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Health Headlines – May 15, 2017

15 May 2017


Anthem Terminates $54 Billion Cigna Merger after Delaware Chancery Court Denies Injunction Anthem announced on Friday, May 12, 2017 that it delivered formal notice to Cigna of termination of the parties’ merger agreement. The announcement comes on the heels of a Delaware Chancery judge’s denial, issued late Thursday, of Anthem’s request for a preliminary injunction to block Cigna from terminating the merger agreement.

The Delaware Court of Chancery denied Anthem’s requested injunction in a hearing late Thursday, finding that Anthem was unlikely to overcome the many obstacles to consummation of the deal. The U.S. District Court for the District of Columbia blocked the transaction in February of this year after the U.S. Department of Justice (DOJ) and several States challenged the deal on antitrust grounds. That ruling was upheld in April by the U.S. Court of Appeals for the District of Columbia Circuit. Anthem announced earlier this month that it planned to petition the United States Supreme Court for certiorari. The Delaware Court of Chancery explained that Anthem would not only have to win a Supreme Court appeal – it would also have to reach a settlement with DOJ regarding various anticompetitive concerns raised by DOJ and obtain an order from the Chancery Court ordering specific performance.

The denial of the injunction would have allowed Cigna to move forward with terminating the deal, but the ruling was stayed until after the weekend to allow Anthem time to appeal the denial to the Delaware Supreme Court. However, Anthem announced Friday that it would not pursue an appeal and had instead delivered formal notice to Cigna of termination of the parties’ merger agreement. This move leaves the parties to continue litigation over a $1.85 billion breakup fee and billions more in damages that Cigna alleges it is owed.

The case is Anthem Inc. v. Cigna Corp., No. 2017-0114 in the Delaware Court of Chancery (opinion unavailable).

Reporter,  J. Gardner Armsby, Atlanta, +1 404 572 2760,

Appeals Court Upholds Charity Care Patient Population Exclusion from DSH Payments -- On May 9, 2017, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower court ruling denying hospitals from including New Jersey Charity Care Program (NJCCP) patients in the hospitals’ disproportionate share hospital (DSH) payment formula.  The ruling in Cooper Hospital University Medical Center v. Price, No. 16-5165 (D.C. Cir. May 9, 2017) confirmed that the U.S. Department of Health and Human Services (HHS) can exclude State charity care patients that are not part of a Section 1115 waiver from counting toward additional Medicare hospital payments designated for low-income patient care.

In Cooper, hospitals in two consolidated appeals argued that HHS incorrectly interpreted and applied this statutory formula, which requires HHS to count the number of patient days attributable to patients “eligible for medical assistance under a State plan approved under [the Medicaid statute].” 42 U.S.C. § 1395ww(d)(5)(F)(vi)(II).  The hospitals argued that HHS could not exclude patient days accrued under NJCCP from the reimbursement calculation.  Specifically, the hospitals’ position was that HHS’s decision to exclude NJCCP patient days from DSH calculations violated their equal protection rights because HHS allows other States’ charity program patients to be counted if they are part of HHS’s waiver program.

The HHS waiver program at issue in Cooper is found in Section 1115 of the Social Security Act (“Section 1115 expansion-waiver programs”).  Section 1115 expansion-waiver programs allow HHS to grant States approval for “experimental, pilot, or demonstration projects that promote the objectives of the Medicaid and Children’s Health Insurance Program (CHIP) programs” in order to expand eligibility to individuals who are not otherwise Medicaid or CHIP eligible; provide services not typically covered by Medicaid; or use innovative service delivery systems that improve care, increase efficiency, and reduce costs.  More information on Section 1115 expansion-waiver programs can be found here

The court acknowledged that Section 1115 expansion-waiver programs are Federally approved.  Thus, HHS’s decision to distinguish between Federally-approved programs and State-only programs, like NJCCP, is “congressionally sanctioned.”  Additionally, the court found that “while the Secretary [of HHS] has the discretion to include patient days for Section 1115 programs, he is prohibited from including state charity care patient days accrued through NJCCP.”  The court also noted that “a hospital’s eligibility to receive a larger Medicare-DSH payment neither affects a fundamental right nor burdens a suspect class,” and, therefore, HHS must only show “some legitimate governmental purpose in order to prevail against the Appellants’ Equal Protection arguments.”

The court found that there was clearly a legitimate purpose for HHS to exclude NJCCP patient days from the hospitals’ DSH payment formula.  The court agreed with the lower court’s holding that “expansion waivers further the goals of Medicaid, HHS has considerably more oversight of Section 1115 expansion-waiver programs than it does over state charity care programs, and the decision to approve expansion-waiver programs and include them in the Medicare DSH reimbursement is made on a case-by-case basis.”

The court’s decision was not surprising as several others cases have held similarly in the past.  However, it does emphasize the importance of distinguishing between populations included in Section 1115 waiver programs and those subject only to a State charity care program for DSH reimbursement purposes.  The court’s decision in Cooper Hosp. Univ. Med. Ctr. v. Price can be read in its entirety here.

Reporter, Kiel Yager, Sacramento, +1 916 321 4811,


King & Spalding Roundtable on CMS’s Proposals for the 2018 Inpatient and Long Term Care Prospective Payment Systems – Please join us for on Thursday, May 25, 2017 from 1:00 p.m. to 2:15 p.m. ET for a Roundtable webinar that will explore the recently released proposed rules updating Medicare’s Inpatient Prospective Payment System (IPPS) and Long-Term Care Hospital Prospective Payment System (LTCH PPS).  The webinar will analyze the impact of the proposed updates to DSH/UCC Payments, the Two-Midnight Rule, and Pay-for-Performance, among others.  In addition, this webinar will help participants interested in submitting comments to CMS by the June 13, 2017 deadline effectively advocate their positions.  There is no charge to participate, and you do not have to be a client to attend. To register, please click here.

King & Spalding Roundtable on New Reporting Requirements and Implications for the Updated Final Rule – King & Spalding invites you to join us on Wednesday, May 31, 2017 from 1:00 – 2:30 p.m. EDT for our next Life Sciences & Healthcare Roundtable:  “ – Navigating the New Rule and the Expansion of Public Disclosure of Your Clinical Trial Data.”  During this webinar, we will discuss the Clinical Trials Registration and Results Information Submission final rule, which became effective on January 18, 2017.  In this  webinar, we will clarify the definition of “Applicable Clinical Trials” that must be registered,  discuss changes in registration information that must be submitted, and review the amended timelines for submission. We will also discuss the major new requirement for the submission of results and adverse events for clinical trials of drugs and medical devices that have not yet been authorized for marketing for any use.  Finally, we will consider the broader implications of expanded public disclosure of clinical trial data, including the potential ramifications for SEC-related disclosures.  This presentation is free of charge, and you do not have to be a client to attend.  Find out more information and register for the webinar here.

Save the Date: King & Spalding Reception at the 2017 BIO International Convention – Please join King & Spalding at a reception during the 2017 BIO International Convention in San Diego. The reception will be held at Analog Bar on Tuesday, June 20, 2017, from 5:30 - 8:30 p.m. Please click here to register.