News & Insights


November 28, 2016

Health Headlines – November 28, 2016

House Files Motion to Delay Affordable Care Act Suit in Light of Change in Administration – On November 21, 2016, the U.S. House of Representatives filed a motion with the D.C. Court of Appeals requesting a temporary hold on briefing in U.S. House of Representatives v. Burwell as a result of Donald Trump’s election earlier this month.  The case is currently on appeal by President Obama’s administration after the District Court found that the appropriation of funds to pay cost-sharing subsidies to health insurers under Section 1402 of the Affordable Care Act was not approved by Congress and that it was unlawful for the Government to pay subsidies under such circumstances. King & Spalding’s summary of the District Court’s decision in House v. Burwell may be found here.

The House asked the Court of Appeals to grant a temporary stay of the briefing schedule until February 21, 2017, at which point the House proposed that the parties would file a joint status update on the case, specifying either (i) that the parties were considering settling or dismissing the case or (ii) a new briefing schedule.  The House argued that a temporary stay of the briefing schedule would “provide the President-Elect and his future Administration time to consider whether to continue prosecuting or to otherwise resolve [the] appeal.”  The House motion also requested, in the alternative, a 45-day extension of the briefing schedule if the Court of Appeals did not grant the temporary hold on briefing until February 21.  

In response, the Obama administration filed a motion requesting that the briefing schedule continue uninterrupted, stating that the House identified “no harm to completing the briefing schedule to which the parties agreed” and arguing that the principles at issue in the appeal are not changed by the election outcome.  The House’s brief is currently due on December 23, 2016, with the reply due on January 19, 2017.

The case is U.S. House of Representatives v. Burwell et al., Case No. 16-5202. The House’s motion may be read here, with the Obama administration’s response found here

Reporter, Christina A. McNamara, Houston, +1 713 276 7340,

Trial Challenging Proposed Anthem, Cigna Merger Is Underway – On November 21, 2016, the U.S. District Court for the District of Columbia heard opening arguments in the Department of Justice’s lawsuit challenging the proposed merger between Anthem, Inc. and Cigna Corporation.  This is the first time that the Department of Justice (DOJ) has sought to block a health insurance merger, emphasizing that the DOJ continues to increase scrutiny on the healthcare industry.

The trial will be bifurcated, with the first phase focusing on competition for national accounts of the country’s largest employers.  If there is not a finding of substantial harm to competition in the first phase, the trial will enter a second phase to examine potential harm to large employers in local markets.  The second phase also will evaluate Anthem and Cigna’s combined power to pay less money to doctors and hospitals.

Anthem currently covers 40 million Americans while Cigna covers 13 million.  Anthem’s proposed purchase of Cigna for $54 billion would make it the largest health insurer in the nation. In opening arguments, the DOJ claimed the merger would reduce competition among national insurers for large companies’ accounts and force providers to accept Anthem’s lower reimbursement rates.  

Anthem and Cigna argued that large companies prefer to use a mix of national and regional insurers, so a reduction in the number of national insurers would not have the negative impact on consumers that the DOJ is alleging.  In addition, Anthem and Cigna focused on the insurance industry’s move toward value-based reimbursement.  They argued that looking solely at lower reimbursement rates fails to consider other incentive payments that may be made.

The case is United States et al. v. Anthem, Inc. et al., Case No. 1:16-cv-01493.  Additional information regarding the DOJ’s challenge is available in King & Spalding’s Client Alert here.  The DOJ has also challenged the proposed merger between Aetna and Humana  That trial is set to begin on December 5, 2016.

Reporter, Paige Fillingame, Houston, +1 713 615 7632,

CMS Releases List of Potential Quality and Efficiency Reporting Measures – On November 22, 2016, CMS published its annual list of quality and efficiency measures under consideration for adoption through the rulemaking process.  CMS is considering approximately 100 measures for incorporation into approximately 20 different quality and other payment programs covering a variety of care settings, including hospitals, clinician practices, and dialysis facilities.   

CMS states that 39 percent of the measures are outcome measures and that an increased number of measures were submitted for consideration by specialty societies. 

CMS is collaborating with the National Quality Forum (NQF) to obtain input from multiple stakeholders, including patients, clinicians, commercial payors, and purchasers.  NQF will engage in a two-month review of the potential measures and instructs the public to submit comments through December 2, 2016 at 6:00 ET.

CMS’s blog post announcing the proposed measures is available here, with the full list of measures available here.

Reporter, Isabella E. Wood, Atlanta, + 1 404 572 3527,

U.S. Surgeon General Issues Comprehensive Report on Addiction and Substance Misuse in America, Calls for Increased Treatment in Healthcare Settings – On November 17, 2016, the U.S. Surgeon General released a comprehensive report on addiction, substance misuse, and substance use disorders.  The Surgeon General’s Report on Alcohol, Drugs, and Health is considered a landmark publication in that it is the first report from the Surgeon General covering addiction and related issues, and it calls for a shift in policy away from a criminal justice strategy to a healthcare integration approach. 

The Surgeon General’s Report notes that services for the prevention and treatment of substance misuse and substance use disorders traditionally have been delivered separately from other healthcare services.  Historically, substance misuse has been viewed as a social or criminal problem, and only a limited range of treatment options was covered by insurance.   The Surgeon General’s Report emphasizes that “[e]ffective integration of prevention, treatment, and recovery services across health care systems is key to addressing substance misuse and its consequences and it represents the most promising way to improve access to and quality of treatment.”  The Surgeon General’s Report further emphasizes that integrating care for substance use disorders into mainstream healthcare will ultimately increase the quality, effectiveness, and efficiency of healthcare, reduce health disparities, and lead to improved health outcomes.  As one example, the Surgeon General’s Report encourages substance use and misuse to be screened and monitored in primary care settings, whereas previously substance use and misuse were largely ignored in primary care.

The Surgeon General’s Report is available here.

Reporter, Jennifer S. Lewin, Atlanta, +1 404 572 3569,

Also In the News

King & Spalding to Host Houston-Based In-Person Roundtable December 2 – Join us on Friday, December 2, 2016 for an in-person only Houston-based Roundtable that will cover the latest trends and developments in the healthcare regulatory, reimbursement, and compliance arenas during 2016, as well as the impact of the Presidential Election outcome. The presenters will include King & Spalding lawyers from our Houston, Austin, and Washington D.C. offices, including former U.S. Congressman Michael Andrews, as well as Ken Hooper, a Principal at HC Healthcare Consulting. On Thursday, December 1, 2016 we will host a Welcome Reception at King & Spalding’s Houston Office.  For more information and to RSVP please click here.

King & Spalding to Sponsor American Bar Association’s 14th Annual Washington Health Law Summit December 12-13 – The ABA Washington Health Law Summit will be held December 12-13, 2016, at the Ritz Carlton in Washington, D.C.  King & Spalding Healthcare partner Kathy Poppitt will co-chair the event, which will be one of the first conferences to discuss the future of healthcare policy following the Presidential election.  Partner Mark D. Polston will be moderating one of the key sessions titled “What’s in Store for Government Healthcare? A Discussion of the Post-Election Future of Medicare, Medicaid and Obamacare with Former CMS Leaders.”  Senior associate Juliet McBride is a member of the program committee and King & Spalding is one of the Summit’s major sponsors.  For more information and to register, please click here.

King & Spalding Receives Tier 1 National Rank in Healthcare Law by U.S. News & World Report U.S. News & World Report’s survey of outstanding law firms and legal practices in the United States recognized King & Spalding’s Healthcare Practice as a Tier 1 national practice.  Rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.  For more information, please click here.