Category: News Feeds

A Washington D.C. district judge upheld new price transparency rules that would require hospitals to disclose negotiated rates with insurers, in addition to other price information. Could this be the first step toward patients getting more upfront information on healthcare costs?

“I don’t think this is going to revolutionize the industry overnight, but it’s a step in the right direction,” said Michael Abrams, managing partner of healthcare consulting firm Numerof and Associates.

If and when the new rule goes into effect, Abrams expects to see patients become more emboldened to haggle over healthcare prices.

“Given the amount of financial exposure consumers have now have by virtue of deductibles and copays, they have a very good reason to know what they’re in for. That shows no sign of going away,” he said. “I can’t see any response other than to start negotiating. Ultimately, that will lead to lower pricing.”

The rule, finalized by the Department of Health and Human Services last fall, would require hospitals to post negotiated rates with insurers and cash discounted prices for their services. They would also be required to disclose the minimum and maximum negotiated charge for 300 “shoppable” services.

Abrams expects the latter is “probably where the pressure will begin. Things like X-rays and lab tests. These are things that people understand, that they know what they are buying, and with good reason, they want to know before they walk in, what’s it going to cost me?”

Currently, hospitals are only required to disclose a list of standard charges, per the Affordable Care Act. These chargemaster prices typically have little bearing on the reality of what most patients pay, and are generally used as negotiating tools with insurers. For example, while the Medicare approved cost for an abdominal ultrasound is  $112, the actual listed price can be anywhere from $104 to $1,580, according to Healthcare Bluebook.

The new requirements by the Department of Health and Human Services are slated to go into effect in January. Of course, that could likely be delayed, as the American Hospital Association filed for appeal on Wednesday.

The legal argument

In its original argument, the American Hospital Association (AHA) claimed that HHS did not have the authority to interpret “standard charges” as anything beyond chargemaster prices. It also claimed that being required to disclose negotiated prices with insurers was a violation of commercial speech, and would result in higher costs.

In his decision, U.S. District Judge Carl Nichols pulled apart each of these claims, pointing out that patients can already see the negotiated adjustment in their explanation of benefits, but that hasn’t increased costs.

From a legal perspective, seeing the rule through to the finish line could take significantly longer. Amy Mackin, an attorney with Indianapolis-based firm Hall Render, said she expects to see hospitals continue to push against the disclosure of trade secrets, and continue the argument that “standard charges” unambiguously refers to the chargemaster prices.

“Both providers and payors have historically worked hard to keep rate information confidential for competitive and antitrust reasons, and now they would be forced to disclose it – which is particularly egregious when the information will not be directly meaningful to most patients (whose actual payment amounts are generally based on coinsurance calculations),” she wrote in an email.

She also expects for hospitals to push for the effective date to be moved back in light of the ongoing Covid-19 pandemic. Given that this is also an election year, that could affect the rule.

“It’s unusual for payors and providers to be so aligned in resisting a rule, and I think HHS has a pretty unrealistic view of how heavy the lift will be to compile all of this information and get it into the required formats so quickly,” she added.

What can patients do with it?

The AHA has said that even if patients had all of this information, they wouldn’t be able to put it to use in calculating their out-of-pocket costs, as much of that depends on plan design and whether they’ve met their deductible.

“In fact, the disclosure of negotiated charges between hospitals and health plans is more likely to confuse patients than to ameliorate any existing lack of information,” the AHA wrote in a letter to CMS Administrator Seema Verma last year disputing the proposed rule.

But others disagreed, saying patients could very well put this information to use, with the help of third parties.

“Once application developers believe that this requirement will be adhered to and is something they can count on, they will create consumer-friendly applications that make comparative price shopping that much easier,” Abrams said. “This will become easier for consumers to use over time.”

A company that does just that, Healthcare Bluebook, said it saw a big opportunity in pairing this data with outside information. For example, letting patients compare the cost of an MRI across hospitals as well as freestanding imaging centers.

Healthcare Bluebook Co-Founder and Senior Vice President of Analytics and Innovation Bill Kampine said it would also be important to include information on facility fees and other costs beyond the procedure itself. For instance, a joint replacement might be broken down into four separate fees: a hospital fee, a doctor fee, an anesthesia fee and a device fee.

“There is a challenge in putting all of the pieces together to understand the full service and make sense of the data,” he said. “While there is a challenge to that, to me that’s a great opportunity for third parties like Bluebook.”

He also recommended including a benchmark price, in the event that a patient lives in a location where prices at the closest facilities are all inflated.

“What if all three prices are outrageous? You choose what appears to be the best of the three prices without realizing there’s an alternative,” he said.

Bottom line, he saw the rule as a potential opportunity for patients, if it prevails.

“The way I characterize it is it’s a good, positive win for consumers, although we have to think this is a short-term win, because I imagine this will end up in appellate court,” he said.

Photo credit: zimmytws, Getty Images

A few weeks ago we highlighted Ron Wyden’s explanation of the intent of Section 230, which was useful since he was one-half of the team that wrote the law. Now, the other half of the team, Chris Cox has written a long and detailed article highlighting how nearly every attempt at reform of 230 misunderstands both the intent and history of the law. On the history side, he highlights the incorrect notion being spread by some that Section 230 was designed as “balance” to go along with the rest of the Communications Decency Act, which was written by porn-hating Senator James Exon. Some have argued that because the two were passed together, but then the rest of the CDA was thrown out as unconstitutional, that now means that 230 is somehow unbalanced.

As Cox points out, that’s completely untrue. The Cox-Wyden proposal was designed to be an alternative approach to Exon’s obviously crazy approach:

Exon’s Communications Decency Act and Section 230 became law at the same time, even though Section 230 was originally designed as a reproach of Exon. It declared federal regulation of online speech off limits and gave Internet platforms immunity from liability for their own efforts to moderate content. When these two opposite approaches were both included as amendments to a larger bill in a typical Washington backroom political deal, many observers scratched their heads and wondered what Congress was thinking.

But the claim now being made is that the two were actually like legislative epoxy, with one part requiring the other. Since Exon was tossed out, so the argument goes, Section 230 should not be allowed to stand on its own.

In fact, the revisionists contend, the primary congressional purpose back in 1996 was not to give Internet platforms immunity from liability as Section 230 does. Rather, the most important part of their imagined “package” was Exon’s radical idea of imposing stringent liability on websites for the illegal acts of others — an idea that Exon himself backed away from before his amendment was actually passed. Now, a quarter-century after the Supreme Court threw out the Exon bathwater, the neo-speech regulators are urging us to throw out the Section 230 baby along with it.

The reality is far different than this revisionist history would have it. As the original sponsor of Section 230, I know. I was there.

He describes the whole process by which he and Wyden came up with the plan for Section 230. It was designed to be a balance itself. How to incentivize the most good stuff and the least bad stuff:

We named our bill the Internet Freedom and Family Empowerment Act, to describe its two main components: protecting speech and privacy on the Internet from government regulation, and incentivizing blocking and filtering technologies that individuals could use to become their own censors in their own households. Pornographers illegally targeting minors would not be let off the hook: They would be liable for compliance with all laws, both civil and criminal, in connection with any content they created.

To avoid interfering with the essential functioning of the Internet, the law would not shift that responsibility to Internet platforms, for whom the burden of screening billions of digital messages, documents, images, and sounds would be unreasonable — not to mention a potential invasion of privacy. Instead, Internet platforms would be allowed to act as “Good Samaritans” by reviewing at least some of the content if they chose to do so in the course of enforcing rules against “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” content.

The linking up of the larger CDA with the Cox-Wyden bill, (“the Internet Freedom and Family Empowerment Act”) was a cynical ploy by Exon to get his own anti-porn CDA bill passed. Indeed, the House debate shows overwhelming support for what became 230 and overwhelming disagreement with the Exon anti-porn bill:

In the end, not a single representative spoke against the bill. The final roll call on the Cox-Wyden amendment was 420 yeas to 4 nays. It was a resounding rebuke to the Exon approach in his Communications Decency Act. The House then proceeded to pass its version of the Telecommunications Act — with the Cox-Wyden amendment, and without Exon.

Putting the two bills together was a political process:

There was the sticky problem of 84 senators having already voted in favor of the Exon amendment. Once on record with a vote one way — particularly a highly visible vote on the politically charged issue of pornography — it would be very difficult for a politician to explain walking it back. The Senate negotiators, anxious to protect their colleagues from being accused of taking both sides of the question, stood firm. They were willing to accept Cox-Wyden, but Exon would have to be included, too.

The House negotiators, all politicians themselves, understood. This was a Senate-only issue, which could be easily resolved by including both amendments in the final product. It was logrolling at its best.

As Cox notes, he and Wyden always intended Section 230 to stand on its own:

The notion that the Communications Decency Act and Section 230 were conceived together is completely wrong. So is the notion that Exon enjoyed lasting congressional support. By the time the Telecommunications Act completed its tortuous legislative journey, support for the CDA had dwindled even in the Senate, as senators came to understand the mismatch between problem and solution that the bill represented. With the exception of its most passionate supporters, few tears were shed for the CDA at its final demise in 1997. Exon had retired even before his law was declared unconstitutional, leaving few behind him willing to carry the torch. His colleagues made no effort to “fix” and replace the Exon Amendment, after the amendment was unanimously struck down by the Supreme Court.

Meanwhile Section 230, originally introduced in the House as a freestanding bill, H.R. 1978, in June 1995, stands on its own, now as then. Its premise of imposing liability on criminals and tort-feasors for their own wrongful conduct, rather than shifting that liability to third parties, operates independently of (and indeed, in opposition to) Sen. Exon’s approach that would directly interfere with the essential functioning of the Internet.

Cox then concludes by talking about how important 230 is to a functioning internet:

It is also useful to imagine a world without Section 230. In this alternative world, websites and Internet platforms of all kinds would face enormous potential liability for hosting content created by others. They would have a powerful incentive to limit that exposure, which they could do in one of two ways. They could strictly limit user-generated content, or even eliminate it altogether; or they could adopt the “anything goes” model through which CompuServe originally escaped liability before Section 230 existed.

We would all be very much worse off were this to happen. Without Section 230’s clear limitation on liability it is difficult to imagine that most of the online services on which we rely every day would even exist in anything like their current form.

We’re now facing many calls by people who seem to think that bringing back Exon’s version of the CDA is necessary to “balance” 230. It wasn’t true back when the bill passed (and, indeed, the rest of the CDA was found unconstitutional) and it’s certainly not true now.

There are much more details and history in Cox’s essay, and I recommend reading the whole thing.

Author Of Section 230 Chris Cox Says All The Critics Are Wrong About The History And Intent Of 230

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Goldman Sachs Created A Font, But You Are Forbidden By Its License To Critique Goldman Sachs Using It
Charles Harder Tries And Fails To Censor Another Book About His Most Famous Client, The President

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Jack Newton, founder and CEO of Clio, joins us to discuss findings compiled by the practice management platform and brings some welcome news: law firms have seen an uptick in new matters. While the industry is still suffering from the pandemic, there are signs that things are getting back on track and clients are recognizing that — even from home — attorneys are still at work.

You can check out more of the research discussed in this episode here.

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

According to the National Law Journal’s Women in Law Scorecard, which firms have the lowest female equity partner rates (i.e., 15 percent or less)?

Hint: These are some of the largest and most prestigious namebrand firms in all of Biglaw. It’s shocking that some of them appear on this list.

See the answer on the next page.

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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.

We invite you for a webinar on July 9th at 12 p.m. ET/ 9 a.m. PT to explore Lex Machina’s new Federal Torts Litigation module.  Legal analytics can help build litigation strategy and develop your litigation plan.

Gain strategic insights into specific tort claims such as medical malpractice, premises liability, motor vehicle injury, and personal injury torts including negligence, assault/battery, and defamation.  Learn how to apply current trends to your own litigation strategy.

Legal analytics provides practice-specific information on judges, law firms, parties, timing findings, damages, and more.  These strategic insights help users make date-driven decisions which save time and resources and helps users win.  Join the majority of Am Law 100 firms and many of the world’s largest corporations in leveraging the power of Lex Machina.

Speakers:
Anne Wise Kann, Legal Data Expert, Lex Machina
Tim Moore, Sales Director, Lex Machina
Dennis Stolle, President/Consultant, ThemeVision

After great reflection and study, I am writing to inform you that all of our Fall 2020 classes will be conducted remotely. …

[T]he best course—for the health of those in our community and for our educational program—is to have the Fall semester’s classes be online. Our top priority is protecting the health of our students, staff, and faculty. At the same time, we want to do what is best educationally for our students. …

I am convinced we can provide an excellent education via remote learning this semester and frankly a better education than we can through a limited number of in-person classes taught in a hybrid fashion. I also believe it is the safest course for the health of our faculty, staff, and students.

— Dean Erwin Chemerinsky of UC Berkeley School of Law, explaining in a letter to the law school community all of the reasons why the Fall 2020 semester would be held remotely due to the COVID-19 pandemic. Chemerinsky noted that there were far too many “obstacles to in-person classes” to overcome for the upcoming semester to be held in even a hybrid fashion. Like Harvard, the first law school to announce a fully remote Fall 2020 semester, Berkeley Law will be returning to its traditional grading system. There’s no word yet on whether Berkeley’s tuition structure will change due to holding online classes. Harvard is being sued over its “outrageous tuition” for remote classes.

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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.

In 2015, the American Museum of Tort Law opened its doors, making it the first and only museum dedicated to a practice area within the legal profession. Championed by consumer advocate Ralph Nader, the museum is a veritable personal injury house of horrors, meant to educate the public about all of the benefits of tort law and trial by jury. From exhibits on motor vehicle accidents and defective products to medical malpractice and environmental disasters, this museum has it all.

Unfortunately, due to the COVID-19 outbreak that has created a whole new swath of tort claims, the museum has closed for a time, but its website is open, where visitors can take virtual tours and see and read about each case on display. Because the museum is now online, Richard L. Newman, its executive director, is interested in adding supplemental content in video form.

He’s looking for tort law scholars — professors, judges, practitioners — to give short presentations (filmed on Zoom) about the significance of the cases listed below.

• Brown v. Kendall (1850)
• Bryne v. Boadle (England, 1863)
• Sioux City & Pacific Railroad Co. v. Stout (1874)
• MacPherson v. Buick (1916)
• T.J. Hooper et al. v. Northern Barge Corp. et al (1932)
• U.S. v. Carroll Towing Co. (1947)
• Greenman v. Yuba Power Products (1963)
• Canterbury v. Spence (1972)
• Hoffman v. Jones (1973)
• Tarasoff v. Regents (1976)
• Daubert v. Merrell Dow (1993)
• Kline v. 1500 Massachusetts Avenue Apt. Corp. (1970)
• Donald v. United Klans of America (1987)
• McCormack v. Hankscraft Co., Inc. (1967)
• Carol Burnett v. National Enquirer, Inc. (1983)
• Galella v. Onassis (1973)
• Anderson v. Pacific Gas & Electric Co. (1996)
• Grimshaw v. Ford Motor Company (1981)
• Liebeck v. McDonald’s (1994)
• Nader v. General Motors Corp. (1970)
• Cipollone v. Liggett Group, 1992 & Master Settlement Agreement (1998)
• United Novelty Co. v. Daniels (1949)
• Borel v. Fibreboard Paper Products Corp. (1973)

Speakers in these supplemental videos will identify themselves by name and institution, state the name and date of the case, give a summary of the salient facts, and then give a brief explanation of why the case is significant.

If you’re interested in giving your expert assistance to the American Museum of Tort Law, please click here to get in touch with Richard Newman. Thanks!

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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.

“Hey, Legal … quick question.”

– How much can the company pay an employee to get her girlfriend’s name tattooed on her neck?*

– What are the laws around having a snake sleep in an actor’s bed?*

– Is poop performance art legal?*

Legal Madness is currently collecting one-sentence “quick questions.” You know the kind. One casual sentence from a colleague or client, which is surprising, maddening, or leads an attorney down a winding path that likely includes a deep philosophical inquiry into certain life choices.

Submit via the anonymous form at www.legalmadness.party.

What is Legal Madness? Last year, NYU Law School’s Engelberg Center and Sarah Feingold gathered anonymous stories of in-house counsel, turned the tales into scripts, and hired actors to perform the monologues on stage. The first Legal Madness was a sold-out theatrical event that took place in New York City.

* Yes, these are actual questions inspired by a previous Legal Madness submission (and no need to provide answers to the questions).

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Sarah was the General Counsel / first Lawyer at Etsy and Vroom.  She’s a co-founder of The Fourth Floor, a creator and producer of Legal Madness, an NYU Law School Engelberg Center fellow, a board member, an investor, and a speaker. You can also find Sarah hammering silver, eating candy, and chasing her child. sarahfeingold.com.

The Justice Department needs to stop trying to send Rodney and Ronald Mack back to federal prison for another decade. The brothers have already served 20 years and were released late last year.

I first met the Mack brothers last December in Washington, D.C. The organization I run invited them — and others who had been released early from prison because of reforms in the First Step Act — to meet and thank members of Congress and White House officials who championed that legislation. The Macks had only been out of prison for a few weeks when they, some family members, and two former co-defendants who also were granted early release, traveled to Washington to join us.

More than two decades ago, the Macks went to prison for a drug conspiracy involving crack cocaine. Because of the racially discriminatory disparity between crack and powder cocaine-related sentences, the brothers were sentenced to life in prison. (A change in the sentencing guidelines later reduced their sentences to 30 years.) In 2010, Congress reduced the crack-powder disparity, but didn’t make the change retroactive. The First Step Act finally corrected that injustice in 2018, and the Macks (and more than 2,000 others) finally got justice and were released.

When they came to Washington, Rodney and Ronald were still figuring out how to use their new smartphones, but they sure knew how to use the camera function. They wanted pictures of everything and everyone. They laughed easily. They seemed happy and humbled to be in the nation’s capital and to have the chance to meet the political leaders who made it possible.

Many of our meetings on Capitol Hill were emotional. Offices would turn quiet as former prisoners and their family members choked back tears while thanking lawmakers for giving them a second chance. More than a couple members of Congress were moved to tears, too. For some of them, it was a rare opportunity to come face to face with good people that our justice system nearly threw away.

Then insanity struck. Halfway through our two days of meetings, the Mack brothers found me as our group was eating lunch in an empty congressional hearing room. They looked stricken. They had just received a phone call from their lawyer, who informed them that the U.S. Attorney planned to appeal their release. The U.S. Attorney was arguing that they didn’t qualify for relief under the First Step Act because they had also been convicted of dealing powder cocaine, and those penalties hadn’t changed.

The Macks’ judge, the same one who sentenced them to life in 2002, rejected that argument. She said the verdict sheet made clear that the crack charges were what determined their sentence. Moreover, she lavished praise on the Macks and their co-defendants for their behavior while in prison, which included earning multiple educational degrees and almost no disciplinary infractions.

On the last day to appeal, as the Macks visited Washington, the Justice Department formally announced its intent to send them back to prison for another decade. I told Rodney and Ronald that the government had appealed other First Step Act releases and lost almost all of them. In some cases, the government notified the court of its intention to appeal and then later declined to move forward. We hoped that is what would happen with the Macks, who did their best to enjoy the rest of their trip.

Fast forward from last December and the Justice Department is still moving forward with its appeal. Surely Attorney General Bill Barr knows that now is not the time to be sending anyone to our federal prisons unless it’s absolutely necessary. Approximately 7,000 prisoners and staff have tested positive for COVID-19, and, as of this writing, 1,500 people are still fighting it and 87 have died. Barr clearly knows the risks because he has authorized more than 3,000 people to move to home confinement to reduce the disease’s spread.

Barr also must be aware that Congress and President Donald Trump agreed to reduce crack-related sentences retroactively because the old crack-powder disparity was one of the most indefensibly discriminatory features of a justice system that many black Americans were protesting since long before George Floyd was killed. The Macks, their co-defendants, and tens of thousands of mostly black Americans already served far more time than was necessary for their crimes.

These brothers do not need to spend another day in prison, let alone another decade. They have paid their debt to society. After seven months of reconnecting with their families, finding work, and reintegrating into society, it would be cruel to send them back to prison. And it would be useless from a public safety perspective.

This Justice Department said justice required dropping charges against Michael Flynn. If that is so, then justice is screaming out to leave Rodney and Ronald Mack alone.

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Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.