Category: News Feeds

The American Hospital Association, along with several other organizations, filed an emergency stay of enforcement motion to prevent the Department of Health and Human Services’ hospital price transparency rule from going into effect Jan. 1. The rule requires each hospital operating in the U.S. to make public pricing information, including the prices they negotiate with commercial health insurers.

Last week, the Centers for Medicare and Medicaid issued a bulletin announcing its plans to audit a sample of hospitals for compliance with the rule starting in January.

The hospital groups filed the emergency motion Monday in response to the bulletin, arguing that enforcing the rule will “force overburdened hospitals to divert resources that hospitals desperately need to respond to the surge of Covid-19 cases.”

If the rule takes effect next month, hospitals will have to spend time on compliance rather than focusing on other pressing issues, including expanding bed capacity, planning for the vaccine rollout and completing virus reporting requirements, the groups argue in the motion filed in United States Court of Appeals for the District of Columbia Circuit.

“Whatever the public’s interest in hospital price transparency, it pales in comparison to the immediate public interest in an effective coronavirus response,” the emergency motion states.

Further, there is a lack of clarity around how to implement the price transparency rule’s requirements, the hospital groups claim.

There are monetary penalties for failing to comply with the rule. In cases of non-compliance, CMS can issue a warning, request a corrective action plan or impose a penalty of $300 per day if the hospital fails to submit the action plan or comply with its requirements.

The organizations that filed the motion, which include the Association of American Medical Colleges, Federation of American Hospitals and Memorial Community Hospital & Health System in Blair, Nebraska, are requesting that the court intervene by Dec. 31 to block the rule’s enforcement.

The hospital price transparency rule was finalized in November 2019, and it mandates that hospitals provide pricing information online about the items and services they offer in two ways: as a comprehensive machine-readable file and in a display of shoppable services in a consumer-friendly format.

The American Hospital Association and other hospital groups filed a lawsuit challenging the rule after it was finalized, but earlier this year a federal judge ruled against them. The hospital groups filed an appeal, and a panel of appellate judges heard oral arguments in October, according to Healthcare Dive. The appellate judges have not yet issued a final ruling.

The American Hospital Association has also sent a letter to the incoming administration of President-elect Joe Biden asking that they “exercise enforcement discretion” with respect to the hospital price transparency rule.

Photo credit: zimmytws, Getty Images

I think you tend to look from 30,000 feet, say, more often than you did. On the other hand, this great wisdom you’re supposed to acquire over time does quite often express itself in something that sounds as if it came out of a fortune cookie. So there are pluses and minuses.

Whether it’s always to the left, I don’t know. It’s very hard to say.

— Justice Stephen Breyer, expounding upon whether judges and justices get more liberal as they get older, during an interview with Slate’s Dahlia Lithwick. “[T]he court changes very, very, very slowly over long periods of time,” Breyer later added. “That’s what I think, because it’s the legal view and this sort of jurisprudential view: What is the country like? What’s this Constitution about? What is the court about? What is its proper role? Those questions will never be answered.”

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Way back at the beginning of December, you may recall that Donald Trump intervened in the laughable and quickly rejected lawsuit from Texas seeking to invalidate election results Ken Paxton didn’t like. Trump was represented in that intervention by a Chapman University law professor named John Eastman.

Eastman’s prior claim to fame was writing an op-ed in Newsweek last August arguing that Kamala Harris is not really a U.S. citizen. This was widely viewed as racist — because it is — and Newsweek had to tack a long semi-apology onto the piece saying they were shocked, shocked that the piece was being “used to perpetuate racism and xenophobia.”

I was less shocked than Newsweek’s editors, and not just because I was not born yesterday. As it happens, I’ve seen versions of Eastman’s argument before, because the virulently anti-immigrant part of the right wing has been trying unsuccessfully to promote it for years. I first ran across it in an amicus brief in a largely unrelated case about American Samoa, filed by the Immigration Reform Law Institute, the legal arm of a cluster of anti-immigrant organizations that includes the Center for Immigration Studies. It’s been promoted in at least one other op-ed, taken down here by Elie Mystal. It’s probably the basis for Trump’s recent chatter about ending birthright citizenship by executive order.

And, as a matter of law, it is hot garbage. Because in order to believe it, you have to believe that the Fourteenth Amendment does not mean what it says, and then disregard a Supreme Court precedent that directly says the children of immigrants are citizens. I really think the right wing, circa 2020, is incapable of feeling embarrassment.

The Fourteenth Amendment to the United States says that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Eastman concedes that in practice, the U.S. confers citizenship at birth, but claims that the “subject to the jurisdiction thereof” clause makes this legally incorrect. I would like to illuminate exactly why, but I find I cannot. Eastman says that Harris and others in her shoes are not subject to the complete jurisdiction of the U.S., but the closest he comes to explaining why is saying Harris owed allegiance to her parents’ countries if they were not naturalized citizens at her birth.

Eastman then goes on to say that his position is not contradicted by the Supreme Court’s holding in U.S. v. Wong Kim Ark, which said a native-born son of Chinese immigrants was a citizen. Sure, the case directly said “The fourteenth amendment … includ[es] all children here born of resident aliens,” but Eastman says this was dicta. He doesn’t provide any evidence for that, but who are you going to believe, a white man or your own eyes? (You actually don’t need to choose, because another white man, UCLA con law professor Professor Eugene Volokh, rebutted Eastman.)

The other arguments for this belief are equally bad. The amicus brief in the American Samoa case is mostly aimed at the children of undocumented immigrants, so it doesn’t apply to Harris, but does make the delightfully self-contradictory argument that such people aren’t subject to the jurisdiction of the United States because they can be deported. The op-ed Mystal was responding to implies that children of immigrants owe an allegiance to their parents’ countries, which is incorrect as to countries that don’t confer citizenship based on lineage, and appears to rely on a word the author inserted into an 1866 Congressional debate.

The Obama era taught me that when people passionately defend arguments that are obviously nonsense, it’s time to look for the racism. But in the course of writing this, I did find evidence for another explanation. Eastman’s bio at Chapman notes that he took time off from the university to run for California Attorney General in 2010. He didn’t win that race, or even get past the primary, but guess who did?

Kamala Harris.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

Ed. note: A version of this post was originally published on December 24, 2015. We republish it today as a reminder that even though Christmas will be different in 2020, a little legalese can still make the holiday merry and bright.

Almost everyone is familiar with Clement Clarke Moore’s well-known holiday poem, ‘Twas the Night Before Christmas. Check out this must-see legal markup of the Christmas classic.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The outgoing president of the United States may well be in need of a new bank upon departing the White House. But he’s definitely going to need a new banker.

* Netflix has defeated libel claims related to The Laundromat, a film about the “Panama Papers.” Maybe the judge was moved by Meryl Streep’s performance… [Hollywood Reporter]

* A lawsuit has been filed over alleged abuse of migrant women in detention centers run by ICE. [NBC News]

* A typo in a Georgia election lawsuit says the lawyer verified the allegations under “plenty of perjury” instead of “penalty of perjury.” [ABA Journal]

* Judges of the Southern District of New York exercised a rarely used power to keep the acting U.S. Attorney in Manhattan on the job until Joe Biden is inaugurated. [New York Times]

* A report alleges that some law firms took Payroll Protection Program money and banked the cash rather than used it on payroll. Don’t think anyone should be surprised… [ABA Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

New Technology Without Adoption Is Worse Than Doing Nothing

New Technology Without Adoption Is Worse Than Doing Nothing

Rohit Parekh – Matter365

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to a survey of more than 1,200 partners across law firms of all sizes conducted by Major, Lindsey & Africa, what percentage of equity partners reported they expect their compensation to be affected by COVID?

Hint: The survey was conducted between July and September of this year.

See the answer on the next page.

Over the past decade, the role of legal operations has grown in strategic importance by embracing digital transformation. Legal operations professionals have successfully leveraged digital technologies to bring efficiency and innovation to corporate legal processes. Their efforts have played a critical role in guiding organizations through the disruption and uncertainty associated with the Covid pandemic. As organizations look to the future, legal operations will play a vital role in delivering efficiencies in the delivery of legal services.

According to the 2020 Annual Law Department Operations Survey, the greatest challenge legal operations professionals are currently facing is around delivering measurable business value. The top challenge that survey respondents expect to face over the next three years is “cost containment and savings or managing the budget.” In light of this, selecting technology partners that will deliver what they promise and provide value to the organization has become even more important.

One of the core legal technologies that legal departments invest in to improve efficiency, productivity, and security is document and email management. 37% of the survey respondents will evaluate or implement this solution for their in-house teams in 2021. With so many competing priorities and options in the market, it can be difficult to get started. Here are a few questions that legal operations should ask to ensure they are picking the right document and email management solution for their in-house teams.

Top Questions When Evaluating a DMS:

How does legal document management differ from enterprise solutions?

Modern document management solutions are designed to meet the specific productivity, collaboration, and security requirements of legal professionals. For example, legal DMS solutions organize information by matter, with metadata and security inheritance so that information can be tagged appropriately.

Can your solution help me manage all my emails as well as my documents?

A modern DMS should enable legal professionals to manage their emails as effectively as documents, in the same folder structures and workspaces. The solution should provide a single repository for all communications and documents relating to a matter, enabling professionals to quickly find the information they need.

How does your DMS help improve my ability to search documents?

Finding and applying the right information at the right time is critically important for any legal professional. Modern document management includes more powerful search capabilities that save valuable time, leverage precedent more effectively, and makes more efficient use of information resources.

Download a 15-question DMS Checklist for Legal Operations here: http://imanage.com/legal-ops-checklist

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Clint Crosier is General Counsel and Privacy Officer of iManage, a Chicago-based technology company that transforms how professionals get work done by combining the power of artificial intelligence with content and email management. Prior to joining iManage, he was a corporate attorney at Reed Smith, where he advised clients in transactional and general corporate matters. Clint can be reached at clint.crosier@imanage.com.

Earlier this month, Bob Dylan sold the rights to his 60-year personal music catalog to Universal Music Publishing Group. While the sales price is unknown, his songs have been valued at around $300 million.

By selling the rights, Dylan no longer charges licensing and royalty fees for the use of his songs. In fact, he might have to pay licensing fees to the new owners to use the very songs he created. So it appears that he has opted to get a large cash payout in exchange for giving up future income streams from his music.

What would motivate him to sell his music now?

Some have speculated that it was for tax reasons. It is believed that the Biden administration would push for higher tax rates for high-income individuals. Even if Republicans maintain control over the Senate next year, it is likely they would agree to higher rates in exchange for other concessions.

So by selling his music now, he will take advantage of lower capital gains tax rates while they are still around.

But there are things we do not know. For example, what is the amount of his taxable gain? One way to minimize capital gains taxes is by calculating his cost basis in his music. To do this, we will need to know how much money Dylan spent in connection with creating his songs. Expenses such as studio recording and manager fees to name a few. Or did he purchase his own studio equipment? If he did, how much depreciation did he take on the equipment?

Dylan was not the only one to sell the rights to his songs. Stevie Nicks sold 80% of the copyright interest in her songs, which was valued at $100 million. Taylor Swift sold the rights to her first six albums for $300 million.

By selling the songs now, Dylan will probably avoid paying higher state taxes in the future. Some states, have lost income and sales tax revenue due to the coronavirus. In addition, some will incur more costs, mainly due to unemployment claims. States will make up for this deficit by taxing higher-income people even further.

As for the corporate buyers of the copyrights, they will (at least temporarily) get more-favorable income tax treatment. The income from licensing and streaming will be subject to the lower 21% corporate tax rate. However, this favorable tax rate will likely be on the chopping block. Whether it will return to the old rates or a slightly higher rate remains to be seen.

There could be other, nontax reasons for the sale. Perhaps the income streams from licensing are not as high as they were previously. And money from live concerts are pretty much nonexistent. Or perhaps Dylan just needed the money.

The tax planning strategy of selling assets before a tax rate hike (whether real or proposed) is nothing new. People take this opportunity to sell businesses, key assets, or real estate. If the timing is right, the tax savings can be huge. But selling an important asset like the copyright to your songs is not a decision that should be taken lightly. Because you are taking a gamble and you might end up being wrong.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.