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Department of Justice Imposes Almost 100% Increase in Minimum and Maximum Monetary Penalties Under FCA

On June 30, 2016, the U.S. Department of Justice (“DOJ”) announced an interim final rule almost doubling per-claim penalties under the False Claims Act (“FCA”). The FCA still imposes treble damages for government losses in...more

Supreme Court Update: Whole Woman's Health V. Hellerstedt (15-274)

Greetings, Court Fans! We're back with our penultimate Update of OT15, covering one of the biggest decisions (and certainly the longest) of the term, Whole Woman's Health v. Hellerstedt (15-274). Hellerstedt, the first...more

Supreme Court Decides Whole Woman's Health v. Hellerstedt

On June 27, 2016, the Supreme Court decided Whole Woman’s Health v. Hellerstedt, No. 15-274, holding that both the admitting privileges and the surgical-center requirements of a Texas law regulating abortions place a...more

Universal Health Services v. Escobar

On Thursday of last week, the Supreme Court for the first time addressed the “implied certification” theory of liability under the False Claims Act. The Court ruled unanimously that the theory is valid in certain...more

Courts Continue to Grapple with Data Breach Claims

Our last few blogs have focused on litigation under the Video Privacy Protection Act, including the recent ruling from the 10th Circuit in Yershov v. Gannett Satellite Information Network, Inc., 2016 U.S. App. LEXIS 7791 (1st...more

Federal Court Strikes Down ACA Cost Sharing Reduction Payments

In Depth - A federal district court judge in Washington, DC ruled on May 12, 2016, that Congress did not appropriate funds for the Affordable Care Act’s (ACA) cost-sharing reduction (CSR) subsidies. See United States...more

Supreme Court Update: Zubik V. Burwell (14-1418) And Spokeo V. Robbins (13-339)

While a potential ninth justice made plans to give a high school commencement address, The Eight continued to demonstrate that, without a full complement of justices, this may be the Term Without Blockbusters. (Although, with...more

Class Action Lawsuit Seeks Payments from All Illinois Hospitals for Unconstitutional Tax Exemption

You can add one more lawsuit to the mountain of litigation concerning how and when Illinois hospitals are entitled to a property tax exemption. Earlier this month a limited partnership filed a class action lawsuit naming...more

Court Rejects End-Run of Medicare Appeals Rules

The Indiana Health Department sent a team to the Nightingale home health care and hospice group, in response to complaints. When CMS received the team’s report, it notified Nightingale that its Medicare certification was...more

You Can Pay Your Lawyer: Supreme Court Recognizes Limits on Pretrial Asset Restraints

Before the U.S. Supreme Court’s ruling last week in Luis v. United States, the government could freeze a criminal defendant’s assets before trial even if they bore no connection to the alleged crimes. With the ruling, if the...more

Proposed Enrollment Rule Changes - de Facto Exclusion?

Proposed rules, touted as enhancing the provider enrollment process, would provide CMS with sanction authority that closely parallels the OIG’s exclusion authority. Under the proposed rules, CMS would have expanded bases to...more

Fight the Good Fight Every Moment: Do Recent First Amendment Court Developments Deal a Blow to the Government?

In the last month, the Food and Drug Administration has suffered setbacks relating to off-label promotion oversight. In both cases, one involving a pharmaceutical company and the other a medical device firm and its Chief...more

New Jersey Township Files Challenge to Nonprofit Hospital’s Tax Exemption

On February 19, 2016, the Township of North Bergen in New Jersey filed a complaint challenging the constitutionality of a nonprofit hospital’s – Palisades Medical Center – property tax exemption. The complaint alleges that...more

Eighth Circuit Rejects Hospice’s Fifth Amendment Plea

But not the Fifth Amendment plea you’re thinking of. It was the takings clause, not the self-incrimination clause, that Southeast Arkansas Hospice (SAH) was pleading. And the Eighth Circuit wasn’t buying it....more

Virginia’s Certificate of Public Need Law is Here to Stay (For Now)

Virginia’s Certificate of Public Need (“COPN”) law has been the subject of considerable debate in the General Assembly, in the media, and in federal court. At least for now, the discussion at the judicial level has ended,...more

Five Key Lessons for Business Litigators from National Abortion Federation v. Center for Medical Progress

On February 5, 2016, Morrison & Foerster secured a preliminary injunction on behalf of its client, National Abortion Federation (“NAF”), in National Abortion Federation v. Center for Medical Progress. The firm’s work on this...more

Virginia’s Certificate of Need Laws May Stay, Fourth Circuit Says

On January 21, the U.S. Court of Appeals for the Fourth Circuit upheld Virginia’s Certificate of Need (CON) laws, ruling that the scheme does not illegally discriminate against out-of-state health care providers. See Colon...more

A New Year’s Resolution: Avoid The Rising Tide of Defamation Claims In The Health Care Arena

In college and graduate school, we all had professors that had “non-attribution/academic freedom” policies designed to foster open debate, critical thinking and robust discussion. To state the obvious, we are a long way from...more

Massachusetts Court: Patients Have Standing to Sue for Data Breach Based on Data Exposure Alone

A Massachusetts Superior Court judge held that a plaintiff has standing to sue for money damages based on the mere exposure of plaintiff’s private information in an alleged data breach. The court concluded that the plaintiff...more

Health Update - December 2015

Lessons from Hawaii's Trailblazing ACA 1332 Waiver Proposal - Editor's Note: On September 9, Hawaii became the first state to post a draft 1332 waiver proposal for public comment. While Hawaii's proposal focuses on the...more

Second Circuit Reminds Healthcare Providers to Seek Relief from Insurance Companies Under Their Own Contracts, Not the Insureds’...

In Rojas v. Cigna Health and Life Ins. Co., 793 F.3d 253, 258 (2d Cir. 2015), the Second Circuit joined several other circuits in holding that “healthcare providers are not ‘beneficiaries’ of an ERISA welfare plan by virtue...more

PSQIA held to preempt florida constitutional right to access adverse medical incident reports

On October 28, 2015, the District Court of Appeal in the First District of Florida held in Southern Baptist Hospital, Inc. v. Jean Charles, Jr. et al. that the federal Patient Safety and Quality Improvement Act of 2005...more

Complicit in Sin: the Burden of the Opt-Out Form

Does filling out a form burden religious beliefs? We’re about to find out. On November 6, the Supreme Court agreed to review a group of seven cases (led by No. 14-1418, Zubik v. Burwell) brought by religious non-profit...more

Supreme Court Update: Mullenix V. Luna (14-1143) And Order List

Was it Jean-Baptiste Alphonse Karr or Jon Bon Jovi who remarked, "The more things change, the more they stay the same"? (They both did!) Over the last few terms, we've encountered a few steady themes in the Supreme Court's...more

Litigation Alert: Federal Circuit’s Ariosa Decision, Good Chance for Rehearing En Banc

In June of this year, the Federal Circuit panel in Ariosa Diagnostics, Inc. v. Sequenom, Inc. invalidated a patent on the grounds of patent-ineligible subject matter. 788 F.3d 1371 (Fed. Cir. 2015). While the case is one of...more

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