Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

Transcription

1 Public Health Law Series Webinar Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications Thursday, November 17, 2016

2 How to Use Webex Audio: If you can hear us through your computer, you do not need to use your phone. Just adjust your computer speakers as needed. Support: If you need technical assistance, call Webex Technical Support at Submitting Questions: All participants are muted. Type a question into the Q & A panel for our panelists to answer. Submit your questions at any time during webinar. Recording: This webinar is being recorded. If you arrive late, miss details or would like to share it, we will post link to the recording at after the session has ended. Public Health Law Series Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

3 How to Use Webex Accessing Network webinars from your mobile device: You can now access and fully participate in Network webinars on the go using the WebEx app for Apple or Android. o Download the app. o Register for a webinar on the Network website, then use the event number provided in your attendee to connect via the mobile app. Public Health Law Series Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

4 Public Health Law Series Webinar Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications Thursday, November 17, 2016

5 Moderator Montrece Ransom, Team Lead, Public Health Law Training and Workforce Development with the Public Health Law Program (PHLP) in the Office for State, Tribal, Local, and Territorial Support at the Centers for Disease Control and Prevention M.P.H., Emory University; J.D., University of Alabama School of Law Research interests/areas of expertise: Public Health Emergency Legal Preparedness Health Disparities Environmental Public Health Law Taking Public on Health Tobacco Law Regulation Series Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

6 Presenter Introduction Jason Lacey, Partner, Foulston Siefkin LLP LL.M., New York University J.D., University of Kansas Areas of expertise: Data sharing Employee benefits ERISA Executive compensation Taking Public on Health Tobacco Law Regulation Series: Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

7 Presenter Introduction Tara Ramanathan, Team Lead for Research and Translation, Public Health Law Program, Office for State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention J.D., Emory University School of Law M.P.H., Johns Hopkins Bloomberg School of Public Health Research interests/areas of expertise: Data sharing and health information technology Healthcare quality Health system transformation Taking Public on Health Tobacco Law Regulation Series: Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

8 Presenter Introduction Denise Love, Executive Director, National Association of Health Data Organizations M.B.A., Westminster College, Gore School of Business Areas of expertise: Information policy Health data standards Population health advancements Promotion of policies to ensure public trust Taking Public on Health Tobacco Law Regulation Series: Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications

9 Background on Gobeille Vermont law requiring reporting of health claims information to all-payor claims database (APCD) Included all self-insured plans operating in the state 17 other states with similar laws Liberty Mutual instructed its TPA not to report its claims and sued Vermont, claiming ERISA preemption Federal district court said no to preemption No effect on a core ERISA function Federal appeals court said yes to preemption Reporting is a core ERISA function 9

10 Supreme Court s Gobeille Opinion Vermont law is preempted as to self-insured ERISA plans Reporting and disclosure is central to the uniform system of plan administration contemplated by ERISA Vermont law (1) intrudes upon a central matter of plan administration, and (2) interferes with nationally uniform plan administration States cannot regulate a key facet of plan administration even by exercising a traditional state power Any presumption against preemption cannot validate a state law that affects a fundamental area of ERISA regulation (reporting) But incidental reporting requirements may still be ok 10

11 Direct Effect of Gobeille on ACPD Laws Laws are not per se invalid But states cannot enforce reporting requirements against self-insured ERISA plans Will states tell third-party administrators and self-insured ERISA plans they don t have to comply? Will self-insured plans unilaterally opt out? Administrators will still need reporting capability to report for some types of plans (e.g., insured plans and non-erisa plans) 11

12 Voluntary Reporting by SIHPs Many self-insured ERISA plans may be ok with voluntary reporting to state APCDs, but there are some concerns Potential fiduciary obligation under ERISA for plans to maintain control of plan data and not report May depend on what is authorized under the plan s terms Does the HIPAA privacy rule permit voluntary reporting? Required by law (45 CFR (a)) Maybe not anymore Public health activities (45 CFR (b)) Maybe ok Health oversight activities (45 CFR (d)) Maybe ok 12

13 A Federal Alternative to State APCDs? The Supreme Court observed that: The DOL may be authorized to require ERISA plans to report the same kind of data that state APCD laws seek Maybe the federal government could create a reporting regime and delegate to the states the authority to collect information at the state level Not clear that the DOL has this authority But they have asked for comments about this in connection with recent proposed revisions to the Form 5500 Even if it has the authority: Does it have the resources? Effect of the election? 13

14 State Breach Notification Laws Most states require notice of breaches affecting sensitive personal information SSN; financial account; health information If a breach occurs with respect to an ERISA-covered plan, is it required to report under state law? Not clear, but seems like a good argument for ERISA preemption Gobeille says reporting is a central matter of plan administration and preemption is necessary to preserve nationally uniform plan administration HIPAA breach notification would still apply 14

15 Centers for Disease Control and Prevention Public Health and All-Payer Claims Data Tara Ramanathan, JD, MPH Team Lead for Research and Translation, CDC s Public Health Law Program Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications The Network for Public Health Law, CDC s Public Health Law Program, and the American Bar Association Health Law Section November 17, 2016

16 Disclaimer The contents of this presentation do not represent official CDC determinations or policies. The findings and conclusions in this report are those of the authors and do not necessarily represent the official position of CDC. The contents are for educational purposes only and are not intended as a substitute for professional legal advice. Always seek the advice of an attorney or other qualified professional with any questions you may have regarding a legal matter.

17 Why are claims data important for public health? To understand disease burden and monitor trends Public health surveillance (e.g., administrative data, vital statistics) To guide public health activities Support prevention programs Understand gaps in access to care Improve healthcare quality Minimize costs for health services Engage providers and practitioners

18 What are All Payer Claims Databases?

19 Examples of public health uses for APCDs Healthcare quality Medication adherence Chronic disease prevention Covered screenings Disparities research

20 Legal issues To understand disease burden and monitor trends Public health surveillance (e.g., administrative data, vital statistics) To guide public health action Support public programs Understand gaps in access Improve healthcare quality Minimize costs Engage practitioners

21 Federalism and the U.S. Constitution

22 The federal government can also prohibit or preempt action

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24 What are state APCDs left with at this point? Health Agency Hospital Clinic Health Data Varies according to state law Types of data reported Organization collecting data Organization reporting data Systematic data collection Types of reporting

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26 Going forward Examine impact Talk to counsel Identify gaps Compare systems

27 For more on CDC s Public Health Law Program: Submit a technical assistance request to PHLP at or us at phlawprogram@cdc.gov Visit our website to learn about our program and available resources: Subscribe to CDC Public Health Law News at

28 For more information, contact CDC CDC-INFO ( ) TTY: The findings and conclusions in this report are those of the authors and do not necessarily represent the official position of the Centers for Disease Control and Prevention.

29 PUBLIC HEALTH DATA: POST GOBEILLE V LIBERTY MUTUAL AND ITS AFTERMATH Denise Love November 17, 2016

30 Slides attributed to and adapted from Lucy Hodder, UNH School of Law PROFESSOR OF LAW, UNH SCHOOL OF LAW INSTITUTE FOR HEALTH POLICY AND University of New Hampshire. All rights reserved.

31 ERISA PREEMPTION AND APCDS What are All Payer Claims Databases? Why are they important in health care? What does their existence have to do with ERISA? Why is Gobeille v. Liberty Mutual bigger than it UNH SCHOOL OF LAW ALL RIGHTS RESERVED

32 WHAT ARE APCDS? Databases, created by state mandate, that typically include data derived from medical, pharmacy, and dental claims with eligibility and provider files from private and public payers: Commercial insurance carriers (medical, dental, TPAs, PBMs) Public payers (Medicaid, UNH SCHOOL OF LAW ALL RIGHTS RESERVED

33 PROVIDER FILE TYPICAL APCD DATA SETS Commercial / TPAs / PBMs / Dental / Medicare Parts C & D Medicare Parts A & B APCD Medicaid FFS / Managed Care / SCHIP FUTURE: TRICARE & VA & IHS & FEHB ELIGIBILITY APCD COUNCIL 33

34 SEPTEMBER 2015 STATE PROGRESS APCD COUNCIL

35 STATE USE CASE EXAMPLES APCDs are filling critical information gaps for state agencies Understanding overall and categorical costs for care (e.g., CO, NH, ME, VT, UT, MA, MD) Consumer tools (e.g., MA, NH, ME) Intrastate cost variation (e.g., CO, ME, NH, VT) Benchmarks for purchasers (e.g., NH) Medical home evaluation (e.g., VT, NH) Accountable care regional cost profiles (e.g., APCD COUNCIL D

36 APCD COUNCIL

37 @2016 APCD COUNCIL

38 VIRGINIA HEALTH INFORMATION: HEALTH CARE PRICES Source: UNH SCHOOL OF LAW ALL RIGHTS RESERVED

39 COLORADO MEDICAL PRICE COMPARE Source: APCD COUNCIL NAHDO ALL RIGHTS RESRVED

40 @2016 APCD COUNCIL NAHDO ALL RIGHTS RESERVED

41 @2016 UNH SCHOOL OF LAW ALL RIGHTS RESERVED

42 NOW WHAT? States are seeking guidance around regulatory and process issues post-gobeille Scope Process for self-insureds opt-in or opt-out? Comments on DOL NPRM: Options for DOL action to fill ERISA vacuum in a critically important area of health care regulation States are standardizing core claims/admin data UNH SCHOOL OF LAW ALL RIGHTS RESERVED

43 BREYER If each state goes its own way, health plans could have duplicative and conflicting reporting requirements Reporting requirements could thus create cost While standardization of data collection has come a long way, J. Breyer was not convinced US DOL has the authority under the ACA and elsewhere in ERISA to collect data I see no reason why the Secretary of Labor could not develop reporting requirements that satisfy the States needs including some state-specific requirements, as appropriate. Nor do I see why the Department could not delegate to a particular State the authority to obtain data related to that State, while also providing data to the Federal Secretary for use by other States or at the federal UNH SCHOOL OF LAW ALL RIGHTS RESERVED

44 THOMAS I write separately because I have come to doubt whether Section 1144 is a valid exercise of congressional power. Just because Congress can regulate some aspects of ERISA plans pursuant to the Commerce Clause does not mean that Congress can exempt ERISA plans from state regulations that have nothing to do with interstate UNH SCHOOL OF LAW ALL RIGHTS RESERVED

45 KEY REGULATORY ISSUES FACING APCD STATES POST GOBEILLE V. LIBERTY MUTUAL These responses are not meant to provide legal advice and should not be relied upon as such. Instead, this is a compilation of opinions and regulatory interpretations that may help guide states as they assess the impact of the SCOTUS decision on APCD efforts. Enforceability: APCD statutes are and remain, for the most part, enforceable. Scope: Generally, governmental plans are exempt from ERISA s provisions and are not impacted by the Gobeille decision with regard to claims submission Voluntary reporting--who decides? ERISA does not address this situation. According to state regulators, most TPAs seem to be concluding that the plan sponsor (i.e., the employer) has the right to determine whether the TPA continues to voluntarily submit UNH SCHOOL OF LAW ALL RIGHTS RESERVED

46 KEY REGULATORY ISSUES FACING APCD STATES POST GOBEILLE V. LIBERTY MUTUAL These responses are not meant to provide legal advice and should not be relied upon as such. Instead, this is a compilation of opinions and regulatory interpretations that may help guide states as they assess the impact of the SCOTUS decision on APCD efforts. HIPAA Privacy: Claims data voluntarily submitted by self-funded ERISA plans would continue to comply with HIPAA privacy requirements notwithstanding the Gobeille decision Regulatory authority and APCD savings from preemption. The Gobeille decision did not address and does not alter a state s authority to regulate insurance. The APCD requirements do not have to come from or be administered by the state department of insurance for the savings clause to apply. What documentation is required to opt-out of the APCD? States typically have the authority to request documentation or other verification of a plan sponsor s decision to opt-out of (or opt-in to) APCD data UNH SCHOOL OF LAW ALL RIGHTS RESERVED

47 EMPLOYER ENGAGEMENT Opt-in reporting models: Specific opt-in mechanism: Required or voluntary Plan issues opt-in form to self-funded employers Opportunity to identify and reach out to employers Plan administrators Chamber of Commerce Reduces plan burden to make determinations Offers protections for insurers Challenges -Insurers have to program/filter opt-in versus opt-out records -Reaching employers to sign the UNH SCHOOL OF LAW ALL RIGHTS RESERVED

48 GUIDANCE TO EMPLOYERS Employers want the (information) holes filled. We (states) need a vehicle to make it happen. --Purpose of APCDs and data analysis especially as plans move towards alternative payment models of care --Do employers understand health delivery system reform? --How can they impact costs and quality based on plan design? --How can they design plans for their specific populations? --Does population health matter to self-funded UNH SCHOOL OF LAW ALL RIGHTS RESERVED

49 LINKS/COMMENTS/QUESTIONS APCDCOUNCIL.ORG Co-Leaders, APCD Council Denise Love Josephine Porter Legal questions: Lucy UNH SCHOOL OF LAW ALL RIGHTS RESERVED

50 Q&A Please type your questions in the Q&A panel. Public Health Law Series Webinar: Shared-Use Public Health Agreements Data in the Courts: to Support Gobeille Public v. Liberty Health Mutual and its Implications

51 Thank you for attending For a recording of this webinar and information about future webinars, please visit networkforphl.org/webinars. Public Health Law Series Webinar: Public Health Data in the Courts: Gobeille v. Liberty Mutual and its Implications