More cases also may be brought in 2015 involving the federal 60-day rule, he said. Under the ACA, healthcare providers have 60 days to return Medicare and Medicaid overpayments once those overpayments are identified, or else they can be found in violation of the False Claims Act. In 2014, a repayment case was brought against Mount Sinai Health System in New York. That case is pending.
Healthcare lawyers say they expect more antitrust litigation in the coming year as providers try to figure out how to consolidate and form partnerships to reduce costs and improve quality of care without running afoul of laws designed to preserve competition. “The Federal Trade Commission and the Department of Justice have shown they will keep a keen eye on those activities,” said Brian Betner, a shareholder with Hall Render Killian Heath and Lyman in Indianapolis.
Peter Pavarini, president of the American Health Lawyers Association and a co-leader of the health law practice at Squire Patton Boggs in Columbus, Ohio, said providers are caught in what many see as a contradiction between the ACA's mandate to reduce costs and improve care and the antitrust laws. “As long as the antitrust laws … stay the way they are, this issue will continue,” he said.
Antitrust cases from 2014, such as one involving St. Luke's Health System in Idaho, may help define the issue moving forward, Cornell said. That case is about whether the St. Luke's acquisition of a large Nampa, Idaho, medical group violates antitrust laws. “There will be some developments and directives given that will give us a sense of how large an organization can get to achieve efficiencies,” Cornell said.
Deborah Gersh, co-chair of the healthcare practice group at Ropes & Gray in Chicago, said she wouldn't be surprised to see more litigation over data breaches. The courts haven't yet settled whether employers should be held responsible when employees intentionally cause such breaches, she said.