EP428: Do-It-Now Advice From the J&J and the DOL v BCBS Lawsuits, With Julie Selesnick

This show is different, so if you’ve already listened to or read all about the gory details of the J&J and/or the DOL v BCBS lawsuits, this is not gonna be a repeat of that information. Julie Selesnick, my guest today, does cover the very, very top line about these two cases. But after that, we move on fast—because what I wanted to get to today was not the potential landslide of legal action that may or may not be confronting plan sponsors or payers or even brokers today. I did not want to really even talk about the CAA (Consolidated Appropriations Act) and its inarguable adjacency here. I just feel like there’s been a lot of talk about these topics already.

For a full transcript of this episode, click here.

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What I wanted to get to, and fast, is … now what? If I’m a plan sponsor or actually, again, an EBC (employee benefit consultant) or broker, now what? What should I be doing and thinking about right now?

To that end, I could not have been more thrilled to get a chance to talk to Julie Selesnick, who is an attorney deeply entrenched in helping plan sponsors and others understand and comply with fiduciary responsibilities.

I want to get to this interview quickly (the conversation with Julie), so this intro is gonna be on the short side; but let me just summarize a few of the points that Julie makes during the interview that follows.

First, we talk about the first step for pretty much everybody: Get your data, plan sponsors. But once you have that data, you also kinda have to use it. You can use it to ensure that you’re paying claims right, which is what most do. As a result of these two lawsuits, it’s also increasingly clear that you also have to use that data to ensure that the prices you’re paying for things (like generic specialty meds, for example) are fair and reasonable.

To get the data now, you may have to renegotiate administrative services agreements; and you might need to take a closer look at the disclosure agreements you’re getting as a result of the CAA. And, by the way, it’s not just brokers or EBCs who have to complete these disclosures. It’s all covered entities that you, plan sponsors, paid more than $1000 to.

Then we get into … okay, once you have the data and you’ve analyzed it, what are some in general things that could very well need to happen? And if the reason that they don’t happen is because they weren’t even considered, then plan sponsors have some risk exposure; and the brokers/EBCs who serve them might have some conflicts of interest. And it would be very interesting what would or could happen if a plan sponsor was able to back into those conflicts of interest, because if data clearly shows that something should be happening and it is not—and it is not even on the docket to be considered—if I’m a plan sponsor, I’m for sure gonna be wondering why. And maybe I’m gonna look into that and fast. Listen to the show with AJ Loiacono (EP379) from two weeks ago for more on some of the more egregious broker/EBC conflicts of interest, which could explain, potentially, the J&J lawsuit as well as definitely explains the earlier one in Osceola.

And also, by the way, if you’re sitting there wondering to yourself how exactly J&J managed to pay upwards of $10,000 for a drug that can be purchased for cash for something like $50, listen to the show next week with Luke Slindee, PharmD. We run through the exact pharmacy supply chain machinations that make all of this (and more) possible.

But I got off track. What I was talking about is the things that could easily wind up being called for when the data is analyzed:

1. Carving out specialty generics, especially drugs or infusions, from the larger pharmacy benefit manager

2. Your payment integrity vendor should not be the same vendor who is processing claims. Talk about a conflict of interest. I do not need to be an attorney—and I need to know absolutely nothing about anybody’s data—to tell anybody who’s listening that if you have the same vendor or two vendors with the same parent company who are both processing your claims and then auditing their own work … yeah, fix that.

3. Shut down any cross-plan offsetting. And we get to this in the show if you don’t know what cross-plan offsetting means.

Lastly, we get into a bunch of stuff that plan sponsors might want to consider as they consider how to administer their plan, like, for example, setting up a health and welfare committee that has an independent fiduciary expert on said committee. I’m gonna say that’s a good idea!

As I have mentioned, my guest today is Julie Selesnick. Julie is senior counsel over at Berger Montague’s Employee Benefits and ERISA group.

Also mentioned in this episode are AJ Loiacono; Luke Slindee, PharmD; Justin Leader; Chris Deacon; Bridget Mulvenna; Mark Cuban; Olivia Webb; and Dawn Cornelis.

You can learn more at Berger Montague. You can also follow Julie on LinkedIn.

 Julie Selesnick has been practicing law since 2001 and has over 20 years of experience in complex dispute resolution forums representing plaintiffs and defendants. Julie has a wide variety of litigation, arbitration, and mediation practice, including first-chair jury and bench trial experience, representing some of the largest companies in the United States as well as small companies, labor unions, individuals, and classes of plaintiffs.

Julie’s current practice is a mix of class litigation on behalf of individuals, union funds, and employers, and a legal consulting practice advising self-funded health plans and service providers to self-funded health plans on minimizing litigation and regulatory risk, issues arising under ERISA, fiduciary obligations and best practices, and CAA compliance, including negotiating service provider contracts and business associate agreements, drafting plan documents and advising on plan design; helping health plans gain access to participant claims data, helping service providers draft and plan fiduciaries obtain § 408(b)(2)(B) compensation disclosures, assisting plans with ensuring their prescription drug data collection and reporting is properly conducted and copies are provided to plan fiduciaries, and ensuring proper review, MHPAEA Comparative Analysis reports on nonquantitative treatment limitations.

05:48 What’s happening with the J&J lawsuit?

07:38 What’s going on with the DOL v BCBS case?

08:49 What do these cases mean for plan sponsors?

09:21 Why is engaging with claims data critical?

12:30 EP408 with Chris Deacon.

14:20 EP379 with AJ Loiacono.

16:58 What’s one solution to avoiding a conflict of interest?

18:02 Why there’s still not a total understanding about what to do with claims data once acquired.

20:58 NADAC (National Average Drug Acquisition Cost) to check pharmacy prices.

21:31 What advice do plan sponsors need to know that never gets recommended to them when dealing with conflicting interests?

27:02 EP337 with Olivia Webb.

28:41 EP285 with Dawn Cornelis.

30:24 “As a fiduciary, your money should only go to pay your plan’s benefits, not to other plan benefits.”

30:59 What’s Julie’s advice to advisors?

33:17 “Giving nonconflicted advice … is something you really can only do if you have no conflicts.”

35:57 What’s Julie’s advice for administering whole plans?

Recent past interviews:

Click a guest’s name for their latest RHV episode!

Rik Renard, AJ Loiacono (Encore! EP379), Nina Lathia, Marshall Allen, Stacey Richter (INBW39), Peter Hayes, Joey Dizenhouse, Benjamin Jolley, Emily Kagan Trenchard (Encore! EP392), Cora Opsahl (Encore! EP372)