President Trump’s nominee for Secretary of the Department of Health & Human Services (HHS), Congressman Tom Price (R-Ga.), has now completed two confirmation hearings in the Senate. If confirmed, Rep. Price will direct more than $1 trillion of annual spending, as well as assist in developing and implementing a replacement for the Affordable Care Act (ACA). First, the Senate Committee on Health, Education, Labor & Pensions (HELP) held a courtesy hearing January 18, and then the Senate Finance Committee, which has jurisdiction over the nomination, held its hearing January 24. The following is a summary of what we learned – or did not learn – over the course of those hearings.

Specialists are generally subject to the MACRA merit-based incentive payment system (MIPS) in the same manner as primary care clinicians but are treated differently under MACRA in two situations:

  1. Certain specialists may qualify as “non-patient-facing” (for example, pathologists or radiologists that do generally not see patients) and have reduced MIPS reporting obligations; and
  1. A specialist who participates in more than one alternative payment model (APM) will receive the most favorable APM treatment of the APMs in which the specialist participates (for example, if the specialist participates in two Track 1 ACOs, the specialist will get the higher of the MIPS scores for those ACOs).

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…

The Fifth Circuit has long held that pain and suffering damages and punitive damages are not recoverable under the ADEA. The Fifth Circuit has also expressed its intent to interpret remedies under the ADEA and FLSA consistently with each other since the ADEA incorporates the FLSA’s remedies provision. Thus, you would think that pain and suffering and punitive damages would not be recoverable in a FLSA retaliation case.

Not so fast. In a decision issued on December 16, 2016, a three-judge panel reaffirmed that pain and suffering and punitive damages are not recoverable for ADEA discrimination or retaliation claims. Only three days later, however, another Fifth Circuit panel issued a decision finding that emotional distress damages are recoverable in FLSA retaliation cases. In so holding, the two panels cited the same 1977 seminal case, Dean v. American Security Insurance Co., but reached different conclusions under similarly worded provisions of the two statutes. Obviously, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.

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.