PPACA Impact and Opportunities : Health Care Lawyer & Attorney : Epstein Becker Green Law Firm : Insurance & Costs : Health Reform Musings Blog

Our colleagues at Epstein Becker Green have issued a client alert: "U.S. Supreme Court Opinion Addresses Availability of State-Action Antitrust Immunity," by Patricia M. Wagner, Ross K. Friedberg, and Daniel C. Fundakowski.

Following is an excerpt:

On February 19, 2013, in FTC v. Phoebe Putney Health System, Inc., a case that highlights vigorous enforcement activities by the Federal Trade Commission (“FTC”) in the health care arena, the Supreme Court of the United States issued a unanimous opinion (“Opinion”) that overturned a ruling by the U.S. Court of Appeals for the Eleventh Circuit and limited the invocation of the state-action doctrine where state laws grant government authorities general corporate powers. This new decision supports the FTC’s position that it has the authority to pursue a challenge to the hospital acquisition at issue in the case. Although the Opinion addressed the specific legislative powers granted to a hospital authority under state legislation, the Opinion will likely impact judicial interpretation of other state legislation that purports to provide parties with immunity from the federal antitrust laws, such as state hospital cooperation acts, and similar types of legislation being created to allow cooperation and integration of hospital and provider systems.

Read the full alert here.

by Lynn Shapiro Snyder and Shawn M. Gilman

Speculation abounds with respect to the decision that states will make on the issue of whether to expand Medicaid coverage under the Affordable Care Act, now that the Supreme Court of the United States has made the option to abstain a meaningful one. This health reform alert highlights some key factors that may influence a state's decision on whether to implement such an expansion.

Read the full alert here

Danielle Steele, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green's Washington, DC, office, contributed significantly to the preparation of this alert.

This health reform alert is a revised version of an article published in the Aug. 22, 2012, issue of the Health Insurance Report, a publication of Bloomberg BNA, and is being reprinted here with permission.

by Joan A. Disler, Michelle Capezza, and Gretchen Harders

Now that the Supreme Court of the United States has upheld essentially all of the provisions of the Obama administration’s Affordable Care Act (“ACA”), employers are faced with looming deadlines to bring their group health plans into compliance with the ACA’s numerous new requirements. We have prepared for employers a timeline of the highlights of the upcoming deadlines for compliance with the ACA that apply to non-grandfathered group health plans.

Click here to access a copy of the timeline (PDF).

Stuart Gerson, a Member of the Firm in the Litigation and Health Care and Life Sciences practices at Epstein Becker Green, authored an article titled "The Supreme Court Has Decided, but Can America Afford the Affordable Care Act?"

Following is an excerpt:

By now, every American who pays any attention to the news is aware that on the last day of its now concluded term, the U.S. Supreme Court, with its June 28 decision in National Federation of Independent Business v. Sebelius, U.S., No. 11-393, 6/28/12, has upheld essentially all of the Obama Administration's Affordable Care Act (ACA), and did so through an unusual series of opinions, with Chief Justice John G. Roberts Jr. acting essentially as a majority of one. The two controlling holdings are neither unprecedented nor difficult to understand. How these holdings came to control, however, while sensible, was largely unpredicted and leaves interesting ramifications both for the Supreme Court and for the state of health care in the United States.

By a 5-4 majority, led by the chief justice (with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan concurring separately), the court upheld the most controversial and essential provision of the Affordable Care Act—the ‘‘individual mandate''—not under the Commerce Clause, as its proponents primarily urged, but under the tax power—not as a requirement to buy health insurance, but as a tax if they don't.

Download the Full Article (PDF Format)

by Dale C. Van Demark

Not by much – but perhaps in a unique way.

The increased pace of hospital and health system merger activity we’ve seen in the marketplace has had little to do with the Patient Protection and Affordable Care Act (the “ACA”). Rather, broader market conditions, some of which are affected by the ACA, have been driving hospital market consolidation. The financial crisis, which negatively impacted many hospitals’ ability to raise capital or maintain their credit ratings, and the downturn in the broader economy, which resulted in fewer people seeking care, have created the primary incentive for hospital consolidation.

In addition, just as capital has become scarce and business has slowed, infrastructure upgrades are becoming critical. The push for “meaningful use” of information technology and increased emphasis on quality reporting are creating more and more budget demands. Further, staffing shortages and increasing government investigations have created more financial pressure.

Read the full post on the Hospital Deal Blog

On Monday, July 2, 2012, Epstein Becker Green conducted a webinar titled "Decision 2012: What's In, What's Out, and What's Next?" examining the monumental decision (PDF) issued by the Supreme Court of the United States on the Patient Protection and Affordable Care Act.

This webinar analyzed the decision and its implications for the states, the health care and life sciences industry, and employers. It also addressed potential congressional activity and the decision's impact on the presidential election.

Click here to view the recording of this webinar (WMV file)

by Stuart M. Gerson

By now, every American who pays any attention to the news is aware that the Supreme Court of the United States has upheld essentially all of the Obama administration's Affordable Care Act. We have posted a copy of the lengthy opinion, concurrence, and dissent on our website. For now, we should be focusing on what the case of National Federation of Independent Business v. Sebelius actually will cause to occur.

Read the full alert here

by Jay Gerzog, Dale Van Demark, Tamar Rosenberg, and Dawn Welch

Is it possible that the U.S. Department of the Treasury (“Treasury”) knows something we do not about the pending U.S. Supreme Court decision on PPACA?

Probably not, but that has not stopped the Treasury and Internal Revenue Service (“IRS”) from issuing proposed regulations on June 26, 2012, with respect to three of the four new requirements for tax exemption of hospitals imposed by PPACA.

With the adoption of PPACA, Congress took its first concrete step toward toughening the standard for tax exemption in decades. For many years, members of Congress have questioned the justification for the tax exemption of hospitals, decrying the lack of a charity care mandate and pointing to commensurate levels of charity care provided by proprietary hospitals.

In PPACA, Congress vented its concerns with new requirements for tax exemption . . . which do not include a charity care mandate.

Instead, Congress created a number of operational requirements designed to protect against perceived abuses related to billing and collections, and designed to focus hospitals more intently on the health needs of the communities served. With respect to the latter, Congress mandated that hospitals conduct periodic community health needs assessments and adopt strategies to address those needs. In July 2011, the Treasury and IRS issued Notice 2011-52 (2011-30 IRB 60) (July 8, 2011), identifying approaches to the community health needs assessment requirement and seeking comments.

Now, the Treasury and IRS have addressed the remaining three new requirements with proposed regulations. The three new requirements are that hospitals must:

• establish written financial assistance policies and emergency medical care policies;
• limit the amounts charged for emergency and other medically necessary care provided to individuals eligible for assistance under financial assistance policies to no more than the amounts generally billed to individuals who have insurance coverage for such care; and
• make reasonable efforts to determine whether an individual is eligible for financial assistance before engaging in “extraordinary collection actions.”

The proposed regulations provide some useful insight into the direction that the government is headed with respect to these requirements. In particular, the proposed regulations provide definitions for “extraordinary collection actions” and suggest solutions to some interesting questions, such as the application of the requirements to multi-hospital systems.

The proposed regulations also request comments or reserve judgment in a number of areas, including the consequences of failing to comply with the requirements and whether certain actions should be considered “extraordinary collection actions.”

Let's wait to see what happens with the Supreme Court's ruling on whether these regulations will even be applicable.

by Stuart M. Gerson

The three days of arguments about the constitutionality of the Patient Protection and Affordable Care Act are complete. The Justices of the Supreme Court of the United States have conducted their post-argument conference and are now turning their attention to the drafting and the discussions that will lead to a majority opinion and, likely, several dissents and concurrences. The Court's decision should be issued before the end of June. Health care companies and employers, like the rest of the population, await the ultimate decision. However, there are several matters that can be identified in the short run.

Read the full alert here