Mid-Atlantic Health Law TOPICS

Field Marketing Organizations: Did you know that the Centers for Medicare & Medicaid Services (CMS) issued a final rule in April of 2024 that would effectively cap payments from Medicare Advantage (MA) plans to field marketing organizations (FMOs) at $100 per enrollee? FMOs provide back-office support and marketing to insurance agents and brokers. CMS rules already cap payments from MA plans to insurance agents and brokers at $711 per new enrollee.  Previously, FMOs received $200-$300 for a new enrollee. CMS believes that this new rule is necessary to prevent MA plans from incentivizing FMOs to steer new enrollees to specific MA plans, without consideration of the enrollee’s specific needs. The FMOs have challenged the new rule alleging certain administrative failures by CMS during the process of adopting the new rule, and by invoking the recent Loper Bright decision, arguing that judges now must not defer to agency interpretation. In July, a federal judge in Texas delayed the implementation of the new rule, which was set to go into effect in October 2024, until the merits of the case can be considered.

Qui Tam: Did you know that a federal trial court in Florida, in U.S. Ex Rel. Zafirov v. Florida Medical Associates, became the first court ever to declare that the federal False Claims Act (FCA) qui tam provision violates the U.S. Constitution? The FCA’s qui tam provision allows private citizens with first-hand knowledge of alleged fraud (relators) to file suit on behalf of the federal government and recover damages.  The court found that provision to be unconstitutional because it creates “self-appointed federal officers” while the U.S. Constitution requires the President, the head of an executive department, or a court to appoint all federal officers.

No Surprises Act: Did you know that in October of 2024, a federal appellate court, in Texas Medical Association v. HMS, upheld certain aspects of the No Surprises Act Final Rule issued by the Centers for Medicare and Medicaid (CMS)? The court upheld aspects of the Final Rule that allow insurers to include “ghost rates” but exclude case-specific agreements and bonus/incentive payments, as well as not disclose the number of contracted rates and number of times a rate was paid, in each insurer’s calculation of its “qualifying payment amount” or QPA. So-called “ghost rates” are rates set for providers who rarely render a particular service. The QPA is intended to represent the insurer’s median in-network rates (though the weight that the QPA is to be given has also been disputed in the courts).

Buprenorphine via Telehealth: Did you know the Department of Health and Human Services (HHS) and Drug Enforcement Administration published a final rule related to telemedicine prescribing of buprenorphine? The rule will allow providers to prescribe a six-month initial supply of Schedule III-V medications to treat opioid use disorder via audio-only telemedicine interaction without a prior in-person evaluation. Providers can then prescribe additional medication through other telemedicine encounters (real-time, two-way audio-visual) or after an in-person encounter. Providers will need to complete a review of the Prescription Drug Monitoring Program for the state where the patient is located prior to prescribing the buprenorphine. This rule became effective on February 18, 2025.

Kennedy M. Hagens
410-576-4146 • khagens@gfrlaw.com