| Trend | Range | |
|---|---|---|
| Public MCOs |  |
E&O: up to +5%, D&O: up to +5% |
| Blue plans | |
E&O: up to +5%, D&O: up to +10% |
| Hybrid entities (accountable care organizations, third-party administrators, management service organizations, revenue cycle management, etc.) | |
E&O: Up to +10%; D&O: up to +10% |
| All other MCOs |  |
E&O: Flat to +5%; D&O: up to +10% |
| Private company other lines of business | |
EPL: flat to +5%; Fiduciary: flat to +10%; Crime: flat to +5% |
| Cyber liability (MCOs with good cyber security controls and no adverse loss activity) |  |
-5% to +5%; for less-than-optimal risks up to +15% |
However, cyber underwriters remain technically focused on ransomware controls and cyber security resilience and the Change Healthcare and CrowdStrike cyber events may impact future renewals.
The much-anticipated final rule on MHPAEA was released on September 9, 2024, with portions of the rules going into effect in as little as 60 days from publication.[1] The rules require that plans perform a comprehensive analysis of their nonquantitative treatment limitations (NQTLs). In a signification change from the proposed rules, the final rules do not adopt the “substantially all” and “predominant” tests currently applied to financial requirements and quantitative treatment limitations. Instead, plans are required to ensure that the processes, strategies and evidentiary standards for NQTLs on mental health and behavioral health are comparable and not more stringent than for medical/surgical benefits.
Challenges to the final rules in light of the Supreme Court’s Loper Bright Enterprises v. Raimondo decision are expected.
Briefing on the merits is heating up in L.B., et al v. Premera Blue Cross, where minor members seek class certification and partial summary judgment challenging Premera’s restriction of gender-affirming chest surgery to members who have reached 18. No. 2:23-cv-953-TSZ, pending in the Western District of Washington. Plaintiffs assert the age restriction is a facially discriminatory policy in violation of Section 1557’s prohibition on sex-based discrimination and that Premera’s justifications for the policy are pretextual. Premera previously sought third-party discovery from the World Professional Association for Transgender Health (WPATH), including on the topic of “the process by which WPATH decided to remove age limits in the most recent edition of its Standards of Care.” See Premera Blue Cross v. World Professional Association for Transgender Health, USDC N.D. IL, No. 1:24-cv-3316 (Doc. 1, filed Apr. 24, 2024).
Similar theories of Section 1557 were asserted in Connecticut by putative class members seeking coverage of facial feminization surgery and asserting that Aetna’s exclusion of such surgery as cosmetic is impermissible sex discrimination. Binah Gordon, et al. v. Aetna Life Insurance Company, U.S.D.C. D. CT, Doc. No. 3:24-cv-1447-VAB, (filed Sep. 10, 2024).
More cases are being filed alleging overdue awards issued pursuant to the No Surprises Act. These cases typically seek recovery pursuant to the NSA and the Federal Arbitration Act, theories which are being met with scrutiny in the courts. See, e.g., Guardian Flight LLC, et al v. Health Care Service Corp., USDC ND TX, No. 3:23-cv-1861-B, 2024 WL 2786913 (Doc. 15, filed May 30, 2024) (finding no private cause of action).
On August 1, 2024, the Judicial Panel on Multidistrict Litigation issued a transfer order centralizing for pretrial purposes in the Northern District of Illinois many of the Multiplan antitrust claims that have been asserted. In re: Multiplan Health Insurance Provider Litigation, USJPML No. 3121, (Doc. 98, filed Aug. 1, 2024). Out-of-network providers allege a conspiracy to fix, suppress and stabilize reimbursement rates in violation of the Sherman Act.
On September 4, six additional cases were filed in the Southern District of New York by separate plastic surgery groups against Multiplan, Aetna, Inc., The Cigna Group, UnitedHealth Group Incorporated, and Elevance Health, Inc.
The U.S. 9th Circuit Court of Appeal recently issued a ruling in the case of Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co., which will have a significant impact on out of network provider litigation. In Bristol, the court found that state law claims arising from medical services furnished by an out-of-network medical provider are preempted by ERISA. Such state law claims are typically promissory estoppel, quantum meruit, and similar claims arising out of the provider’s phone call seeking to verify benefits before providing services. The court observed that, “[s]ubjecting plan administrators to the prospect of binding contracts through pre-treatment calls would thus risk stripping them of their ability to enforce plan terms that cannot be applied prior to treatment.”
The impact of the ruling is that the ERISA plan will govern the claim, not state law, and that the appropriate venue lies in federal courts.
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