Category Archives: Fifth Amendment

We were unable to send the article.

When asked to explain what happened to millions of dollars lent to him by an elderly Little Rock man, Kristian D. Nelson of England repeatedly cited his Fifth Amendment right against self-incrimination, a move that could hurt the ex-con at trial.

Nelson sat for a deposition on Sept. 23 in the civil lawsuit brought by Richard F. Toll, 90, who sued Nelson in July. Toll accused Nelson of defrauding him of $4.5 million in less than three years.

Meanwhile, on Jan. 29, Pulaski County Circuit Court Judge Wendell Griffen denied a request from Tolls attorney, David D. Wilson of Friday Eldredge & Clark of Little Rock, for a partial summary judgment on a $1.8 million loan that Nelson allegedly defaulted on.

Wilson argued during the virtual hearing that its undisputed that Mr. Nelson did not make payments under the note.

Nelsons attorney, Robin Vail of the Law Offices of Miller Vail of Heber Springs, argued against awarding the judgment, saying Nelson disputed how much was owed on the loan. Griffen agreed, but he also denied requests from Vail, which included sending the case to arbitration.

Vail also represents Nelsons used car outlet, I Sell 4 U Auto Sales LLC of North Little Rock, which is also a defendant in Tolls lawsuit.

The alleged fraud started in September 2017, when Toll first lent Nelson $10,000 for the restaurant Hawgz Blues Caf LLC of Little Rock, the suit said. Nelson told Toll he owned the restaurant, but he didnt, according to the lawsuit.

Nelson then kept returning to Tolls house on an almost weekly basis with manipulative lies and fabrications to entice more and more money from Toll, according to the suit.

Nelson told Arkansas Business in August that he needed money for the Little Rock restaurant, a second Hawgz site in North Little Rock and I Sell 4 U Auto Sales, which Nelson formed in 2018.

Hawgz Blues Caf also is being sued. The restaurant is represented by attorney Kathryn Hudson of Little Rock, who told Arkansas Business in an email in August that Kristian Nelson is not the owner but the manager, and Hawgz Blues Cafe denies the complaint.

Nelson repeatedly cited his Fifth Amendment right against self-incrimination during the deposition, which lasted seven and a half hours. Invoking the Fifth Amendment could hurt a witness in a civil trial, said Joshua Silverstein, a professor at the Bowen School of Law at the University of Arkansas at Little Rock.

Generally when a witness invokes the Fifth Amendment, the jury can draw the inference that theyre asserting it for a bad reason, or theyre asserting it because what theyre being accused of is true, he said.

During Nelsons deposition, Wilson asked Nelson if he believes he will be criminally prosecuted for his dealings with Toll.

I dont believe so, said Nelson, who in 2009 was sentenced to 71 months in federal prison for wire fraud after taking about 20 investors for more than $1 million.

Nelson added that his dealings with Toll were a complicated issue. Theres not just a simple yes or no. If I say yes to something and admit it, then it makes it look like that I am criminally doing something. But if Im not able to tell what happened, then it could be construed as something wrong. So I really want to get this out. I really want to get this thing to where its right.

Wilson accused Nelson of dodging questions during the deposition, as Nelson frequently answered with I dont know or I dont remember. Wilson asked Nelson if he had memory problems. I dont know, Nelson said. I dont think so.

If Nelson has a different answer at the trial, that also might hurt his credibility.

Silverstein said if witnesses give different answers during their trial than at their deposition, the cross-examining attorney can quote from the deposition to challenge the statement.

If there are real differences, then you can use the deposition to suggest that the witness is perhaps not being entirely forthright would be one way to say it, he said.

Wilson has requested that the case be scheduled for three days in October.

He said during the hearing last month that the longer the case is delayed, the better it is for Nelson, because he just spends the money, and theres none left for my client.

See the original post here:
Ex-Con in Fraud Case Takes the Fifth - Arkansas Business Online

On January 28, 2021, HHS issued a fifth amendment to the Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act), expanding the categories of persons able to prescribe, dispense, and administer COVID-19 vaccines under the protections of the PREP Act (the Fifth Amendment).

HHS first issued a Declaration under the PREP Act in March 2020, providing liability immunity for medical countermeasures against COVID-19. There have since been four amendments to the Declaration, expanding liability immunity for various actions taken by qualified persons in furtherance of the COVID-19 countermeasures. In the Fifth Amendment, HHS now amends Section V of the Declaration to add additional categories of persons covered under the PREP Act as qualified to prescribe, dispense, and administer COVID-19 vaccines. The Fifth Amendment specifically permits the following:

To be covered by the protections of the PREP Act, the Fifth Amendment requires these qualified individuals to complete the CDCs COVID-19 Vaccine Training and, for healthcare providers who are not currently practicing or whose license or certification is expired, to undergo a period of on-site observation by a currently practicing healthcare professional.

The language of the Fifth Amendment can be found here. The press release issued by HHS is available here.

The rest is here:
HHS Expands Categories of Persons Covered Under the PREP Act Who Can Administer COVID-19 Vaccine - JD Supra

Senate Republicans still smarting over their unexpected demotion to the minority will go on offense Thursday by forcing Democrats to take tough votes on sending stimulus checks to immigrants living in the country illegally and raising taxes on small businesses.

Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate eyes speedy Trump impeachment trial Republicans look to pummel Democrats on school reopenings GOP blames White House staff for lack of COVID-19 relief deal MORE (R-Ky.) previewed the strategy ahead of a marathon voting session on a Democratic budget resolution that will lay the groundwork for passing a $1.9 trillion COVID-19 relief package with a simple majority vote, avoiding a filibuster, later this year.

The voting session is described by both parties as a vote-a-rama.

Were going to put senators on the record . Well see how our colleagues vote on these basic, commonsense steps. Well see what this resolution looks like on the other side and what signals Democrats send the American people along the way, McConnell said on the floor Thursday morning.

One of the top GOP priorities is to force Democrats to vote on an amendment sponsored by Sens. Todd YoungTodd Christopher YoungRepublican 2024 hopefuls draw early battle lines for post-Trump era Senate Democrats approve budget resolution, teeing up coronavirus bill House will have to vote on budget second time as GOP notches wins MORE (R-Ind.) and Tom CottonTom Bryant CottonRepublican 2024 hopefuls draw early battle lines for post-Trump era The Hill's Morning Report - Presented by Facebook - House boots Greene from committees; Senate plows ahead on budget Cotton tries to squeeze Democrats on expanding the Supreme Court MORE (R-Ark.), a potential White House candidate in 2024, that would prohibit stimulus checks forundocumented immigrants.

The amendment applies to what is expected to be the third round of direct payments following checks sent out through last years CARES Act and the $900 billion rescue package passed in December.

The amendments, however, do not have the force of law as they are being offered to a budget resolution, which does not require the presidents signature.

The Biden administration shouldnt reward illegal immigrants for breaking our laws by giving them checks, Cotton said in a statement.

A second amendment sponsored by Sen. Marco RubioMarco Antonio RubioLawmakers wager barbecue, sweets and crab claws ahead of Super Bowl Republican 2024 hopefuls draw early battle lines for post-Trump era The Hill's Morning Report - Presented by Facebook - House boots Greene from committees; Senate plows ahead on budget MORE (R-Fla.), another potential White House hopeful, and Sens. Tim ScottTimothy (Tim) Eugene ScottSenate panel advances Biden's picks for Housing secretary, chief economist Republicans seek to play offense in vote-a-rama The Hill's Morning Report - Presented by Facebook - Democrats chart path to pass Biden's COVID-19 relief plan MORE (R-S.C.) and James LankfordJames Paul LankfordHow your taxes subsidize the Super Bowl and how that might change Republicans seek to play offense in vote-a-rama The Hill's Morning Report - Presented by Facebook - Democrats chart path to pass Biden's COVID-19 relief plan MORE (R-Okla.) calls for preventing tax increases on small businesses during the pandemic.

A third amendment sponsored by Scott, Lankford and Sen. John BarrassoJohn Anthony BarrassoOVERNIGHT ENERGY:DOJ to let companies pay for environmental projects again to reduce fines | House Democrats reintroduce green energy tax package Republicans seek to play offense in vote-a-rama Sanders, Ocasio-Cortez, Blumenauer aim to require Biden to declare climate emergency MORE (R-Wyo.) would reduce funding to states that are actively investigating nursing homes for underreported deaths.

A fourth sponsored by Sens. Roy BluntRoy Dean BluntDemocratic senator demands Rand Paul wear a mask on Senate floor Republicans seek to play offense in vote-a-rama Missouri newspaper urges Hawley, Blunt to 'bring Trump to justice' MORE (R-Mo.) and Scott would call for withholding supplemental funding from schools that do not reopen for in-person learning even after its teachers receive coronavirus vaccines.

The fifth amendment being highlighted by the GOP leaders is sponsored by Senate Minority Whip John ThuneJohn Randolph ThuneSenate eyes speedy Trump impeachment trial House votes to kick Greene off committees over embrace of conspiracy theories Republicans seek to play offense in vote-a-rama MORE (R-S.D.) and calls for limiting the tax liability for medical professionals who crossed state lines to make up for a shortage of health care workers in areas hit hard by the pandemic. It would protect doctors, nurses and other professionals from having to pay state and local income taxes in multiple jurisdictions, in certain cases.

See the rest here:
Republicans seek to play offense in vote-a-rama | TheHill - The Hill

"The Crooked Path to Abolition" by James Oakes. Norton. 256 pp. $26.95. Review provided by The Washington Post.

In his illuminating new book, James Oakes, an acclaimed historian, offers us a "third Lincoln": neither the mythic Great Emancipator nor a flawed reluctant emancipator, but instead a committed proponent of anti-slavery constitutionalism.

Lincoln, Oakes argues in "The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution," consistently upheld the "federal consensus" on slavery: that Congress could not abolish slavery in any state but also could not interfere with a state's choice to emancipate enslaved people. Within these constitutional boundaries, Lincoln pursued, before and during the Civil War, the goal of abolition by individual states. He intended that pressure from the federal government would move the Southern states to enact their own gradual emancipation policies, as individual Northern states had done after the American Revolution.

Lincoln's outlook was rooted in a distinct anti-slavery constitutionalism, elaborated by reformers and politicians in counterpoint to the pro-slavery constitutionalism of Southern enslavers. During the antebellum decades, as slavery's apologists ratcheted up their claims that slaveholding was a constitutionally protected property right, abolitionists drew out the anti-slavery implications of the founding documents. For example, while Southern enslavers emphasized their summary right of recaption of fugitives, abolitionists emphasized states' authority to require due process in renditions. The Constitution's ambiguity on the fugitive issue meant "that every slave who escaped from Maryland to Pennsylvania, or from Kentucky to Ohio, opened the possibility of a political conflict between the owner's claim to his or her 'property' and the free state's recognition of the accused fugitive's right to due process."

Invoking the Fifth Amendment right to due process was just one of the many ways that slavery's opponents "colonized" the Constitution, imbuing certain clauses with anti-slavery meaning. They also emphasized such measures as the territorial clause, which granted Congress the power to ban slavery from the territories, thereby preventing the addition of new slave states. By the time he became president in 1861, Lincoln had embraced most elements of what Oakes calls the "Anti-slavery Project": a set of policies, such as congressional abolition of slavery in the District of Columbia and the suppression of illegal smuggling of enslaved people into the United States, designed to reverse slavery's expansion and shift the sectional balance of power northward.

Lincoln homed in on the banning of slavery's expansion in the territories as the one issue around which his Republican Party was "most likely to build a winning coalition." In his reckoning, the policy of nonextension, by surrounding slave states with a cordon of free states, would undermine slavery's economic profitability and motivate Southern Whites to dismantle the institution.

The Civil War, Oakes shows, radicalized Lincoln, compelling him to press more aggressively an agenda of state-level emancipation, through both threats and incentives aimed at enslavers. Lincoln seized on the anti-slavery movement's long-standing forfeiture-of-rights doctrine, which held that seceded states would relinquish their right to have fugitives returned, and on the doctrine that emancipating the enemy's enslaved people was a legitimate use of war powers. These pre-war doctrines formed the basis of the wartime policy by which the Union Army confiscated, freed and eventually enlisted fugitive slaves.

Lincoln also tried in vain to entice the loyal border slave states to adopt gradual emancipation policies, by offering to compensate them for their financial losses and to deport those who were freed. Though his overtures were rebuffed, he remained committed, even after his Emancipation Proclamation of 1863, to promoting state-by-state abolition. Lincoln's sustained campaign to shift the balance of power in these states toward anti-slavery forces worked, as six state governments Maryland and Missouri, which had never seceded, and Virginia, Arkansas, Louisiana and Tennessee, which were undergoing wartime reconstruction abolished slavery in the last year of the war. Adding them to the roster of free states made possible the 1865 ratification of the 13th Amendment, which abolished slavery throughout the United States. This course of events was "hardly inevitable," Oakes notes, but "neither was it accidental": Anti-slavery constitutionalism guided Lincoln's journey down the winding path to emancipation.

A commitment to the federal consensus not only drove but also constrained Lincoln. The limits of his egalitarianism his failure to support full social and political equality for Blacks were, Oakes surmises, a function of his federalism. Lincoln regarded the right to vote or hold office or marry or attend public schools or serve on juries as state matters, beyond the purview of the federal government; under a federal system, state legislatures retained the power to practice local racial discrimination. In deferring to this notion of states' rights, Lincoln also deferred to discriminatory views and practices.

This book represents a shift in Oakes' own thinking. While his 2007 study of Frederick Douglass and Lincoln, "The Radical and the Republican," juxtaposed Douglass the crusading reformer with Lincoln the cautious politician, this volume foregrounds the commonalities between the two men. Lincoln shared with Douglass, Oakes emphasizes, an abiding belief in the abolition movement's core principle of fundamental human equality.

Much insight is to be gained by contrasting the anti-slavery constitutionalism of Douglass and Lincoln with the pro-slavery constitutionalism of Southern enslavers: Doing so brings into sharp focus the anti-racist qualities of Lincoln's leadership. But Oakes' earlier approach remains salient. Douglass and Lincoln both hated slavery, but "they hated it in different ways," as Oakes has cogently put it. Lincoln's view of Black freedom was considerably narrower than that of Douglass and of the Black resisters and reformers who were the vanguard of the abolition crusade. Understanding the convergence of Lincoln and Douglass is essential for understanding slavery's wartime demise. Acknowledging the persistent fault lines in the North, even among slavery's opponents, is a key to understanding why fundamental rights remained so elusive for Black Americans.

Reviewed by Elizabeth R. Varon, who is the Langbourne M. Williams professor of American history at the University of Virginia and the author of "Armies of Deliverance: A New History of the Civil War."

Read the original:
Book review: 'The Crooked Path to Abolition' - Bowling Green Daily News

A lot of people falsely utilize the Constitution as a shield for selfish conduct.

However, free speech doesnt mean one can yell fire in a crowded theater; nor does free speech entitle one to commit libel or slander. Freedom of assembly does not override municipal permitting processes reasonably controlling marches or parades. Freedom of religion does not let one practice polygamy, cannibalism or forced marriages.

Fifth Amendment rights can be waived, and the Seventh Amendment right to a civil jury trial, can be blocked by an arbitration clause buried on the back of a receipt.

Before District of Columbia v. Heller, 2008, no United States Supreme Court case ever held that the Second Amendment provided a right to own a handgun for residential protection. However, in Heller, Justice Scalia noted, Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

One may feel unnecessarily constrained by a mandatory seat belt law, but that does not make it unconstitutional. Selfishly questioning the constitutionality of masking requirements during the COVID-19 pandemic ignores a states power under the Tenth Amendment to protect health, safety and the general welfare.

So when we hear the Constitution invoked to support some real or imagined grievance, we should pause and consider who the speaker is and what their motivations are.

Fortunately and unfortunately, even ignorant whining is constitutional.

Craig OlivierDurango

See the original post:
Letter: Claims of constitutional rights are often wrong - The Durango Herald

On 28 January 2021 the EU Commission published the fifth amendment to its 19 March 2020 Temporary Framework on state aid in reaction to the COVID-19 outbreak (see our blog post).

The guidance document was previously amended on 3 April 2020 (see our blog post), on 8 May 2020 (see our blog post), on 29 June 2020 (see our blog post) and on 13 October 2020 (see our blog post).

The EU Commission noted in the fifth amendment to the Temporary Framework that it expects the European economy to barely return to pre-pandemic levels in 2022. It therefore decided to prolong the availability of the measures set out in the Temporary Framework until 31 December 2021, including the instrument allowing governments to cover part of companies' fixed costs and the temporary removal of all countries from the list of "marketable risk" countries under the short-term export-credit insurance Communication (STEC).

Additionally, the fifth amendment raises the aid ceilings for certain instruments and introduces a new possibility to convert repayable aid measures into non-repayable forms of aid.

Lastly, it clarifies the conditions of compensation under Article 107(2)(b) TFEU.

Prolongation until 31 December 2021

Considering Member States positive feedback and the ongoing second wave of the pandemic, the EU Commission adopted a further six-month extension of the Temporary Framework, thereby prolonging it until 31 December 2021. Member States wishing to extend their national aid measures approved by the EU Commission under the Temporary Framework need to notify the EU Commission and provide the required information set out in the fifth amendment's annex.

The EU Commission will evaluate before 31 December 2021 whether the Temporary Framework needs to be further extended or adapted.

Increased aid ceilings

The EU Commission has increased the ceilings set out in section 3.1 (limited amounts of aid) and section 3.12 (aid in the form of support for uncovered fixed costs) of the Temporary Framework. Both had been or were about to be exhausted due to the continued impact of the COVID-19 outbreak.

Therefore, the overall aid ceiling for all industries (excluding primary agriculture, fishery, and aquaculture) is increased from EUR 800 000 to EUR 1.8 million per undertaking.

The aid for companies active in primary agriculture is increased from EUR 100 000 to EUR 225 000.

The ceiling per undertaking active in fishery or aquaculture is increased from EUR 120 000 to EUR 270 000.

As before, the above aid ceilings can be combined with de minimis aid of up to EUR 200 000 per company (up to EUR 30 000 per company operating in fishery and aquaculture and up to EUR 25 000 per company operating in agriculture) over a period of three financial years, subject to complying with the requirements of the relevant de minimis

Additionally, the ceiling for aid in the form of support for uncovered fixed costs is increased. Due to the pandemic, many companies are struggling to cover their fixed costs. To help these companies, the EU Commission introduced a measure allowing governments to contribute to a part of their fixed costs (see our blog post).

The respective aid measures can now be prolonged until 31 December 2021 and cover uncovered fixed costs incurred between 1 March 2020 and 31 December 2021. Compared to the previous ceiling of EUR 3 million, going forward the overall aid shall not exceed EUR 10 million per company and may be granted in the form of direct grants, tax, and payment advantages, or other forms such as repayable advances, guarantees, loans, and equity.

Possibility to convert repayable aid measures into non-repayable forms of aid

To create an incentive to initially choose repayable forms of aid, the EU Commission has provided for the possibility to convert repayable forms of aid (such as repayable advances and loans) into non-repayable forms of financial support such as grants.

The respective aid ceilings (i.e. in most sectors up to EUR 1.8 million per company) will apply in case of a conversion. Member States can convert their measures until one year after the Temporary Framework's expiry, applying transparent and non-discriminatory conditions. These conversion conditions must be notified to the EU Commission.

Extension of temporary removal of all countries from the list of marketable risk countries under the STEC

The EU Commission continues to see a lack of sufficient private insurance capacity for short-term export-credits in general and considered all commercial and political risks associated with exports to the countries listed in the Annex to the STEC as temporarily non-marketable initially until 31 December 2020.

Considering the continuing disruptive impact of COVID-19 on the European economy, the EU Commission has therefore again prolonged the temporary exception of all countries from the list of "marketable risk" countries under the short-term export-credits until 31 December 2021 (previously until 30 June 2021).

Clarification regarding measures allowing compensation under Article 107(2)(b) TFEU

Article 107(2)(b) TFEU allows Member States to grant compensation for damage directly caused by the COVID-19 outbreak. So far, that damage has been defined as caused "by quarantine measures precluding the beneficiary from operating its economic activity."

The updated Temporary Framework extends the definition by including damage caused by "restrictive measures precluding the beneficiary, de jure or de facto, from operating a specific and severable part of its activity."

According to the EU Commission, de facto restrictions comprise, for example, measures capping attendance for specific activities (e.g., events, entertainment, trade fairs). However, less restrictive measures, like general social distancing measures, are not grounds for compensation under Article 107(2)(b) TFEU.

Additionally, guidance to avoid overcompensation has been added to the new Temporary Framework. Compensation can be given only for strictly quantifiable damage resulting directly from the restrictive measure, and is limited to the profit that could credibly have been generated by the beneficiary in the absence of the measure.

"As the coronavirus outbreak persists longer than we were all hoping for, we need to keep making sure that Member States can provide businesses with the necessary support to see it through."

Executive Vice-President Margrethe Vestager

Read more:
EU Commission publishes fifth amendment to its Temporary Framework for state aid in relation to the COVID-19 crisis - Lexology

Walker dramatizes key scenes, such as an early dust-up between an Oakland police officer and a car packed with four gun-toting Panthers. When the officer asks for Newtons phone number, he tersely answers, Five, referring to the Fifth Amendment. When firearms are discovered in the car, the tension ratchets up. A stickler for gun laws, Newton cites his constitutional right to bear arms, explaining that his piece is unloaded because it is illegal to carry a loaded rifle in a car; stepping out of the vehicle, he loads it. Not a single shot was fired, and no one was injured, Walker writes. But war had been declared.

When the text boxes start piling up, though, the tone can dry out: Having made a name for themselves in Oakland, the Black Panther Party for Self-Defense was asked by Eldridge Cleaver and the RAM-affiliated Black Panther Party of Northern California to help provide security for Betty Shabazz, the widow of Malcolm X. Fortunately, as an artist Anderson is just as good at rendering static shots as he is at depicting action, and his gift for warm, uncluttered portraiture lionizes familiar figures. In an early sequence, he depicts 31 slain civil rights activists, their names largely lost to us. Most of them are smiling, yet all are shaded, heartbreakingly, in a ghostly blue. Though each panel is just 1.5 inches by 2.25 inches, the depth of emotion could fill an entire page.

A mixture of bravery and dread hangs over much of the book. For all the partys talk of guns, they are only shown being discharged toward the end. Fred Hampton, who had joined the Chicago branch of the Panthers at the end of 1968, found himself the national spokesman the following year, fixing him on the F.B.I.s radar. Walker and Anderson depict his murder by plainclothes policemen without showing any gore. Their machine guns fire 31 times across 19 orderly, crimson-tinged panels, the sound of each shot (BLAM) obscuring the terrified dialogue of the eight other Panthers in the house at the time. Its a turning point in the groups history, chillingly rendered.

The only scene of political resistance in Jim Terrys memoir, COME HOME, INDIO (Street Noise, 234 pp., $16.99), appears at the end, as the cartoonist travels with his sister and a friend to join the Standing Rock protest against the Dakota Access Pipeline. The son of a Native (Ho-Chunk) mother and an Irish-American jazz musician father, who divorced when he was young, Terry grew up in the Midwest, bouncing between two worlds. His devotion to Standing Rock is sincere, but he doesnt have the instant moment of connection that he was hoping for. He worries that it isnt his place that hell somehow be seen as an impostor.

See the rest here:
Can a Comic Book Contain the Drama and Heat of Activism? - The New York Times

WALTHAM, Mass.--(BUSINESS WIRE)--Wolters Kluwer:

What: The U.S. Department of Health and Human Services (HHS) issued a fifth amendment to the Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) to add additional categories of qualified persons authorized to prescribe, dispense, and administer COVID-19 vaccines authorized by the U.S. Food and Drug Administration. This action would enable retired or inactive doctors and nurses to administer COVID-19 vaccines.

Why: Creative solutions are needed urgently as the U.S. struggles to disseminate COVID-19 vaccine doses quickly and efficiently to millions of Americans, however there are downstream implications of such changes for hospitals and health systems that are already underwater. A cohesive and rapid onboarding strategy at these facilities is needed to ensure the burden of supporting newly activated staff does not fall on an already over-taxed workforce.

Who: Anne Dabrow Woods, DNP, RN, CRNP, ANP-BC, AGACNP-BC, FAAN, is a practicing nurse practitioner in critical care for Penn Medicine, Chester County Hospital and clinical adjunct faculty for the College of Nursing & Health Professions for Drexel University in Philadelphia, PA. Anne has over 36 years of experience in nursing and 22 years of experience as a nurse practitioner. She currently serves as Chief Nurse of Health Learning, Research & Practice, Wolters Kluwer.

HHSs most recent initiative acknowledges that we desperately need more support in handling this pandemic. I want to urge however that this is not going to be a plug-and-play solution. Clinicians entering the workforce or returning from retirement will need training and support around COVID-19 vaccine administration, and we need to do everything we can to ensure this responsibility doesnt fall on our already over-worked frontline providers.

While HHS latest program to allow nursing students and recently retired nurses to support COVID-19 vaccination efforts is a step in the right direction, in some ways it is like putting a Band-Aid on something that needs sutures. There is a much bigger problem facing our nurses as they care for COVID patients from the ICU all the way to patients with long-haul symptoms in the community. Supporting vaccine distribution is critical to scaling the effort effectively and it adds a new dimension to the need for more cross training of our existing nursing workforce to create agility and efficiency within our existing health systems.

Hospitals have had to make impossible choices over the last few months. In many cases, elective procedures have been paused, forcing hospitals to furlough underutilized staff. However, these same facilities are experiencing massive nursing shortages in their ICUs, stepdown units, telemetry units and EDs. Instead of experiencing this staffing disparity, cross functional training can support load balancing of nurses across a hospital, preventing furloughs and staffing shortages.

How: Contact Ashley Beine at ashley.beine@wolterskluwer.com to schedule an interview with Anne Dabrow Woods. Journalists may also publish quotes above with proper attribution.

About Wolters Kluwer

Wolters Kluwer (WKL) is a global leader in professional information, software solutions, and services for the clinicians, nurses, accountants, lawyers, and tax, finance, audit, risk, compliance, and regulatory sectors. We help our customers make critical decisions every day by providing expert solutions that combine deep domain knowledge with advanced technology and services.

Wolters Kluwer reported 2019 annual revenues of 4.6 billion. The group serves customers in over 180 countries, maintains operations in over 40 countries, and employs approximately 19,000 people worldwide. The company is headquartered in Alphen aan den Rijn, the Netherlands.

Wolters Kluwer provides trusted clinical technology and evidence-based solutions that engage clinicians, patients, researchers and students with advanced clinical decision support, learning and research and clinical intelligence. For more information about our solutions, visit https://www.wolterskluwer.com/en/health and follow us on LinkedIn and Twitter @WKHealth.

For more information, visit http://www.wolterskluwer.com, follow us on Twitter, Facebook, LinkedIn, and YouTube.

Here is the original post:
Chief Nurse at Wolters Kluwer and Critical Care Nurse Practitioner Discusses HHS Public Readiness and Emergency Preparedness (PREP) Act - Business...

January 29, 2021

Click for PDF

With the 117th Congress now fully seated, the private sector is set to face greater scrutiny from the Legislative Branch than it has in a decade, as Democrats regain control of both chambers of Congress and the presidency for the first time since 2010. Democrats are assuming unitary control as a number of hot-button issues involving private sector entities are front and center in the public discoursemany of which are drawing bipartisan interestincluding COVID-19 relief spending, climate change, healthcare and prescription drug costs, cybersecurity breaches, and regulation of big technology companies. And, because Democratic committee chairs are likely to spend significantly less time investigating the Executive Branch under a Biden Administration, additional staff resources will be deployed on the private sector, which should expect the spotlight to be even brighter.

Unlike receiving a civil complaint or compulsory process in an Executive Branch investigation, when a congressional letter or subpoena arrives, targeted organizations may have only a matter of days to consider their response and devise a strategy, and often must do so amid significant media scrutiny and public attention. Congressional investigations often involve public attacks on a companys reputation, which can imperil the goodwill upon which the company has built its business and maintains its competitive advantages. It is therefore crucial that potential targets evaluate their exposure to likely investigations in the 117th Congress, familiarize themselves with how such inquiries unfoldincluding the rules and procedures that govern themand consider potential responses.

To assist possible targets and interested parties in assessing their readiness for responding to a potential congressional investigation, Gibson Dunn presents our view of the new landscape that the 117th Congress will present. We also present a brief overview of how congressional investigations are often conducted, Congress underlying legal authorities to investigate, and various defenses that can be raised in response. In addition, we discuss missteps that subjects of investigations sometimes make when receiving an inquiry, and best practices for how to respond.

As expected when Democrats regained control of the House Chamber in 2019 after eight years of GOP control, numerous private sector industries quickly saw a sharp uptick in congressional scrutiny. Moreover, as we explained in a prior client alert, upon assuming control of the House in the last Congress, Democrats expanded the investigative tools at their disposal in a number of ways. These expanded authorities have been carried over to the 117th Congress, and certain others have been added. Committees will organize over the coming weeks, and additional investigative tools could be added to their arsenals.

Expanding investigative powers: In the rules package for the 117th Congress, Democrats have continued the trend of expanding and strengthening their investigative powers. This includes permitting certain committees to issue subpoenas before the committees are formally organized. Specifically, the House has authorized the Chair of the Committee on Oversight and Reform to issue subpoenas related to the investigation into the accuracy and timing of the 2020 census, and the Chair of the re-authorized Select Subcommittee on the Coronavirus Crisis has the power to issue subpoenas related to its investigation into political interference at the Department of Health and Human Services and Centers for Disease Control and Prevention.

In addition to the strengthened subpoena power, Democrats will maintain broad deposition authority. In the prior Congress, Democrats expanded the Houses deposition authority by permitting staff counsel to conduct depositions and removing the requirement that a member be present during the taking of a deposition. As we previously noted, such broad authority makes it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed. It is also important to remember that, unlike in the Senate, nearly every House committee chair is empowered to issue a deposition subpoena unilaterally, that is, without the ranking members consent or a committee vote, after mere consultation with the ranking member.

Likely investigative priorities: As for investigative priorities, a wide array of topics is likely to be covered by House committees; however, Democrats have signaled that immediate priorities include investigating issues related to climate change and the ongoing coronavirus pandemic response. To that end, in addition to re-authorizing the House Select Subcommittee on the Coronavirus Crisis, the House also re-authorized the Select Committee on the Climate Crisis. The Subcommittee on the Coronavirus Crisis has been actively investigating various aspects of the pandemic since it was established by the CARES Act; it has a full suite of authorities, including subpoena power, pursuant to its organizing resolution. While much of the Subcommittees focus during the last Congress was on the governments pandemic response, we expect more of the Subcommittees attention will turn to private actors that are involved in the response or recipients of relief funds.

The Select Committee on the Climate Crisis was formed to deliver climate policy recommendations to Congress and was given the jurisdiction to study, make findings, and develop recommendations on policies, strategies, and innovations to tackle the climate crisis.[1] The Committee has the power to hold public hearings in connection with any aspect of its investigative functions.[2] The Committee does not have subpoena power of its own, but it can request that other committees issue subpoenas. The Committee has thus far focused on holding climate policy hearings on topics such as clean energy, industrial emissions, and the health impacts of the climate crisis rather than on conducting investigations. However, the Committee may turn its attention towards the private sectors impact on climate change as the Biden Administration makes climate change a focus of its first term.

House Democrats have authorized another new committee, the Select Committee on Economic Disparity and Fairness in Growth. This Committee has been given broad jurisdiction covering economic fairness, access to education, and workforce development.[3] It is possible this Committee will be interested in a range of private sector industries, including consumer-facing financial institutions, student loan lenders, and credit agencies. Like the Climate Crisis Committee, this committee does not have its own subpoena power and must rely on standing committees to issue subpoenas in support of its investigations. This arrangement makes it unlikely that either of these select committees investigations will involve the issuance of subpoenas unless House Democratic leadership tasks this or the Climate Crisis Committee with a contentious investigation and instructs standing committees to back up the investigation with subpoena authority.

While the Democrats focus is likely to shift to the private sector as the Biden Administration begins its term, there will no doubt be a continued desire to investigate former President Trump and the outgoing administration, particularly in light of the violent events at the Capitol on January 6. To that end, the House Democrats new rules package includes explicit language allowing the House to issue subpoenas to the President, and the Vice President, whether current or former, in a personal or official capacity as well as White House and executive office employees.[4] Additionally, private parties with business connections to President Trump or his organization may continue to face scrutiny.

Democrats will steer the Senates investigative agenda during the 117th Congress after ten years of being in the minority. While Senate committees have yet to organize and publish their rules, it is likely that Democrats will spare little time in getting a number of investigations off the ground, particularly those that complement the Biden Administrations first-100-days policy priorities.

Key committees to watch: Two committees to pay particular attention to will be the Senate Finance Committee and the Senate Committee on Banking, Housing and Urban Affairs. Senator Ron Wyden (D-OR) is expected to become Chairman of the Senate Finance Committee. Senator Wyden has a reputation as an aggressive investigator, and his past work has included investigations into international trade issues, the NRA, tax benefit abuse, and other topics. Recently, Senator Wyden, together with Senator Grassley (R-IA), issued a report illuminating the extensive connections among opioid manufacturers, opioid-related products, and tax-exempt entities. Wyden and Grassley also teamed up last Congress on a two-year investigation into insulin pricing. Companies can expect Senator Wyden to continue to pursue investigations into a wide range of consumer protection issues and other topics.

The Senate Committee on Banking, Housing and Urban Affairs is similarly likely to be active. Senator Sherrod Brown (D-OH) is expected to become Chairman of the Committee and likely will conduct aggressive oversight of the banking industry. Senator Elizabeth Warren (D-MA) may become Chairwoman of the Subcommittee on Financial Institutions and Consumer Protection, or even of a newly-created oversight committee. This would give Senator Warren oversight and investigation authority, including the ability to hold hearings and to issue subpoenas. Senator Warren has long been a proponent of broader regulation of financial institutions, including calling for stricter separation between commercial banks and investment banks and for efforts to expand access to lenders for average Americans.

Another committee to watch is the Commerce, Science, and Transportation Committee, which Senator Maria Cantwell (D-WA) is expected to chair. The panel has a wide set of responsibilities, including overseeing the regulation of technology companies and handling transportation infrastructureboth issues that are likely to demand attention in the new Congress. It also sets policy for research agencies including NSF, the National Oceanic and Atmospheric Administration, and the National Institute of Standards and Technology. Senator Cantwell, a former technology industry executive, has a strong interest in research and climate issues, which could influence the panels work, particularly in light of the Biden Administrations stated commitment to advancing climate change legislation. While Senator Cantwell has historically not been an active investigator, we can expect the Committee to be active in its legislative activities, and it may launch investigations that are ancillary to these legislative activities.

One final investigative body of note is the Senate Permanent Subcommittee on Investigations (PSI), which is a subcommittee of the Senate Homeland Security and Government Affairs Committee. PSI has the responsibility of studying and investigating the efficiency and economy of operations relating to all branches of the government and is also tasked with studying and investigating the compliance or noncompliance with rules, regulations, and laws, investigating all aspects of crime and lawlessness within the United States which have an impact upon or affect the national health, welfare, and safety, including syndicated crime, investment fraud schemes, commodity and security fraud, computer fraud, and the use of offshore banking and corporate facilities to carry out criminal objectives. While it is unclear who will chair PSI at this time, we can expect it to be active in its investigations.. When Democrats last controlled the Senate, former Michigan Senator Carl Levin chaired PSI and launched a series of high profile and wide-ranging investigations of the financial sector. Its likely the next Democratic Chair will follow Levins lead and adopt an aggressive posture. Also worth watching is who will fill former Senator Kamala Harriss seat on PSI.

Potential Changes to Subpoena and Deposition Authority: We will also be closely watching whether Senate Democrats strengthen their investigative arsenal, particularly when it comes to subpoena and deposition authority. With respect to subpoenas, currently only the Chair of PSI is authorized to issue a subpoena unilaterally, a significant difference with the House where nearly all committee chairs may do so. Because Senate investigations have historically been more bipartisan than those in the House, there has been a longstanding hesitation on both sides to expand unilateral subpoena power. It remains to be seen if that philosophy will continue to hold sway in the 117th Congress.

It is also important to keep a close watch on Senate deposition authority. In the last Congress, seven Senate bodies had authorization to take depositions: (1) Judiciary, (2) Homeland Security and Governmental Affairs (HSGAC), (3) PSI, (4) Aging, (5) Indian Affairs, (6) Ethics, and (7) Intelligence. Of these, HSGAC, PSI, Judiciary, and Aging can subpoena an individual to appear at a deposition. HSGAC, Judiciary, and Aging rules require concurrence of the ranking member or a Committee vote to authorize the issuance of a subpoena, while the Chair of PSI is empowered to issue a subpoena unilaterally. Moreover, staff is expressly authorized to take depositions in each of these committees except in the Indian Affairs and Intelligence Committees. However, heretofore the Senates view is that Senate Rules do not authorize staff depositions pursuant to subpoena. Hence, Senate committees cannot delegate that authority to themselves through committee rules, absent a Senate resolution or a change in Senate rules. It remains to be seen whether and to what extent Democrats may expand these authorities.

As a practical matter, numerous motivations (not always legitimate) often drive a congressional inquiry, including: advancing a chairs political agenda or public profile, exposing alleged criminal wrongdoing or unethical practices, pressuring a company to take certain actions, and responding to public outcry. Recognizing the presence of these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy.

Congresss power to investigate is broadas broad as its legislative authority. The power of inquiry is inherent in Congresss authority to enact and appropriate under the Constitution.[5] And while Congresss investigatory power is not a limitless power to probe any private affair or to conduct law enforcement investigations, but rather must further a valid legislative purpose,[6] the term legislative purpose is understood broadly to include gathering information not only for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.[7]

Congressional investigations present a number of unique challenges not found in the familiar arenas of civil litigation and Executive Branch investigations. Unlike the relatively controlled environment of a courtroom, congressional investigations often unfold in a hearing room in front of television cameras and on the front pages of major newspapers and social media feeds.

Congress has many investigatory tools at its disposal, including: (1) requests for information; (2) interviews; (3) depositions; (4) hearings; (5) referrals to the Executive Branch for prosecution; and (6) subpoenas for documents and/or testimony. If these methods fail, Congress can use its contempt power in an effort to punish individuals or entities who refuse to comply with subpoenas. It is imperative that targets be familiar with the powers (and limits) of each of the following tools to best chart an effective response:

As noted above, Congress will usually seek voluntary compliance with its requests for information or testimony as an initial matter. If initial requests for voluntary compliance meet with resistance, however, or if time is of the essence, it may compel disclosure of information or testimony through the issuance of a congressional subpoena.[14] Like Congresss power of inquiry, there is no explicit constitutional provision granting Congress the right to issue subpoenas.[15] But the Supreme Court has recognized that the issuance of subpoenas is a legitimate use by Congress of its power to investigate and its use is protected from judicial interference in some respects by the Speech or Debate Clause.[16] Congressional subpoenas are subject to few legal challenges,[17] and there is virtually no pre-enforcement review of a congressional subpoena in most circumstances.[18]

The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee.[19] While nearly every standing committee in the House and Senate has the authority to issue subpoenas, the specific requirements for issuing a subpoena vary by committee. These rules are still being developed by the committees of the 117th Congress, and can take many forms.[20] For example, several House committees authorize the committee chair to issue a subpoena unilaterally and require only that notice be provided to the ranking member. Others, however, require approval of the chair and ranking member, or, upon the ranking members objection, require approval by a majority of the committee.

Failure to comply with a subpoena can result in contempt of Congress. Although Congress does not frequently resort to its contempt power to enforce its subpoenas, it has three potential avenues for seeking to implement its contempt authority.

While potential defenses to congressional investigations are limited, they are important to understandlikely more so now with Democrats taking control of both chambers. The principal defenses are as follows:

As discussed above, a congressional investigation is required generally to relate to a legislative purpose, and must also fall within the scope of legislative matters assigned to the particular committee at issue. In a challenge based on these defenses, the party subject to the investigation must argue that the inquiry does not have a proper legislative purpose, that the investigation has not been properly authorized, or that a specific line of inquiry is not pertinent to an otherwise proper purpose within the committees jurisdiction. Because courts generally interpret legislative purpose broadly, these challenges can be an uphill battle. Nevertheless, this defense should be considered when a committee is pushing the boundaries of its jurisdiction or pursuing an investigation that arguably lacks any legitimate legislative purpose.

Constitutional defenses under the First and Fifth Amendments may be available in certain circumstances. While few of these challenges are ever litigated, these defenses should be carefully evaluated by the subject of a congressional investigation.

When a First Amendment challenge is invoked, a court must engage in a balancing of competing private and public interests at stake in the particular circumstances shown.[34] The critical element in the balancing test is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.[35] Though the Supreme Court has never relied on the First Amendment to reverse a criminal conviction for contempt of Congress, it has recognized that the First Amendment may restrict Congress in conducting investigations.[36] Courts have also recognized that the First Amendment constrains judicially compelled production of information in certain circumstances.[37] Accordingly, it would be reasonable to contend that the First Amendment limits congressional subpoenas at least to the same extent.

The Fifth Amendments privilege against self-incrimination is available to witnessesbut not entitieswho appear before Congress.[38] The right generally applies only to testimony, and not to the production of documents,[39] unless those documents satisfy a limited exception for testimonial communications.[40] Congress can circumvent this defense by granting transactional immunity to an individual invoking the Fifth Amendment privilege.[41] This allows a witness to testify without the threat of a subsequent criminal prosecution based on the testimony provided. Supreme Court dicta also suggests the Fourth Amendment can be a valid defense in certain circumstances related to the issuance of congressional subpoenas.[42]

Although committees in the House and Senate have taken the position that they are not required to recognize the attorney-client privilege, in practice the committees generally acknowledge the privilege as a valid protection. Moreover, no court has ruled that the attorney-client privilege does not apply to congressional investigations. Committees often require that claims of privilege be logged as they would in a civil litigation setting. In assessing a claim of privilege, committees balance the harm to the witness of disclosure against legislative need, public policy, and congressional duty. Notably, in 2020, the Supreme Court for the first time acknowledged in dicta that the attorney-client privilege is presumed to apply in congressional investigations. In Trump v. Mazars, the Supreme Court stated that recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.[43] It remains to be seen if members and committee staffers will take the same view going forward.

The work product doctrine protects documents prepared in anticipation of litigation. Accordingly, it is not clear whether or in what circumstances the doctrine applies to congressional investigations, as committees may argue that their investigations are not necessarily the type of adversarial proceeding required to satisfy the anticipation of litigation requirement.[44]

Successfully navigating a congressional investigation requires a multifaceted mastery of the facts at issue, careful consideration of collateral political events, and crisis communications.

Here are some of the more common mistakes we have observed:

The consequences of inadequate preparation can be disastrous on numerous fronts. A keen understanding of how congressional investigations differ from traditional litigation and even Executive Branch or state agency investigations is therefore vital to effective preparation. The most successful subjects of investigations are those that both seek advice from experienced counsel and employ multidisciplinary teams with expertise in government affairs, media relations, e-discovery, and the key legal and procedural issues.

* * *

Democratic control of both congressional chambers and the White House is certain to usher in a more perilous landscape over the next two years for a wide array of public-facing industry actors, particularly those intertwined with current policy debates and hot button issues. Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations. If you or your company become the subject of a congressional inquiry, or if you are concerned that such an inquiry may be imminent, please feel free to contact us for assistance.

____________________

[1] H.R. Res. 6, 116th Cong. 104(f)(2)(B) (2019).

[2] Id.

[3] H.R. Res. 8, 117th Cong. 4(g)(2)(B) (2021).

[4] H.R. Res. 8, 117th Cong. 2(m) (2021).

[5] Barenblatt v. United States, 360 U.S. 178, 187 (1957).

[6] See Wilkinson v. United States, 365 U.S. 399, 408-09 (1961); Watkins v. United States, 354 U.S. 178, 199-201 (1957).

[7] Michael D. Bopp, Gustav W. Eyler, & Scott M. Richardson, Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations, 25 Corn. J. of Law & Pub. Policy 453, 456 (2015).

[8] Id.

[9] See H.R. Res. 6, 116th Cong. 103(a)(1) (2019).

[10] See The Power to Investigate: Table of Authorities of House and Senate Committees for the 116th Congress, https://www.gibsondunn.com/wp-content/uploads/2019/07/Power-to-Investigate-Table-of-Authorities-House-and-Senate-Committees-116th-Congress-07.2019.pdf. Consistent with past practice, Gibson Dunn will release a client alert outlining the specific subpoena rules for each committee in the 117th Congress as soon as they become available.

[11] See 165 Cong. Rec. H1216 (Jan. 25, 2019) (statement of Rep. McGovern).

[12] Bopp, supra note 7, at 457.

[13] Id. at 456-57.

[14] Id. at 457.

[15] Id.

[16] Eastland v. U.S. Servicemens Fund, 421 U.S. 491, 504-05 (1975).

[17] Bopp, supra note 7, at 458.

[18] Id. at 459. The principal exception to this general rule arises when a congressional subpoena is directed to a custodian of records owned by a third party. In those circumstances, the Speech or Debate Clause does not bar judicial challenges brought by the third party seeking to enjoin the custodian from complying with the subpoena, and courts have reviewed the validity of the subpoena. See, e.g., Trump v. Mazars, 140 S. Ct. 2019 (2020); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018).

[19] Id. at 458.

[20] Gibson Dunn will detail these rules when they are finalized in an upcoming publication.

[21] Bopp, supra note 7, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).

[22] Id.

[23] Id. at 466.

[24] Id. at 461.

[25] See 2 U.S.C. 192 and 194.

[26] Bopp, supra note 7, at 462.

[27] See 2 U.S.C. 194.

[28] Bopp, supra note 7, at 467.

[29] See 2 U.S.C. 288b(b), 288d.

[30] Bopp, supra note 7, at 465. However, the law on this point is currently unsettled after a panel of the U.S. Court of Appeals for the D.C. Circuit ruled in August of 2020 that the House may not seek civil enforcement of a subpoena absent statutory authority. Committee on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. 2020). The ruling is currently being considered en banc.

[31] Id.

[32] See 165 Cong. Rec. H30 (Jan. 3, 2019) (If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committees subpoena(s) in federal district court.) (statement of Rep. McGovern); House Rule II.8(b) (the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters).

[33] See H. Res. 430 (116th Cong.) (a vote of [BLAG] to authorize litigation . . . is the equivalent of a vote of the full House of Representatives); Br. for House Committee at 33, Committee on Ways and Means, United States House of Representatives v. U.S. Dept of the Treasury, No. 1:19-cv-01974 (D.D.C. 2019) (stating BLAG authorized suit by House Ways & Means Committee to obtain President Trumps tax returns pursuant to 26 U.S.C. 6103(f)).

[34] Barenblatt, 360 U.S. 109, 126 (1959).

[35] Id.

[36] See id. at 126-7.

[37] See, e.g., Perry v. Schwarzenegger, 91 F.3d 1147, 1173 (9th Cir. 2009).

[38] See Quinn v. United States, 349 U.S. 155, 163 (1955).

[39] See Fisher v. United States, 425 U.S. 391, 409 (1976).

[40] See United States v. Doe, 465 U.S. 605, 611 (1984).

[41] See 18 U.S.C. 6002; Kastigar v. United States, 406 U.S. 441 (1972).

[42] Watkins, 354 U.S. at 188.

[43] See Trump v. Mazars USA, LLP (591 U.S. ___ (2020)).

[44] See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997).

The following Gibson Dunn attorneys assisted in preparing this client update: Michael D. Bopp, Thomas G. Hungar, Roscoe Jones Jr., Alexander W. Mooney, Rebecca Rubin and Jillian N. Katterhagen.

Gibson, Dunn & Crutchers lawyers areavailable to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firms Congressional Investigations group in Washington, D.C.:

Michael D.Bopp Chair, Congressional Investigations Group (+1 202-955-8256, mbopp@gibsondunn.com)Thomas G. Hungar (+1 202-887-3784, thungar@gibsondunn.com)Roscoe Jones, Jr. (+1 202-887-3530, rjones@gibsondunn.com)

2020 Gibson, Dunn & Crutcher LLP

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

More here:
Congressional Investigations in the 117th Congress: Choppy Waters Ahead for the Private Sector? - Gibson Dunn

2020 saw the courts continuing to play an important role in health policy with several notable lawsuits related to the Affordable Care Act (ACA). Several other Trump administration policies were challenged, including Medicare payment policies, price transparency, how the Medicaid program can change and whether Medicaid beneficiaries can sue over curtailed benefits, and immigration changes affecting access to programs like Medicaid. In 2021, the courts will continue to play an important role.

Texas v. United States.The U.S. Supreme Court held oral arguments concerning this most consequential challenge to the ACA on Nov. 20, 2020. The courts decision is expected in the spring. In this case, a group of Republican-controlled states and two Texas residents argue that the entire ACA became unconstitutional when Congress eliminated the penalty for individuals who fail to obtain health insurance. In Oct. 2020, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling stating the individual mandate was unconstitutional because it can no longer be justified as a tax since Congress set the penalty at 0. However, the panel also remanded the case to the lower court to determine what portions of the ACA are or are not severable from the individual mandate.

Another 17 states, led by California, were permitted by the trial court to intervene in the case and defend the ACA(the state intervener-defendants). Subsequently, the 5thCircuit allowed four more states to intervene in the case on appeal, bringing the total number of states defending the ACA in the case to 21. This coalition of Democratic attorneys general asked the U.S. Supreme Court to take up the case and not wait for the Texas court to rule on whether some or all of the ACA provisions are so intertwined with the individual mandate that they, too, must be deemed unconstitutional. The court agreed to do so.

Risk corridors.On April 27, 2020, the Supreme Court ruled in favor, 8-1, of commercial health insurers arguing that they are owed $12 billion under the ACAs risk corridor program. The risk corridor program was designed to compensate insurers who lost money in the early years of the exchanges, but congressional Republicans blocked CMS from making most of the promised payments.

Association health plans.One lawsuit challenged the Trump administrations expansion of association health plans (AHP) through a Department of Labor rule that sought to make it easier for small employers to band together and offer plans that do not have to comply with ACA consumer protections. A panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in November 2019.

On July 22, 2020, two employers brought parallel litigation in Texas, asking for a declaratory judgment that their health coverage arrangement is a single-employer self-insured group health plan (and thus exempt from most ACA rules). The employers had requested an advisory opinion from the Department of Labor, which concluded that the arrangement did not qualify as a single-employer group health plan. Briefing was completed in late April of 2020.

On Aug. 3, 2020, the District Court for the Southern District of New York gave its opinion in favor of New York State, ruling that the Department of Labor too broadly defined the term healthcare worker, and exceeded its authority as a result. The Court ruled that the Labor Departments definition was not in line with what Congress intended in enacting the Families First Coronavirus Response Act (FFCRA) and, as a result, could lead to non-clinical employees or medical practice affiliates being excluded from the FFCRA protections.

In oral arguments on the appeal held Nov. 14, 2020, the Court of Appeals for the District of Columbia Circuit was interested in narrowing the ruling, establishing whether the Department of Labors (DOL) new definition was reasonable. On Jan. 28, 2021 the Department of Justice (DOJ) requested a 60-day abeyance to give time for the Biden Administration to review the issues in the case and determine how to proceed.

Short-term plans.Similar to the association health plan case, this case involved the Trump administrations expansion of short-term, limited-duration plans, which also need not comply with ACA protections.

On July 22, 2020, a divided panel of the DC Circuit upheld the short-term plan rule in July 2020, concluding that the governments interpretation was entitled to deference and was neither inconsistent with nor impermissible under the ACA or HIPAA. The lead plaintiff, the Association for Community Affiliated Plans, suggested that it would ask for en banc review by a full panel of judges on the DC Circuit.

Cost-sharing reductions (CSR).Litigation occurred over the ACAs cost-sharing reduction program, which was intended to compensate insurers for setting low deductibles and copayments on the exchanges. In 2017, the Trump administration decided to stop making the CSR payments, prompting numerous lawsuits from insurers. The insurers have won various lower-court rulings, and a consolidated group of the lawsuits was on appeal at the U.S. Court of Appeals for the Federal Circuit. Oral arguments were held Jan. 9, 2020

The CSR litigation raised legal issues similar to those posed by the risk corridor case at the Supreme Court because both involve government payments to insurance companies that were intended by the drafters of the ACA but subsequently revoked.

On Aug. 17, 2020, a three-judge panel of the Court of Appeals for the Federal Circuit issued two decisions for Sanford Health Plan v. United States and Community Health Choice v. United States. The Court concluded that under Section 1402 of the ACA, insurers are entitled to unpaid cost-sharing reductions (CSRs).

The Federal Circuit agreed with the lower courts that Section 1402 imposes an unambiguous obligation on the federal government to make CSR payments to insurers and that this obligation is enforceable for damages. The three-judge panel limited the amount of unpaid CSRs that insurers can recover based on premium loading.

Contraceptive mandate.On July 22, 2020, the U.S. Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania, upholding the Trump Administrations rules that allow religious and moral exemptions to the ACAs contraceptive mandate. The Court vacated the prior nationwide injunction by a federal judge in Pennsylvania and remanded the case to the lower courts. Directly after that, the Court separately remanded an appeal of a similar injunction by a California federal judge from the Ninth Circuit Court of Appeals. Although the Trump administration, Little Sisters of the Poor, and the March for Life Education and Defense Fund had separately appealed the Ninth Circuit decision before, the Court had not taken action on those appeals while Little Sisters was pending and quickly remanded those challenges.

Nondiscrimination provisions.The Supreme Court heard Bostock v. Clayton Country, Georgia, a lawsuit over the Trump administrations efforts to weaken some of the ACAs nondiscrimination provisions, codified in Section 1557 of the law. HHS was finalizing regulatory changes expected to roll back Obama-era protections for groups such as transgender people, gay and lesbian people, and people who have terminated a pregnancy. The final rule led to a legal challenge.

On July 22, 2020, the Trump administration issued its new final rule in June 2020 to implement Section 1557. There is a new round of litigation over the final rule on Section 1557. There were at least five lawsuits challenging the rule, which include coalitions of plaintiffs arguing that the rule should be invalidated. Each lawsuit asks the court to vacate the Trump administrations rule in its entirety and prevent HHS from implementing or enforcing its provisions. They argued that the 2020 rule violates the Administrative Procedure Act (APA) as arbitrary and capricious and contrary to law. They also argued that the rule exceeds HHSs statutory authority and violates the Fifth Amendment.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County, and found that discrimination based on gender encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Trump administration from implementing parts of the final rule.

A New York court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination. After the plaintiffs requested clarification of the preliminary injunction order, the court directed the plaintiffs to submit a list of provisions of the 2020 rule, beyond the definition of gender discrimination, that can be kept despite the Supreme Courts Bostock decision for the courts consideration.

The D.C. court blocked the implementation of provisions excluding gender stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination. Several other legal challenges are pending.

Take care clause.This broad-based lawsuit, Columbus et al. v. Trump, was brought by a group of cities argues that the Trump administration violated the Constitution by sabotaging the ACA. The lawsuit said President Trumps various administration actions weakening the ACA conflict with the Constitutions requirement that the president take care that the laws be faithfully executed. The case was filed in 2018 and went to the federal district court in Maryland.

In April 2020, the district court held that the lawsuit could proceed under the Administrative Procedure Act (APA) but not the Take Care Clause of the Constitution. The plaintiffs did not appeal that ruling to the Fourth Circuit and will instead turn to their claims that major provisions of the 2019 payment rule violate the APA.

The most prominent legal issue in Medicaid during the Trump administration was the fight over work requirements. On Dec. 4, 2020, Supreme Court granted Arkansas and Trump administration petitions for certiorari in Arkansas v. Gresham and Azar v. Gresham. The Court will hear the case in early 2021.

CMS advocated for work requirements to be included in Section 1115 waivers. As waivers including work requirements were approved, opponents responded with lawsuits challenging those waivers. District of Columbia District Court Judge James Boasberg repeatedly sided with the opponents of work requirements ordering Arkansas to suspend its work requirement program and blocking the policy from taking effect in Kentucky and New Hampshire.

Other lawsuits challenged the policy in Indiana and Michigan. Boasbergs rulings against work requirements were on appeal at the D.C. Circuit, which heard oral arguments in October 2020. The D.C. Circuit considered the case on an expedited schedule.

On July 22, 2020, the Supreme Court heard Gresham v. Azar. The District Court for the District of Columbia set aside state Medicaid waivers with work requirements. That decision was affirmed by a unanimous panel of the Court of Appeals for the District of Columbia in a decision written by Judge David Sentelle. The attorney general of Arkansas and the Trump administration filed cert petitions on July 13, 2020

Beneficiaries right to sue.Another policy tested in the courts is the extent to which beneficiaries have a right to sue state officials to challenge state actions that curtail Medicaid benefits. The ability to bring such lawsuits in federal court has long been viewed as an important safeguard for beneficiaries, but in recent years, some courts have expressed doubt about the legal theories underlying such lawsuits.

The U.S. Supreme Court declined to weigh in on the issue in 2018. However, currently pending at the 5th Circuit is a lawsuit brought by beneficiaries challenging Texas attempt to remove abortion providers from its Medicaid program. The ruling could extend far beyond the abortion context and help clarify the authority of beneficiaries to sue over a wide range of allegedly unlawful coverage policies by states.

In Medicare, CMS took part in over two controversial payment policies that the agency says will bring down costs but hospitals describe as illegal. Continuing to fight both policies is a priority for the hospital industry in 2021.

340B cuts.One lawsuit challenges the agencys 2018 and 2019 reimbursement cuts for drugs in the 340B drug discount program. Hospitals argued that the agency does not have the authority to make those cuts, and a federal district judge agreed. Oral arguments were heard in Nov. 2019.

On July 31, 2020, the Court of Appeals for the District of Columbia Circuit overturned the 2018 district court decision that found the Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced 2018 and 2019 Medicare payment rates by 30% for many of the hospitals in the 340B Drug-Pricing Program.

In December, 2020, the American Hospital Association, joined by four other national hospital groups and hospital pharmacists representing participants in the 340B drug pricing program, filed afederal lawsuitagainst the Department of Health and Human Services over the departments failure to enforce program requirements and halt drug company actions that undermine the program including limiting the 340b program through contract pharmacies.

The groups are joined in the lawsuit by three 340B hospitals serving patient communities in need that have been harmed by the companies refusals to provide discounts on prescription drugs dispensed at community-based pharmacies, as required by the 340B program.

Site neutrality.American Hospital Association et al. v. Azar, challenged CMS site-neutral policy, which cut payments for outpatient clinic visits at certain off-campus hospital facilities in 2019. Under the policy, the agency reimbursed hospitals for those visits at a rate equivalent to the cost of such services provided in doctors offices under the physician fee schedule. In September 2019, a judge from the District Court for the District of Columbia said CMS lacked authority to make the cuts and vacated them. As with the 340B reimbursement cuts, the litigation did not stop CMS from going ahead with phasing in the cuts in its 2020 outpatient rule.

On July 17, 2020, the Court of Appeals for the District of Columbia Circuit reversed the district court to uphold the 2019 Medicare payment rule expanding outpatient siteneutral payment policies to apply to all hospital outpatient clinic visits, i.e., even at longstanding off-campus provider-based hospital departments (PBDs). The decision by the Court of Appeals allowed the Expanded Site-Neutral Policy to stand, unless reversed by the Supreme Court.

CMS faces drug and hospital industry-led legal challenges to two final rules issued last year that require drug companies and hospitals to disclose more information about pricing. Both challenges are based on the First Amendment.

Drug prices.A drug-pricing rule, issued in May 2019 by the U.S. Food and Drug Administration (FDA), required pharmaceutical companies to include the list prices of their drugs in television advertising, which led to the lawsuit Merck & Co. Inc. et al. v. U.S. Department of Health and Human Services et al. On June 16, 2020, a three-judge panel from the D.C. Circuit Court backed a lower court's decision that the Department of Health and Human Services (HHS) overstepped its regulatory authority. The case is on appeal at the D.C. Circuit.

Hospital prices and transparency.The hospital transparency rule, issued in November 2019 by CMS, required hospitals to publish the confidential rates they negotiate with private insurers. The hospital industry sued, arguing the rule is highly burdensome and violates hospitals free speech. The district judge presiding over the case set an expedited schedule to review it.

In late June 2020, the district court upheld the Trump administrations rule to require hospitals to publicly disclose negotiated rates and prices of certain shoppable items and services. The rule was promulgated under Section 2718(e) of the Public Health Service Act, a provision of the ACA known as the medical loss ratio provision. Hospitals challenged the rule, arguing that the government exceeded its authority, that the rule violates the First Amendment, and that the rule is arbitrary and capricious. The American Hospital Association, the lead plaintiff, quickly appealed to the decision to the DC Circuit. However, on December 29, 2020, the Court of Appeals for the District of Columbia upheld the district courts ruling and rejected the American Hospital Association (AHA) and other hospital groups challenge of the hospital price transparency rule.

AHA had filed for an emergency motion to block the rule from going into effect on Jan. 1, 2021, but that motion was rejected.

Immigrants and health insurance.Two immigration policies finalized in 2019 have health law consequences. The public charge rule, issued in August 2019 by the Department of Homeland Security, and an executive proclamation on immigration, issued in October 2019, have led to two lawsuits.

The public charge rule makes it harder for legal immigrants who receive certain forms of public assistance, including Medicaid, to remain in the country and become permanent U.S. residents. The proclamation requires new immigrants seeking entry into the country to demonstrate that they will be able to obtain health insurance, not including subsidized ACA plans or Medicaid.

On Aug. 5, 2020, a Fourth Circuit panel ruled 2-1 in favor of the Trump administration policy and reversed the nationwide injunction of the policy issued by a federal judge in Maryland.

On Jan. 11, 2020, the U.S. Court of Appeals for the Fourth Circuit was the only federal appeals court to allow the rule to proceed.

The full panel of judges is scheduled to review the August 2020 decision the week of Feb. 8, 2021.

Conscience rule.The rule, issued in May 2019 by the HHS Office of Civil Rights, expands the ability of medical professionals to refuse to provide care based on religious or moral objections. On Jan. 11, 2021, the Ninth Circuit is scheduled to hear arguments Feb. 8, 2021 over the legality of a rule that lets anyone involved in the delivery of health care to deny patients care based on their religious and moral beliefs.

Follow this link:
The Courts and Healthcare Policy | McGuireWoods Consulting - JDSupra - JD Supra