New Proposed Merger Guidelines from FTC & DOJ

 

In a previous post (May 25, 2023), I featured some of the criticisms leveled by Daniel Sokol and Dick Pierce against the emerging M&A policy at the FTC under the leadership of Lina Khan. It's not likely that the revised merger guidelines released by DOJ and FTC on July 19 will do much to soften their criticism. 

Of particular interest for health lawyers, consider these more or less parallel developments:

• July 14: the two agencies withdrew the Statements of Antitrust Enforcement Policy in Health Care and the Statement of Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program. ACOs represent a major innovation in the 2010 Patient Protection and Affordable Care Act, and a major part of ACO-related policy was the antitrust protection issued by the FTC and DOJ. The ACO initiative hasn't been a roaring success, and if the FTC and DOJ tighten the enforcement screws on ACOs, that could be the end of the road for them.
• July 20: at an open meeting, the FTC voted to issue a statement that discourages reliance on 11 prior advocacy letters and reports issued between 2004 and 2014 related to pharmacy benefit managers.

These are interesting times, indeed, for health-care antitrust counsel and their clients.

American Indian/Alaska Native Health Equity; Private Sector Opportunities

Health Affairs' fourth installment (July 21) of the past week in its Forefront series, "Private Sector Solutions For Health Equity," is written by two principals in Indigenous Pact, a public-benefit corporation whose mission is "[to] provide health care benefits and reimbursement to American Indians and Alaska Native and promote the autonomy and sovereignty of American Indian tribal government over the health of their people.”

The article is a comprehensive review of the hurdles currently faced by indigenous peoples in obtaining health care goods and services, which they introduce with this observation:

The story of American Indian/Alaska Native (AI/AN) health is fractured by genocide and systematic, forced migration away from lands that nourished good health. What existed unsullied for thousands of years was essentially wiped away when colonial settlers stepped foot onto the land that is now called the United States. And what exists now are pieces of brokenness and transgenerational trauma that pervade nearly every aspect of indigenous health.

There’s a well-known, albeit sardonic, pronouncement in Indian Country that admonishes, “You’d better get sick by June or there won’t be any money left—and if you do need medical intervention, it’d better be life or limb because those are the only things that will get authorized.” Unfortunately, it’s funny because it’s true.

The solutions are broad, ambitious, and unflinching. It's way past time to address the needs of this country's original occupants. 

Employers Can Improve Reproductive Health Equity

This is the third in this week's Health Affairs short series on Private Sector Solutions For Health Equity: "Employers Can Help Raise The Bar For Reproductive Health Equity" (July 20) by Sinsi Hernández-Cancio, JD,  vice president for health justice at the National Partnership for Women & Families.

The main focus of the article is on maternal health, which the author frames this way:

We need to solve the maternal health crisis for three main reasons. First and foremost, we must put an end to our status as the most dangerous place to give birth among high-income countries. Second, this crisis is the clearest example of the impact of racism and other structural inequities on the lives and well-being of women and their families. Finally, we know that the healthiest start possible for every person supports a positive life trajectory, while poor maternal and infant health can have long-reaching negative consequences on the health and well-being of both mom and baby.

 Her solutions are multi-tiered, mostly long-term, and hard to read without feeling some despair, e.g.:

• "expand[] their employee health coverage to include out-of-state services for those seeking reproductive care, and also gender-affirming care"
• "invest[] philanthropic dollars in reproductive health advocacy groups such as Planned Parenthood" and in general increase advocacy efforts aimed at improving, not destroying, their employees health care option
• "focus on improving clinical care–especially providing culturally centered, whole-person care that considers the patient’s life context. But health care institutions can and should do more, including aligning their hiring and workplace policies with equity goals, collaboratively partnering with community-based organizations, and pushing for improved policies at various decision making tables"
• diversify "their workforce, especially at leadership levels. According to a 2020 report from Mercer, a business consulting company, 64 percent of corporate entry-level positions were held by white employees; at the executive level that number jumped to 85 percent. The health care industry is no exception. Roughly nine out of ten hospital CEOs are white. Only 15 percent of health care CEOs are women, despite women comprising a large majority of health care workers, including the maternal health workforce."
• "focus[] on the dignity, personal agency, and bodily autonomy of birthing people. Among the recommendations: screening for and helping to meet patients’ physical, mental, and social health needs, and measuring respectful care for internal improvement and accountability. This includes understanding and addressing how structural inequities undermine people’s health."
• "collaborate and co-create with community-based partners"

The basic lesson here is that maternal health won't get significantly better if we wait for initiatives and funding to come from the public sector, nor can it happen without the public sector. One engine for change is companies that are willing to put resources -- including time and money -- into improving health for their employees.

Almost four years ago, Texans Care for Children (TCC) issued a report, Healthy Moms Raising Healthy Babies: Central Texas and Statewide Challenges and Opportunities to Support Maternal Behavioral Health During the First Year After Childbirth (Oct. 2019). One section addressed "What Factors Contribute to Racial Disparities in Maternal Health Outcomes?" The factors include:

• Implicit biases in our health care system can affect the quality of health care provided, decision making, and how health programs are carried out. 
• Chronic stress, including the physical toll of stress related to structural racism, increases health risks for mothers and babies. 
• Discrimination, both past and present, negatively affects social determinants of health — such as housing, food scarcity, and education, among others. 
• Lack of access to health insurance disproportionately affects people of color and limits the ability to manage health conditions before and after pregnancy. 

The depth and complexity of social and cultural roots of the problem reinforce the conclusion I drew from Ms. Hernández-Cancio's article: It's going to take a lot of work, a lot of investment, and a lot of time to improve maternal health in this country. 

One thing the legislature and Governor Abbott could do with the stroke of a pen and at almost no cost to the state is take up the federal government's invitation to expand Medicaid eligibility and let the United States pay for nearly all of the additional cost. As the TCC report noted:

In Texas, Black and Hispanic women are more likely to be uninsured than White women. Seventeen percent of nonelderly Black adults in Texas, 29 percent of nonelderly Hispanic adults, and 12 percent of nonelderly White adults in the state were uninsured in 2017.

Recent research found that states that offer Medicaid insurance to cover low-wage adults who do not have insurance through their job experienced a decrease in disparities for Black families with respect to maternal mortality, infant death, preterm birth, and low birth weight babies. Specifically:

Analysis of data from 2010 to 2016 found that infant deaths have declined across most states, but the decline was more than 50 percent greater in states that offer health coverage before, during, and after pregnancy — with the decline in infant deaths greatest among Black infants.

Research found that coverage for low-wage workers before, during, and after pregnancy was associated with “significant improvements in disparities for black infants relative to white infants for the four outcomes studied: preterm birth, very preterm birth, low birth weight, and very low birth weight.” 

Is a drop of empathy too much to ask of our state leaders? This is the question I've been asking on this blog for years (here, here, here, here, and here). When we find that our leaders are unmoved by the deaths of women who need life-saving abortions and women dying during and after childbirth, it ought to be a question that decides elections.

U.S. Child and Teen Firearm Mortality is Off the Chart. Literally.

Following up on my Father's Day post about firearms.  The Kaiser Family Foundation has released a new issue brief: "Child and Teen Firearm Mortality in the U.S. and Peer Countries". One graphic tells the story:

It's the #1 cause of death (by a pretty wide margin) for minors (ages 1-17), ahead of motor vehicles, cancer, and all other causes.

It's a short paper with an important message. The concluding paragraph raises an issue that doesn't get a lot of coverage in the popular press:

Exposure and use of firearms also have implications for mental health. Research suggests that youth may experience symptoms of post-traumatic stress disorder and anxiety in response to gun violence. Specifically, survivors of firearm-related injuries, including youth survivors, may be at increased risk of mental health conditions and substance use disorders. Furthermore, gun violence disproportionately affects many children of color, particularly Black children, and children living in areas with a high concentration of poverty.

This is a public health issue and ought to be understood as a public health law issue as well. When will legislatures wake up?

Gene Editing: New Report from Third International Summit

This is a must-read document for students of bioethics, teachers, and practitioners. Here are the details:

NEW PROCEEDINGS OF A WORKSHOP—IN BRIEF

Third International Summit on Human Genome Editing: Expanding Capabilities, Participation, and Access

The proceedings of the Third International Summit on Human Genome Editing, which took place on March 6-8, 2023 in London, are now available in a free PDF (readable and downloadable).

Building on previous events held in Washington, D.C. (2015) and Hong Kong (2018), the third summit examined scientific advances that have occurred since the previous summits and the need for global dialogue and collaboration on the safe and ethical application of human genome editing.

The first two days of the summit focused largely on somatic human genome editing, where the cells being altered are non-reproductive cells - as a result genetic changes cannot be passed on to future generations.

The third day of the summit broadened the discussion to include heritable human genome editing, in which genetic changes could be passed on to descendants.

The summit proceedings highlight the presentations and discussions of the event. 

The summit was organized by the UK Royal Society and Academy of Medical Sciences, the U.S. National Academy of Sciences and National Academy of Medicine, and UNESCO-The World Academy of Sciences for the advancement of science in developing countries (TWAS).  

For fogies like me, I assumed the conference would be all about CRISPR-Cas9 (the technique that garnered its co-inventors a Nobel Prize), but that gene-editing technique is yesterday's news:

The CRISPR-Cas9 system discovered by Doudna and Emmanuelle Charpentier is still a widely used tool in genome editing, but newer systems are even more powerful and precise. Techniques known as base editing and prime editing enable efficient and precise gene correction in a wide variety of cell types without requiring that both strands of the DNA molecule be broken, minimizing the possibility of DNA deletions, insertions, or rearrangements that can result from double-stranded DNA breaks. Many laboratories have used prime editing to treat diseases in animal models of human disease, and some of these techniques have been applied in clinical trials. [Proceedings, p. 4]

The ethical concerns, like the Dude, abide: accessibility and affordability of somatic gene editing, the lack of infrastructure and expertise in developing countries, the difficulty and complexity of determining the value of new therapies, the need to engage the public in sophisticated policy discussions, appropriate oversight of experiments, and probably the most polarizing topic of all: germline and heritable gene editing. 

Private-Sector Strategies to Address Disparities in Access to Mental Health Resources

Health Affairs just published the second of four articles on private-sector strategies to address disparities in access to health care: "Addressing The Mental Health Equity Crisis: Can The Private Sector Lead?" The author is Wizdom Powell, Ph.D., M.P.H. (recently named one of the 25 Essential Voices on Black Mental Health). 

"Crisis" is not hyperbole. As inequitable as access to health care is in general, access to mental health care is even more problematic. Helping a friend or family member to be seen, evaluated, and into appropriate treatment is the medical equivalent of banging your head against a brick wall over and over again. As Dr. Powell writes, "By any measure, an all-hands-on-deck approach is needed." She continues:

Health disparities, or preventable differences in the burden of chronic disease and health outcomes, are a driving force behind mental health inequities. Our health equity problem is of our own making, created by artificial caste distinctions, persistent racism, and how we structure our economy and investments in health care; the status of health care disparities is determined, largely, in the ways that the private sector either confronts them or looks away. It is also valuable to recognize that the wicked problem of health inequity is not immutable and that our lack of sustained advancement has more to do with internalized myths of complexity than with our societal capacity.

Wicked problems aren’t unsolvable; instead, they offer many paths to a solution. Just as we have created the problems, we can create the solutions as well. This requires the private sector to do what can prove difficult for public sector leaders—invest resources in pursuing a mental health equity moonshot. The private sector is uniquely positioned and resourced to take the lead in marshaling solutions that will deliver the rapidity and scale necessary to address these troubling trends and ultimately advance health equity. 

Read the article and learn about DEIBJ (Diversity, Equity, Inclusion, Belonging & Justice) and SDGs (the United Nations' Sustainable Development Goals). The article is a quick read and well worth your time. 

JAMA: SCOTUS Decision on Race in College Admissions Will Worsen Health Care Inequities

New online and free article in JAMA: "The Supreme Court’s Rulings on Race Neutrality Threaten Progress in Medicine and Health," by public health scholars Harald Schmidt, Lawrence O. Gostin, and  Michelle A. Williams.

The first paragraph should whet your appetite for more:

In landmark rulings, the US Supreme Court significantly restricted race-conscious admissions policies in higher education, a chilling echo of its evisceration of settled law on abortion. In principle, race neutrality is desirable—but it is one thing to set aside race in a society with genuine equal opportunity, and another to do so where stark differences persist in opportunities and outcomes, fueled by a 400-year history of systemic racism. While the Court focused on education, its rulings could have broad and pernicious implications for health. They could upend programs designed to achieve equity and actively harm population health.

Private Solutions to Address Disparities in Access to Health Care

The excellent journal Health Affairs has kicked off another series of articles in their Forefront feature "Private Sector Solutions for Health Equity." Today's essay is "Public-Private Partnerships To Advance Cardiovascular Health Equity: The Million Hearts Initiative" by Yvonne Commodore-Mensah (Johns Hopkins), Oluwabunmi Ogungbe (Johns Hopkins), and Lisa A. Cooper (Johns Hopkins, 2007 MacArthur Fellow, elected member of National Academy of Medicine). 

There will apparently be four articles this week running through Friday, July 18. Stay tuned . . . 

False Claims Act Settlement with EHR Provider for $31 Million

First, $31 million is a significant piece of change. Second, this was a qui tam relator ("whistleblower") case initiated by two health care professionals at a facility that used the defendant's software; the relators  collected $5.58 million for their trouble. Third, it represents a rare foray by the government into the world of healthcare tech; defendant was NextGen Healthcare Inc. (NextGen), an electronic health record (EHR) technology vendor.

In brief, NextGen was accused of selling EHR software that wasn't properly tested or certified. Medicare money was paid for the development of the software, and NextGen's assertion that its software was properly tested and certified was false. The company was also accused of violating the Anti-Kickback Law, which makes it illegal to pay anyone anything (directly or indirectly, overtly or covertly, in cash or in kind) for a referral (or to induce a referral) of an item or service for which a federal health program (like Medicare) will pay. According to the announcement from DOJ's Office of Public Affairs, "NextGen [allegedly] knowingly gave credits, often worth as much as $10,000, to current customers whose recommendation of NextGen’s EHR software led to a new sale. The government alleges that other remuneration, including tickets to sporting events and entertainment, was also provided to induce purchases and referrals."

Something Old, Something New (Hellacious Health Fraud (VI))

 

Here are a couple of recent cases that caught my eye. First, the old style of health care fraud:

• Evergreen Hospice, LLC (Evergreen), a hospice company located in Tulsa, Oklahoma, appears to be a Mom & Pop operation that advertises a Servant Attitude ("We are givers, not takers. We are listeners, not talkers. We are promoters of others and will perform our roles with humility and dignity") and touts their institutional commit to Ethics ("We will not participate in or tolerate dishonesty or unethical behavior"). On June 29 DOJ announced that Evergreen agreed to pay $48,830.70 to resolve allegations that it violated the False Claims Act by knowingly submitting false claims to Medicare for hospice care provided to beneficiaries who were not terminally ill. Medicare's hospice program requires a physician's certification that the patient/beneficiary is terminally ill, i.e., will probably die within 6 months. The settlement announcement included the usual boilerplate that liability was not established. The U.S. Attorney's announcement added: "'Unfortunately, some healthcare providers seek to defraud Medicare by billing unnecessary hospice services. Left unchecked, this misconduct would deplete funds available for terminally ill patients desperately in need of the relief that hospice care provides."

And something new(-ish):

• A key feature of 2010's Patient Protection and Affordable Care Act (PPACA, ACA, or Obamacare) offered state governments a deal. It was well known that many states had substantial populations of individuals who were not old enough to qualify for Medicare and had too much income to qualify for Medicaid. (States get to establish the eligibility criteria for Medicaid and some, like mine, disqualify individuals at a ridiculously low income level.) The federal government's offer: cap your eligibility at 133% of the federal poverty level (effectively 138% of FPL after accounting for the 5% income disregard feature of Medicaid) and we will pay 100% of the cost of expanded coverage for the first few years, 95% for the next few years, and 90% from then on. In return, states (including California) agreed that at least 85% of the services provided to the expanded population would be for "allowed medical expenses." Shortfalls would need to be returned to the state and ultimately to the U.S.

The four defendants in this case are [1] a county organized health system (COHS) that contracts to arrange for the provision of health care services under California’s Medicaid program (Medi-Cal) in Santa Barbara County and San Luis Obispo County, California; [2] a not-for-profit hospital network operating in Santa Barbara County; [3] a non-profit outpatient clinic operating in Santa Barbara County; and  [4] a non-profit community health center operating in Santa Barbara and San Luis Obispo Counties. The four allegedly violated the False Claims Acts (state and federal) by falsely certifying that they met the 85% minimum from 2014-16. The net result was that Medicaid expansion funds were used to subsidize non-Medicaid services. 

The four defendants settled the suit for $68 million, of which $12.58 million will go to the whistleblower, the former medical director of the COHC. 

More on Nonprofit Hospitals and Tax-Exempt Status

Just a quick followup on my previous posting on this topic (July 13). On July 15 the New England Journal of Medicine posted an on-line "Perspectives" piece (possibly free) that examines the question whether nonprofit hospitals deserve their tax-exempt status. The article covers much of the same ground as my post, but it adds some data to further the policy discussion, such as:

[I]n previous work we compared nonprofit and for-profit hospitals on measures of charity care and Medicaid shortfalls — the two largest components of community benefit by amount of spending. For-profit hospitals don’t receive tax exemptions and aren’t legally obligated to provide community benefit. In 2018, for every $100 of expenses incurred, nonprofit hospitals in aggregate spent $2.30 on charity care, as compared with $3.80 spent by for-profit hospitals. And in 2019, nonprofit and for-profit hospitals had similar Medicaid shortfalls as a share of total expenses. . . . These data suggest that many nonprofit hospitals don’t provide enough charity care or have a substantial enough Medicaid shortfall (relative to for-profit hospitals) to justify their favorable tax treatment. 

The article continues with additional policy-based concerns and ends with a valuable suggestion:

There are insufficient data to compare the amount of community benefit provided by individual nonprofit hospitals with the subsidies they receive. To close this information gap, the IRS could revise Schedule H of Form 990 to require nonprofit hospitals to report on forgone federal, state, and local taxes (broken out separately); savings associated with using tax-exempt bonds; gross profits from the 340B program, if applicable; and charitable contributions received by the hospital, with standardized reporting for each of these elements. . . .  Disclosure might not be sufficient to catalyze changes in hospital behavior, but we believe greater visibility is a prerequisite for policy action. 

 

Telemedicine Fraud

Here's an excellent review of a recent law review article on "Telemedicine Scams." The target article is by Katrice Bridges Copeland in 108 Iowa L. Rev. 69 (2022). The review is by Zack Buck in a recent Jotwell entry (July 7, 2023). His conclusion: 

Professor Copeland’s article—the first to address fraud in telemedicine—is a holistic and complete treatment of a pernicious problem in America’s health care system. . . . By adroitly focusing on the potential threats of a major new delivery mechanism such as telemedicine, she has made us aware of the next major frontier in health care fraud and abuse enforcement. In an area with such hope and promise in addressing America’s health care access challenges, and with the Public Health Emergency coming to an end, her warnings must be heeded to enable telemedicine to flourish while preventing the worst frauds from taking root.

The DOJ and HHS/OIG have brought numerous prosecutions for telemedicine fraud in recent years. The article by Prof. Copeland suggests we've only seen the beginning. 

Violent attacks on hospital staff: What's the solution?

The reports of violent attacks on doctors and nurses in hospitals, clinics, medical offices, and other health care settings keep coming in. From The Hospitalist (Mar. 1, 2023):

Even before the onset of the COVID-19 pandemic, health care workers suffered more workplace injuries as a result of violence than any other profession, with approximately 654,000 harmed annually, according to American Hospital Association studies. Since the pandemic began, violence against hospital employees alone has markedly increased. For example, 44% of nurses reported an increase in physical violence and 68% reported an increase in verbal abuse. (emphasis added)

The weapons tend to be knives and guns. Maybe it's a sign of the times, with random violence increasing all around us each year, there seems to be a steady stream of stories of violent attacks against health care personnel. (See, e.g., American Association of Critical-Care Nurses (blog)). I have further thoughts, but first, consider a recent example: "Man charged in fatal shooting of Tennessee surgeon" (Becker's Hospital Review, July 13). The shooter had reportedly been seen in this orthopedic surgery clinic earlier in the day, returned to the clinic, and shot the orthopedic surgeon.

It goes without saying that violence against doctors, nurses, and other health care workers simply shouldn't be a thing. We remember the political assassination of Dr. George Tiller 14 years ago while he was ushering in a worship service at his church in Wichita, Kansas. The killer was described as an "anti-abortion extremist." But much more violence and threats of violence occur every day in ordinary clinical settings. The work of clinical staff is performed with often emotionally fraught individuals (patients, family members), and then there are others with perceived grievances against the health care system or the world. The CDC has a useful list of risk factors:

The clinical setting is one of intensified emotions. Patients who are at risk of perpetrating violence include those who:

• are under the influence of drugs or alcohol
• are in pain
• have a history of violence
• have cognitive impairment
• are in the forensic (criminal justice) system
• are angry about clinical relationships, e.g., in response to perceived authoritarian attitude or excessive force used by the health provider
• have certain psychiatric diagnoses and/or medical diagnoses.

Clinics are designed to be open and welcoming, not armed fortresses. Doctors and nurses don't pack heat, and possession of a firearm on hospital property is universally prohibited (except in states where such prohibitions are themselves prohibited). They are vulnerable professionals -- first responders and health care workers -- who spend their careers comforting and healing. Violence is obscene and should be unthinkable in any workplace, including elementary schools, places of worship, and health care settings. 

There is no shortage of resources for dealing with violence in hospitals and clinics, including programs and best practices suggested or endorsed by the following:

• the American Hospital Association (Hospitals Against Violence; 2022 fact sheet)
• the federal Occupational Safety and Health Administration (OSHA) (report)
• the Centers for Medicare and Medicaid Services (CMS) (report)
• the Centers for Disease Prevention and Control (CDC) (course materials)

Health care settings are especially risky places to work, as many of the resources quoted and cited above establish. While we're at it, let's not forget the gun culture, the threat of which permeates every aspect of our lives. I wrote about this on Father's Day. The insanity has to stop.

Nonprofit hospitals: state and local tax authorities are again questioning tax-exemptions

Here's a great article from Kaiser Health News (July 11) on recent controversies over tax exemptions for hospitals. 

Tax-exempt status is not a "right"; it has to be earned. That means -- among other things -- that executive pay can't be excessive (or else the tax authorities will conclude the hospital is being run for private and not public benefit) and there has to be a convincing showing of tangible public benefit (uncompensated charity care, educational programs, research, etc.). 

The Kaiser piece starts with an example of the stakes involved in a typical case:

The public school system [in Pottstown, PA] had to scramble in 2018 when the local hospital, newly purchased, was converted to a tax-exempt nonprofit entity.

The takeover by Tower Health meant the 219-bed Pottstown Hospital no longer had to pay federal and state taxes. It also no longer had to pay local property taxes, taking away more than $900,000 a year from the already underfunded Pottstown School District, school officials said.

The district, about an hour’s drive from Philadelphia, had no choice but to trim expenses. It cut teacher aide positions and eliminated middle school foreign language classes.

“We have less curriculum, less [sic] coaches, less transportation,” said Superintendent Stephen Rodriguez. 

The school system appealed Pottstown Hospital’s new nonprofit status, and earlier this year a state court struck down the facility’s property tax break. It cited the “eye-popping” compensation for multiple Tower Health executives as contrary to how Pennsylvania law defines a charity.  

The court decision, which Tower Health is appealing, stunned the nonprofit hospital industry, which includes roughly 3,000 nongovernment tax-exempt hospitals nationwide.

The nonprofit hospital industry should not have been stunned. A wave of official scepticism over claims of tax-exempt status was ushered in at least 38 years ago with the case of Utah County v. Intermountain Healthcare, Inc., 709 P.2d 265 (Utah 1985). And jurisdiction after jurisdiction has viewed tax-exempt hospitals through a critical lens, often concluding that the hospitals in question were virtually indistinguishable from their for-profit competitors and that the public benefits from the nonprofits were too scant to justify the foregone tax receipts. 

This might be less of a problem if the IRS still required some level of charity care for a hospital to qualify for federal tax exemption, as it did from 1956 to 1969. (Compare Rev. Ruling 56-185 (exempt hospital must be operated "to the extent of its financial ability for those not able to pay for the services rendered") with Rev. Ruling 69-545 ("Revenue Ruling 56-185 is hereby modified to remove therefrom the requirements relating to caring for patients without charge or at rates below cost").) See GAO, Tax Administration: IRS Oversight of Hospitals' Tax-Exempt Status (April 26, 2023).

Obamacare added § 501(r) to the Internal Revenue Code to address certain aspects of the problem created by Rev. Rul 69-545, but it did not change the fundamental rule that a hospital may obtain tax-exempt status without offering a drop of unreimbursed charity care.

For its part, Texas (for once) far exceeds the federal standard by requiring minimum amounts of community benefit -- specifically including unreimbursed charity care and government-sponsored indigent health care -- in order for a hospital to qualify as a nonprofit entity under § 311.045 of the Health & Safety Code and for tax-exempt status as a charity under § 11.1801 of the Tax Code. 

COVID-19: GAO Recommendations Can Help Federal Agencies Better Prepare for Future Public Health Emergencies

There's a general consensus that COVID-19 exposed gaps in this country's state and federal public health infrastructure (in the broadest sense of that word). So when Congress passed the CARES Act, it included a provision for the Government Accountability Office (GAO) to report regularly on the public health and economic effects of the pandemic and the federal response. 

GAO's most recent report was issued yesterday (July 11; quick summary). This report includes the topics of (1) public health preparedness, (2) improper payments and fraud, (3) vulnerable populations, (4) distribution of federal COVID-19 funding, and (5) COVID-19 and the economy. It also includes updates for selected indicators related to public health, the economy, and federal COVID-19 funding and spending.

The report provides a wealth of information on how the federal government's $4.7 trillion pandemic-related expenditures have been spent. It also reviews the major areas in which our response was not up to the task. Finally, the report "includes several key data updates and five enclosures that summarize and highlight standalone reports issued from April 2022 (the date of our last comprehensive report) through April 2023 on the following topics: public health preparedness, improper payments and fraud, vulnerable populations, distribution of federal COVID-19 funding, and COVID-19 and the economy." 

New Advisory Opinion from HHS/OIG

It's OIG Advisory Opinion No. 23-04 (Favorable) (posted July 11), only the fourth AO issued this year, which makes it worth reading. It's long and the fact pattern is somewhat complicated, but the OIG's conclusion is favorable (another reason it's worth reading). On the other hand, as the lengthy recitation of facts suggests, the scope of the question (and the OIG's conclusions) are not likely to have broad applicability. Still, health lawyers everywhere should be up-to-speed on any and all Advisory Opinions, right?

The request was "for an advisory opinion regarding: (i) the use of Requestor’s online health care directory by Federal health care program beneficiaries to search for and book medical appointments with providers and the display of sponsored advertisements to Federal health care program beneficiaries on the directory and certain third-party websites (the “Existing Arrangement”); and (ii) certain proposed changes to the functionality of the directory (the “Proposed Changes,” and together with the Existing Arrangement, the “Arrangement”).

The AO recites the usual boilerplate about the payments being illegal remuneration under the Anti-Kickback Statute, and the concludes that it will exercise its discretion and not seek Civil Monetary Penalties or program exclusions. All's well that ends well.

Cyber attacks against hospitals increase over 2022

Hospital giant HCA announced this morning that data on 11 million patients -- patient names, phone numbers, dates of birth, appointment dates and other personal details -- had been stolen from its system and posted on-line. This comes on the heels of this morning's report in Chief Healthcare Executive that cyber breaches against hospitals in the first half of 2023 approached the number of hospital breaches for all of 2022.

All the more reason for SMU law students to sign up for our one-week August course on cyber breaches!

Surprise medical bills, 'junk' insurance - new proposals from Biden administration

We've been hearing about "surprise medical bills" for years. A colleague of mine had surgery over a decade ago and did everything humanly possible to avoid an unpleasant surprise, including checking with the anesthesiology group to make sure the assigned anesthesiologist would be an "in network" physician -- that is, would be covered by our insurance plan. "No problem," said the group's manager. Come the day of the surgery and a last-minute schedule change for the assigned anesthesiologist led to a substitution in the OR and guess what? The substitute anesthesiologist, despite being under contract with the group, was "out of network." As a result, instead of a bill for anesthesia services in the hundreds of dollars, the actual charge -- 100% of which was my colleague's responsibility -- was in the thousands. Surprise!

NPR and Kaiser Health News produce a monthly feature entitled "Bill of the Month." The stories would be comical if they weren't soul-crushing. 

The stories persist, though, even after January 1, 2022, the effective date of the federal No Surprises Act (part of the previous year's omnibus appropriations bill). And even after reams of analysis and guidance from HHS/CMS, Brookings, the Commonwealth Fund, the Consumer Financial Protection Board, the Department of Labor, the Federal Trade Commission, and of course Kaiser Health News.

So, as reported by Becker's Payer Issues, "the Biden administration is issuing guidance to end the abuse of 'in-network' designation, according to a July 7 White House news release." [President's remarks; fact sheet] 

The White House fact sheet provides impressive detail that describes steps to address the following problem areas:

• "New proposed rules would close loopholes that the previous administration took advantage of that allow companies to offer misleading insurance products that can discriminate based on pre-existing conditions and trick consumers into buying products that provide little or no coverage when they need it most."
• "New guidance will help stop providers from gaming the system by evading the surprise billing rules with creative contractual loopholes that still leave consumers with unexpected costs."
• "For the first time in history, the Consumer Financial Protection Bureau, HHS, and Treasury are collaborating to explore whether health care provider and third-party efforts to encourage consumers to sign up for medical credit cards and loans are operating outside of existing consumer protections and breaking the law."

"Futility" Policy at Mass General Hospital

Thad Pope has alerted us to the publication of a report from within Massachusetts General Hospital, "Declining to Provide or Continue Requested Life-Sustaining Treatment: Experience With a Hospital Resolving Conflict Policy." It's apparently "open access" and is available in HTML as PDF. The report is well worth reading, for a number of reasons:

• Texas has had a statutory policy for 23 years. It is, like the MGH policy, an example of a "due process" approach to resolving disputes over life-sustaining treatment (LST). A hospital policy without statutory protections for participants in the process leaves the hospital legally exposed, which is bound to have an effect on how the process plays out in real time, but it is still possible to learn some valuable lessons from a stand-alone hospital's experience.
• The report covers 20 years' worth of cases that were handled under the MGH policy.
• It demonstrates a pattern that I have experienced in Texas hospitals: The futility policy gets invoked in an almost vanishingly small percentage of cases in which it could be useful.

There are many aspects to futility disputes that are outcome-determinative in terms of the utility of invoking the policy. In other words, details concerning the family dynamics, patient characteristics, and the treatment team's history with patients and surrogates (or lack thereof) may be more important to achieving a satisfactory than the policy itself. The policy, however, does provide some degree of rigor and consistency from patient to patient. Whether the results justify the existence of a policy is very much in the eye of the beholder. The MGH report is a good place to start.

False Claims Act and Circuit Splits

Who doesn't love a good circuit split? It's the stuff dreams are made of. Well, if not dreams, at least law review comments, cert. petitions, amicus briefs, and the occasional grant (or denial) of certiorari.

My friend Rachel Rose is giving a lecture for the Federal Bar Association on July 12 in which she will discuss the False Claims Act in the context of Fed. R. Civ. P. 9(b)'s requirement that fraud be pleaded with particularity. Rachel's starting point is the Supreme Court's denial of certiorari in United States ex rel. Owsley v. Fazzi Associates, Inc. on Oct. 17, 2022. In Owsley the qui tam relator posed this issue for the Court: "Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims." [emphasis added] The district court dismissed the complaint and the Sixth Circuit affirmed, stating: "Owsley's complaint provided few details that would allow the defendants to identify any specific claims—of the hundreds or likely thousands they presumably submitted—that she thinks were fraudulent. For that reason alone her complaint fell short of the requirements of Civil Rule 9(b)."

The cert. petition identified "a longstanding circuit split about how Rule 9(b) works in FCA cases":

The Sixth Circuit is one of five that adopt a more rigid approach to Rule 9(b), requiring relators to plead details of false claims in addition to details of fraudulent schemes. Seven circuits adopt a more flexible approach that allows the presentment of claims to be inferred from circumstances (including from a fraudulent scheme), and does not require details of claims.  [Pet. at 10]

Of course, the Court doesn't give reasons when it denies review. That's what it means to have discretion to control this part of the Court's docket. So we don't know why the Court decided, as it has repeatedly in the past, to punt. 

The issue in Owsley is pretty darned fundamental to all False Claims Act litigation, including those involving health care providers (which appears to be a very large percentage of all False Claims Act litigation). It may be impossible for some (many?) relators to plead the details required to identify specific false claims without discovery, and a strict application of the particularity requirement will result in a dismissal before discovery can begin.