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The 2017 National Defense Authorization Act, Pub. L. No. 114-328 (Dec. 23, 2016), introduces major changes to the Defense Department healthcare program known as TRICARE. By this time next year, we’ll see a new program to contain the cost of prescription drugs at retail pharmacies, contractual incentives for improving the quality of healthcare and…

This is the third article in our series on the effect of a “slow repeal” of the ACA. This week’s discussion focuses on the potential impact of a slow repeal of the ACA on the pharmaceutical industry (Pharma).

Unlike many of the players detailed in our prior articles on the slow repeal of the ACA, Pharma has not made a lot of noise regarding a repeal of the ACA. In fact, Pharma and biotech stocks soared—generally 3 percent to 10 percent—on November 8, 2016, largely because the industry had been preparing for a Clinton victory. A recent quote attributed to one Pharma industry official—“I actually think the Republican Party is a far less certain bet for the pharmaceutical industry”—reflects some of the unease surrounding the change in administration, and the likely repeal of the ACA.

This is the second article in our series on the effect of a “slow repeal” of the ACA, which began January 3, 2017, when Senate Budget Committee Chairman Mike Enzi introduced a budget resolution with instructions to the relevant Senate and House committees to develop a plan to repeal the ACA. The four committees that control healthcare policy have until January 27, 2017, to draft reconciliation bills, which will address the important details, likely including how long it will take to replace the ACA, and which parts of the ACA will be repealed through a budget reconciliation process. On January 4, 2017, the Senate promptly voted (51-48) to begin debate on the procedures to repeal the ACA.

A California federal court handed down a decision last Friday that may further influence how healthcare entities should approach the Telephone Consumer Protection Act’s (TCPA) “emergency purpose” exception as applied to calls or texts related to patient health and safety. In St. Clair v. CVS Pharmacy, Inc., No. 16-CV-04911-VC, 2016 WL 7489047, at *1 (N.D. Cal. Dec. 30, 2016), the plaintiff alleged that CVS Pharmacy called him multiple times about his prescriptions after he told a customer representative that he no longer wished to be called. CVS moved to dismiss the lawsuit by claiming that all of the calls at issues fell under the emergency purpose exception contained in the statute, and therefore were not subject to the TCPA.

Rep. Dustin Burrows (Dist. 83, Lubbock) introduced H.B. 307, which could significantly impact facilities and practitioners that provide services on an out-of-network basis. Specifically, for services other than emergency services, H.B. 307 requires that a facility or practitioner provide a patient with the amount, including facility fees, that:

(1)  the patient’s health benefit plan will reimburse the facility or practitioner for the service, if the facility or practitioner is a participating provider under the patient’s health plan; or

(2) the facility or practitioner will charge for the service, if the facility or practitioner is not a participating provider under the patient’s health plan.

One of President-elect Trump’s many campaign promises included “repealing and replacing” the Affordable Care Act (ACA), known as Obamacare. Trump nominated Rep. Tom Price, M.D. (R-Ga.) to serve as the Secretary for the Department of Health & Human Services. Trump’s selection of Price signals that Trump is pushing forward with his promise to aggressively repeal and replace the ACA. If confirmed, Price will lead 11 agencies, including the FDA and the National Institutes of Health, with a $1-trillion budget and the ultimate oversight responsibility for both Medicare and Medicaid.

On Dec. 7, 2016, the U.S. Department of Health & Human Services Office of Inspector General (OIG) released an update to its 2000 policy regarding gifts of nominal value given to a Medicare or Medicaid beneficiary. The update increases the nominal value of gifts given to a Medicare or Medicaid beneficiary to $15 per occurrence and $75 in the aggregate for a year (the previous limit was $10 per occurrence and $50 in the aggregate). If a gift complies with these limits, the arrangement does not need to fit within a “safe harbor” to 42 U.S.C. §1320a-7b(b) (the federal anti-kickback statute).

As of January 2016, there were 433 Medicare Shared Savings Program (MMSP) Accountable Care Organizations (ACOs) with almost 7.7 million assigned beneficiaries and more than 14,000 participants (a participant may be a group or an individual). Most of these ACOs are one-sided model ACOs that may generate shared savings and do not involve shared losses (Track 1 ACOs).

Importantly, Track 1 ACOs are not considered advanced alternative payment models (APMs) for purposes of MACRA. As a result, a clinician participating in a Track 1 ACO is subject to the merit-based incentive payment system (MIPS) just like a clinician that is not in an ACO (a participant in an advanced APM is not subject to MIPS).

Husch Blackwell was recently named a finalist for the St. Louis Business Journal’s Healthiest Employers 2016 competition. The Business Journal’s profile of Husch Blackwell highlights the firm’s effective use of wellness challenges in the workplace and praises Chris Smith, a partner in our St. Louis office, for his dedicated participation in the wellness initiatives.

Given our firm’s success with health and wellness initiatives, we decided to take this opportunity to discuss and reflect on just a few (of the many) legal requirements relevant to employer wellness programs.