News & Insights


October 18, 2021

Health Headlines – October 18, 2021

Key Takeaways from King & Spalding’s 30th Annual Health Law & Policy Forum - On September 20, September 22 and September 24, 2021, more than 530 healthcare professionals from around the country gathered virtually to attend the 30th Annual King & Spalding Health Law & Policy Forum.  Attorneys from King & Spalding’s Healthcare group joined with esteemed health law experts for six sessions to discuss emerging issues and hot topics in the health law and policy arena. Topics included, among others, recent antitrust developments, value-based care trends, fraud enforcement, and telehealth laws during COVID-19. Click here to access the full King & Spalding summary.

Also In the News

Call for Amicus Participation in Supreme Court DSH Case: Becerra v. Empire Health Foundation

King & Spalding is representing Empire Health Foundation before the Supreme Court, challenging HHS’s 2005 disproportionate share hospital (DSH) policy treating patients who had exhausted their Part A benefits (or otherwise were ineligible for Part A payment) as nonetheless being “entitled to benefits under Part A.”   CMS’s policy tends to reduce both a hospital’s Medicare fraction and its Medicaid fraction, thereby reducing DSH payments for the vast majority of DSH hospitals.  Furthermore, not only will the Supreme Court’s decision in Empire decide nationally whether CMS’s exhausted day rule is valid, it will likely also have substantial implications for the ongoing litigation surrounding the Allina Part C issue since both issues turn on whether the phrase “entitled to benefits under Part A” should be interpreted narrowly (as hospitals contend) or broadly (as CMS contends). 

Empire Health Foundation won its case before the District Court and the Ninth Circuit, and the
Ninth Circuit reinstated HHS’s pre-2005 regulation under which only “covered” days are included in the Medicare fraction (more information is available in the May 5, 2020 Health Headlines). The Supreme Court granted HHS’s request for review in July and amicus briefs supporting Empire are due by October 25, 2021. DSH hospitals that are adversely affected by CMS’s exhausted days policy or CMS’s Part C policy should consider joining an amicus brief informing the Court that CMS’s policy detrimentally affects their DSH payments since we believe that will be an important consideration for the Court.  Such hospitals should also consider urging their state or national hospital associations to also support Empire as amicus.  If you are interested in learning more about joining as amicus, please contact Dan Hettich ( and Ahsin Azim (, and they will put you in touch with the counsel for amici. 

Public Health Emergency Extended

On October 15, 2021, HHS renewed its determination that a public health emergency exists nationwide as the result of COVID-19 effective October 18, 2021.  This is the seventh renewal of the original January 21, 2020 determination that a public health emergency exists and has existed since January 27, 2020, nationwide.  The full text of the order can be found here.