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Current Trends and Developments in Physician Tiering

Current Trends and Developments in Physician Tiering
Product Code - LGA170
Speaker(s): J. Mark Waxman, Foley & Lardner LLP; Lawrence M. Kraus, Foley & Lardner LLP; Lindsey E. Gabrielsen
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Providers, payors, and federal and state governments continue to experiment with methods to increase the quality of healthcare while simultaneously reducing its cost. In addition, the increasing focus on “patient-centered care” highlights the need for patients to be provided more information – and choices – about who provides their healthcare.

“Physician tiering” has emerged as one approach to meet these goals. Through tiering, payors make distinctions between physicians in their networks, generally based on a combination of quality and cost factors. Such distinctions may result in physicians in a network being “tiered” or designated, for example, as “excellent,” “good,” or “standard.” These designations are generally transmitted to the payor’s subscribers, who may be offered financial incentives such as lower co-payments to use physicians with a higher tier.

Not surprisingly, such approaches can be controversial and can lead to regulatory scrutiny, challenges from organized medical societies, and individual physicians. These challenges can include claims from physicians for defamation, breach of contract, unfair business practices, and others. This program will address some of those challenges and will offer practical guidance as to how tiering programs can be developed to reduce such risks.

Educational Objectives:

• Learn what tiering programs are and how they differ from each other.
• Discover in which states tiering programs have been challenged and what claims have been asserted during those challenges.
• Understand how tiering programs can be developed to reduce regulatory and litigation risk.

Who would benefit most from attending the program?

In-house counsel for payors and providers interested in tiering; outside healthcare regulatory attorneys and healthcare litigators.

Program Level: Intermediate

Credit Available: CLE. For more information, please click on the “CLE Credit” tab.

J. Mark Waxman, Foley & Lardner LLP; Lawrence M. Kraus, Foley & Lardner LLP; Lindsey E. Gabrielsen

J. Mark Waxman, Foley & Lardner LLP
J. Mark Waxman is a partner with Foley & Lardner LLP, where he is former chair of the Health Care Industry Team and a member of the Government Enforcement, Compliance & White Collar Defense and Antitrust Practices.

Mr. Waxman’s health care practice focuses on transactional, regulatory and contractual issues for for-profit and not-for-profit providers and payers. His experience in this area includes issues related to mergers and acquisitions, the governance and operation of health care systems and provider sponsored networks, the integration of health care system participants, policy and regulatory issues for trade associations and strategic business planning. He has a significant history in addressing the antitrust implications of mergers and acquisitions, federal program fraud and abuse, reimbursement and managed care contracting.

Mr. Waxman writes and lectures extensively on a variety of health care issues, including health system affiliations and system governance, plan provider relations, health reform and its implications, medical research and technology, compliance, managed care, antitrust issues, and health care fraud and abuse.

Mr. Waxman earned a J.D. from Boalt Hall School of Law, University of California--Berkeley, where he was articles and book review editor of the Ecology Law Quarterly, and a B.A., summa cum laude, from the University of California--San Diego (1970). He was admitted to the California Bar in 1973 and the Massachusetts Bar in 2001 and is admitted to practice before the United States District Court for the Central, Southern, Eastern and Northern Districts of California; the United States Court of Appeals, Eighth and Ninth Circuits; the United States Claims Court; and the United States Supreme Court.

Lawrence M. Kraus, Foley & Lardner LLP
Lawrence M. Kraus is a partner with Foley & Lardner LLP and is a member of the firm’s Business Litigation & Dispute Resolution and Government Enforcement, Compliance & White Collar Defense Practices and Emerging Technologies Industry Team.

Mr. Kraus’s practice focuses on complex civil, commercial, healthcare, and real estate litigation and white collar criminal defense. He serves as the vice chair of the firm’s False Claims Act Specialty Practice Working Group and has defended qui tam cases involving healthcare claims. In addition, Mr. Kraus defended a prominent payor in litigation brought by a medical society challenging the application of a physician tiering program.

Mr. Kraus earned a J.D., cum laude, from Harvard Law School, where he won the 1992 Ames Moot Court competition, and a B.A., magna cum laude, from Brandeis University. Admitted to practice in the state of Massachusetts, Mr. Kraus is also admitted to practice before the U.S. Court of Appeals for the D.C. Circuit; the U.S. Court of Appeals for the First Circuit; the U.S. District Court, District of Massachusetts; and the U.S. Supreme Court.

Lindsey E. Gabrielsen
Lindsey Gabrielsen is a J.D. candidate at Boston University School of Law in the class of 2014, and is a summer associate with Foley and Lardner. She is also studying for her MPH from the Boston University School of Public Health. Ms. Gabrielsen is a managing editor of the American Journal of Law and Medicine. She previously interned at the Executive Office of Health and Human Services in Massachusetts and with the Harvard Center for Health Law and Policy Innovation. She graduated from Boston College in 2011 with a degree in English and Philosophy.

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York*, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
Bloomberg BNA offers a hardship policy for attorneys earning less than $50,000 per year. If an attorney wishes to take advantage of this option, he or she must contact Bloomberg BNA directly. For attorneys who are unemployed or earning less than $35,000 per year, a full discount off the price of the program will be awarded upon written proof of hardship. Attorneys earning between $35,000 and $50,000 per year will receive a 50% discount off the price of the program. Any attorney working in the public service sector also qualifies for a special price. If you have further questions regarding the hardship policy or seek additional information, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditations Coordinator, or email us at

For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at

*Bloomberg BNA is an accredited provider in New York for experienced attorneys only.