Healthcare attorneys will be busy helping clients comply with or fight evolving precedents on issues ranging from abortion to drug pricing and the False Claims Act in the new year.
Meanwhile, the legal community is still reeling from a pivotal year for Supreme Court precedent, where justices struck down the constitutional right to abortion, weakened the administrative state and raised the bar for criminal prosecution against doctors prescribing opioids.
Bloomberg Law spoke with healthcare industry experts to learn more about the biggest cases they’ll be watching in 2023. ‘How Far the Supreme Court Is Willing to Go’ to Overturn Established Precedent ‘Will Have impacting how we respond to everything from global climate change to reproductive issues. from health to public health services to responses to public health emergencies in the future,” said James Hodge, a professor at Arizona State University’s Sandra Day O’Connor College of Law.
Abortion
Debates on reproductive health care will enter the new year, as it is an important milestone Dobbs decision which annulled Roe v. Wade creates legal questions that the High Court has not yet answered.
Abortion rights advocates will likely sue on grounds of gender equality, while anti-abortion groups could file suit aimed at forcing the Supreme Court to reconsider fetal personhood, experts said health care.
Meanwhile, the Biden administration’s enforcement of a mechanism requiring health care providers to perform abortions in medical emergencies is already underway. sharing district court judges.
The Biden administration is “trying to reassure doctors who are working in emergency departments” and trying to comply with the Emergency Medical Treatment and Labor Act, said Allison Hoffman, professor and assistant dean at the faculty of Carey Law from the University of Pennsylvania. The decision in Texas against the Biden administration “leaves a lot of ambiguity on the ground” about whether to adhere to federal law or state law, she said.
This issue will likely end up before the Supreme Court, Hoffman said.
The cases are United States v. State of IdahoD. Idaho, No. 1:22-cv-00329 and State of Texas v. BecerraND Texas, No. 5:22-cv-00185.
Inflation Reduction Act
The Inflation Reduction Act, signed into law in August, will allow CMS to <-bsp-article-citation state="{"cms.site.owner":{"_ref":"00000166-e5a9-d785-a767-fffdcac50000 ","_type":"00000151-acf5-d1ce-a159-bff728d6001e"},"cms.content.publishDate":1671202186834,"cms.content.publishUser":{"_ref":"00000172-566c-deba-a5fb -de6f57bd0000","_type":"00000151-acf5-d1ce-a159-bff728d8001b"},"cms.content.updateDate":1671202186834,"cms.content.updateUser":{"_ref":"00000172-566c-deba -a5fb-de6f57bd0000","_type":"00000151-acf5-d1ce-a159-bff728d8001b"},"articleCitation":{"linkArticle":{"_ref":"00000183-aedf-dab8-ad8b-eeffb1eb0001"," _type": "00000151-acf5-d1ce-a159-bff728d50010"}, _id":"00000185-1b69-da77-a7bd-7f79917b0000","_type":"00000160-bca2-df03-a1ef-bcef37350000"}">negoce-bsp-article-citation> prescription drug prices for the first time in 2026.
The pharmaceutical industry is strongly opposed to the law, arguing that it would hamper drug development. HHS has not yet initiated regulations implementing the IRA, so drugmakers still cannot prosecute the agency on the law.
“If these provisions have any teeth, the pharmaceutical industry will attempt to overturn them either through legislative lobbying, administrative lobbying, or, if all else fails, through the courts,” said Michael Cannon, director of health policy studies at the Cato Institute. a libertarian think tank.
False Claims Law
The Supreme Court heard arguments in December on the extent to which the government can intervene in False Claims Act disputes. Jesse Polansky sued Executive Health Resources Inc., alleging he defrauded Medicare. The key question the justices must decide is whether the government can intervene at any time to stop a whistleblower’s prosecution.
The case is United States, ex rel. Jesse Polansky Against Executive Health ResourcesUnited States, No. 21-1052.
The Supreme Court will also decide whether to hear two cases that could clarify “what it means to knowingly violate the law” under the False Claims Act, Hoffman said.
In one case, a whistleblower complaints that
In another, a whistleblower said that
“There’s a lot of fraud and abuse of all kinds” in health care, and the False Claims Act is a key tool the government has to reduce that behavior, Hoffman said.
The cases are United States, ex rel. Thomas Proctor v. Safeway, Inc.US, No. 22-111 and Troy Olhausen v. Arriva Medical, LLCUnited States, No. 22-374.
Coverage of preventive services
A challenge to the Affordable Care Act’s preventive services mandate could have broader legal implications for how agencies operate, Hoffman said.
Braidwood Management Inc. request The court blocked the mandate, arguing that being required to cover HIV prevention drugs violates the company’s religious freedom.
A federal judge in Texas governed that the preventive services mandate violates the Appointments Clause of the U.S. Constitution because members of a task force, who are not subject to Senate confirmation, had chosen covered preventive services.
If the ruling is upheld by higher courts, “it could prevent Congress from having the power to look to experts on scientific issues,” Hoffman said. “Can you imagine if Congress had to decide which preventive services should be covered or not?
The courts’ decision could end up having a disproportionate impact on people who rely on pre-exposure prophylaxis to prevent HIV.
But “even if there’s no mandate, many employers will offer this type of coverage anyway,” Cannon said.
Civil rights claims
The Supreme Court heard oral arguments in November for a case that will decide whether Americans have a civil right to sue federally funded public entities. Ivanka Talevski for follow-up the Health and Hospital Corporation of Marion County for allegedly treating, restraining and transferring her late husband, who suffered from dementia, without her consent.
The key issue being debated by the justices is whether the federal nursing home reform law allows citizens to sue state-run facilities under Section 1983, a civil rights law. Congress enacted the FNHRA using its spending clause authority, allowing the government to set standards for health care facilities funded by the Centers for Medicare & Medicaid Services.
If the justices agree that the FNHRA confers enforceable civil rights through private suits under Section 1983, “it will open the door to more litigation against specific health care entities, like nursing facilities , who are doing their best to meet the demands of Congress,” Hodge said.
If the answer is no, “that has huge ramifications for health care enforcement, because it then falls to the Department of Health and Human Services to enforce Medicaid requirements,” said Carmel Shachar, director Executive Director of the Petrie-Flom Center. for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “They just don’t have the staff to do that.”
The case is Marion County Health and Hospital Corporation v. Ivanka TalevskiUnited States, No. 21-806.
