Helaine I. Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in AIS Health Radar on Medicare Advantage, in “FMO Lawsuits Could Delay Agent and Broker Compensation Rules,” by Lauren Flynn Kelly. (Read the full version – subscription required.)

Following is an excerpt:

With Medicare Advantage plan bids off to CMS for the 2025 plan year, MA organizations now turn their attention to arrangements with agents and brokers who will sell their plans this fall and the field marketing organizations (FMOs) that support them. But at least three complaints have been filed challenging CMS’s implementation of new provisions that will impact those relationships and take effect Oct. 1. …

It is worth nothing that the Texas court is where Judge Reed O’Connor has ruled against several provisions of the Affordable Care Act, including striking down the preventive services coverage mandate in 2023. “It just shows the willingness [of the Texas federal courts] to favorably consider challenges to CMS regulatory actions. That’s particularly interesting right now as the Supreme Court is looking at Chevron deference,” says Helaine Fingold, partner at the law firm Epstein Becker & Green, P.C., referring to a legal framework in which courts tend to defer to federal agencies when interpreting ambiguous parts of federal law because of the agencies’ expertise in their respective areas. If the Supreme Court were to overturn the Chevron deference — as it jointly considers two cases — “I don’t know if all bets are off, but it at least means that the courts are pushing to look more closely at executive branch decisions, regardless of their level of expertise, and more willing to push back.”

In the meantime, Fingold gives it a “reasonable chance” that the Texas court will grant a preliminary stay. “I think that alone is going to be helpful to the plaintiffs, because also we are waiting to see what’s going to happen with the election, and that’s also going to be important as to whether a new administration comes in and whether they would even want to continue to put this forward.…I think a lot of things could happen.”

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