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This week marks the anniversary of the World Health Organization declaring COVID-19 to be a pandemic, the United States entering a state of national emergency, and the Centers for Disease Control and Prevention (CDC) issuing the first set of restrictions in the United States. As we acknowledge these dates, and ruefully reflect on the emails from colleagues and signs hanging on the doors of our favorite restaurants saying, “Stay safe, we’ll see you in two weeks,” it is impossible not to reflect on how much our lives have changed in the last year, and to evaluate how many of those changes will be with us for the long term. We may disagree on when restaurants should reopen and kids should go back to school, but one thing on which patients, providers, plans, and lawmakers seem to agree is that telehealth is not going away.

As a health plan lawyer for over two decades, I have seen the intricacies—and curiosities—of our healthcare financing and regulatory system up close. Before I studied political science, law, and theology, I learned from my history teacher father that knowledge of the past is critical to making sense the present. My dad taught me to try to place what I observe in historical perspective to understand it better.

At first glance, surprise billing seems like an issue that should have been straightforward to address. Patients, health plans, providers, and legislators of both parties supported legislation to protect consumers from unexpected medical bills from out-of-network providers. Nevertheless, lawmakers continued to debate the issue for years. In December, in the midst of a pandemic, during which some patients received substantial bills related to their COVID-19 care, Congress enacted federal legislation to rein in unexpected bills with the No Surprises Act, a ban on surprise billing tucked into the year-end spending bill passed on December 21, 2020. The prohibition goes into effect on January 1, 2022. Before that, we will see new rules from the Department of Health and Human Services (HHS) establishing processes for resolving out-of-network payment disputes between providers and those health plans subject to the new law.

In 2004, when I started focusing on Medicare plans in preparation for the 2006 implementation of Medicare Part D prescription drug benefits, only a small percentage of Medicare beneficiaries—just 13 percent or roughly 5.3 million people—were enrolled in what were then called Medicare+Choice plans.[1]  Fast-forward 16 years, now 39 percent of all Medicare beneficiaries, or 24.1 million people out of roughly 62 million Medicare beneficiaries overall, are enrolled in Medicare Advantage (MA) plans.[2]  The Congressional Budget Office projects the share of beneficiaries enrolled in MA plans will rise to over 50 percent by 2030.[3]

We witnessed a peaceful transfer of presidential power in the United States last week. Following an inauguration in which President Biden pledged to take on a “raging virus” and “make health care secure for all,” the new administration dug in and got to work. Indeed, on the first day in office, President Biden issued seventeen executive orders, memoranda, and proclamations covering issues ranging from the environment to immigration to the economy.

Medicare Advantage (MA) organizations have a unique relationship with the federal government.  Like all healthcare companies, they interact with the government as a regulator, the industry’s rule-maker and watchdog.  This is a familiar aspect of the industry-government relationship, consistent with insurers’ experience with state and federal agencies in commercial lines of business. The most successful MA plans, however, adopt a broader picture of their relationship with the government.  The Centers for Medicare & Medicaid Services (CMS) is also their customer, a valuable and demanding public group health plan, responsible for safeguarding the benefits of tens of millions of Medicare beneficiaries administered by private insurers.

Sandra Durkin presented at AHLA's Health Plan Law and Compliance Institute on November 15, 2019. The presentation was titled Litigation Trends in the Era of Health Care Reform: Lessons and Opportunities for Health Plans in Understanding, Avoiding, and Resolving Disputes.

Strategic Health Law’s own Sandra Durkin has been invited to speak at the American Health Lawyers Association’s Health Plan Law and Compliance Institute on November 15, 2019. Sandra will present alongside Archana Rajendra of the Henry Ford System, Health Alliance Plan Health Alliance Plan of Michigan discussing Litigation Trends in the Era of Health Care Reform: Lessons and Opportunities for Health Plans in Understanding, Avoiding, and Resolving Disputes.