Photo of Kenneth Yood

Ken is a partner in the Corporate Practice Group in the firm's Los Angeles office and a member of the Healthcare Team.

In a July 21, 2020 American Hospital Association (AHA) Press Release, the AHA announced the results of a new analysis prepared by Kaufman, Hall & Associates, LLC that, “highlights the dire impact of the COVID-19 crisis on the financial health of hospitals and health systems.”  According to the Press Release, the analysis shows that, without further government support, margins could sink to -7% in the second half of 2020, with half of all hospitals operating in the red.  In this same Press Release, the AHA referenced its own studies that estimate a minimum of $323.1 billion in COVID-19 – related financial losses for hospitals and health systems in 2020.
Continue Reading Hospitals, Home Health Agencies, and Skilled Nursing Facilities: The Costs of COVID-19 and Federal Relief for Healthcare Providers

On June 25, 2020, the Centers for Medicare & Medicaid Services (“CMS”) announced its proposed Home Health Prospective Payment System Rule, for calendar year 2021 (the “Rule”), which aims to increase home health agency Medicare payment rates.  This Rule also includes a provision to make permanent the regulatory changes related to telecommunication technologies in providing care under the Medicare home health benefit beyond the expiration of the COVID-19 public health emergency (“PHE”), which is set to time out at the end of July 2020.
Continue Reading CMS Issues Proposed Home Health Agency Rule On Making Certain Telehealth Flexibilities Permanent, Increasing Medicare Payment Rates And Home Infusion Therapy Service Payment Rates For CY 2021

On Thursday, June 11, 2020, the U.S. House Select Subcommittee on the Coronavirus Crisis,[1] chaired by Rep. James E. Clyburn, held a video briefing (the “SCC Briefing”) with experts and affected individuals to examine the impact of the COVID-19 pandemic on nursing home residents and workers.
Continue Reading Opening Up America: Recent COVID-19 Data And Congressional Hearings Show That Nursing Homes May Be The Last To See “Business As Usual”

According to an April 13, 2020 Press Release issued by the National Association of ACOs (“NAACOS”),  a recent NAACOS survey shows that 56% of the survey-participating at-risk accountable care organizations (“ACOs”) – i.e., ACOs participating in a Center for Medicare and Medicaid Innovation (“CMMI”) alternative payment model (“APM”) and assuming financial risk thereunder – said that they were likely to drop out of their APM because of their fear of having to cover massive losses resulting from the COVID-19 pandemic.  In addition, the survey revealed that, as a result of swings in unpredictability and spikes in expensive hospitalizations, 21% of at-risk ACOs were “very likely” to leave the Medicare ACO program, 14% said they were “likely,” and another 21% said they were “somewhat likely” to leave.  Almost 80% of responding at-risk ACOs said they were “very concerned” about their 2020 financial performance in general and how their financial performance compared to their applicable annual APM benchmarks.
Continue Reading More Help Is On The Way For Accountable Care Organizations: CMS Announces New Relief For ACOs Struggling With The COVID-19 Crisis

According to a recent study (Study) published in Nature Reviews Drug Discovery on May 10, 2020 regarding the impact that the COVID-19 pandemic has had on the conduct of oncology clinical trials,[i]  the COVID-19 pandemic has materially disrupted the conduct of clinical research and trials in much of the world.  The observed disruptors include an observed decrease in patient enrollment in clinical trials and the operational challenges arising from the need to protect patient safety and comply with the social distancing, shelter-in-place and other rules and regulations that have become key elements of the public health response to the pandemic.  As a result of these and other disrupters, investigators who participated in the Study reported that they are, “adopting or planning to adopt technology-based interventions aimed at reducing on-site monitoring visits and in-person patient visits to minimize potential viral exposure and spread, including telemedicine, remote electronic medical record access for monitors and virtual monitoring of data and study documentation.”
Continue Reading Going Virtual: Clinical Trials, Telemedicine, Electronic Medical Records, And All That.

On May 18, 2020, California  Senate Bill 977 (“SB-977”) was passed out of the California Senate Health Committee and is now scheduled for its first hearing before the Senate Appropriations Committee on June 1, 2020.   SB-977 as written would subject all acquisitions and affiliations on and after January 1, 2021 by larger health systems, private equity funds and hedge funds of (i) hospitals, (ii) other health facilities, (iii) physicians, (iv) clinics, (v) ambulatory surgery centers or  (vi) laboratories to prior approval by the California Attorney General.  In its current form, SB-977 would require the California Attorney General to withhold his approval from a proposed transaction unless the transaction would (i) increase clinical integration and/or (ii) increase access or availability of healthcare services to underserved populations, and would not otherwise be anti-competitive.  SB-977 would also give the Attorney General the discretion to hold a public hearing on a proposed transaction.  In short, with SB-977, the California Legislature is going far beyond earlier proposals or legislation in other states – including Connecticut and Washington State – that have prior approval requirements for healthcare transactions.

In this article, we consider the forces behind SB-977 – a decade or more of healthcare consolidations and the financial distress being experienced by hospitals and other healthcare providers as a result of the current healthcare emergency – and the potential impact that SB-977 could have on the California healthcare marketplace if it were signed into law in its current form.
Continue Reading Getting Ahead of California’s Post-Pandemic M&A Surge: California Senate Bill 977 Seeks to Expand Attorney General Oversight of Healthcare Acquisitions and Affiliations involving Hospitals, Health Systems, Private Equity Groups, and Hedge Funds

In recent years, there has been a trend towards the provision of cardiovascular procedures in the outpatient setting and particularly in ambulatory surgery centers (“ASCs”).  This trend is in part motivated by the fact that outpatient cardiovascular services, in comparison to cardiovascular services performed on an inpatient basis, tend to be less expensive and offer greater comfort and convenience for patients.[i]  As a result of the emphasis on outpatient cardiovascular services, there is growing interest in the development and expansion of cardiovascular programs in ASCs.
Continue Reading The Expansion of Cardiovascular Procedures in the ASC Setting

As we discussed in our April 27, 2020 blog post, nursing homes have become the focus of significant attention during the COVID-19 crisis.  In many respects, the attention is well deserved:

  1. Nursing homes traditionally serve seniors who often struggle with chronic health conditions. As a result, nursing home residents are particularly vulnerable to coronavirus infection due to both their age and health status;
  2. Nursing homes residents are highly interactive with each other. The close proximity of nursing home rooms/beds and the personal relationships often formed among nursing home residents make social distancing hard to maintain;
  3. In order to relieve pressure on hospitals that need to reserve their beds for the most acute COVID-19 patients, nursing homes are under significant pressure to accept COVID-19 patients who have been discharged from hospitals because they no longer require an acute level of care but still may be symptomatic and require isolation and treatment; and
  4. Most importantly, the above three factors and others have turned many nursing homes across the country into hot spots for coronavirus infection and, in some cases, COVID-19 fatalities. Overwhelming data as to the dangers found in nursing homes is highlighted in the blog article referenced above.


Continue Reading Nursing Home Liability Waivers and Nursing Home Investigations and Enforcement: A Delicate Balance During the COVID-19 Pandemic

On April 23, 2020, the Kaiser Family Foundation (“KFF”) issued a report authored by Priya Chidambaram entitled, “State Reporting of Cases and Deaths Due to COVID-19 in Long-Term Care Facilities.” In the KFF report, Ms. Chidambaram cited to previous KFF studies showing that COVID-19 has had a disproportionate impact on people who reside or work in long-term care facilities – such populations including 1.3 million nursing home residents, 800,000 assisted living facility residents, 75,000 intermediate care facility residents, and 3 million people who work in skilled nursing or residential care facilities.
Continue Reading Data Reporting, Patient Access and Malpractice Liability: Nursing Homes and Long-Term Care Facilities Command Federal and State Attention during the COVID-19 Public Health Emergency

On April 16, 2020, the Trump Administration issued its “Opening Up America Again Guidelines” (the “OUAA Guidelines”) as a self-styled roadmap to the staged reopening of the American economy.

On Sunday, April 19, 2020, the Centers for Medicare & Medicaid Services (“CMS”) followed suit by issuing new guidance (the “Reopening Guidance”) designed to reintroduce the provision of non-essential surgeries and medical procedures by healthcare providers located in “Phase 1” states and/or regions.  Such non-elective procedures were previously put on hold at the state and local levels in accordance with prior CMS guidance dated March 18, 2020 (the “March Guidance”) in which CMS called for the delay of all elective surgeries, non-essential medical, surgical, and dental procedures during the COVID-19 state of emergency.
Continue Reading Elective and Non-Essential Medical Procedures: States React to Federal Recommendations and the Opening Up America Again Guidelines