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Supreme Court Holds Arkansas Statute Regulating PBMs Not Preempted by ERISA

"The Court's opinion reinforces that ERISA preemption does not have as broad of a sweep as the statute's language might suggest. State laws that may indirectly impact a plan's costs or a participant's benefits, that 'establish[] a floor for the cost of the benefits that plans choose to provide,' ... do not impact 'central matters of plan administration' and so are not preempted. The Court's ruling will no doubt embolden states seeking to regulate pharmacy and PBM conduct, and will be relied upon by parties seeking to protect state law-based rights in court, with respect to prescription drug reimbursement or otherwise." [Rutledge v. Pharmaceutical Care Mgmt. Assoc., No. 18-540 (S. Ct. Dec. 10, 2020)]

CMS Releases Interim Final Rule Establishing Reimbursement for Part B Drugs Based on International Pricing

"Who is and who is not subject to the model? ... What drugs are and are not subject to the model? ... How is the MFN price determined using international benchmarks? ... How is the payment amount determined? ... What other adjustments can be made to the payment amount? ... Non-payment provisions of note."

Sixth Circuit: Medicare Secondary Payer Act Prohibits Disparate Impact Discrimination

"This decision has the potential to upend any plan provision purporting to exclude dialysis treatments from network coverage and/or capping dialysis benefits at Medicare-based rates of payment.... [M]edical providers with valid assignments of all rights and benefits under ERISA may still be able to remedy plan terms that offend the MSP Act by asserting [1] an ERISA benefits claim and [2] an equitable claim for reformation of the plan to strike the unlawful terms.... The Ninth Circuit is set to opine on nearly identical issues in the coming months[.]" [DaVita, Inc. v. Marietta Mem. Hospital Employee Health Benefit Plan, No. 20-328 (6th Cir. Oct. 14, 2020)]

Administration Again Takes Aim at Drug Prices

"The September Order now directs the Secretary of Health and Human Services (HHS) to implement two payment models, presumably via the Center for Medicare & Medicaid Innovation (CMMI), to address reimbursement for certain prescription drugs under both the Medicare Part B and Part D programs. However, the September Order does not provide much detail as to how the demonstrations will be operationalized."

ERISA Does Not Bar Medical Providers from Enforcing Health Plans' Payment Promises Under State Law

"Medical providers treating patients covered by ERISA-governed health plans on an out-of-network basis can assert state-law claims to hold plans to their payment promises without running afoul of ERISA's preemption provision ... So held the Third Circuit ... reversing the trial court's dismissal of a provider's state law claims for breach of contract and promissory estoppel.... [M]edical providers with claims arising from insurers' broken promises to pay set rates for specific treatments need not shy away from pleading these claims under applicable state law." [The Plastic Surgery Center, P.A. v. Aetna Life Ins. Co., No. 18-3381 (3d Cir. Jul. 17, 2020)]

Seventh Circuit: Plaintiffs Seeking Plan Benefits Need Not Cite Specific Plan Provisions to Survive Motion to Dismiss

"[T]he Seventh Circuit declared that '[P]laintiffs alleging claims under 29 U.S.C. Section 1132(a)(1)(B) for plan benefits need not necessarily identify the specific language of every plan provision at issue to survive a motion to dismiss under Rule 12(b)(6).' Dr. Griffin did not need to point to a particular plan provision specifying entitlement to 'greater payment,' as such a requirement would 'turn notice pleading on its head[,]' especially when the plan failed to provide Dr. Griffin with 'information necessary to allege with more detail where the plan's calculation of the usual and customary rate went astray.' " [Griffin v. TEAMCARE, No. 18-2374 (7th Cir. Nov. 26, 2018, amended Nov. 30, 2018)]

The Commonality Challenge: Recent Rulings Show Path to Class Certification in ERISA Cases

"As recent decisions from federal courts in New Jersey and California illustrate, where plaintiff classes seek to challenge decisions by ERISA healthcare plan administrators, commonality is best achieved when the same benefit plan provision is at issue, as well as the same reason for denial of claims. Each of the cases discussed below involved a putative class pursuing claims against health plans based on denials and alleged underpayments for out-of-network services, and the classes in both cases failed to achieve certification."

Medical Providers: How Not to State an ERISA Claim

"First, for a medical provider to state a claim under ERISA, it must have a valid assignment of benefits from the patient.... Second, to assert a claim for benefits under ERISA, that claim must be lodged against an ERISA plan.... Third, to file an ERISA claim for benefits in court, a provider with a valid assignment of benefits must first have exhausted its administrative remedies under the ERISA plan." [Pennsylvania Chiropractic Assoc. v. Independence Hospital Indemnity Plan, Inc., Nos. 14-2322, 14-3174 and 15-1274 (7th Cir. Oct. 1, 2015)]

District Court Holds ERISA Plans Can't Recoup Overpayments from Healthcare Providers without Following Procedural Steps

"[A] federal district court in Illinois recently held that health plans may not simply unilaterally recover overpaid funds from health care providers, but rather must provide the appeal and other procedural protections required under the [ERISA] ... While it has long been the rule that ERISA's appeal and other procedural rights must be allowed when ERISA plans issue 'adverse benefit determinations' on claims submitted for reimbursement, it has not always been clear that these same procedures are required with respect to recoupment decisions." [Pennsylvania Chiropractic Association v. Blue Cross Blue Shield Association, No. 09 C 5619 (N.D. Ill. Mar. 28, 2014)]

Drawbacks to Using Only a 401(k) for Retirement

"401(k)s aren't all created equal, and using a bad one to save for your retirement could make your job a lot more difficult. Different types of retirement accounts have different strengths and weaknesses, so it helps to have more than one. Here's a closer look at some of the ways you might be shortchanging yourself if you're only using a 401(k)."