On January 5, 2023, the Federal Trade Commission (“FTC”) announced a broad proposed rule that would ban employers from imposing noncompete clauses on their workers. The FTC press release announcing the proposed rule states that noncompete clauses—which apply to about one in five American workers—suppress wages, hamper innovation, block entrepreneurs from starting new businesses and reduce American workers’ earnings between $250 billion and $296 billion per year.[1] The proposed rule would prohibit employers from: (1) entering into or attempting to enter into a noncompete with a worker; (2) maintaining a noncompete with a worker; or (3) representing to a worker, under certain circumstances, that the worker is subject to a noncompete. The term “worker” covers paid staff in addition to independent contractors and unpaid staff. The proposed rule does not apply to noncompete provisions imposed upon 25% owners of a business in transaction documents related to the sale of the business. The proposal is subject to a 60-day public comment period commencing when the Federal Register publishes the proposed rule.Continue Reading FTC Seeks to Ban Noncompete Agreements in Employment Contracts

The Eighth Circuit Court of Appeals recently tossed a $5.5 million jury verdict finding that a physician violated the False Claims Act (“FCA”) by submitting claims for items and services ordered subsequent to a violation of the Federal health care program anti-kickback statute (“AKS”). According to the appellate court, the trial court’s jury instruction “brushed aside causation” and “misinterpreted” a 2010 amendment to the AKS.Continue Reading Eighth Circuit: In False Claims Act Cases Based On Kickback Violations, the Kickback Violation Must Be the “But For” Cause of the Items and Services Subject to the Claim

In our November 9, 2021, blog post on the No Surprises Act (“NSA”), we discussed new consumer protections against surprise out-of-network bills. In addition to protecting insured consumers from balance billing, the NSA protects uninsured (or self-pay) individuals from many unexpectedly high medical bills. Specifically, effective January 1, 2022, a provider must furnish a self-pay patient with notice and a good faith estimate (“GFE”) of the cost of care prior to all scheduled services. This includes, among other things, a GFE of the cost of office visits, therapies, diagnostic tests, infusions, surgeries and any services reasonably expected to be provided in conjunction with such scheduled services. On December 21, 2021, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance on the Good Faith Estimate and the Patient-Provider Dispute Resolution (“PPDR”) process for people without insurance or who plan to pay the costs themselves.
Continue Reading Q&A: The No Surprises Act’s Protections for Uninsured (or Self-Pay) Individuals

Thursday, January 13 was the last day of the virtual J.P. Morgan Annual Healthcare Conference for 2022. And since the conference was virtual, what better topic to start us off today than a consideration of the new Virtual-First trend that surfaced in 2021. We’ll follow that with a dive onto the couch to consider the conference’s mental health offerings and where the behavioral health sector is heading.
Continue Reading Day Four Notes for the 40th Annual J.P. Morgan Healthcare Conference, 2022

Have you been working out recently? We hope so, for today, Day Three of the 40th Annual J.P. Morgan Healthcare Conference, was definitely a day for heavy lifting.  Got a challenge that seems overwhelming? A problem that’s big enough to totally scare other folks? Do you eat triathlons for lunch? Well, then you’re going to like the Day Three companies. Let’s talk about fixing the huge American diabetes problem, providing better healthcare for Medicaid and dual eligible beneficiaries, and helping people beat cancer.  All that, plus a COVID-19 thought exercise…
Continue Reading Day Three Notes for the 40th Annual J.P. Morgan Healthcare Conference, 2022

The phrase “whole person health” kept echoing through the virtual hallways during the second day of the 40th Annual J.P. Morgan Healthcare Conference. Looking at the whole person – not just separate organs or body systems – may seem obvious and commonsense, but it’s not how our (well planned, highly logical) healthcare system currently is structured.
Continue Reading Day Two Notes for the 40th Annual J.P. Morgan Healthcare Conference, 2022

For those of you who know me, I like to have fun with my Zoom backgrounds – choosing photos of interesting scenery or changing them mid-call to reflect my mood or negotiating strategy. Sitting in front of my computer this year for the first day of the 2022 J.P. Morgan Annual Healthcare Conference (the 40th annual!), I was lamenting the bland, boring backgrounds of the presenters who were using low-quality stock shots or empty office views until I realized that I was looking at the wrong thing. I really had to look at the shadows and not the backgrounds. There are a LOT of shadows over this year’s J.P. Morgan Conference – COVID-19, the jittery stock market, the future of Medicare Advantage and recent industry changes.
Continue Reading Day One Notes for the 40th Annual J.P. Morgan Healthcare Conference, 2022

In its December Hospital Flash Report, Kaufman Hall identified and reviewed the continued, negative impact of COVID-19 on hospital operating margins. After a dramatic drop in hospital margins during the height of the pandemic in 2020 and early 2021, hospitals experienced a fluctuation of decreasing and increasing margins in the latter-half of the year. Overall, hospital margins remain significantly narrower than they were in 2019, before the pandemic. As a result, the industry may see an increase in hospital transactions in 2022 to offset the operational and financial hardships that continue to burden the health care system, as described in greater detail below.
Continue Reading COVID-19 Impacts and Outcomes on Hospital Margins in 2021: Increased Activity in Hospital Transactions in 2022?

Scope of practice expansion has been a hot-button issue within medical communities and state legislatures for more than thirty years. The debate is centered on what services advanced practice providers (“APPs”) who hold Master’s Degrees (e.g., Physician Assistants, Nurse Practitioners, Pharmacists, Dental Hygienists, etc.) should or should not be able to furnish in their professional practices. Scope of practice is defined by state regulatory boards, often based on limitations established by state legislatures.
Continue Reading Debate Continues Around Scope of Practice Expansion for APPs

Like other players in the healthcare industry, physician groups are facing increased antitrust scrutiny from the Biden administration, with the Federal Trade Commission (the “FTC”) and Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) continuing to expand their enforcement focus to include all types of transactions involving physician groups, including both traditional combinations, as well as so-called vertical combinations with health systems, payors, and private equity investors.
Continue Reading Healthcare Antitrust Update: Key Antitrust Takeaways for Physician Groups