Case Studies

Epstein Becker Green Successfully Represents Sibley Memorial Hospital in Acquisition of Certificate of Need for Three Proton Therapy Stations

On April 30, 2014 (and May 31, 2013), the State Health Planning and Development Agency for the District of Columbia approved two adult and one pediatric proton stations, respectively. Epstein Becker Green represented Sibley in a hotly contested regulatory process.

The Epstein Becker Green team was led by Clifford E. Barnes and included Jonah Retzinger and Marshall E. Jackson.

Epstein Becker Green Successfully Represents a Home Health Care Agency in the Termination of a Medicaid Payment Suspension

On May 21, 2014, Epstein Becker Green, on behalf of a home health care agency client, successfully negotiated a settlement agreement with the D.C. Department of Health Care Finance (“DHCF”), ending the suspension of Medicaid payments due to the client.

The client participates in the District of Columbia’s Medicaid program and provides personal care aide services to residents of the District. In March 2014, the DHCF issued a Notice of Temporary Suspension under 42 C.F.R. 455.23, indicating that, based on credible allegations of fraud, the agency would immediately suspend payments due to the client for providing personal care aide services.

The client, with the assistance of Epstein Becker Green, settled the matter within two months of the Notice of Suspension.

The Epstein Becker Green team was led by Clifford E. Barnes and included Jonah D. Retzinger.

Epstein Becker Green Successfully Negotiates Medicaid Managed Care Program Contract for Client Based in Puerto Rico

In October 2011, Epstein Becker Green represented Triple-S Management Corp. ("Triple-S") in the negotiation of a contract with the Puerto Rico Health Administration ("ASES") to administer the Medicaid managed care ("Mi Salud") program in five out of nine regions in Puerto Rico. Failure to reach an agreement on the terms of the contract would have left over 800,000 people without coverage, beginning November 1, 2011. Triple-S agreed to step in and assume these regions of the Mi Salud program after contractual issues between ASES and the current MCO contractor could not be resolved.

The Epstein Becker Green team representing Triple-S included Philip D. Mitchell of the Newark office and Jane L. Kuesel and Joseph J. Kempf, Jr., of the New York office.

Epstein Becker Green Helps Health Insurance Carrier Obtain Reversal of Premium Rate Disapprovals

On August 6, 2010, Epstein Becker Green helped its client Fallon Community Health Plan, Inc. ("FCHP") obtain the reversal of the Massachusetts Division of Insurance ("Division") disapproval of certain of FCHP's premium rate increases. The Division had previously disapproved all premium rate increases filed by FCHP and other health insurance carriers for small business and individual customers that exceeded 7.7 percent — which was 150 percent of the New England Medical CPI for 2009. FCHP and the other affected health insurance carriers filed administrative appeals of the Division's disapprovals of their premium rates. The Massachusetts Attorney General's Office intervened in the administrative hearings on behalf of consumers' interests. Epstein Becker Green, which along with local counsel represented FCHP, presented documentation and testimony justifying FCHP's rates from actuaries, provider contracting executives, and other witnesses.

After examining the evidence, the presiding hearing officers reversed the Division's disapprovals of FCHP's premium rates, finding, among other factors, that FCHP had made reasonable efforts to keep costs down through provider contracting, and utilization control and cost containment programs. The presiding hearing officers also adopted EBG's arguments that the Division's reliance on Medical CPI to reject premium rates was flawed. As a result of the reversals, FCHP was able to implement its filed rate increases through the end of 2010.

Epstein Becker Green and its attorneys Jesse M. Caplan, George B. Breen, and Robert E. Wanerman of the Washington, D.C., office served as co-counsel, along with local counsel Bowditch & Dewey, in representing FCHP.

Formulating Financing Schemes to Achieve Innovative Improvements in Community Health

Historically, the health care financing system has ignored the impact of what are currently called “social determinants of health” on health outcomes and health care costs in the United States. Now, forward-looking states, such as New York, are urging health care payors, particularly those serving low-income populations, to incorporate community-based social services organizations into their networks. Epstein Becker Green has experience providing comprehensive strategic and legal advice regarding how a collective of organizations traditionally outside the health care system can avail itself of health care (insurance) and other available funds in a legally compliant and effective manner.

For example, our firm is currently representing a diverse group of community-based organizations (“CBOs”) in New York State coalescing to address the social determinants of health care through capacity building and collective action. Using a novel “pathways hub” model, Epstein Becker Green’s client is raising funds and organizing CBOs to design and implement a model for improving community health by identifying the need for, and targeting delivery of, social services that have proven to have a significant impact on health outcomes and can result in dramatic reductions in health care costs.

The Epstein Becker Green team is providing strategic advice and the legal services necessary to establish and operationalize the CBOs’ new collective organizational structure. Specifically, we provide advice and services relating to the CBOs’ corporate, governance, and committee structure, membership rights and responsibilities, policies and procedures, compliance activities, funds flow, IT and data management, privacy and security, managed care agreements, and payment methodologies. Successful navigation of the complex health care regulatory environment is, of course, essential to the client’s ability to achieve its mission.

Epstein Becker Green is also working with the designers of the “pathways hub” model on how the initiative should be organized in other states around the United States. Epstein Becker Green and its clients are trailblazing here—adapting health care organizational structures and devising novel financing schemes to hopefully achieve groundbreaking improvements in community health.

The Epstein Becker Green team is led by Arthur J. Fried and includes Alison M. Wolf and Jonathan Salm.

Securing Double Bonus for Star Ratings for Health Plan in Puerto Rico

Epstein Becker Green (EBG) achieved a victory for a long-time health plan client, Medical Card Systems (MCS) of Puerto Rico, in the Announcement of 2018 Medicare Advantage Rates and Final Call Letter. Under the Affordable Care Act, Centers for Medicare & Medicaid Services (CMS) payments to Medicare Advantage (MA) plans would be adjusted based on the MA plan contract’s quality score under the Star Rating System. Bonuses were to be awarded for contracts receiving four or more stars, increasing the plan reimbursement benchmark payment by 5 percent. Congress additionally added a provision to grant a double bonus to plans achieving four stars or more in counties with high population, high MA penetration, and low Medicare fee-for-service costs.  For several years, CMS took the position that otherwise eligible counties in Puerto Rico were ineligible for the double bonus provision. In 2016, a separate Puerto Rico health plan offered comments to the annual MA Rate Advanced Notice and Draft Call Letter, suggesting to CMS that MA plans serving otherwise eligible counties in Puerto Rico should receive the double bonus. CMS declined to act upon these comments, stating that it lacked the statutory authority to make the requested change.

In 2017, EBG assisted MCS in making its own arguments to CMS on this issue. Working closely with the client’s executives, EBG conducted the programmatic research and statutory and regulatory analysis to clearly demonstrate to CMS that (i) MA plans serving Puerto Rico counties were eligible under the statute for the double bonus provision and (ii) a significant number of Puerto Rico counties satisfied the specific criteria. EBG’s analysis was submitted by the client to CMS in response to the annual MA Rate Advanced Notice and Draft Call Letter. The client shared EBG’s analysis with another Puerto Rico health plan to be submitted to CMS as well.

In the April 3, 2017, Announcement of 2018 Medicare Advantage Rates and Final Call Letter, CMS announced that it was changing its interpretation of the double bonus provision to include all Puerto Rico counties if they satisfy the enumerated criteria. CMS stated that it “appreciated” the “detailed analysis” drafted by EBG and used by CMS in reaching its decision. This CMS policy change, directly attributable to EBG performance, increased MA reimbursements to the client by 4%-5%, representing tens of millions of dollars in revenue impact in 2018. Total reimbursement to all MA plans in Puerto Rico was estimated to increase by nearly 3 percent, in 2018. The EBG team on this issue included Philo D. Hall, Thomas E. Hutchinson, and Kevin J. Malone.

This victory demonstrates the value of EBG’s distinctive multi-perspective approach combining (i) historical knowledge of the MA program from both the CMS and plan perspective and (ii) familiarity with the Puerto Rico heath care system and its distinctive demographic factors, with a thorough regulatory and statutory analysis.