Healthcare Reform Task Force Faces Up To The Roll-Out Of The PPACA And Other Healthcare Reform Challenges

Monday, May 2, 2011 - 01:00
Kenneth A. Raskin

Kenneth A. Raskin

Editor: Ken, tell us about the firm's healthcare practice.

Raskin: We have one of the broadest and deepest healthcare practices in the nation. In fact, according to Modern Healthcare , a leading publication in the field, we maintain the largest healthcare industry practice in America. We are knowledgeable about all facets of healthcare reform.

Editor: What were the origins of the firm's Healthcare Reform Task Force?

Raskin: I joined King & Spalding in May of last year, having been at White & Case for 22 years. Because the firm's healthcare practice is as deep as it is and as broad as it is, I suggested that we put together an interdisciplinary Healthcare Reform Task Force that would focus on helping our clients cope with the interrelated and complex legal challenges that our clients will face as the reform process proceeds. As a result, the Healthcare Reform Task Force was created, which includes over 40 lawyers and other professionals with expertise in the key legal issues that affect healthcare providers, manufacturers and pharmacies, financial institutions and employers of all types.

Editor: What is the role of the Healthcare Reform Task Force?

Raskin: The Healthcare Reform Task Force coordinates closely as a team and connects the dots between the various legal disciplines associated with healthcare reform including antitrust, tax, insurance, litigation, regulatory, and other areas. In this way, the firm benefits from the 360-degree perspective provided by bringing together Task Force specialists in all these different legal disciplines.

Editor: Are the specialists who participate located in Atlanta?

Raskin: They are from all over. I am in the New York office.I chair our Employee Benefits & Executive Compensation Practice. Although I practice in the healthcare area, I do other things as well as do our antitrust, tax, insurance and other people in a variety of practice areas. We have some people who spend 100 percent of their time on healthcare, and they will interact with people like me who are involved in a variety of other activities. I interact with our healthcare professionals in areas that are relevant to my clients.

I spoke with a general counsel of a company recently who had some healthcare issues, so I called one of my partners in Washington and I called another in Atlanta to deal with the client's healthcare-related issues. That is the whole point. We work together to counsel in all of the areas that healthcare touches, including employee benefit plan counseling, implementation, compliance, pricing issues, public policy, strategic counseling, transactions, financing, and government contracting.

Editor: The rollout of the Patient Protection and Affordable Care Act (PPACA) is illustrative of the important role the firm's Healthcare Reform Task Force will play in advising clients with respect to their responsibilities. Please give us a brief description of each phase of that rollout.

Raskin: The PPACA reforms require employers to look at group health plans in a completely new light, given that the reforms cover nearly every aspect of an employer's provision of healthcare coverage to its employees. The reforms effectively necessitate a review by sponsoring employers of their existing group health plans to analyze the costs of, and benefits provided under, such plans, in order to determine how best to comply with PPACA in both the short- and long-term.

The first "wave" of PPACA's reforms affecting employer-sponsored plans, which generally became effective on or before January 1, 2011, required sponsoring employers to make important decisions about, among other things, whether to "grandfather" their existing group health plans so as to avoid many of PPACA's insurance market reform requirements.

Insurance market reform requirements that non-"grandfathered" plans must comply with under PPACA's first "wave" of reforms include, among other things, a requirement that such plans provide certain preventive services provided by in-network providers without imposing cost-sharing on participants, new requirements for such plans' internal and external appeals processes, and requirements that such plans provide certain additional patient protections.

Additional insurance market reform requirements under PPACA's first "wave" of reforms, that even grandfathered plans must comply with, include, among other things, a requirement that plans provide dependent coverage up to age 26 where dependent coverage is offered generally; a prohibition on most rescissions of coverage; a prohibition on pre-existing condition exclusions for children under age 19 (and, beginning in 2014, such a prohibition for all participants); a prohibition on lifetime dollar limits on "essential health benefits"; restrictions on annual dollar limits on "essential health benefits" (and, beginning in 2014, a total prohibition on such limits); limitations on the reimbursement, under flexible spending accounts (FSAs), health savings accounts and other types of accounts funded with pre-tax dollars, of over-the-counter drugs other than insulin; and new medical loss ratio requirements on insurers.

A second "wave" of reforms under PPACA that affect employer-sponsored group health plans will generally become effective on or before January 1, 2014, including: additional notice and benefit summary requirements; dollar limitations on annual contributions to FSAs; a prohibition on excessive waiting periods; new requirements on employers to report certain information regarding offered health coverage; and, of course, PPACA's "employer mandate," which will impose penalties on large employers that do not offer group health plan coverage meeting certain monetary and coverage requirements, among other things.

There are also additional PPACA reforms affecting employers that are currently in limbo due to delayed effective dates, pending regulatory guidance, or legislative appeals, such as the requirement that large employers automatically enroll new full-time employees in their group health plans, new nondiscrimination requirements for non-grandfathered fully insured group health plans, and new W-2 reporting requirements.

The above reforms are just a few of the PPACA reforms that affect employers: for instance, PPACA requires employers to withhold an additional 0.9 percent Medicare tax on employees with annual wages over $200,000 beginning in 2013. PPACA also amended the Fair Labor Standards Act to require certain employers to provide reasonable unpaid break time for nursing mothers and to provide whistleblower protection for employees who report violations of Title I of PPACA. Given the breadth and depth of PPACA's reforms and its implications for employers, it is imperative that employers get the assistance they need to fully understand and comply with the law.

Editor: I would gather there will be a lot of rulemaking as well as legislative activity in connection with the rollout you just described.

Raskin: The Healthcare Reform Task Force willbe involved on behalf of our clients.We have further strengthened our Washington office with the addition a few weeks ago of Robert L. Ehrlich, a former Maryland governor and U.S. Congressman.

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