Obtaining for a Health Care Provider a Waiver of Successor Liability and the Suspension of Its Obligations Under a Corporate Integrity Agreement
During the fourth quarter of 2018, attorneys at Epstein Becker Green successfully represented a client, which provides specialized inpatient stabilization and withdrawal management services, in two matters. First, Epstein Becker Green attorneys secured from the U.S. Department of Health and Human Services’ Office of Inspector General a waiver of successor liability under the client’s Corporate Integrity Agreement (“CIA”) in connection with the acquisition of its assets by a national provider of behavioral health services. Second, Epstein Becker Green attorneys secured the suspension of the client's obligations under its CIA.
The Epstein Becker Green team was led by Clifford E. Barnes with the assistance of Anjali N.C. Downs.
Upholding Procedures That Limit the Dispensing of Opioids
While the tragic consequences of the opioid epidemic continue to make headlines, and manufacturers and retailers face lawsuits for distributing these potent and addictive painkillers, Epstein Becker Green recently defended a retailer that stood its ground by refusing to fill an opioid prescription.
In November 2016, the Office of Civil Rights (OCR) of the Department of Health and Human Services commenced an investigation of a drugstore chain client under Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Section 1557 of the Affordable Care Act. The investigation was conducted in response to a customer complaint of age and race discrimination against our client due to its decision to decline to fill an opioid prescription issued by an out-of-state physician. At issue was the validity of our client’s procedures for validating and dispensing controlled substances. After the investigation, in May 2017, OCR concluded that our client acted consistently with its procedures and did not discriminate against the patient. Accordingly, OCR declined to issue a complaint against our client, and the proceedings concluded.
The OCR decision validated the use of our client’s procedures in all of its pharmacies for filling opioid prescriptions. These procedures comply with federal and state law relating to dispensing controlled substances without violating laws prohibiting places of public accommodation from discriminating against customers with disabilities or due to race, gender, or age. OCR’s decision not to issue a complaint eliminated a threat of the application for an injunction that would have affected all of our client’s stores.
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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 Convinces Plan Review Committee to Overturn Termination of Participating Physician Group Services Agreement
On April 29, 2013, Epstein Becker Green achieved a major victory when the Plan Review Committee of L.A. Care Health Plan ("L.A. Care") found that L.A. Care's termination of the Participating Physician Group Services Agreement ("Agreement") with Epstein Becker Green client Accountable Health Care ("AHC") was procedurally unfair.
L.A. Care terminated the Agreement under a "without cause" provision and did not contend that AHC was in breach of the Agreement. Under Potvin v. Metropolitan Life Ins. Co., 22 Cal.4th 1060 (2000), California provides a common law fair hearing right to health care providers even in the event of a "without cause" termination. Arbitrary decisions and the denial of fair procedure are prohibited by Potvin. Contractual provisions allowing termination "without cause" are unenforceable to the extent that they do not provide fair procedure. Under Potvin, the termination of a provider's agreement must be both substantively rational and procedurally fair.
Epstein Becker Green argued on behalf of AHC that L.A. Care acted contrary to its own Fair Hearing Procedure and the legal principles of Potvin by issuing a notice of termination of the Agreement prior to the fair hearing and a decision by the Plan Review Committee, even though, at the hearing, L.A. Care argued that its decision was based on a cease-and-desist order against AHC that was filed by the California Department of Managed Health Care. Although the Fair Hearing Procedure provides that the hearing process must precede any issuance of a notice of termination under a provider contract, the termination notice and related correspondence made clear that L.A. Care had already reached a decision to terminate the Agreement at the time that the notice was provided to AHC. In addition, the notice failed to include the specific reasons for the termination, a description of any policies and procedures, or any other criteria used in making the determination, as required by the Fair Hearing Procedure.
The Plan Review Committee voted unanimously in finding that the L.A. Care termination notice was procedurally unfair because it was inconsistent with the requirements of the Fair Hearing Procedure and had been issued prior to the completion of the fair hearing process.
The Epstein Becker Green team representing AHC included Los Angeles attorneys David Jacobs, Paul C. Burkholder, and J. Susan Graham.