Following Repeal of the Individual Mandate, Twenty States Challenge the Affordable Care Act

Jordan GrushkinMatthew GoldmanSamuel GilkesonBy Jordan Grushkin, Matthew Goldman and Samuel Gilkeson on Posted in Affordable Care Act (ACA)

On February 26, 2018, twenty states (the “Plaintiffs”) jointly filed a lawsuit[1] in the U.S. District Court for the Northern District of Texas requesting that the court strike down the Patient Protection and Affordable Care Act (“ACA”), as amended by the Tax Cuts and Jobs Act of 2017 (the “TCJA”), as unconstitutional. The Plaintiffs’ suit gained support from the White House last week, when Attorney General Jeff Sessions delivered a letter to House Speaker Paul Ryan on June 7, 2018 (the “Letter”), indicating that the Attorney General’s Office, with approval from President Trump, will not defend the constitutionality of the individual mandate – 26 U.S.C. 5000(A)(a) – and will argue that “certain provisions” of the ACA are inseverable from that provision.[2] The Letter indicates that this is “a rare case where the proper course is to forgo defense” of the individual mandate, reasoning that the Justice Department has declined to defend statutes in the past when the President has concluded that the statute is unconstitutional and clearly indicated that it should not be defended. Continue Reading

The VA MISSION Act: Enhancing Healthcare for Veterans

Kenneth YoodMatthew ShatzkesKimberly RaiBy Kenneth Yood, Matthew Shatzkes and Kimberly Rai on Posted in Federal Healthcare Programs, Healthcare Law

On Wednesday, June 6, 2018, President Trump signed into law the “John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Networks Act” a.k.a. the VA MISSION Act of 2018 (“VAMA”), a $52 billion reform bill aimed at improving access to, and the quality of, medical services provided to veterans by the Department of Veterans Affairs (“VA”). Continue Reading

Health Care Organizations Take Notice: The Joint Commission Issues Recommendations to Stem Workplace Violence

Shawn D. FabianBy Shawn D. Fabian on Posted in Labor and Employment

Originally Posted on the Sheppard Mullin Labor and Employment Blog on June 6, 2018.

In an effort to curb workplace violence against healthcare workers, The Joint Commission, a national healthcare accreditation body, recently issued seven actions healthcare organizations are encouraged to implement. Continue Reading

In a Unanimous Vote, the Opioid Crisis Response Act of 2018 Makes it Onto the Legislative Calendar

Rachel LandauerSamuel GilkesonBy Rachel Landauer, Samuel Gilkeson and Dhara Waghela* on Posted in Healthcare Law

As previously discussed in our post from September 2017, the push for a response to the opioid crisis is gaining momentum. Enter the “Opioid Crisis Response Act of 2018.”

On May 7, 2018, the Opioid Crisis Response Act of 2018 (the “Bill”) was placed on the Senate Legislative Calendar after a unanimous vote out of the Senate Health, Education, Labor and Pensions Committee just weeks before on April 24. A showing of legislative commitment and intent, the Bill begins to tackle many of the key issues underlying and exacerbating the epidemic, though stakeholders remain concerned as to whether it goes far enough in light of the magnitude and complexity of the crisis. Continue Reading

The Shape of Healthcare: Blockbuster Mergers, Retail Healthcare, and Marcus Welby, M.D

Kenneth YoodLinda IgarashiBy Kenneth Yood and Linda Igarashi on Posted in Healthcare, Retail or Consumer

It has been widely reported that healthcare mergers and acquisitions are off to a strong start this year after ending a record-breaking year in 2017. In fact, the healthcare press this year has been replete with articles extolling the “good news” about healthcare investment and transaction activity. For example:

  1. As reported by Kaufman Hall, the number of “hospital and health system transactions announced in 2017 totaled 115, up 13% over 2016 and the highest number recorded in recent history.” Kaufman Hall, “2017 in Review: The Year M&A Shook the Healthcare Landscape,” January 29, 2018;
  2. According to data from Bloomberg, the total deal value of healthcare transactions announced in the first quarter of 2018 is approximately $156 billion. “Health-Care M&A Balloons in Busiest Start in More than a Decade,” by Manuel Baigorri (March 28, 2018) (https://www.bloomberg.com/news/articles/2018-03-28/health-care-m-a-booming-in-busiest-start-in-more-than-a-decade). Not surprisingly, Bloomberg’s transaction value data also shows that first quarter 2018 is the busiest first quarter in more than ten years; and
  3. As reported last month by Forbes in, “Why Private Equity Loves Retail Healthcare from 2012 to 2017,” Nirad Jain, Kara Murphy and Jeremy Martin, April 4, 2018, https://www.forbes.com/sites/baininsights/2018/04/04/why-private-equity-loves-retail-healthcare/#4883ce071924, “From 2012 to 2017, the number of deals involving retail health companies—those that operate freestanding health-related outlets like dental clinics or urgent care facilities—has soared, increasing at a compound annual rate of 34% in the North American market.” Citing, the Bain & Company’s Global Private Equity Report 2018 (http://go.bain.com/global-private-equity-report-2018.html), the authors write that the growth in retail healthcare transactions is, in some significant part, a function of the fact that, “retail health is a fragmented, high-margin sector with strong growth characteristics. In a sea of high prices, it still offers targets at reasonable multiples and many opportunities to unlock substantial value.”

Continue Reading

Healthcare Industry Companies Must Be Wary of Classifying Any Workers As Independent Contractors, In Light of the California Supreme Court’s Dynamex Ruling

Gregg FischAytan DahukeyRachel HowardBy Gregg Fisch, Aytan Dahukey and Rachel Howard on Posted in Labor and Employment, Uncategorized

As you may have seen in our recent article on the Labor and Employment Law Blog, the California Supreme Court recently issued a landmark decision in the case of Dynamex Operations West, Inc. v. Superior Court. (The full text of the Dynamex decision can be found here.) In its ruling, the Court establishes a standard that makes it extremely difficult for companies (or individuals) in California to properly classify their workers as independent contractors. Continue Reading

California Superior Court Judge Orders Department of Public Health to Make Names and Personal Home Addresses of Approximately 180,000 Health Care Workers Available to SEIU; Union Organizing Activities Likely to Spike

Keahn MorrisBy Keahn Morris on Posted in Healthcare, Healthcare Law, National Labor Relations Act

A California Superior Court judge recently issued an order granting the Service Employees International Union’s (“SEIU”) petition for writ of mandate under the California Public Records Act (“CPRA”) and ordered the California Department of Public Health (“CDPH”) to produce the names and personal home addresses of approximately 180,000 healthcare employees who hold licenses or certificates issued by CPDH. The order requires the production of this personal contact information no later than May 22, 2018. Continue Reading

CMS Pushes for Hospital Price Transparency in Proposed Rule

Matthew GoldmanJordan GrushkinCody FierroBy Matthew Goldman, Jordan Grushkin and Cody Fierro on Posted in Centers for Medicare and Medicaid Services ("CMS")

On April 24, 2018, the Centers for Medicare & Medicaid Services (“CMS”) announced a new proposed rule (CMS-1694-P) (“Proposed Rule”). In an attempt to “empower patients through better access to hospital price information,” CMS plans to alter the requirements previously established by Section 2718(e) of the Affordable Care Act.[1]

Under Section 2718(e), “each hospital operating within the United States shall for each year establish (and update) and make public…a list of the hospital’s standard charges for items and services provided by the hospital.” CMS has previously interpreted Section 2718(e) to require hospitals to either make public a list of standard charges or implement policies for allowing the public to view a list of the standard charges by individual request. It was originally believed by CMS that patients could use such information to compare charges for similar services across hospitals, just as someone “shops around” for the best price in plumbing services. However, CMS contends that Section 2718(e), as is currently written, is insufficient to establish the necessary hospital price transparency. Continue Reading

What Have We Learned About False Claims Act Litigation in the Two Years Since Universal Health Services, Inc. v. United States ex rel. Escobar? Quite a Lot, Actually

Matthew TuretzkyBy Matthew Turetzky on Posted in False Claims Act

Summer is almost here. For some, that means planning vacations to the beach, hitting the gym to shed that winter weight, or perhaps hitting the golf course—but for us at the Sheppard Mullin Healthcare Law Blog and the False Claims Act Defense Blog, summer signals the anniversary of the Supreme Court’s seminal decision in Universal Health Services, Inc. v. United States ex rel. Escobar.  Continue Reading

CMS Rolls Out Provider Appeals Settlement Efforts

Brian DaucherBy Brian Daucher on Posted in Healthcare Law, Hospice, Hospice Law

(as first posted in the Hospice Log Blog on April 12, 2018)

This year CMS is rolling out two new programs aimed, finally, at helping to settle certain types of pending provider reimbursement appeals. The programs are the Low Volume Appeals Initiative and Settlement Conference Facilitation.

As pointed out on the Hospice Law Blog before, CMS’ longstanding policy of refusing to negotiate overpayment findings has been a significant factor in clogging the appeals system. With no settlement options, each case must be decided on its merits, imposing a huge (indeed unmanageable) burden on the appeals system. Continue Reading

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