Featured Industry: Health Care
Spotlight on Best Practices, Litigation, Antitrust, and Tax for Health Care Companies

Crowell & Moring LLP is pleased to release its “2016 Litigation & Regulatory Forecasts: What Corporate Counsel Need to Know for the Coming Year.” The reports examine the trends and developments that will impact health care companies and other corporations in the coming year—from the last year of the Obama administration to how corporate litigation strategy is transforming from the inside out. This year will bring remarkable change for companies, as market disruptions and the speed of innovation transform industries like never before, and the litigation and regulatory environments in which they operate are keeping pace.

Continue Reading Crowell & Moring’s 2016 Litigation & Regulatory Forecasts: What Corporate Counsel Need to Know for the Coming Year

Does a professional licensing board have the ability to discipline licensees without antitrust trouble?  Can a state medical board require patients to see a doctor in person before being treated remotely?  And can a municipal taxicab commission require private transportation companies to conduct background checks?

In the aftermath of the Supreme Court’s ruling in N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101 (2015), these are just some of the questions that state regulatory boards may have to answer in court – at least if they do not heed the Federal Trade Commission staff’s (“FTC Staff”) recently published guidance on how state boards can protect themselves from antitrust problems.

In Dental Examiners, the Supreme Court held that state regulatory boards are not necessarily exempt from liability under federal antitrust laws merely due to their status as state entities – at least if the board is “controlled by market participants.”  These state regulatory boards are, instead, only exempt from federal antitrust laws if the board’s anticompetitive conduct is clearly articulated in state policy and “actively supervised” by the state.  The new guidance addresses only this second, “actively supervised,” prong of the “state action” doctrine, which was the focus of the Dental Examiners decision.

Continue Reading FTC Staff to State Regulatory Boards: Maintaining Protection from Antitrust Scrutiny

On February 17, 2015, the largest health care provider in Massachusetts, the non-profit Partners Healthcare System, Inc. (Partners), dropped its bid to acquire South Shore Hospital based in South Weymouth, and the Commonwealth of Massachusetts dropped its antitrust suit that had challenged the acquisition.[1] Whether state or federal regulators will permit Partners’s proposed acquisition of Hallmark Health Corp. (Hallmark)’s two acute care hospital remains to be seen.

The decision by Partners comes a month after a Judge rejected a consent judgment that Partners and former Attorney General of Massachusetts Martha Coakley proposed regarding Partners’s agreement to acquire three acute care hospitals in the greater Boston area.[2] Less than a year ago, on June 24, 2014, the Attorney General of Massachusetts had simultaneously filed a complaint and a proposed consent judgment with Partners regarding Partners’s acquisition of South Shore and two hospitals operated by Hallmark.

Continue Reading Partners Halt Acquisition of Boston Area Hospital After Court’s Rejection of Consent Judgment

This year Crowell & Moring’s Healthcare Ounce of Prevention Seminar, (HOOPS), will focus on important legal and regulatory developments and their impact on the healthcare industry. Join us on October 27th and October 28th in Washington, DC as our healthcare attorneys and outside speakers share their perspectives on the latest developments in areas of interest including:

  • Providers becoming Payors and Payors becoming Providers – Key Legal Considerations
  • False Claims Act and Government Investigations: How to Survive a CID
  • Hot Issues in Payor/Provider Litigation
  • Changing Landscape of Healthcare: A Panel Discussion
  • Focus on Fraud, Waste and Abuse: Audits, Enrollment and Certification
  • Key Issues in Advertising and Marketing in the Healthcare Industry
  • Medicare Advantage/Prescription Drug Plan Developments and Changes
  • “Don’t Sign that Yet”: Tools and Tips for Identifying and Avoiding Common Traps in Commercial Contracting.
  • Exchanges, Mental Health Parity and Addiction Equity Act and More
  • Antitrust in an Era of Healthcare Reform
  • New Liability Trends in Data Privacy and Security
  • Recovery Action Scene

HOOPS 2014 is a complimentary event.

Please click here to register and to see the complete agenda.

On March 20-21, 2014, the Federal Trade Commission (FTC) held a public workshop, “Examining Health Care Competition,” to discuss trends and developments in the health care industry that may affect competition. Specifically, the workshop used five panels of industry participants and experts to study professional regulation of health care providers, innovations in health care delivery, advancements in health care technology, measuring and assessing health care quality, and price transparency of health care services.

The following are key takeaways from the workshop:

  • The panel on innovations in health care delivery focused its discussion on the implementation of regulatory and policy options regarding telehealth services and retail clinics, such as “minute clinics.” The panel noted that new forms of health care delivery can improve access and care, while decreasing spending. But new delivery options also face significant obstacles, like state licensing requirements that hamper efforts to help patients across state lines.
  • Some industry participants claimed that electronic health records (EHRs) make it easier for hospitals and health technology companies to limit competition improperly. Though EHRs may lower costs and improve quality by improving care coordination, EHRs might also create barriers to competition by forcing hospitals and physicians to deal with only one vendor or Accountable Care Organization (ACO). For example, an EHR vendor may charge a premium to send data out-of-network or to a new vendor.
  • One panel discussed the delicate balance between increased price transparency and antitrust concerns. Meaningful price transparency may assist consumers, payors, and providers increase quality of care while controlling costs by leading to more informed consumer decisions and more competitive market prices. But it could also lead to collusion among payors or providers.

The workshop reinforces that competition in the health care industry is a major focus for the FTC at this time. The investigation into potential antitrust issues in health care supplements the recent, vigorous enforcement of the antitrust laws in this area by the FTC. And that vigorous enforcement shows no signs of abating.

The FTC will accept public comments regarding the workshop until April 30, 2014.