The Washington Report
September 23, 2020
Note to subscribers: Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline. Stay healthy and safe! ~The Washington Report team
President Signs Executive Order to Reduce Drug Cost
On September 13, 2020, President Trump signed an Executive Order focusing on reducing the price of prescription drugs. The Executive Order states that “It is the policy of the United States that the Medicare program should not pay more for costly Part B or Part D prescription drugs or biological products than the most-favored-nation price. The ‘most-favored-nation price’ shall mean the lowest price, after adjusting for volume and differences in national gross domestic product, for a pharmaceutical product that the drug manufacturer sells in a member country of the Organisation for Economic Co-operation and Development (OECD) that has a comparable per-capita gross domestic product.” The Executive Order also charges the Secretary of Health and Human Services to implement a rulemaking plan regarding a payment model based on the most-favored-nation price in Medicare Parts B and D.
The Executive Order is available here.
House Passes Competitive Health Insurance Reform Act; Would Repeal Antitrust Exemption for Health Insurers
On September 21, 2020, the House passed by voice vote the Competitive Health Insurance Reform Act of 2019 (H.R. 1418), which would restore the application of antitrust laws to health insurers. According to the press release, the bill “would repeal an antiquated exemption that allows insurance companies to operate beyond the reach of federal antitrust laws and coordinate to set health care costs and market share to increase profits….” H.R. 1418 would repeal the exemption in the 1945 McCarran-Ferguson Act and give the Department of Justice and the Federal Trade Commission the authority to apply federal antitrust laws to anticompetitive behavior by health insurance companies. The bill moves to the Senate, where passage is uncertain.
H.R. 1418 is available here.
The news release is available here.
DOL Releases Proposed Rule on Independent Contractor Status Under FLSA
On September 22, 2020, the Department of Labor (DOL) released a proposed rule addressing how to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor. The rule proposes to:
- Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);
- Identify and explain two “core factors”: specifically, the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
- Identify three other factors that may serve as additional guideposts in the analysis, including the amount of skill required for the work, the degree of permanence of the working relationship between the worker and the potential employer, and whether the work is part of an integrated unit of production; and
- Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.
Comments on the proposed rule are due 30 days after publication in the Federal Register (date pending).
The press release is available here.
The proposed rule is temporarily available here.
Additional information is available here.
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