompliant organizations related to the 340B Drug Pricing Program (the 340B Program).
Developments in the Original Source Standard
A development out of the Ninth Circuit makes relators more likely to qualify as an original source under the False Claims Act and thus survive the public disclosure bar.
The latest False Claims Act settlements indicate that the Anti-Kickback Statute continues to be an enforcement priority and a key tool for identifying and prosecuting healthcare fraud. The United States Department of Justice recently settled three FCA lawsuits involving alleged violations of the AKS, which prohibits the offering, solicitation, or acceptance of any type of gift or remuneration in exchange for physician referrals for services covered by federally funded healthcare programs.
As discussed in a prior blog post, pharmaceutical manufacturers whose drugs are reimbursed under Medicare Part B must now report certain product and financial data (including Average Sales Price, or ASP) to the Centers for Medicare & Medicaid Services (CMS) through the Fee-for-Service Data Collection System (FFSDCS).
On Friday, April 13, 2018, in an opinion that may have far-reaching effects, the United States Court of Appeals for the Fourth Circuit found Maryland’s new drug price-gouging prohibition law unconstitutional under the dormant Commerce Clause of the United States Constitution, which generally constrains states’ power to enact legislation that interferes with or burdens interstate commerce. Given the number of states seeking to impose either reporting and transparency requirements on drug manufacturers related to drug price incre