COVID-19 Viewpoints

On August 4, CMS posted a proposed rule on CY 2021 Payment Policies, which included important updates about the expansion of Medicare covered telehealth services due to the COVID-19 pandemic. Here, we cover this and other important developments related to telehealth access during the pandemic and beyond.

United States Attorney Andrew E. Lelling recently announced that the U.S. Attorney’s Office for the District of Massachusetts entered into a Memorandum of Understanding with Special Inspector General Brian D. Miller of the Office of the Special Inspector General for Pandemic Recovery to investigate and prosecute fraud in the distribution of the funds authorized by the Coronavirus Aid, Relief, and Economic Security.

Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.

For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.

Sarah Beth Kuyers discusses the actions taken at the federal and state level to increase access to telehealth in response to the COVID-19 pandemic and takes a look at the recent movement to make some of these changes permanent.  

Despite the COVID-19 pandemic, the House Energy & Commerce Committee continues work on several health policy issues, including Orphan Drug Act reform and continuous manufacturing.

This advisory discusses the SEC’s recent guidance on operations, liquidity, and capital resources disclosure that companies should consider in light of the COVID-19 pandemic.

On July 2, a bipartisan group of six senators introduced legislation to waive 340B eligibility requirements for hospitals participating in the program during the COVID-19 pandemic. S. 4160 permits hospitals that are 340B-eligible based on their disproportionate share (“DSH”) adjustment percentage to maintain eligibility even if their DSH adjustment percentage falls below the requisite threshold.

This advisory summarizes recent proxy advisor guidance on and strategies for adjusting annual performance goals in light of the COVID-19 pandemic.

On July 14, the federal government’s rescinded its July 6 modification to a student exchange program that would have required nonimmigrant students to leave the U.S. while pursuing a course of study entirely online.

Leading up to a webinar on July 15, 2020, we are publishing a blog series covering the risks of enforcement against companies that received COVID-19 relief funds under the CARES Act and strategies for mitigating those risks.  This third, and final, installment of our series discusses emerging and anticipated criminal enforcement involving COVID-19 relief programs.

On July 6, 2020, Massachusetts entered Phase 3 of its four-phased approach to reopening.  The Administration also updated its Sector Specific Workplace Specific Safety Standards for Office Spaces to Address COVID-19, which were originally released on May 18.  

On July 6, Massachusetts moved into Phase III of its reopening plan, which allows many businesses and offices spaces to return to the physical workplace. With Phase III comes a new mandatory safety standard: screening employees for COVID-19 or close contact at the beginning of each shift. While the Office Spaces Safety Standards are geared toward office workplaces, we interpret this requirement to encompass an employer’s obligations to both employees and visitors to the office.

Leading up to a webinar on July 15, 2020, we are publishing a blog series covering the risks of enforcement against companies that received COVID-19 relief funds under the CARES Act and strategies for mitigating these risks.  This second installment of our series discusses our predictions related to litigation and enforcement activities. We expect a substantial number of False Claims Act (“FCA”) investigations and lawsuits initiated mainly by whistleblowers (also known as “relators”). The FCA remains the government’s primary enforcement tool for pursuing alleged fraud by recipients of government funds, and FCA claims present substantial risk because the statute permits treble damages and significant per-claim penalties. For example, an erroneous $100,000 loan under the Paycheck Protection Program (“PPP”) can result in $300,000 in FCA damages, or more.