Client Services / Health / Managed Care

Managed Care

Lawyers in McDermott Will & Emery's Managed Care Practice Group have been at the forefront of efforts to create, restructure, represent in litigation and before regulatory agencies, and otherwise advise participants in the full range of health care industry managed care arrangements in every state in the United States, as well as internationally.  In addition to health plans and other payors, we have advised hospitals (including academic medical centers), other institutional inpatient and outpatient facilities, medical groups and independent practice associations, physicians and other licensed health care professionals, medical discount programs, employers, lay investors (from investment bankers and venture capitalists to individual entrepreneurs) and consultants in creating or otherwise participating in numerous types of managed care arrangements.

Administrative Services Only (ASO) Arrangements
We advise health plan clients and third party administrators on structuring their administrative services arrangements with self-insured employer group health plans.  This includes developing the applicable contractual documentation with the self-insured employer, network providers, and any intermediaries or vendors.  We have substantial experience with the state insurance law issues that may impact these types of arrangements.

Antitrust and Trade Regulation (DOJ and FTC)
McDermott lawyers’ broad base of experience allows us to go beyond simply identifying antitrust problems. We work with clients on solutions that facilitate achievement of business objectives and provide antitrust counseling and litigation services to a wide variety of actors in the health care field. We represent hospitals (both for-profit and not-for-profit) and integrated health care systems, physician specialty and multi-specialty practice groups, health insurers, group purchasing organizations, pharmaceutical and medical device suppliers, and trade associations of health care providers.  Our experience includes managed care provider network exclusion and boycott allegations; structuring and representing joint venture initiatives among health care providers and payors; defending health care clients under investigation by federal and state antitrust enforcement officials; protecting clients from unfair trade practices, exclusionary conduct and anticompetitive conduct by others; helping health care providers form and operate permissible managed care network organizations and joint ventures; and physician credentialing and privileges disputes.  We do represent managed care clients in other trade regulation matters, such as consumer protection enforcement actions brought by the Federal Trade Commission.

Bankruptcy and Work-out Plans
McDermott offers a fully integrated, broadly based, troubled business advisory practice, representing all perspectives in managed care distressed transactions and bankruptcy.  Our lawyers are seasoned debtor, creditor, committee and special counsel in a wide variety of engagements, both pre-and post-bankruptcy filing, with especially deep experience in the health plan sector. 

Consumer Directed Health Plans
McDermott’s Consumer-Driven Health Care (CDHC) Practice Group advises clients on the design and implementation of all varieties of CDHC plans. The team is anchored by partners in the Firm’s Health and Employee Benefits Departments who are uniquely qualified to provide counsel in navigating this complex legal area. CDHC Practice Group assists clients in the following areas: regulatory compliance, plan design and documentation, contract review and fiduciary responsibility

Conversions and Tax-exempt Issues including 501(m)
McDermott has one of the largest nonprofit practices in the United States and has been at the forefront of tax-exemption issues faced by managed care organizations.  Our lawyers are experienced in preparing and filing applications for tax-exemption, to representing managed care organizations before the IRS in the course of audits, and to litigating managed care tax-exemption issues before the United States Tax Court and United States Court of Appeals.  McDermott is uniquely suited to handle both the tax-exemption issues raised by Section 501(m) of the Internal Revenue Code as well as the insurance tax issues raised under Subchapter L of the Code. 

Corporate Integrity Agreements and Compliance Programs
In the event that a managed care  organization suspects wrongdoing or impropriety by one of its employees or officers, we have extensive experience in conducting confidential internal investigations to assess the nature and extent of the suspected misconduct.  We also work with our clients to assess the implications of an employee’s alleged misconduct, criminal or otherwise, and advise company officers on how to handle a matter of non-compliance.

Prior to any allegation of wrongdoing, we advise clients how to avoid criminal liability exposure.  Our compliance reviews focus on meeting or exceeding the standards established by the Federal Sentencing Guidelines for Organizations and compliance with all local laws and regulations.

ERISA
McDermott has been independently rated as being the preeminent major law firm in the employee benefits area.  McDermott lawyers are experienced in counseling and litigating issues concerning the design and administration of employer welfare benefit plans. Our lawyers have particular expertise in advising on and litigating ERISA preemption issues.

Federal Employees Health Benefits Program (FEHBP)
Our experience includes advising health plan contractors on the annual rate proposal and reconciliation process including issues related to the similarly sized subscriber groups.  We advise and represent health plans in preparing for, responding to, and negotiating resolutions of audit findings including audit findings that result in further federal investigation.  The experience of McDermott lawyers includes both community rated and experience rated contracts under the FEHBP.

HIPAA Privacy and Security
McDermott lawyers advise health plans, health care providers, and the companies that provide administrative services to them on the requirements of the HIPAA Privacy and Security Standards.  We assist our clients in developing arrangements with employer groups, provider intermediary organizations and vendors to comply with these standards including drafting business associate agreements where required.

Innovative Approaches such as Tiered Benefit Arrangements and Disease Management Programs
McDermott lawyers advise managed care clients on the legal implications of tiered benefit designs, including state mandated benefit requirements, state and federal disclosure obligations, and state insurance laws affecting plan–provider relationships.

Joint Ventures
McDermott lawyers have extensive experience in health-related business transactions such as assisting hospitals and physicians in joint business transactions, and assisting health plans in joint marketing initiatives.  Consulting clients on both a national and a regional basis, our lawyers have a deep understanding of the complex business realities in which our clients operate and are able to provide value through our quick response time, creative solutions and thorough analysis of an array of regulatory issues that confront health business activities.

Litigation/Administrative Agency Proceedings/Class Actions
McDermott lawyers provide a unique combination of skills, experience and resources to resolve complex class action disputes that arise in the health insurance industry. Representation of health plans, providers, management service organizations, and others in connection with contractual disputes, termination of contractual relationships, risk pool disputes, claims for enforcement and rescission of a management services agreements, violations of anti-fee splitting laws and covenant not to compete statutes, enforcement of intellectual property rights, reimbursement disputes under state and federal health care programs, and claims of unfair competition, as well as defending against antitrust claims and seeking determinations of usual and customary charges.

Our lawyers defend class actions in U.S. federal and state courts throughout the United States, frequently practicing before the Multi-District Litigation Panel. Our professionals include seasoned Trial Department lawyers, who have extensive health litigation experience, and Health Department lawyers who focus on the substantive legal areas implicated here.

Medicaid
McDermott lawyers assist health plans in entering into contracts with state Medicaid agencies, drafting provider contracts and amendments, preparing bid responses and bid protests in states with competitive procurements, review state waiver requests for adequacy in terms of state and federal requirements, advise on issues raised by behavioral health and graduate medical education/disproportionate share carve-outs, and review legal considerations related to serving the dual eligible population. 

Medical Discount Programs
McDermott attorneys have been at the forefront of representing non-risk medical discount programs in state licensure/certification, and federal and state compliance matters, including enforcement actions by state agencies and the Federal Trade Commission.

Medicare Advantage Program
McDermott lawyers advise prospective and current contractors on program requirements including the annual rate/bid development process, plan design, marketing, enrollment, network access issues, and relationships with health care providers, delegated entities and subcontractors.  With the passage of the Medicare Prescription Drug Improvement and Modernization Act of 2003 (MMA), we assist current and existing Medicare Advantage organizations in applying to CMS to offer Part D plans and implementing the necessary  pharmacy and administrative provider arrangements.  We assist Medicare Advantage organizations in responding to and resolving audit findings including issues related to civil monetary penalties and the False Claims Act.

Medicare Part D Implementation and Compliance
McDermott lawyers assist companies in applying to become sponsors of prescription drug plans under Medicare Part D.  Our experience includes assistance with submission of the initial application, benefit plan, and bid; drafting and negotiating the requisite pharmacy and administrative provider contracts, including pharmacy benefit manager contracts; and advising on ongoing compliance issues.

Mergers and Acquisitions
Our experience in health care mergers, acquisitions and affiliations is unsurpassed by any other law firm in the United States. Since the inception of our Health Department in 1983, our attorneys have routinely represented health care providers of all kinds - including nonprofit and for-profit hospital organizations, health plans, and physician groups, in structuring and closing merger and acquisition and similar change-of-control transactions. We not only work in every sector of the health care industry but also in all parts of the United States.

Provider Network Development/Maintenance, Contracting, and Credentialling Disputes
McDermott lawyers have assisted in the creation of virtually all forms of provider networks, including multi-specialty and single specialty physician networks, medical foundations (consisting of hospital affiliates and medical groups), academic medical centers and all other types of providers, departmental and combined faculty practice plans (both separately incorporated and divisionally based), and both hospital-owned and physician equity model management services organizations, as well as surgicenters, home health and all other types of outpatient providers.  We have structured hundreds of such networks, whether designed as IPAs, physician hospital organizations (PHOs), provider-sponsored organizations (PSOs) or other form of joint venture contracting organization.  These have been designed as both for-profit and nonprofit entities, and to utilize risk, non-risk (or “Messenger” model), and direct employer contracting.

We also routinely assist clients in negotiating payment arrangements return payors and providers – from basic discounted fee-for-service arrangements to creative risk withhold and clinically integrated models to complex global capitation, percent of premium or other innovative risk sharing arrangements.  We also have substantial experience in creating single specialty or disease "carve out" networks.  Our experience in this area includes advising on the legal feasibility of the network, creatively structuring the network, preparing and negotiating the network documents and advising our client regarding negotiation of contracts with payors.  McDermott attorneys advise health plans in provider contracting issues including compliance with applicable state and federal requirements such as the federal physician incentive plan regulations.  We have substantial experience in structuring risk sharing reimbursement methodologies including global capitation and withhold arrangements.

Representation of Trade Associations
McDermott lawyers assist trade associations in developing communications to their membership on legal developments; draft comments on proposed regulations and agency guidance; prepare pleadings and represent trade association in amicus curiae filings.

State and Federal Fraud and Abuse/Stark/False Claims Act Compliance, Investigations and Litigation
McDermott lawyers have extensive experience advising clients regarding compliance issues under the federal anti-kickback statutes, the Stark Law, and the False Claims Act, as well as handling government investigations and defending enforcement proceedings in the managed care industry.  Our experience includes representing clients in investigations brought by state attorney generals relating to marketing practices and violation of state false claims acts; defending clients in investigations brought by the federal Office of Inspector General for civil monetary penalties and intermediate sanctions, and defending clients in False Claims Act cases and investigations including qui tam proceedings.  

State and Federal Government Contracts for Health Plans (Including TRICARE/CHAMPUS)
McDermott lawyers assist health plans in applying for contracts under state and federal health care programs, including the Department of Deficiencies TRICARE/CHAMPUS and provide ongoing compliance advice on a broad spectrum of issues including bid protests, reviewing privacy and confidentiality requirements, reimbursement, rating requirements, benefit issues, marketing, provider contracting, and audits and investigations.  For information, please click on the relevant program.

State Licensure and Regulation, and Federal Regulation, of Health Plans, Specialized Health Plans, and Health Insurers
McDermott lawyers assist health plans in obtaining initial state licensure and providing ongoing advice on the myriad of state and federal regulatory compliance issues to which the industry is subject.  Our experience drafting the applications for licensure and material modifications/amendments, state HMO, PPO and other regulatory compliance, includes provider network and access issues, marketing activities, benefit design and compliance with mandated benefits, drafting coverage documents, financial solvency, and market conduct examinations.  We also assist health plans in complying with applicable federal laws including the Federal HMO Act, COBRA continuation of coverage requirements, Medicare secondary payer law, and requirements of the Department of Defense and the Department of Veteran Affairs.

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Health Client Services

McDermott Will & Emery

McDermott Will and Emery