As we survey 2023 and look beyond, we expect legal issues impacting managed care organizations (MCOs) to remain a focus of regulators, legislators and the plaintiffs’ bar. As in prior years, familiar provider lawsuits, behavioral health issues, bad faith cases, ERISA matters and the like will continue to dot the managed care litigation landscape. As the 2022 elections move further into the rearview mirror, new areas of contentious litigation are likely to develop.

At the top of that list are attacks from post-Dobbs legislation, including civil and criminal prosecutions under those statutes. While some common wisdom has kept MCOs outside of the crosshairs of this legislation for now, the perceptions of deep pockets and causation for potential wrongful acts under the statutes may bring MCOs from the periphery into the line of fire. We are keeping a close eye on this issue. Those who subscribe to our Post-Dobbs Tracker have first access to thought leadership and innovative practice tools on this rapidly developing issue.

As the United States sets new records in Medicare and Medicaid enrollment, MCOs continue to expand into the government programs space. With expansion comes increased scrutiny. We expect growth in the number and variety of False Claims Act (FCA) cases and fraud and abuse investigations leveled against MCOs by governments. The amount of money at stake can be monumental, so we focus on risk assessment and mitigation strategies. While we often use our capabilities to defend against allegations asserted in FCA cases or to cooperate with the government in fraud, waste and abuse investigations, we prefer – as do our clients – to proactively identify and address issues that could lead to such actions before any action is taken. Proactive forethought can readily avoid significant business disruptions that accompany these sorts of matters. In other words, an ounce of prevention can prevent the need for pounds of cure.

With concerns about an economic downturn on the horizon, M&A activity in managed care likely will ramp up. This increased activity will bring more complexity to deal-making in 2023, with greater regulatory scrutiny, recession fears, the current inflationary environment and rapid changes in the health care industry. Even so, health care acquisition activity in 2023 is positive, although dealmakers will face increasing challenges that may require creative solutions.

This report reflects these and other highlights that we see on the horizon for the managed care industry. There is, of course, much more going on out there. Even as this report is going to press, the law in this space is moving at breakneck speed, with President Biden announcing a plan to end the COVID-19 emergency declarations, and courts delivering important decisions like the Ninth Circuit’s ruling in Wit v. United Behavioral Health. To keep you up to date on the latest trends, we also offer a steady stream of webinars, alerts and subscriber services on all things managed care. Our mission aligns with yours; we strive to stay abreast of the latest legal developments and provide the most advanced legal thinking on the issues that impact our clients.