2020 was an unprecedented year for the world, with so many lives upended by the COVID-19 pandemic. Here at Powers, we are grateful to have made it through this difficult year due to the resilience of our team members.
In March, like most other workplaces, Powers shifted to full remote work; and in June, we commenced our first virtual summer associate program. Throughout the year, we continued to bring in new talent to the firm and make a number of internal promotions.
Many of our clients—from healthcare providers, to educational institutions, to Native American tribes, and beyond—were heavily impacted by the pandemic. As such, much of our work this year was dedicated to helping those clients navigate these challenging times. To share this work, we launched our COVID-19 resources web page, a hub that includes insight and analysis by Powers’ professionals as well as outside resources.
As we enter 2021, we want to take a moment to reflect on this past year, highlight some of our important work and celebrate our client successes.
A Look Back at 2020
COVID-19 Legislation and Stimulus Packages
Our government relations practice closely followed the federal legislative response to the COVID-19 pandemic. They provided insight on each major coronavirus stimulus package passed by Congress, including (in order of completion) the Coronavirus Preparedness and Response Supplemental Appropriations Act, the Families First Coronavirus Response (FFCRA) Act, the Coronavirus Aid, Relief and Economic Security (CARES) Act, and the Paycheck Protection Program and Healthcare Enhancement Act.
We tracked specific guidance that was released throughout the year and continuously provided updated insight, including a summary of new regulations surrounding diagnostic services, an explanation of new COVID-19 transparency requirements for skilled nursing facilities and assisted living facilities, a summary of an Interim Final Rule on public health emergency waivers, and many more.
Guidance on Telehealth Regulations
Over the past year, the country was forced to quickly expand remote access for healthcare services. Congress passed new telehealth laws, and the Centers for Medicare and Medicaid Services (CMS) released a steady stream of guidance and regulations to implement the new laws. Along the way, Powers provided its clients with guidance on responding to and planning for these new regulations.
Powers’ telehealth expert, Becky Burke, along with attorneys Megan La Suer, Mark Fitzgerald, and Natalie Dobek tracked new guidance that was released throughout the year. Becky and Megan summarized Medicare telehealth policies and billing requirements, while Mark and Natalie wrote about CMS’ conflicting guidance on hospital billing of telehealth visits and provided insight for hospitals.
Our attorneys participated in and hosted several telehealth webinars throughout the year. In March, Becky Burke and Megan La Suer hosted a webinar on Medicare and Medicaid telehealth waivers in response to COVID-19. In April, attorneys Bill von Oehsen, Barbara Williams, Peggy Tighe and Becky Burke hosted a webinar on overall changes to telehealth, including the addition of several new CPT codes for billing and payment of telehealth services. Becky spoke at several other events, including the Center for Telehealth and e-Health Law (CTeL) Digital Health Fall Summit and a panel on remote patient monitoring.
Telehealth for Native American Tribes
This year, our tribal practice helped clients pursue new funding opportunities to establish telehealth programs that emerged from COVID-19 laws.
In May, attorneys Paul Moorehead, Becky Burke, and Kathleen Hatfield hosted a webinar on how telehealth can be deployed to meet critical needs in underserved and rural communities. In June, attorneys Paul Moorehead and Kathleen Hatfield published an opinion piece in Law360 titled “Telehealth Expansion will Benefit Tribal Communities” that explained the potential for telehealth to provide vital health services to native communities and discussed the expanded federal commitment to tribal telehealth that came during COVID-19.
Navigating Remote Learning and CARES Act Requirements for Educational Institutions
COVID-19 posed unprecedented challenges to higher education institutions and their service providers across the country, including the closure of campuses and the transition of academic programs from on-ground to online delivery. Throughout the year, the Powers education practice guided its clients through legislation and federal agency guidance designed to ease the burden of the pandemic on higher education institutions and their students.
When the CARES Act was passed, the education group released an extensive article explaining the higher education provisions in the Act. The group also provided numerous ongoing updates on new guidance released by the Department of Education, which covered the shift to distance education, administration of Title IV programs, leaves of absence, and much more.
Meeting Contract Cancellations and Negotiations
Given the circumstances of this past year, many of the firm’s non-profit and association clients found themselves needing to cancel or renegotiate complex meeting contracts. Hotel and convention center contracts are highly specialized contracts that often have severe penalties if the organization attempts to cancel or renegotiate. For a number of Powers clients, these are million-dollar contracts that are secured 4-5 years in advance.
Despite the extenuating circumstances caused by the pandemic, many hotels argued that unless a mass gathering was against the law on the date of the planned meeting, an organization could not cancel the contract based on COVID-19. Powers attorneys Rob Portman, Ben Tesdahl, and Bob Saner, who specialize in these types of contracts, helped their clients successfully cancel approximately 60-70 hotel and convention center contracts, most without any penalty.
Helping Postsecondary Institutions Update their Title IX Frameworks
In May, the U.S. Department of Education published new Title IX regulations, which set forth new requirements and procedures for institutions of higher education addressing allegations of sexual harassment. Powers education attorneys helped their clients prepare for the changes, which took effect in August 2020, by summarizing the new regulation and explaining the changes that schools will likely need to make to their existing Title IX policies to comply with the new rule.
In June, attorneys Dan Brozovic and Katherine Demedis gave a presentation on the rule, in which they walked schools through the process of handling a Title IX complaint, including the required investigation, hearing and appeal phases.
Powers Principal Julie Allen organized a new coalition of Independent Diagnostic Testing Facility companies and equipment manufacturers that provide home-based EEG and video EEG diagnostic testing. After helping the coalition succeed in eliminating the risk of significant Medicare cuts in 2019, she led an effort in 2020 to have the coalition engage with individual Medicare Administrative Contractors (MAC) to ensure fair regional pricing for and patient access to home-based long term EEG testing services. Through direct advocacy, data support, and congressional engagement, Powers’ government affairs team succeeded in getting MACs to reconsider their reimbursement for EEG testing services, increasing rates by as much as 60 percent.
With the rate of maternal morbidity and mortality skyrocketing in the U.S., the U.S. Department of Health and Human Services (HHS) and Office of the Surgeon General organized an effort to establish a formal Call to Action and implementation plan to reduce avoidable maternal illness and death during pregnancy and the postpartum period following delivery. Representing the Preeclampsia Foundation, Julie Allen worked to ensure the patient perspective was paramount to the Department’s efforts in its planning and its presentations. A preeclampsia survivor was featured as the patient voice at the live public HHS Call to Action and action plan announcements along with the U.S. Surgeon General. The Preeclampsia Foundation’s message and efforts were prominently featured during live events, through social media, and through HHS public-interfacing blog posts.
Powers Principal Peter Thomas served as counsel to the ITEM Coalition, working with other policy and legal experts in the firm to submit a National Coverage Determination (NCD) Request for Reconsideration for Medicare coverage of seat elevation and standing systems in power wheelchairs. Powers orchestrated multiple meetings with HHS and CMS officials and built strong Congressional support for this important coverage request that will help people with mobility impairments and disabilities.
Litigating on Behalf of 340B Clients
This past year, Powers’ 340B experts filed a federal lawsuit against the U.S. Department of Health and Human Services (HHS) and HHS Secretary Alex Azar on behalf of the organization Ryan White Clinics for 340B (RWC-340B). The lawsuit was in response to clinic complaints that drug manufacturers are refusing to sell 340B discounted drugs if these drugs are ordered through a contract pharmacy. The lawsuit calls on HHS and the Health Resources and Services Administration (HRSA) to take action. In November, Powers filed an amended complaint asking the court to order Secretary Azar to take immediate action.
Powers Principal Barbara Williams spoke about manufacturers’ refusal to honor contract pharmacy agreements at the Healthcare Enforcement Compliance Conference.
In 2020, Powers supported a U.S. company and private equity owners that operate the world’s largest firefighting airtanker with their effort to formalize a federal contract agreement with the U.S. Forest Service in 2020. Principal Julie Allen worked with the company to help federal and congressional officials understand the unique suppression capabilities of the largest airtanker in lead up to what amounted to be one of the worst wildfire seasons in history. Through Powers’ efforts, congressional committee and Western Caucus leaders on Capitol Hill advocated for the rapid initial attack of wildfires in 2020, citing statistics on the value of aerial assets, including airtankers. This was the first federal contract in the U.S. company’s history, resulting in them flying more than 100 missions in 2020 to support federal and state lands.
On behalf of the American Society of Transplant Surgeons, Powers Principal Peggy Tighe successfully advocated for the passage of the Immunosuppressive Drug Coverage for Kidney Transplant Patients Act, which was signed into law on December 28, 2020. The legislation establishes eligibility for immunosuppressive drug coverage through Medicare to post-kidney transplant individuals whose entitlement to benefits under Medicare Part A ends and who do not otherwise receive coverage of immunosuppressive drugs through other insurance.
On behalf of the Regulatory Relief Coalition, a group of health care practitioners and others, Peggy Tighe worked to advance legislation to implement an electronic authorization program to reduce prior authorization delays and help older Americans obtain quicker access to needed treatments. Through Powers’ work, the Improving Seniors’ Timely Access to Care Act advanced from the House and was introduced in 2020 in the Senate with bipartisan support.
Analysis of Election Results
The firm’s government relations and legislative practice summarized the 2020 election results for their clients and provided an analysis of the results from a health care perspective. The analysis discussed key changes to congressional committees overseeing health policy and what those changes will mean for health care agenda items in the next Congress.
Higher Education Specialist Sharon Bob gave insight on the election results from an education perspective in a webinar in which she discussed the impact a Biden presidency could have on higher education and provided some predictions as to what might happen in the 117th Congress.
…And Countless Other Successes
2020 marked the 30th anniversary of the passage of the Americans with Disabilities Act (ADA), a law that Powers Principal Bobby Silverstein was heavily involved in establishing during his time on Capitol Hill. Bobby served as staff director and chief counsel for the Senate Subcommittee on Disability Policy, as well as chief aide to then-Senator Tom Harkin, who had served as lead sponsor of the ADA in the Senate. This past year, Bobby gave several interviews and presentations discussing the history of the Act, the efforts to securing bipartisan support for its passage, and how the landscape of disability policy has changed since the bill’s passage.
On behalf of the Confederated Tribes of the Chehalis Reservation, the Powers tribal practice secured a provision in S.212, the Indian Community Economic Enhancement Act of 2020 that will assist in preempting state and local taxes imposed on businesses with mixed Indian and non-Indian ownership on tribal lands. The Senate passed S.212 on December 18, 2020, following earlier House passage, and sent to the President to be signed into law.
Powers Counsel Kathleen Hatfield submitted a winning application to the Federal Emergency Management Agency (FEMA) and the California Governor’s Office of Emergency Services (Cal OES) that resulted in a $1,740,458 award to the City of Los Angeles in support of two large, non-structural seismic retrofitting projects to be completed on the campus of the PIH Health Good Samaritan Hospital in Los Angeles. The funding will be used to reinforce an acute care hospital and prevent catastrophic damage to its main hospital building and essential power plant in the event of a major earthquake.
The firm’s education group analyzed a notice from the Department of Education that increased scrutiny of colleges’ disclosure of gifts, noting that colleges that do not properly report their foreign gifts and contracts could be fined or lose their Title IV eligibility.
A year after he originally received a dismissal of a complaint in a False Claims Act case, Senior Counsel Larry Gondelman, obtained another dismissal of an amended complaint in that same case, in which Larry’s client, a third-party financial aid servicer, was alleged to have assisted an educational institution in violating the False Claims Act regarding Title IV funds. While the client was hired by the educational institution in July 2017, the complaint alleged that the client aided the submission of false claims by concealing false claims made prior to July 2017. The dismissal affirmed Larry’s argument that his client could not be liable for any claims made by the institution prior to being hired in July 2017 and that the plaintiff had failed to provide the requisite degree of particularity with respect to the funds allegedly improperly disbursed subsequent to the client’s hiring.
Promotions, New Faces, and Retirements
In July, Julie Allen was promoted to Principal (non-attorney). The promotion came only a year after Julie joined the firm as a Senior Director of Government Affairs.
At the beginning of 2020, attorney Dan Brozovic in the education practice was promoted to Principal after almost nine years as an associate with the firm. Katie Demedis, another attorney in the education practice, was promoted to Counsel in October after serving almost eight years as an associate.
Founding partner Jim Pyles retired on December 31, 2020 after nearly 37 years with the firm.
Powers was once again recognized as a top law firm by various legal guides, and our professionals were recognized for their lobbying and government relations success and legal work
- Attorneys Mark Fitzgerald, Rob Portman, Ron Connelly, Mary Susan Philp and Kathleen Hatfield were selected to Super Lawyers 2020.
- Thirteen attorneys were selected to Best Lawyers 2021, including Sherry Gray, Mark Fitzgerald, Diane Millman, Barbara Straub Williams, Ron Connelly, Rob Portman, Jim Jorling, Jim Pyles, Mary Susan Philp, Brian Gunn, Paul Moorehead, Kevin Wadzinski, and Bob Saner.
- Healthcare Associate Mark Ogunsusi was selected for Best Lawyers: Ones to Watch, awarded to those attorneys who are junior in their career for outstanding professional excellence in private practice.
- Powers was recognized in “Best Law Firms” by U.S. News and World Report for Native American law, healthcare law, and education law.
- Principal Peggy Tighe was named as a top lobbyist by the National Institute for Lobbying & Ethics.
We thank our team for resilience through this difficult year and our clients for their continued trust in our firm. On to 2021!