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Is Fair Market Value Dispositive in an Anti-Kickback Statute Case?

On the heels of the Sixth Circuit’s recent decision in Martin v. Hathaway, previously discussed on Health Law Observer, a critical issue in that case, i.e., the meaning of the term “remuneration” for purposes of the federal...more

Supreme Court Grants Government Broad Dismissal Rights in Qui Tam Cases

The U.S. Supreme Court, in an 8-1 decision written by Justice Kagan, held on June 16 that the United States (“Government”), having initially chosen not to intervene in a False Claims Act (“FCA”) qui tam case, but having...more

Supreme Court Rules Knowledge and Subjective Belief Are Key for False Claims Act Liability

In a unanimous decision Thrsday, the U.S. Supreme Court, in an opinion written by Justice Thomas, ruled that the False Claims Act’s (“FCA”) scienter element refers to a defendant’s knowledge and subjective beliefs — not to...more

Federal Court Grants Medical Center’s Request for Transfer of FTC Suit

As explained in prior posts, the Federal Trade Commission (“FTC”) filed suit in the U.S. District Court for the District of Columbia seeking to enjoin Louisiana Children’s Medical Center (“LCMC”) from continuing to integrate...more

Sixth Circuit Denies Rehearing in Hospital-Physician Kickback Case

In a prior blog post, we discussed U.S. ex. rel. Shannon Martin, M.D. v. Darren Hathaway, M.D. et al, a Sixth Circuit case involving the questions (1) whether a hospital’s decision not to hire an ophthalmologist (Dr. Martin)...more

FTC Sues to Compel State-Approved Hospital Acquisitions to Comply with Hart-Scott-Rodino Act Requirements

Last Thursday, the Federal Trade Commission (“FTC”) took the step of filing suit in federal court asserting that parties to a hospital acquisition who had obtained a Certificate of Public Advantage (“COPA”) from their state...more

Supreme Court Unanimously Rules in Favor of Axon: Challenges to Constitutionality of FTC Structure/Process May Proceed in Federal...

In previous posts we discussed Axon Enterprise, Inc. v. Federal Trade Commission, a case then being considered by the U.S. Supreme Court involving the question of whether parties seeking to undertake a transaction subject to...more

Two Recent Federal Court Cases Tackle Three Critical Components of the Anti-Kickback Statute

Two recently decided federal court cases hone in on the proper interpretation and application of three critical components of the Anti-Kickback Statute (“AKS”), namely: •the requirement that a violation of the AKS must...more

Public Disclosure Bar Applies – Court Dismisses Whistleblower’s False Claims Complaint

A recent U.S. District Court decision provides a good example of how federal courts will apply the public disclosure/original source rules in whistleblower cases alleging that health care providers violated the False Claims...more

U.S. DOJ Announces Withdrawal of Health Care Market Policy Statements

Last Friday, Feb. 3, the U.S. Department of Justice (“DOJ”) issued a press release in which it announced the withdrawal of what it described as three “outdated” antitrust policy statements related to enforcement in health...more

FTC’s Proposed Non-Compete Ban: What Prior Decisions and Guidance May Reveal About the Impact on Nonprofit Healthcare Providers

In a prior post, we discussed the FTC’s recently-issued Proposed Rule that would, if finalized in its current form, and with only limited exceptions, prohibit employers from using non-compete clauses. With respect the...more

FTC Proposed Non-Compete Ban: Impact on Nonprofit Hospitals and Nonprofit Affiliates

As has been extensively reported, on January 5 the Federal Trade Commission (“FTC”) proposed a rule (the “Proposed Rule”) that would, with only limited exceptions, prohibit employers from using non-compete clauses. More...more

Federal Case Details How a Relator-Whistleblower Satisfies the False Claims Act’s “Original Source” Requirement

An important threshold question in qui tam cases under the False Claims Act is whether the relator-whistleblower is the original source of the information forming the basis for the claim. This is because qui tam actions under...more

Continued Spotlight on Cross-Market Hospital Mergers

Mergers between competitor hospitals in the same geographic market have been routinely scrutinized and often challenged by the Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”). Cross-market mergers...more

The Supreme Court Hears Oral Argument in Axon v. FTC

In a prior post, we discussed Axon v. Federal Trade Commission and its core question presented to the U.S. Supreme Court (Court): whether parties seeking to undertake a transaction subject to FTC review and seeking to...more

Challenging the Constitutionality of the FTC’s Fundamental Structure/Processes

Supreme Court to Hear Oral Arguments in Axon Enterprises- With the October 2022 term of the U.S. Supreme Court (“Court”) now underway, health care providers and others in the health care industry contemplating merger and...more

COPA-Like Agreements in Pennsylvania and COPA Rules in Neighboring States

In the first part of this article, we discussed the Federal Trade Commission’s (“FTC”) recently issued staff policy paper strongly urging states to avoid using Certificates of Public Advantage (“COPA”) which seek to immunize...more

Federal Trade Commission Policy Paper Takes Hard Stance Against Certificates of Public Advantage

Background- Many states have enacted Certificate of Public Advantage (“COPA”) laws which seek to permit hospital mergers that might otherwise have been challenged by the Federal Trade Commission (“FTC”) and found to violate...more

Possible Changes to the 2010 Merger Guidelines Regarding Pro-Competitive Efficiencies

In the recent hospital merger cases successfully challenged by the FTC (whether via the parties calling off the merger or losing in federal court), the merging parties have argued that, while the merger would not be likely to...more

Tying, Tiering, Steering and Gag Clause Issues Front and Center Again

We previously reported on several cases involving successful antitrust challenges to proposed hospital mergers involving Hackensack Meridian Health System and Englewood Hospital in Bergen County New Jersey; RWJ Barnabas...more

FTC Reemphasizes Antitrust Concerns as New Jersey and Utah Health Systems Abandon Proposed Mergers

As reported in our June 13, 2022 blog post, the Federal Trade Commission (FTC) filed complaints on June 2 seeking to block the proposed merger of RWJBarnabas Health and Saint Peter’s Healthcare System in New Jersey and the...more

FTC Seeks to Block Hospital “Mergers” in New Jersey and Utah

Just eight weeks after Hackensack Meridian Health System and Englewood Healthcare Foundation notified the Federal Trade Commission (“FTC”) that they were calling off their proposed merger following the Third Circuit Court of...more

OIG Anti-Kickback Opinion Examines Physician Ownership of Medical Device Manufacturer and Referrals

The Office of Inspector General (“OIG”) in the Department of Health and Human Services has longstanding concerns regarding physician-owned entities that derive revenue from selling items ordered by their physician owners for...more

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