As a new year begins, we at Powers are once again taking a moment to reflect on the past year, highlight some of our important work and celebrate our client successes.
2021 was a year of change and growth for Powers, with new firm leadership and the addition of many new professionals to the firm. As Powers has grown, we have stayed true to our emphasis on providing personal service and unique solutions, working with clients to help them succeed in the complex and highly regulated environments of healthcare, education, tribal, nonprofit, and employment law.
A Look Back at 2021
Ongoing Response to COVID-19
Throughout the past year, Powers continued to closely follow the federal legislative response to the COVID-19 pandemic and provided updates to clients on issues ranging from vaccine development to telehealth regulations.
Our government relations team began the year by providing detailed insights on the Consolidated Appropriations Act, which included $900 billion in stimulus funds and relief policies to respond to COVID-19. We continued tracking the federal response to COVID-19 and, in March, summarized key legislative provisions in the American Rescue Plan Act, a $1.9 trillion COVID-19 relief and economic stimulus package, for Powers clients and friends.
As the COVID vaccine was distributed throughout the country in early 2021, our employment attorneys tackled the question of whether employers can require their employees to receive the vaccine. As the vaccine became more widespread throughout the year, we continued to update clients on the laws surrounding employer vaccine mandates. Attorneys Rob Portman and Jeremy Lewin presented on this topic at the American Society of Medical Association Counsel Fall CLE Meeting in October.
Powers worked with one client to advance policies supporting those diagnosed with “Long COVID” and the multidisciplinary clinics that treat these patients, including high-level meetings across the Administration and Congress, written testimony for Congressional hearings, participation in public meetings and comments with stakeholder groups, securing inclusion of provisions in congressional appropriations bills and other legislation, and more. The client is now recognized across the federal government as a leader in Long COVID policy and has garnered support from nearly 100 national and state organizations for its efforts.
The Powers education team continued helping clients navigate the intricacies of the Higher Education Emergency Relief Fund (HEERF), which supplies funding to institutions to provide emergency financial aid grants to students affected by COVID-19. We provided a reminder to institutions to publish HEERF reports before the deadline and gave a presentation on the process behind U.S. Department of Education HEERF audits.
The education group also provided insight to institutions to prepare for the resumption of federal student loan repayment in 2022, which had been suspended due to the pandemic.
Finally, as the pandemic continued, many of the firm’s non-profit and association clients found themselves once again needing to cancel or renegotiate complex meeting contracts. Powers attorneys Rob Portman, Ben Tesdahl, and Bob Saner helped their clients successfully cancel these contracts.
Litigation on Behalf of Teaching Hospitals
In May, Powers principal Ron Connelly won a significant federal court case for several teaching hospitals that should result in significant Medicare repayments to those hospitals. The case was spearheaded by Powers’ client, GME Solutions, LLC, which is a national GME consulting firm. GME Solutions discovered that CMS’s regulation underpaid providers, and Powers identified how the regulation unlawfully deviates from the Medicare statute. Powers filed the case in September 2019 on behalf of Milton S. Hershey Medical Center and numerous other GME Solutions clients. In May of 2021, the U.S. District Court for the District of Columbia agreed that the Medicare regulation unlawfully under reimbursed those hospitals because they trained post-graduate fellows rather than residents within their initially residency period.
Legislative Language in Reauthorization Bill
In October, after announcement of the House considering legislation that would reauthorize the Early Hearing Detection and Intervention (EHDI) program, the Powers’ government affairs team was able to successfully and quickly engage the bill’s sponsor to draft, recommend, and pass amendment language for a not-for-profit dedicated to eliminating barriers to cochlear implantation. The legislative language requires the Government Accountability Office (GAO) to capture data on state EHDI websites, how they are utilized by families, and their adequacy at presenting data on full spectrum hearing health options, including cochlear implants. This language was successfully included and passed on the House floor.
Coverage of Home-Based EEG Providers by State Medicaid
The Powers Government Affairs team successfully advocated for Independent Diagnostic Testing Facility (IDTF) companies that support home-based EEG and video EEG diagnostic testing be added to the list of providers who can bill for services with Connecticut Medicaid. Powers led an effort this year to ensure that IDTF’s were able to bill for their services in Connecticut. Through direct advocacy, data support, and Medicaid engagement, Powers’ government affairs team was successful in supporting efforts to get IDTF’s reimbursement for EEG testing services provided to Connecticut Medicaid patients.
Medicare and Medicaid Coverage Work
Throughout the firm’s history, Powers has been known for assisting clients with Medicare and Medicaid reimbursement and coverage issues. 2021 was no different, as our healthcare group continued advising and advocating for clients in regard to these complex federal programs.
After two years of advocating with the Oregon Health Evidence Review Commission (HERC) — a group of 13 governor-appointed and senate-confirmed volunteer members who guides the Oregon Health Authority in making decisions on what benefits should be covered by Medicaid – a coalition advocating for equitable carrier screening successfully saw the Commission pass coverage for pan-ethnic expanded carrier screening. Powers lead the coalition’s efforts both years to highlight the importance of ensuring that carrier screening, testing done to determine if an individual who are pregnant and their partner have the potential for passing a serious childhood onset genetic condition to their child, is available to Medicaid enrollees in Oregon regardless of race, ethnicity, or familial history. Through direct communication, patient advocacy engagement, provider support, and data driven analyses the Powers Government Affairs team was successful at making Oregon the first state to cover and implement medical guidelines in support of expanded carrier screening.
Powers also continued to organize widespread support, via the ITEM Coalition, for a pending National Coverage Determination Request for Reconsideration for Medicare coverage of seat elevation and standing systems in power wheelchairs, including Congressional letters from 77 House Representatives and 3 Senators endorsing the effort to assist people with mobility impairments and disabilities.
Managing Partner Peter Thomas and Director of Government Relations Joe Nahra also spoke on several occasions this year about their work with the ITEM Coalition to promote access to necessary devices and technologies under Medicare and Medicaid. Peter Thomas presented at a virtual policy briefing in his capacity at Counsel for the ITEM Coalition hosted by the National Council on Disability (NCD), where he spoke about the lack of accessible medical diagnostic equipment for people with mobility impairments and disabilities, and gave recommendations to federal agencies to enforce final accessibility guidelines. Joe Nahra was a guest on an American Council for the Blind (ACB) podcast, in which he discussed legislative action surrounding Medicare Coverage of low vision devices and Powers’ work with the ITEM Coalition in this area.
Peter Thomas and Healthcare Associate Leela Baggett assisted innovators in their efforts to secure coverage, coding, and payment for devices under the Medicare program and the Department of Veterans Affairs.
Throughout the year, Powers attorneys Becky Burke, Megan La Suer, and Diane Millman provided clients with guidance on CMS’ upcoming changes to coverage and payment for Medicare telehealth service and remote patient monitoring.
Passage of First-Time Legislation to Address Stillbirth in the U.S.
Working with lead patient advocates for stillbirth awareness, prevention and research, Powers developed and guided a client with a strategic plan for the bipartisan introduction of first-time legislation, the Stillbirth Health Improvement and Education (SHINE) for Autumn Act. The bill aims to lower the U.S. stillbirth rate by providing resources to states, improving data collection and increasing family and provider awareness to prevent stillbirth when possible. We organized and conducted a congressional and stakeholder briefing, securing more than 120 participants. Following the briefing, the bill passed by an overwhelming majority in the U.S. House of Representatives.
Protecting and Advocating for the 340B Drug Pricing Program
Powers continued to advocate for safety net providers and pharmacies participating in the 340B drug pricing program throughout the year. As drug manufacturers continued to challenge the 340B program, our attorneys filed numerous amicus curiae briefs in the lawsuits filed by those manufacturers. Powers also filed three petitions under the new Administrative Dispute Resolution process to challenge the drug manufacturer actions.
On behalf of client RWC-340B, Powers pushed for the introduction of the PROTECT Act, a bipartisan bill that seeks to prevent pharmacy benefit managers (PBMs) and other third-party payers from paying below-market rates or engaging in other discriminatory contracting practices that undermine participation in the 340B Program by Ryan White clinics, federally qualified health centers and other safety net providers.
In addition to their legal and advocacy work, Powers attorneys continued to share their unparalleled expertise on the 340B program in various ways. Attorneys Megan La Suer, Mark Ogunsusi, Bill von Oehsen, and Barbara Straub Williams, authored a chapter on 340B compliance for the Health Care Compliance Association’s (HCCA) Complete Healthcare Compliance Manual, which focuses on the 340B and includes a comprehensive discussion of the requirements and compliance issues applicable to the safety net hospitals and clinics participating in the 340B program. Bill von Oehsen co-authored a white paper on the intersection of the 340B program and pharmacy benefit managers (PBMs). Bill also presented to the Kansas State 2021 Special Committee on the Federal 340B Drug Program, where he discussed the need for state legislation to protect the 340B Program.
We spoke at the 340B Coalition Winter Conference and Summer Conference and hosted several webinars on behalf of RWC-340B. Principal Barbara Williams spoke at the American Health Law Association (AHLA) Institute on Medicare and Medicaid Payment Issues in March where she discussed 340B compliance issues and interaction of the 340B Program with Medicare and Medicaid, and alternative dispute resolution regulation. She also spoke on a HRSA webinar about the new ADR process, which allows 340B covered entities to pursue claims of 340B overcharges against drug manufacturers and manufacturers to pursue claims against covered entities of alleged violations of certain compliance requirements.
Associates Megan La Suer and Mark Ogunsusi spoke at the Healthcare Financial Management Association (HFMA) Spring Virtual Conference in April, where they discussed compliance issues surrounding 340B, threats to the program, and advocacy opportunities.
Higher Education Guidance
Our education group once again helped clients navigate highly complex regulatory matters such as financial aid, program review and audit resolution, accreditation, state licensure and approval, and more.
At the beginning of 2021, Higher Education Specialist Sharon Bob shared insights on what the new Biden administration and Democratic control of Congress could mean for higher education. Throughout the year, Sharon also shared monthly updates summarizing the latest Congressional and Department of Education updates in education policy in her newsletter “Washington Update.”
The education group summarized changes in the Distance Education and Innovation Final Rule, including changes related to accreditation requirements for distance education, the newly introduced term “academic engagement,” requirements to measure the completion of clock hours via distance education, and requirements for monitoring a student’s engagement and success in distance education courses.
We gave several presentations on federal regulations relating to higher education. In June, principals Sean Beller and Nick Michiels presented at the Career Education Colleges and Universities (CECU) Annual Convention on the terms and limitations of the Program Participation Agreement, which allows institutions to participate in Title IV programs. Counsel Katie Demedis presented at the same conference in a session about 2020 changes to the federal Title IX regulations and the steps of the revised Title IX process.
…And countless other successes
- The Confederated Tribes of the Colville Reservation, a Powers client, filed a lawsuit against the United States in August seeking damages for the 2015 wildfires that burned more than 240,000 acres of the tribe’s land. Powers principal Brian Gunn serves as Of Counsel on the case and Powers associates Leela Baggett and Megan La Suer also assisted with the complaint.
- Powers has continued to represent the inpatient rehabilitation facility (IRF) field through various audits and appeals, including:
- The submission of a response and subsequent appeals related to an OIG audit
- Handling a 23-beneficiary hearing before an ALJ, which resulted in an almost $3 million recovery of Medicare reimbursement
- Assisting in the development of specialized arguments against technical documentation-based denials
- Powers led strong advocacy efforts in opposing the implementation of CMS’ Review Choice Demonstration project, which proposes to initiate 100% pre- or post-claim review for IRFs in certain jurisdictions.
- Principals Peggy Tighe and Diane Millman worked collaboratively with The American Society of Transplant Surgeons (ASTS) to accomplish what many thought could not be done – an important delay of provisions in the IPPS rule that would have had a decidedly negative impact on transplant financing and patient access to care.
- Powers represented its long-time client Association of Metropolitan Water Agencies in connection with litigation in the U.S. Court of Appeals for the 9th The Association joined other national and regional water organizations in an amicus brief urging the Court to reconsider its September 29, 2021 decision in California River Watch v. City of Vacaville. The case held a municipal water utility responsible under the Resource Conservation and Recovery Act for hazardous chemical wastes generated by an industrial concern over which the local water utility had no control. If allowed to stand, the case will make innocent water suppliers the targets of lawsuits all over the country, subverting RCRA’s carefully-crafted legislative scheme designed to insure that “the polluter pays.”
- On behalf of the Regulatory Relief Coalition (RRC), Principals Peggy Tighe and Diane Millman continued leading efforts to propel introduction of federal legislation to protect Medicare Advantage patients from unnecessary delays in care by streamlining and standardizing prior authorization in the program. The bill, the “Improving Seniors’ Access to Timely Care Act,” was reintroduced in May.
- Peggy Tighe served as chair of the selection committee for the Women in Government Relations 2022 Judy Schneider Fellowship, which provides women with opportunities to build professional and personal skills as emerging government relations professionals.
- Kathleen Hatfield obtained several grants and funding on behalf of clients. In June, she obtained a $100,000 grant awarded by HRSA’s Federal Office of Rural Health Policy (FORHP) to plan the establishment of a telehealth network between PIH Health Good Samaritan Hospital in Los Angeles and three healthcare providers on Guam, including the Guamanian Department of Public Health and Social Services. She obtained $175,000 from the state of West Virginia to fund a hospital system’s provision of COVID-19 testing and wrap around services for members of racial and ethnic minorities in the state from October 1, 2021 through May 31, 2023. She also secured $65,000 from the state of California for a Los Angeles hospital to fund trips by Uber to transport child and adolescent victims of domestic violence and their family members to and from treatment and counseling from January 1, 2022 to December 31, 2023.
- Powers Senior Counsel Bob Saner coauthored an article on how new Stark regulations add confusion to permissible compensation practices inside physician group practices.
Powers in the News
- News of Peter Thomas becoming the new Powers Managing Partner was featured in the National Law Review, Politico, and The Hill.
- Barbara Williams was quoted in a Bloomberg article about the harms caused by the delay in establishing a drug pricing 340B alternative dispute resolution (ADR) board, a long-awaited step in finalizing the ADR process.
- Counsel Kathleen Hatfield and Principal Paul Moorehead published an article in Law360, titled “Revival of Earmarks Will Streamline Legislative Process.”
- News of Jeremy Lewin joining Powers as a principal was featured in the National Law Review.
- Principal Mark Fitzgerald authored the feature article in a February edition of the American Health Law Association (AHLA) publication Health Law Weekly, titled “Analyzing AMC Compensation Plans Under the New Stark Amendments: What’s New and What’s Really No.t”
- Principal Brian Gunn was quoted in the Spokesman-Review in an article on the appointment of Bob Anderson as the U.S. Department of the Interior’s new Solicitor, a role that leads a staff of more than 500 in the agency that includes the Bureau of Indian Affairs, Bureau of Land Management, National Park Service and more.
- Bobby Silverstein was quoted in an article by Red Canary Collective that discusses the legacy of the Americans with Disabilities Act (ADA) and the ongoing fight for disability rights.
- Principals Peggy Tighe and Barbara Straub Williams were quoted in a Pharmacy Practice News article about a recent Community Oncology Alliance (COA) report that accuses some safety net hospitals of gaming the 340B drug pricing program to boost profits.
New Faces and Promotions
Jeremy Lewin joined the firm as a shareholder and Principal in the firm’s non-profit practice and as chair of our employment law practice.
Cynthia Grunden joined the firm’s Education practice as a Financial Aid and Higher Education Specialist.
Natasha John joined the firm as Director of Tribal Government Relations, focusing on government affairs and advocacy strategies for the firm’s tribal practice.
Dr. Bruce Gans, MD joined in the firm as Senior Health Policy Advisor for the firm’s government relations practice, where he consults on healthcare legislative and regulatory matters.
Fernando Montoya joined the firm as an associate in the firm’s healthcare practice after previously working as a Legislative and Health Policy Intern for Powers.
Olivia O’Hea joined the firm’s education practice as an Associate after serving as a summer associate with Powers in 2020.
Michaela Boudreaux joined the firm today as a Legislative Analyst, supporting the firm’s government relations/legislative practice
In April, Peter Thomas was elected the new Managing Partner and President of Powers, succeeding Jim Jorling.
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.
Becky Burke received a Distinguished Service award from the American College of Allergy, Asthma and Immunology, presented at their annual meeting in New Orleans in November 2021.
Principals Mark Fitzgerald and Ron Connelly and Counsel Kathleen Hatfield were selected to Super Lawyers 2021, a list of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Principal Dan Brozovic and Associate Leela Baggett were selected to Super Lawyers Rising Stars, which highlights attorneys who are either 40 years old or younger or who have been practicing for 10 years or less.
Fourteen attorneys were recognized in The Best Lawyers in America© 2022, 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 and Kevin Wadzinski. Mark Ogunsusi was selected to Best Lawyers: Ones to Watch, which highlights attorneys who are junior in their career.
Powers was ranked in “Best Law Firms” for the 12th year in a row. We received a national tier 1 ranking for Native American Law and a national tier 2 ranking for Health Care Law. We also received a regional tier 1 ranking for Native American Law, Health Care Law, Education Law, and Nonprofit/Charities law.
We at Powers are grateful to our clients for their support through another difficult year and to our team for their continued hard work and unique problem-solving skills. We look forward to another year of growth in 2022.